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February 2013

Dear South African Law Reports and Criminal Law Reports subscriber

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

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

SOUTH AFRICAN LAW REPORTS

Use of polygraph test as employment selection criteria

The exclusive reliance on polygraph-test results in the employment selection process, to eliminate candidates for appointment to a position, in the absence of any other information placing a question mark over their integrity, was found to be unfair. Sedibeng District Municipality v South African Local Government Bargaining Council and Others  2013 (1) SA 395 (LC)

What are 'reasonable prospects' of business rescue for a company?

The underlying philosophy is that business rescue is preferable to liquidation, however, vague averments and speculative suggestions are insufficient. What is required is a reasonable possibility: one that is based on a ground that is objectively reasonable. Propspec Investments (Pty) Ltd v Pacific Coast Investments 97 Ltd and Another 2013 (1) SA 542 (FB)

Legal representation at the CCMA

A rule at the Commission for Conciliation, Mediation and Arbitration barred parties to arbitrations for dismissal for misconduct or incapacity from being represented by legal practitioners. The rule was found to be unconstitutional in Law Society, Northern Provinces v Minister of Labour and Others  2013 (1) SA 468 (GNP).

SOUTH AFRICAN CRIMINAL LAW REPORTS

Tenders for family and friends: is it fraud?

In a government tender for school books the appellants failed to disclose their connection to persons employed by the state. Such constituted prejudice. The general public, whose funds were being used to finance such projects, had an interest in these tenders. Prejudice was not only proprietary, and failure to reveal relationships was prejudicial to other tenderers and rendered the state incapable of administering public funds fairly and equitably. S v Tshopo and Others 2013 (1) SACR 127 (FB)

Right to legal representation not absolute

The appellant’s conduct changed throughout trial, first handling his own defence, then telling court he wanted legal representation. Despite this, the magistrate had nonetheless shown tolerance and patience. The magistrate assisted him with his case throughout the trial, especially in cross-examination. The appellant had abused his constitutional right to legal representation. There was no substantial injustice that occurred, and his appeal was dismissed.  S v Moyce 2013 (1) SACR 131 (WCC)

Bail and the right to be presumed innocent

After being arrested for murder and robbery with aggravating circumstances, the accused’s bail application was refused, despite the prosecutor and the investigating officer not opposing bail. The appeal against such refusal was dismissed. The right to be presumed innocent is a trial right, and not pre-trial right. S v Mbaleki and Another 2013 (1) SACR 165 (KZD)


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SOUTH AFRICAN LAW REPORTS

TABLE OF CASES


  • Schubart Park Residents’ Association and Others v City of Tshwane Metropolitan Municipality and Another 2013 (1) SA 323 (CC)

  • NSC Carriers & Forwarding CC and Others v Hyprop Investments Ltd and Others 2013 (1) SA 340 (GSJ)

  • Armgold/Harmony Freegold Joint Venture (Pty) Ltd v Commissioner, South African Revenue Service 2013 (1) SA 353 (SCA)

  • PD v MD 2013 (1) SA 366 (ECP)

  • Makulu Plastics & Packaging CC v Born Free Investments 128 (Pty) Ltd and Others 2013 (1) SA 377 (GSJ)
  • Herman and Another v Set-Mak Civils CC 2013 (1) SA 386 (FB)

  • Sedibeng District Municipality v South African Local Government Bargaining Council and Others 2013 (1) SA 395 (LC)
  • New Foodcorp Holdings (Pty) Ltd and Another v Minister of Agriculture, Forestry and Fisheries and Others 2013 (1) SA 406 (SCA)

  • South African Property Owners Association v Johannesburg Metropolitan Municipality and Others 2013 (1) SA 420 (SCA)

  • Farmsecure Grains (Edms) Bpk v Du Toit and Another 2013 (1) SA 462 (FB)

  • Law Society, Northern Provinces v Minister of Labour and Others 2013 (1) SA 468 (GNP)

  • Absa Bank Ltd v Petersen 2013 (1) SA 481 (WCC)

  • Lourens v President van die Republiek van Suid-Afrika en Andere 2013 (1) SA 499 (GNP)

