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January 2014

Dear South African Law Reports and Criminal Law Reports subscriber

We wish you a peaceful and safe holiday, and a prosperous new year!

Herewith the cases of interest in the January reports.

 

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

SOUTH AFRICAN LAW REPORTS

The protection of the National Credit Act

There is no objection in principle to parties agreeing to make a normally excluded agreement subject to the National Credit Act 34 of 2005. In this case, considerations of contractual freedom, the pacta sunt servanda principle, and public policy dictated that the court should enforce such a clause. First National Bank, a Division of FirstRand Bank Ltd v Clear Creek Trading 12 (Pty) Ltd and Another 2014 (1) SA 23 (GNP)

Special costs order

Costs were awarded against the defendant on an attorney and client scale in a trial concerning the quantum of damages for medical negligence. The MEC refused to make admissions regarding the content of expert reports, yet no instructions were given for cross-examination, leaving the evidence uncontradicted. Mokhethi and Another v MEC For Health, Gauteng  2014 (1) SA 93 (GSJ)

Review of a prosecutorial decision

A prosecutorial decision not to prosecute constitutes administrative action as defined in Promotion of Administrative Justice Act 3 of 2000, s 1. The court is entitled to interfere with prosecutorial decisions that breach the constitutional principle of legality. The courts are also duty-bound under the doctrine of separation of powers to review such decisions. Freedom Under Law v National Director of Public Prosecutions and Others  2014 (1) SA 254 (GNP)

SOUTH AFRICAN CRIMINAL LAW REPORTS

DNA evidence can convict or set free

Two judgments examine DNA evidence and result in two different verdicts: a conviction is set aside and in the other a conviction is secured. S v SB 2014 (1) SACR 66 (SCA) and S v Nyembe 2014 (1) SACR 105 (GSJ)

Accused makes surprise confession

A statement ought to have been ruled inadmissible where an accused took his attorney by surprise and deviated from his exculpatory instructions, instead making a confession to the police. The duties of a legal representative in this situation are also discussed.  S v Saloman and Others  2014 (1) SACR 93 (WCC)

Substantial and compelling circumstances

What amounts to substantial and compelling circumstances not to impose a life sentence for the rape of a victim under the age of sixteen? Four judgments in this issue examine the factors to be considered, all the more complicated where the perpetrator is a trusted family member. S v FV  2014 (1) SACR 42 (GNP); S v AM 2014 (1) SACR 48 (FB); S v SM 2014 (1) SACR 53 (GNP) and S v MS 2014 (1) SACR 59 (GNP)

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SOUTH AFRICAN LAW REPORTS

TABLE OF CASES

  • Minister of Police and Others v Premier of the Western Cape and Others 2014 (1) SA 1 (CC)

  • First National Bank, A Division of FirstRand Bank Ltd v Clear Creek Trading 12 (Pty) Ltd and Another 2014 (1) SA 23 (GNP)

  • Food and Allied Workers Union v Ngcobo NO and Another 2014 (1) SA 32 (CC)

  • Capricorn Beach Home Owners Association v Potgieter t/a Nilands and Another 2014 (1) SA 46 (SCA)

  • Knipe and Others v Kameelhoek (Pty) Ltd and Another 2014 (1) SA 52 (FB)

  • Johnson and Others v Electoral Commission and Others 2014 (1) SA 71 (EC)

  • Investec Bank Ltd v Adriaanse and Others NNO 2014 (1) SA 84 (GNP)

  • Mokhethi and Another v MEC for Health, Gauteng 2014 (1) SA 93 (GSJ)

  • DH Brothers Industries (Pty) Ltd v Gribnitz NO and Others 2014 (1) SA 103 (KZP)

  • Nkume v Transunion Credit Bureau (Pty) Ltd and Another 2014 (1) SA 134 (ECM)

  • EP Property Projects (Pty) Ltd v Registrar of Deeds, Cape Town, and Another, and Four Related Applications 2014 (1) SA 141 (WCC)

  • Firm Mortgage Solutions (Pty) Ltd and Another v Absa Bank Ltd and Another 2014 (1) SA 168 (WCC)

  • Antares International Ltd and Another v Louw Coetzee & Malan Inc and Another 2014 (1) SA 172 (WCC)

