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Citation
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Judgment date
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| December 2022 |
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SUMMARY
Application – Authority to institute legal proceedings on behalf of artificial person seriously challenged – Onus on the deponent to the founding papers to provide more than minimum of evidence that the proceedings are duly authorised – A director does not have authority to institute legal proceedings on behalf of artificial person by virtue of position – Authority to institute legal proceedings must be duly conferred – The deponent to the founding papers failing to thwart challenge to his authority – Application dismissed.
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15 December 2022 |
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SUMMARY
CIVIL PRACTICE: Application for stay of execution pending appeal against a provisional sentence in circumstances where the leave of Court of Appeal should have been sought- Application dismissed as appeal was lodged without the leave of the Court of Appeal being sought.
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14 December 2022 |
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SUMMARY
CIVIL PRACTICE: Application for leave to appeal a final order before the High Court- Held, the order being appealed against being final in nature and effect, the applicant should appeal straight to the Court of Appeal- leave of the High Court should only be sought against the judgment of the High Court exercising its civil appellate jurisdiction – Approach to dealing with an exorbitant amount reflected on the Writ of Execution than the amount that is owed by the judgment debtor, articulated.
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14 December 2022 |
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SUMMARY
CIVIL PRACTICE: Application for variation of judgment under common law- Principles applicable considered and applied.
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14 December 2022 |
| November 2022 |
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Summary:
Exception – Defendants raising non - joinder and misjoinder by way of exception under rule 29 (1)(a) of the High Court Rules – Whether the defence is within the ambit of the rule – Exception is permissible where the defect complained of is ex facie pleadings – Exception dismissed
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30 November 2022 |
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SUMMARY
Civil Procedure – Authorisation to institute proceeding for a juristic person – Requirements therein - Urgent application- urgency has to be shown and is not there for the taking -
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23 November 2022 |
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SUMMARY
Application in terms of rule 8(22) - A matter should not be given preferential treatment simply because it has financial consequences – Applicant failing to meet threshold for urgency - Interim interdict - Applicant failed to prove requirements thereof - Interim interdict not granted.
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15 November 2022 |
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8 November 2022 |
| October 2022 |
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SUMMARY
COMPANY LAW: The shareholder requesting the special meeting to resolve among other things to remove directors without naming them and the reason for their removal- Held, the request is defective for not naming the directors and the reasons for their removal, in terms of section 73(1) of the Companies Act 2011- Court being requested to order the special meeting of the shareholders in terms of section 55 of the Companies Act 2011- Held, that power is excisable only in exceptional circumstances, which in the context of the present case do not exist.
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27 October 2022 |
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SUMMARY
COMPANY LAW: Applicant shareholder claiming his share of declared dividends- the company contending that the applicant is not entitled to participate in the dividends because he surrendered his shares when his employment as an executive director was terminated by the board- Held, there is no evidence that the applicant surrendered his shares and therefore, he is entitled to share in the declared dividends.
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27 October 2022 |
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SUMMARY
LAW OF SALE : Actio redhibitoria- The plaintiff sued out summons claiming the return of the purchase price of the motor vehicle which was sold and delivered- the plaintiff bought the vehicle knowing that it had a faulty sunroof- the agreement between the parties stated that the vehicle was sold voetstoots- on further and thorough investigation when the problem could not fixed, it emerged that there was a faulty electrical system-Held, the plaintiff failed to prove that the defendant knew of the fault and concealed it with the intention of defrauding him.
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27 October 2022 |
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SUMMARY
COMPANY LAW: The applicant lodged an application to reverse forfeiture of his share by fellow shareholder without proper notices being issued in terms of the company’s memorandum of incorporation- Held, meetings held without notices being issued are irregular and resolutions passed consequent thereto are null and void and of no force and effect- Dispute of fact – 2nd respondent’s lodging of a separate application wherein a purported dispute of fact is adumbrated, is impermissible.
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27 October 2022 |
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SUMMARY
Procedure – In ex parte application, full disclosure is a sine qua non – Insolvency Proclamation 57 – section 69 (3) thereof does not take away the unlimited jurisdiction of this court – the lawfully appointed liquidator has to be formally removed.
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21 October 2022 |
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SUMMARY
Procedure – matter not finally disposed of not res judicata – following the rule that proceedings have to be interpreted if conducted in a language other than English would be too strictly following the rules of procedure in the Small Claims Court.
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21 October 2022 |
| September 2022 |
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SUMMARY:
Civil Procedure - Application for condonation and removal of the bar - Requirements thereof discussed – Applicant failing to provide a reasonable explanation for her default and bone fide defence – Application dismissed.
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30 September 2022 |
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SUMMARY:
Civil Procedure – Special plea – Plaintiff annexing evidential documents to its summons - Defendants moving court to dismiss action on that basis - Summons compliant with court rules and disclosing a cause action – The special plea dismissed.
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30 September 2022 |
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SUMMARY
Procedure – points of law in limine – lis pendens – procedure for raising it – non-joinder and misjoinder – dispute of fact in motion proceedings – material non-disclosure.
