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April 2013

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases of interest in the April reports. Also included below are the table of cases and flynotes.

JUDGMENTS OF INTEREST IN THE APRIL EDITIONS OF THE SALR AND THE SACR

SOUTH AFRICAN LAW REPORTS

Remedy for oppressive conduct of holding company

Under s 163 of the new Companies Act, the directors and shareholders sought to sever the ties between their company and a holding company that they claimed was involved in fraud relating to black economic empowerment, which conduct was prejudicing their interests and reasonable commercial expectations. Peel and Others v Hamon J & C Engineering (Pty) Ltd and Others 2013 (2) SA 331 (GSJ)

Road accident payments and compensation for occupational injuries

An undertaking by the Road Accident Fund in respect of future medical costs may not be made subject to provisions regarding the recovery of damages from third parties in the Compensation for Occupational Injuries Act. Doing so would require the plaintiff to do more than simply prove medical costs incurred. Paterson NO v Road Accident Fund and Another 2013 (2) SA 455 (ECP)

Conveyancer's liability for losses caused by delayed transfer

Conveyancers should be fastidious in the preparation of their documents, and when lodging documents must ensure that they meet the requirements of the deeds office at that time. The Supreme Court of Appeal looks at a case where transfer was delayed when the deeds office twice rejected mortgage-bond cancellation documentation as a result of mistakes in their preparation. Margalit v Standard Bank of South Africa Ltd and Another 2013 (2) SA 466 (SCA)

SOUTH AFRICAN CRIMINAL LAW REPORTS

Deprived childhood not excusing multiple serious offences

The accused had been raised by a single mother and had never known his father. He had clashed with the law from a young age and had been sent to a reform school. But none of this could sway his life sentences, because he had committed progressively more serious crimes, culminating in rape and murder. S v Sape 2013 (1) SACR 330 (GNP)

Implications of admission of guilt fine not explained

A father paid his son’s admission of guilt fine, to get him out of the police holding cells. The son was released, thinking that bail had been paid. Years later the son tried to travel overseas and found out that he had a criminal record. There was no documentation that the implications of the admission of guilt fine had been explained to him. An admission of guilt fine cannot be used as a bargaining tool by the police when asked to release a detainee. The conviction and fine were set aside. S v Tong 2013 (1) SACR 346 (WCC)

The bitter taste of smuggled abalone

In a case of illegal trading in abalone, the state had to prove a pattern of racketeering activity, and relied on the interception of cellphone calls. These calls detailed the participation of the various accused in the smuggling enterprise, and added to the weight of evidence proving their direct involvement in the offences charged. S v Roberts and Others 2013 (1) SACR 369 (ECP)

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SOUTH AFRICAN LAW REPORTS

TABLE OF CASES

  • FirstRand Bank Ltd t/a Honda Finance v Owens 2013 (2) SA 325 (SCA)

  • Peel and Others v Hamon J & C Engineering (Pty) Ltd and Others 2013 (2) SA 331 (GSJ)

  • Minister of Defence v Von Benecke 2013 (2) SA 361 (SCA)

  • Living Hands (Pty) Ltd and Another v Ditz and Others 2013 (2) SA 368 (GSJ)

  • JDJ Properties CC and Another v Umngeni Local Municipality and Another 2013 (2) SA 395 (SCA)

  • Siyepu and Others v Premier, Eastern Cape 2013 (2) SA 425 (ECB)

  • Scania Finance Southern Africa (Pty) Ltd v Thomi-Gee Road Carriers CC and Another Case 2013 (2) SA 439 (FB)

  • Union Finance Holdings (Pty) Ltd v Bonugli and Another NNO 2013 (2) SA 449 (GSJ)

  • Paterson NO v Road Accident Fund and Another 2013 (2) SA 455 (ECP)

  • Roestorf and Another NNO v Johns 2013 (2) SA 459 (KZD)

  • Margalit v Standard Bank of South Africa Ltd and Another 2013 (2) SA 466 (SCA)

  • Hennie Lambrechts Architects v Bombenero Investments (Pty) Ltd 2013 (2) SA 477 (FB)

  • Maigret (Pty) Ltd (in Liquidation) v Command Holdings Ltd and Another 2013 (2) SA 481 (WCC)

  • Balkind v Absa Bank 2013 (2) SA 486 (ECG)

