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Mar 08 2012 (FN)

Gutsche Family Investments (Pty) Ltd. and Others Vs. Mettle Equity Gro ...

Court : South Africa Supreme Court of Appeal

On appeal from:South Gauteng High Court, Johannesburg. (Lamont J sitting as court of first instance): The appeal is dismissed with costs on the attorney and own client scale and including the costs of two counsel. JUDGMENT BRAND JA(NUGENT, MHLANTLA JJA AND BORUCHOWITZ et PETSE AJJA: [1] This is an appeal against the dismissal of a review application by Lamont J in the South Gauteng High Court, Johannesburg. The application was brought by the appellants in terms of s33(1) of the Arbitration Act 42 of 1965. It was aimed at an award in favour of the first respondent, Mettle Equity Group (Pty) Ltd (Mettle) by the second, third and fourth respondents, sitting as an arbitral appeal tribunal (the tribunal). The appeal to this court is with the leave of the court a quo. Both the application in the court a quo and the appeal to this court were opposed by Mettle only. [2] The issues that arose for determination will be best understood against the background that follows. The first appellant is a...

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Mar 08 2012 (FN)

Mm Vs. the State

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, 31March 2004. The appellant was arrested on 7April 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 11May 2009. [2] Two disturbing features emerge from that brief recital of events. The first is that it took four and a half yea...

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Mar 02 2012 (FN)

Francois Stephanus Cloete Vs. the State

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 Msim...

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Mar 02 2012 (FN)

New Balance Athletic Shoe Inc Vs. Abdullah Mohamed Dajee No. and Other ...

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...

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Mar 02 2012 (FN)

Counter Point Furnishers Cc Vs. Sm Fraser T/a Salica

Court : South Africa Supreme Court of Appeal

Leave to appeal from:South Gauteng High Court, Johannesburg (Mokgoatlheng J sitting as court of first instance). The application for leave to appeal is dismissed with costs. JUDGMENT SNYDERS JA (Brand, Bosielo, Leach and Wallis JJA concurring) [1] This is an application for leave to appeal referred for argument in court in terms of s 21(3)(c) of the Supreme Court Act 59 of 1959. Leave to appeal was sought from this court after Mokgoatlheng J in the court below granted provisional sentence and refused leave to appeal. After the matter was heard the application for leave to appeal was dismissed for the reasons that follow. [2] The relevant facts in the matter are common cause. The respondent sold an immovable property to the applicant in terms of a written agreement of sale. Clause 17.1 of the agreement reads: Should any party to this contract cause any delay in the Registration of transfer he/she shall from the day of the notification of his default, pay to the aggrieved party interest ...

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Feb 21 2012 (FN)

Jacob Mashinini and Another Vs. the State

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: (œLANGUAGE?) The contents of the statements of both appellants are similar save the fact tha...

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Mar 15 2011 (FN)

Barend Stephanus Smith Vs. the State

Court : South Africa Supreme Court of Appeal

On appeal from: Eastern Cape High Court (Grahamstown) (Jansen and Pickering JJ) (sitting as a court of appeal). 1. The appeal is upheld and the order of the court below is set aside. 2. The order of the court below is replaced with the following order: The appellant is granted leave to appeal against his convictions to the Eastern Cape High Court, Grahamstown. PLASKET AJA (CLOETE and MAYA JJA concurring): [1] The appellant was convicted, in the Regional Court, East London, of indecent assault and kidnapping. He was sentenced to seven years imprisonment, both counts being taken together for purposes of sentence. He applied to the trial magistrate for leave to appeal against both conviction and sentence. He was granted leave to appeal against sentence only. He then applied, by way of petition to the Judge President of the Eastern Cape High Court, Grahamstown in terms of s 309 of the Criminal Procedure Act 51 of 1977, for leave to appeal against his conviction. His petition was dismissed....

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Mar 14 2011 (FN)

Alliance Property Group (Pty) Ltd Vs. Alliance Group Limited and Anoth ...

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 respon...

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Mar 14 2011 (FN)

Eds South Africa (Pty) Ltd Vs. Nationwide Airlines (Pty) Ltd

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...

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Mar 14 2011 (FN)

Group Five Construction (Pty) Limited Vs. the Minister of Water Affair ...

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. Howe...

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