Court : South Africa Supreme Court of Appeal
on appeal from:the north gauteng high court, pretoria (rabie j sitting as court of first instance): the appeal is dismissed with costs including the costs of two counsel. judgment malan ja (ponnan, maya and petse jja and plasket aja concurring): [1] this is an appeal against the judgment and order of rabie j in the north gauteng high court, pretoria, dismissing an application for relief based primarily on s 38 of the companies act 61 of 1973. the appeal is with his leave. [2] the appellants, jacob mashike and wilhelm christian ross nno and treacle nominees (pty) limited, originally applied for a declaratory order to the effect that the first respondents (senwesbels) acquisition of certain shares in the second respondent (senwes) during the period 1 may 2003 to 30 april 2005 pursuant to the acceptance of two offers made to specific categories of shareholders was invalid. the relief was primarily based on s 85 of the companies act but to some extent also on a contravention of s 38. the appellants further sought an order that the shares sold be cancelled in accordance with the provisions of s 85; alternatively, that senwesbel return to the vendors the shares sold and that senwes rectify its register of members accordingly. [3] during the hearing before the court below the appellants amended the relief sought. the draft order proposed read as follows: 1 it is declared that the first respondents acquisition of the 8 221 042 shares in the second respondent (6 471 473 in terms of .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: south gauteng high court, johannesburg (mabesele j sitting as court of first instance) a. the appeal is upheld with costs to be paid by the respondents jointly and severally. b. the orders of the court below are set aside and the following orders are substituted: (i) the application succeeds to the extent that paragraphs 4 and 5 of the costs award made by the arbitrator on 5 august 2011 are made an order of court. the respondents are to pay the costs of the application. (ii) the counter-application is dismissed with costs. (iii) in each case the costs are to be paid by the respondents jointly and severally. judgment nugent and tshiqi jja (ponnan ja and swain and saldulker ajja concurring): [1] various disputes between the appellants, on the one hand, and the respondents, on the other hand, were referred to arbitration by agreement. the nature of the disputes, and the award that was made on the merits, are not material to this appeal. the appeal concerns only the costs that were awarded by the arbitrator. [2] in his costs award the arbitrator ordered the first respondent leadtrain (pty) ltd to pay 80 per cent of the costs of the arbitration, and 80 per cent of certain costs that had been incurred in the high court. he went on in paragraph 4 of the award to direct that certain costs be included in the costs of the arbitration. in paragraph 5 he ordered the second respondent mr lilford to bear half the costs jointly and severally with leadtrain (pty) ltd. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: north gauteng high court, pretoria (van der merwe j and vilakazi j sitting as court of appeal): 1. the appeal against sentence is upheld. 2. the order of the court below is set aside and is substituted by the following: (a) the appeal against conviction is dismissed. (b) the appeal against sentence succeeds. (c) the sentence of 6 months imprisonment imposed on the appellant is set aside and substituted with the following: the accused is sentenced to 6 months imprisonment, wholly suspended for a period of 5 years, on condition that the accused is not convicted of a contravention of sections 120(3), (4), (5), (6), (7) or (8) of the firearms control act 60 of 2000, committed during the period of suspension. 3. the order declaring the appellant unfit to possess a firearm pursuant to the provisions of s (12)(1) of the arms and ammunition act, 75 of 1969 is set aside. judgment majiedt ja: [1] this is an appeal against a sentence of 6 months imprisonment, imposed by the regional court for limpopo, sitting at polokwane, confirmed on appeal by the north gauteng high court, pretoria (van der merwe j, vilakazi aj concurring) imposed in consequence of a contravention of the provisions of s 39 (1) (i) of the arms and ammunition act, 75 of 1969 (the act). the appeal is with the leave of the court below. the appellant was charged under the act, since the offence was committed when that act was still in operation. [2] the factual matrix underlying the appellants conviction .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: north gauteng high court, pretoria (southwood et patel jj sitting as court of appeal): (a) the appeal against sentence is upheld to the extent indicated below. (b) paras 2 and 3 of the high courts order are set aside and are substituted with the following: 2. the appeal is upheld in respect of the sentence of 10 years imprisonment imposed in respect of the convictions of attempted murder. such sentence is set aside and substituted with a sentence of seven years imprisonment. 3. the sentence of seven years imprisonment imposed for robbery with aggravating circumstances (count 1), and the sentence of 7 years imprisonment in respect of the nine convictions for attempted murder (counts 4-12), are ordered to run concurrently. judgment mbha aja (maya, shongwe, leach jja et swain aja concurring) [1] arising out of a cash in transit heist and related events more fully described below, the appellant was convicted in the secunda regional magistrate court (the trial court) on a count of robbery with aggravating circumstances (count 1), a count of robbery involving the theft by force of a motor vehicle (count 2), ten counts of attempted murder (counts 3-12), one count of attempted robbery of another motor vehicle (count 13) and four counts of unlawful possession of firearms consisting of rifles, handguns and ammunition. on 10 may 2002 he was sentenced to seven years imprisonment for robbery with aggravating circumstances (count 1), three years imprisonment for robbery and .