Court : South Africa Supreme Court of Appeal
..... provided that a male person who is a partner in a subsisting customary union cannot contract a marriage without first making a declaration to a magistrate or commissioner of the matters dealt with in that section was unavailing to the first respondent; and (c) that the first respondents marriage to the deceased on 2 august 1995 is null and void ab initio because it was hit by the prohibition in s 1[4]of the marriage and matrimonial property law amendment act 3 of 1988 as the deceased was on that date a partner in a subsisting customary union ..... section 22 of the act [black administration act] was amended by the marriage and matrimonial property law amendment act, which came into operation on 2 december 1988. ..... the answer to this question lies squarely in s 1(1) and (2)[13]of the marriage and matrimonial property law amendment act which came into operation on 2 december 1988. ..... first, the high court, relying on road accident fund v mongalo; nkabinde v road accident fund 2003 (3) sa 119 (sca) para 6, held that as the appellant initially asserted in her founding affidavit that her customary marriage was concluded on 1 november 1970, which turned out to be untrue, she could not rely on the registration certificate issued to her in 1991, for to allow her to do so would be assisting her to perpetrate a fraud. ..... [6] road accident fund v mongalo; nkabinde v road accident fund 2003 (3) sa 119 (sca) paras 6-7. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... law amendment act 105 of 1997 read with s 51(3) and part 1 of schedule 2 to the act ..... , pursuant to s 18 of the criminal law (sexual offences and related matters) amendment act 32 of 2007 is of no application to the merits of this matter, as the conduct in question occurred prior to the coming into effect of that act. ..... offered the attention and love she craved were given subject to a sinister overlay of mounting sexual intrusion.9 [44] the court a quo equated the conduct of the appellant to sexual grooming.10at common law, the clearest definition of sexual grooming to emerge from our courts was that laid out by satchwell j in s v muller2007 (2) sacr 60 (w) para 35, namely that grooming is a psychological process used by the ..... indecent assault (18 months imprisonment) count 3: crimen injuria (18 months imprisonment) count 5: contravention of s 27 (1)(a) read with ss 1, 30 and 30b of the films and publications act 65 of 1996 child pornography (3 years imprisonment) count 6: contravention of s 4(a) or 4(b) read with ss 1, 13, 17 to 25 and 64 of the drugs and drug trafficking act 140 of 1992 possession of drugs (a fine of r500.00 or one month imprisonment) count 7: fraud alternative: forgery and uttering (2 years imprisonment) it was ordered that ..... [13] during the final school term of that year (2003), the appellant and the complainant arranged to meet in graaff-reinet on a friday ..... [9] during 2003, the appellants wife often travelled out of town on business, while their .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... to s v vilakazi 2009 (1) sacr 552 (sca) para 15 which dealt with the proper approach to determining whether there are substantial and compelling circumstances that warrant a deviation from the minimum sentence prescribed by the criminal law amendment act 105 of 1997: there this court said that it is incumbent upon a court in every case, before it imposes a prescribed sentence, to assess, upon a consideration of all the circumstances of the particular case, whether ..... and accordingly, in determining, in respect of the charge of robbery with aggravating circumstances, whether substantial and compelling circumstances warrant a lesser sentence than that prescribed by the criminal law amendment act 105 of 1997 (15 years imprisonment for robbery), the test is not whether on its own that period of detention constitutes a substantial or compelling circumstance, but whether the effective sentence proposed is proportionate to the ..... upon each accused, and bearing in mind that this court has sanctioned the deduction of time spent in custody as a substantial and compelling circumstance for offences contemplated in ss 51 and 52 of the criminal law amendment act 105 of 1997 (s v vilakazi . . . ..... the help of a number of people, including one mr madoda nkambule, who was referred to throughout the trial as madoda, and who gave evidence in terms of s 204 of the criminal procedure act 51 of 1977, on the basis that if he answered questions frankly and honestly he might be discharged from prosecution. