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FEBRUARY 2016

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases in the February law reports, as well as those in the Namibian Law Reports.

JUDGMENTS OF INTEREST IN THE FEBRUARY EDITIONS OF THE SALR, SACR AND THE NAMIBIAN LAW REPORTS 2015 (4).

 
Click on the case name to download the original judgment.
 

SOUTH AFRICAN LAW REPORTS

Right to emergency medical treatment

The young rugby player suffered a spinal injury that left him paralysed. Should the doctors have known about a certain procedure that had to be performed within 4 hours, and should they have then done so? Was the failure to perform this procedure within 4 hours the cause of his paralysis? Oppelt v Department of Health, Western Cape 2016 (1) SA 325 (CC)

Medical aid cover for specialised devices

A young lady almost lost her leg in a motocross accident, and needed various expensive medical devices to help the leg bones re-unite. A dispute arose over payment for certain of the treatments, and at issue was whether National legislation on minimum benefits trumped the contract between scheme and member. Council for Medical Aid Schemes and Another v Genesis Medical Scheme and Others 2016 (1) SA 429 (SCA)

Motion of no confidence in the President

Was the Speaker in breach of the Constitution or the National Assembly rules by not scheduling in time a motion of no confidence in the President? Tlouamma and Others v Speaker of the National Assembly and Others 2016 (1) SA 534 (WCC)

 
 

SOUTH AFRICAN CRIMINAL LAW REPORTS

Child abuser gets sentenced

The accused was convicted on 45 counts of sexual offences, involving the abuse of children between the ages of 3 and 12 years, both boys and girls, leaving them psychologically damaged. Would a life sentence be too harsh? S v Coetzee 2016 (1) SACR 120 (NCK)

Mother of two and fraud involving R1,4 million

The mother was the primary caregiver of two children when she was involved in the theft of money from a trust account. She had abused a position of trust and the fraud was serious, but imprisonment would be detrimental to her children, at the time of sentencing, aged 8 and 11. S v De Villiers 2016 (1) SACR 148 (SCA).

Evidence of cell-phone pictures

The accused could not deny ownership of the phone, and also assert a right to privacy over the images stored on that phone. Were the photos hearsay, documentary or real evidence? S v Brown 2016 (1) SACR 206 (WCC)

 

THE NAMIBIAN LAW REPORTS

Patient refuses blood transfusion for religious reasons

Could the court order that the patient be given blood, against her wishes? Would the right to bodily autonomy prevail over society and the state’s interests in preserving human life? And do things change when the patient has children, and their interests are factored in? ES v AC 2015 (4) NR 921 (SC)

Reverse onus Constitutional?

The accused challenged the constitutionality of the reverse onus imposed on a person to show reasonable cause for the possession of stolen goods, arguing that the onus infringed on the presumption of innocence. Prosecutor-General of the Republic of Namibia v Gomes and Others 2015 (4) NR 1035 (SC)

Inquest where body of deceased missing

It appeared that the defence force had shot the deceased and handed his body to the Angolan military. The inquest had recorded the details of the deceased as unknown, and dispensed with oral evidence. The High Court set these findings aside and remitted the matter back for a proper inquest. In Re Rundu Inquest: Venda 2015 (4) NR 1178 (HC)

 

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Kind Regards

The Juta Law Reports Team

Download the PDF version of the Law Reports Advance Notification
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 SOUTH AFRICAN LAW REPORTS
 
 TABLE OF CASES

 

  • Oppelt v Department of Health, Western Cape 2016 (1) SA 325 (CC)
  • Du Toit obo Dikeni v Road Accident Fund 2016 (1) SA 367 (FB)
  • Strix Ltd v Nu-World Industries (Pty) Ltd 2016 (1) SA 387 (SCA)
  • British American Tobacco Pension Fund v Howie NO and Others 2016 (1) SA 398 (GP)
  • Hanekom v Voight NO and Others 2016 (1) SA 416 (WCC)
  • Council for Medical Aid Schemes and Another v Genesis Medical Scheme and Others 2016 (1) SA 429 (SCA)
  • Premier Foods (Pty) Ltd v Manoim NO and Others 2016 (1) SA 445 (SCA)
  • LM v Goldstein NO and Others 2016 (1) SA 465 (GJ)
  • Airports Company South Africa Ltd v Airport Bookshops (Pty) Ltd t/a Exclusive Books 2016 (1) SA 473 (GJ)
  • Standard Bank of South Africa v A-Team Trading CC 2016 (1) SA 503 (KZP)
  • Hendricks v Hendricks and Others 2016 (1) SA 511 (SCA)
  • Novartis SA (Pty) Ltd and Another v Maphil Trading (Pty) Ltd 2016 (1) SA 518 (SCA)
  • Tlouamma and Others v Speaker of the National Assembly and Others 2016 (1) SA 534 (WCC)
  • Commissioner, South African Reveune Service v Van der Merwe 2016 (1) SA 599 (SCA)
  • Mighty Solutions t/a Orlando Service Station v Engen Petroleum Ltd and Another 2016 (1) SA 621 (CC)
 
