Dear South African Law Reports and Criminal Law Reports subscriber
SOUTH AFRICAN LAW REPORTS
Fit and proper person?
The duties of a prosecutor are not to do everything in their power to ensure that the charges against the accused were permanently withdrawn, despite prima facie evidence against him, and contrary to solid legal advice. The duties of a prosecutor are not to lie, to deliberately mislead the court and to deliberately fail to disclose pertinent documents. General Council of the Bar of South Africa v Jiba and Others 2017 (2) SA 122 (GP)
Dictionary copyright dispute
There were similarities in the example sentences for certain words in the dictionaries produced by different publishers. The respondent’s experts explained that similarities were inevitable in works of this type. In the absence of the opportunity to test respondent’s evidence in a trial, the onus of proving copying was not discharged on the basis of the similarities. Media 24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd 2017 (2) SA 1 (SCA)
Relying on only the contract
A party bearing an onus in a dispute over the interpretation of a contract should keep in mind that a bare linguistic interpretation of the contract, without evidence about the factual matrix in which the contract was concluded or the subsequent conduct of the parties, might not suffice to discharge it. G4S Cash Solutions (Sa) (Pty) Ltd v Zandspruit Cash & Carry (Pty) Ltd and Another 2017 (2) SA 24 (SCA)
SOUTH AFRICAN CRIMINAL LAW REPORTS
Search without a warrant
The claim by the police that there had been no time to obtain a warrant was rejected, and the search was consequently unlawful. However, real evidence obtained in the search did not necessarily result in unfairness at trial. But where the police had misled the court in justifying the absence of the warrant and the subsequent pointing-out was inextricably linked to the search conducted without regard to the accused’s rights, the evidence was to be excluded. S v Gumede 2017 (1) SACR 253 (SCA)
Mother helps husband rape child
The mother alleged that she was compelled to assist her husband to rape their 10 year old daughter. But she failed to call for help from the neighbours. As a mother she had the ability to resist her husband, instead she pushed a cloth into her daughter’s mouth while the girl was being raped. The mother was guilty of aiding and abetting the rape. S v MD and Another 2017 (1) SACR 268 (ECB)
Child offender failed by the system
The child offender, who had in the meantime become of age, was convicted on his guilty plea. Had the police verified his age from the outset, his parents or guardian and the probation officer would have been involved, and he would probably have been diverted after acknowledging his wrongful conduct, which programmes may have added value to his life. A legal practitioner representing a child offender is required to make an extra effort in ensuring that the best interests of the child are paramount. S v DW 2017 (1) SACR 336 (NCK)
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SOUTH AFRICAN LAW REPORTS
TABLE OF CASES
MEDIA 24 BOOKS (PTY) LTD v OXFORD UNIVERSITY PRESS SOUTHERN AFRICA (PTY) LTD (SCA)
NAVSA JA, THERON JA, WALLIS JA, PETSE JA and WILLIS JA
Intellectual property - Copyright—Infringement—What constitutes—Copying—Proof—Caution—To establish breach of copyright all evidence had to be examined, not only that which pointed in direction of copying.
Intellectual property - Copyright—Infringement—What constitutes—Copying—Proof—Approach to be adopted.
Intellectual property - Copyright—Infringement—What constitutes—Dictionary—Correspondences between example sentences in bilingual dictionaries directed at learners—Whether there had been substantial copying—Compilers of respondent dictionary providing evidence on affidavit of methods to compose example sentences, and denying copying—Respondent’s experts offering explanation that similarities inevitable in work of this type—In absence of opportunity to test respondent’s evidence in a trial, onus of proving copying not discharged on basis of correspondences alone.
G4S CASH SOLUTIONS (SA) (PTY) LTD v ZANDSPRUIT CASH & CARRY (PTY) LTD AND ANOTHER (SCA)
LEWIS JA, MATHOPO JA, SCHOEMAN AJA, FOURIE AJA and POTTERILL AJA
Contract- Interpretation—Evidence—Court cautioning against production of contract only—Party bearing onus to keep in mind that linguistic interpretation of contract, without evidence regarding factual matrix in which contract concluded and subsequent conduct of parties, might not suffice to discharge it.
Contract- Terms and conditions—Time-limitation clause—Services contract restricting damages claims by consumer—May be interpreted to exclude delictual claims.
Prescription- Time-limitation clause—Services contract time-barring action for damages by consumer—Clause may be interpreted to exclude delictual claims.