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... contained the following condition: it is a condition precedent for the transactions embodied in this agreement acquiring force and effect that the approval of the commissioner of inland revenue be obtained in terms of section 39 of the taxation laws amendment act, act 20 of 1994. ..... , providing that the effective date of the sale would operate retroactively from 1 november 1997, was a deeming provision inter sethat could not affect the parties to the litigation or elevate any prior act of the defendants to the breach of a right which the plaintiff did not have at the time of breach. ..... contract is, in any event, not required to show that the breach by the defendant was the cause but only that it was a cause of the loss.11nor was it necessary for the plaintiff to show particular acts of each defendant that were causally linked to the resignation of each member of megasave and sentra. ..... , assuming that the cession had taken place before resignation of the members, it was not sufficient for the plaintiff to rely on evidence of generalised breaches of the restraints but that it had to show particular acts on the part of each defendant that were causally linked to the resignation of each member. ..... was made that it was not within the power of the plaintiff to render an act retroactively wrongful by taking cession of the relevant right at a later stage. ..... discussion by d tzeffertt a ppaizes and a st q skeen the south african law of evidence (formerly hoffmann and zeffertt)(2003) p 124 ff. 11. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... in roux was clearly wrong, and i prefer to leave open the question whether a person under 18 who enters into a lawful marriage, or who by virtue of their life circumstances would be regarded under the common law as having been tacitly emancipated from their minority, is no longer to be regarded as a minor for the purposes of the act. ..... reasons, and whatever the precise scope of the always speaking principle in our law of statutory interpretation, it seems to me that it requires us to say that the word minor in s 13(1)(a) of the act now means a person under the age of 18 years and to that extent ..... as mr malcolm was a minor at the time of the expiry of the prescriptive period, completion of prescription was delayed in terms of ss 13(1)(a) and (i) of the act, which read: if (a) the creditor is a minor ; and (i) the relevant period of prescription would, but for the provisions of this subsection, be completed before or on, or within one year after, ..... for present purposes they were summarised by corbett cj in the pericles gc[17]in the following terms: there is at common law a prima facie rule of construction that a statute (including a particular provision in a statute) should not be interpreted as having retrospective effect unless there is an express provision to that ..... had there been an amendment of the act when the childrens act came into operation there would ..... application of quintavalle) v secretary of state for health [2003] ukhl 13; [2003] 2 all er 113 (hl) paras 8-10 lord bingham .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... court made further findings that it viewed as supporting the first respondents version which, however, were not borne out by the record: for example, that her marriage was not challenged vigorously and was confirmed by the affidavits of the headman and solomzi and that her uncle confirmed payment of her lobola. ..... [14] the appeal was founded mainly on the grounds that the court below misdirected itself by: (a) accepting the first respondents marriage certificate as valid and sufficient proof of her marriage to the deceased despite its issue after his death; (b) not giving due weight to ntshukumos affidavit; and (c) not deciding who was the wife of the ..... [16] but, in the view i take of this ill-fated matter, it is neither necessary nor even proper to decide the validity of either of the alleged marriages.3the appellant is bound by the poor manner in which the relief she seeks was formulated in the notice of motion. ..... thus, the representations on the customary law rules applicable to the deceased on the necessity of a customary wifes consent to her husband to marry another wife and the requirements of a valid customary marriage and its dissolution, which we directed the parties to file, ex abundante cautela, in light of the constitutional court judgment in mm v mn and another 2013 (4) sa 415 (cc) 14, are ..... , no attempt was made to amend this prayer as well. ..... terms of s 47 of the transkei marriage act 120 of 1978 or s 8 of the recognition of customary marriages act 120 of 1998. 3. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... from the respondents alleged breach of the contract - which breach is alleged in the particulars of claim to have taken place on or about 13 may 2006 - did not interrupt the running of prescription in terms of s 15(1) of the prescription act and that a period of more than three years had lapsed since the alleged breach and the delivery of the notice of intention to amend the citation of the plaintiff or of the actual substitution of the appellant for solenta aviation workshops. ..... the details of the creditor given in the summons and in paragraph 1 of the particulars of claim were that: [t]he plaintiff is solenta aviation workshops (pty) ltd, a company, duly incorporated in accordance with the laws of the republic of south africa with domicilium citandi et executandi of (sic) block 5 stratford office park, corner cedar avenue and valley road, broadacres, johannesburg. ..... in dismissing the plea of res iudicata,the court a quo held that the application for amendment was interlocutory and the finding of potterill j was not one that finally disposed of an issue in the action between the parties.3in the result, the appellants claim was dismissed with costs, including the ..... it is alleged that, in dismissing the respondents objection to the proposed amendment, the court determined the identical issue between the identical parties now raised in the special plea and that the respondent is accordingly, and in addition, issue estopped on the issue raised in the special plea. