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Citation
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Judgment date
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| April 2024 |
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22 April 2024 |
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19 April 2024 |
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Practice — Rules of court — Rule 33 — Whether rule 33(1) places a limitation on a litigant to be examined on psychological well-being — Whether exact non-compliance would render a notice null and void — Substantial compliance with the rule would meet the purpose thereof. Practice — Judicial case management — Overriding objectives — To finalise matters speedily and cost effectively. Practice — Judicial case management — Delay in finalising matters — Parties must genuinely assist the court in the task to finalise matters in terms of the disposal benchmarks — In appropriate cases, courts will mete out punitive measures to the parties in default, to demonstrate its condemnation of actions taken by parties that are viewed to delay the finalisation of cases, and thus increasing costs and demonstrating inefficiency. Practice — Dismissal of proceedings — Application for dismissal of action on grounds of failure to prosecute action within reasonable time — Factors to consider — Length of delay — Explanation for delay — Prejudice caused by defendant — Effect of delay in respect of trial — Extent to which defendant contributed to delay
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19 April 2024 |
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Criminal Procedure – Sentence – Appeal against sentence – Appellant convicted on a charge of housebreaking with intent to steal and theft on his own plea of guilty – sentenced to direct imprisonment without any part of the sentence suspended – Appellant having a previous conviction proven against him of a similar offence. Point in limine – Appeal filed out of time in terms of s 309(2) of the Criminal Procedure Act 51 of 1977 as amended– Notice of appeal filed late – Explanation not bona fide – no prospects of success on appeal – Sentence imposed not shockingly inappropriate – No misdirection by the court a quo – Application for condonation refused
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19 April 2024 |
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19 April 2024 |
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Applications and motions – Declaratory relief – Applicants having not established entitlement to the relief they seek – Application dismissed
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18 April 2024 |
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17 April 2024 |
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Applications – Urgent application – Rule 73 – Public Procurement Act 15 of 2015 – Urgency must established – The threat of irreparable harm is not sufficient to establish urgency – Applicant failed to establish the urgency of the matter
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16 April 2024 |
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12 April 2024 |
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Husband and wife – Divorce – Marriage in community of property – Proof of the element of fault – Spousal maintenance – Allegations of physical violence against the plaintiff – Court grants final order of divorce
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11 April 2024 |
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10 April 2024 |
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Civil law – Costs – Section 18 of the Legal Aid Act, 29 of 1990 – Meaning of “further and alternative relief” – Whether a party may claim costs when it was not pleaded – Ratio decidendi v obiter dicta
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10 April 2024 |
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10 April 2024 |
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9 April 2024 |
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9 April 2024 |
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Evidence – Whether all work was quantified – Contradictory secondhand evidence not accepted and firsthand evidence, as supplemented by further testimony evidencing a joint quantification did not take place and the final account remains unresolved, accepted – Final account not compiled from last site meeting – Work not quantified for final account at last site meeting – Final account not shared with plaintiff – Revised final account not shared with plaintiff – Undisputed process followed on the ground to determine if payment was due to plaintiff was a joint process and plaintiff was to finalise the final account with the quantity surveyor – Joint quantification did not take place – Final account must have been discussed with plaintiff but it was not – Final account remains unresolved – Claim for quantification succeeds. Pleadings – Causes of action relied on not pleaded – Damages claim resulting from breach of contract – Must allege and prove the contract, the breach, damages suffered, a causal link between the breach and damages and the loss was not too remote – General or intrinsic damages are those that flow naturally and generally from the breach in that because the law presumes that such damages fell within the parties’ contemplation as a probable result of the breach, they are not regarded as too remote – Special or extrinsic damages are those not regarded as too remote if, in the special circumstances in the conclusion of the contract, the parties actually or presumptively contemplated such damages would probably result from the breach – Plaintiff did not allege or prove causal link between the breach pleaded and the damages, nor that the loss was not too remote – Facts do not support a causal link between the breach pleaded and the damages – Plaintiff failed to make a case for its monetary claim. Costs – Basic rule costs are in court’s discretion – General rule costs follow the event – Applying general rule but whereas plaintiff succeeds only partially, court awards plaintiff only part of its costs
