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February 2015

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases in the February reports, as well as those in the Namibian Law Reports 2014(4).

JUDGMENTS OF INTEREST IN THE FEBRUARY EDITIONS OF THE SALR, THE SACR AND THE NAMIBIAN LAW REPORTS 2014(4)

SOUTH AFRICAN LAW REPORTS


Crimes against humanity

Is the South African Police Service obliged to investigate crimes against humanity, committed in a neighbouring state? The court looks across the border to Zimbabwe, where it is alleged that 100 citizens were tortured after a police raid on the opposition party headquarters. National Commissioner of Police v Southern African Human Rights Litigation Centre and Another 2015 (1) SA 315 (CC)

Shoddy houses for the poor

Though it is unacceptable for contractors to build shoddy houses for the poor, the constitutional right of access to adequate housing imposes obligations on the state only, not on the private sector. So, if the state engages private-sector contractors to build public housing, it must manage the process to ensure that applicable building standards and regulations are complied with and that the end result is fit for dignified human habitation. City Of Cape Town v Khaya Projects (Pty) Ltd and Others 2015 (1) SA 421 (WCC)

Free speech and billboards

In issue was the right to freedom of expression, and its horizontal application between private entities. A controversial advertisement was removed from an outdoor billboard before the expiration of the agreed period. Does a private entity have the same positive duty as the state to promote freedom of expression, or merely a negative duty not to interfere with it? BDS South Africa and Another v Continental Outdoor Media (Pty) Ltd and Others 2015 (1) SA 462 (GJ)


SOUTH AFRICAN CRIMINAL LAW REPORTS

In the interests of the client, a step too far?

A legal practitioner is not entitled to wantonly or recklessly accuse another person of being responsible for the crime of his client. It is futile and unacceptable for counsel to try and hide behind client’s instructions in this regard. Counsel is not a mere agent of the client; his duty to the court overrides his obligations to his client, subject to his duty not to disclose the confidences of his client. S v DD 2015 (1) SACR 165 (NCK)

Diamond sorter gets jail time

The accused was a first offender, 49 years of age, had a minor child, and suffered from hypertension and diabetes. But he showed no remorse, and had meticulously planned the theft of diamonds from his workplace, circumventing elaborate security measures. He received an effective sentence of eight years. S v Van Rensburg  2015 (1) SACR 114 (NCK)

Domestic violence

The Domestic Violence Act added to the protection offered to a victim of an offence such as assault, by the common law and the Criminal Procedure Act, and did not detract from it. A policeman was entitled to arrest without a warrant, where the circumstances fell within those covered by the Criminal Procedure Act, regardless of whether a domestic violence protection order was in place or not. Minister of Safety and Security v Kitase  2015 (1) SACR 181 (SCA)

 
THE NAMIBIAN LAW REPORTS

Team misconduct in the workplace

A large number of employees had been involved in the removal of products, and none were forthcoming with information on the perpetrators, despite repeated requests for such information. The dismissal of all the employees on that shift, in a single hearing, was justified. Novanam Ltd v Absalom and Others 2014 (4) NR 1009 (LC)

No costs for successful party who insisted on litigation

The successful respondent had without explanation rebuffed the applicant’s attempts to settle the dispute and avoid litigation. Such was a suitable case for the successful respondent to be denied his costs. MW v Minister of Home Affairs 2014 (4) NR 1108 (HC)

Keep a proper look-out

A reasonable driver cannot take the road with blinkers on, and presume that all others on the road will diligently obey the rules. Keeping a proper look-out means continuously scanning the road ahead, from side to side, for potential obstructions, and includes awareness of what is happening in the immediate vicinity. Gerber v Minister of Defence and Another 2014 (4) NR 1147 (HC)


WE WELCOME YOUR FEEDBACK

Please forward any comments regarding The South African Law Reports and The South African Criminal Law Reports to lawreports@juta.co.za

Kind Regards

The Juta Law Reports Team

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 SOUTH AFRICAN LAW REPORTS

 TABLE OF CASES

  • National Commissioner of Police v Southern African Human Rights Litigation Centre and Another 2015 (1) SA 315 (CC)
  • Zhongji Development Construction Engineering Co Ltd v Kamoto Copper Co SARL 2015 (1) SA 345 (SCA)
  • Discovery Holdings Ltd v Sanlam Ltd and Others 2015 (1) SA 365 (WCC)
  • Friend v Sendal 2015 (1) SA 395 (GP)
  • Kroese and Another, Ex parte 2015 (1) SA 405 (NWM)
  • Cape Town, City of v Khaya Projects (Pty) Ltd and Others 2015 (1) SA 421 (WCC)
  • Pickard v Stein and Others 2015 (1) SA 439 (GJ)
  • BDS South Africa and Another v Continental Outdoor Media (Pty) Ltd and Others 2015 (1) SA 462 (GJ)
  • S v Humphreys 2015 (1) SA 491 (SCA)
  • Magistrate Pangarker v Botha and Another 2015 (1) SA 503 (SCA)
  • Company Secretary, ArcelorMittal South Africa Ltd and Another v Vaal Environmental Justice Alliance 2015 (1) SA 515 (SCA)
  • Erasmus and Another, Ex parte 2015 (1) SA 540 (GP)
  • Democratic Alliance v South African Broadcasting Corporation Ltd and Others 2015 (1) SA 551 (WCC)
  • Shuttleworth v South African Reserve Bank and Others 2015 (1) SA 586 (SCA)
  • Huang and Others v Commissioner, South African Revenue Service and Another 2015 (1) SA 602 (GP)
  • JT v Road Accident Fund 2015 (1) SA 609 (GJ)
  • Lourens v Speaker of the National Assembly and Others 2015 (1) SA 618 (EqC)
 FLYNOTES

NATIONAL COMMISSIONER OF POLICE v SOUTHERN AFRICAN HUMAN RIGHTS LITIGATION CENTRE AND ANOTHER (CC)
MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MAJIEDT AJ, VAN DER WESTHUIZEN J and ZONDO J
2014 MAY 19; OCTOBER 30
[2014] ZACC 30

International law—International criminal law—Crimes—Investigation—Crime against humanity of torture allegedly committed outside of South Africa by and against foreign nationals—Whether suspects need be in South Africa for South African police to investigate—Whether South African police have duty to investigate—Limits on investigation—Constitution, s 205(3); South African Police Service Act 68 of 1995, s 17D(1)(a); Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002, s 4(1).

