Court : South Africa Supreme Court of Appeal
..... [15] the argument was advanced that because the appellants wife had been injured in a motor accident some 11 years before, and is disabled to an extent as a result, the imposition of a custodial sentence on the appellant would work hardship on the appellants daughter because the appellant was responsible for most of the physical caring for .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: north west high court, mafikeng (leeuw jp sitting as court of first instance): (a) para 2(b) of the order made by this court in relation to the costs in the high court is confirmed. (b) the respondent is ordered to pay the appellants costs occasioned by the argument to vary such order. judgment cloete ja (cachalia, shongwe and theron jja and erasmus aja concurring): [1] in the order made by this court allowing the appeal, leave was granted to either party to make submissions in regard to the provisional order for costs in the high court. leave was not granted to make submissions in regard to the order for the costs of appeal that order was made by agreement as appears from para 14 of the judgment, and i see no good reason to revisit it. it was obviously correct on a parity of reasoning with what follows. [2] the effect of para 2(b) of this courts order is limited, as the order expressly says, to the costs occasioned by the argument ie the argument on the question before the high court. the order does not extend to the costs of the proceedings as a whole. the effect of the answer to the question put to the court and answered on appeal will have to be decided by the high court, if the parties cannot reach agreement. the fact that the answer given to the question may have adverse consequences for both parties (the respondents counsel submitted that it will be as fatal to the appellants first counterclaim as it will be to the respondents claim) is to my mind .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from:north gauteng high court, pretoria (phatudi j sitting as court of first instance): (a) the appeal is upheld. (b) the order of the court a quo is set aside and replaced with the following: the application is dismissed. first and second respondents are ordered to pay the applicants costs. judgment brand ja (shongwe, leach jja, southwood and saldulker ajja concurring): [1] the first respondent, ms urmilla mansingh (mansingh), is a practising advocate and a member of the johannesburg society of advocates (jsa). proceedings started when she brought an application in the north gauteng high court, pretoria for a declarator that s 84(2)(k) of the constitution does not authorise the president of the republic to confer the status of senior counsel on practising advocates. on the papers reference is often made to the institution of senior counsel as silk and to those who hold that status as scs or silks. the reference to silk, of course, derives from the fabric of the gowns traditionally worn by senior counsel. though, as the court a quo rightly pointed out, silk has since largely been replaced by ersatz material, i nonetheless propose to follow that nomenclature, because i find it convenient to do so. [2] as respondents to her application, mansingh cited six parties. they were: 1. the president of the republic (the president). 2. the minister of justice and constitutional development (the minister). 3. the general council of the bar (gcb), which is an affiliation of the .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: south gauteng high court, johannesburg (kgomo j sitting as court of first instance): 1. the appeal is dismissed save for paragraphs 166.4.1 and 166.4.2 of the order of the court a quo which are set aside and replaced with the following: 1. the first respondent (eskom) is ordered to pay the costs of the application including the costs of two counsel. 2. no order is made as to costs on appeal. judgment mthiyane dp (mhlantla and petse jja concurring): [1] this appeal arises from a successful application by the first and second respondents (media 24) against the appellants (billiton) in the south gauteng high court (kgomo j) in terms of the promotion of access to information act 2 of 2000 (paia). media 24 had made a request to eskom holdings limited (eskom), the third respondent, for information concerning two contracts concluded during the 1990s that eskom has with billiton, for the supply of electricity to two smelters that produce aluminium. these smelters are the hillside smelters of richards bay and mozal smelter of maputo, mozambique both of which belong to the billiton group of companies. in terms of these contracts mozal is entitled to receive electricity from the 1990s until march 2026 and hillside, until 2028, at a lower rate than the standard tariff. [2] in terms of the constitution everyone has the right of access to any information held by the state.1paia is national legislation contemplated in s 32(2) of the constitution that was introduced to give .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from south gauteng high court, johannesburg (beasley aj sitting as court of first instance). 1 the appeal is upheld. the order of the high court is set aside and is substituted with the following order: judgment is granted against the first and second defendants, jointly and severally, the one paying the other to be absolved, for payment in the amount of r111 533.98 together with interest a tempore morae at the rate of six per cent above the prime rate prevailing from time to time until date of payment. judgment lewis ja ( theron and petse jja and plasket and swain jja concurring) [1] the question to be decided in this matter is whether a lease of movable property was governed by the provisions of the national credit act 34 of 2005. the high court held that the agreement in question was a lease because the representative of the lessee believed that ownership of the machine hired would somehow pass to the lessee on termination of the lease, and that the provisions of the act regulating notice to the defaulting lessee were thus operative. in effect, it held that the particular lease was not a lease. this may sound like a fragment of alice in wonderland. if that is so, it is because the act itself could have been written by lewis carroll so peculiar are some of its provisions. [2] these are, in summary, the facts giving rise to the litigation. the second respondent, michael rose, was an estate agent who conducted business through the first respondent, michaels bid a .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: western cape high court (cape town) (griesel j sitting as court of first instance): 1. the appeal is upheld with costs, such costs to include those consequent upon the employment of two counsel to be paid jointly and severally by the respondents. 