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:south gauteng high court (johannesburg) (lamont, coppin and mayat jj sitting as court of appeal): 1. the appeals of the first, second, third and fourth appellants are upheld with costs. 2. the order of the court a quo is set aside and substituted by the following order: the appeal and cross-appeal are dismissed with costs. 3. all orders for costs are to include the costs of two counsel where employed. judgment heher ja (brand, mhlantla, malan and majiedt jja concurring): [1] the respondent in the appeal was the plaintiff in the court of first instance, the south gauteng high court (tshiqi j). it claimed from the first appellant, a firm of attorneys (joubert scholtz), specific performance of an alleged oral mandate calling for the repayment of surplus funds held in trust after payment to first national bank (fnb) and standard bank (standard) of moneys paid by the plaintiff into trust for the purpose of discharging debts of and secured by assets of the plaintiff. [2] the plaintiff also claimed, in the same action, against pieter andries goosen1and the third and fourth appellants (respectively elandsfontein 95 cc and elandsfontein bottling cc) for payment of amounts paid by joubert scholtz to those appellants or their creditors from moneys paid by the plaintiff into the trust account in pursuance of the aforesaid mandate that, so the plaintiff alleged, were paid by joubert scholtz in breach of its mandate and without legal obligation and resulted in the unjust .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... ] zasca 112; 2007 (3) sa 266 (sca) paras 52 et seq; hos and med medical aid scheme v thebe ya bophelo healthcare marketing and consulting (pty) ltd [2007] zasca 163; 2008 (2) sa 608 (sca) paras 28 et seq; road accident fund v cloete no 2010 (6) sa 120 (sca) para 36). .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: limpopo high court, thohoyandou (makgoba aj sitting as court of first instance) it is ordered that: the appeal is upheld to the extent that the appellants conviction for rape is replaced by a conviction of indecent assault and his sentence of life imprisonment is altered to one of ten years imprisonment. judgment wallis ja (mthiyane dp and majiedt ja concurring) [1] this appeal is against the appellants conviction of the rape of a seven year old girl and the sentence of life imprisonment imposed upon him for that offence. the alleged rape occurred on wednesday, 31 march 2004. the appellant was arrested on 7 april 2004 and remained in custody pending his trial. the trial was conducted before makgoba aj on 11 and 12 october 2004, on which latter date the appellant was convicted and sentenced. the appeal is before us with leave granted by mann aj on 11 may 2009. [2] two disturbing features emerge from that brief recital of events. the first is that it took four and a half years for the appellant to have his application for leave to appeal heard and the second that it has taken nearly three more years after being given leave to appeal for his appeal to come before this court. that is entirely unacceptable. in terms of s 35(3)(o) of the constitution the appellant had a right to an appeal to, or review of his conviction and sentence by, a higher court. delays of this duration negate that right either wholly or in part. that this is largely what has occurred in this .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: north gauteng high court, pretoria (southwood, phatudi and makgoka jj sitting as court of first instance): the appeals are dismissed with costs that include the costs of two counsel. judgment nugent ja (snyders, malan, bosielo and majiedt jja concurring): [1] the appellant (which i will refer to as new balance inc) is a united states corporation. it has a wholly owned subsidiary in this country new balance south africa (pty) ltd that conducts business in cape town (i will refer to it as new balance sa). [2] new balance inc is the registered proprietor in south africa of two trade marks, namely, p-f flyers (registration 1972/1361) and p-f (registration b 1965/02999), both registered in class 25 in respect of footwear. it acquired the trade marks from a former registered proprietor, leif j ostberg inc, also a united states corporation, on 5 february 2001. the assignment of the trade marks to new balance inc was registered on 19 september 2002. [3] the late mr dajee conducted business in this country retailing, marketing, selling and distributing clothing and footwear. his was a family business that commenced operating in 1931. mr dajee took control of the business in 1968. he died after the current proceedings were commenced and was substituted by the executors of his estate, who are the respondents in these appeals. for convenience of narration i will refer to mr dajee as if he was still alive and party to the proceedings. [4] mr dajee is the registered .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: north gauteng high court, pretoria (ledwaba, msimeki and tlhapi jj, sitting as a court of appeal): 1. the appeal is upheld and the order of the court below dismissing the appeal is set aside and replaced with the following: 1. the appeal is upheld. 2. the appellants conviction for murder is set aside and replaced by a conviction for assault with intent to commit grievous bodily harm. 3. the appellants sentence is set aside and replaced by a sentence of four years imprisonment. judgment petse aja (mthiyane dp, maya, malan, and wallis jja concurring): [1] on 11 may 2007 the appellant was convicted in the regional court sitting in schweizer-reneke on a charge of murder. on 8 november 2007 he was sentenced to ten years imprisonment. [2] disenchanted with his conviction and sentence he appealed against both to the north gauteng high court, pretoria with leave granted by it on petition. that court subsequently dismissed the appeal in a judgment by ledwaba j, with msimeki and tlhapi jj concurring. he now appeals to this court with leave granted by the court below on 12 november 2010. [3] the deceased, thulasizwe hlatswayo, died on 13 february 2006 from the consequences of a subdural haemorrhage. prior to that he had been subjected to various assaults by different people including the appellant. the problem, however, is that the medical evidence is insufficient to establish beyond a reasonable doubt which of these assaults caused his death. the factual circumstances .