  • Sandown Travel (Pty) Ltd v Cricket South Africa 2013 (2) SA 502 (GSJ)

  • Du Plooy v Venter Joubert Inc and Another 2013 (2) SA 522 (NCK)

  • Heroldt v Wills 2013 (2) SA 530 (GSJ)

  • Mkhwanazi v Quarterback Investment (Pty) Ltd and Another 2013 (2) SA 549 (GSJ)

  • Bosasa Operations (Pty) Ltd v Basson and Another 2013 (2) SA 570 (GSJ)

  • South African Association of Personal Injury Lawyers v Minister of Justice and Constitutional Development (Road Accident Fund, Intervening Party) 2013 (2) SA 583 (GSJ)

  • Motswagae and Others v Rustenburg Local Municipality and Another 2013 (2) SA 613 (CC)

  • Children’s Institute v Presiding Officer, Children’s Court, Krugersdorp, and Others 2013 (2) SA 620 (CC)

  • Tjatji v Road Accident Fund and Two Similar Cases 2013 (2) SA 632 (GSJ)

FLYNOTES

FIRSTRAND BANK LTD t/a HONDA FINANCE v OWENS (SCA)

LEWIS JA, MHLANTLA JA, TSHIQI JA, ERASMUS AJA and PLASKET AJA

2012 NOVEMBER 15, 23

Credit agreement—Consumer credit agreement—Debt review—Termination—Notice—Credit provider not required to give notice in terms of s 129(1)(a) where notice of termination given in terms of s 86(10)—National Credit Act 34 of 2005, ss 86, 129 and 130.

PEEL AND OTHERS v HAMON J & C ENGINEERING (PTY) LTD AND OTHERS (GSJ)

MOSHIDI J

2012 JUNE 8; NOVEMBER 16

Company—Oppressive conduct—What constitutes—Holding company involved in fraud relating to black economic empowerment—Directors and shareholders, invoking new Companies Act, seeking to sever ties between their company and holding company—Interests and reasonable commercial expectations of applicants clearly prejudiced—Conduct of holding company oppressive of applicants—Companies Act 71 of 2008, s 163.

Company—Oppressive conduct—Relief—Nature and scope—Broadening of relief in new Companies Act—General nature and scope of relief from oppression discussed—New ground, namely conduct unfairly disregarding interests of applicant, created—Relief extended to directors, not only shareholders—Conduct of company or ‘related person’ (holding company or subsidiary) relevant—Companies Act 71 of 2008, s 163 compared with Companies Act 61 of 1973, s 252.

Arbitration—Arbitration agreement—Effect—Court proceedings—Court’s jurisdiction not ousted by arbitration agreement (i) where party wishing to rely on it unable to show that agreement applicable to dispute between parties, or (ii) where entity that is supposed to conduct arbitration lacking power to grant relief claimed.

MINISTER OF DEFENCE v VON BENECKE (SCA)

HEHER JA, MALAN JA, THERON JA, WALLIS JA and SALDULKER AJA

2012 NOVEMBER 2, 15

Delict—Specific forms—Vicarious liability—Liability of employer for delictual acts of employee—Where appellant’s employee supplied parts of assault rifle rendering it usable in robbery during which respondent had been shot—Standard test (pre-constitutional) for vicarious liability might not have provided remedy—Development and extension of rule to accommodate particular set of facts—If constitutional norms so dictated, not necessary to limit proximity—Defence force employer requiring different approach to liability for wrongful acts of employees—Intimate connection between employee’s delict and employment—Appeal dismissed.

LIVING HANDS (PTY) LTD AND ANOTHER v DITZ AND OTHERS (GSJ)

MAKGOKA J

2012 JUNE 11–12; SEPTEMBER 11

Company—Shares and shareholders—Shareholders—Duty of care to company—Sale by financial institution of entire shareholding in trust company—Purchasers looting trust funds—Claim by trustees against financial institution on ground that it failed to ensure that purchasers would not act to detriment of trust beneficiaries—Court refusing, on public policy grounds, to extend liability to shareholder such as financial institution—Court upholding shareholder’s exception to claim.

