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February 2019

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the corrected cases in the February law reports.

JUDGMENTS OF INTEREST IN THE FEBRUARY 2019 EDITIONS OF THE SALR AND SACR AS WELL AS THE NAMIBIAN LAW REPORTS 2018(4).

•    Click on the case name to download the original judgment.

 

SOUTH AFRICAN LAW REPORTS

Private schools: cancellation of schooling agreements

In this case, a private school cancelled its agreement with parents to educate their children, on account of the behaviour of the father. Among the issues in the Supreme Court of Appeal, was whether the parents or the children were owed a hearing before the cancellation. AB and Another v Pridwin Preparatory School and Others 2019 (1) SA 327 (SCA)

Refugee Appeal Board: proceedings before

Applicant’s application for asylum was refused, and his appeal to the Refugee Appeal Board dismissed. On review, the High Court considers the burden and standard of proof before the Board; the approach the Board ought to adopt to information it gathers; the investigative duty of the Board in regard to s 3(a) of the Refugees Act 130 of 1998; and the approach to be adopted to s 3(b). FNM v Refugee Appeal Board and Others 2019 (1) SA 468 (GP)

Motor vehicle accidents: identity of vehicles and their owners

A rock fell from a truck, penetrated plaintiff’s windscreen, and struck him on the head. Plaintiff tried to bring his claim within s 17(1)(a) of the Road Accident Fund Act 56 of 1996. However, he could not identify the specific vehicle from which the rock fell, though he could identify 23, from one of which, it probably came. He could also identify those vehicles owners. The issue was whether the owner and vehicle were sufficiently identified, to bring the claim within the section. Jones v Road Accident Fund 2019 (1) SA 514 (GP)
 

SOUTH AFRICAN CRIMINAL LAW REPORTS

Conviction for murder changed to culpable homicide

The appellant grabbed a steak knife and directed a stabbing movement towards the deceased who was hitting and dragging her by the hair from behind. The court held that she must have foreseen possibility she might injure or kill the deceased but that there was no proof that she had reconciled herself with the occurrence of death or disregarded consequences of it occurring. The conviction for murder was changed to one of culpable homicide. S v Botha 2019 (1) SACR 127 (SCA)

Audibly uttering obscenities in court not amounting to contempt of court in facie curiae

An accused, appearing for the third time, audibly uttered obscenities when his case was postponed yet again. The court on appeal found that magistrate and prosecutor had overreacted to frustrations expressed by the accused and recommended that both the National Prosecuting Authority and the Magistrates Commission educate officers of the court in the scope of their powers when unseemly behaviour occurred. S v Meiring 2019 (1) SACR 227 (GJ

Meaning of ‘exceptional circumstances’ in s 17(2)(f) of Superior Courts Act 10 of 2013
The mere recanting by a state witness did not, without more, amount to ‘exceptional circumstances’ in terms of s 17(2)(f) of Superior Courts Act 10 of 2013. S v Liesching and Others 2019 (1) SACR 178 (CC)
 

THE NAMIBIAN LAW REPORTS 

Whether a South African clinical psychologist giving expert evidence in a Namibian court could be considered as practising as provided for in the Social Work and Psychology Act 6 of 2004

The plaintiff gave notice that he intended calling an expert clinical psychologist (D) to give expert evidence in the main action. The defendant objected to the calling of D as an expert witness on the ground that D was a South African national and as a result had to be registered in Namibia as contemplated in s 17 of the Social Work and Psychology Act 6 of 2004. The practice of a clinical psychologist included reporting and testifying in a court as an expert. D had drafted the report in question and would base his evidence and opinion on the said report. D would be compensated for the services that he rendered within the course and scope of his practice, which included presenting the said report to court. D would accordingly be practising when he testified and produced his report in court and therefore D had to be registered with the council in Namibia. CS v CS 2018 (4) NR 973 (HC)

Maternal fillicide&#8212sentence of 25 years’ imprisonment imposed
 
The accused had admitted she had unlawfully and with intent to cause the death of her biological three-year-old child suffocated her. She further admitted that on the same date the murder took place she attempted to set alight the motor vehicle in which she and the deceased were, with the intention to defeat or obstruct the course of justice. In mitigation she testified that at the time of the incident she was enraged at her family and her ex-partner and felt anger towards them. The accused’s actions on that day were irrational, and she was driven by anger and completely lost perspective and that this was a factor that the court in sentencing should take into consideration. Persons who fail to take control of their emotions when facing life’s challenges will not be rewarded and weight would not be attached thereto in determining sentencing. S v Seas 2018 (4) NR 1050 (HC)

The constitutionality of s 66 of the Magistrates Courts Act, 1944, rules 12(1), 36 and 43 of the Magistrates’ Courts Rules