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: eastern cape high court, grahamstown (smith j sitting as court of first instance): the appeal is upheld with costs on an attorney and client scale, and the order of the court a quo is set aside and replaced with the following. the application is dismissed with costs on an attorney and client scale. judgment mthiyane dp (majiedt ja and van der merwe, swain and mbha ajja.concurring) [1] the respondent, michael wharton randell, is a duly admitted attorney of the high court practising as such in port elizabeth. he is currently facing charges of fraud and theft involving a sum of r2,4 million which he together with two other persons are alleged to have misappropriated while they were trustees of the greenwood property trust (the trust), the sole beneficiary of which was the greenwood primary school, port elizabeth (the school). the criminal proceedings against the respondent are still pending. [2] prior to the disposal of the criminal proceedings of the appellant, the law society of the cape of good hope, launched an application in the eastern cape high court for the removal of the respondents name from the roll of attorneys. the application is based on the same facts which are the subject of the criminal proceedings pending against the respondent in the commercial crimes court in port elizabeth. without filing an answering affidavit in opposition to the application to strike him off, the respondent launched a counter application for a stay of the striking off .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... on 19 april 2006, ms stroud sent an e-mail to the respondent enclosing the court order, a letter from the road accident fund confirming the settlement amount paid, a breakdown of the payments made to the company that built the house and the detailed account sent to her mother. ..... on 30 january 1988, when she was approximately four years old, the respondent sustained injuries and was rendered a paraplegic in a motor vehicle accident between two motor vehicles, a valiant, in which she was a passenger, and a toyota. ..... . he had initially accepted the teachers explanation that it was an accident .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from:limpopo high court, thohoyandou (makhafola j sitting as court of first instance): (a) the appeal succeeds to the extent only that it is ordered that 12 of the 15 years imprisonment imposed in respect of count 2 are to run concurrently with the sentence of 15 years imprisonment imposed on count 1. (b) the appeal is otherwise dismissed. judgment leach ja (lewis ja and erasmus aja concurring) [1] the appellant, given mabunda, was one of three accused tried in the thoyoyandou high court on two charges of robbery with aggravating circumstances. he was convicted as charged and sentenced to 15 years imprisonment on each count. as these sentences were not ordered to run concurrently to any extent, this amounted to an effective sentence of 30 years imprisonment. with the leave of the high court, the appellant appeals to this court solely against his sentence, leave to appeal against his conviction having been refused. [2] the charges brought against the appellant arose from two incidents that occurred during the course of the night of 5 may 2004 at mashau in the province of limpopo. the first, which gave rise to the first charge, took place at the home of ms rejoice mudau who shared a house with her child and two elderly women described by her as grannies. after having watched television until 22h30 they were preparing for bed when three intruders, one of whom was armed with a firearm, used an iron bar to break into the house. one of the intruders slapped ms mudau and .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: north gauteng high court, pretoria (southwood j and makgoka aj sitting as court of appeal): the appeal is dismissed. judgment lewis ja (leach ja and erasmus aja concurring): [1] the two appellants in this matter were convicted in the vereeniging regional court on three counts of robbery with aggravating circumstances, one count of contravening s 3 of the firearms control act 60 of 2000 (the unlawful possession of four firearms) and one count of contravening s 90 of that act (the unlawful possession of 43 rounds of ammunition). they were sentenced to 15 years imprisonment on each count of robbery, the sentences to be served concurrently. the first appellant was sentenced in addition to four years imprisonment on the charge of unlawful possession of firearms and one year in respect of the unlawful possession of ammunition. the second appellant was sentenced to six years imprisonment on the charge of unlawful possession of firearms, the additional two years imposed because he had a recent previous conviction for such possession. like the first appellant he was also sentenced to a years imprisonment for the unlawful possession of ammunition. [2] they appealed against both convictions and sentences to the north gauteng high court (southwood j and makgoka aj). that court set aside two of the convictions of robbery, but confirmed the sentences on the other counts. the first appellant was thus sentenced to an effective period of 20 years of imprisonment and the second .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: western cape high court, cape town (davis j sitting as court of first instance) the appeal is dismissed with costs including those of two counsel. judgment lewis ja (cachalia and theron jja and schoeman and van der merwe ajja concurring) [1] the appellants, father and son, robert cheng-li tsung and robert hsu-nan tsung, were the directors of dynasty textiles (pty) ltd (textiles) which ran a textile factory in atlantis, cape town. the respondents, the industrial development corporation of south africa ltd (the idc) and its financial arm, a wholly owned subsidiary, findevco (pty) ltd (findevco), instituted action against both appellants in the western cape high court, claiming some r35 million (rounded off) in terms of s 424 of the companies act 61 of 1973, on the basis that the business of textiles had been carried on by them recklessly or with the intention to defraud creditors of textiles, in particular the idc and findevco. the action succeeded, davis j declaring that the tsungs conduct fell within the ambit of s 424(1) and that they were personally liable for an amount agreed (during the course of the trial) to be the quantum of their liability, r32 340 346. leave to appeal against that decision was given by this court. [2] section 424(1) reads: when it appears, whether it be in a winding-up, judicial management or otherwise, that any business of the company was or is being carried on recklessly or with intent to defraud creditors of the company or .....
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!