Delict—Specific forms—Pure economic loss—Whether recoverable—Duty of shareholders to prevent financial loss to company—Whether to be imputed—Public policy—Risk of indeterminate liability for shareholders—Financial institution selling its entire shareholding in trust to third parties who proceeded to loot trust moneys to detriment of beneficiaries—Claim by original trustees—Whether nexus between disposal of shares and dissipation of funds sufficient to found delictual liability—Court upholding financial institution’s exception to claim on public policy grounds.

Financial institution—Duties—Fiduciary duty—Fiduciary duty of financial investment institution to its investors—Duty to prevent dissipation of invested funds—New owners of trust directing financial institution to liquidate trust’s entire investment portfolio—Trust funds looted by new owners—Delictual, contractual and statutory liability of financial institution discussed—Having nonchalantly handed over funds in circumstances in which obliged not to expose them to unacceptable risk—Court dismissing exception to claim for damages by trustees.

Prescription—Pleading—Special plea appropriate—Exception inappropriate since plaintiff might wish to replicate and plead facts showing that prescription having been interrupted.

JDJ PROPERTIES CC AND ANOTHER v UMNGENI LOCAL MUNICIPALITY AND ANOTHER (SCA)

LEWIS JA, HEHER JA, THERON JA, PILLAY JA and PLASKET AJA

2012 NOVEMBER 8, 29

Administrative law—Administrative action—What constitutes—Municipality’s approval of building plan involving relaxation of parking-place and sidespace requirements—Adversely affecting rights of property owner and business across road, and having direct, external legal effect—Promotion of Administrative Justice Act 3 of 2000, s 1.

Practice—Parties—Locus standi—Landowner—Seeking review of municipality’s approval of developer’s building plan for site across road—Townplanning scheme operating in favour of land and business owners and this giving them standing—Constitution, s 38(a).

STYEPU AND OTHERS v PREMIER, EASTERN CAPE (ECB)

ALKEMA J

2011 SEPTEMBER 8

Contract—Enforceability—Whether undertaking enforceable—Correct approach—Animus contrahendi versus wrongfulness—Weight of authority requiring question of enforceability of undertaking to be dealt with in light of common intention of parties to be bound, not wrongfulness—Semble: Criterion of (subjective) common intention failing to determine whether obligation in question enforceable at law—Enquiry should rather focus on wrongfulness/legal convictions of society.

SCANIA FINANCE SOUTHERN AFRICA (PTY) LTD v THOMI-GEE ROAD CARRIERS CC AND ANOTHER CASE (FB)

SNELLENBERG AJ

2012 APRIL 26; JUNE 7; JULY 19

Company—Winding-up—Application—Application under new Companies Act—Applicant may approach court on ground of company’s inability to pay its debts as intended in old Companies Act (may rely on deeming provision)—Not necessary to prove insolvency—But just-and-equitable ground for winding-up as used in new Act to be more widely interpreted than under old Act—Companies Act 61 of 1973, ss 344(f) and 345; Companies Act 71 of 2008, s 81.

UNION FINANCE HOLDINGS (PTY) LTD v BONUGLI AND ANOTHER NNO (GSJ)

VAN OOSTEN J

2012 APRIL 24; MAY 9

Prescription—Extinctive prescription—Defence of prescription—When it may be raised—Interlocutory proceedings—Defence of prescription may be raised in interlocutory proceedings if common cause, or claim or right to claim known to have prescribed.

Prescription—Extinctive prescription—Period of prescription—Delay in completion—By reason of reciprocity of debts arising from same contract—Whether debts reciprocal—Interdependency of obligations—Agreement for restructuring of loan account by reversal of incorrect entries relating to credits and debits—Reversal occurring ex lege in order to reflect correct statement of account—No interdependency of obligations and no indication that obligations undertaken in exchange for each other—No reciprocity of debts resulting in delay of prescription—Prescription Act 68 of 1969, s 13(2).

PATERSON NO v ROAD ACCIDENT FUND AND ANOTHER (ECP)

MALUSI AJ

2012 APRIL 19, 26

Motor vehicle accident—Compensation—Claim against Road Accident Fund—Undertaking by RAF in respect of certain future medical costs—Undertaking may not be made subject to section of COIDA that regulates recovery of damages from third parties—Would require plaintiff to do more than simply prove medical costs incurred—Prohibition applying whether undertaking given before or after final judgment in action—Road Accident Fund Act 56 of 1996, s 17(4) read with Compensation for Occupational Injuries and Diseases Act 130 of 1993, s 36.