2. the order of the court below dismissing the application with costs is set aside and in its stead is substituted the following: (a) it is declared that the purported decision by the first respondent dated 28 april 2011 refusing the applicant's application for rezoning and subdivision in respect of the proposed lagoonbay development is unlawful and is accordingly set aside. (b) it is declared that the second respondent is the competent authority to consider and determine the applicant's application for rezoning and subdivision in respect of the proposed lagoonbay development and its decision to approve that application on 17 july 2010 is confirmed. (c) the applicants application for the amendment of the george and environs urban structure plan from agriculture/forestry to township development in respect of the farm hoogekraal 238 is remitted to the first respondent for reconsideration. (d) the respondents are ordered to pay the costs of the application jointly and severally such costs to include those of two counsel. judgment ponnan ja (nugent, ponnan, tshiqi and majiedt jja and saldulker aja concurring): [1] at the heart of the dispute in this matter is a proposed development on the farm hoogekraal 238, which is .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: south gauteng high court, johannesburg (satchwell 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 below is set aside and replaced with the following: the plaintiffs claims are dismissed with costs. judgment mhlantla ja(mthiyane dp, bosielo ja and mbha aja concurring): introduction [1] this is an appeal from a judgment of the south gauteng high court, johannesburg (satchwell j) in which imvula quality protection (pty) ltd (the appellant) was found liable to mr licinio loureiro (the first respondent) in contract, and to mrs vanessa loureiro and their two minor sons (the second to fourth respondents respectively) in delict for the loss they allegedly suffered in a robbery which occurred at their home on 22 january 2009. it is that incident which gave rise to the above claims. background [2] the incident can be best understood by reference to the following background facts. on 25 november 2008, the first respondent and his family moved into their house at 50 jellicoe avenue, melrose, johannesburg. he arranged with mr barbosa of sky leah sales to install a comprehensive security system at the house. this involved electric fencing, perimeter protection, beams, multiple alarm systems, guard house, intercom and closed circuit television. there was a safe room concealed by large mirrors inside the house. the first respondent, his nephew (ricardo loureiro) and ricardos father were .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: north gauteng high court, pretoria (prinsloo j sitting as court of first instance): the appeal is dismissed with costs. judgment van der merwe aja (malan and shongwe jja and saldulker and mbha ajja concurring): [1] this is an appeal against a declaratory order and ancillary relief granted in favour of the respondents by prinsloo j in the north gauteng high court, pretoria. he granted leave to appeal to this court. [2] the appeal concerns the interrelation between the provisions of s 118(1) of the local government: municipal systems act 32 of 2000 and s 89 of the insolvency act 24 of 1936. in city of johannesburg v kaplan no and another1this court held that, notwithstanding the longer period referred to in s 89, liability for payment of a tax as defined in s 89(5) to a municipality in order to obtain a certificate in terms of s 118(1) in respect of immovable property falling in an insolvent or liquidated estate, is limited to the period mentioned in s 118(1). the judgment of the court a quo is essentially based on the decision in kaplan and the real issue raised by the appellants challenge thereto is whether the decision in kaplan can be departed from. [3] the factual background is uncomplicated and common cause. the appellant (the municipality) is a duly established local municipality. the respondents, collectively referred to as fedbond, operate a participation bond scheme in terms of which they make loans to commercial companies based on funds they have .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... approach to sentence in matters of this kind was formulated with admirable clarity by corbett ja in s v nxumalo 1982 (3) sa 856 (a) at 861g when he said: it seems to me that in determining an appropriate sentence in such cases [ie cases of culpable homicide arising from traffic accidents] the basic criterion to which the court must have regard is the degree of culpability or blameworthiness exhibited by the accused in committing the negligent act. ..... [6] according to the appellant he was also seriously injured in the accident and was admitted to hospital for five days. ..... both passengers testified that the appellant had successfully executed the same manoeuvre that led to the accident on the fateful day on two previous occasions. ..... at the time of the collision he had therefore used the same route that traverses the railway crossing, where the accident occurred, for nearly ten years. ..... of these, four were eyewitnesses while the fifth was an engineer in the employ of metrorail who gave evidence about the technical aspects regarding traffic control at the railway crossing where the accident occurred. ..... he further maintained that he remembered absolutely nothing, from the time that he stopped behind the last vehicle in the queue in buttskop road, until he regained consciousness after the accident. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: south gauteng high court (pretoria) (sutherland j sitting as court of first instance): (a) the appeal is dismissed with costs, including the costs of two counsel. (b) in sghc case number 16215/2011(mitchell cotts pension fund (in liquidation) and another v nedbank limited and another), nedbank limited is ordered to pay the costs, including the costs of two counsel, of mitchell cotts pension fund (in liquidation) and of lucas south africa pension fund (in liquidation) in respect of nedbanks withdrawn cross-appeal. judgment ponnan ja (petse ja concurring): [1] the appellants are all pension funds1 (the funds), who suffered losses totalling some r946 million resulting from the wrongful removal of surplus assets from each fund through a scheme known as the ghavalas option, details of which are not material to the present appeal. it resulted in the funds being placed under curatorship or winding-up. part of those losses formed the subject matter of delictual (aquilian) damages claims by the funds (duly represented by their curators or liquidators as the case may be) instituted against alexander forbes financial services (pty) ltd (alexander forbes), as one of several wrongdoers in respect of the harm suffered. [2] alexander forbes gave notice of the action to the various respondents2 in terms of s 2(2)(b) of the apportionment of damages act 34 of 1956 (the act). section 2(2)(b) provides: 'notice of any action may at any time before the close of pleadings in that .....
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