 FLYNOTES
 

OPPELT v DEPARTMENT OF HEALTH, WESTERN CAPE (CC)

MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAPPIE AJ, KHAMPEPE J,MADLANGA J, MOLEMELA AJ, NKABINDE J and THERON AJ
2015 FEBRUARY 26; OCTOBER 14
[2015] ZACC 33

Delict - Elements—Unlawfulness or wrongfulness—Liability for omission—Rugby player’s spinal vertebrae dislocated during rugby game—Doctors failing to reduce dislocation within four hours.
Constitutional law—Human rights—Right not to be refused emergency medical treatment—Rugby player’s spinal vertebrae dislocated during rugby game—Doctors failing to reduce dislocation within four hours—Whether right breached—Constitution, s 27(3).

DU TOIT obo DIKENI v ROAD ACCIDENT FUND (FB)

DAFFUE J
2015 MAY 26–29; SEPTEMBER 18

Motor vehicle accident - Claim against Road Accident Fund—Limits—Future loss of income—Claim by passenger arising before 1 August 2008—RAF seeking to cap claim—But plaintiff relying throughout on minimum 1% negligence on part of second driver—Not bringing himself within parameters of cap—Claim uncapped—Road Accident Fund Act 56 of 1996, s 18(1) (prior to its deletion by Act 19 of 2005).

STRIX LTD v NU-WORLD INDUSTRIES (PTY) LTD (SCA)

NAVSA JA, SALDULKER JA, SWAIN JA, DAMBUZA JA and VAN DER MERWE AJA
2015 AUGUST 17; SEPTEMBER 22
[2015] ZASCA 126

Intellectual property - Patent—Infringement—Defence of lack of novelty—Whether defence based on lack of novelty competent without a claim for revocation—Patents Act 57 of 1978, s 65(4) read with ss 61, 25(5) and 25(10).

BRITISH AMERICAN TOBACCO PENSION FUND v HOWIE NO AND OTHERS (GP)

POTTERILL J
2015 APRIL 22; MAY 27

Pension - Pension fund—Surplus—Initial surplus—Credit in member surplus account after approval of apportionment scheme—Whether to be immediately distributed or may be left for reduction of future deficit—Fund may follow latter course—No ground for view that s 15H of Pension Funds Act 24 of 1956 having only future application.

HANEKOM v VOIGHT NO AND OTHERS (WCC)

BOZALEK J, DLODLO J and RILEY AJ
2015 MAY 29; AUGUST 13

Trust - Trust instrument—Variation—Validity—Master’s acceptance of variation as valid—Effect of on issue whether amendment valid—Master’s acceptance constituting administrative act remaining valid until set aside on review.

Trust - Variation—Testamentary trust—When competent—Once administration of deceased estate finalised, testamentary trust becoming independent legal instrument capable of variation by trustees and beneficiaries.

Trust - Testamentary trust—Nature—Once administration of deceased estate finalised, testamentary trust becoming independent legal instrument.

COUNCIL FOR MEDICAL AID SCHEMES AND ANOTHER v GENESIS MEDICAL SCHEME AND OTHERS (SCA)

LEACH JA, PETSE JA, WILLIS JA, MBHA JA and ZONDI JA
LOPES J
2015 SEPTEMBER 7; NOVEMBER 16
[2015] ZASCA 161

Medicine - Medical aid—Medical-aid scheme—Minimum benefits for prescribed conditions—Scheme refusing to pay for treatment of prescribed condition at private hospital—Unlawful—National legislation on minimum benefits trumping contract between scheme and member—Medical Schemes Act 131 of 1998, s 29(1)(o), regs 7 and 8.

PREMIER FOODS (PTY) LTD v MANOIM NO AND OTHERS (SCA)

MAYA ADP, SHONGWE JA, PETSE JA, GORVEN AJA and BAARTMAN AJA
2015 SEPTEMBER 29; NOVEMBER 4
[2015] ZASCA 159

Competition - Unlawful competition—Cartel conduct—Competition Commission’s corporate-leniency policy—Leniency—Where leniency applicant granted conditional immunity for participation in cartel activity but excluded from complaints referral—Finding by Tribunal that conduct amounting to prohibited practice not competent—Issue of notice certifying such finding, necessary for institution of claim for damages, accordingly not lawful in circumstances—Competition Act 89 of 1998, s 58(1)(a)(v) read with s 65(6)(b).

AIRPORTS COMPANY SOUTH AFRICA LTD v AIRPORT BOOKSHOPS (PTY) LTD t/a EXCLUSIVE BOOKS (GJ)

DODSON AJ
2015 MAY 11; JULY 3

Administrative law - Decision of functionary—Collateral challenge to validity—Whether competent—Whether founded—Where lawfulness of tender process already subject to review application challenged in related eviction proceedings.