ZHONGJI DEVELOPMENT CONSTRUCTION ENGINEERING CO LTD v KAMOTO COPPER CO SARL (SCA)
MPATI P, WILLIS JA, MBHA JA, MATHOPO AJA and GORVEN AJA
2014 SEPTEMBER 19; OCTOBER 1
[2014] ZASCA 160

Arbitration—International arbitration—Judicial interference—Sanctity of arbitration agreements—Foreign parties may choose arbitration in South Africa for ‘one-stop’ adjudication of all their disputes—Question of interpretation whether they did—Courts to be careful to conclude otherwise and assume jurisdiction.

DISCOVERY HOLDINGS LTD v SANLAM LTD AND OTHERS (WCC)
GOLIATH J
2014 JULY 3

Intellectual property—Trademark—Registrability—Distinctiveness—Mark ESCALATOR FUNDS in financial services industry—Mark descriptive—Nondistinctive—Incapable of serving as badge of origin—No secondary meaning established—Mark removed from register—Trade Marks Act 194 of 1993, s 10(2).
Intellectual property—Trademark—Infringement—Use of confusingly similar mark—ESCALATING FUND and SANLAM ESCALATING FUND in respect of financial investment products—No likelihood that average consumer of such products will be confused, particularly since usually sold through skilled intermediaries—Use of dominant SANLAM house mark making confusion even less likely—Trade Marks Act 194 of 1993, s 34(1)(a).
Competition—Unlawful competition—Passing off—Descriptive mark—May be protected by passing-off action, but plaintiff to prove reputation.

FRIEND v SENDAL (GP)
LEGODI J, FABRICIUS J and KUBUSHI J
2012 JULY 25; AUGUST 3

Credit agreement—Consumer credit agreement—Credit provider—Obligation to register—Once-off credit agreement—National Credit Act 34 of 2005, s 40(1)(b).

EX PARTE KROESE AND ANOTHER (NMW)
LANDMAN J
2013 FEBRUARY 28; APRIL 18

Insolvency—Voluntary surrender—Assets—Sale—Section protecting certain property—Whether protections may be waived—Creditors’ discretion to exclude property—Manner of exercise—Insolvency Act 24 of 1936, s 82(6).

CITY OF CAPE TOWN v KHAYA PROJECTS (PTY) LTD AND OTHERS (WCC)
MANTAME J
2014 APRIL 24; MAY 30; AUGUST 11; NOVEMBER 11

Housing—Right to housing—Limited horizontal application—State must ensure realisation of right—Must manage public housing projects to ensure that private contractors comply with building regulations and standards—Court refusing to make order declaring delinquent developer to be in breach of right to housing—Constitution, s 26.

PICKARD v STEIN AND OTHERS (GJ)
DODSON AJ
2014 FEBRUARY 17; JUNE 20

Servitude—Praedial servitude—Extinction—Supervening lack of utility—Common law developed to recognise that praedial servitude extinguished if utility it previously provided to dominant tenement permanently ceasing—However, in circumstances of present case, not proven that praedial servitude lost its utility.
Servitude—Praedial servitude—Extinction—Abandonment—Servitudinal rights abandoned where owner of dominant tenement granting rights ‘necessarily and naturally’ obstructing servitude—In circumstances of present case, servitude of light so abandoned.

BDS SOUTH AFRICA AND ANOTHER v CONTINENTAL OUTDOOR MEDIA (PTY) LTD AND OTHERS (GJ)
MAYAT J
2014 SEPTEMBER 1, 11

Constitutional law—Human rights—Right to freedom of expression—Horizontal application between private entities—Removal of controversial advertisement from outdoor billboard before expiration of agreed flighting period—Private entity not having same positive duty as state to promote right, but negative duty not to interfere with it.
Advertising—Freedom of expression—Prohibition by local authority of advertising that is ‘insensitive to the public . . . or any religious or cultural group’—Exceeding permissible limitations of free speech in Constitution and therefore invalid—Outdoor Advertising Bylaws, s 9(h); Constitution, s 16(2).

S v HUMPHREYS (SCA)
BRAND JA, CACHALIA JA, LEACH JA, ERASMUS AJA and VAN DER MERWE AJA
2013 MARCH 11, 22
[2013] ZASCA 20

Criminal law—Murder—Mens rea—Dolus eventualis—Foresight and reconciliation—Whether driver reconciled himself with foreseen possibility of death of his passengers—Not where there was no indication that he had taken his own death into bargain.

MAGISTRATE PANGARKER v BOTHA AND ANOTHER (SCA)
MTHIYANE DP, LEWIS JA, MHLANTLA JA, WALLIS JA and LEGODI AJA
2014 MAY 6, 29
[2014] ZASCA 78

Marriage—Divorce—Trial—Irregularity—Repeated postponements for legal representation followed by application for recusal of presiding officer—Application constituting transparent and dishonest strategy to obtain further postponement—No irregularity committed by presiding officer in refusing application for recusal and proceeding with trial in absence of applicant party.
Recusal—Application—Refusal—Fairness—Application constituting transparent and dishonest strategy to obtain postponement—Presiding officer correct to refuse application and proceed with divorce trial in absence of spouse.
Practice—Trial—Postponement—Refusal—Abuse of process—Discretion of court.