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8 April 2024 |
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Urgent application for interdictory relief — Sport club — Old versus new constitution
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5 April 2024 |
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5 April 2024 |
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Appeal − Sentence − Contravening s 4(1)(a) read with s 1,4(2)(a),8,9,12,13 and 14 of the Controlled Wildlife Products and Trade Act 9 of 2008 for possession of controlled wildlife products to wit; 2 elephant tusks valued at N$ 20 824.32, without a permit − It is manifestly excessive and induced a sense of shock in the mind of the court − Consequently, the court found it was entitled to interfere with the sentence − Court concluded that custodial sentence was appropriate but suspended sentence will serve the objective of deterrence
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5 April 2024 |
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Plaintiff’s claim premised on enforcement of clause 12.5 of employment contract – Mutually destructive versions – Each party bears the onus to discharge the evidentiary burden resting on it on a balance of probabilities. The plaintiff successfully discharged the onus resting on him
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5 April 2024 |
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5 April 2024 |
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5 April 2024 |
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5 April 2024 |
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5 April 2024 |
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4 April 2024 |
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Motion proceedings – Application for rescission of judgment or order – Curator ad litem appointed, authorised and mandated to represent the applicants (minor children) in an application to be instituted regarding the validity of a copy of a Will – The application was dismissed on technical grounds, action proceedings later instituted – The effect of the authorisation of the curator ad litem in an application discussed to determine its applicability to the action proceedings – The effect of failure to substitute the curator ad litem for the applicants after attaining majority discussed – The settlement agreement found to affect the interests of the applicant and the order sought to be rescinded found to have been sought and obtained in the absence of the applicants and in error
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4 April 2024 |
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Delict – Iniuria may cause patrimonial and non-patrimonial loss – Actio legis Aquiliae to recover patrimonial loss suffered through another’s wrongful and negligent act – Actio iniuriarum to obtain satisfaction for non-patrimonial loss for intentional violation of personality right – Delictual liability elements – Wrongful conduct (or omission) for which person is at fault (intentionally or negligently) and that causes another harm – Defamation elements – An act (publication), injury to personality (defamatory nature), wrongfulness (impairment of the personality right to a good name) and intent (animus iniuriandi). Defamation – Publication to one person could suffice for liability – Extent of publication would influence quantum. Defamation – Defamatory nature of statements – Court decides effect and meaning – Defamatory per se – Objectively consider contextual natural and ordinary meaning conveyed to ordinary reasonable reader and how such reader would understand it. Defamation – Proof of publication of defamatory statements of a person to another results in presumptions of unlawfulness and animo iniuriandi (intent to defame and knowledge of wrongfulness) against defendant – Onus on defendant to disprove it – Bare denial of unlawfulness insufficient. Defamation – Defence of truth and public interest – Defendant must allege and prove statements were true and publication was to public’s benefit – Proof of truth of every word unnecessary – Proof of truth in every material part sufficient. Defamation – Defence of fair comment – Defendant must allege and prove statements were comments (opinion) and not statements of fact and reasonable reader would understand them as such, comments were fair (that they do not exceed certain limits), facts commented on were true or substantially true (fair comments made on true facts), and comments relate to matter of public interest (the facts must be in the public’s interest). Defamation – Defence of privilege – Available if statements published in discharge of duty or exercise of right to person who had duty or right to receive it – Defendant must allege and prove statements were made on privileged occasion and were relevant, pertinent, or germane to the occasion’s purpose – With reasonable person standard in mind, court objectively considers all circumstances under which statements were made. Delict – Causation – Factual and legal. Delict – Patrimonial loss – Principles of proof of damages apply – Damages flow directly from defendant’s conduct. Delict – Non-patrimonial loss quantification – Particulars not required – Court has wide discretion – Exercised judicially – Guided by comparable awards in previous cases – Estimated according to what is equitable and good on merits of case having regard to all its circumstances and wide variety of factors
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3 April 2024 |
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3 April 2024 |
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Practice — Rules of the High Court — Rule 108 — Execution — Sale in execution — Immovable property — Judgment creditor must first execute against the movables properties of a judgment debtor before he or she execute against the immovable property of a judgment debtor
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2 April 2024 |
| March 2024 |
