High Court Main Division

Civil Procedure – Agreement between parties – Bond of security – Neither transferable nor negotiable – Shall remain in operation and effect – Execution of the judgments stayed – Repudiation of the agreement – Instructions in terms of rule 107 – Deputy Sheriff an officer of this court

Civil Procedure – Employees abuse of positions of trust to misappropriate funds from the plaintiff – Doctrine of common purpose in criminal matters is not applicable but the normal explanation for common purpose is found in this matter.

Practice – Rescission or variation – Rule 103 – Four instances in which a court of first instance may rescind or vary its own order – The four instances restated.

Civil procedure – Divorce – Restitution of conjugal rights – On the return date, the court is required only to grant a final decree of divorce and the ancillary relief as sought by the plaintiff – The defendant may contest the ancillary relief only – This is done by showing cause on affidavit, under oath, and not by entering an appearance to defend – Once the ancillary relief is contested, the court may postpone the matter to determine the ancillary only – A final order of divorce must be granted.

Practice — Judgments and orders — Rescission — Default judgment — Rule 103 of High Court rules.

Practice — Judgments and orders — Rescission — Order sought and granted in error in absence of party affected thereby — Not necessary to show good cause for rescission of judgment in terms of High Court Rule 103(1)(a) — Court should rescind judgment erroneously granted in absence of party without further enquiry — Court need not only have regard to record but also to affidavit.

Practice - Pleadings - Plea - Defendant averring that it has no knowledge of certain allegations made by plaintiff - Defendant failed to make a single averment setting out its defences despite it being apparent that it had knowledge of events - Plaintiff accordingly succeeded in its claim.

Admiralty law – Admiralty jurisdiction of the High Court – Applicable law in disputes over ownership and fraud where two jurisdictions are implicated – Mortgages over registered vessel – Proof of fraudulent contract of sale – Validity of the mortgage – Unsuccessful where the presumption of ownership is not discharged.

Review – Decision of the Prosecutor-General to arraign and prosecute the applicant – Relief sought to set aside the decision on the basis of irrationality and no reasonable or probable cause to have made such a decision – Motion proceedings subject to Plascon Evans rule – Applicant failing to dislodge the respondents version that there was reasonable and probable cause to decide to prosecute the applicant.

Civil Procedure – Burden of proof – Balancing probabilities – Mutually destructive versions – Probabilities prevail when all factors equipoised – Expert evidence – Unjustified enrichment – Requirements – Elements will depend on the type of enrichment claim – Defendant’s liability – Confined to the amount of his or her actual enrichment – Onus to prove all the facts or elements is on the plaintiff

Civil action – Law of contract – Whether or not the plaintiff is entitled to professional services rendered – Claim of quantum meruit – Claim for remuneration in respect of performance in terms of a contract where remuneration is not specified – Quantum meruit claim finds application where there is an express or implied promise to pay, but the contract is silent about the amount.

Motor vehicle collision – Damages claimed arising from motor vehicle accident – Claim for negligence on the part of the defendant – Rear-end collision attracts presumption of negligence – res ipsa loquitur maxim applicable – Evidential burden shifts to the defendant to disprove negligence – Failure to discharge the evidential burden created by the presumption of res ipsa loquitur, will entitle the plaintiff to succeed.

Civil Procedure – Reviews –  Administrative action – General principle – Act fairly and reasonably – Fair procedures which are transparent – Administrative functionary – Obligation – Give reasons for a decision

Urgent application and interim interdict requirements restated – Rule nisi granted returnable for the respondents to show cause why the substantive orders should not be granted on return date, respondent failed to show cause why the decisions of the first  and second respondents should not be reviewed - rule nisi confirmed.

Civil Procedure – Summary Judgment – The principles applicable thereto – Whether the court can grant the defendants unconditional leave to defend in respect of the entire application, where a dispute is raised only in respect of interest – The effect of the overriding objects of rule 1(3) on summary judgment.

Application – Urgency – Requirements for urgency – Inordinate delay – The applicants had delayed for a period of over a year in bringing an application on an urgent basis to seek an interdict. The matter struck from the roll for lack of urgency.

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.

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.

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.

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.

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 – 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.

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'.

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. 

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.

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.

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.

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.

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.

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.

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. 

Civil proceedings – Points in limine – Request to vary settlement agreement – Parties may by mutual consent modify their agreement – The court may modify its order accordingly – Failing an agreement between the parties, the court cannot vary its order – Third point in limine upheld – Contempt of court – Distinction between civil and criminal contempt – Proof of standards – Criminal sanctions – Proof beyond reasonable doubt – Civil remedies – Balance of probabilities.