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... the project manager of the appellant who deposed to the opposing affidavit, stated that mr mupariwa, director: planning services, the relevant official of the municipality, did not regard the proposed amendment to the sdp as sufficiently material to warrant notice thereof being advertised or served on other land owners in the area. ..... letter dated 23 november 2009 the head of the department of environmental affairs indicated that the proposed amendment to the sdp was acceptable subject to the conditions stipulated in the approval letter of 28 april ..... because, having regard their close proximity to the appellants development, they had an intrinsic interest in lawful administrative action and in particular a substantial interest in the lawful application of the planning and building plans which govern the area in which they live and conduct ..... [4] on 7 december 2009 the appellant applied to the municipality for an amendment to the mecs conditions of approval in terms of s 42(3)(a) of lupo so as to amend the site development plan (sdp) previously approved to allow for the expansion of the guesthouse ..... municipality failed to consider when approving the building plans was that its decision was susceptible to attack due to a lack of public participation and compliance with s 7(1)(a) of the building standards act, which requires that building plans comply with the requirements of the act and any other applicable law. ..... [2]see paola v jeeva no and others [2003] zasca 100; 2004 (1) sa 396 (sca) .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... and because the respondents litigate in their representative capacities, judgment in their favour will not enure for their personal benefit, but for the benefit of creditors.18 [17] in their founding affidavit in support of the application for amendment the respondents, as the liquidators, aver that at the first meeting of creditors held on 26 january 2005 they were authorised in general terms to institute any civil action in the name and on behalf of pro med, ..... the appellant objected to the proposed amendment on the basis that the notice of intention to amend was served more than three years after the debt became due; that pro meds claim had become prescribed in terms of s11 of the prescription act 68 of 1969 (the prescription act) and that it would be prejudiced (in the sense that it would be deprived of the opportunity to raise the defence of prescription) were pro med to be substituted as the new ..... present matter the particulars of claim disclose that the right sought to be enforced against the appellant arose from an agreement of purchase and sale allegedly concluded between the appellant and pro med on 27 february 2003 and in terms of which the appellant sold to pro med certain immovable property. ..... that the liquidator be and is hereby authorised to bring or defend in the name and on behalf of the close corporation any action or other legal proceedings of a civil nature and subject to the provisions of any other law relating to criminal procedure, and criminal proceedings. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... such rates is finally determined; (4) it is declared that the council of a municipality is obliged to comply with the provisions of the local government: municipal systems act 32 of 2000, the local government: municipal finance management act 56 of 2003 and the local government: municipal property rates act 6 of 2004 when it wishes to approve an amended budget with rates which are different from the rates in the budget which was tabled; (5) the first, second and third respondents, jointly ..... , and the council or such committee may not exclude the public, including the media, from a meeting, except when (a) it is reasonable to do so having regard to the nature of the business being transacted; and (b) a by-law or a resolution of the council specifying the circumstances in which the council or such committee may close a meeting and which complies with paragraph (a), authorises the council or such committee to close the meeting to the public. ..... a municipality adopts its rates policy it must follow, amongst other things, a process of community participation in accordance with chapter 4 of the systems act which accords with the notice and comment requirements prescribed in s 4(2) of the rates act;27 (4) a municipality must adopt by-laws to give effect to the implementation of its rates policy and these by-laws may differentiate between different categories of properties and different categories of owners of properties liable for payment of rates;28 (5) a municipality may, subject to .....
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