COMPANY SECRETARY, ARCELORMITTAL SOUTH AFRICA LTD AND ANOTHER v VAAL ENVIRONMENTAL JUSTICE ALLIANCE (SCA)
NAVSA ADP, MAJIEDT JA, SALDULKER JA, MATHOPO AJA and MOCUMIE AJA
2014 NOVEMBER 6, 26
[2014] ZASCA 184

Administrative law—Access to information—Access to information held by private body—Request for data on environmental pollution—Whether right sought to be protected sufficiently precisely identified—Caution against forcing private parties to disclose information where basis of request insubstantial—Promotion of Access to Information Act 2 of 2000, s 50(1)(a).

EX PARTE ERASMUS AND ANOTHER (GP)
BERTELSMANN J
2014 OCTOBER 15

Insolvency—Voluntary surrender—Valuation—Valuator to personally inspect assets—Valuator and applicant’s affidavits—Content—Insolvency Act 24 of 1936, s 6(1).

DEMOCRATIC ALLIANCE v SOUTH AFRICAN BROADCASTING CORPORATION LTD AND OTHERS (WCC)
SCHIPPERS J
2014 OCTOBER 2014

Constitutional law—Chapter 9 institutions—Public Protector—Powers—Findings or remedial action by Public Protector not binding on persons and organs of state—Not mere recommendations, however—Cogent reasons required to reject—Constitution, s 182(1)(c) read with Public Protector Act 23 of 1994, s 6(4)(b).

SHUTTLEWORTH v SOUTH AFRICAN RESERVE BANK AND OTHERS (SCA)
NAVSA ADP, PONNAN JA, MAJIEDT JA, FOURIE AJA and MOCUMIE AJA
2014 AUGUST 28; OCTOBER 1
[2014] ZASCA 157

Exchange control—Exchange Control Regulations—Conditions Treasury may impose—Whether exit levy on value of assets sought to be exported upon emigration lawfully imposed—Currency and Exchanges Act 9 of 1933, reg 10(1)(c).
Enrichment—Condictio indebiti—Unlawful charge by fiscus—Paid under protest—Exit levy unlawfully imposed on value of assets sought to be exported upon emigration—To be repaid with interest.
Constitutional practice—Courts—Powers—Declaration of constitutional invalidity of legislation—Courts to guard against issuing such orders in abstract and without regard to permutations beyond facts of case before them.

HUANG AND OTHERS v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE AND ANOTHER (GP)
TUCHTEN J
2013 NOVEMBER 18

Revenue—Income tax—Recovery—Inquiry proceedings—Use of information obtained under search-and-seizure warrants pending reconsideration application—Convenience in administration of justice requiring postponement of inquiry proceedings until reconsideration application finalised—Tax Administration Act 28 of 2011, part C.

JT v ROAD ACCIDENT FUND (GJ)
SUTHERLAND J
2014 AUGUST 26; SEPTEMBER 26

Delict—Specific forms—Loss of support—Dependant’s action—Extension—Adopted child—Action for loss of support following death of natural father—Grandmother adopting child but father continuing support—By assuming such obligation, conferring enforceable right in respect of duty of support.

LOURENS v SPEAKER OF THE NATIONAL ASSEMBLY AND OTHERS (EqC)
GRIESEL J
2014 AUGUST 18, 19; SEPTEMBER 17

Equality legislation—Discrimination—Language—Parliament—National legislation published in only two official languages—No constitutional or statutory duty on Parliament to publish in all 11 official languages—To extent practice discriminatory, such fair—Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, s 13(2)(b)(ii); Joint Rules of Parliament, rules 220–222.

 SOUTH AFRICAN CRIMINAL LAW REPORTS
 TABLE OF CASES

 

  • Minister of Police and Another v SA Metal and Machinery Company (Pty) Ltd 2015 (1) SACR 107 (SCA)
  • S v Van Rensburg 2015 (1) SACR 114 (NCK)
  • National Director of Public Prosecutions v Salie and Another 2015 (1) SACR 121 (WCC)
  • S v DD 2015 (1) SACR 165 (NCK)
  • S v Uithaler 2015 (1) SACR 174 (WCC)
  • Minister of Safety and Security v Kitase 2015 (1) SACR 181 (SCA)
  • Minister of Justice and Constitutional Development v X 2015 (1) SACR 187 (SCA)
  • Correctional Medical Practitioner, St Albans Medium B Correctional Centre and Others, Paddock v 2015 (1) SACR 200 (ECP)

 FLYNOTES

MINISTER OF POLICE AND ANOTHER v SA METAL AND MACHINERY COMPANY (PTY) LTD (SCA)
MPATI P, LEWIS JA, BOSIELO JA, THERON JA and MOCUMIE AJA
2014 MAY 13; JULY 1
[2014] ZASCA 95

Search and seizure—Seizure—Return of goods—No criminal proceedings instituted in connection with goods—Whether goods may be returned—Effect of contravention of requirements of Second-Hand Goods Act 23 of 1955—Second-Hand Goods Act not prohibiting possession of second-hand articles by dealer who does not keep register as required.

S v VAN RENSBURG (NCK)
MAMOSEBO AJ
2013 OCTOBER 24; DECEMBER 11

Diamond offences—Sentence—Theft of 525 grainers of unpolished diamonds and unlawful possession of same diamonds in contravention of Diamonds Act 56 of 1986—First offender, senior sorter at Diamond Trade Centre—Effective sentence of eight years’ imprisonment imposed in respect of both offences.