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29 September 2022 |
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SUMMARY
Cost de bonispropriis – need for.
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28 September 2022 |
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SUMMARY:
Application in terms of Rule 30(1) of the High Court Rules of 1980 – Plaintiff claiming that defendant took an improper or irregular step – Withdrawal of application without consent of plaintiff or leave of court – Notice of withdrawal not containing consent to pay costs – Notice of withdrawal filed before the matter was set down for hearing – Consent of the other party or leave of court not required - Plaintiff to pursue costs under rule 43(1)(d) – Application under rule 30 dismissed.
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22 September 2022 |
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Summary
Civil application – Applicants alleging existence of oral agency agreement between the parties – Respondents denying existence of agency agreement but alleging another arrangement – The terms of the arrangement fitting the description of the oral agency agreement and the Respondents conducting themselves in terms of the alleged agency agreement – Consensus inferred from the conduct of the Respondents that there was agency agreement between the parties.
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20 September 2022 |
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SUMMARY
Civil Procedure – Interim Application – Requirements for Temporary Interdict re-stated -Urgency – Rules Applicable therein
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16 September 2022 |
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Summary
Application – Review of Minister’s decision declining renewal of a mining lease under section 36 (5) of the Mines and Minerals Act No.4 of 2005 -Applicant not invoking rule 50 (4) of High Court Rules 1980, but raising further grounds of review in its replying affidavit – Minister’s discretionary powers under section 36 (5) circumscribed – Section 44 negotiations intended for parties to agree terms and conditions of new mining agreement – No need to enter into negotiations if the applicant does not meet the requirements for renewal under section 36 (5) – Application dismissed
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9 September 2022 |
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SUMMARY
Civil Procedure – exception application in terms of Rule 29(2) – exception on the ground of vagueness- what constitutes?
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6 September 2022 |
| August 2022 |
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SUMMARY:
Tender – Whether a tender can be rejected at the review stage – Whether a Procurement Unit has discretionary powers to condone non – Compliance with the requirements of tender invitation – Regulation 28 couched in peremptory terms and overly rigid – A tender must be rejected at a review stage if it is non – Compliant with the requirements of tender invitation.
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31 August 2022 |
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SUMMARY
CIVIL PRACTICE AND PROCEDURE: Abuse of urgency procedure- application dismissed on that basis alone- requirements of application for rescission lodged in terms of Rule 27 of the High Court Rule.
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25 August 2022 |
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SUMMARY
LAW OF CONTRACT: Cancellation of contract based on breach- fairness and unreasonableness as grounds for avoiding enforcement of a contract- Held, that these cannot be the basis for avoiding enforcement of a contract- undue influence as a ground for terminating an agreement- mistake as to the motive for entering into a contract- Held, that such does not vitiate a contract- Practice and Procedure- foreseeability of a material dispute of fact arising in motion proceedings- the approach to be adopted articulated and applied.
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25 August 2022 |
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SUMMARY
CIVIL PRACTICE AND PROCEDURE: Abuse of urgency procedure- Application dismissed with punitive costs for abuse of urgency procedure- Law of property- counter application for a spoliatory relief in relation to incorporeal property- principles considered and applied.
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25 August 2022 |
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SUMMARY
Judgments and orders – Rescission under rule 45(1)(a) – Whether admission by Counsel acknowledging service of court process to his client is hearsay - The amount already paid not discounted when summons was issued – Whether judgment was erroneously granted.
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19 August 2022 |
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SUMMARY
LAW OF PROPERTY: Application for a tacid hypothec-The requirements thereof- Civil practice- how evidence which is adduced for the first time in reply should be dealt with- Unjust enrichment- Principles considered and applied
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18 August 2022 |
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SUMMARY
CIVIL PRACTICE: Application for contempt of court- applicable principles considered and applied- Unjust enrichment where deductions of the applicants’ salaries were made despite the court order prohibiting same towards payment of their loans- The respondents were not enriched by effecting repayment of the loans they advanced to the applicants.
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18 August 2022 |
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SUMMARY
LAW OF PROPERTY- Non-compliance with section 24 of the Deeds Registry Act- Respondent taking occupation of the sub-leased property before consent sought and the sublease agreement being registered- Consequences thereof- Sublease agreements cancelled and declared null and void
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18 August 2022 |
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SUMMARY
CIVIL PRACTICE: Application for rescission of judgement in terms of Rule 27- Applicable principles considered and applied.
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18 August 2022 |
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SUMMARY
COMPANY LAW: Application for judicial management on account of mismanagement of the company by its directors brought in terms of section 156 (1) of the Companies Act 2011- applicable principles considered and applied.
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18 August 2022 |
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SUMMARY
CIVIL PRACTICE AND PROCEDURE: Application for leave to appeal a dismissed application- whether tenable- A dismissed application incapable of being stayed- Application for leave dismissed with costs.
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18 August 2022 |
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SUMMARY
DEBT RECOVERY- In an action for recovery of money for goods sold and delivered and where the defendant raises a special defence- the onus of proving the special defence is on the defendant- Postponement of proceedings- Principles applicable re-stated and applied.