  • ACL Group (Pty) Ltd and Others v Qick Televentures FZE 2013 (1) SA 508 (FB)

  • Corporate Money Managers (Pty) Ltd and Others v Panamo Properties 49 (Pty) Ltd 2013 (1) SA 522 (GNP)

  • Enelon CC t/a Realnet Wilgers & Surrounds v Nortje and Another 2013 (1) SA 525 (GNP)

  • Long v Prism Holdings Ltd and Another 2013 (1) SA 533 (LAC)

  • Propspec Investments (Pty) Ltd v Pacific Coast Investments 97 Ltd and Another 2013 (1) SA 542 (FB)

  • In re Several Matters on the Urgent Court Roll 2013 (1) SA 549 (GSJ)

  • Mchunu and Others v Executive Mayor, Ethekwini Municipality and Others 2013 (1) SA 555 (KZD)

  • Ingonyama Trust v Ethekwini Municipality 2013 (1) SA 564 (SCA)

  • Fintech (Pty) Ltd v Awake Solutions (Pty) Ltd and Others 2013 (1) SA 570 (GSJ)

  • Nortje v Fakie 2013 (1) SA 577 (KZP)

  • Johannesburg Housing Corporation (Pty) Ltd v Unlawful Occupiers, Newtown Urban Village 2013 (1) SA 583 (GSJ)

  • Marion v Avusa Ltd Pension Fund 2013 (1) SA 617 (ECG)

  • National Credit Regulator v Standard Bank of South Africa Ltd 2013 (1) SA 628 (SCA)

  • Governing Body, Rivonia Primary School and Another v MEC for Education, Gauteng Province and Others 2013 (1) SA 632 (SCA)

FLYNOTES

SCHUBART PARK RESIDENTS' ASSOCIATION AND OTHERS v CITY OF TSHWANE MEROPOLITAN MUNICIPALITY AND ANOTHER (CC)

MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J,

NKABINDE J, SKWEYIYA J and VAN DER WESTHUIZEN J

2012 AUGUST 23; OCTOBER 9

Spoliation—Mandament van spolie—When available—Removal of residents from their homes—Where not possible for court to order immediate restoration of possession and court ordering relief under s 38, court must also declare that refusal to order reoccupation is not order of eviction, and that residents have the right to eventual restoration of their occupancy—Constitution, ss 26(3) and 38. 

NSC CARRIERS & FORWARDING CC AND OTHERS v HYPROP INVESTMENTS LTD AND OTHERS (GSJ)

SUTHERLAND J

2012 AUGUST 28, 29; OCTOBER 8

Delict—Remedies—Concurrence of remedies—Action in delict for fraudulent misrepresentation inducing contract—Decision adverse to plaintiff given in related application based on contract—Whether issue estoppel unsuiting plaintiff—Trial procedure may provide different outcome—Court dismissing plea of issue estoppel.

Delict—Remedies—Concurrence of remedies—Action in delict for fraudulent misrepresentation inducing contract—Claim as formulated similar to one already decided in related contractual suit—Delictual suit acceptable provided claim framed without trespassing into terrain of contract—Prospects, however, of issue estoppel.

Estoppel—Res judicata—Issue estoppel—Operation—Where decision adverse to plaintiff given in application and issue again raised in action—Fact that forensic process in action may result in different outcome relevant to, but not determinative of, court’s decision on whether to uphold plea of issue estoppel—Court may where appropriate dismiss plea of res judicata, even where decision in application proceedings appearing to be correct on papers.

Practice—Stay of proceedings—Grounds—Unpaid judgment debt in related proceedings not competent ground for stay—Not tantamount to contempt of court order—Collection of judgment debt to be achieved by usual means of execution or insolvency proceedings.