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: south gauteng high court (johannesburg) (prinsloo j sitting as court of first instance): 1. the appeal is upheld. 2. the sentence imposed by the court below is set aside and replaced with a sentence of ten years' imprisonment. the sentence is antedated in terms of s 282 of the criminal procedure act 51 of 1977 to 27 february 2008, this being the date when the appellants were originally sentenced. judgment mhlantla ja (bosielo ja concurring): [1] the appellants, who were legally represented by one legal representative, were charged in the regional court, nigel with one count of rape read with the provisions of s 51(2) of the criminal law amendment act 105 of 1997 (the act). on 28 june 2007 the appellants pleaded guilty to the charge and in amplification of their pleas, their counsel read out a statement in terms of s 112 of the criminal procedure act 51 of 1977, which read: (language?) the contents of the statements of both appellants are similar save the fact that the first appellant is a family member of the complainant. [2] before conviction the regional magistrate addressed the appellants and their legal representative and enquired whether they were aware that the minimum sentence legislation was applicable. he, however, did not explain what that legislation entailed nor specify the prescribed sentence applicable to the offence with which they were charged. following their pleas of guilty, the appellants were convicted as charged. the regional magistrate .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: south gauteng high court (johannesburg) (spilg j sitting as court of first instance): the appeal is dismissed with costs. judgment malan ja (harms dp, cloete ja concurring) [1] this is an appeal with leave of the court a quo against the judgment and order of spilg j dismissing a claim of eds south africa (pty) ltd for the payment of funds held in an investment account by the attorneys for nationwide airlines (pty) ltd, duncan okes inc, and in the name of nationwide. [2] nationwide was provisionally liquidated on 29 april 2008 and is represented in these proceedings by its provisional liquidators. eds supplied information technology services to nationwide and the funds held by duncan okes form part of fees allegedly owing by nationwide to eds. [3] prior to nationwides liquidation there existed an information technology agreement in terms of which eds undertook to render such services to nationwide. a dispute arose between them as to the extent of nationwides indebtedness. on 1 february 2008 the attorneys for eds wrote to nationwide demanding payment of the fees alleged to be owing. it concluded with reference to s 345(1) of the companies act 61 of 1973 by stating that should nationwide fail to pay the amount claimed or secure or compound it to the satisfaction of eds within a period of 21 days nationwide would be deemed to be unable to pay its debts. [4] further correspondence followed and on 22 february 2008 duncan okes responded on behalf of nationwide .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: kwazulu-natal high court (pietermaritzburg) (sishi j sitting as court of first instance): (1) the appeal is upheld with costs and the order of the court below is set aside. (2) the following order is substituted for the order issued by the court below. '(a) the respondents are interdicted, in the provinces of kwazulu-natal and the eastern cape, from passing-off their property services as those of the applicant or as being associated in the course of trade with the applicant, by using the name, mark and trading style of alliance group without clearly distinguishing their services from those of the applicant. (b) the respondents are directed to pay, jointly and severally, the applicants costs of the application, including the costs of two counsel.' judgment plasket aja (harms dp, heher, ponnan, tshiqi jja concurring): [1] the appellant appeals against the judgment of sishi j in the kwazulu-natal high court, pietermaritzburg in which its application to interdict the respondents from passing-off their property services as those of the appellant was dismissed with costs. [2] two principal issues arise. the first is whether the appeal will have any practical effect and if not whether it should be dismissed in terms of s 21a of the supreme court act 59 of 1959. the second is whether, if the appeal is not to be dismissed in terms of s 21a, sishi j was correct in dismissing the application on the basis that the appellant had failed to prove a reputation in the name and .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: north gauteng high court (pretoria) (southwood j sitting as court of first instance). the appeal is dismissed with costs including costs of two counsel. shongwe ja (harms dp, streicher, brand and theron jja concurring): [1] the appellant, group five construction (pty) limited, instituted a claim against the respondent, the minister of water affairs and forestry, for moneys allegedly due in terms of a contract for the construction of the injaka dam and appurtenant works for the sabie river government water scheme. four of the claims arose from claims submitted by the appellant in terms of clause 51 of the contract, which entitled the appellant to claim for additional payment or compensation in prescribed circumstances. the fifth claim, claim e, did not arise for adjudication. [2] the respondent raised a special plea of prescription and the court below decided to hear this issue separately. the parties placed a list of agreed facts before the court, and led evidence. however, the validity of the special plea depended in the main on an interpretation of the rather complicated contract which had to be read with two amendments agreed to between the parties. these amendments affected clause 61 of the main contract and provided for a new dispute resolution mechanism of submitting disputes to a dispute review board, in lieu of mediation, which was obliged, during the course of the contract, to attempt to settle disputes that arose between the contractor and the .....
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