Promotion of Access to Information Act 2 of 2000 : section 50 : meaning of ‘documents required’ : right relied upon to claim damages : in the context of litigation, documents must be reasonably required to formulate a claim : test not met in present matter : records requested not reasonably required to exercise or protect right relied upon.
Customary law: decision of the Commission on Traditional Leadership Disputes: whether implementation of the decision in terms of s 26(2) of the Traditional Leadership and Governance Framework Act 41 of 2003 (Old Act) required prior consultation with Royal Family under s 9 of the Old Act: whether implementation of the decision required compliance with provisions of s 10(1)(c) of the Old Act: implementation of the decision of the Commission did not require consultation in terms of s 9 of the Old Act: deeming provision under s 28 of the Old Act and s 26 of the New Act did not bestow status of king where the Commission did not uphold claim to kingship: provisions of s 10(1)(c) were not applicable.
Land: eviction under Extension of Security of Tenure Act 62 of 1997: appeal against an order of the Land Claims Court confirming the eviction order of a magistrate’s court on automatic review to it: nature of automatic review by the Land Claims Court: test on appeal: eviction order correctly confirmed by the Land Claims Court: constitutional obligation on municipality to provide emergency housing upon eviction: execution of the eviction order postponed and municipality ordered to provide emergency accommodation prior to execution of the order.
First appeal – appeal lapsing on account of failure to timeously prosecute it – application for condonation. Second appeal – discharge of provisional restraint order – failure on the part of presiding judge to bring an open and impartial mind to bear – proceedings before the high court on the return day set aside – provisional restraint order revived. Both appeals – sequestration - substitution of insolvent by trustees on appeal – leave to intervene by insolvent.
Adjudication by the National Energy Regulator of South Africa (NERSA), a statutory regulator, of tariff adjustment application by Eskom, a licensee with a license, inter alia, to distribute as principal supplier electricity in South Africa : nature of adjudication process and decision: administrative action: subject to review in terms of the Promotion of Access to Justice Act 3 of 2000: not, as suggested by NERSA and Eskom, immune from judicial scrutiny because it involved application of policy.
Price adjustment methodology discussed, interpreted and applied: whether decision by NERSA rational and whether adjudication process and decision unfair.
Discussion of deference to specialised administrative body.
Delict : premature discharge by doctor of patient from hospital due to unlawful strike : patient had sustained multiple fractures and was due for orthopaedic surgery : died shortly after discharge : cause of death not determined by pathologist : no reliable expert evidence on which negligence could be attributed to the hospital : inadequate preparation of action for loss of support : no thought given to holding hospital liable on the basis of failure to have in place emergency plans to deal with strikes : organisers of strike not joined as parties to litigation : in any event primary problem of lack of evidence relating to cause of death not overcome.
Appeal in terms of s 311 of the Criminal Procedure Act 51 of 1977: s 311 provides for an appeal as of right, without leave: question of law upheld: ‘intent to do grievous bodily harm’ not an element in a rape contemplated in Part I(c) of the Criminal Law Amendment Act 105 of 1997: conviction and sentence imposed by the regional court reinstated and matter remitted to the high court for appeal to proceed on sentence.
Sentence: premeditated murder: prescribed minimum sentence: in terms of the Criminal Law Amendment Act, 105 of 1997: what constitutes substantial and compelling circumstances: effect of failing to take into account certain aggravating factors: prescribed sentence not to be lightly deviated from: to be imposed if it is not disproportionate to the crime, the criminal and the needs of society.