ARMGOLD/HARMONY FREEGOLD JOINT VENTURE (PTY) LTD v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE (SCA)

NAVSA JA, CLOETE JA, HEHER JA, LEACH JA and PILLAY JA

2012 SEPTEMBER 6; OCTOBER 1

Revenue—Income tax—Deductions—Expenditure incurred in production of income—Capital expenditure in mining operations—Limitations on capex deductions (ring-fencing provisions)—Total deductible capex limited to taxpayer’s overall mining profits (overall cap)—In case of individual mine, deductible capex limited to taxable income of that mine (individual cap)—Fiscus may not implement ring-fencing so as to set off loss of one mine against profits of others before allowing capex—However, such loss would, by reducing taxpayer’s overall profits, result in corresponding reduction in individual caps of profitable mines—Income Tax Act 58 of 1962, ss 36(7E) (overall cap) and 36(7F) (individual cap).

PD v MD (ECP)

PD v MD (ECP)

GOOSEN J

2012 JUNE 21; AUGUST 7

Children—Parents—Responsibilities and rights—Co-holders of—Parenting plans—Party to plan may unilaterally approach court to apply to amend it—Provided that party has made reasonable effort to reach agreement with other party to plan before doing so—Children’s Act 38 of 2005, ss 33(2) and 34(5). 

MAKULU PLASTICS & PACKAGING CC v BORN FREE INVESTMENTS 128 (PTY) LTD AND OTHERS (GSJ)

TSOKA J, LAMONT J and FRANCIS J

2012 AUGUST 28; SEPTEMBER 13

Delict—Specific forms—Interference with contractual relationship—What constitutes—Malicious frustration of free commercial activity—Onus of proving malice on applicant or plaintiff—Must show not only that defendant or respondent intended to damage it in its business or means of livelihood, but also lack of legitimate interest in doing so—Landlord writing letter to municipality resulting in denial of municipal services to tenant—Constituting wrongful act—Interim interdict appropriate.

HERMAN AND ANOTHER v SET-MAK CIVILS CC (FB)

DAFFUE J

2012 MARCH 22; APRIL 5

Company—Winding-up—Solvent company—On application by creditor—Must prove that winding-up just and equitable—Should include situation where company trading while in dire financial circumstances or with total disregard for rights of creditors—Thus theoretically still possible to rely indirectly on company’s inability to pay debts—In future other situations may arise in which court would consider it just and equitable to wind up—Companies Act 71 of 2008, s 81(1)(c) and sch 5 item 9(3).

SEDIBENG DISTRICT MUNICIPALITY v SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL AND OTHERS (LC)

LAGRANGE J

2011 FEBRUARY 4; 2012 MAY 31

Labour law—Employee—Appointment—Selection process—Polygraph tests—Exclusive reliance on such tests to eliminate candidates for appointment to a position, in absence of other information questioning their integrity, is unfair. 

NEW FOODCORP HOLDINGS (PTY) LTD AND ANOTHER v MINISTER OF AGRICULTURE, FORESTRY AND FISHERIES AND OTHERS (SCA)

NAVSA JA, VAN HEERDEN JA, MHLANTLA JA, LEACH JA and WALLIS JA

2012 MARCH 1, 28

Fisheries and fishing—Fishing rights—Transfer—Policy—Transformation of fishing industry—Restructuring of rights holder resulting in reduction of black shareholding—Role of minister in light of applicable legislation and ancillary government policy documents—Marine Living Resources Act 18 of 1998, ss 2 and 18.

SOUTH AFRICAN PROPERTY OWNERS ASSOCIATION v JOHANNESBURG METROPOLITAN MUNICIPALITY AND OTHERS (SCA)

NAVSA JA, LEWIS JA, SHONGWE JA, PETSE JA and SOUTHWOOD AJA

2012 AUGUST 30; NOVEMBER 8

Local authority—Rates—Imposition—Ratio between rates levied on residential and non-residential properties—Legality—Local authority may not impose rate (amount in the rand) on non-residential property exceeding that imposed on residential property—Local Government: Municipal Property Rates Act 6 of 2004, s 19(1)(b) read with rules promulgated in terms thereof.

Local authority—Finance—Budgets—Approval—Where budgeted rates amended after budget tabled and advertised for comment—Legality—Levying of rates integral part of budget process—Local authority having to comply with statutory requirements of public participation in budget process.