The first applicant, through the second applicant, a close corporation, was the registered owner of a sectional title unit consisting of section No 32 and in a building known as Urban Space in Windhoek. The first respondent, the body corporate which managed the Urban Space building, obtained judgment by default in a magistrates’ court against the close corporation in respect of arrear levies and penalties for unit 32. The judgment remained unsatisfied and unit 32 was attached pursuant to a warrant of execution and sold in execution to the second respondent. The applicants sought an order declaring s 66 of the Magistrates Courts Act 32 of 1944 invalid insofar as it authorised the sale in execution of immovable property if insufficient movable property to satisfy a judgment or order of a magistrates’ court was not found, declaring rule 12 of the Magistrates’ Courts Rules invalid insofar as it authorised the clerk of the magistrates’ court to grant judgment by default, declaring rule 43 of the rules invalid insofar as it authorised the issue of a warrant of execution against immovable property without the supervision of a magistrate and not in the same manner as prescribed by rule 108 of the Rules of the High Court of Namibia which required the matter to be brought before a judge in order to obtain an order declaring the property specially executable. The differentiation in procedures in the magistrates’ courts and the High Court was not reasonable and not rationally connected to the purpose for which the magistrates’ courts were created. Section 66(1)(a) of the Magistrates Courts Act and rules 36 and 43 of the Magistrates’ Courts Rules insofar as they permitted the sale in execution of immovable property without judicial oversight offended against art 10(1) of the Constitution. There was thus the need to align s 66(1)(a) of the Magistrates Courts Act and rules 36 and 43 of the Magistrates’ Courts Rules with the procedures set out in rule 108 of the High Court Rules. Hiskia and Another v Body Corporate of Urban Space and Others 2018 (4) NR 1067 (HC)
 


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 SOUTH AFRICAN LAW REPORTS
 TABLE OF CASES
 
  • AB and Another v Pridwin Preparatory School and Others 2019 (1) SA 327 (SCA)
  • SOS Support Public Broadcasting Coalition and Others v South African Broadcasting Corporation (SOC) Ltd and Others 2019 (1) SA 370 (CC)
  • Shaw and Another v Mackintosh and Another 2019 (1) SA 398 (SCA)
  • Du Bruyn NO and Others v Karsten 2019 (1) SA 403 (SCA)
  • Compass Insurance Company Ltd v Cobus Smit Projekbestuur CC and Another 2019 (1) SA 413 (WCC)
  • Equal Education and Another v Minister of Basic Education and Others 2019 (1) SA 421 (ECB)
  • FNM v Refugee Appeal Board and Others 2019 (1) SA 468 (GP)
  • Gamede v Public Protector 2019 (1) SA 491 (GP)
  • Jones v Road Accident Fund 2019 (1) SA 514 (GP)
  • Kangra Group (Pty) Ltd v Commissioner, South African Revenue Service 2019 (1) SA 520 (WCC)
  • Liberty Group Ltd v K & D Telemarketing CC and Others 2019 (1) SA 540 (GP)
  • Mathimba and Others v Nonxuba and Others 2019 (1) SA 550 (ECG)
  • Nedbank Ltd v Thobejane and Similar Matters 2019 (1) SA 594 (GP)
  • AS v Neotel (Pty) Ltd 2019 (1) SA 622 (GJ)
  • Van der Bijl and Another v Featherbrooke Estate Home Owners’ Association (NPC) 2019 (1) SA 642 (GJ)
 
 FLYNOTES
 

AB AND ANOTHER v PRIDWIN PREPARATORY SCHOOL AND OTHERS (SCA)

SHONGWE ADP, CACHALIA JA, MOCUMIE JA, SCHIPPERS JA and MOTHLE AJA
2018 NOVEMBER 1
[2018] ZASCA 150

Education - School—Independent school—Contract between school and parents—School cancelling on account of parent’s conduct—Whether parents had right to hearing before cancellation—Whether enforcement of termination clause contrary to public policy—Whether cancellation substantively unlawful—Constitution, 1996, ss 28(2) and 29(1).

SOS SUPPORT PUBLIC BROADCASTING COALITION AND OTHERS v SOUTH AFRICAN BROADCASTING CORPORATION (SOC) LTD AND OTHERS (CC)

CAMERON J, FRONEMAN J, JAFTA J, KATHREE-SETILOANE AJ, KOLLAPEN AJ, MADLANGA J, MHLANTLA J, THERON J and ZONDI AJ
2018 SEPTEMBER 28
[2018] ZACC 37

Competition - Competition Commission—Investigative powers—Merger control—Whether Commission may use its search and summons powers to investigate alleged notifiable merger between public and private television broadcasters—Whether such powers curbed by Competition Appeal Court order—Competition Act 89 of 1998, ch 5 part B; s 49A.

Media - Broadcasting—Television—SABC—Channel-distribution agreement with private broadcaster—Power of Competition Commission to investigate—Not restricted—Commission may use full search and summons powers—May interview those who signed agreement—Competition Act 89 of 1998, ch 5 part B; s 49A.

SHAW AND ANOTHER v MACKINTOSH AND ANOTHER (SCA)

SHONGWE ADP, WALLIS JA, DAMBUZA JA, MATHOPO JA and DAVIS AJA
2018 MARCH 29
[2018] ZASCA 53

Credit agreement - Consumer credit agreement—What constitutes—‘Co-principal debtor’ assuming liability for indebtedness of another—Constituting credit guarantee—Quaere: Whether co-principal debtor also ‘surety’—National Credit Act 34 of 2005, s 8(5).

DU BRUYN NO AND OTHERS v KARSTEN (SCA)

NICHOLLS AJA, SHONGWE ADP, MAKGOKA JA, SCHIPPERS JA and MOKGOHLOA AJA
2018 SEPTEMBER 28
[2018] ZASCA 143

Credit agreement - Consumer credit agreement—Credit provider—Whether obligation to register—Where principal debt exceeding statutory threshold, registration required even where agreement single transaction and credit provider not involved in credit industry—Semble: Situation unsatisfactory and should be remedied by legislature—National Credit Act 34 of 2005, s 40(1).

