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Mar 31 2014 (FN)

Tshakwata Gerson and Another Vs. the State

Court : South Africa Supreme Court of Appeal

On appeal from:Limpopo High Court, Thohoyandou (Makgoba J sitting as court of first instance): The appeal is upheld and both the convictions and resultant sentences are set aside. JUDGMENT Petse JA (Navsa and Theron JJA concurring): [1] The two appellants ” together with four others who do not feature in this appeal ” were convicted in the Limpopo High Court (Makgoba J) on one count of murder. Each was subsequently sentenced to imprisonment for life. They each appeal against their convictions and resultant sentences with leave of the high court (Ebersohn AJ). [2] The appellants who were accused 5 and 6 at the trial (and their four co-accused) pleaded not guilty and elected not to disclose the basis of their defence. The death of the deceased was not in dispute. It appears that her death was as a result of a ritual killing. This is evident from the extreme mutilation of the body. What was in issue was the identity of the persons who caused her death. Several witnesses were c...

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Mar 28 2014 (FN)

Thuthukani Ndlanzi Vs. the State

Court : South Africa Supreme Court of Appeal

On appeal from: The South Gauteng High Court, Johannesburg (Willis J and Bashall AJ sitting as a court of appeal): 1. The appeal against the conviction in count 1 (murder) is upheld. 2. The conviction of murder is set aside and replaced with a conviction of culpable homicide. 3. The sentence imposed by the court below in respect of the count of murder is set aside and replaced with the following: The accused is sentenced to imprisonment for five years, two years of which is suspended for five years on condition that the appellant is not convicted of culpable homicide arising from the driving of a motor vehicle during the period of suspension. 4. The convictions and sentences in respect of counts 2, 3, 4 and 5 are confirmed. The sentences are and ordered to run concurrently with the sentence in respect of count 1. 5. The order cancelling the appellants drivers licence issued under licence number 2[] is confirmed. JUDGMENT Bosielo JA (Mhlantla and Petse JJA and Swain and Mathopo AJJA con...

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Mar 28 2014 (FN)

Esorfranki Pipelines (Pty) Ltd. and Another Vs. Mopani District Munici ...

Court : South Africa Supreme Court of Appeal

On appeal from: North Gauteng High Court, Pretoria (Matojane J sitting as court of first instance): 1. The first and second appellants appeal against the orders in paras 2 and 3 of the order of the high court is upheld with costs including the costs of two counsel, such costs to be paid jointly and severally by the first and the third to fifth respondents on the scale as between attorney and client. 2. The aforesaid orders are set aside and are substituted with the following orders: (a) Any contract entered into between the first respondent and the third to fifth respondents pursuant to the award of the tender to the respondents for the construction of a pipeline between the Nandoni dam and the Nsami water treatment works (Nandoni to Giyani Pipe Project; project number LPR018), is declared void ab initio and is set aside. (b) The first respondent is ordered to formally approach the Department of Water Affairs within seven days of the granting of this order to request that Department to...

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Mar 28 2014 (FN)

Comwezi Security Services (Pty) Ltd. and Another Vs. Cape Empowerment ...

Court : South Africa Supreme Court of Appeal

On appeal from: Western Cape High Court, Cape Town (Traverso DJP sitting as court first instance): 1. The appeal is dismissed with costs including those of two counsel. 2. The period of ten days in para 21.2 of the order of the high court dated 5December 2012 is to be construed as a reference to ten days from the date of this judgment. JUDGMENT Van Zyl AJA (Mpati P, Lewis, Bosielo and Wallis JJA concurring) [1] The issue which arises for decision in this appeal requires us to consider the conflict between two principles of law expressed as follows: A œ[p]arty may not repudiate a contract and at the same time seek the advantage of a stipulation in the very contract he has repudiated?. What is the theory that justifies such a principle? Against it there is the argument that an unaccepted repudiation is a œthing writ in water? not affecting legal rights in any way . . . and that therefore all contractual rights remain available to the repudiating party.[1] [2] The background f...

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Mar 28 2014 (FN)

Leeroy Benson Vs. the State

Court : South Africa Supreme Court of Appeal

On appeal from:Western Cape High Court, Cape Town (Griesel J and Dolamo AJ sitting as court of appeal): 1. The appeal is upheld. 2. The order of the high court is set aside and the following is substituted therefor: The conviction and sentence on the charge of murder are set aside. JUDGMENT Willis JA (Ponnan and Maya JJA concurring): [1] The appellant was arraigned before the regional court in Somerset-West on a charge of murder. He was found guilty and sentenced to 12 years imprisonment, of which five years were suspended on appropriate conditions, the magistrate having found that there were substantial and compelling circumstances which justified a departure from the prescribed minimum sentence provided for in the Criminal Law Amendment Act 105 of 1997. [2] The appellant applied to the magistrate for leave to appeal against his conviction only, which leave was granted. Although the Western Cape High Court (Griesel J and Dolamo AJ) dismissed the appeal, it granted the appellant, on ap...