Local authority—Rates—Imposition—Where budgeted rates amended in respect of non-residential ratepayers only—Legality—Rates policy requiring that ratepayers treated equitably—Absent factual or legal basis therefor, such increase irrational and discriminatory—Local Government: Municipal Property Rates Act 6 of 2004, s 3(2)(a).

FARMSECURE GRAINS (EDMS) BPK v DU TOIT AND ANOTHER (FB)

LEKALE J

2012 AUGUST 30; SEPTEMBER 20

Mortgage—Notarial bond—Special notarial bond over movable property—Perfecting of—Bond conferring ex lege real right—Bondholder placed on same footing as pledgee—Possession superfluous—Bondholder unable to show that contractually entitled to possession—Court refusing to confirm interim order authorising bondholder to assume control over encumbered goods—Security by Means of Movable Property Act 57 of 1993, s 1(1).

Mortgage—Notarial bond—Special notarial bond over movable property—Demand—Not condition precedent to enforcement—Absence of demand may in appropriate case affect costs order—Security by Means of Movable Property Act 57 of 1993, s 1(1). 

LAW SOCIETY, NORTHERN PROVINCES v MINISTER OF LABOUR AND OTHERS (GNP)

TUCHTEN J

2012 OCTOBER 11

Labour law—Commission for Conciliation, Mediation and Arbitration—Arbitration proceedings—Legal representation—Rule, that parties to arbitrations concerning dismissal for misconduct or incapacity may not be represented by legal practitioners, is unconstitutional—Constitution of Republic of South Africa, 1996, s 33; Promotion of Administrative Justice Act 3 of 2000, s 3(3)(a); Rules for the Conduct of Proceedings before the Commission for Conciliation, Mediation and Arbitration, rule 25(1)(c).

ABSA BANK LTD v PETERSEN (WCC)

BINNS-WARD J

2012 SEPTEMBER 13, 20

Mortgage—Mortgage bond—Foreclosure—Reasons for refusal to order property executable—Where court grants judgment for money but refuses to order property specially executable it must provide reasons for its refusal.

LOURENS v PRESIDENT VAN DIE REPUBLIEK VAN SUID-AFRIKA EN ANDERE (GNP)

DU PLESSIS R

2010 MAART 8, 16

Constitutional law—Official languages—Duty of state—Use of official languages by government—Implementation of measures to regulate and monitor national government’s use of official languages—Process having ground to halt—Combination of declaratory and mandatory order appropriate—Minister of Arts and Culture ordered to take required steps within two years—Constitution, s 6(4).

Constitutional law—Legislation—Language policy—Parliamentary legislation to be translated into all official languages—Duty to do so on executive branch, not parliament. 

ACL GROUP (PTY) LTD AND OTHERS v QICK TELEVENTURES FZE (FB)

SNELLENBURG AJ

2012 JUNE 21; JULY 12

Company—External company—External company registered in terms of old Companies Act immediately before effective date of new Companies Act—Matters concerning external company to be decided in terms of new Companies Act—Companies Act 71 of 2008, sch 5, item 2(6).

Jurisdiction—Attachment to found or confirm jurisdiction—Applicant not having to elect whether to apply either for one or the other—Entitled to apply for order that court confirm or alternatively found jurisdiction—Court to determine whether requirements for either satisfied.

Jurisdiction—Attachment to found or confirm jurisdiction—Prohibition of attachment of property to found jurisdiction against resident of Republic—External company, even if registered, having office and operating in Republic, not necessarily qualifying as resident—This so even if cause of action arose from its business activities in Republic—Latter merely serving as jurisdictional ground which may entitle incola to confirm court’s jurisdiction—Companies Act 71 of 2008, s 23.

CORPORATE MONEY MANAGERS (PTY) LTD AND OTHERS v PANAMO PROPERTIES 49 (PTY) LTD (GNP)

VAN LOGGERENBERG AJ

2012 OCTOBER 29, 31

Company—Winding-up—Application—Furnishing of copy to South African Revenue Service—Statutory provision requiring this peremptory, as is provision requiring proof of such furnishing by means of affidavit—Companies Act 61 of 1973, s 346(4A)(a)(iii) and 346(4A)(b).