COMPASS INSURANCE COMPANY LTD v COBUS SMIT PROJEKBESTUUR CC AND ANOTHER (WCC)

MEER J
2018 SEPTEMBER 10

Engineering and construction law - Building contract—Construction guarantee—Rectification—A (as guarantor) issuing guarantee to B (as beneficiary), to cover C’s (contractor’s) performance in terms of contract between C and B—Rectification of guarantee may be sought at instance of contractor, even though not signatory to guarantee, on basis that guarantee intended to reflect common intention of guarantor, beneficiary and contractor.

EQUAL EDUCATION AND ANOTHER v MINISTER OF BASIC EDUCATION AND OTHERS (ECB)

MSIZI AJ
2018 JULY 19

Education - Right to education—Duties of state—Provision of school infrastructure—Norms and standards—Prescribed regulations made subject to availability of resources and cooperation of other government agencies responsible for infrastructure—Such proviso violating constitutional value of accountability and declared unconstitutional—Constitution, ss 7(2), 29(1)(a), 41(1)(c) and 195(1)(f); South African Schools Act 84 of 1996, s 5A.

FNM v REFUGEE APPEAL BOARD AND OTHERS (GP)

DODSON AJ
2018 JULY 12

Immigration - Refugee Appeal Board—Proceedings before—Burden and standard of proof—Information Board gathers—Opportunity to respond thereto.

Immigration - Refugee—Qualification for status of—Section 3(a)—Individual providing information relevant only to s 3(b)—Duty to investigate if individual falling within s 3(a)—Section 3(b)—Objective and subjective enquiry—Time-point to assess position in place departed from—Refugees Act 130 of 1998, ss 3(a) and 3(b).

GAMEDE v PUBLIC PROTECTOR (GP)

DE VOS J
2018 AUGUST 29

Constitutional law - Chapter 9 institutions—Public Protector—Preliminary investigation—Subject’s right of access to evidence—Applicant, public official under investigation for maladministration and corruption, seeking review of Public Protector’s decision to refuse him access—Applicant not yet entitled to requested information—No reviewable decision made—Promotion of Administrative Justice Act 3 of 2000, s 1 sv ‘administrative action’; Public Protector Act 23 of 1994, s 7(9)(a).

Administrative law - Administrative action—What constitutes—Decision of Public Protector to deny subject of investigation access to evidence—If investigation still at preliminary phase, then decision not adversely affecting subject’s rights—No reviewable decision made—Promotion of Administrative Justice Act 3 of 2000, s 1 sv ‘administrative action’; Public Protector Act 23 of 1994, s 7(9)(a).

JONES v ROAD ACCIDENT FUND (GP)

VAN DER SCHYFF AJ
2018 SEPTEMBER 7

Motor vehicle accident - Compensation—Claim against Road Accident Fund—Sufficiency of information furnished in claim form—Identity of owner of insured vehicle—Specific vehicle and owner to be identified to bring claim within section—Road Accident Fund Act 56 of 1996, s 17(1)(a).
 

KANGRA GROUP (PTY) LTD v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE (WCC)

GAMBLE J, SALIE-HLOPHE J and THULARE AJ
2018 AUGUST 27

Revenue - Income tax—Deductions—Contractual damages—Amount paid by taxpayer in settlement of claim for repudiation of contract where such repudiation enabled taxpayer to sell goods at higher price to other parties, increasing taxable income—Whether deductible expense—Income Tax Act 58 of 1962, s 11(a).

LIBERTY GROUP LTD v K & D TELEMARKETING CC AND OTHERS (GP)

TUCHTEN J
2018 JUNE 14

Practice - Judgments and orders—Absolution from instance—Plaintiff seeking to proceed afresh on same papers—Requirement to obtain court’s leave to do so.

MATHIMBA AND OTHERS v NONXUBA AND OTHERS (ECG)

LOWE J, MALUSI J and JOLWANA J
2018 SEPTEMBER 18

Attorney - Fees—Contingency fees—Contingency fee agreement—Statutory limitation—Both advocate and attorney acting on contingency—Court summarising applicable principles—Whether cap of 25% a global cap applicable to all legal practitioners in case, so that jointly their fees cannot amount to more than 25% of amount awarded, or an individual cap applicable to each—Whether legal practitioner may charge maximum permissible under Contingency Fees Act, plus taxed costs to be paid by other side—Contingency Fees Act 66 of 1997, s 2.

NEDBANK LTD v THOBEJANE AND SIMILAR MATTERS (GP)

LEDWABA DJP, MOTHLE J and TOLMAY J
2018 SEPTEMBER 26

Court - High Court—Jurisdiction—Court may decline to hear matter falling within jurisdiction of magistrates’ courts—Practice of bypassing magistrates’ courts amounting to abuse of process—Gauteng Division, Pretoria issuing ruling that matters falling within jurisdiction of magistrates’ courts in future be brought there unless High Court grants leave for matter to be brought before it.

Court - High Court—Jurisdiction—Inherent jurisdiction of High Court—High Court entitled to mero motu transfer matter to another court, ie magistrates’ court, or local or provincial division of High Court, if in interests of justice to do so.

Court - High Court—Jurisdiction—Inherent jurisdiction of High Court—To protect and regulate its own processes—Circumstances in which High Court may exercise such power.

Constitutional law - Human rights—Right of access to court—Practice of litigants instituting in High Court matter falling within jurisdiction of magistrates’ court—Practice of bypassing magistrates’ courts hindering impecunious litigants’ right to access to justice, and overburdening High Court—Practice amounting to abuse of process—Allowing for court to exercise its inherent power to protect and regulate its processes, and to decline to hear matter.