  • Makate v Vodacom (Pty) Ltd 2014 (1) SA 191 (GSJ)

  • Pinfold and Others v Edge to Edge Global Investments Ltd 2014 (1) SA 206 (KZD)

  • Minister of Agriculture and Land Affairs and Another v De Klerk and Others 2014 (1) SA 212 (SCA)

  • Huntrex 337 (Pty) Ltd t/a Huntrex Debt Collection Services v Vosloo and Another 2014 (1) SA 227 (GNP)

  • Haviside v Heydricks and Another 2014 (1) SA 235 (KZP)

  • Tubular Holdings (Pty) Ltd v DBT Technologies (Pty) Ltd 2014 (1) SA 244 (GSJ)

  • Freedom Under Law v National Director of Public Prosecutions and Others 2014 (1) SA 254 (GNP)

FLYNOTES

MINISTER OF POLICE AND OTHERS v PREMIER OF THE WESTERN CAPE AND OTHERS (CC)

MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, MADLANGA J, MHLANTLA AJ, NKABINDE J, SKWEYIYA J, VAN DER WESTHUIZEN J and ZONDO J

2013 AUGUST 6; OCTOBER 1

Commission—Provincial commission of inquiry—Powers—Such include power to subpoena members of police service—Constitution, s 206(5)(a)

 

FIRST NATIONAL BANK, A DIVISION OF FIRSTRAND BANK LTD v CLEAR CREEK TRADING 12 (PTY) LTD AND ANOTHER (GNP)

KOLLAPEN J

2013 FEBRUARY 7; MARCH 14

Credit agreement—Consumer credit agreement—Whether agreement subject to NCA—Parties to normally excluded agreement stating in agreement that it would be governed by NCA—Agreement subject to NCA.

FOOD AND ALLIED WORKERS UNION v NGCOBO NO AND ANOTHER (CC)

MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, MADLANGA J, MHLANTLA AJ, NKABINDE J, SKWEYIYA J, VAN DER WESTHUIZEN J and ZONDO J

2013 AUGUST 29; OCTOBER 9

Labour law—Trade union—Liability to members—Failure to perform mandate—Union failing to pursue unfair dismissal claim on behalf of members after having undertaken to do so—Claiming immunity on basis of own constitution and constitutional right to determine own administration—Provisions invoked not bestowing immunity—Union liable.

CAPRICORN BEACH HOME OWNERS ASSOCIATION v POTGIETER t/a NILANDS AND ANOTHER (SCA)

MTHIYANE AP, MAYA JA, WALLIS JA, VAN DER MERWE JA and SWAIN AJA

2013 SEPTEMBER 2, 19

Attorney—Trust account—Transfers—Funds erroneously transferred—Recipient refusing to refund money to set off debt owing by client of attorney—Reliance on set-off ill-conceived—Parties not mutually indebted to each other—Attorney operating trust account acting as principal, not agent—Attorney entitled to recovery of funds via condictio indebiti.

KNIPE AND OTHERS v KAMEELHOEK (PTY) LTD AND ANOTHER (FB)

DAFFUE J

2013 MAY 23; JUNE 27

Company—Oppressive conduct—Relief—Ambit of remedy—Not appropriate in cases of irretrievable breakdown of trust between members of domestic company—Companies Act 71 of 2008, s 163.

Company—Winding-up—Grounds—Just and equitable to do so—Solvent company—Deadlock in administration of domestic company (quasi-partnership)—Total breakdown of trust between members (family feud)—Final winding-up order appropriate—Companies Act 71 of 2008, s 81(1)(d).

JOHNSON AND OTHERS v ELECTORAL COMMISSION AND OTHERS (EC)

MTHIYANE AP, MOSHIDI J and WEPENER J

2013 SEPTEMBER 17; OCTOBER 9

Election law—Election—Duties of Electoral Commission—Duty to assist prospective candidates—Actions of employee of Commission leading to disqualification of prospective candidates—Failing to advise independent candidates that their applications for registration as candidates defective—Election would in circumstances not be free and fair—Application for postponement of election granted.