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v SALIE AND ANOTHER (WCC)
BREITENBACH AJ
2014 MARCH 17, 18, 26

Prevention of crime—Forfeiture order—Application for in terms of s 48 of Prevention of Organised Crime Act 121 of 1998 (POCA)—Keeping brothel—Proceeds of unlawful activities for purposes of forfeiture order not necessarily direct proceeds but also covered property that owner was able to retain through proceeds from brothel.
Prevention of crime—Forfeiture order—Application for in terms of s 48 of Prevention of Organised Crime Act 121 of 1998 (POCA)—Property to be forfeited—Whether proportionality required between offences and property to be forfeited—Proportionality indeed requirement.
Prevention of crime—Forfeiture order—Application for in terms of s 48 of Prevention of Organised Crime Act 121 of 1998 (POCA)—Property to be forfeited—Application of proportionality test for proceeds derived from keeping brothel—Value of respondents’ property less than brothel income and brothel income significant percentage (58%) of value of property—Brothels in questions not major public nuisance—Relatively close connection between property and commission of offences and forfeiture would not be arbitrary deprivation of property—Forfeiture order granted.

S v DD (NCK)
KGOMO JP
2014 MAY 27; JUNE 4

Legal practitioners—Duties of—Duty to court—Legal practitioner not entitled to accuse another person of being responsible for crime of his client wantonly or recklessly—Futile and unacceptable for counsel to try and hide behind client’s instructions in this regard.
Obstructing the course of justice—What constitutes—Accused sending police on wild-goose chase by claiming he and his family had been victims of farm attack whereas he was perpetrator—Circumstances indicating that substantive offence had been committed and not only attempt to defeat ends of justice.

S v UITHALER (WCC)
ZONDI J and VAN STADEN AJ
2014 FEBRUARY 10

Rape—Sentence—Counts taken together for purposes of sentence—Conviction on one count of rape set aside on appeal as it was based on anal penetration of complainant before statutory offence of rape in such circumstances came into existence—Conviction changed to one of indecent assault—Counts of rape and indecent assault taken together for purposes of sentence—Sentence of 28 years’ imprisonment replaced with 20 years’ imprisonment.

MINISTER OF SAFETY AND SECURITY v KITASE (SCA)
NUGENT JA, LEWIS JA, MAYA JA, TSHIQI JA and PILLAY JA
2013 SEPTEMBER 9, 16
[2013] ZASCA 111

Arrest—Legality of—Arrest without a warrant—Domestic violence—Interim protection order having been issued against person arrested but order never made final—Perpetrator arrested by police on confirmed complaint by victim that she had been assaulted by her visibly drunk husband—Fact that interim order no longer valid not bar to valid arrest without warrant under s 4(1)(q) or (b) of Criminal Procedure Act 51 of 1977, as all requirements met.
Arrest—Legality of—Arrest without a warrant—Domestic violence—Section 3 of Domestic Violence Act 116 of 1998 not requiring arrest at scene of incident after investigation and analysis—Person arrested after having been taken to police station after treatment at hospital—Arrest without warrant lawful in terms of s 40(1)(q) or (b) of Criminal Procedure Act 51 of 1977.

MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT v X (SCA)
LEWIS JA, TSHIQI JA, WALLIS JA, ZONDI JA and FOURIE AJA
2014 SEPTEMBER 1, 23
[2014] ZASCA 129

Prosecuting authority—Prosecutor—Immunity—Forfeited if conduct unlawful—Failure by prosecutor at bail hearing to place all relevant information before court—Accused released and committing violent sexual crime—Prosecutor failed to take reasonable precautions to avoid harm—Conduct unlawful and, moreover, negligent—State liable for damages suffered by victims—National Prosecuting Authority Act 32 of 1998, s 42.
Prosecuting authority—Prosecutor—Liability of—Negligent prosecution—Negligent conduct by prosecutor at bail application—Failed to place all relevant information before court—Accused released and committing violent sexual crime—All elements of delictual liability present—No prosecutorial immunity—State liable for damages suffered by victims.

PADDOCK v CORRECTIONAL MEDICAL PRACTITIONER, ST ALBANS MEDIUM B CORRECTIONAL CENTRE AND OTHERS (ECP)
TSHIKI J
2014 MARCH 6; SEPTEMBER 4

Prisoner—Parole—Release on—Release on medical grounds—Written medical report by medical practitioner recommending release on medical parole jurisdictional requirement for release.
 

 THE NAMIBIAN LAW REPORTS

2014 (4)

TABLE OF CASES

 