Contract - Terms—Implied and tacit terms—Tacit terms—Importation of—Factors to consider.

Government procurement - Procurement process—Contract—‘Contracting for goods and services’—Meaning of in Constitution, s 217(1).

STANDARD BANK OF SOUTH AFRICA v A-TEAM TRADING CC (KZP)

PLOOS VAN AMSTEL J
2015 OCTOBER 20, 22; NOVEMBER 17

Company - Business rescue—Liquidation proceedings already initiated—Scope of suspensive provision—Whether encompassing application for provisional liquidation—Conflicting views on issue highlighted—Court finding that application for business rescue suspending application for liquidation—Companies Act 71 of 2008, s 131(6).

HENDRICKS v HENDRICKS AND OTHERS (SCA)

MHLANTLA JA, LEACH JA, TSHIQI JA, MAJIEDT JA and SALDULKER JA
2015 NOVEMBER 16, 25
[2015] ZASCA 165

Land - Unlawful occupation—Eviction—Statutory eviction—Unlawful occupier—Who is—Owner of bare dominium occupying property without consent of holder of right of habitation in respect of that property—Such owner ‘unlawful occupier’ as contemplated in Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, ss 1 and 4(7).

NOVARTIS SA (PTY) LTD v MAPHIL TRADING (PTY) LTD (SCA)

LEWIS JA, MAJIEDT JA, PILLAY JA, ZONDI JA and MATHOPO JA
2015 AUGUST 18; SEPTEMBER 3
[2015] ZASCA 111

Contract - Consensus—Offer and acceptance—Contract comprising written agreement supplemented by oral agreement and emails—Whether enforceable—Crucial question whether parties intended binding themselves contractually—In casu, evidence demonstrating parties intended concluding contract in such way, contract therefore valid.

TLOUAMMA AND OTHERS v SPEAKER OF THE NATIONAL ASSEMBLY AND OTHERS (WCC)

GOLIATH J, HENNEY J and MANTAME J
2015 OCTOBER 7

Constitutional law - Parliament—Motion of no confidence in President of Republic—Whether Speaker, in deciding not to schedule first applicant’s motion of no confidence within 18-day period between initial request and end of parliamentary session, in breach of s 102(2) of Constitution or National Assembly rule 102A.

Constitutional law - Parliament—Motion of no confidence in President of Republic—Whether rule 102A of National Assembly rules in compliance with s 102(2) of Constitution—Constitution, ss 57(1) and 102(2).

Constitutional law - Parliament—Motion of no confidence in President of Republic—Whether court could direct presiding officer over debate to ensure vote taken by secret ballot, or, alternatively, whether Speaker had authority in terms of rule 2(1) of National Assembly rules to determine upon request that vote should take place by way of secret ballot—Constitution, s 57.

Constitutional law - Parliament—Speaker—Fitness and propriety—Declaration sought that Speaker not fit and proper—Fitness and propriety not constitutional condition precedent to becoming, or holding office as, Speaker—Issue not justiciable—Constitution, ss 47(1) and 52.

Constitutional law - Parliament—Speaker—Impartiality and neutrality—No constitutional or statutory precedent to Speaker remaining as office bearer of political party, participating in its activities and campaigning for political rights.

Constitutional law - Parliament—Speaker—Removal or dismissal—Courts not constitutionally mandated to remove Speaker from office—Judicial independence would be adversely affected should courts order such removal, save in circumstances where requirements of legality called upon them to do so—Constitution, s 5.

COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE v VAN DER MERWE (SCA)

PONNAN JA, WALLIS JA, MBHA JA, FOURIE AJA and MAYAT AJA
2015 MAY 6, 28
[2015] ZASCA 86

Revenue - Recovery—Appointment of curator bonis—When appropriate—In circumstances of present case, appropriate where source and disposal of funds sought to be preserved requiring investigation—Tax Administration Act 28 of 2011, ss 163(4)(d) and 163(7)(b).

MIGHTY SOLUTIONS t/a ORLANDO SERVICE STATION v ENGEN PETROLEUM LTD AND ANOTHER (CC)

MOGOENG CJ, MOSENEKE DCJ, CAMERON J, JAFTA J, KHAMPEPE J, MADLANGA J, MATOJANE AJ, NKABINDE J, VAN DER WESTHUIZEN J, WALLIS AJ and ZONDO J
2015 AUGUST 11; NOVEMBER 19
[2015] ZACC 34

Lease - Eviction—Commercial eviction—Defences—Subtenant cannot raise sublessor’s lack of title as defence—Flowing naturally from rule that valid lease not dependent on title of lessor—No need to develop existing common-law rule.