INVESTEC BANK LTD v ADRIAANSE AND OTHERS NNO (GNP)

KOLLAPEN J

2013 JUNE 3, 4, 25

Trust—Contracts—Duties of outsiders—Though outsiders dealing with trust obliged to observe provisions of trust deed, primary responsibility for compliance on trustees—Development of higher standard of diligence for outsiders than for trustees objectionable—While outsiders have interest in self-protection, ultimate responsibility for compliance with formalities, for ensuring contracts lie within authority conferred by trust deed, and that contract for benefit of trust and its beneficiaries, lying with trust.

MOKHETHI AND ANOTHER v MEC FOR HEALTH, GAUTENG (GSJ)

CLAASSEN J

2013 SEPTEMBER 13

Costs—Special order—When to be awarded—As mark of court’s disapproval—In trial concerning quantum of damages for medical negligence—Refusal by MEC to make admissions regarding content of expert reports, yet no instructions given for cross-examination, leaving evidence uncontradicted and unchallenged—Displeasure of court expressed through punitive costs award—Costs awarded against defendant on attorney and client scale—Copy of judgment to be transmitted to defendant and head of Department of Health, Gauteng.

DH BROTHERS INDUSTRIES (PTY) LTD v GRIBNITZ NO AND OTHERS (KZP)

GORVEN J

2013 SEPTEMBER 26; OCTOBER 21

Company—Business rescue—Directors’ resolution to begin—Setting-aside—Grounds—Section need be read to include ground that it is just and equitable to do so—Companies Act 71 of 2008, s 130(1)(a).

Company—Business rescue—Business rescue plan—Failure to publish within allotted time—This terminating business rescue proceedings—Companies Act 71 of 2008, s 150(5).

Company—Business rescue—Business rescue plan—Time allotted for publication—Manner in which creditors can extend time—Meeting must be convened and vote taken to do so—Companies Act 71 of 2008, s 150(5).

Company—Business rescue—Business rescue plan—Vote—Rejection—Responses—Binding offer to purchase voting interests of opponents of plan—Nature of offer explained—Companies Act 71 of 2008, s 153(1)(b)(ii).

Company—Business rescue—Business rescue plan—Content—Clause depriving all creditors of part of their claims—Such only competent if creditors acceding to discharge of part of debts concerned—Companies Act 71 of 2008, ss 152(4) and 154(1).

NKUME v TRANSUNION CREDIT BUREAU (PTY) LTD AND ANOTHER (ECM)

DUKADA J

2013 JULY 11; SEPTEMBER 14

Credit agreement—Consumer credit agreement—Credit bureau—Submission of adverse credit information to credit bureau—Consumers having right of access to and may challenge such information before submission—Credit provider must give consumer notice of its intention to submit adverse credit information to bureau—Such requirement peremptory—Conduct in failing to comply with such requirement unlawful—National Credit Act 34 of 2005, s 72, reg 19(4).

EP PROPERTY PROJECTS (PTY) LTD v REGISTRAR OF DEEDS, CAPE TOWN, AND ANOTHER, AND FOUR RELATED APPLICATIONS (WCC)

LOUW J

2012 APRIL 13

Champerty—Funding of litigation by non-party—Court’s discretion to make costs order against funder—General principles and position in foreign jurisdictions set out—Court awarding attorney and client costs against funder where (1) funder had direct and substantial interest in litigation; (2) funder was real litigant in sense of being in full control of litigation with view to gaining financial benefit; and (3) nominal party’s claim was not bona fide.

Arbitration—Award—Validity—Publication—Award may be delivered in manner agreed upon—Arbitration Act 42 of 1965, s 25(1).

FIRM MORTGAGE SOLUTIONS (PTY) LTD AND ANOTHER v ABSA BANK LTD AND ANOTHER (WCC)

DAVIS J

2013 JULY 18

Practice—Judgments and orders—Suspension of execution of court order—Application—Judgment properly procured and granted but no application for rescission of judgment brought—Whether court having residual equitable discretion to grant stay of execution—Court finding in the negative—Application dismissed—Uniform Rules of Court, rule 45A.

ANTARES INTERNATIONAL LTD AND ANOTHER v LOUW COETZEE & MALAN INC AND ANOTHER (WCC)

ROGERS AJ

2011 AUGUST 29; SEPTEMBER 2

International law—Private international law—Devolution of assets of dissolved company—Law to be used to determine—Lex domicilii of company.