ENELON CC t/a REALNET WILGERS & SURROUNDS v NORTJE AND ANTOHER (GNP)

LEGODI J

2011 APRIL 20

Estate agent—Contract of employment—Neither employer estate agent nor employee estate agent in possession of fidelity fund certificates—Contract so tainted as to be null and void ab initio—Restraint of trade provision in such contract not enforceable.

Estate agent—Contract of employment—Restraint of trade—Enforcement—New employer of estate agent having material interest in enforcement proceedings and should be joined as party to proceedings—Failure to do so amounting to non-joinder. 

LONG v PRISM HOLDINGS LTD AND ANOTHER (LAC)

WAGLAY DJP, DAVIS JA and SANDI AJA

2011 AUGUST 17; 2012 MARCH 6

Labour law—Contract of employment—Transfer—Upon transfer of business as going concern—Protection of employment—When available—Control of business transferred by shares transfer—Sale of shares to be distinguished from sale of business—Protection provided by LRA not available in case of change in control of business without change of employer—Dismissal resulting from such transaction not automatically unfair—Labour Relations Act 66 of 1995, s 197.

PROPSPEC INVESTMENTS (PTY) LTD v PACIFIC COAST INVESTMENTS 97 LTD AND ANOTHER (FB)

VAN DER MERWE J

2012 JUNE 14, 28

Company—Business rescue—Requirements—Reasonable prospect of rescue—Meaning—Something less than reasonable probability—Reasonable possibility, ie possibility based on ground that is objectively reasonable, required—Vague averments and speculative suggestions insufficient—Underlying philosophy being that business rescue preferable to liquidation—Companies Act 71 of 2008, s 131(4)(a).

IN RE SEVERAL MATTERS ON THE URGENT COURT ROLL (GSJ)

WEPENER J

2012 SEPTEMBER 18

Practice—Applications and motions—Enrolment—Practice directives—Section empowering Judge President to make rules as to placing of applications on roll—Supreme Court Act 59 of 1959, s 43(2)(b)(ii).

Practice—Action—Word ‘actions’ including all proceedings in high court—Supreme Court Act 59 of 1959, s 43(2)(b)(ii). 

MCHUNU AND OTHERS v EXECUTIVE MAYOR, ETHEKWINI MUNICIPALITY AND OTHERS (KZD)

HOLLIS AJ

2012 SEPTEMBER 17, 19

Local authority—Powers and duties—To comply with court orders—Active engagement required with court orders addressing situations where people living in squalid conditions—Municipality under constitutional duty to comply with court orders and to lead by example—Upon non-compliance, complaints of contempt may be proceeded with against functionaries responsible for ensuring compliance.

Contempt of court—By state organ—Municipality—Failure to comply with court order—Active engagement required with court orders addressing situations where people living in squalid conditions—Municipality under constitutional duty to comply with court orders and to lead by example—Upon non-compliance, complaints of contempt may be proceeded with against functionaries responsible for ensuring compliance.

INGONYAMA TRUST v ETHEKWINI MUNICIPALITY (SCA)

2011 NOVEMBER 8; 2012 JUNE 1

State—Property—Where held in statutory trust—Whether property so held remaining state property—Whether statutory trust ‘state in another guise’—Pointers to resolving enquiry to be found in statute creating trust and related statutes—In present case, legislature tellingly defining ‘Trust’s land’ as ‘state land’.

Local authority—Rates—Exemption—Where state property held by the state in trust for inhabitants of area within jurisdiction of local authority—Meaning of ‘state property held by state’ discussed—In circumstances of present case, statutory trust concerned qualifying for such exemption—Rating of State Property Act 79 of 1984, s 3(3)(a).

FINTECH (PTY) LTD v AWAKE SOLUTIONS (PTY) LTD AND OTHERS (GSJ)

VAN OOSTEN J

2012 SEPTEMBER 12; OCTOBER 8

Company—Register of companies—Deregistration of company—Reinstatement of registration—Validity of actions during period of deregistration—Court retaining inherent jurisdiction, on application or otherwise, to validate anything done by or against the company between deregistration and reinstatement and to make order considered appropriate. 