Lease - Business premises—Sublease—Action for eviction of subtenant—Subtenant cannot raise sublessor’s lack of title as defence.

Lease - Title of landlord—Tenant’s right to dispute.

 

 SOUTH AFRICAN CRIMINAL LAW REPORTS
 TABLE OF CASES
 
  • S v Banger 2016 (1) SACR 115 (SCA)
  • S v Brown 2016 (1) SACR 206 (WCC)
  • S v Coetzee 2016 (1) SACR 120 (NCK)
  • S v Eke 2016 (1) SACR 135 (ECG)
  • S v De villiers 2016 (1) SACR 148 (SCA)
  • Southern African Litigation Centre v Minister of Justice 2016 (1) SACR 161 (GP)
  • Barnard v Minister of Justice, Constitutional Development and Correctional Services and Another 2016 (1) SACR 179 (GP)
 
 FLYNOTES
 

S v BANGER (SCA)

CACHALIA JA, MBHA JA and VAN DER MERWE AJA
2014 AUGUST 15
[2014] ZAGPPHC 594

Bail - Pending appeal—Refusal of—Appeal against—In cases where High Court court of first instance, application for leave to appeal to that court—If leave to appeal refused, it may be granted by SCA—If High Court consisting of single judge, appeal to full court; if more than one judge, appeal lies directly to SCA.

S v BROWN (WCC)

BOZALEK J
2015 AUGUST 17

Evidence - Admissibility—Cellphone data evidence—Digital images—Section 15 of Electronic Communications and Transactions Act 25 of 2002 not rendering data message admissible without further ado—Provisions of section did not exclude common law of evidence—Images more appropriately dealt with as documentary rather than real evidence—Images had to be original and authenticity of document had to be proved—Images did not constitute hearsay evidence.

S v COETZEE (NCK)

KGOMO JP
2015 SEPTEMBER 8, 16

Sentence - Prescribed sentences—Minimum sentence—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—Life imprisonment—Sexual offences involving rape, sexual assault of young children and manufacturing of child pornography—Accused, 23-year-old first offender—Diagnosed with paedophilic disorder, displaying measure of remorse and wanting treatment—Prescribed minimum sentence of life imprisonment would create injustice—Sentence of 24 years’ imprisonment imposed.

S v EKE (ECG)

PLASKET J, MAKAULA J and LOWE J
2015 MARCH 15, 26

Evidence - Certificate in terms of s 212(4)(a) of Criminal Procedure Act 51 of 1977—Traffic offences—Effect of certificate—Proof of correctness of measuring instrument—Sufficient if certificate set out qualifications of person who made it, described process involved and explained why was reliable—Constituting prima facie proof if accused does not rebut it.

S v DE VILLIERS (SCA)

LEWIS JA, MHLANTLA JA, LEACH JA, MAJIEDT JA and PETSE JA
2015 AUGUST 26; SEPTEMBER 11
[2015] ZASCA 119

Sentence - Imposition of—Factors to be taken into account—Where convicted person primary caregiver of minor children—Failure to take into consideration constituting misdirection—Fraud involving amount of R1,4 million taken from employer’s trust account by mother of two young children justifying custodial sentence but arrangements to be made for care of children—Sentence of direct imprisonment replaced with sentence of imprisonment in terms of s 276(1)(i) of CPA from which she could be placed in correctional supervision.

SOUTHERN AFRICA LITIGATION CENTRE v MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND OTHERS (GP)

LAMBO JP, LEDWABA DJP and FABRICIUS J
2015 JUNE 14–15, 23

International criminal law - International Criminal Court—Arrest warrant—Binding on South African state—State granting immunity to visiting head of state against whom ICC arrest warrants pending—State’s disregard of warrants and of court order to compel their enforcement unconstitutional—Constitution, s 231; Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002.

International criminal law - Diplomatic immunity—Discretion of minister to grant immunity—Must be lawfully exercised—Diplomatic Immunities and Privileges Act 37 of 2001.

BARNARD v MINISTER OF JUSTICE, CONSTITUTIONAL DEVELOPMENT AND CORRECTIONAL SERVICES AND ANOTHER (GP)

KEIGHTLEY AJ
2015 JULY 31; SEPTEMBER 14

Prisons - Prisoner—Parole—Decision of Minister not to place prisoner on parole—National Council for Correctional Services having recommended to Minister that prisoner be released subject to certain conditions—Minister’s reasons set out at time of refusal but amplified in answering affidavit—No grounds for imputing mala fides to Minister—Political aspects of applicant’s case not irrelevant in process and Minister needing to take into account public interest in exacting retribution—Minister’s decision not unreasonable.