Interdict—Interim interdict—Requirements—Prima facie right—Whether party without extant right in property can apply for interdict to preserve it—Party can apply for interdict if it can make out prima facie case that it will in future receive relief from which right in property will flow.

MAKATE v VODACOM (PTY) LTD (GSJ)

SPILG J

2011 AUGUST 24; NOVEMBER 18

Discovery and inspection—Discovery—Deferral—Whether to defer discovery to be decided on facts of particular case with reference to listed factors—Uniform Rules of Court, rule 35(7).

Discovery and inspection—Discovery—Electronic data—Rule 35 covering data stored on databases, that is retrievable by data searches—Uniform Rules of Court, rule 35.

PINFOLD AND OTHERS v EDGE TO EDGE GLOBAL INVESTMENTS LTD (KZD)

STEYN J

2013 SEPTEMBER 13, 27

Company—Winding-up—Solvent company—By shareholder—Shareholder’s application for leave to apply for winding-up—Onus and standard of proof—Applicant bears onus to place sufficient evidence before court of jurisdictional facts in section—Standard of proof required is prima facie proof—Companies Act 71 of 2008, s 81(1)(e).

Company—Winding-up—Solvent company—By shareholder—Shareholder’s application for leave to apply for winding-up—Nature of court’s discretion—Court has broad discretion to grant leave—Companies Act 71 of 2008, s 81(1)(e).

MINISTER OF AGRICULTURE AND LAND AFFAIRS AND ANOTHER V DE KLERK AND OTHERS (SCA)

NAVSA ADP, CACHALIA JA, MAJIEDT JA, VAN DER MERWE AJA and MEYER AJA

2013 SEPTEMBER 30

Conveyancer—Relationship between conveyancer and parties to sale—Whether conveyancer, in accepting payment of purchase price before payment due to seller, acting as agent of seller—Depending on terms of deed of sale—Conveyancer misappropriating funds held in trust account pending transfer to buyer—Seller claiming recovery from buyer—Deed of sale in casu not conferring authority on conveyancer to act as agent for seller in receiving payment of purchase price—Buyer’s payment to conveyancer not constituting payment to seller—Buyer liable for unpaid amount.

HUNTREX 337 (PTY) LTD t/a HUNTREX DEBT COLLECTION SERVICES v VOSLOO AND ANOTHER (GNP)

AA LOUW J

2012 DECEMBER 3, 7; 2013 JANUARY 8

Insolvency—Compulsory sequestration—Application—‘Friendly sequestration’—Application dismissed because (1) it was collusive friendly sequestration; (2) it was based on invalid warrant of execution (and nulla bona return) since default judgment invalid for lack of jurisdiction of court granting it; and (3) two persons with separate estates could not be sequestrated in same application—Court ordering that various questions arising in application to be further investigated, including conduct of applicant’s legal advisors.

HAVISIDE v HEYDRICKS AND ANOTHER (KZP)

CHILI AJ and STRETCH AJ

2013 MAY 20; OCTOBER 17

Land—Sale—Contract—Terms—Warranties—Voetstoots clause—Illegal structure on property erected without required municipal approval—Absence of statutory approval for structure constituting latent defect—Purpose of voetstoots clause to exempt seller from liability for defects of which he/she unaware—Nothing to suggest seller aware that building regulations not complied with—Nor was fraud on part of seller proved—Seller protected by voetstoots clause.

TUBULAR HOLDINGS (PTY) LTD v DBT TECHNOLOGIES (PTY) LTD (GSJ)

DU PLESSIS AJ

2013 APRIL 29; MAY 3

Engineering and construction law—Building contract—Disputes—Dispute resolution procedure in standard terms of contract—Disputes first to be referred to dispute-adjudication board (DAB)—Dissatisfied party may give notice of dissatisfaction and refer matter to arbitration—Contract providing that DAB’s decision ‘shall be binding on both parties who shall promptly give effect to it unless and until it shall be revised’—Issue of notice of dissatisfaction not detracting from obligation to give effect to DAB’s decision—Until such decision revised by arbitration or settlement, parties bound by it and obliged to give prompt effect to it.