NORTJE v FAKIE (KZP)

SWAIN J and BOOYENS AJ

2011 APRIL 4, 7

Land—Sale—Contract—Breach—Mora debitoris—Delay in registration of transfer—Clause providing that, if purchaser responsible for delay, he would pay interest on purchase price from date on which notified in writing by conveyancers that he was in mora—Notice given by seller’s attorneys, not conveyancers, insufficient to trigger operation of clause.

Delict—Remedies—Concurrence of remedies—Action in delict for breach of contract—Not available where contract providing effective remedies to deal with breach.

JOHANNESBURG HOUSING CORPORATION (PTY) LTD v UNLAWFUL OCCUPIERS, NEWTOWN URBAN VILLAGE (GSJ)

WILLIS J

2012 OCTOBER 17; NOVEMBER 15

Land—Unlawful occupation—Eviction—Statutory eviction—Date of eviction—Subsection requiring court to determine, in addition to just and equitable date to vacate land, just and equitable date of eviction—Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, ss 4(8).

Land—Unlawful occupation—Eviction—Statutory eviction—Determination that just and equitable to evict—Nature of court’s discretion in making determination—Such entailing ‘latitude of individual judicial freedom’, but court cannot be influenced by wrong principle or misdirection on facts—May not reach decision that court properly directing itself to law and facts would not reasonably reach—Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, ss 4(7) and 4(8).

Land—Unlawful occupation—Eviction—Statutory eviction—Joinder of local authority—Definition of ‘homeless’ in respect of requirement that authority be involved where eviction likely to render occupiers homeless—‘Homeless’ meaning without reasonable prospect, from proposed date of vacation of property to proposed date of eviction, of finding alternative accommodation of comparable standard and rental and within reasonable proximity to property from which eviction sought—Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.

Land—Unlawful occupation—Eviction—Statutory eviction—Mediation—Prerequisite to court ordering mediation that parties be bona fide and that credible proposal be made—Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.

Land—Unlawful occupation—Eviction—Statutory eviction—Defence to eviction—In order to succeed, defence cannot be bald, vague or laconic—Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.

MARION v AVUSA LTD PENSION FUND (ECG)

REVELAS J, TSHIKI J and BESHE J

2011 NOVEMBER 14; 2012 MAY 23

Pension—Benefits—Disability benefits—Permanent disability benefit—Calculation—Employee first classified as temporarily, then permanently, disabled—When to be deemed as having been permanently disabled—To be decided on basis of fund rules and policies—Such dictating that date of permanent disablement to be retrospectively set at date of member’s first absence from work—Permanent disability benefit to be calculated on basis of salary at such date, ie when classified as temporarily disabled. 

NATIONAL CREDIT REGULATOR v STANDARD BANK OF SOUTH AFRICA LTD (SCA)

NUGENT JA, PONNAN JA, MALAN JA, PILLAY JA and SALDULKER AJA

2012 NOVEMBER 15, 29

Credit agreement—Consumer credit agreement—Applicable legislation—Usury Act and National Credit Act—In respect of housing loans concluded before commencement of National Credit Act and continuing thereafter, their administration fees remain subject to limit provided by Usury Act—Usury Act 73 of 1968, s 5(1)(k) read with paras 2(b) and 3(b)(i) of Schedule; National Credit Act 34 of 2005.

GOVERNING BODY, RIVONIA PRIMARY SCHOOL AND ANOTHER v MEC FOR EDUCATION, GAUTENG PROVINCE AND OTHES (SCA)

CACHALIA JA, NUGENT JA, SHONGWE JA, WALLIS JA and SALDULKER JA

2012 NOVEMBER 16, 30

Education—School—Public school—Governing body—Functions—Determination of capacity of school—Governing body authorised to do so as incident of its authority to determine admission policy—Not open to provincial authority to summarily override governing body’s determination of capacity—South African Schools Act 84 of 1996, s 5(5).