 

 
 THE NAMIBIAN LAW REPORTS
 TABLE OF CASES
   
  • Crown Security CC v Gabrielsen 2015 (4) NR 907 (SC)
  • ES v AC 2015 (4) NR 921 (SC)
  • Hikumwah and Others v Nelumbu and Others 2015 (4) NR 955 (HC)
  • Klein v Caremed Pharmaceuticals (Pty) Ltd 2015 (4) NR 1016 (HC)
  • Alugodhi v Minister for Safety and Security and Others and Eight Similar Cases 2015 (4) NR 1021 (HC)
  • Prosecutor-General of the Republic of Namibia v Gomes and Others 2015 (4) NR 1035 (SC)
  • S v Nel 2015 (4) NR 1057 (HC)
  • Shikale NO v Universal Distributors of Nevada South Africa (Pty) Ltd and Others 2015 (4) NR 1065 (SC)
  • S v Van Wyk and Another 2015 (4) NR 1085 (SC)
  • S v Kapia and Others 2015 (4) NR 1094 (HC)
  • S v Gomeb and Others 2015 (4) NR 1100 (HC)
  • S v Tjikuvira 2015 (4) NR 1105 (HC)
  • S v Maasdorp 2015 (4) NR 1109 (HC)
  • First National Bank of Namibia Ltd v SSS Motor Spares CC and Another 2015 (4) NR 1112 (HC)
  • Tjipangandjara v Namibia Water Corporation (Pty) Ltd 2015 (4) NR 1116 (LC)
  • Tjipepa v Minister of Safety and Security and Others 2015 (4) NR 1133 (HC)
  • Labuschagne v Scania Finance Southern Africa (Pty) Ltd and Others 2015 (4) NR 1153 (SC)
  • Namibia Financial Institutions Union (Nafinu) v Nedbank Namibia Ltd and Another 2015 (4) NR 1161 (SC)
  • Sheefeni v Council of the Municipality of Windhoek 2015 (4) NR 1170 (HC)
  • In Re Rundu Inquest: Venda 2015 (4) NR 1178 (HC)
  • Coetzee v Transnamib Holdings Ltd and Another 2015 (4) NR 1183 (HC)
  • Naanda and Another v Edward and Others 2015 (4) NR 1188 (HC)
  • Auto Tech Truck and Coach CC v Fanny’s Motor Repairs and Investment CC and Another 2015 (4) NR 1190 (HC)
  • Laicatti Trading Capital Inc and Others NNO v Greencoal (Namibia) (Pty) Ltd and Another 2015 (4) NR 1194 (HC)
  • Josea v Ahrens and Another 2015 (4) NR 1200 (HC)
 
 FLYNOTES
 

CROWN SECURITY CC v GABRIELSEN (SC)

SMUTS JA, CHOMBA AJA and HOFF AJA
2015 JULY 2, 8

Delict - Vicarious liability—Liability of employer for delictual acts of employee—Whether employee acted in course and scope of employment—Two stages enquiry—Whether there was a sufficiently close connection between wrongful conduct and wrongdoer’s employment.
Delict—Vicarious liability—Liability of employer for delictual acts of employee—Significant connection between creation or enhancement of risk of handling firearm and wrong resulting therefrom—Vicarious liability fair and just.

ES v AC (SC)

SHIVUTE CJ, MAINGA JA and O’REGAN AJA
2014 OCTOBER 13; 2015 JUNE 24

Court - Powers of—Mootness—Matter of constitutional interest—Essential human rights issues—Rights to bodily autonomy, right to freely practice religion, freedom from discrimination and familial obligations—Far-reaching implications for medical practitioners—Warrants attention of court.

Constitutional law—Patient autonomy—Basic human right—Constitutional protection of personal liberty, respect for human dignity, equality before the law and freedom from discrimination on religious grounds—Articles 7, 8 and 10 of Namibian Constitution.

Constitutional law—Patient autonomy—Inalienable human right—Right to assert control over own body—Overriding principle—Person of sound mind—Refusal to undergo medical treatment must be respected.

HIKUMWAH AND OTHERS v NELUMBU AND OTHERS (HC)

GEIER J
2014 JULY 2; 2015 MAY 13
[2015] NAHCMD 111

Administrative law - Administrative action—What constitutes—Distinction between administrative act and exercise of executive power—Traditional leader removing traditional councillors from office—Role of traditional authorities—Source and nature of power—Traditional Authorities Act 25 of 2000—Disciplinary powers—Exercise of power in public interest—Decision is administrative and reviewable in terms of art 18 of Constitution.

Customary law - Traditional authority—What constitutes—Supportive public organs of local government—Structures through which Namibian State governed at traditional community level—Customary law may not be exercised in conflict with Namibian Constitution or any other written law.

Customary law - Traditional authority—Powers of—Removal of traditional councillors from office by traditional leader in terms of customary law—Limitation of power to exercise tradition, practice or usage which was discriminatory or detracting from or violating rights of persons—Traditional Authorities Act 25 of 2000, s 14.