AS v NEOTEL (PTY) LTD (GJ)

SPILG J
2018 JULY 31

Equality legislation - Equality Court—Jurisdiction—Concurrency with Labour Court—Equality Court having jurisdiction where able to provide more effective remedy, even though cause of action falling within scope of Labour Court—Equality Court, rather than Labour Court, having jurisdiction where cause of action arising from unconstitutional abuse of corporate power—Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, s 5(3).

VAN DER BIJL AND ANOTHER v FEATHERBROOKE ESTATE HOME OWNERS’ ASSOCIATION (NPC) (GJ)

UNTERHALTER J
2018 AUGUST 23

Delict - Elements—Unlawfulness or wrongfulness—Liability for omission—Test—Whether defendant under legal duty to act—Legal convictions of community—Specific criteria.

Delict - Elements—Unlawfulness or wrongfulness—Liability for omission—Whether homeowners’ association of secured residential estate under legal duty to protect homeowners from robbery in their homes—No such duty, absent an agreement between homeowners and association to such effect.

 

 SOUTH AFRICAN CRIMINAL LAW REPORTS
 TABLE OF CASES
  
  • S v Botha 2019 (1) SACR 127 (SCA)
  • Jiba and Another v General Council of the Bar of South Africa and Another 2019 (1) SACR 154 (SCA)
  • S v Liesching and Others 2019 (1) SACR 178 (CC)
  • S v Meiring 2019 (1) SACR 227 (GJ)
  • S v Mazibuko 2019 (1) SACR 239 (KZP)
  • S v Muller 2019 (1) SACR 242 (WCC)
 
 FLYNOTES
 

S v BOTHA (SCA)

TSHIQI JA, SERITI JA, ZONDI JA, SCHIPPERS JA and MOKGOHLOA AJA
2018 AUGUST 24; NOVEMBER 1 
[2018] ZASCA 149

Murder - Mens rea—Intention to kill—Accused must have foreseen possibility that by directing knife towards upper body of deceased, who was attacking her, she might injure or kill her—No proof, however, that she had reconciled herself with occurrence of death or disregarded consequences of it occurring—Conviction for murder changed to one of culpable homicide. 

JIBA AND ANOTHER v GENERAL COUNCIL OF THE BAR OF SOUTH AFRICA AND ANOTHER (SCA)

SHONGWE ADP, LEACH JA, SERITI JA, VAN DER MERWE JA and MOCUMIE JA
2018 JULY 10
[2018] ZASCA 103

Legal practitioners - Advocate—Misconduct—Removal from roll—Appeal by advocates struck from roll—Complaints, inter alia, of provision of incomplete records, late filing of affidavits, and attempts to mislead court—Cross-appeal by General Council of Bar against adverse costs order.

S v LIESCHING AND OTHERS (CC)

ZONDO DCJ, CAMERON J, FRONEMAN J, JAFTA J, KATHREE-SETILOANE AJ, KOLLAPEN AJ, MADLANGA J, MHLANTLA J, THERON J and ZONDI AJ
2017 AUGUST 24; 2018 AUGUST 29
[2018] ZACC 25

Appeal - Further evidence—Leave to appeal from refusal by President of Supreme Court of Appeal of application to lead further evidence—Meaning of ‘exceptional circumstances’ in s 17(2)(f) of Superior Courts Act 10 of 2013—Mere recanting by state witness insufficient without more.

Appeal - Further evidence—Leave to appeal from refusal by President of Supreme Court of Appeal of application to lead further evidence—Whether Constitutional Court has jurisdiction to hear such application—Court not deciding in matter where issue not properly ventilated and argued.

S v MEIRING (GJ)

SUTHERLAND J and MUDAU J
2018 NOVEMBER 7

Contempt of court - Contempt in facie curiae—Sentence—Magistrate exceeding jurisdiction in imposing sentence—Overreaction by magistrate and prosecutor to frustrations expressed by accused—Conviction and sentence set aside.

S v MAZIBUKO (KZP)

GORVEN J and VAHED J
2018 OCTOBER 29

Sentence - Magistrates’ court—Jurisdiction—Provisions of s 302(1)(a) of Criminal Procedure Act 51 of 1977 simply providing for when automatic review triggered and having nothing to do with sentencing jurisdiction of magistrates.

S v MULLER (WCC)

CLOETE J and PARKER J
2018 NOVEMBER 16

Plea - Plea-and-sentence agreement—Contents of—Agreement containing provision for suspension of accused’s driver’s licence—Inquiry under s 35 of National Road Traffic Act 93 of 1996 forming integral part of determination of appropriate sentence and therefore could be included in such agreement.

Plea - Plea-and-sentence agreement—Procedure—Where presiding officer not considering that sentence just, was duty-bound to follow peremptory provisions of s 105A(9) of Criminal Procedure Act 51 of 1977.

Traffic offences - Driving with excessive concentration of alcohol in blood—Sentence—Suspension of driver’s licence—Circumstances to be taken into account—Conflicting decisions in Western Cape Division on number of circumstances that could be taken into account, and lower courts left in dark.

