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Investment agreement — express and tacit terms — breach — damages — heads of damage — claims not excluded by rule in Foss v Harbottle — declaration of delinquency in terms of section 5 c of the Companies Act 71 of — section applies in cases of substantial misconduct by directors — not retrospective in its operation — section a rational response to the problem of delinquency by directors — not unconstitutional — circumstances justifying the making of a declaration of delinquency.
Delict - claim for damages for abuse of rights - requirements of such a claim - requirements not established. Review — a high court of two judges sitting as a review court is a court of first instance as contemplated in s 16 1 a of the Superior Courts Act 10 of — that court is thus empowered to grant leave to appeal to the Supreme Court of Appeal in terms of s 16 1 a ii — duress allegedly exerted by legal representatives on appellant to plead guilty to theft not borne out by the facts.
Delict — pure economic loss — shareholder suing for diminution in the value of his shareholding — wrong committed against company, not shareholder — shareholder not entitled to recover loss. Prescription - cession of a claim - action instituted by cedent against the debtor - claim ceded after litis contestatio and substitution of cessionary for cedent not objected to - debt not prescribed in terms s 15 2 and 6 of the Prescription Act 68 of Purchase and sale - sale of business, inclusive of goodwill - implied prohibition against seller canvassing customers of sold business - prohibition a term implied by law - only seller bound by it.
Wills Act 7 of , section 4 — whether deceased had testamentary capacity to execute a will — Expert evidence — court must be satisfied with the reasoning which led to conclusion by expert witness- held testatrix not of sound mind at time of execution of will. Trade Marks Act of — s 21 read with s 45 3 thereof empowers the Registrar of Trade Marks to condone the late filing of opposition to an application for the registration of a trade mark and extend the three month period prescribed for the filing of opposition.
Application for condonation under s 3 4 of Act 40 of - requirements of - good cause established for condonation.
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Prescription — when does prescriptive period commence — agreements of sale of erven not yet created — appellants claimed specific performance of ancillary obligations under the agreements — special plea of prescription raised — respondent contended that prescription commenced on conclusion of the agreements — prescription could only commence when sale agreements enforceable — special plea of prescription dismissed. Application for the reinstatement of a patient, 30 years old, functioning at the level of a child three years of age, at a community mental health facility — patient a danger to herself, other occupants and staff — institution lacking resources to cope — audi principle had been extensively applied — application dismissed in the high court — application for leave to appeal to SCA — dismissed — no reasonable prospects of success.
Civil procedure: rescission application: based on alleged lack of jurisdiction of court that granted order of attachment ad fundandam et confirmandam jurisdictionem: ratio jurisdictionis present: no submission to jurisdiction established. Reconsideration of an order refusing special leave by two judges of the SCA: test has stringent requirements as the threshold is now higher: whether the courts below, including the decision of the two SCA judges, ought to have granted leave or not: appellant failed to show special circumstances: special leave refused.
Legality: an amendment by the Minister of Communications of the Digital Broadcasting Migration Policy in that did not follow a process of consultation was irrational and in breach of the principle of legality: amendment did not achieve its purpose and was thus irrational and invalid on that basis too: the Minister purported to bind regulatory authorities and broadcasters and thus acted ultra vires: amendment reviewed and set aside. Maritime law — associated ship arrest relying on deeming provision in s 3 7 c of the Admiralty Jurisdiction Regulation Act of the Act — charterer deemed to be owner of ship concerned — charterer includes a slot charterer — application for security in terms of s 5 2 c of the Act — requirements for — prima facie claim — reasonable and genuine need for security — factors relevant to exercise of discretion.