Customary law - Traditional authority—Powers of—Removing traditional councillors from office—Section 10(2) of Traditional Authority Act 25 of 2000 was source of power of traditional leader to remove traditional councillors from office—Customary law power subject to rules of natural justice—Procedural fairness and reasonableness required to enable person to meaningfully participate in disciplinary proceedings—No notice of disciplinary nature of proceedings and of charges against them given prior to meeting—Procedurally unfair and unreasonable—Decision to remove traditional councillors set aside.

KLEIN v CAREMED PHARMACEUTICALS (PTY) LTD (HC)

PARKER AJ
2015 APRIL 8; JUNE 11
[2015] NAHCMD 136

Company - Winding-up—Application for—Debt must be due and payable—Cost order still subject to appeal—Bona fide disputed debt—Debt not due and payable—Applicant holding security for debt—Applicant failed to prove to satisfaction of court that respondent unable to pay debt—Application dismissed—Companies Act 28 of 2004, ss 349(f) and 350(1)(c).

Company - Winding-up—Application for—Costs of—Applicant knew that respondent not unable to pay debt—Applicant holding security for debt—Applicant putting respondent to unnecessary trouble and expense—Punitive costs order warranted—Application dismissed with costs on scale as between attorney and client.

ALUGODHI v MINISTER FOR SAFETY AND SECURITY AND OTHERS AND EIGHT SIMILAR CASES (HC)

DAMASEB JP and MILLER AJ
2014 MAY 28; 2015 JULY 14
[2015] NAHCMD 160

Statute - Interpretation—Provisions of two acts—Both acts aimed at enforcement of sentencing scheme and not repugnant to each other—Statutory scheme of Criminal Procedure Act 51 of 1977, s 280 dealing with sentencing after conviction and s 86 of Prisons Act 17 of 1998 dealing with commencement of sentence unless suspended.

Criminal procedure—Sentence—Computation of—Sentences to run consecutively in absence of express order of sentencing court to run concurrently—Only sentencing court competent to order concurrent running of sentence—Statutory exception when life imprisonment imposed or person declared habitual criminal—Subsequent sentences of imprisonment run concurrently—Prisons Act 17 of 1998, s 86(2).

PROSECUTOR-GENERAL OF THE REPUBLIC OF NAMIBIA v GOMES AND OTHERS (SC)

MAINGA JA, SMUTS JA and O’REGAN AJA
2015 MARCH 5; AUGUST 19

Court - Powers of—Mootness—Matter of constitutional interest—Discretion of court—Serving public interest in achieving legal certainty on issue in pending prosecutions and removing harmful effect of leaving vacuum in legislative framework.

Constitutional law - Fundamental rights—Fair trial—Not all rights under art 12 of Constitution absolute—Depending on nature and content of right as purposively construed—Balance between individual’s rights and state’s obligation to protect interests of public as well as combating and prosecuting crime.

Constitutional law - Fundamental rights—Fair trial—Limitation of—Whether limitation reasonable and justifiable—Imposition of reverse onus on accused to show reasonable cause for acquisition or receipt of stolen goods in statutory offence—Seriousness and prevalence of crimes of theft and burglary—Reverse onus under s 7(1) of General Law Amendment Ordinance 12 of 1956—Justifiable and reasonable limitation of rights.

S v NEL (HC)

SMUTS J
2014 JUNE 13; JULY 30
[2014] NAHCMD 233

Criminal procedure - Forfeiture—Motor vehicle and trailer involved in commission of crime—Duty of court to hold enquiry—Factors to be taken into account in enquiry—Nature and role played by article, whether article had been used before or might be used again for similar crime, effect of forfeiture on person and whether value disproportionate to gravity of offence—Forfeiture under Nature Conservation Ordinance 4 of 1977, s 89(1)(d).

SHIKALE NO v UNIVERSAL DISTRIBUTORS OF NEVADA SOUTH AFRICA (PTY) LTD AND OTHERS (SC)

MAINGA JA, MTAMBANENGWE AJA and HOFF AJA
2014 JUNE 16; JULY 14; 2015 APRIL 17

Contract - Rectification—Mistake—Essential allegations and facts justifying rectification—Agreement intended to be and had been reduced to writing—Mistake in drafting document—Agreement did not reflect common intention between parties—No rectification based on unilateral mistake.

Evidence—Evaluation of evidence—Witness—Weighing up probabilities and credibility of witnesses—Proved facts leave no room for speculation about probabilities—Court cannot apply equitable considerations against clear evidence to contrary.

S v VAN WYK AND ANOTHER (SC)

SHIVUTE CJ, MARITZ JA and CHOMBA AJA
2006 OCTOBER 6; 2015 SEPTEMBER 9

Criminal procedure - Evidence—Witness—Accomplices—Cautionary rules—Safeguards—Corroboration of evidence of accomplice or absence of evidence contradicting evidence of accomplice required—Exercise of caution should not displace common sense.

