Court : South Africa Supreme Court of Appeal
on appeal from:on appeal from western cape high court, cape town (le grange j sitting as court of first instance). 1. the appeal is upheld with costs, including the costs of two counsel. 2. the order of the court a quo is set aside and replaced with the following: (a) the defence raised in para 9 of the defendants plea is dismissed. (b) the defendant is to pay the costs of the preliminary proceedings arising from that defence. judgment brand ja(cloete, cachalia, tshiqi jja et plasket aja): [1] on 18 november 2007 the parties entered into a written agreement of donation. in terms of the agreement the respondent donated his undivided half share in an immovable property to the appellant. at the time of the agreement the parties were married to each other and the appellant owned the other undivided half share in the property. alleging that the respondent refused to give effect to his obligation under the donation agreement, the appellant instituted action against him in the western cape high court for specific performance. the respondent in his plea raised various defences against her claim. included amongst these was the defence in para 9 of the plea that the contract of donation was invalid for failure to comply with s 5 of the general law amendment act 50 of 1956. [2] eventually the matter came before le grange j. by agreement between the parties he was asked to determine only those issues arising from the respondents plea of invalidity while all other issues stood over for .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: north gauteng high court, pretoria (hughes aj sitting as court of first instance): 1. the appeal is dismissed with costs. 2. the order of the high court is set aside and replaced with the following: (a) the appellant is ordered to vacate portion 2, farm bleshoenderpan 211, registration division mr, dardanelin, alldays, limpopo province (the property) with immediate effect. (b) the guarantee provided by absa bank ltd on 7 february 2013 on behalf of marde (edms) bpk is sufficient security for the appellants enrichment claim in respect of improvements to the property. (c) the guarantee shall lapse should the appellant not institute action as contemplated in the order of the high court, within 30 days of this order. judgment mathopo aja(mthiyane dp, lewis, mhlantla and saldulker jja concurring): [1] on 19 may 2014 this appeal was heard and the order set out above was made by the court. it was then indicated that the reasons for the order would follow. these are the reasons. [2] the issue in the appeal is whether the security tendered by the third respondent, marde (pty) ltd, is sufficient for the appellants (willem pheiffer) enrichment claim in respect of improvements to the property of the first and second respondents (the van wyks). the north gauteng high court, pretoria (hughes aj) answered this question in favour of the van wyks. it declared the agreement between the van wyks and pheiffer null and void ab initio. it ordered the third respondent to file .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: north gauteng high court, pretoria (wright aj and makhubele aj sitting as court of first instance): 1. the appeal is dismissed. 2. the costs are to be paid jointly and severally by the appellants and are to be taxed by the first and second appellants on the scale as between attorney and client. judgment mthiyane dp (ponnan, saldulker jja, hancke and mathopo ajja concurring): [1] this is an appeal against an order of the north gauteng high court (wright aj and makhubele aj), removing the names of the first and second appellants from the roll of attorneys and granting other ancillary relief. the ancillary relief included an order prohibiting the appellants from handling or operating trust accounts and the appointing of a curator to administer and control the appellantss trust accounts, to protect the interests of their trust creditors. the appeal is with the leave of the high court. [2] the first appellant, mr thomas walter hepple (hepple), was admitted as an attorney by the free state high court on 19 february 1998 and enrolled as an attorney in gauteng on 17 november 1999. his co-director, the second appellant, mr christiaan hendrik earle (earle), was admitted by the free state high court on 30 october 1980 and was enrolled as an attorney in gauteng on 23 february 2006. they both practised in centurion, pretoria in an incorporated practice under the name: hepple attorneys incorporated, the third appellant (the firm). there were two other directors of the firm, .