Apportionment of Damages Act 34 of — trial court erred in apportioning damages substantially in favour of respondent — negligence of the two drivers deviated in equal measure from the norm of the reasonable person — when appeal court may interfere with the narrow exercise of judicial discretion by trial court in apportioning damages. Criminal law and procedure — appeal for leave to appeal against refusal by high court to grant leave to appeal brought by way of petition from the regional court - Supreme Court of Appeal does not have jurisdiction to hear the appeal directly from the regional court — trial commenced prior to promulgation of the Superior Courts Act 10 of — appeal must be determined in terms of the Supreme Court Act 59 of — appellant granted leave to appeal against the non-parole period of the sentence — s B of the Criminal Procedure Act 51 of Practice and procedure — application for admission as amicus curiae — rule 16 of rules of Supreme Court of Appeal — process to be followed — admission as amicus does not give rise to a right to make oral submissions — whether entitled to do so determined by Court hearing the appeal — party may only be admitted as amicus if it has new contentions to advance — what constitutes new contentions.
Interpretation of time-limitation clause in written services agreements: whether or not delictual claims are subject to the time-limitation clause: nature of interpretative process considered: delictual claims held not to be subject to the time-limitation clause. Criminal Procedure: Appeal against the refusal of a petition for leave to appeal by High Court before the commencement of the Superior Courts Act 10 of — No leave sought from the court refusing the petition — special leave to appeal granted against conviction by the Supreme Court of Appeal — order a nullity — Supreme Court of Appeal having no jurisdiction.
Criminal Law - whether the State proved beyond a reasonable doubt that appellant was guilty of murder and robbery where the only material evidence was that of an accomplice, a single witness found to be untruthful and whose evidence was not corroborated. Criminal Law and Procedure — disclosure — accused charged with possession of child pornography — whether prosecution obliged to furnish accused with copies of images said to constitute child pornography as part of pre-trial disclosure.
Leave to appeal — refusal of application by two judges of the SCA in terms of s 17 2 of the Superior Courts Act 10 of — application to the President of the SCA in terms of s 17 2 f to refer the decision to the court for reconsideration and, if necessary, variation — a grave injustice constitutes exceptional circumstances. Criminal Law and Procedure — mens rea — evidence — assault with hay hook across the chest of the deceased — piercing heart and severing rib — conviction of murder with intention in the form of dolus eventualis not correct.
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Res judicata — appeal against decision of full court dismissed — full court correct in upholding appeal against decision of court of first instance which had wrongly found matter to be res judicata. Company law — Enquiry in terms of ss and of the Companies Act 61 of — summons to attend — application to set aside summons — abuse of process — what constitutes — fact that the issues canvassed may overlap with issues in pending or contemplated civil litigation not as such a ground for inferring abuse. Criminal Law: Whether the State proved beyond a reasonable doubt that appellants are guilty of murder where the only evidence is that of an accomplice, warned in terms of s of the Criminal Procedure Act 51 of , who was found to be untruthful and whose evidence was uncorroborated.
Application to set aside business rescue proceedings — creditors have a direct and substantial interest — non-joinder of creditors is fatal to the relief sought in the application. Parliament — suspension of member — for refusal to retract a statement ruled unparliamentary.
An objector to an application for land development is not entitled to review a decision on the basis that it has not had a hearing prior to the decision being made when in fact it has been heard on more than one occasion and in more than one forum. Land: unlawful occupation of land owned by provincial government: occupiers of farm land interdicted from taking further occupation of additional land and erecting new structures: did not have consent of owner to settle on additional land and were not deprived of any right unlawfully.
Pension Funds Act 24 of — s 30N — discretion conferred on Pension Funds Adjudicator to determine whether interest shall accrue where determination consists of an obligation to pay money, and the rate at which, and date from which it accrues. Local authority — powers and duties when providing temporary accommodation — rules of a shelter providing temporary accommodation in an emergency are not unconstitutional — appeal upheld. Contract: Lease agreement — landlord and tenant — reciprocity of obligations — obligation on lessor to provide peaceful and undisturbed occupation in return for rental from lessee.
Trade marks and passing off : contested proprietorship of confusingly similar registered trade marks : application and counter-application for expungement of trade marks from register and consequential relief : mark originating from first respondent, a German based company and holding company of a subsidiary which introduced its machines and components into South Africa bearing the mark indicating provenance : years later ownership in subsidiary relinquished : commercial relationship continuing : no acquisition of proprietorship by former subsidiary : licensee and not licensor : ineffective assignment of rights not validly held.