FREEDOM UNDER LAW v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS (GNP)

MURPHY J

2013 SEPTEMBER 11–12, 23

Administrative law—Administrative action—What constitutes—Prosecutorial decision not to prosecute or to discontinue prosecution—Such decision constituting administrative action as defined in Promotion of Administrative Justice Act 3 of 2000, s 1.

Administrative law—Abdication of discretionary power—Where Acting Commissioner of Police, as authorised body, withdrawing disciplinary proceedings against high-level official on instruction—Such abdication violating principle that responsibility for discretionary power rests with authorised body and no one else, and decision accordingly unlawful and invalid.

Administrative law—Administrative action—Review—Duty to exhaust internal remedies before instituting legal proceedings—Whether decisions to discontinue prosecution only reviewable in court once applicant exhausted internal remedy of review before National Director of Public Prosecutions—No such obligation imposed on aggrieved party by Constitution, s 179(5)(d).

Constitutional law—Separation of powers—Power of courts to review prosecutorial decisions—Court entitled to interfere with prosecutorial decisions breaching constitutional principle of legality—Decisions not to prosecute or to discontinue prosecution also reviewable under PAJA—Courts duty bound under doctrine of separation of powers to review such decisions—Promotion of Administrative Justice Act 3 of 2000, s 1.

Constitutional law—Prosecuting authority—National Director of Public Prosecutions—Power to review prosecutorial decisions—In circumstances of present case, failure to exercise such

power not complying with constitutional obligation of public functionaries to be responsive, accountable and transparent—Constitution, ss 179(5)(d) and 195.

Police—National commissioner—Powers and duties—Withdrawal of disciplinary proceedings against members—Where acting commissioner doing so while serious allegations against member remaining unresolved—Such decision amounting to dereliction of commissioner’s constitutional and statutory duties to control and manage South African Police Service in open, transparent, accountable, impartial and efficient manner, and accordingly fell to be set aside as illegal—South African Police Service Act 68 of 1995, s 11.

Review—Grounds—Rationality—Process preceding decision—Failure to consult all interested parties—Standard of rationality requiring that representations from all stakeholders, both those in favour and against decision, be considered.

 

SOUTH AFRICAN CRIMINAL LAW REPORTS

TABLE OF CASES

  • S v Rautenbach 2014 (1) SACR 1 (GSJ)

  • S v Matshivha 2014 (1) SACR 29 (SCA)

  • S v FV 2014 (1) SACR 42 (GNP)

  • S v AM 2014 (1) SACR 48 (FB)

  • S v SM 2014 (1) SACR 53 (GNP)

  • S v MS 2014 (1) SACR 59 (GNP)

  • S v SB 2014 (1) SACR 66 (SCA)

  • S v Greef 2014 (1) SACR 74 (WCC)

  • S v Moyo and Others 2014 (1) SACR 82 (GNP)

  • S v Saloman and Others 2014 (1) SACR 93 (WCC)

  • S v Nyembe 2014 (1) SACR 105 (GSJ)

FLYNOTES

S v RAUTENBACH (GSJ)

VALLY J

2013 MARCH 19, 25

Evidence—Witnesses—Calling, examination and refutation of—Cross-examination—Recalling of witness for cross-examination by accused’s attorney—Counsel explaining that as result of insomnia previous night he failed to put crucial aspect of accused’s version to witness—Right to fair trial demanded recall of witness, despite unsatisfactory explanation.

Evidence—Admissibility—Hearsay evidence—Admissibility in terms of s 3 of Law of Evidence Amendment Act 45 of 1988—In murder trial, hearsay evidence admitted, that suggested deceased may have taken own life, where probative value of such evidence enhanced by objective evidence.

S v MATSHIVHA (SCA)

PONNAN JA, SHONGWE JA, TSHIQI JA and ZONDI AJA

2013 AUGUST 30; SEPTEMBER 3

Evidence—Witnesses—Calling, examination and refutation of—The oath—Administering of—To juvenile witness—Not apparent from record that questions put to child witnesses were sufficient to establish that they understood nature and import of oath—Convictions based on their evidence set aside.