  • Atlantic Chicken Co (Pty) Ltd v Mwandingi and Another 2014 (4) NR 915 (SC)
  • Transworld Cargo (Pty) Ltd v Air Namibia (Pty) Ltd and Others 2014 (4) NR 932 (SC)
  • S v Valombola 2014 (4) NR 945 (HC)
  • Lofty-Eaton and Another v Noble 2014 (4) NR 952 (HC)
  • Maletzky v Minister of Justice and Others 2014 (4) NR 956 (HC)
  • S v Fourie 2014 (4) NR 966 (HC)
  • Hange and Others v Orman 2014 (4) NR 971 (HC)
  • Walvis Bay Municipal Council v Kangumu 2014 (4) NR 978 (LC)
  • Rall v Professional Provident Society Insurance Co (Namibia) Ltd 2014 (4) NR 981 (HC)
  • Keramen v Council of the Municipality of Windhoek and Others 2014 (4) NR 992 (HC)
  • Premier Construction CC v Chairperson of the Tender Committee of the Namibia Power Corporation Board of Directors and Others 2014 (4) NR 1002 (HC)
  • Novanam Ltd v Absalom and Others 2014 (4) NR 1009 (LC)
  • S v Beyer 2014 (4) NR 1041 (HC)
  • National Housing Enterprise v Hinda-Mbazira 2014 (4) NR 1046 (SC)
  • DM v SM 2014 (4) NR 1074 (HC)
  • Independence Catering (Pty) Ltd and Others v Minister of Defence and Others 2014 (4) NR 1085 (HC)
  • Kandetu v Karibib Town Council 2014 (4) NR 1097 (LC)
  • Kandjii v Awaseb and Others 2014 (4) NR 1103 (HC)
  • MW v Minister of Home Affairs 2014 (4) NR 1108 (HC)
  • Namibia Dairies (Pty) Ltd v Alfeus and Another 2014 (4) NR 1115 (LC)
  • Life Office of Namibia Ltd (Namlife) v Amakali and Another 2014 (4) NR 1119 (LC)
  • S v Ameb 2014 (4) NR 1134 (HC)
  • S v Kambatuku 2014 (4) NR 1142 (HC)
  • Gerber v Minister of Defence and Another 2014 (4) NR 1147 (HC)
  • Standard Bank of Namibia Ltd v Atlantic Meat Market 2014 (4) NR 1158 (SC)
  • Caterplus Namibia (Pty) Ltd t/a Blue Marine Interfish v Hallie Investment 142 CC t/a Wimpy Maerua and Another 2014 (4) NR 1182 (HC)
  • EN v SN 2014 (4) NR 1193 (HC)
  • Offshore Development Co (Pty) Ltd v First National Bank of Namibia Ltd 2014 (4) NR 1198 (HC)
  • S v Lang 2014 (4) NR 1211 (HC)
     
FLYNOTES

ATLANTIC CHICKEN CO (PTY) LTD v MWANDINGI AND ANOTHER (SC)
SHIVUTE CJ, MAINGA JA and DAMASEB AJA
2014 MARCH 28; JULY 15
[2014] NASC 10

Labour law—Arbitration—Review of—Misconduct by arbitrator—Nature of irregularity committed by arbitrator justifying review—Malice or dishonesty not required to be proven in terms of s 89 of Labour Act 11 of 2007—Essential that irregularity caused prejudice to the extent that it negated a fair trial.

TRANSWORLD CARGO (PTY) LTD v AIR NAMIBIA (PTY) LTD AND OTHERS (SC)
MAINGA JA, ZIYAMBI AJA and GARWE AJA
2014 MARCH 31; JULY 15
[2014] NASC 11

Administrative law—Administrative action—What constitutes—Commercial activity of parastatal enterprise—Award of contract for allocation of cargo space in flights of Air Namibia—Air Namibia private company although state-owned—Decision taken by directors acting in terms of articles and memorandum of association of company and not in terms of any public authority—Decision in question purely contractual one and not administrative act subject to review.

S v VALOMBOLA (HC)
SHIVUTE J
2013 SEPTEMBER 13; OCTOBER 9
[2013] NAHCMD 279

Criminal procedure—Bail—Appeal against magistrate’s refusal to grant bail—Appellate court must not set aside decision of lower court unless satisfied that decision wrong—Criminal Procedure Act 51 of 1977, s 65(4).
Criminal procedure—Bail—Application—Factors to be taken into consideration—Not necessarily a misdirection for court to invoke provisions of Criminal Procedure Amendment Act 5 of 1991 in refusing bail—Act 5 of 1991 introduced to give courts wider powers and additional grounds for refusing bail in order to combat escalation of crime.

LOFTY-EATON AND ANOTHER v NOBLE (HC)
CHEDA J
2013 OCTOBER 29; NOVEMBER 8
[2013] NAHCMD 322

Practice—Judgments and orders—Summary judgment—Opposition to—Requirements—Respondent required to show and satisfy court that he/she had bona fide defence to claim—Material facts upon which defence based must be disclosed with sufficient particularity and completeness to enable court to decide whether bona fide defence disclosed—Not required to disclose all details as would be case in trial proceedings.

MALETZKY v MINISTER OF JUSTICE AND OTHERS (HC)
CHEDA J
2013 SEPTEMBER 17, 25; NOVEMBER 8
[2013] NAHCMD 316

Criminal procedure - Constitutional practice—Parties—Joinder of parties—Application for order declaring rule 45(12)(h) and (i) of Rules of High Court (financial enquiry into judgment debtor’s ability to pay judgment debt) unconstitutional—In addition to Minister of Justice, Attorney-General and judgment creditor, necessary to join Judge President, Registrar of High Court, President of Namibia, deputy sheriffs, Law Society of Namibia and various other institutions—Failure to join such parties and serve application on them constituting grave procedural irregularity—Such irregularity rendering proceedings a nullity which could not be condoned—Letter to Judge President seeking his administrative intervention to facilitate application not constituting court process and not amounting to proper joinder of Judge President.
Practice—Practice directives—Issued by court—Such directives part of law with which courts, legal practitioners and all who litigate must familiarise themselves and adhere to—Smooth running of justice system based on such laws and guidelines—Practice directives not exclusive and secret manuals for judges and admitted and registered legal practitioners only—Must be adhered to by all litigants.

S v FOURIE (HC)
VAN NIEKERK J, UEITELE J and MILLER AJ
2012 JULY 27; 2013 NOVEMBER 15
[2013] NAHCMD 338

Criminal procedure—Trial—The prosecution—Stopping of—Prosecutor, after numerous postponements and complainant indicating he was no longer interested in case, closing state case—Such not amounting to stopping of prosecution as contemplated in s 6(b) of Criminal Procedure Act 51 of 1977, requiring permission of Prosecutor-General—Acquittal of accused confirmed.

HANGE AND OTHERS v ORMAN (HC)
CHEDA J
2013 OCTOBER 29; NOVEMBER 19
[2013] NAHCMD 41

Practice—Judgments and orders—Rescission—Requirements of rule 31(2)(b) of High Court Rules—Applicant to give reasonable explanation of his default; application must be bona fide; and applicant must show he has bona fide defence to claim—Sufficient to make out prima facie defence, ie setting out averments which, if established at trial, would entitle him to relief—In considering whether reasonable explanation for default given, court cannot ignore fact (where such the case) that applicant belongs to previously disadvantaged group of society and that some of consequences of his socio-historical background manifests itself in illiteracy.