Criminal law—Robbery—What constitutes—Robbery staged through conspiracy between employees of security company and appellants—Crime one of theft not robbery.

S v KAPIA AND OTHERS (HC)

LIEBENBERG J
2015 JUNE 10, 15
[2015] NAHCMD 140

Criminal procedure - Evidence—Admissions and confessions—Admissibility—Extra-judicial admission freely and voluntarily made by accused against his/her own interest—Extra-judicial admission admissible—Criminal Procedure Act 51 of 1977, s 219A(1).

Criminal procedure—Evidence—Admissions and confessions—Admissibility—Of statements made at time when accused not suspects—No obligation to explain constitutional rights to witness—Accused nevertheless advised to obtain lawyer—Accused aware of their constitutional rights.

S v GOMEB AND OTHERS (HC)

SIBOLEKA J
2015 JUNE 26; JULY 22
[2015] NAHCMD 164

Criminal procedure - Evidence—Duty of court—Ensure all relevant evidence placed before court—Drawing of blood for comparison with exhibits will serve no purpose—Origin, identity and chain of custody of exhibits from collection to handing over for forensic testing has been irreparably damaged—Criminal Procedure Act 51 of 1977, s 37(3).

S v TJIKUVIRA (HC)

HOFF J and LIEBENBERG J
2015 FEBRUARY 24
[2015] NAHCMD 34

Criminal procedure - Sentence—Juvenile offenders—Fine imposed and juvenile placed under supervision of probation officer in terms of s 290(2) of Criminal Procedure Act 51 of 1955—No enquiry about accused’s means to pay fine—Accused unable to pay fine—Sentence inappropriate—Order made in terms of s 290(2) only finding application with imposition of fine—Sentence set aside.

S v MAASDORP (HC)

HOFF J and LIEBENBERG J
2015 MARCH 13
[2015] NAHCMD 56

Criminal procedure - Plea—Plea of guilty on two charges and not guilty on one charge—Sentencing on two charges and postponing remaining charge for trial—Irregular proceeding—Trial not to be dealt with in piecemeal fashion—Might become necessary during course of trial to change guilty plea to not guilty—Not possible after sentencing—Criminal Procedure Act of 51 of 1977, s 113.

FIRST NATIONAL BANK OF NAMIBIA LTD v SSS MOTOR SPARES CC AND ANOTHER (HC)

MASUKU AJ
2015 JULY 2, 22
[2015] NAHCMD 163

Administration of estates - Claim against deceased estate—Enforcing of—Act not barring creditor using common-law procedure to enforce claim against estate—Administration of Estates Act 66 of 1965.

TJIPANGANDJARA v NAMIBIA WATER CORPORATION (PTY) LTD (LC)

MASUKU AJ
2015 APRIL 24, 30; MAY 15
[2015] NALCMD 11

Practice - Applications and motions—Urgency—High Court Rule 73(4)—Provisions peremptory—Financial hardship and illegal lockout action by employer—Not per se grounds for urgency.

Labour law - Urgent interdict—Requirements of—Interdict against lockout—Provisions of s 79(1)(a)–(c) of Labour Act 11 of 2007 peremptory—If applicant for interdict had not met requirements, then court had duty not to grant interdict.

TJIPEPA v MINISTER OF SAFETY AND SECURITY AND OTHERS (HC)

UEITELE J
2014 MARCH 24; APRIL 7–9; MAY 27; 2015 AUGUST 7
[2014] NAHCMD 193

Criminal procedure - Arrest—Wrongful arrest—Plaintiff arrested without warrant—Police must have reasonable suspicion that sch I offence had been committed—Prima facie evidence of offence not required—Suspicion must be based on facts and not mere hunch—Criminal Procedure Act 51 of 1977, s 40(1)(b).

Criminal procedure - Arrest—Wrongful arrest—Malicious arrest—Requirements—Plaintiff must allege and prove instigation of deprivation of liberty without reasonable and probable cause, actuated by malice.

Criminal procedure - Arrest—Wrongful detention—Arrest lawful—Detention for less than 48 hours not per se unlawful—Detention only unlawful if whimsical or malicious.

LABUSCHAGNE v SCANIA FINANCE SOUTHERN AFRICA (PTY) LTD AND OTHERS (SC)

MAINGA JA, SMUTS JA and O’REGAN AJA
2015 JUNE 17; AUGUST 7

Practice - Judgments and orders—Rescission—Application in terms of rule 44(1)(a)—Order erroneously sought or granted in absence of party affected thereby—Focus on nature of procedural error, irregularity or mistake in issuing order to establish whether order granted erroneously—Existence of defence on merits did not affect judgment validly obtained.