Constitutional law — tender — cancellation of — decision to cancel made in exercise of executive authority — decision not constituting administrative action — reasons for cancellation not offending principle of legality. Town planning scheme — interpretation thereof — dwelling house — what constitutes — local authority proposing to permit temporary informal houses to be constructed on land zoned Residential 1 where dwelling houses could be constructed without further consent — informal houses satisfied the zoning requirements — scheme also empowered the local authority to use land for purposes not in accordance with zoning where it deemed it beneficial to the community or surrounding area.
Supreme Court Judgements
Review — municipality — illegal building — sections 7 and 21 National Building Regulations and Building Standards Act of the NBSA — adjacent property owner — locus standi at common law — demolition order — exercise of discretion — stark dichotomy between discretion at common law and discretion in terms of s 21 of the NBSA. Contract - floor plan agreement FPA - Sale and financing of motor vehicles - reservation of ownership until receipt of payment - payment not received — rei-vindicatio - estoppel - possessor not acting reasonably in construing representation by owner that seller entitled to pass ownership — any representation ambiguous — possessor obliged to enquire from owner as to true position — possessor obliged to return vehicle.
Delict — claim for future loss of earnings — applicable contingency percentage rate to be deducted for pre-morbid future loss of earnings — discretion of the trial court to make a subjective estimate — court of appeal may not interfere unless the trial court has misdirected itself — contingency percentage rate to be deducted reduced. Appellant convicted of rape and indecent assault - sexual intercourse with sixteen year-old girl who has a mental capacity well below her age - consent alleged - consent can only be given by person capable of consenting - expert evidence proving complainant incapable of consenting - appeal dismissed.
Declaratory order — should not be issued where dispute has become only of academic interest and where rights of the parties are not determined. Contract — interpretation — contract not too vague to be enforceable. Building contract: performance guarantee found to be conditional guarantee akin to suretyship.
Sentence — leave to appeal — misdirections by trial court — failure to take account of time in prison awaiting trial — failure to make allowance for the fact that both offences constituted a single criminal occurrence. Interpretation of statute: National Credit Act 34 of section 12B 1 b inserted by National Credit Amendment Act 19 of section has no retrospective application and did not invalidate the agreement relied upon by the respondents: summary judgment correctly granted. Land claim to the Salem Commonage under Restitution of Land Rights Act 22 of the Act : whether requirements for restitution established: Hearsay and expert historical evidence: proper approach to and admissibility of: approach to evidence as decreed in the Act to be applied in a manner consistent with the spirit and purpose of the Act.
Vicarious liability — on duty police reservist shooting partner with service pistol — whether a sufficient link between the wrongful conduct of the police officer and the business of South African Police Service. Applicant suffering in terminal stages of cancer — sought an order that medical practitioner could administer a lethal agent at his request or provide him with a lethal agent that he could administer himself — applicant dying before court granting order — claim ceased to exist — court not entitled to grant order — law in relation to physician administered euthanasia and physician assisted suicide — not appropriate case in which to develop the common law of murder and culpable homicide.
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Education — Powers of the MEC to make regulations relating to the administration of public schools hostels — s 27 1 of the North West Schools Education Act 3 of — ss 9, 12 and 20 1 g of the South African Schools Act 84 of — interpreted in the light of s 29 1 and 28 2 of the Constitution — hostel regulations within the powers of the MEC. Company law - application for rescission of an order enabling enquiry into the affairs of a company in voluntary liquidation in terms of s of the Companies Act 61 of - ex parte application made to enable enquiry met the requirements of s of the Act - appeal dismissed with costs.
Extradition: meaning of extraditable offence in Extradition Act 67 of double criminality: conduct to be criminal under law of requested State at date of extradition request not date of commission of offence: certificate under s 10 2 of the Extradition Act: conclusive proof that evidence warrants prosecution in foreign State: fugitive liable to be surrendered to foreign State. Prescription : No evidence that the appellant knew or could by the exercise of reasonable care, have acquired knowledge of the facts giving rise to the invalidity of the sale agreement before the effluxion of the three year period of prescription : Counterclaim : the individual registrations and transfers of ownership in the three individual portions of land with their own cadastral descriptions were effected by separate real agreements and were not prohibited by law.