S v FV (GNP)

JANSE VAN NIEUWENHUIZEN AJ, LOUW J and RANCHOD J

2012 DECEMBER 18

Rape—Sentence—Life imprisonment—Minimum sentence in terms of Criminal Law Amendment Act 105 of 1997—‘Substantial and compelling circumstances’—Not found where accused had raped his minor daughter over period of four years when she was between ages of 10 and 14—Reported cases on ambit of phrase mere guidelines—Facts that victim still loved her father, that accused’s wife sexually distant after own rape, and that he was willing to share his pension money with his family not counting as substantial and compelling circumstances.

S v AM (FB)

MOCUMIE J and SEPATO AJ

2013 MAY 20; JUNE 14

Rape—Sentence—Life imprisonment—Minimum sentence in terms of Criminal Law Amendment Act 105 of 1997—‘Substantial and compelling circumstances’—Not found where accused, 40-year-old first offender, had raped his 14-year-old stepdaughter and rape was not of worst kind.

S v SM (GNP)

KRUGER J and VAN NIEKERK AJ

2013 AUGUST 5, 13

Rape—Sentence—Life imprisonment—Minimum sentence in terms of Criminal Law Amendment Act 105 of 1997—‘Substantial and compelling circumstances’—Proper approach to assessing—To regard minimum prescribed sentence as determinative or to place undue emphasis on it ran risk of sentence that was disproportionate to crime, criminal and needs of society—Accused having raped his daughter who was nine months shy of her 16th birthday—Life imprisonment set aside and replaced with 15 years’ imprisonment.

S v MS (GNP)

VICTOR J, FOURIE J and MONTSHO AJ

2013 MARCH 26

Rape—Sentence—Life imprisonment—Minimum sentence in terms of Criminal Law Amendment Act 105 of 1997—Appellant raping his 11-year-old stepdaughter on six consecutive nights—Rapes amounting to worst possible kind of rape—Sentence of six terms of life imprisonment imposed.

S v SB (SCA)

MAJIEDT JA, MALAN JA, THERON JA, VAN DER MERWE AJA and ZONDI AJA

2013 AUGUST 23; SEPTEMBER 18

Evidence—Expert evidence—DNA analysis—Assessment of—Reasons given by court for preferring one expert witness’s evidence above another’s not bearing scrutiny—Conclusion derived from application of such evidence furthermore inconsistent with probabilities—Conviction based on such evidence set aside on appeal.

S v GREEF (WCC)

SALDANHA J and ROGERS J

2013 SEPTEMBER 6, 13

Traffic offences—Driving with an excessive concentration of alcohol in the blood—Contravention of s 65(2)(a) of National Road Traffic Act 93 of 1996—Sentence—Suspension of driver’s licence—Order in terms of s 35(3) of Act, that automatic suspension of licence for six months should not take effect—Circumstances in which order would be made—Such circumstances must relate to offence.

S v MOYO AND OTHERS (GNP)

ISMAIL J

2013 APRIL 23

Evidence—Trial-within-a-trial—When necessary—For purposes of determining whether legal representatives or interpreters were present at taking of handwriting specimen—Whether legal representatives or interpreters were present or not irrelevant to admissibility of handwriting specimens—Trial-within-a-trial not necessary.

S v SALOMAN AND OTHERS (WCC)

DAVIS J, GOLIATH J and HENNEY J

2013 AUGUST 5

Evidence—Confession—Admissibility of—Failure of legal representative to provide necessary assistance when making statement to police—Accused deviating from exculpatory instructions to attorney when making statement—Attorney failing to intervene and explain implications to client—Statement ought to have been ruled inadmissible at trial.

Legal practitioners—Duties of—Duty to represent interests of client—Failure of legal representative to provide necessary assistance when making statement to police—Accused deviating from exculpatory instructions to attorney when making statement—Attorney failing to intervene and explain implications to client—Statement ought to have been ruled inadmissible at trial.

S v NYEMBE (GSJ)

VAN OOSTEN J

2013 MAY 29

Evidence—Expert evidence—DNA analysis—Assessment of—DNA evidence corroborating similar-fact evidence—Accused’s bald denial and alibi could not stand in face of such evidence.

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