NAMIBIA FINANCIAL INSTITUTIONS UNION (NAFINU) v NEDBANK NAMIBIA LTD AND ANOTHER (SC)

DAMASEB DCJ, MAINGA JA and SMUTS JA
2015 AUGUST 7, 19

Labour court - Appeal—Leave to appeal—Interlocutory application—Order not final in effect or definitive of rights and not disposing of substantial portion of relief—Urgent relief temporary in nature in terms of Labour Court jurisdiction—Labour Act 11 of 2007, s 117(1)(e)—Leave of Labour Court required for appeal against interlocutory order—High Court Act 16 of 1990, s 18(3).

SHEEFENI v COUNCIL OF THE MUNICIPALITY OF WINDHOEK (HC)

PARKER AJ
2015 MARCH 16–20; APRIL 7; JUNE 9; JULY 30
[2015] NAHCMD 172

Criminal procedure - Arrest—Wrongful arrest and detention—Requirements for lawful arrest—Failing to inform person of cause of arrest—Arrest and subsequent detention unlawful—Failure to comply with s 39(2) of Criminal Procedure Act 51 of 1977.

IN RE RUNDU INQUEST: VENDA (HC)

HOFF J and LIEBENBERG J
2015 SEPTEMBER 25
[2015] NAHCMD 228

Inquest - Finding—Review of—Section 21(1) of the Inquest Act only finding application when a s 18(1) inquest was held where a deceased’s body has been destroyed or where nobody has been found or recovered and where evidence proves that a death has occurred—Deceased died unnatural death—Formal inquest to be held—Inquests Act 6 of 1993, s 10.

COETZEE v TRANSNAMIB HOLDINGS LTD AND ANOTHER (HC)

MILLER AJ
2015 AUGUST 11; OCTOBER 1
[2015] NAHCMD 231

Statute - Interpretation—National Transport Services Holding Company Act 28 of 1998, sch 1 item 8(1)—Intention of legislature clear—Interpretation of ‘transport services’ in context of transportation of goods—Words must be interpreted in context within which they were used—‘Transport services’ to mean any other type of services offered by first respondent in relation to transportation of goods.

NAANDA AND ANOTHER v EDWARD AND OTHERS (HC)

PARKER AJ
2015 SEPTEMBER 24; OCTOBER 8
[2015] NAHCMD 239

Practice - Pleadings—Exception—Exception could not be taken against relief claimed—Relief not part of cause of action—Defendant not pleading to relief sought by plaintiff.

AUTO TECH TRUCK AND COACH CC v FANNY’S MOTOR REPAIRS AND INVESTMENT CC AND ANOTHER (HC)

PARKER AJ
2015 SEPTEMBER 22; OCTOBER 6
[2015] NAHCMD 236

Practice - Parties—Joinder—Application for leave to join third party—Third party must have direct and substantial interest in outcome of proceedings—Application in terms of High Court Rule 40 alternatively in terms of court’s inherent common law discretion—No lis or concurrence of questions of law or fact between applicant and second respondent established—Application refused.

LAICATTI TRADING CAPITAL INC AND OTHERS NNO v GREENCOAL (NAMIBIA) (PTY) LTD AND ANOTHER (HC)

PARKER AJ
2015 SEPTEMBER 28; OCTOBER 8
[2015] NAHCMD 240

Practice - Applications and motions—Discovery and inspection in motion proceedings—Discovery in terms of High Court Rule 28(1) read with rule 70(3)—Not as of right—Subject to peremptory provisions of rule 66(1)(b) requiring filing of answering affidavit together with relevant documents.

Practice—Applications and motions—Discovery and inspection in motion proceedings—Additional discovery in motion proceedings was rare—Exceptional circumstances required—Affidavit required to identify documents and portions relied upon—Must explain nature and relevance of documents and reason for not attaching them to answering affidavit.

Practice - Applications and motions—Application for referral to oral evidence—Application for provisional winding-up order—Allowed only in exceptional cases—Purpose of winding-up order to speedily arrest state of affairs—Material dispute of fact not clearly identified—Application refused.

JOSEA v AHRENS AND ANOTHER (HC)

SCHIMMING-CHASE AJ
2015 MAY 5–8, 13, 15; JULY 2
[2015] NAHCMD 157

Motor vehicle accident - Duty of driver—Right turn—At robot-controlled intersection—Duty to execute turn only if satisfied it was safe—Duty of driver when lights turn yellow—Should not enter intersection unless unable to stop safely—Duty to proceed with caution through intersection if unable to stop in time—Failure in either event constituting prima facie negligence.

Practice—Rules of court—Witness statements—Requirements—Full particulars of witness and chronological sequence of events and factual allegation in witness’s own words expressed in first person required—Statements constituting evidence-in-chief of witness to be read into record at hearing—High Court Rules 92 and 93.

Evidence - Witness—Calling, examination and refutation of—Witness collapsing after commencement of cross-examination—Probative value of evidence—Discretion of court to accept or reject evidence not tested in cross-examination.

 

 

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