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Nov 29 2013 (FN)

Enver Mohammed Motala and Others Vs. Master of the High Court (North G ...

Court : South Africa Supreme Court of Appeal

On appeal from: South Gauteng High Court (Vermeulen AJ sitting as court of first instance): The appeal is dismissed with costs, such costs to include the costs of the applications for condonation, and are to be paid by the appellants jointly and severally, the one paying the other to be absolved. JUDGMENT WALLIS JA (BRAND, TSHIQI and WILLIS JJA and VAN DER MERWE AJA concurring: [1] On 28 July 2003 the first appellant, Mr Motala, was appointed jointly with three colleagues as the liquidator of Cement Board Industries (Pty) Ltd (CBI). In February 2005 the liquidators instituted an action before the South Gauteng High Court against the fifth respondent, Boake Incorporated (Boake Inc), a firm of accountants and auditors, and the sixth respondent, Mr Kevin Wiles. That action proceeded at a snails pace and, from a procedural perspective, was still ongoing in August 2010, when Mr Wiles attorney discovered that CBI had been dissolved in terms of s 419 of the Companies Act 61 of 1973 (the Act)....

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Nov 29 2013 (FN)

Dr Js Moroka Municipality and Others Vs. Bertram (Pty) Limited and Ano ...

Court : South Africa Supreme Court of Appeal

On appeal from: North Gauteng High Court, Pretoria (Hiemstra AJ sitting as court of first instance): 1. The appeal succeeds with costs, including the costs of two counsel. 2. The order of the court a quo is set aside and is substituted with the following: The application is dismissed with costs, including the costs of two counsel where so employed. JUDGMENT LEACH JA (BRAND, MAYA, BOSIELO AND WALLIS JJA CONCURRING) [1] The cardinal issue arising in this appeal is whether a municipality was justifiably entitled to disqualify a tender supported by a copy of a tax clearance certificate when the invitation to tender had called for an original certificate to be provided. The court a quo held that the municipality had erred in disqualifying the tender for that reason alone and granted relief designed to ensure the disqualified tender was evaluated. With leave of the court a quo, this appeal lies against that order. [2] A need for toilets gave rise to the tender at the heart of this dispute. I...

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Nov 29 2013 (FN)

Kingswood Golf Estate (Pty) Ltd. Vs. Jonathan Mark Witts-hewinson and ...

Court : South Africa Supreme Court of Appeal

On appeal from: Western Cape High Court, Cape Town (Meer J sittingas court of first instance): 1. The appeal is upheld. 2. The respondents are directed to pay the appellants costs in the appeal, including the costs of two counsel, jointly and severally. 3. The order of the court a quo is set aside and replaced with the following: 3. 1 The application is dismissed. 3.2 The applicants are ordered, jointly and severally, to pay the respondents costs, including the costs occasioned by the employment of two counsel. JUDGMENT BOSIELO JA(Brand, Ponnan, Cachalia and Shongwe JJA concurring): [1] This is an appeal against the judgment and order of the Western Cape High Court (Meer J) granted on17 September 2012 in terms whereof the court granted the following order: IT IS ORDERED: 1. It is declared as follows: 1.1 In terms of the deed of sale concluded between the applicants and the first respondent, a copy of which is Annexure œJWH2? to the founding affidavit of the first applicant, the f...

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Nov 29 2013 (FN)

Pezula Private Estate (Pty) Ltd. Vs. Neil Metelerkamp and Another

Court : South Africa Supreme Court of Appeal

On appeal from: Western Cape High Court, Cape Town (Saldanha J sitting as court of first instance): 1. The appeal is upheld with costs. 2. The order of the high court is set aside and replaced with the following: The application is dismissed with costs. JUDGMENT THERON JA (BRAND, TSHIQI, PETSE JJA and ZONDI AJA concurring): [1] This is an appeal, with the leave of the court a quo, against an order declaring that the first respondent, Mr Neil Metelerkamp, acquired a servitude of unhindered pedestrian access along a defined route over property owned by the appellant, Pezula Private Estate (Pty) Ltd (Pezula), in favour of his, Metelerkamps, property. [2] Pezula is the registered owner of the remainder of the Farm Noetzie No 394 (the Pezula property) and Mr Metelerkamp is the registered owner of erf 28 of Portion 384 Noetzie and he has been the registered owner of that property since 2 September 1970. Pezulas predecessor in title in respect of the property was Geo Parkes and Sons (Pty) Ltd...

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Nov 29 2013 (FN)

Kievits Kroon Country Estate (Pty) Ltd. Vs. Johanna Mmoledi

Court : South Africa Supreme Court of Appeal

On appeal from:Labour Appeal Court (Tlaletsi, Ndlovu JJA and Murphy AJA concurring sitting as court of appeal): The appeal is dismissed with costs, including the costs of two counsel. JUDGMENT CACHALIA JA (BRAND, LEACH, WILLIS JJA AND ZONDI AJA CONCURRING): [1] The appellant, Kievits Kroon Country Estate (Pty) Ltd, is a company that offers conference and leisure facilities to its clients. It has two hundred employees, one of whom was the respondent, Ms Johanna Mmoledi. The appellant charged her with misconduct for disobeying an instruction to report for duty and being absent from work without permission. A disciplinary inquiry found her guilty and recommended her dismissal on 15 June 2007. The appellant dismissed her the following day. She referred the dispute to the Commission for Conciliation, Mediation and Arbitration (the CCMA), which found that her absence from duty was caused by circumstances beyond her control. It accordingly held her dismissal substantially unfair and ordered h...