WALVIS BAY MUNICIPAL COUNCIL v KANGUMU (LC)
PARKER AJ
2013 NOVEMBER 29; 2014 FEBRUARY 21
[2014] NALCMD 8

Local authority—Municipality—Locus standi—Municipality has no legal personality and therefore no locus standi in terms of Local Authorities Act 23 of 1992—Municipality cannot sue or be sued—Only council of local authority has locus standi in judicio.
Labour law—Appeal—Appeal on ‘any question of law’ as intended in s 89(1)(a) of Labour Act 11 of 2007—Such appeal not restricted to questions raised during conciliation or subsequent arbitration—Only qualification being that question of law to be set out as ground of appeal in notice of appeal in rule 17(2) of Labour Court Rules.

RALL v PROFESSIONAL PROVIDENT SOCIETY INSURANCE CO (NAMIBIA) LTD (HC)
UEITELE J
2014 JUNE 17; AUGUST 22
[2014] NAHCMD 249

Interest—Payment of—Claim for—Interest on payments made under insurance policy—Claim based not on insurance policy but on subsequent agreement by insurer to pay amounts and therefore claimant not obliged to make averments relating to policy and attach policy to claim.
Interest—Payment of—Mora interest—Liquidated claim—Amount owing in terms of insurance policy—Mora interest due with effect from date on which insurer had determined would be date on which it paid benefits.

KERAMEN v COUNCIL OF THE MUNICIPALITY OF WINDHOEK AND OTHERS (HC)
SMUTS J
2014 JULY 24; AUGUST 8
[2014] NAHCMD 237

Police—Dismissal of employee from service—Fairness of—Employee subjected to inquiry into fitness to remain in employment after his acquittal at disciplinary inquiry concerning same charges—Distinction between two forms of inquiry—Fact that referral for disciplinary inquiry was one of recommendations which could be made at fitness inquiry did not mean that fitness inquiry could not be convened after disciplinary inquiry.

PREMIER CONSTRUCTION CC v CHAIRPERSON OF THE TENDER COMMITTEE OF THE NAMIBIA POWER CORPORATION BOARD OF DIRECTORS AND OTHERS (HC)
PARKER AJ
2014 AUGUST 22; SEPTEMBER 17
[2014] NAHCMD 270

Interdict—Interim interdict—Requisites—Urgent interim relief on basis that there had been prima facie infringement of rights under art 18 of Constitution—Onus of proof—Distinction between basic human rights and legal rights—No burden of proof on respondent who had awarded tender—Would be wrong and unjust for court to accept that applicant’s rights had been violated until proven otherwise—Application for interdict refused.
Practice—Parties—Citation of—Citation of administrative officials involved in decision-making on behalf of respondent who was also cited in application for review—Incorrect citation of parties having fatal consequences for application.

NOVANAM LTD v ABSALOM AND OTHERS (LC)
SMUTS J
2014 FEBRUARY 14; APRIL 30
[2014] NALCMD 19

Labour law—Contract of employment—Duties of employee—Implied duty not to work against employer’s interest and not abuse confidence of employer and to protect employer’s interest in respect of matters entrusted to employee—Large-scale unauthorised removal of fish from fish processing plant during one shift—In circumstances where it was clear that large number of employees had been involved in removal and none were forthcoming with information on identity of perpetrators despite repeated requests for such information, dismissal of all employees on shift in single hearing, justified.
Labour law—Dismissal—Misconduct—Team misconduct—When whole team can be held responsible for unlawful act—Much depending on circumstances of individual case—Large-scale unauthorised removal of fish from fish processing plant during one shift—In circumstances where it was clear that large number of employees had been involved in removal and none were forthcoming with information on identity of perpetrators despite repeated requests for such information, dismissal of all employees on shift in single hearing, justified.
Labour law—Labour arbitration tribunal—Arbitration and Conciliation Rules—Application of rule 13—Rule 13 could never be used as shield to preclude statements made by arbitrator, when acting as conciliator, which demonstrated bias or gave rise to reasonable apprehension of bias by expressing predisposition on merits of matter.
Labour law—Labour arbitration tribunal—Arbitrator—Recusal of—Important that public (both employees and employers) have confidence in tribunals established to adjudicate disputes as contemplated under art 12 of Constitution—Arbitrator should not express predisposition in matter to be determined by him—Test for disqualifying bias not actual bias but reasonable apprehension of bias.

S v BEYER (HC)
HOFF J and SIBOLEKA J
2014 APRIL 14; JUNE 3
[2014] NAHCMD 172

Criminal procedure—Appeal—Notice of appeal—Grounds of appeal—Grounds of appeal not grounds at all but merely conclusions of drafter of notice—Notice of appeal fatally defective and could not be amended—Appeal struck from roll.

NATIONAL HOUSING ENTERPRISE v HINDA-MBAZIRA (SC)
MAINGA JA, DAMASEB AJA and HOFF AJA
2014 MARCH 24; JULY 4
[2014] NASC 9

Labour law—Labour dispute—Referral of dispute to Labour Commissioner in terms of s 86(2)(a) of Labour Act 11 of 2007—Six-month time limit provided for in s 86(2)(a) beginning to run after all reasonable or internal remedies exhausted and having failed to resolve dispute—Such interpretation not violating intention of legislature in its use of words ‘dispute’ and ‘date of dismissal’ in section.
Labour law—Labour dispute—Appeal to Labour Court—Disciplinary proceedings commencing six years earlier—On appeal against arbitration award under Labour Act 11 of 2007, Labour Court referring dispute back for arbitration before different arbitrator—Such referral resulting in unnecessary delay, would be highly prejudicial to parties and might strain employee’s resources in order to fund legal representative—Proper for Labour Court, or Supreme Court on appeal to it, to determine dispute between parties in terms of s 89(10)(a) of Labour Act.
Labour law—Arbitration award—Award made in terms of Labour Act 11 of 2007—Award becoming order of court on mere filing thereof in Labour Court—Application for award to be made order of court not necessary—Where party unnecessarily makes such application, not necessary for such order to be set aside before appeal against arbitrator’s award can be pursued.