Admiralty Jurisdiction Regulation Act of — maritime claim involving loss of life at sea — boat capsized when struck by unusually large wave — whether skipper of boat negligent — no negligence established — appeal allowed and claim for damages dismissed. Local authority: building plans: national building regulations: temporary building: must be determined by objective assessment of its nature and purpose: cellular communications base station and mast not a temporary building: building plans wrongly approved.
The Prevention and Combating of Corrupt Activities Act 12 of does not limit the penal discretion of the sentencing court: sentence of a fine not appropriate for a public officer convicted of contravening s 4 1 a i aa of the Act: failure by the trial court to have regard to all relevant considerations constitutes a misdirection warranting interference with the sentence imposed.
Prescription — extinctive — claim based on agreement providing for a loan repayable in instalments and containing acceleration clause — only enforceable where creditor has made election to cancel agreement and claim full amount — prescription accordingly commences running upon election being made. Delictual claim : theft of diamonds from employer : admissibility of confessions to the acts in question and admission of the quantum : threat of criminal prosecution and adverse publicity : not contra bonos mores : the creditor not exacting or extorting something to which it was not otherwise entitled : evidence admitted : claim enforceable : appeal dismissed with costs.
Contingency Fees Act 66 of — exclusion of award for future medical expenses from agreement — not permitted. Murder — second offender committing murder whilst on parole — sentenced to 14 years of imprisonment of which six years suspended for five years — sentence startlingly inappropriate having regard to the degree of violence involved in the current and previous offences.
Criminal Procedure — appeal against conviction — leave to appeal refused by regional magistrate — petition refused by the court a quo — special leave to appeal against conviction granted by the Supreme Court of Appeal — Section of the Criminal Procedure Act — whether leave to appeal ought to have been granted. Companies Act 71 of business rescue proceedings: whether a company which is in financial distress has reasonable prospects of being rescued as envisaged in s 4 a of the Act: a final order for winding-up of the company more beneficial for the creditors.
Statutory power to lay pipeline across private land — s 24 j of Act 17 of — no servitude registered over land in respect of pipeline — property sold to new owners — no right to claim removal of pipeline — court not empowered to order the registration of servitude in respect of pipeline — no claim for compensation by new owner against water board. Delict — negligence — liability for — causation — person unable to walk and confined to wheelchair after medical treatment for injuries sustained in motor collision — negligence of hospital staff a novus actus interveniens.
Leave to appeal — to be granted only if truly reasonable prospects of success or compelling reason for appeal to be heard. Estate Agency Affairs Act of — estate agent company converted to close corporation in terms of s 27 of the Close Corporations Act 69 of — Estate Agency Affairs Board not advised of conversion — fidelity fund certificate issued to non-existent company — certificate invalid — close corporation precluded from recovering commission.
Contract - interpretation - term contended for by the appellant excluded by clear terms of the agreement - clear terms cannot be altered by contextual evidence of implementing the contract. Criminal Law and Procedure — appeal against the refusal of application for leave to appeal by high court following a refusal to grant leave to appeal against both the conviction and sentence by the trial court — Section 16 1 b of the Superior Courts Act 10 of Civil Procedure: an order by the high court postponing, sine die, an application for default judgment, and directing the appellant to file, at the next hearing within not less than six months of the said order, an affidavit detailing attempts to prevent foreclosure, is not appealable.
Appeal struck from the roll for lack of jurisdiction. Winding-up application: respondent disputing debt on bona fide and reasonable grounds: court a quo referring matter to oral evidence: winding-up proceedings not designed for the enforcement of disputed debts. Restitution of Land Rights Act 22 of — Land Claims Court — powers — claim for restitution of commonage — mining right in terms of Mineral and Petroleum Resources Development Act 28 of — whether Land Claims Court has power to order the expropriation of right and its expungement. Delict - failure to take reasonable care to prevent stillbirth - Claim for emotional shock - damages awarded in the amount of R - claim for constitutional damages based on the right to rear a child - not sustainable.