ROESTORF AND ANOTHER NNO v JOHNS (KZD)

LOPES J

2012 JUNE 18, 28

Company—Directors and officers—Director/manager—Liability to shareholders for loss resulting from his or her conduct—Majority shareholders (plaintiffs) could have passed resolution authorising action on behalf of company to recover loss—No attempt however made by plaintiffs to recover loss on behalf of company—Fact that plaintiffs’ shareholding in company affected by defendant’s conduct not per se giving them right of action against director/manager—Action not falling outside rule in Foss v Harbottle or within any of exceptions to that rule.

MARGALIT v STANDARD BANK OF SOUTH AFRICA LTD AND ANOTHER (SCA)

NUGENT JA, LEACH JA, PILLAY JA, SOUTHWOOD AJA and ERASMUS AJA

2012 NOVEMBER 21; DECEMBER 3

Conveyancer—Rights and duties—Duties—Duty to exercise reasonable degree of skill and care in transfer of property—Liability for loss caused by delay in transfer—Reasonable conveyancer would take steps to avoid mistakes delaying transfer and causing inevitable financial losses—Such steps would include fastidious preparation of documents and compliance with deeds office requirements—Conveyancer held liable for damages suffered by seller of property due to negligent delay in transfer.

HENNIE LAMBRECHTS ARCHITECTS v BOMBENERO INVESTMENTS (PTY) LTD (FB)

THAMAGE AJ

2012 NOVEMBER 1, 15

Company—Proceedings by and against—Security for costs—Application for furnishing of—Approach of court—New Companies Act lacking provision allowing court to order company to furnish security for costs of opponent—Effect of omission—Right of impecunious or insolvent company to litigate protected—Though courts entitled to prevent vexatious abuse of process, they may not deny access to cash-strapped corporate litigant with deserving claim merely because it is unable to provide security for costs.

MAIGRET (PTY) LTD (IN LIQUIDATON) v COMMAND HOLDINGS LTD AND ANOTHER (WCC)

GAMBLE J

2012 OCTOBER 31; NOVEMBER 26

Company—Proceedings by and against—Security for costs—Application for furnishing of—Approach of court—New Companies Act lacking provision allowing court to order company to furnish security for costs of opponent—Effect of omission—Applicant to show that litigation vexatious, reckless or amounting to abuse of process—May not rely exclusively on insolvency of company—Where conduct of applicant possibly factor in insolvency, unfair to insist on security from company.

BALKIND v ABSA BANK (ECG)

ALKEMA J

2012 SEPTEMBER 20; DECEMBER 12

Credit agreement—Consumer credit agreement—Debt enforcement—Proceedings in anticipation of judicial proceedings—Notice of default—Delivery—Constitutional Court’s decision in Sebola establishing principle that notice must reach consumer or be brought to his or her attention—Also that proof thereof required on balance of probability on averments in papers; and that where mail chosen manner of communication, dispatch by registered mail and receipt by correct post office were essential averments (in absence of stronger proof)—Where evidence conclusive that despite such averments notice had not been brought to consumer’s attention, jurisdictional requirements for notice not met—National Credit Act 34 of 2005, s 129(1) .

Credit agreement—Consumer credit agreement—Debt enforcement—Proceedings in anticipation of judicial proceedings—Notice of default—Delivery—Requirements—Risk of non-receipt of notice—Constitutional Court’s decision in Sebola establishing principle that notice must reach consumer or be brought to his or her attention—Semble: Where facts showing consumer deliberately avoiding fulfilment, finding of fictional fulfilment of the principle that notice had come to the attention of the consumer possible—National Credit Act 34 of 2005, s 129(1).

SANDOWN TRAVEL (PTY) LTD v CRICKET SOUTH AFRICA (GSJ)

WEPENER J

2012 NOVEMBER 23, 26; DECEMBER 7

Contract—Breach—Repudiation—Repentance principle—Principle operating where A repudiating, but B abiding by agreement and giving A time to repent its repudiation and to make its performance when due—If, at time A is to perform, A persists in its repudiation, B may change its election and cancel agreement.

Contract—Breach—Remedies—Specific performance—Court has discretion to award damages as surrogate for performance.