DM v SM (HC)
PARKER AJ
2013 JULY 1, 5; OCTOBER 3; NOVEMBER 14
[2013] NAHCMD 332

Contract—Oral agreement—Validity—Oral agreement made seriously and deliberately with intention that lawful obligation should be established and having well-grounded reason for its conclusion which was not immoral or forbidden, was valid and enforceable—Oral agreement valid and enforceable where, as in present case, intending to attain cessation of hostilities between parties since their divorce which was injurious to parties and their children.
Novation—What constitutes—Oral agreement intended to replace parties’ rights and obligations under certain judgments of court—Such amounting to valid novation of rights and obligations under those judgments.

INDEPENDENCE CATERING (PTY) LTD AND OTHERS v MINISTER OF DEFENCE AND OTHERS (HC)
CHEDA J
2013 OCTOBER 7; NOVEMBER 19
[2013] NAHCMD 347

Practice—Parties—Joinder—Application for order setting aside contracts concluded by Minister of Defence pending adjudication of tenders for supply of food and services—Chief of Defence Force interested party in such proceedings and should be joined as party.
Defence force—Contracts—Minister of Defence—Minister having right in terms of s 14(1) of Defence Act 1 of 2002 to exercise his executive powers to make contracts with any party for supply of food and services pending adjudication of tenders for such supplies—No legitimate expectation by parties tendering for contracts for such supply that they were entitled to remedy preventing minister concluding contract pending adjudication of tenders.

KANDETU v KARIBIB TOWN COUNCIL (LC)
UNENGU AJ
2014 FEBRUARY 7; APRIL 16
[2014] NALCMD 15

Local authority—Officers and employees—Dismissal—Dismissal in terms of s 29(4)(a) of Local Authorities Act 23 of 1992—Absence from duty for period exceeding 30 days without permission deemed to be discharge from service—Termination of employment in terms of s 29(4)(a) constituting termination for fair and valid reason was in accordance with fair procedure—Disciplinary hearing unnecessary.

KANDJII v AWASEB AND OTHERS (HC)
UEITELE J
2013 DECEMBER 12; 2014 JUNE 11
[2014] NAHCMD 177

Practice—Trial—Consolidation of actions—Application for—Onus on applicant to satisfy court that consolidation of actions favoured by balance of convenience and no possibility of prejudice to any of parties existing—Necessary to put sufficient information before court to enable it to assess convenience of consolidation—Such application can only be considered when actions ready to go to trial—Impossible to consider such application when pleadings in one or both actions not closed—Rules of High Court, rule 11.

MW v MINISTER OF HOME AFFAIRS (HC)
PARKER AJ
2014 APRIL 3; MAY 22
[2014] NAHCMD 160

Citizenship—By birth—Child born to parents in Namibia—Parents resident in Namibia in terms of employment permit issued in terms of s 24(b), read with s 27, of Immigration Control Act 7 of 1993—Such parents not ‘ordinarily resident’ in Namibia within meaning of art 4(1)(d) of Namibian Constitution—Objective proof of being ‘ordinarily resident’ in Namibia provided by being in possession of permanent residency permit issued in terms of s 26 of Immigration Control Act—Child accordingly not qualifying for Namibian citizenship by birth and not entitled to ‘Full Birth Certificate (Namibian)’.
Costs—Generally—Successful respondent having without explanation rebuffed applicant’s attempts to settle dispute and avoid litigation—Such constituting suitable case for successful respondent to be denied his costs.

NAMIBIA DAIRIES (PTY) LTD v ALFEUS AND ANOTHER (LC)
PARKER AJ
2014 JUNE 27; SEPTEMBER 18
[2014] NALCMD 36

Appeal—Notice of appeal—Requirements of—Notice of appeal required to have both questions of law and grounds of appeal in terms of rule 17(2) of Labour Court Rules and rule 23(2)(d) of Rules Relating to Conduct of Conciliation and Arbitration before Labour Commissioner—Notice of appeal not complying with rules a nullity.

LIFE OFFICE OF NAMIBIA LTD (NAMLIFE) v AMAKALI AND ANOTHER (LC)
SMUTS J
2014 JULY 25; AUGUST 8
[2014] NALCMD 34

Labour law—Arbitration—Arbitrator’s award—Time within which award to be handed down—Failure to comply with 30-day limit in s 86(18) of Labour Act 11 of 2007—Effect of—Award not a nullity.
Labour law—Arbitrator’s award—Appeal against—Conclusions reached by arbitrator were so unsupported by any proper analysis and evaluation of evidence that they were tantamount to arriving at no conclusions or findings at all and certainly amounted to findings that no reasonable court or tribunal could have reached—Appeal against award was upheld and first respondent’s dismissal was confirmed.
Labour law—Sexual harassment—Seriousness with which legislature views sexual harassment indicated by its presence in provisions of ch 2 of Labour Act 11 of 2007 along with prohibition of discrimination in employment setting.