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: north gauteng high court, pretoria (bertelsmann j and mavundla j sitting as court of appeal): the appeal is upheld and the conviction is set aside. judgment shongwe ja [1] this appeal originates from a conviction by the regional court (pretoria) which convicted the appellant of attempted murder and sentenced him to 4 years imprisonment in terms of s 276(1)(i) of the criminal procedure act 51 of 1977 (the act) on 11 june 2004. with the leave of the trial court, the appellant appealed against the conviction and sentence to the north gauteng high court (pretoria). that appeal was dismissed on 29 january 2007. the appeal before us is with the leave of the court a quo on 12 september 2007. [2] the factual background is that the complainant and the appellant were driving their respective vehicles from pretoria city centre towards atteridgeville. a road rage of some sort developed between them. it appears, from the evidence that they overtook each other on several occasions until they reached atteridgeville and parked at an engen petrol station. the complainant alighted from his vehicle and approached the appellant who was seated in his vehicle, to enquire why the appellant drove in a manner dangerous to other road users. the complainant testified that the appellant said words to the effect that my son ek sal jou skiet to which he responded that jy vat kans that is when the complainant turned and walked towards his vehicle when he was shot at from behind. [3] .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: north gauteng high court, pretoria (de vos j sitting as court of first instance): the appeal is dismissed with costs, including the costs of two counsel. judgment van zyl aja (navsa, mhlantla, leach and petse jja concurring) [1] the appeal concerns the validity of a cancellation of a lease agreement. the problem presenting itself is the following: notice of cancellation was given before the commencement of legal proceedings for the winding-up of the lessee, but the period provided for had not yet expired when those proceedings commenced and cancellation followed thereafter. put simply, the question is whether the right to cancel was lost because of a concursus creditorum. this issue was placed before the high court for decision pursuant to an agreement between the parties that it be decided on an agreed statement of facts as envisaged in rule 33 of the uniform rules of court. the high court decided the issue in favour of the respondent and dismissed the appellants claims with costs. the appeal is with the leave of the high court. [2] the agreed facts are the following. in 2006 the appellant, ellerine brothers (pty) ltd (ellerine), concluded a lease agreement with a company called toits motor group (pty) ltd (the insolvent) in terms of which it let to it certain business premises. in the same year the insolvent entered into a sub-lease agreement with the respondent, mccarthy limited (mccarthy) in respect of a portion of the property. the events which follow .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: limpopo high court, thohoyandou (lukoto j sitting as court of first instance): 1. the appeal against sentence is upheld. 2. the sentence of 40 years imprisonment imposed by the trial court is set aside and replaced with a sentence of 20 years imprisonment. 3. the sentence is in terms of s 282 of the criminal procedure act 51 of 1977 ante dated to the 22 may 2000 being the date upon which the sentence was imposed. judgment mathopo aja(ponnan ja and swain aja concurring): [1] mr samuel mudau appeared before lukoto j, charged with the murder of his wife. he pleaded guilty and was convicted as charged. in his plea explanation he admitted to assaulting his wife with a stick several times all over her body with the result that she died in consequence of the injuries inflicted upon her by him. the trial court applied the provisions of the general law amendment act 105 of 1997 (the act) and sentenced him to 40 years imprisonment. the appellant is appealing against sentence with the leave of the court below (per mann aj). [2] this appeal is based on two grounds. first, that the court below applied the sentence prescribed by the act without prior warning to the appellant. second, that the sentence imposed by the trial court is disturbingly or startlingly inappropriate so as to induce a sense of shock. [3] it was submitted that the trial judge misdirected himself when he sentenced the appellant in terms of the act without any prior warning to him or his counsel. it is .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: limpopo high court, thohoyandou (lukoto j sitting as court of first instance): the appeal is upheld and both the conviction and the sentence are set aside. judgment [1] on 26 september 2001 the appellant, mr mulimisi elias mulovhedzi, was charged in the regional court, thohoyandou, limpopo with the rape of his ten year old stepdaughter. although the charge sheet was silent as to the applicability of s 51(1) of the criminal law amendment act 105 of 1997 (the act), the trial court, of its own accord, explained to the appellant at the outset that given the age of the complainant the provisions of s 52[1]of the act would be invoked if a conviction ensued. [2] section 52 of the act as it then applied required a regional court, when it has convicted an accused person of an offence for which life imprisonment is the prescribed sentence, to stop the proceedings and commit the accused for confirmation of the conviction and for sentencing in terms of s 52 of the act to a high court having jurisdiction. [3] on 30 october 2001 and despite pleading not guilty the appellant was convicted as charged. consequent upon the conviction the regional court stopped the proceedings and committed the appellant to the limpopo high court for confirmation of the conviction and for sentencing as contemplated in s 52 of the act. [4] the case served before lukoto j who, having found that no substantial and compelling circumstances existed to justify a lesser sentence, sentenced the .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