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18 August 2022 |
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SUMMARY:
Application for Summary Judgment – Defendant moving the Court to ignore particulars of claim attached to the summons in considering the application – The propriety of Applicant’s reliance on evidential documents attached to the summons considered – Application for summary judgment granted.
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18 August 2022 |
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SUMMARY
Urgent application – Practice - Is there urgency? – Abuse of Court process, what constitutes.
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5 August 2022 |
| July 2022 |
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28 July 2022 |
| June 2022 |
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Summary
Rescission and intervention – Applicant refusing to release lease for a plot sold pursuant to a writ of execution – Lease surrendered to the applicant as security for money lent to judgment debtor – Applicant seeking rescission and intervention in the main matter – Applicant failing to meet the direct and substantial interest test with respect to the main matter – Application for rescission and intervention dismissed.
Counter – application – A plot hypothecated through an agreement between judgment debtor and micro finance lender – Judgment creditor applying for the agreement to be declared illegal and unlawful and for the release of a lease in respect of the plot – The agreement of no force and effect as it offends sec 28 of the Deeds Registry Act No. 12 of 1967 – Counter – application granted.
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14 June 2022 |
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Summary
Law of agency – A deed of sale of land signed by agent and third party – Agent clothed with power of attorney by principal to sell land – Third party paying full amount agreed with the agent – Agent failing to remit the full amount to the principle – Principal refusing to transfer land to the third party – Whether the principal is liable to the third party – Principal is liable to the third party and cannot escape liability on the ground that he did not sign the deed of sale or that he did not receive the full amount from the agent.
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10 June 2022 |
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SUMMARY
CIVIL PRACTICE: Approach to points in limine re-stated and applied- Matter dismissed on the bases of untenability of a declarator and lack of locus standi in judicio.
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9 June 2022 |
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SUMMARY
LAW OF CONTRACT: Presence of arbitration clause in the contract- whether it ousts the jurisdiction of the court to hear an arbitrable issue- Held, it does not as the aggrieved party must apply in terms of section 7 of the Arbitration Act of 1980 for a stay of proceedings pending arbitration- A party electing to abide by the contract through its conduct despite the presence of its breaches- whether later he/she can rely on the same apparent breaches when he elected to be bound, as the basis for seeking cancellation of the contract- Held in the negative.
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9 June 2022 |
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9 June 2022 |
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SUMMARY
Respondent failing to file opposing affidavit – No condonation application - Matter enrolled in uncontested roll – Application for postponement to file condonation denied – urgency of the matter still key - Interdict
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1 June 2022 |
| May 2022 |
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Summary
Tender – Fairness and audi alteram partem rule apply in resolving complaints regarding tender award – Affected party entitled to opportunity to make representations before adverse decision to re-evaluate a tender is made.
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23 May 2022 |
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SUMMARY
TAXATION: Appellants appealing against the judgment of the Revenue Appeals Tribunal to recognise the respondent as an expatriate within the meaning of the term in the Income Tax Act 1993 (as amended) and Agreement on Phase II the Lesotho Highlands Water Project- Held, upon interpreting the legal provisions implicated, that the respondent is an expatriate- Appeal accordingly dismissed with costs.
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12 May 2022 |
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SUMMARY
CIVIL PRACTICE: Arbitration- application for stay of proceedings pending arbitration in terms of Arbitration Act of 1980- The applicant having raised court’s lack of jurisdiction as a preliminary point- whether such constituted the taking of a further step in terms of section 7 of the Arbitration Act- Held, such a move does not amount to taking a step in the proceedings so as to deny the applicant an opportunity to apply for a stay of proceedings pending arbitration- Consequently, arbitrable issues referred to arbitration and the question of the review of the decision to award the work to the 3rd respondent in the main application, left aside to be tried before the court.
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12 May 2022 |
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5 May 2022 |
| April 2022 |
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Summary
Urgent applications – self created urgency – application for temporary interdict without proper notice – litigation involving termination of fuel supply agreement – applicant being aware of the impugned notice of termination of the agreement three months before institution of urgent application – applicant failing to account for the delay in the founding papers – elements of interdict discussed – failure to satisfy elements of interdict - interim relief refused.
Costs on attorney and client scale – Institution of urgent application on one court day notice despite the request for proper notice by the respondent two months before the urgent application was instituted – Applicant’s conduct objectionable – Costs on attorney and client scale ordered.
Costs de bonis propriis – grounds discussed – the notice of motion in breach of rule 8(7) and 8(8) of High Court Rules 1980 without justification and despite repeated warnings from the Court of Appeal and the High Court – Court file having countless blank pages, thus making reading experience cumbersome – Legal practitioners negligent in a serious degree by abdicating their responsibility to ensure the file was court ready – legal practitioners conducted themselves in a manner deserving of punitive costs. .
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29 April 2022 |
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SUMMARY:
Judgments and orders – Rescission – A claim for compensation arising out of breach of contract – Court granting default judgment without evidence being tendered – High Court Rule 45(1) – Whether an order erroneously granted.
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27 April 2022 |