Court : South Africa Supreme Court of Appeal
..... however, as counsel for the appellants readily conceded, the fact of the matter is that this litigation is commercial in nature in that the appellants would not have sued had they not been making money out of their advertising (indeed the first appellants business is to place on outdoor advertisements). ..... the signs in question are illuminated outdoor signs of substantial dimensions: numbered 2 to 10 in the papers, presumably in order to link each to the correspondingly numbered appellant on whose property they are to be found. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... or juristic persons; (b) that being so, and as already set out in para 5 above, the institution of the proceedings on 20 october 2010 (to set aside the provisional winding-up order) and during march 2011 (for payment of further sums of moneys, later amended to compel production of certain documents and delivery of further information) occurred when awake solutions was non-existent; and, consequently, (c) the orders subsequently granted were a nullity and of no force and effect. ..... following another application launched by awake solutions against fintech and altron in the south gauteng high court during march 2011 for payment of further sums of money and disclosure of certain information relating to the co-operation agreement, an agreement was reached in terms of which fintech paid to awake solutions attorneys the amount of r72 310 in respect of profit share and r251 920,31 in respect of arrear ..... conclusion renders it unnecessary for me to get into the debate as to whether walker had the authority to launch awake solutions application against fintech during march 2011 for payment of further moneys and to compel fintech to produce certain information and to deliver certain documents. ..... what matters is that the moneys paid were due to awake solutions and what happened to those moneys is a matter between its liquidators and ..... the papers further include a telefax communication dated 3 july 2008 from advocate seboko to dos passos, confirming that a final winding-up order had been granted .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... irrelevant question as to what the entrenched ordinary course of business of regal bank may have been, the state stated: as at date of curatorship, the records of regal bank reflected that the bank had lent money to related parties to buy regal holdings shares to the amount of approximately 45-50% of its shares (at the value of approximately r190 million), with the sole security being the pledge of holdings shares to the bank. ..... the sole security for financing share purchases of regal holdings shares be those shares; not exercising proper corporate governance within regal bank and regal holdings; allowing the banks money to be utilised for the purchase of regal holdings shares by non-legal entities and the trusts; buying back the shares of its major shareholder, pekane; committing the offences contained in counts ..... it had already bought so many of its own shares with its own money that its share price would decline if it stopped buying, and the only way to prevent suffering a loss was to buy more shares ..... ) therefore, to use a colloquial expression,11the state cannot have both the money and the box: it cannot be heard to say in respect of count 5 that the eight million shares had not been sold to mettle but to contend on this count that such a sale ..... that he had raised concerns that certain share transactions had not been arms-length transactions and had involved money being lent by regal to purchase shares in the holding company. ..... that was put in the paper without our authority. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... [3] the high court (spilg j) held that irwings cancellation was good and dismissed mnganis claim.1it also held that whilst mngani was entitled to recover the moneys it had paid towards the purchase price of the property, irwing had demonstrated prima facie that it had suffered damages in an amount of r6.587 million, after it had resold the property to a third party for some r8.5 million ..... [4] the high court thus referred irwings counterclaim for trial and postponed judgment in respect of mnganis claim for repayment of the moneys (r5.375 million) it had paid towards the purchase price of the property pending adjudication of irwings counterclaim; it also ordered irwing to pay this amount into a trust account of an attorney in the interim. ..... was invalid the further question that arose was whether irwings purported cancellation amounted to a repudiation of the agreement entitling mngani itself to cancel the agreement, which it purported to do three days later, and recover the moneys it had paid towards the purchase price, ie r5.375 million. ..... generally the claim and counterclaim must sound in money.2in granting such an application for postponement, the court has a discretion which must be judicially exercised.3normally the court will not give judgment on a claim before the counterclaim has been determined because if conflicting ..... the only basis upon which the court below could have considered granting such an order, was, if there appeared from the papers some factual basis to do so. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... [6] the investigation was conducted by mr vincent john faris (faris) a senior accountant and auditor who is described in the papers as someone with a wide knowledge of attorneys accounting records and who has many years experience in auditing the accounting records of practising attorneys. ..... the high court said that, even assuming that he was presently practising as an attorney employed at a firm other than hepple attorneys incorporated and was not handling trust money, it was not satisfied that he could be trusted to practise at all as an attorney. ..... (3) the interest if any, on money deposited in terms of subsection (1) and the interest on money invested in terms of subsection (2) shall be paid over to the fund by the practitioner concerned at the prescribed time and in the manner prescribed. ..... i have already alluded to the fact that other than a statement from the bar by mr davis that the payment was authorised by a client, nowhere in the papers is there an explanation concerning this transaction. ..... earle admitted that the firm borrowed money from investors. ..... the money had been paid into the firms trust account. ..... hepple is currently practising not on his own account but as an employee at another firm of attorneys and is not handling trust money. ..... the court was not satisfied that he is capable of dealing responsibly with trust money. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... the upshot of this was that none of the students passed the long question paper, where the highest mark was 41 per cent and the lowest mark was 22 per cent. ..... however four students passed the short question paper, four failed the oral evaluations and only two students were found to be competent in the simulations. ..... his further comments on the paper do not, in my view, detract from the fairness of the examination and do not provide support for the contention that the november 2006 examination paper was unfair and aimed at failing the appellants students. ..... in my view the submissions by counsel regarding the november 2006 examination paper are without merit. ..... counsel relies for this submission on the report of dr cooke who was invited as an expert on the appellants behalf to consider, assess and evaluate the november 2006 examination papers. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... he was legally represented throughout the proceedings and r150 000 of the moneys subject to the restraint order were released by the ndpp for the payment of legal costs. ..... rossouw stated in his reply that the de vries statement, if attached to court papers, might prejudice his criminal trial and those of the other accused. ..... by the time the court below had seen the papers they had multiplied: not only were more facts placed on record by the ndpp but van staden himself had responded with four affidavits opposing confirmation and rebutting the affidavits deposed to on behalf of the ..... blignault j held that the ndpp had been in breach of his obligation to act fairly by relying on the oral evidence of de vries and not providing his affidavit in the papers that served in the application for the order ex parte. ..... the ndpp has shown on the papers, on the probabilities, that vat fraud was committed by at least three companies of which van staden is a director, and also the chief executive officer; that he must have had personal knowledge of the fraud because of his ..... it was not filed with the court papers for the reasons given below. ..... nor are van stadens allegations about being reduced to penury substantiated in the papers. ..... van staden cannot have been ignorant of the source of such a large amount of money. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from:western cape high court (cape town) (bozalek j sitting as court of first instance): the appeal is dismissed with costs. judgment heher ja (brand, lewis, malan and seriti jja concurring): [1] this is an appeal against the whole of the judgment and order delivered by bozalek j in the western cape high court, cape town in the exercise of its admiralty jurisdiction. the learned judge answered two stated questions in favour of the present respondents and dismissed the appellants claim with costs.1 [2] the appellant instituted an action in which it claimed a salvage reward from the first respondent (the vessel) and the second respondent (the cargo), arising from a salvage operation carried out by tugs belonging to the appellant on 2 april 2004 in the port of saldanha bay in which it is the statutory authority. the claim was defended. [3] pursuant to an agreed order in terms of rule 33(4), the following questions of law and fact were to be decided prior to and separately from the other matters in issue in the action: 1. whether the salvage operation carried out by the appellant in connection with the respondents was rendered voluntarily and not in the performance of a statutory and/or common law duty. 2. in the event of it being found that the salvage operation was carried out in performance of a statutory and/or common law duty, and accordingly, not voluntarily, as averred by the respondents in sub-paragraph 18.2.6 of the plea, whether the appellant was nonetheless .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... [12] before us, counsel for the purchaser submitted that the question to be decided by the court a quo, as formulated in the pleadings, was not whether the conveyancer, in whose hands the money was misappropriated, had acted as agent of the purchaser or of the seller or of both of them in receiving and holding the purchase consideration, but instead whether the purchaser had complied with the agreement between the purchaser ..... 4.3, 17.1 and 17.3 of the deed of sale and concluded: these clauses, and in particular clause 4.3, according to which the purchaser is entitled to interest earned on the money invested by the conveyancers, tilt the scales firmly in favour of the proposition that the conveyancers acted as the agents of the purchaser and not of the seller. ..... 4.6 should the purchaser raise issues after the in loco inspection, the conveyancer will be informed of outstanding issues to be addressed and lodgment of the registration papers will only take place on confirmation by the purchaser that the issues have been resolved. ..... 4.5 upon completion of the in loco inspection, the purchaser will instruct the conveyancer to lodge registration papers at the deeds office, provided it is confirmed by the purchaser that the property is in the same condition as at the date of ..... dispute between the parties seller and purchaser arose from the misappropriation by the appointed conveyancer of money paid into his trust account pending the registration and transfer of immovable properties. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... although it is undesirable to determine a genuine dispute of fact solely on the affidavits,26a court may, in the exercise of its discretion, refuse to do so where the probabilities on the papers do not favour the applicant.27to my mind, this is such a case. ..... repayment of moneys paid on behalf of senwesbel would take place by set-off against credits entered into the account. ..... in their answering papers, however, they not only disputed that s 38 was contravened but also contended that, if there had been a contravention, the agreements to buy and sell could be severed from the agreement to provide (or the actual provision of) ..... on the papers, no non-compliance by the company with s 85(8) of the act was established. .....
Tag this Judgment!