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Mar 28 2014 (FN)

Court : South Africa Supreme Court of Appeal

On appeal from: North Gauteng High Court, Pretoria (De Vos J sitting as court of first instance): 1. The appeal is upheld; 2. The order of the high court is set aside; 3. The following order is substituted for that of the high court: (i) The fideicommissa established in terms of the wills of the late J[] A[] J[] B[], dated 20 March 1969 and the late J[] H[] B[], dated 26 March 1969 entitle J[...] B[] (Identity number 0[]) to inherit such bequest as her late father, J[] B[], would have inherited were he still alive; (ii) The executor of the estate of the late B[] C[] B[] is to distribute the properties subject to the fideicommissa established in terms of the said wills to J[] A[] J[] B[] and J[...] B[] as fideicommissaries respectively, J[...] to inherit per stirpes; (iii) The fideicommissa established in terms of the aforesaid wills of the late J[] A[] J[] B[] and the late J[] H[] B[] will terminate in respect of the fideicommissary bequest to J[...] such that she receives ownership un...

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Mar 28 2014 (FN)

Takalani Eric Nthabalala Vs. the State

Court : South Africa Supreme Court of Appeal

On appeal from Limpopo High Court, Thohoyandou (Hetisani J sitting as court of first instance): 1. The appeal against sentence is upheld. 2. The sentences imposed by the court a quo in consequence of the appellants conviction of one charge each of rape and culpable homicide are set aside and substituted as follows: 2.1 On the rape, the accused is sentenced to 20 years' imprisonment. 2.2 On the culpable homicide, the accused is sentenced to ten years' imprisonment. 2.3 Five of the ten years imprisonment imposed on the accused in respect of the culpable homicide is ordered to run concurrently with the 20 years on the rape charge. The effective sentence imposed on the appellant is 25 years imprisonment. 2.4 The sentences are hereby ante-dated to 30 August 2000 being the date on which the appellant was sentenced. JUDGMENT LEGODI AJA (PONNAN and PETSE JJA CONCURRING) [1] This is an appeal against the imposition of terms of imprisonment of 16 and 45 years imposed upon the appellant, Mr Takal...

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Mar 28 2014 (FN)

Gb Mining and Exploration Sa (Pty) Ltd. Vs. the Commissioner for the S ...

Court : South Africa Supreme Court of Appeal

On appeal fromthe Tax Court, Pretoria, (Mokgoatlheng P sitting as court of first instance): 1. The appeal is dismissed save in the respects set out in paragraphs 2 and 3 below. 2. The penalties raised by the respondent in respect of the OTR amount and the travelling expenses are remitted in their entirety. 3. The order directing the appellant to pay the respondents costs in the court a quo is set aside. 4. The respondent is ordered to pay 10 per cent of the appellants costs in the appeal. JUDGMENT Swain Aja(Navsa, Shongwe, Theron and Wallis JJAconcurring): [1] The appellant GB Mining and Exploration SA (Pty) Ltd (GB Mining) was the subject of revised assessments for the tax years 2003 “ 2006 issued by the respondent, the Commissioner for the South African Revenue Service (the Commissioner). [2] GB Mining objected to the assessments. The Commissioner disallowed the objection in respect of the 2003 tax year and partially disallowed the objection in respect of the remaining tax year...

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Mar 28 2014 (FN)

Bapedi Marota Mamone Vs. the Commission of Traditional Leadership Disp ...

Court : South Africa Supreme Court of Appeal

On appeal from: North Gauteng High Court, Pretoria (Makgoba J sitting as court of first instance). The appeal is dismissed with costs that include the costs of two counsel. JUDGMENT Maya JA: (Leach, Theron and Willis JJA and Mocumie AJA concurring) [1] This is an appeal against the judgment of the North Gauteng High Court (Makgoba J) dismissing an application for the review, setting aside and remittal for reconsideration of a decision taken by the first respondent, the Commission of Traditional Leadership Disputes and Claims (the commission), and ancillary relief. The commission and the fourth and fifth respondents opposed the proceedings in the court below and the second and third respondents abided the courts decision. Only the appellant and the commission are involved in this appeal, brought with the leave of this court. [2] The appellant is a traditional authorityrecognised as such in terms of the Traditional Leadership and Governance Framework Act 41 of 2003 (the Act)[1] and s 211...

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Mar 28 2014 (FN)

GavIn Cecil Gainsford No and Others Vs. Tanzer Transport (Pty) Limited ...

Court : South Africa Supreme Court of Appeal

On appeal from: South GautengHigh Court, Johannesburg (Saldulker J sitting as court of first instance): 1. The appeal is upheld with costs including the costs of two counsel. 2. The legal representatives of the respondent will only be entitled to recover fifty per cent of their costs from the respondent in respect of the heads of argument. 3. The order of the high court is set aside and replaced with the following: (a) In the application under case no 2252/10 the following order is made. (i) The under-mentioned payments made by Costa Logistics SA (Pty) Ltd (in liquidation) to the respondent are declared to be void in terms of s 341(2) of the Companies Act 61 of 1973. 05/03/2009 “ R1651681.14 05/03/2009 “ R1078542.53 05/03/2009 “ R4899817.15 01/04/2009 “ R1887596.85 01/04/2009 “ R4718524.19[1] (ii) The respondent is to pay the amounts in paragraph (i) above to the applicants. (iii) The respondent is to pay the applicants party and party costs. (b) The appli...

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