Security industry- Contract for provision of security—Interpretation—Contract for collection and storage of money—Time-limitation clause providing deadlines for notification of loss and submission of claim against security service provider—Intended to apply to loss or damage arising from provision of contracted services, not delictual claims otherwise arising.
MBELE v ROAD ACCIDENT FUND (SCA)
SHONGWE JA, SALDULKER JA, SWAIN JA, ZONDI JA and DLODLO AJA
Prescription - Extinctive prescription—Road Accident claim—Claim including claim for future medical expenses—Claim lodged within three-year period specified in s 23(1) of Road Accident Fund Act 56 of 1996—Five-year period stipulated in s 23(3) thereafter applicable to entire claim, including claims covered by s 17(4)(a) undertaking in respect of future medical expenses—Cause of action complete, and five-year prescription period in s 23(3) beginning to run, once all medical costs covered by undertaking incurred—Prescription Act 68 of 1969 irrelevant.
MONYETLA PROPERTY HOLDINGS (PTY) LTD v IMM GRADUATE SCHOOL OF MARKETING (PTY) LTD AND ANOTHER (SCA)
PONNAN JA, SHONGWE JA, LEACH JA, DAMBUZA AJA and MAYAT AJA
Lease - Cancellation—Action for damages by landlord due to breach by tenant—Prescription of claim—Tenant remaining in occupation and continuing to pay rental under clause in lease that obliged it to do so if cancellation disputed—Landlord’s claim arising on cancellation and prescription running from that date—Landlord’s claim having prescribed despite tenant’s continued occupation of premises.
Prescription - Extinctive prescription—Commencement—When debt due—Landlord suing for moneys due under cancelled lease—Tenant remaining in occupation of premises until leave to appeal refused—Landlord instituting claim for damages more than three years after date of cancellation of lease—On date of cancellation, everything having happened which would entitle lessor to institute action and to obtain judgment—Debt due on date of cancellation—Claim prescribed—Prescription Act 68 of 1969, s 11 and s 12.
BOTHA v ROAD ACCIDENT FUND (SCA)
LEACH JA, SALDULKER JA, DAMBUZA JA, FOURIE AJA and VICTOR AJA
Practice - Judgments and orders—Rescission—Grounds—Mistake—Parties settling claim for damages on strength of erroneous representation of fact by plaintiff’s attorney—Settlement made order of court—Plaintiff, relying on his attorney’s mistake, seeking rescission of order—Defendant’s acceptance of plaintiff’s misrepresentation reasonable—Plaintiff not entitled to rely on it to invalidate order incorporating settlement.
Contract - Consensus—Mistake—Unilateral error—Mistake of fact by A misleading B, resulting in conclusion of contract—B’s acceptance of A’s misrepresentation reasonable—A not entitled to rely on own mistake to avoid contract.
STANDARD BANK OF SOUTH AFRICA LTD v GAS 2 LIQUIDS (PTY) LTD (GJ)
Company - Business rescue—Liquidation proceedings already initiated—Provisional liquidator appointed—Business rescue application will not suspend liquidation proceedings unless notice of application served on provisional liquidator—Companies Act 71 of 2008, s 131(6).
STATE INFORMATION TECHNOLOGY AGENCY SOC LTD v GIJIMA HOLDINGS (PTY) LTD (SCA)
CACHALIA JA, BOSIELO JA, TSHIQI JA, VAN DER MERWE JA and DLODLO AJA
Review - Grounds—Legality—Legality review not available when Act applies—Promotion of Administrative Justice Act 3 of 2000
Administrative law - Administrative action—Review—‘Any person’—Includes state—Promotion of Administrative Justice Act 3 of 2000, s 6(1).
KENTON-ON-SEA RATEPAYERS ASSOCIATION AND OTHERS v NDLAMBE LOCAL MUNICIPALITY AND OTHERS (ECG)
2016 MAY 5–7; JUNE 15
Contempt of court - Disobedience of court order—What constitutes—Whether, if non-compliance with court order remedied before hearing, court may make finding of contempt—Wilful and mala fide non-compliance with court order at any time sufficient for finding of contempt.
Local authority - Powers and duties—Local municipality—Air pollution control, refuse removal, refuse dumps and sold waste disposal—Nature of obligations imposed—Appropriate relief for failure to perform—Constitution, sch 4 part B and sch 5 Part B.
Local authority - Officers—Responsibility for compliance with court order—Statutory provisions relating to municipalities making it clear that municipal manager designated official with responsibility for overseeing implementation of court orders against municipality.