DU PLOOY v VENTER JOUBERT INC AND ANOTHER (NCK)

COETZEE AJ

2012 NOVEMBER 27; DECEMBER 12

Damages—Interest on—Pre-judgment interest—Discretion of court—Defendant attorneys allowing plaintiff’s claim against third party to prescribe—Plaintiff claiming damages for professional negligence—Court may, in order to protect plaintiff from effects of inflation, fix date from which interest to run at date of notice to third party, ie prior to date of service of summons on attorneys—Interest ancillary to, and not component of, plaintiff’s damages—Prescribed Rate of Interest Act 55 of 1975, s 2A.

Interest—A tempore morae—Mora interest on unliquidated debt—Pre-judgment interest in claim for delictual damages—Court’s statutory discretion to fix date from which interest shall run—Court may, in order to protect plaintiff from effects of inflation, fix such date at date prior to date of service of summons on defendant—Interest ancillary to, and not component of, creditor’s damages—Prescribed Rate of Interest Act 55 of 1975, s 2A.

HEROLDT v WILLS (GSJ)

WILLIS J

2012 OCTOBER 19; 2013 JANUARY 30

Delict—Specific forms—Iniuria—Right to privacy—Injurious posting on Facebook—Considerations applying to granting of interdict in respect of.

MKHWANAZI v QUARTERBACK INVESTMENT (PTY) LTD AND ANOTHER (GSJ)

SPILG J

2010 AUGUST 10; 2011 AUGUST 12

ContractRestitutio in integrum—Reciprocal restoration of benefits—Where party electing to set aside agreement by reason of fraud, applying for restoration of benefits without tendering benefits received—Dominant juridical consideration in such cases to afford fair relief to innocent victim by undoing tainted transaction—Where, as in present case, reciprocal restoration of benefits would frustrate such relief, courts may fashion remedy—‘Substantial restitution’ achieved through restoration of benefits to innocent party (without tendering benefits received) and confirming guilty party’s right to institute separate action to recover such benefits.

Practice—Judgments and orders—Once and for all rule—Where party electing to set aside agreement by reason of fraud applying for restoration of benefits without tendering benefits received—Rule not offended by order granting such relief and confirmation that guilty party to institute separate action to recover benefits received by innocent party.

BOSASA OPERATIONS (PTY) LTD v BASSON AND ANOTHER (GSJ)

TSOKA J

2012 APRIL 26

Newspaper—Rights and duties of press—Sources—In an action for defamation, company applying during discovery to compel journalist to reveal name of source—Source supplying information of corruption in government’s award of tender to company—Court declining application which would infringe freedom of press.

SOUTH AFRICAN ASSOCIATION OF PERSONAL INJURY LAWYERS v MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT (ROAD ACCIDENT FUND, INTERVENING PARTY) (GSJ)

MLAMBO JP, KATHREE-SETILOANE J and FABRICIUS J

2012 NOVEMBER 19; 2013 FEBRUARY 11

Attorney—Fees—Contingency fees—Contingency-fee agreement—All contingency fee agreements to comply with Contingency Fees Act—No such thing as valid non-statutory (or common-law) contingency fee agreement—Act complying with Constitution—Not unfairly discriminating against attorneys or unjustifiably limiting their rights—Contingency Fees Act 66 of 1997.

MOTSWAGAE AND OTHERS v RUSTENBURG LOCAL MUNICIPALITY AND ANOTHER (CC)

MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, NKABINDE J, SKWEYIYA J, VAN DER WESTHUIZEN J, YACOOB J and ZONDO J

2012 NOVEMBER 27; 2013 FEBRUARY 7

Housing—Right to housing—Eviction—Meaning—To evict includes to attenuate or to obliterate incidents of occupation—Constitution, s 26(3).

CHILDREN'S INSTITUTE v PRESIDING OFFICER, CHILDREN'S COURT, KRUGERSDORP, AND OTHERS (CC)

MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, NKABINDE J, SKWEYIYA J, VAN DER WESTHUIZEN J, YACOOB J and ZONDO J

2012 SEPTEMBER 18; OCTOBER 9

Practice—Parties—Amici curiae—Whether allowed to adduce evidence—Rule 16A permissive and not prohibiting amici curiae from adducing evidence in support of its submissions, if in interest of justice—However, whether and to what extent remaining within the discretion of high court in each particular case—Semble: Even if rule not permissive, high courts could invoke their constitutionally entrenched power to regulate their own process to allow amici to adduce evidence, if interests of justice so demanded—Uniform Rules of Court, rule 16A.