SOUTH AFRICAN CRIMINAL LAW REPORTS

TABLE OF CASES

  •  Director of Public Prosecutions, Transvaal v Phillips 2013 (1) SACR 107 (SCA)

  •  S v Rululu 2013 (1) SACR 117 (ECG)

  •  S v Masiza 2013 (1) SACR 121 (ECG)

  •  S v Tshopo and Others 2013 (1) SACR 127 (FB)

  • S v Moyce 2013 (1) SACR 131 (WCC
  •  S v Kwanda 2013 (1) SACR 137 (SCA)

  • S v BL 2013 (1) SACR 140 (GNP)

  •  S v Mofokeng 2013 (1) SACR 143 (FB)

  •  S v Nel 2013 (1) SACR 155 (GSJ)

  •  S v Visagie 2013 (1) SACR 158 (GNP)

  •  S v Mbaleki and Another 2013 (1) SACR 165 (KZD)

  •  Kockjeu v National Director of Public Prosecutions 2013 (1) SACR 170 (ECG)

  •  S v Joseph 2013 (1) SACR 183 (GSJ)

  •  S v LM (Faculty of Law, University of the Western Cape: Children Rights Project of the Community Law Centre and Others as Amici Curiae) 2013 (1) SACR 188 (WCC)

  •  S v WV 2013 (1) SACR 204 (GNP)

FLYNOTES

DIRECTOR OF PUBLIC PROSECUTIONS, TRANSVAAL v PHILLIPS (SCA)

PONNAN JA, BOSIELO JA and PETSE AJA

2011 SEPTEMBER 16; NOVEMBER 14

Domestic violence—Offences—Sentence—Message needed to go out to persons, who might be minded to disregard protection orders granted in terms of Domestic Violence Act 116 of 1998, that such conduct would not be countenanced by our courts.

Sentence—Several offences—Globular sentence—Imposition of should generally be avoided. 

S v RULULU (ECG)

CHETTY J and GOOSEN J

2012 JUNE 6, 25

Evidence—Certificate in terms of s 212(4) of Criminal Procedure Act 51 of 1977—Court’s power to call deponent to testify on contents of certificate—Court will only exercise discretion upon proper and not spurious grounds—Mere intimation that DNA test results are wrong, insufficient to trigger s 212(12).

S v MASIZA (ECG)

D VAN ZYL J and GRIFFITHS J

2011 AUGUST 10; SEPTEMBER 2

Sentence—Several offences—Globular sentence—Should be avoided particularly when provisions of Criminal Law Amendment Act 105 of 1997 applicable.

S v TSHOPO AND OTHERS (FB)

CILLIÉ J and MOLOI J

2012 JUNE 17

Fraud—Prejudice—What constitutes—Tender fraud—Appellants failing to disclose in tender application their connection to persons employed by state—Such constituting prejudice—Prejudice not only proprietary. 

S v MOYCE (WCC)

TRAVERSO DJP and SAMELA J

2012 MAY 18; JUNE 4

Fundamental rights—Right to legal representation at state expense—Section 35(3)(g) of Constitution of the Republic of South Africa, 1996—Appellant did not have absolute right to legal assistance, it being subject to reasonable limitations—Appellant not only person who has legitimate interest in criminal trial concluding expeditiously—No substantial injustice occurred, despite no legal representation, magistrate assisting appellant throughout trial—Appellant’s conduct changing throughout trial, he conducting own defence then telling court he wanted legal representation—Appellant abused constitutional right to legal representation—Appeal dismissed, conviction and sentence confirmed.

S v KWANDA (SCA)

STREICHER JA, BOSIELO JA and THERON JA

2011 MARCH 15, 30

Arms and ammunition—Unlawful possession of arms and ammunition in contravention of s 32(1)(a) and (e) of Arms and Ammunition Act 75 of 1969—Proof of possession—One of conspirators to robbery was aware that co-conspirator carried firearm—Such knowledge not sufficient to establish intention to jointly possess firearm and ammunition.

S v BL (GNP)

MAVUNDLA J and MABUSE J

2012 FEBRUARY 27

Juvenile offenders—Trial—Review—Section 75 read with s 72 of Child Justice Act 75 of 2008 providing for juvenile 14 years and older to be sentenced to correctional supervision in terms of s 276(1)(h) of Criminal Procedure Act 51 of 1977—‘Correctional supervision’ collective term used to describe various measures that are applied outside of prison—Sentence of bare ‘correctional supervision’ insufficient—Nature and scope of correctional supervision need to be established when imposing sentence—Specific measures applicable to accused to be identified—General framework in which measures would be implemented to be formulated.