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28 March 2024 |
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28 March 2024 |
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28 March 2024 |
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28 March 2024 |
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28 March 2024 |
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28 March 2024 |
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26 March 2024 |
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26 March 2024 |
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Law of persons – Husband and Wife – Divorce – Specific forfeiture in respect of the benefits derived from the marriage – Spouses married in community of property – Where a specific forfeiture order is sought, the value of the estate should be alleged, and the specific asset sought to be declared forfeited should be identified. It should also be alleged and proven that the defendant made no contribution whatsoever (or some negligible contribution) to the joint estate – The court was not satisfied that the plaintiff proved her claim for forfeiture of the benefits of marriage – plaintiff’s claim for specific forfeiture is dismissed
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26 March 2024 |
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Practice - Absolution from the instance – Plaintiff instituted a contractual claim for damages based on a breach of contract – Test for absolution from the instance restated – Absolution should be granted where plaintiff has not established its case and where the interests of justice dictate – Plaintiff prima facie established that the parties entered into an oral agreement over and above the written agreement for additional construction work to be carried out on the defendant’s property – Plaintiff’s evidence prima facie found not to be inherently improbable and unsatisfactory so as to be rejected outright – No evidence to gainsay the plaintiff plaintiff’s evidence yet – Absolution from the instance refused
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26 March 2024 |
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26 March 2024 |
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26 March 2024 |
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26 March 2024 |
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Appeal – Magistrate’s Court sitting as court under the Combating of Domestic Violence Act 4 of 2003 – Wide discretion to make orders under s 12(16)(a) to (e) – Depending on the nature of court a quo’s discretion, an appeal court’s power to interfere with the court a quo’s decision is not limited to the trial court having exercised the discretion capriciously or upon a wrong principle or having failed to bring an unbiased judgment to bear on the matter or not having acted for substantial reasons – Appeal court at liberty in those circumstances to decide matter on its own views of the merits. Statute – Interpretation – Section 12(17) – ‘Granting’ of protection order includes both ‘positive’ and ‘negative’ orders – Whatever order follows at the conclusion of s 12 enquiry is ‘a final protection order’ – 7 June 2022 order is ‘a final protection order’ under s 12(17) – 7 June 2022 order made under s 12(16)(d) discharging interim order and substituting another order for it. Statute – Interpretation – Section 1 – Definition protection order – Section 17 applies to interim and final protection orders – 7 June 2022 order is ‘a protection order’ capable of cancellation under s 17 – Section 17(3) and (5) – Legislature’s intention – Person in whose favour and against whom protection order made may apply for cancellation – For s 17(5) appellant should be regarded as ‘the respondent’ – Appellant could apply for cancellation of 7 June 2022 order – Section 17 application was proper before court a quo – Court of first instance erred in refusing to hear and dismissing the application – Appeal succeeds
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25 March 2024 |
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22 March 2024 |
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Motion Proceedings – Review – Audi alteram partem rule ought to have been invoked by the Minister before making the decision – Article 18 – Breached
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20 March 2024 |
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19 March 2024 |
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18 March 2024 |
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Practice — Urgency — Rule 73 — Applicant to set forth explicitly the circumstances which render the matter urgent and reasons why substantial redress cannot be obtained in due course. Legislation — Air Services Act 51 of 1949 — Section 12 — Scheduled Air Transport Service License — Must be renewed every five years — Renewal application must be lodged 12 months prior to the expiry of the license. Legislation — Air Services Act 51 of 1949 — Section 7(4) and (5) — The Commission has the power to condone non-compliances with the provisions of the Air Services Act 51 of 1949. Legislation — Air Services Act 51 of 1949 — Section 19 — Exemptions — The section is not applicable in the instance of a party seeking condonation for non-compliance with the provisions of the Act. Statute — Interpretation — Golden rule of interpretation — Words to be given ordinary grammatical meaning-Context in which document drafted always relevant to construction. Review — A functionary must not abdicate the responsibility to consider each case on its merits
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18 March 2024 |
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17 March 2024 |
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Delict — Causation — Factual causation — Omission — Whether Prison authorities' failure to maintain a safe environment for prisoners caused plaintiff’s bodily injuries — No proof that damage caused by negligence of correctional service — Damage caused by plaintiff’s own conduct
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15 March 2024 |