S v AMEB (HC)
HOFF J and SIBOLEKA J
2013 OCTOBER 11; NOVEMBER 8
[2013] NAHCMD 324

Criminal procedure—Appeal—Generally—Findings on credibility and fact—Trial court having advantages which court of appeal cannot have, namely seeing and hearing witnesses and being steeped in atmosphere of trial—Also having advantage of observing demeanour of witnesses and personality of witnesses—Where trial court influenced by demeanour of any witness and says so, appeal court as a rule guided by trial court—Court of appeal will not reject credibility findings of trial court in absence of irregularities or misdirections—Trite that function of deciding acceptance or rejection of evidence falling primarily on trial court.

S v KAMBATUKU (HC)
SHIVUTE J and SIBOLEKA J
2013 NOVEMBER 12; 2014 FEBRUARY 12
[2014] NAHCMD 41

Criminal procedure—Accused—Legal representation—Right to legal representation enshrined in art 12(1)(e) of Constitution a fundamental right to ensure accused afforded fair trial—Whether failure to afford accused opportunity to be legally represented results in failure of justice is question of fact, depending on circumstances of each case—Not sufficient for court to explain right to legal representation—Accused to be afforded reasonable opportunity to exercise this right—On facts, court holding that failure to afford accused second opportunity to obtain legal representation resulting in unfair trial—Conviction and sentence set aside on appeal.

GERBER v MINISTER OF DEFENCE AND ANOTHER (HC)
UEITELE J
2013 JANUARY 28; AUGUST 23
[2013] NAHCMD 250

Motor vehicle accident—Duty of driver—Driver having right of way—But driver not having right to assume that all other drivers on road would observe their duties and always act reasonably and diligently—Reasonable driver should base conduct on knowledge that drivers are not infrequently guilty of negligence or breaches of the law—Driver should allow for possibility that other drivers may act in manner that is dangerous.
Motor vehicle accident—Duty of driver—Proper look-out—Such entailing continuous scanning of road ahead from side to side for potential obstructions—Includes awareness of what is happening in immediate vicinity—Driver cannot drive virtually with blinkers on—Such inconsistent with standard of reasonable driver—Driver colliding with vehicle reversing out of parking bay, not having seen it until collision occurred—Driver driving at 40 kph on road busy with traffic and pedestrian—Driver negligent.

STANDARD BANK OF NAMIBIA LTD v ATLANTIC MEAT MARKET (SC)
SHIVUTE CJ, MARITZ JA and CHOMBA AJA
2006 APRIL 7; 2014 OCTOBER 17
[2014] NASC 14

Practice—Applications and motions—Postponement—Refusal of—Whether refusal amounted to irregularity in proceedings contemplated in s 16(1) of Supreme Court Act 15 of 1990 or violated right to fair hearing as aspect of rights to fundamental justice in common law or to fair trial guaranteed by art 12(1)(a) of Constitution—Refusal in context of urgent application for interdict—No irregularity having occurred—Doubtful that refusal involved ‘determination of civil rights and obligations’ as envisaged by threshold requirements of art 12(1)(a) of Constitution.

CATERPLUS NAMIBIA (PTY) LTD t/a BLUE MARINE INTERFISH v HALLIE INVESTMENT 142 CC t/a WIMPY MAERUA AND ANOTHER (HC)
HOFF J
2014 APRIL 15; JUNE 20
[2014] NAHCMD 192

Contract—Legality—Illegal contract—Cession contrary to public morality and unconstitutional in that it allegedly infringed cedent’s right of access to court—Contract in question providing that certificate of indebtedness only prima facie proof of defendant’s liabilities; did not provide for plaintiff’s retention of money exceeding indebtedness; and set-off operated automatically—Cession not contrary to public morality or unconstitutional.

EN v SN (HC)
PARKER AJ
2013 NOVEMBER 25; 2014 FEBRUARY 14
[2014] NAHCMD 47

Marriage —Matrimonial property regime—Marriages governed by Native Administration Proclamation 15 of 1928—Marriage presumed to be out of community of property unless parties within one month before marriage declared that they desired marriage to be in community of property—Proc 15 of 1928, s 17(6)—View of third parties that marriage nevertheless in community of property not binding court as such view offensive to law, namely s 17(6) of Proc 15 of 1928.

OFFSHORE DEVELOPMENT CO (PTY) LTD v FIRST NATIONAL BANK OF NAMIBIA LTD (HC)
VAN NIEKERK J
2008 MARCH 31; 2013 OCTOBER 2
[2013] NAHCMD 269

Company—Directors—Chief executive officer—Powers of—Claim by company against its banker for losses suffered as result of unauthorised transfers from its bank account—Transfer effected on instructions of chief executive officer of company but which were contrary to company’s mandate to bank—Bank excepting to claim on basis that a chief executive officer had authority to act on behalf of company which was bound by his actions—Such defence one that should be pleaded and not subject of exception—If bank believed chief executive officer was authorised to amend company’s mandate to bank, bank should plead these facts as part of its defence—Such amendment to mandate would be tacit amendment which would have to be pleaded and proved—Cannot be said that it is always within powers of managing director of company to change terms of mandate to bank—Such dependent on terms of mandate to bank—Whether chief executive officer and managing director one and the same a question of fact—If not, most of argument on exception would fall away.

S v LANG (HC)
SMUTS J and MILLER AJ
2013 OCTOBER 28; NOVEMBER 18
[2013] NAHCMD 342

Criminal law—Culpable homicide—Sentence—Accused shooting and fatally wounding poacher on his farm—Accused sentenced to five years’ imprisonment of which two years conditionally suspended—Principles applicable in appeal against sentence reiterated—Trial court misdirecting itself on facts in regard to interests of society and whether accused taking law into own hands—Also misdirecting itself on law in regarding evidence on sentence of psychologist/social worker as hearsay—Custodial sentence in circumstances entirely inappropriate—Sentence altered to one of fine or  imprisonment plus additional term of imprisonment conditionally suspended.

 

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