 

 THE NAMIBIAN LAW REPORTS 2018(4)
 TABLE OF CASES
  TABLE OF CASESTABLE OF CASES  
  • Mpasi NO and Another v Master of the High Court and Others 2018 (4) NR 909 (SC)
  • Onesmus v Namibia Farm Workers’ Union 2018 (4) NR 922 (LC)
  • Namibia Tourism Board v Kankondi and Another NO 2018 (4) NR 931 (LC)
  • S v Miguel and Others 2018 (4) NR 946 (HC)
  • Nambinga v Rally for Democracy and Progress and Others 2018 (4) NR 956 (HC)
  • CS v CS 2018 (4) NR 973 (HC)
  • Schkade v Gregory NO and Others 2018 (4) NR 986 (HC)
  • Maritz v Louw NO and Others 2018 (4) NR 1000 (HC)
  • S v Koch 2018 (4) NR 1006 (HC)
  • S v Baarman and Three Similar Cases 2018 (4) NR 1022 (HC)
  • S v Nghixulifwa and Others 2018 (4) NR 1027 (HC)
  • S v Matlata 2018 (4) NR 1038 (HC)
  • S v Seas 2018 (4) NR 1050 (HC)
  • S v Boois 2018 (4) NR 1060 (HC)
  • Hiskia and Another v Body Corporate of Urban Space and Others 2018 (4) NR 1067 (HC)
  • Akwenye v Amadhila 2018 (4) NR 1090 (HC)
  • Koujo v Minister of Mines and Energy and Others 2018 (4) NR 1097 (HC)
  • Metropolitan Bank of Zimbabwe Ltd and Another v Bank of Namibia 2018 (4) NR 1115 (SC)
  • Minister of Finance and Another v Hollard Insurance Co of Namibia Ltd and Others 2018 (4) NR 1133 (HC)
  • S v Iyambula: In Re Haipumbu 2018 (4) NR 1154 (NLD)
  • Kashela v Katima Mulilo Town Council and Others 2018 (4) NR 1160 (SC)
  • Khariseb v Ministry of Safety and Security and Others 2018 (4) NR 1180 (HC)
  • Central Procurement Board v Nangolo NO and Others 2018 (4) NR 1188 (HC)
 FLYNOTES
 

MPASI NO AND ANOTHER v MASTER OF THE HIGH COURT AND OTHERS (SC)

SHIVUTE CJ, SMUTS JA and HOFF JA
2018 JUNE 19; AUGUST 17

Administration of estates - Executor—Appointment of—High Court having no power to appoint executor—Only Master of High Court having power to appoint executor and to issue letters of executorship—Neither Administration of Estates Act 66 of 1965 nor common law conferring power on court to appoint executor, even though court having power to set aside appointment of executor—Court on appeal setting aside appointment of executor by High Court after it had set aside appointment of appellant as executor—Administration of Estates Act 66 of 1965, ss 14, 54(1)(a) and 95.

Evidence - Presumptions—Presumption of marriage rather than of concubinage—No marriage certificate produced—But evidence of cohabitation and repute of marriage produced—Opposing party failing to produce evidence dislodging such evidence—Court applying presumption of marriage in finding marriage proved.

ONESMUS v NAMIBIA FARM WORKERS’ UNION (LC)

MASUKU J
2018 JUNE 29; JULY 16
[2018] NALCMD 17

Costs - Labour matters—Section 118 of Labour Act 11 of 2007—Propriety of issuing costs order in labour matter—Meaning of frivolous and vexatious conduct—Legislative meaning in s 118 was not common law one—Obnoxious conduct must be in relation to ‘instituting, proceeding with or defending’ proceedings—Where labour proceedings have either been properly instituted, proceeded with or defended by party, such party may not be mulcted with costs, even if said party did not adhere to certain orders or directives of court.

NAMIBIA TOURISM BOARD v KANKONDI AND ANOTHER NO (LC)

MASUKU J
2018 AUGUST 1, 17
[2018] NALCMD 22

Costs - Labour matters—Section 118 of Labour Act 11 of 2007—Applicant disobeying court order issued by arbitrator and registered and endorsed by Labour Court with amendments—Whether court may, notwithstanding s 118, issue order for costs in case of deliberate disobedience of order of court—Costs order, even on ordinary scale, was enough retribution and rebuke, considering usual order in labour matters.

Labour law - Urgent application—For setting aside of arbitration award—Whether applicant should be heard by court notwithstanding disobedience of court order—Exceptions to rule that party may not be heard when in violation of order of court discussed—Applicant’s conduct not merely negative act of non-compliance of court order but applicant positively took steps to violate order of court. 

S v MIGUEL AND OTHERS (HC)

SIBOLEKA J and SALIONGA AJ
2018 APRIL 20; JULY 19
[2018] NAHCMD 219

Appeal - Condonation—Late filing of notice of appeal—Non-compliance with rules of court—Appellant should file affidavit—Legal practitioners who deposed to affidavit lacked capacity to file condonation application—Appellants failed to explain delay—No prospect of success—Application for condonation refused.

Criminal procedure - Forfeiture—Appellants contravening Prevention of Organised Crime Act 29 of 2004—Magistrate refusing to order forfeiture of money and transporting vehicle—Forfeiture order in terms of s 35 of Criminal Procedure Act 51 of 1977 could be made without application.

NAMBINGA v RALLY FOR DEMOCRACY AND PROGRESS AND OTHERS (HC)

UEITELE J
2017 NOVEMBER 3; DECEMBER 21
2018 APRIL 20
[2018] NAHCMD 102

Voluntary association - Unincorporated voluntary association—Political party—Rules of—Constitution of party making provision for internal resolution of disputes within party—Mere fact that internal remedy provided not implying that access to court prohibited pending exhaustion of internal remedy—Nothing in constitution of party prohibiting member from approaching court if aggrieved by decision of an organ of that party.