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Nov 29 2013 (FN)

Joan Shannon Jakins (Nee Dell)) Vs. Michelle Baxter and Another

Court : South Africa Supreme Court of Appeal

On appeal from: Full Court of the Eastern Cape, Grahamstown (Van Zyl, Nhlangulela JJ and Bacela AJ concurring sitting as court of appeal): 1 The appeal is upheld with costs, such costs to be paid out of the estate of the late Norman Emslie Jakins. The order of the court below is set aside and substituted with the following order: 1.1 The appeal is dismissed with costs, such costs to be paid out of the estate of the late Norman Emslie Jakins. 1.2 The order of the high court is confirmed but amended as follows: 1.2.1 The decision of the Master of the High Court, Grahamstown, not to uphold the objection of the applicant lodged against the First and Final Liquidation and Distribution Account in the estate of the late Norman Emslie Jakins, in relation to the proceeds of the Old Mutual Flexi-life Policy in the name of the erstwhile Norman Emslie Jakins (Policy Number 12383353), is set aside. 1.2.2 It is declared that the applicant is entitled to payment of the proceeds of the life policy ref...

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Nov 29 2013 (FN)

Alex Dikeledi Mahlase Vs. the State

Court : South Africa Supreme Court of Appeal

On appeal from:Limpopo High Court, Thohoyandou (Makgoba J sitting as a court of first instance): The appeal against sentence is upheld to the limited extent reflected herein below. a) The individual sentences of five years imprisonment each imposed by the trial court in counts 3, 4, 5 and 6 “ kidnapping - are confirmed. All four sentences are ordered to run concurrently. b) The sentences imposed by the trial court in counts 1 and 2 are set aside and substituted as follows: I) Count 1“ Robbery “ The accused is sentenced to 12 years imprisonment. ii) Count 2 “ Rape “ The accused is sentenced to 15 years imprisonment . Iii) The sentences in counts 1 and 2 are ordered to run concurrently. JUDGMENT Tshiqi JA (Lewis and Theron JJA concurring): 1] The appellant, was convicted and sentenced in the Limpopo High Court, Thohoyandou (Makgoba AJ) as follows: I) Count 1 “ Robbery with aggravating circumstances “ sentenced to 20 years imprisonment; ii) Count ...

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Nov 29 2013 (FN)

Vincent Olebogang Magano Vs. the State

Court : South Africa Supreme Court of Appeal

On appeal from:North West High Court (Khumalo J sitting as court of first instance): The appeal is upheld and the sentence of life imprisonment imposed on the appellant is set aside and replaced by a sentence of 20 years imprisonment, antedated to 26 May 1999. JUDGMENT WALLIS JA (MAYA, TSHIQI, MAJIEDT and PILLAY JJA concurring) [1] On 1 February 1999 Mr Magano shot and killed Ms Refilwe Selau after she had terminated their relationship of three years standing, a relationship that he had expected would lead to marriage later that year. The shooting took place in his motor car whilst it was parked at Victoria Hospital in the district of Molopo. Immediately after the shooting he drove away towards a place called Signal Hill. Whilst en route he stopped the car and in a bid to commit suicide turned the gun on himself. After several unsuccessful attempts to shoot himself through the temple, he shot himself in the forehead. This caused him to pass out, but he survived with significant injurie...

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Nov 29 2013 (FN)

Zaibonisha Herman Vs. the State

Court : South Africa Supreme Court of Appeal

On appeal from: South Gauteng High Court, Johannesburg (Willis J and Randera AJ sitting as a court of appeal): The appeal is dismissed. JUDGMENT Tshiqi JA (Lewis and Theron JJA concurring): [1] On the evening of 18 January 2006 around 20h00, Tamsin Herman (Tamsin), an adopted 21 month old child was brought by her parents, the appellant and her husband, Mr Herman, to the Garden City Hospital. Upon arrival nurse L Van der Linde, who admitted her, and later, Dr Moosa, who attended to her, observed that Tamsin was very ill; she was extremely pale, anaemic, cold to the touch, dehydrated, had a poor pulse, a dry tongue and had difficulty breathing. She had bruises on various parts of her body. [2] Despite attempts by doctors and staff at Garden City Hospital to save her life, she sadly died following surgery to repair her ruptured liver on 21 January 2006. On 23 January 2006, Dr Kevin Fourie, a state forensic pathologist performed an autopsy and found the following injuries: (i) An old elbow...

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Nov 28 2013 (FN)

Lucky Mashudu Makhokha Vs. the State

Court : South Africa Supreme Court of Appeal

On appeal from Limpopo High Court, Thohoyandou (Lukoto AJ sitting as court of first instance): The appeal is upheld. The convictions of the appellant are set aside. JUDGMENT Lewis JA (Brand and Cachalia JJA concurring): [1]On 19 January 2005 the appellant was convicted by the Limpopo High Court (Thohoyandou) (Lukoto AJ) on one count of theft and one of robbery, and sentenced to imprisonment of six years and 15 years respectively, the sentences to run consecutively. That court (per Snyman AJ) refused the appellants application for leave to appeal. Some four years later this court granted leave to appeal against both conviction and sentence. The appellant has been imprisoned for the past eight years. [2] The sole basis for the conviction was a statement made by the appellant to an Inspector Ramovha. The statement was introduced by the State when Ramovha was giving evidence. He read it into the record. The appellant did not, during the course of the trial, contest the admissibility of the...

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