AMENDED RULE 32(2) AND “READING IN” APPROACH
Petersen NO v Romans Pizza Bochum [2021] 2020-18058 (GJ)
Plaintiffs seek summary judgment for arrear rental. Plaintiffs claim that defendant absconded from the commercial lease premises, but defendant alleges that there was a valid cancellation of the lease agreement as a result of a misrepresentation by the plaintiffs. Defendants also contend that the Johannesburg Division does not have jurisdiction, because the lease and surety were concluded in Limpopo, the defendants’ addresses are in Limpopo, as well as the commercial leased property.
Franck AJ discusses the amended Uniform Rule 32(2) and the Tumileng Trading case; the jurisdiction of the magistrates court and the Gauteng Local Division, Johannesburg; “a cause arising” and a cause of action [23]; the principle of causa continentia; and the contentions around the cancellation of the lease and the Consumer Protection Act.
The court finds that it is vested with jurisdiction and summary judgment is granted.
DRAWING INFERENCES AND HEARSAY EVIDENCE
Rautini v PRASA [2021] ZASCA 158 – Mr Rautini claimed damages from PRASA arising from an incident when he was thrown from the train and seriously injured. The trial court found for Mr Rautini and that PRASA was liable for his proven damages, but the full court upheld the appeal and dismissed the claim. The full court rejected Mr Rautini’s version about how the incident occurred and found that his version was inconsistent with the version contained in discovered documents, in particular the medical and the ambulance reports.
Molefe AJA discusses s 3(1) of the Law of Evidence Amendment Act 45 of 1988; the admissibility of hearsay evidence; the failure to cross-examine the appellant; the importance of expressly and adequately putting a version to the other party in cross-examination [23]; the rule of the drawing of inferences [24]; and that the full court relied heavily on inferences drawn from inadmissible hearsay evidence and evidence that was not substantiated or proven.
The appeal is upheld and the order of the full court replaced with one dismissing the appeal.
RULE 43 – AVAILABLE CAPITAL FOR MAINTENANCE
CC v NC [2021] ZAWCHC 227
The applicant seeks, in an application under Rule 43, maintenance pendente lite for herself and the three minor children and for a contribution towards her costs in the pending action. The respondent’s breach of the undertaking given by his former attorney, to pay certain expenses and a cash amount of R20,750 per month for maintenance, resulted in the institution of the current proceedings for interim relief.
Binns-Ward J discusses how the applicant had been employed during the marriage, but was retrenched reportedly because of the financial impact of the national Covid-19 lockdown; and the proposition that a spouse who cannot afford from his or her income to pay the other spouse maintenance in a given amount is obliged to draw on any available capital to do so [11].
The order is framed for the respondent to pay the expenses and a cash amount of R13,000 per month.
[18] It makes little sense to grant an interim maintenance order that will require the provider spouse to draw down materially on the available capital in a case in which it is apparent that the parties are likely to be heavily dependent for their post-matrimonial welfare on their joint, or to-be-equally-divided capital resources, and in which the likelihood is that the dependant spouse will, after the divorce, not be able to live in the style to which he or she was accustomed during the marriage. To do so would only redound to the parties common long-term detriment.
ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
You can read his full CV and more about Louis on his LinkedIn profile where he shares interesting and recent cases.