Voluntary association - Unincorporated voluntary association—Political party—Resolution to pass vote of no confidence in president of party—Such resolution not on agenda of meeting of National Executive Committee of party—No notice of proposed resolution given to president—Relationship between party and members, including president contractual—Adoption of motion of no confidence clear breach of contractual terms between president and party—As such, motion of no confidence unlawful and invalid—Such motion set aside.

CS v CS (HC)

PRINSLOO J
2018 JULY 30; AUGUST 3, 9

Evidence - Witness—Expert—Clinical psychologist—South African clinical psychologist—Evidence objected to on grounds that clinical psychologist not registered to practise in Namibia as contemplated in s 17 of Social Work and Psychology Act 6 of 2004—In drafting report and basing his evidence thereon and being compensated therefor within course and scope of his practice, clinical psychologist would be practising within meaning of Act and regulations—Accordingly, clinical psychologist had to be registered as contemplated in Act—Objection to his evidence sustained.

SCHKADE v GREGORY NO AND OTHERS (HC)

MASUKU J
2018 MARCH 28; AUGUST 9

Will - Validity—Forgery alleged—Application in terms of rule 65 of Rules of High Court for order declaring will invalid—Such not amounting to application for review under rule 76 challenging administrative action by master in accepting and registering will in terms of Administration of Estates Act 66 of 1965—Application correctly brought under rule 65—But application dismissed because of disputes of fact which could not be resolved in application proceedings.

Will - Validity—Forgery alleged—Application in terms of rule 65 of Rules of High Court for order declaring will invalid—Delay in bringing application—As application brought in terms of rule 65 and not as review in terms of rule 76, rule regarding inordinate delay being bar to relief not applicable—Rule regarding inordinate delay applicable only to bona fide applications for review.

Will - Validity—Application for order declaring will invalid—Rules of High Court, rule 65—Court pointing out necessity of complying with rule 65(7)(a) requiring application to be submitted to master for report and for master’s report to be filed in court with application on pain of application being struck from roll.

MARITZ v LOUW NO AND OTHERS (HC)

PRINSLOO J
2018 JULY 27; AUGUST 28, 29
[2018] NAHCMD 261

Practice - Pleadings—Plea—Special plea—Can either be dilatory plea delaying action or peremptory plea quashing action altogether—Whether pleading over required in case of peremptory plea, that lies in discretion of presiding officer—Special plea in present case aimed at challenging legality of partnership on which action founded—Finding on special plea that partnership illegal would bring end to action, plaintiff’s claim would be dismissed and matter finalised—Ordered that special plea be determined separately from merits of case.

S v KOCH (HC)

DAMASEB JP
2018 JUNE 18–22, 26–29; AUGUST 1–3, 6; SEPTEMBER 18
[2018] NAHCMD 290

Criminal law - Sexual offences—Against minors—Child trafficking—What constitutes—Act of harbouring or receiving a child—Accused creating climate in which he found himself with minor girls of 13 years and below without oversight by their parents—Prevention of Organised Crime Act 29 of 2004, s 15 read with s 1.

Criminal law - Sexual offences—Against minors—Sexual exploitation—What constitutes—Lewd behaviour and indecent exposure in presence of child—Combating of Immoral Practices Act 21 of 1980, s 14(a)(i)–(ii).

S v BAARMAN AND THREE SIMILAR CASES (HC)

DAMASEB JP, NDAUENDAPO J and LIEBENBERG J
2018 OCTOBER 1
[2018] NAHCMD 315

Criminal procedure - Trial—Part-heard trial—Unavailability of magistrate to continue—Proceedings become a nullity and no reason why case should not be heard de novo before another magistrate without declaration by High Court.

S v NGHIXULIFWA AND OTHERS (HC)

LIEBENBERG J
2018 SEPTEMBER 13; OCTOBER 17
[2018] NAHCMD 326

Criminal procedure - Charge—Quashing of—When accused entitled to raise objection—When objection that charge did not disclose offence—Entitled to raise before evidence led.

Criminal procedure - Charge—Quashing of—Objection that charge relied on averment that entity a public body and that its CEO a public officer, which accused contended they were not—Dangerous to decide such issue without hearing evidence—Objection to charge dismissed.

Criminal procedure - Charge—Quashing of—Objection that reliance by state on s 43(2) of Anti-Corruption Act 8 of 2003 violated accused’s rights under arts 7 and 12 of Constitution and section unconstitutional—Substantive application citing all interested parties required for such challenge. 

S v MATLATA (HC)

LIEBENBERG J
2018 SEPTEMBER 6, 7, 18
[2018] NAHCMD 289

Criminal procedure - Sentence—Plea of guilty—Such plea a factor to be taken into account in sentencing—Guilty plea should be followed by sincere expression of remorse given in evidence under oath for it to be mitigating factor—Failing to testify about his feelings towards his victims’ harm, pain and suffering accused not taking court into his confidence—Guilty plea accorded less weight.

Criminal procedure - Sentence—Minimum sentences—Rape—Combating of Rape Act 8 of 2000—Substantial and compelling circumstances justifying lesser sentence—Exceptional circumstances not required for finding of substantial and compelling circumstances—All factors to be considered—Court to determine whether substantial and compelling circumstances exist in circumstances of case—Victims subjected to brutal assaults with infliction of grievous bodily harm and death—No substantial and compelling circumstances found to exist justifying lesser sentence.