S v MOFOKENG (FB)

LEKALE J and SNELLENBERG AJ

2012 JUNE 18

Plea—Plea of guilty—Unrepresented accused—Magistrate’s duty in respect of—Court erred in not establishing from accused whether pleading guilty freely and voluntarily—Did not advise to give evidence in mitigation of sentence—Failed to have enquiry in terms of s 103 of Firearms Control Act 60 of 2000—Appellant’s answers did not satisfy requirements of charge of assault with intent to do grievous bodily harm—Not all allegations of charge-sheet admitted—Failure of justice occurring—Rules of practice for unrepresented accused set out.

S v NEL (GSJ)

LAMONT J and MATHOPO J

2012 SEPTEMBER 16

Drug offences—Sentence—Generally—Correctional supervision a competent sentencing option in respect of a conviction in terms of s 5(b) of Drugs and Drug Trafficking Act 140 of 1992.

S v VISAGIE (GNP)

MABUSE J

2011 NOVEMBER 25; 2012 FEBRUARY 3

Bail—Application for—Application by way of affidavit—Contents of applicant’s founding affidavit directly contradicted by contents of opposing affidavits filed on behalf of respondent, and applicant not filing replying affidavit—Applicant failing to discharge onus he bears of satisfying court that it is in interests of justice to permit his release on bail. 

S v MBALEKI AND ANOTHER (KZD)

STEYN J

2012 APRIL 1

Bail—Appeal against refusal of—Application by way of affidavit—Murder and robbery with aggravating circumstances—Appellants failing to show exceptional circumstances present permitting their release in interests of justice—Right to be presumed innocent trial right and not pre-trial right.

KOCKJEU v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS (ECG)

GOOSEN J, EBRAHIM J and SANDI J

2012 MARCH 19; APRIL 23

Prevention of crime—Restraint order in terms of s 26(1) of the Prevention of Organised Crime Act 121 of 1998—Can only be made if there is reasonable possibility that both conviction and confiscation will follow—Confiscation not automatic consequence of conviction and requires finding by court that defendant has benefited from offence and that such order is appropriate in the circumstances.

S v JOSEPH (GSJ)

MOSHIDI J and PANDYA AJ

Sentence—Driving offence—Exceeding speed limit—Driving at a speed of at least 102 km/h where speed limit 60 km/h—Automatic review in terms of s 304 of the Criminal Procedure Act 51 of 1977—Magistrate misdirecting himself in imposing a fine of R8000 once he had established that the accused was unable to pay a fine—Sentence of payment of a fine of R8000 or 12 months’ imprisonment suspended for five years on certain conditions, including the completion of 80 hours of community service, substituted with sentence of payment of a fine of R4000 or six months’ imprisonment suspended for four years on certain conditions, but no community-service obligation imposed. 

S v LM (FACULTY OF LAW, UNIVERSITY OF THE WESTERN CAPE: CHILDREN RIGHTS, PROJECT OF THE COMMUNITY LAW CENTRE AND OTHERS AS AMICI CURIAE) (WCC)

DESAI J, GAMBLE J and HENNEY J

2012 MAY 28; OCTOBER 23

Review—In what cases—Juvenile—Broad interpretation given by full bench to s 85 of Child Justice Act 75 of 2008 so as to make all cases involving children younger than 16 years, irrespective of sentence, reviewable, and most cases involving children under 18 years at time of the commission of the offence.

S v WV (GNP)

LEGODI J, MNGQIBISA-THUSI J and LEBALA AJ

2012 JULY 23; AUGUST 3

Rape—Sentence—Life imprisonment—Minimum sentence in terms of Criminal Law Amendment Act 105 of 1997—‘Substantial and compelling circumstances’—Failure of prosecutor and trial court to draw appellant’s attention to prescribed sentences, together with appellant’s personal circumstances, constituting substantial and compelling circumstances.

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