High Court - 2022 March

Summary Inheritance to land – claimed by a married woman over arable land allocated to her parents’ house where there is no male issue – the male issue from the first house being nominated as heir – whether the ngala custom confers a right to a married woman to inherit her parents’ immovable property - whether a Form C2 and CC2 may validly be issued for arable land

Summary Application in terms of Rule 30 - to set aside a plea filed out of time as irregular proceeding - whether the irregularity may be condoned where the rules are clear that where a party is barred from filing a pleading, he must move to have the bar lifted - consequences of failure to do so.

SUMMARY CRIMINAL LAW: murder and attempted murder-doctrine of common purpose part of our law- act of one perpetrator in committing a crime imputed on co-perpetrators as a matter of law- self-defence.

Summary Civil procedure-notice to file further affidavits in terms of Rule 8(12 )- notice served with the founding affidavit in terms of which rescission and other relief sought - whether this rule may be utilized by an applicant who prematurely files an application before a cause of complaint arises- as a result founding affidavit lacking facts to support the reliefs sought - whether this rule could be invoked to make good counsel’s remissness in handling a matter - the purpose of the Rule restated - application insupportable on the facts of the matter - application procedurally defective and misconceived.

SUMMARY CONSTITUTIONAL LAW: Application to have section 98(4) of the Money Laundering and Proceeds of Crime Act no.40 of 2008 declared unconstitutional for violating section 12 of the Constitution, in that it permits the concurrent running of criminal and civil proceedings in respect of the same property seized in terms of it- she had argued that, given this scenario, it forces her to disclose her defence in civil proceedings thereby forcing her to waive her right to self-incrimination with the consequence that her pending criminal trial is prejudiced- Held, this section does not force an applicant faced with forfeiture application to incriminate herself, what it rather does is to leave her with the choice between leaving forfeiture application go unchallenged and substantively responding to it, held that for this reason, this section is constitutional. -The applicant had further sought to have a three-year delay to charge her with criminal offences following her suspension from work, violated her right to be tried within a reasonable time in terms of section 12 of the Constitution, Held, pre-charge delay in preferring charges not protected by the right to speedy trial a provided under section 12 of the Constitution, the reckoning of time within which a person must be tried starts after charges have been read not before.

SUMMARY CIVIL PRACTICE: Applicant lodging an application in circumstances where material dispute of facts reasonably foreseeable- Application dismissed on this basis alone, with costs.

SUMMARY CIVIL PRACTICE: Appeal against the decision of magistrate issuing final orders without first affording the appellant a hearing and for having based his judgment on issues not foreshadowed in the pleadings- Held, appeal must succeed on these grounds

SUMMARY Contract- two motor vehicles having been involved in a collision-Toyota Fortuner having been taken to Respondent’s workshop- Respondent demanding payment of assessment of damages and storage costs- Applicant disputing existence of an agreement- Held: Parties had intention of being contractually bound and have acted in their agreement- Held: conduct of the parties clear enough to show intention- Held: Application dismissed with costs.

SUMMARY ADMINISTRATIVE LAW: Judicial review based on rationality of the decision of the 1st respondent to award the tender to the 3rd respondent despite critical shortcomings in its technical bid- Principles applicable to rationality review considered and applied.

Practice and procedure – Review of employment-related decisions and actions of the government as employer of a public officer – Such disputes fall outside the High Court’s review jurisdiction – The entry point is the fora created by the Public Service Act, i.e. the public officers’ dispute settlement regime.

CONDONATION - Application for condonation of failure to deliver an answering affidavit within the period stipulated in High Court Rule 8 (10) (b) – Applicant must in terms of Rule 59 satisfy the court that it is in the interests of justice to exercise its discretion in favour of condoning the failure to follow the rules – Nature of court’s discretion and factors to be considered in exercising it discussed. CHIEFTAINSHIP - Whether the King ought to be joined in proceedings challenging a legal notice made pursuant to section 14(2) of the Chieftainship Act. King having acted on the advice of the Minister of Local Government and Chieftainship Affairs- Court finds it improper and unnecessary to cite or join the King in such proceedings- where the King in such circumstances has been so advised by the Minister he is obliged to follow the advice and act accordingly. Therefore, it is unnecessary to burden the King with service where no direct recourse is sought or may be obtained against him. Reviewing and setting aside of the advice of the Minister of Chieftainship Affairs to the King, as to who should succeed to the office of Chief. Setting aside of a government notice declaring a successor to chieftainship. Declarator of the lawful and rightful Chief.

CRIMINAL LAW: Accused charged with murder- crown’s case by way of admitted statements including a confession and a post-mortem- no oral evidence- application for discharge in terms of S.175 (3) of the Criminal Procedure and Evidence Act No.9 of 1989 at the end of prosecution case dismissed- defence of provocation and self-defence- doctrine of common purpose- accused found guilty of murder with extenuating circumstances.

Summary Application for summary judgement - Rule 28(3)(b) requirements restated - defendant making bald assertions of their defense – failing to meet the requirements of the rule - application for summary judgement granted

Summary Appeal against an order of magistrate releasing a motor vehicle seized in terms of section 14 of the Motor Vehicle Theft Act of 2000 - pre-conditions of release - whether lawful possession or ownership proved absent a written agreement of sale, transfer documents and registration documents-judgement of the court-a-quo insupportable - appeal upheld.

Summary Application for extension of the 6 months period provided under section 77 of Police Service Act 7 of 1998 – within which certain civil actions against the police must be brought.

Summary Preliminary objection – lis alibi pendens – an action commenced in 2011 and set down for hearing – second application commenced in 2020 – both for cancellation of deeds of transfer pertaining to disputed plots – Reliefs claims in each essentially the same – No good reason for Court to permit second action to proceed.

SUMMARY Civil Procedure –joinder of parties and consolidation of trials – propriety where full disclosure not made and inconvenience and prejudice to other parties real – application dismissed.

Summary Criminal law and procedure – Bail application – Refusal of same by Court – Accused rushing to High Court for review of such refusal of release on bail – The main criminal trial against the accused having not been prosecuted – Counsel for the applicant having not re-applied for release of his client after new circumstances had arisen – Conduct of the applicant’s counsel resulting in stalling the prosecution of the main trial – As a result the applicant is currently languishing in jail awaiting the final result of the review application – Court should strike a balance between protecting the liberty of the individual and safeguarding and ensuring the proper administration of justice.