TJATJI v ROAD ACCIDENT FUND AND TWO SIMILAR CASES (GSJ)

BORUCHOWITZ J

2012 OCTOBER 19

Attorney—Fees—Contingency fees—Contingency fee agreement—To be concluded at sufficiently early stage of proceedings to reasonably enable compliance with Act—In present cases, where new contingency fee agreements concluded to substitute invalid original agreements, such new agreements in substance not complying with Act and therefore invalid—New agreements also invalid as attempt to retrospectively validate original invalid agreements—Contingency Fees Act 66 of 1997.

SOUTH AFRICAN CRIMINAL LAW REPORTS

TABLE OF CASES

  • Tulip Diamonds Fze v Minister of Justice and Constitutional Development and Others 2013 (1) SACR 323 (SCA)

  • S v Sape 2013 (1) SACR 330 (GNP)

  • Minister of Safety and Security and Another v Ndlovu 2013 (1) SACR 339 (SCA)

  • S v Tong 2013 (1) SACR 346 (WCC)

  • S v Botha 2013 (1) SACR 353 (ECP)

  • National Commissioner of Police and Another v Coetzee 2013 (1) SACR 358 (SCA)

  • S v Roberts and Others 2013 (1) SACR 369 (ECP)

  • S v Ramulifho 2013 (1) SACR 388 (SCA)

  • S v Raghubar 2013 (1) SACR 398 (SCA)

  • S v Kolea 2013 (1) SACR 409 (SCA)

  • Minister of Correctional Services and Others v Moodley and Another 2013 (1) SACR 417 (GNP)

FLYNOTES

TULIP DIAMONDS FZE v MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND OTHERS (SCA)

MTHIYANE DP, BRAND JA, CACHALIA JA, LEACH JA and WALLIS JA

2012 AUGUST 15; SEPTEMBER 7

Locus standi—Foreign company with no presence in South Africa—All that such company has to show is that it has direct and substantial interest in right that was subject-matter of litigation.

International co-operation in investigation of crime—Locus standi—What constitutes—Foreign-based company with no presence in South Africa—Request by Belgian examining magistrate for assistance of South African authorities to obtain documents—Foreign-based company claiming confidential information in documents in possession of local company—Appellant seeking to challenge decision by South African authorities to provide assistance and issue of subpoena to South African company to produce documents—Failure to establish that information in documents confidential—Failure to show that it has substantial interest in subject matter of litigation.

S v SAPE (GNP)

BAQWA J

2012 SEPTEMBER 5

Sentence—Prescribed sentences—Minimum sentences—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—‘Substantial and compelling circumstances’—Accused’s upbringing and difficult childhood—In circumstances where accused had committed multiple murders and rapes, upbringing not constituting substantial and compelling circumstances justifying lesser imprisonment.

MINISTER OF SAFETY AND SECURITY AND ANOTHER v NDLOVU (SCA)

PONNAN JA, BOSIELO JA and PETSE JA

2012 NOVEMBER 7, 30

Arrest—Unlawful arrest—Period of detention—Accused brought before court and case postponed without court considering bail or release of accused—Period of unlawful detention extending after court appearance.

S v TONG (WCC)

SAMELA J and HENNEY J

2012 SEPTEMBER 7

Admission of guilt—Setting aside of—Admission of guilt fine paid on behalf of accused—No indication on record that police officer explained implications of payment to accused—Requirements of s 56 of Criminal Procedure Act 51 of 1977 not complied with—Conviction set aside.

S v BOTHA (ECP)

REVELAS J and TSHIKI J

2012 SEPTEMBER 17

Traffic offences—Sentence—Suspension of driver’s licence in terms of s 35(1) and (2) of National Road Traffic Act 93 of 1996—Evidence required to be led before decision made not to suspend licence—Submission from bar not sufficient.

NATIONAL COMMISSIONER OF POLICE AND ANOTHER v COETZEE (SCA)

MPATI P, CLOETE JA, PONNAN JA, BOSIELO JA and PETSE JA

2012 AUGUST 28; NOVEMBER 16

Arrest—Legality of—Arrest without a warrant—Criminal Procedure Act 51 of 1977, s 40(1)—Otherwise lawful arrest does not become unlawful, merely because summons, or notice to appear in court, would have been equally effective in ensuring attendance at court, or because bail has been refused.