Criminal procedure - Sentence—Multiple counts—Serious offences—Imposition of lengthy terms of imprisonment inevitable—Life imprisonment—Correctional Services Act 9 of 2012, s 99—Governs commencement, computation and expiry of sentences—Any further term of imprisonment imposed in addition to life sentence to be served concurrently with earlier sentence of life imprisonment in terms of s 99(2)—Irrespective whether further term exceeds 371–2 years’ imprisonment. 

S v SEAS (HC)

LIEBENBERG J
2018 AUGUST 13, 17
[2018] NAHCMD 245

Criminal law - Murder—Sentence—Maternal filicide—Accused’s motive for murdering child was to get back at ex-partner—Accused’s action irrational and driven by anger—Persons who fail to take control of their emotions when facing life’s challenges will not be rewarded and weight would not be attached thereto in determining sentencing—Sentence of 25 years’ imprisonment imposed.

Criminal law - Murder—Sentence—Generally—Courts not only under duty to uphold rule of law but also have duty to reflect society’s indignation and antipathy towards those making themselves guilty of heinous crimes—Aggravating factors—Murder was a serious offence—Offence committed against innocent child by mother—Accused sole provider and protector of minor child—Commission of offence premeditated—These factors weigh heavily against accused—Mitigating factors—Accused pleaded guilty—Accused showed remorse during trial—Accused would have to live with pain and feelings of guilt for as long as she lived—Not likely that accused would repeat this offence—Accused regretting what she had done to her own child—This weighed heavily in accused’s favour—Accused’s personal circumstances simply did not measure up to gravity of offence and interests of society—Imposition of lengthy term of imprisonment on charge of murder was therefore inescapable.

S v BOOIS (HC)

NDAUENDAPO J
2018 SEPTEMBER 4, 18
[2018] NAHCMD 291

Criminal procedure - Sentence—Previous convictions—Accused convicted of murder, rape, assault by threat and defeating or obstructing the course of justice—Serious offences—Accused having previous conviction for rape prior to Combating of Rape Act 8 of 2000—Therefore liable to minimum sentence of 20 years’ imprisonment for present rape—Combating of Rape Act 8 of 2000, s 3(b)(ii)—Accused sentenced to life imprisonment for murder of rape victim who was visibly pregnant—Retribution and deterrence requiring most severe punishment available for such brutal killing of rape victim.

HISKIA AND ANOTHER v BODY CORPORATE OF URBAN SPACE AND OTHERS (HC)

UEITELE J
2017 OCTOBER 5; 2018 AUGUST 31; SEPTEMBER 11
[2018] NAHCMD 279

Magistrates’ court - Practice—Service—Summons—Service on close corporation—Irregular service—Not effected at corporation’s local office or principal place of business—Nor was service effected on person having any relationship with close corporation—Service of summons invalid as not effected in terms of rule 9(3)(e) of Rules of Magistrates’ Courts.

Magistrates’ court - Practice—Service—Summons—Service on close corporation—Service effected by affixing summons to door at registered office of close corporation—Neither of rule 9(3)(e) of Rules of Magistrates’ Courts nor s 25 of Close Corporations Act 26 of 1988 permitted service of process or document by affixing it to door at registered office of close corporation—Such form of service defective and invalid—Both rule 9(3)(e) and s 25 of Act requiring process or document to be delivered (handed over) to responsible employee at local office, place of business or registered office of close corporation.

Magistrates’ court - Practice—Execution—Differentiation between execution procedures in magistrates’ court and High Court—Such procedure subject to judicial oversight in High Court but not in magistrates’ court—Such differentiation in procedures not reasonable and not rationally connected to purpose for which magistrates’ courts created—Rule 12(1)(a) of Magistrates’ Courts Rules offending against arts 10(1), 12(1)(a) and 79(1) of Constitution of Namibia—Furthermore, s 66(1)(a) of Magistrates Courts Act and rules 36 and 43 of Magistrates’ Courts Rules insofar as they permitted sale in execution of immovable property without judicial oversight offending against art 10(1) of Constitution and therefore invalid—Procedure in magistrates’ courts for execution against immovable property needing to be aligned with procedures set out in rule 108 of High Court Rules. 

AKWENYE v AMADHILA (HC)

PRINSLOO J
2018 JULY 30; AUGUST 21, 23
[2018] NAHCMD 252

Practice - Offer of settlement in terms of rule 64 of High Court Rules—Notice in terms of rule 64 containing unconditional settlement offer—Offer made on two of three alternative claims to plaintiff’s claims after defendant barred from pleading—Such claim clearly made conditional upon plaintiff not pursuing main claims further—Plaintiff not obliged to accept offer/tender—When offer not accepted, action proceeding in normal way—But failure to accept unconditional offer might be to plaintiff’s peril when costs considered—Offer in casu falling short of requirements of rule 64 as alternative claims relied on by defendant not main relief sought by plaintiff—In circumstances not for defendant to pick and choose which claim suitable to satisfy—Application to compel plaintiff to accept offer/tender refused.

KOUJO v MINISTER OF MINES AND ENERGY AND OTHERS (HC)

PRINSLOO J
2018 MAY 18; AUGUST 17, 24
[2018] NAHCMD 260

Administrative law - Administrative action—Review—Where functionary not acting in terms of administrative law and its enabling legislation—Such constituting ground for review—Error in system of ministry resulting in incorrect decision being made—Decision-making process flawed—Decision set aside on review—Constitution of Namibia, art 18.

