Judgments

Criminal Law – Appeal – Appeal on findings of fact by court a quo – Stock theft – No written declaration or oral evidence that the couple made declaration – Marriage contracted out of community of property – Complainant appointed as executor of estate and thus lawful possessor – Conviction particulars – Appeal partly succeeds against conviction and sentence.

Criminal law – Murder – Domestic Violence – Self-defence – Requirements not met – private defence rejected – Intention inferred from surrounding evidence – Convicted of murder with direct intent.

Criminal Law – Sentence – Culpable homicide – Degree of culpability – Extent of the negligence plays role – Sentence should be neither too severe, nor too light – Remorse sincere – Blameworthiness diminished, to some extent, as accused went to assist father, but the consequence of the act cannot be disregarded – Accused first offender – Easy use of knife and multiple stabs constitute factors in aggravating – Partly suspended term of imprisonment appropriate in circumstances.

Criminal Law – Discharge of accused in terms of s 174 of the Criminal Procedure Act 51 of 1977 – Criminal Procedure – Trial – Discharge of accused at close of States case in terms of s 174 of Criminal Procedure Act 51 of 1977 – Whether there is evidence on which a reasonable court acting carefully may convict – Principles restated Approach by court and guidelines set out in S v Nakale and S v Teek followed.

Law of delict – Motor Vehicle Accident – Damages – Insurance Claim – Interpretation of insurance contracts – Court to determine the exclusionary term of the insurance contract that a driver must not leave the scene of the accident before the police or ambulance arrives.

Interpretation of the Communal Land Reform Act 5 of 2002 – section 15(2) – where a local authority is established within the boundaries of any communal land, that local authority area shall not be communal land – Section 20 - The primary power to allocate or cancel any customary land right in respect of any portion of land in the communal area of a traditional community vests (a) in the Chief of that traditional community or (b) where the Chief so determines, in the Traditional Authority of that traditional community – Section 28 – Customary land rights should be registered to be recognised.

Opposed motion – Inmates being granted remission – Effect of remission on date of eligibility on Parole – Section 115 of the Correctional Service Act – Grammatical and contextual meaning and interpretation of ‘term of imprisonment’ clarified – No effect of remission on date of eligibility of parole in terms of section 115 of the Correctional Service Act – Offender only eligible on serving 2/3 of the term of imprisonment as imposed by the court of law and not on remitted sentence.

Practice — Application for condonation — Court satisfied the requirements of condonation has been met — The appeal is therefore reinstated.

Practice — Labour Court — Stay of execution of arbitration award pending appeal – Section 89 (6), (7) and (8) of Labour Act — The balance of hardship favours the respondent.

Evidence — Factual disputes —  Evidence — Witnesses — Calling, examination and refutation — Two mutually destructive versions — Onus on plaintiff — Probabilities favoured plaintiff on occurrence of assault, but plaintiff did not prove the extent of his injuries. 

Law of contract - Section 8(1)(a) of the Married Persons Equality Act 1 of 1996 allows a transaction entered into without following the provisions of section 7(1)(h) to be deemed to have been entered into with the consent of the other spouse if the other person does not know and cannot reasonably have known that the transaction was entered into without the requisite consent. 

Execution — Sale in execution — Immovable property — Application to declare immovable property specially executable — Duty of court where immovable property is primary home of legally unrepresented debtor — Judicial oversight required.

Practice — Rules of the High Court — Rule 108 — In exercising judicial oversight, court must consider all relevant circumstances including 'less drastic measures than a sale in execution'.

Criminal Procedure – Admissibility of Statements – Oral vs Written – Voluntariness – Right to Legal Representation – Search and Seizure – Validity and Execution of Warrant – Articles 12 and 13 of the Constitution – Application of S v Shikunga and S v Namwandi – Discretionary Exclusion of Unconstitutionally Obtained Evidence – Balancing Fair Trial Rights and Public Interest.

Winding-up – Close corporation – Section 68(c), read with section 69, and section 68(d) of the Close Corporations Act 26 of 1988 – Endorsements required on the execution officer’s return for deemed inability to pay debts under section 69(1)(b) – Proof to the court’s satisfaction that the corporation is unable to pay its debts for deemed inability to pay debts under section 69(1)(c) – Right ex debito justitiae to winding-up order when a valid debt is established and the debtor is unable to pay its debts – Advantage to creditors not required in corporation’s liquidation – Section 68(d) not a catch-all liquidation ground but a special ground under which special features of the way a corporation is being run is questioned to the point of seeking its liquidation and it requires facts supporting the conclusion that it would be just and equitable to liquidate the corporation – Misjoinder of corporation’s sole member as a party to the liquidation application.

Civil Procedure – Urgent application and the requirements to be met by applicant therefor – Doctrine of compromise discussed and applied – Appropriateness of granting an order for stay of execution when there is no further step anticipated – Judicial oversight as envisaged in rule 108 reconsidered – Whether the court is at large, where circumstances demand to deal with the rule 108 enquiry afresh – circumstances in which court may grant orders and their further and/or alternative relief.

Practice – Contract – Onus rests on plaintiff to prove existence of contract. Evidence — Witnesses — Calling, examination and refutation — Two mutually destructive versions — Onus on plaintiff — Probabilities favoured plaintiff.  

Evidence – Witnesses – Cross-examination – If party fails to cross-examine – Party whose witness not cross-examined is entitled to assume that witness's evidence accepted unless it is so absurd, fantastic or of so romancing a nature that no reasonable person can believe it. Civil procedure – Pleadings –  Replication – Principles applicable to the delivery of replications restated.

Law of Delict – Claim for damages – Alleged unlawful assault by members of the defendants.

Civil procedure – Discovery – Rule 28 – Application to compel discovery of specified documents – Relevance of the documents sought analysed – Request found to constitute a fishing expedition – Application to compel discovery refused with costs.

Practice – Applications and motions – Eviction – Immovable property declared specially executable – Deputy Sheriff vested with statutory duty to pass transfer to a purchaser of the property sold in execution – Where the registered owner of the property frustrates the efforts of the Deputy Sheriff to do so, eviction of the registered owner is permissible in the circumstances – Eviction order granted.

Criminal Procedure – Appeal – Against sentence – Interference by court of appeal – Sentencing essentially falling within discretion of trial court – Court to balance interest of individuals, society and purposes of sentencing – Consideration of comparable cases – No misdirection by the court a quo when exercising its judicial function.