S v ROBERTS AND OTHERS (ECP)

CHETTY J

2011 NOVEMBER 14–25

2012 JANUARY 17; AUGUST 27–30; SEPTEMBER 18, 27

Prevention of crime—Offences—Contraventions of s 2(1) of Prevention of Organised Crime Act 121 of 1998—Racketeering in contravention of s 2(1)(e) and (f)—What constitutes—Illegal trading in abalone over period of time—Two or more offences—Words ‘two offences’, in definition of ‘pattern of racketeering activity’ in s 1 of Prevention of Organised Crime Act 121 of 1998, do not mean two separate and disparate offences—Enterprise found proved.

Evidence—Telephonic communications—Interception of telephone communications—Judge’s directive in terms of s 18(3)(a) of Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002—Validity of directive—Drastic measures required as conventional investigation methods not effective—Records proved direct involvement of accused in racketeering activities.

S v RAMULIFHO (SCA)

MPATI P, PONNAN JA, CACHALIA JA, SOUTHWOOD AJA and ERASMUS AJA

2012 NOVEMBER 9, 30

Appeal—Generally—Trial court’s evaluation of evidence—Presumption that trial court’s findings of fact are correct—Evidence ultimately to be assessed as whole—In determining whether trial court’s findings of fact were clearly wrong, it is useful aid to break body of evidence down into its component parts, but, in doing so, one must guard against tendency to focus too intently upon separate and individual parts of what is, after all, mosaic of proof—Evidence ultimately to be assessed as whole—All evidence did not prove appellant’s guilt beyond reasonable doubt.

Fundamental rights—Right to a fair trial—Assistance to unrepresented accused—Right to a fair trial in terms of s 35(3) of Constitution, 1996—Includes obligation on court to assist undefended accused to present his defence properly—Regional magistrate obliged to act as guide to appellant at all stages of trial—Failed to inform appellant of right to legal representation, did not explain how to cross-examine, did not assist in cross-examination, allowed prosecution to ask leading questions—These failures all constituting violations of accused’s right to fair trial.

Appeal—Generally—Unreasonable delay in finalisation of—Appellant serving sentence—Obligations of officials and legal representatives—Eight-year delay—Where convicted person who is serving prison sentence wishes to appeal, every person involved in process must ensure that he or she does, with utmost expedition, what he or she is required to do.

S v RAGHUBAR (SCA)

PONNAN JA, TSHIQI JA and MBHA AJA

2012 NOVEMBER 1, 30

Evidence—Witnesses—Competence of—Child witness—Questioning by presiding officer—Manner of questioning crucial to inquiry and where intermediary has important role to play.

S v KOLEA (SCA)

MPATI P, MTHIYANE DP, BRAND JA, SHONGWE JA and MBHA AJA

2012 NOVEMBER 7, 30

Sentence—Prescribed sentences—Minimum sentence—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—Charge-sheet—Error in—Charge-sheet incorrectly stating offence as one of contravening s 51(2) instead of s 51(1)—Court not precluded from imposing life sentence or referring case to higher court.

MINISTER OF CORRECTIONAL SERVICES AND OTHERS v MOODLEY AND ANOTHER (GNP)

MSIMEKI J

2012 DECEMBER 23

Sentence—Correctional supervision—Conversion of imprisonment into correctional supervision in terms of s 276A(3) of Criminal Procedure Act 51 of 1977—Application made by chairperson of Correctional Supervision and Parole Board—Magistrate amending sentence—Board seeking to review and set aside decision to amend—Whether magistrate’s decision administrative action—Whether there was application from Parole Board before magistrate when he made decision—Argued that audi alteram partem rule not followed—Application dismissed.

Conveyancers should be fastidious in the preparation of their documents, and when lodging documents must ensure that they meet the requirements of the deeds office at that time. The Supreme Court of Appeal looks at a case where transfer was delayed when the deeds office twice rejected mortgage-bond cancellation documentation as a result of mistakes in their preparation. Margalit v Standard Bank of South Africa Ltd and Another 2013 (2) SA 466 (SCA)

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