Mines and minerals - Mining claims—Cancellation of claims—Minerals (Prospecting and Mining) Act 33 of 1992, s 44 read with s 55—Mining commissioner clearly repository of power to cancel mining claims, not minister—Decision of minister to cancel applicant’s mining claims irregular and invalid and to be set aside.

Mines and minerals - Mining claims—Granting of—Claims granted on basis of inaccurate coordinates supplied to ministry by applicant for claims—Such resulting in ministry not detecting that claims in same area previously granted to another applicant and resulting in error in ministry’s system—Decision-making process in granting of claims flawed—Decision to grant claims set aside—Minerals (Prospecting and Mining) Act 33 of 1992, s 125.

METROPOLITAN BANK OF ZIMBABWE LTD AND ANOTHER v BANK OF NAMIBIA (SC)

MAINGA JA, SMUTS JA and HOFF JA
2018 OCTOBER 9, 23

Company - Winding up—Application—Requirements of s 351(4) of Companies Act 28 of 2004—Non-compliance with s 351(4)—Provisions of section peremptory but effect of non-compliance to be determined by reference to scope and object of provision—Court condoning substantial compliance with provision.

MINISTER OF FINANCE AND ANOTHER v HOLLARD INSURANCE CO OF NAMIBIA LTD AND OTHERS (HC)

MASUKU J
2018 AUGUST 27, 28; SEPTEMBER 20
[2018] NAHCMD 294

Administrative law - Administrative action—Validity—Applicants applying for urgent order declaring that Namibia National Reinsurance Corporation Act 22 of 1998 and certain government notices and regulations issued pursuant were valid and of full force and effect and compelling respondents to comply therewith—Such order sought pending final determination of respondents’ application for review and setting aside of government notices and regulations—Collateral challenge by respondents to validity of applicants’ administrative action—Held that respondents right party in such proceedings and that right remedy being sought—Party (respondents) bringing judicial review entitled to treat administrative action in question as void and await further developments—This approach not be equated with contumacious disregard for law—Application and applicants’ enforcement of government notices and regulations stayed pending determination of respondents’ application for review and setting aside of government notices and regulations.

Practice - Applications and motions—Striking out—Certain paragraphs of respondents’ answering affidavit on bases that same were scandalous, vexatious or irrelevant—Certain language employed in answering affidavit falling within realms of being scandalous, vexatious or irrelevant—Ordered to be struck out.

S v IYAMBULA: IN RE HAIPUMBU (NLD)

TOMMASI J and CHEDA J
2018 APRIL 11; OCTOBER 2
[2018] NAHCNLD 105

Contempt of court - In facie curiae—Magistrates Courts Act 32 of 1944, s 108—Clerk of court prior court sitting refusing to attest affidavit relating to missing court record—Alleged contempt not committed during sitting of court—Contempt pursuant to the provisions of s 108 must be committed during court’s sitting—Alleged conduct took place prior to court sitting and could not be classified as contempt in facie curiae—Furthermore, number of violations of fundamental principles of legal system relating to fairness of hearing before magistrate committed—Proceedings unfair—Conviction and sentence set aside on review.

KASHELA v KATIMA MULILO TOWN COUNCIL AND OTHERS (SC)

DAMASEB DCJ, CHOMBA AJA and MOKGORO AJA
2018 OCTOBER 2; NOVEMBER 16

Land
 - Communal land—Customary land rights—Transfer of land to local authority—Effect of on customary land rights—Benevolent interpretation of sch 5(3) of Constitution required—Holder of customary land rights had acquired right of exclusive use and occupation of land and that right survived and attached to land even after its proclamation as town land—Constitution of Namibia, sch 5(1), sch 5(3) and Communal Land Reform Act 5 of 2002, s 15(2).

KHARISEB v MINISTRY OF SAFETY AND SECURITY AND OTHERS (HC)

ANGULA DJP
2018 JULY 11; NOVEMBER 7
[2018] NAHCMD 355

Police - Dismissal of employee from service—Deemed dismissal of in terms of s 9 of Police Act 19 of 1990—Legal challenge to dismissal—Prescription of—Cause of action arising when official absent for continuous period of 30 days without permission—Defence to prescription that official required to exhaust internal remedies—No such clear intention appearing from legislation—Claim having prescribed.

CENTRAL PROCUREMENT BOARD v NANGOLO NO AND OTHERS (HC)

MASUKU J
2018 MARCH 22; NOVEMBER 9
[2018] NAHCMD 357

Administrative law - Tender award—Review panel—Powers of under Procurement Act 15 of 2015—Apparent conflict between ss 59 and 60 of Act—Proper interpretation of—Panel has power to set aside on review, whether in part, or as a whole, actions or decisions taken by applicant or public entity that were not in compliance with Act; decisions or actions taken in relation to processes leading to eventual award—Decision or action that brought procurement contract into force could not be set aside by panel—Decision to award tender to third respondent had been taken, which resulted in bringing of procurement award into effect—Panel did not have power in terms of s 60 to set aside decision.

Administrative law - Tender award—Standstill period—Standstill period in s 55(5) of Procurement Act 15 of 2015 appeared to be rendered nugatory by provisions of s 59(2)—Semble: Matter may require consideration by legislature.

Administrative law - Audi alteram partem—Requirement of notice of hearing—Service of notice—Notice by way of WhatsApp message insufficient—Principle of fairness should never be sacrificed on altar of convenience, particularly concerning issues of notice and right to be heard.

 

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