judgment cachalia ja (malan, pillay jja, van der merwe and zondi ajja concurring): [1] this matter came before us on appeal against an order of the north gauteng high court (tolmay j) on two issues separated for determination under rule 33(4) of the uniform rules. the first was whether the plaintiff (the respondent on appeal) had complied with s 26 of the estate affairs agency act 112 of 1976, and the second whether it had complied with ss 34a(1) and (2) of the act. these provisions require estate agents to have valid fidelity fund certificates before rendering services entitling them to claim remuneration. the high court issued a declaratory order to the effect that the respondent had substantially complied with those provisions, but granted the appellants leave to appeal the order. [2] before the hearing in this court the parties were given an opportunity to lodge supplementary heads of argument on whether the order was appealable in the sense of being definitive of the rights of the parties and also dispositive of at least a substantial part of the relief claimed. after hearing argument on this question the court decided that the matter was not appealable. the matter was accordingly struck from the roll and the appellants ordered to pay the costs of their opponents, including the costs of two counsel. the court indicated at the time that its reasons would follow. these are the reasons. [3] in order to decide whether the order of the high court is capable of being appealed .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from:north west high court, mafikeng (leeuw jp and landman j sitting as court of appeal): 1. the appeal succeeds to the limited extent set out in 2 below. 2. the order of the court a quo is set aside and is substituted with the following: the appeal is struck off the roll. judgment leach ja (navsa, tshiqi and saldulker jja and swain aja concurring) [1] the appellant seeks to appeal to this court against a sentence of life imprisonment imposed upon him by a regional magistrate for raping two young girls. an appeal to the high court against his sentence was dismissed on 4 june 2012, as was a subsequent application to that court for leave to appeal further. an application to this court resulted in the appellant being granted the necessary leave. [2] the two counts of rape on which the appellant was convicted arose out of an incident which occurred at his home near matseng village on 9 october 2009. the states case was that the appellant, who was in his mid-forties at the time, enticed the two complainants, girls who were both but 12 years of age, to enter his home by offering them money. once they were inside his house, the appellant locked them in, switched off the light and proceeded to rape them in turn. in order to attempt to escape the consequences of this terrible deed, the appellant told the complainants that he would kill them if they reported what he had done. [3] the appellant pleaded not guilty and denied that these events ever took place, but was convicted .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: eastern cape high court, grahamstown (makaula and griffiths jj sitting as court of appeal): the appeal is upheld with costs. the order of the high court is set aside and replaced with the following: the appeal is dismissed with costs. judgment cachalia ja (leach, majiedt, petse and willis jja concurring): [1] the close corporations act 69 of 1984 (the act) permits a deregistered close corporation to have its registration restored. when that occurs, s 26(7) of the act says that the corporation shall continue to exist and be deemed to have continued in existence as from the date of deregistration as if it were not deregistered (emphasis added). the issue in this appeal concerns whether or not this provision has the effect of retrospectively validating an invalid summons issued by a close corporation after deregistration so as to interrupt the running of prescription.a magistrate held that the provision had that effect, but the high court came to the contrary conclusion. with leave of the high court the appellant, a close corporation,now appeals to this court. [2] it is convenient at the outset to quote s 26 in full: (1) if a corporation has failed, for a period of more than six months, to lodge an annual return in compliance with section 15a or if the registrar has reasonable cause to believe that a corporation is not carrying on business or is not in operation, the registrar shall serve on the corporation as its postal address a letter by registered post in .....
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