GENERAL COUNCIL OF THE BAR OF SOUTH AFRICA v JIBA AND OTHERS (GP)
LEGODI J and HUGHES J
Advocate - Misconduct—Removal from roll—On ground of unfitness for practice—Advocates in National Prosecuting Authority struck from roll for various instances of unreasonable and dishonest conduct—Admission of Advocates Act 74 of 1964, s 7(1)(d).
Advocate - Misconduct—Removal from roll—On ground of unfitness for practice—Test—Nature of enquiry set out—Admission of Advocates Act 74 of 1964, s 7(1)(d).
Prosecuting authority - National Director of Public Prosecutions—Misconduct—Sanctions—Difference between removal or suspension under s 12 of National Prosecuting Authority Act 32 of 1998 and removal from roll of advocates under s 7 of Admission of Advocates Act 74 of 1964—National Director or Deputy who is removed from roll of advocates cannot continue in that office.
Prosecuting authority - Institution of criminal proceedings—To be done in accordance with rule of law and Constitution—Failure to prosecute in face of prima facie evidence unlawful and unconstitutional—Constitution, s 179(1) and (2).
Review - Procedure—Record on review—Compliance with procedures and time frames set out in rule 53 of Uniform Rules of Court.
MERAFONG CITY v ANGLOGOLD ASHANTI LTD (CC)
MOSENEKE DCJ, BOSIELO AJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MHLANTLA J, NKABINDE J and ZONDO J
Administrative law - Decision of functionary—Collateral challenge to validity of decision—Circumstances in which available—Whether available to organ of state or strictly restricted to individuals whom public authority threatened with coercive action—No rigid doctrinal limitation upon availability—Available where justice required it and dependent in each case on facts—Organ of state not categorically excluded from raising collateral challenge.
Administrative law - Administrative action—Invalidity—Consequences—Government’s obligations in face of invalid administrative action—Principles established in SCA decision of Oudekraal and CC decision of Kirland explained.
Local authority - Water—Tariff—Increase—Water for industrial use—Minister, citing its unreasonableness, upholding mines’ appeal against 62% increase—Whether municipality entitled to ignore ruling on ground that It was unlawful—Municipality should have gone to court to set aside Minister’s ruling once it had reached opinion that it was invalid—In failing to do so it acted in conflict with good constitutional citizenship and its duty as an organ of state to uphold and protect rule of law—However, despite inaction, not in circumstances disqualified from later resisting application to enforce ruling.
LAUBSCHER NO v DUPLAN AND OTHERS (CC)
NKABINDE ADCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MBHA AJ, MHLANTLA J, MUSI AJ and ZONDO J
Administration of estates - Intestate succession—‘Spouse’—Reading-in by Constitutional Court after ‘spouse’ of ‘or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support’—Whether on interpretation of court’s judgment and consideration of Civil Union Act, reading-in still extant—Intestate Succession Act 81 of 1987, s 1(1)(a); Civil Union Act 17 of 2006, s 13(2)(b).
JORDAAN AND ANOTHER v TSHWANE CITY AND ANOTHER, AND FOUR SIMILAR CASES (GP)
Constitutional law - Legislation—Validity—Statutory charge on property in Local Government: Municipal Systems Act 32 of 2000, s 118(3)—Declared unconstitutional to extent of it surviving transfer of ownership to owner who was not debtor of municipality with regard to debts incurred prior to transfer.
Local authority - Rates—Credit control and debt collection measures—Statutory charge on property in Local Government: Municipal Systems Act 32 of 2000, s 118(3)—Declared unconstitutional as constituting arbitrary deprivation of property—Declaration limited only to extent that such statutory charge surviving transfer of ownership to owner who was not debtor of municipality with regard to debts incurred prior to transfer—Constitution, s 25(1).
VN v MD AND ANOTHER (ECG)
EKSTEEN J and BACELA AJ
Children - Custody—Parenting plan—Made order of court—Variation—Input of family advocate, social worker or psychologist required in preparing revised plan—Children’s Act 38 of 2005, s 33(5).
SOUTH AFRICAN CRIMINAL LAW REPORTS
TABLE OF CASES
S v GUMEDE (SCA)
BOSIELO JA, SWAIN JA, ZONDI JA, MOCUMIE JA and DLODLO AJA
Search and seizure - Search without warrant—Validity of—Claim by police that no time available to obtain warrant rejected, search consequently unlawful—Real evidence obtained in search not necessarily resulting in unfairness at trial—However, where police misled court in justifying absence of warrant and subsequent pointing-out inextricably linked to search conducted without regard to accused’s rights, evidence to be excluded under s 35(5) of Constitution.
S v MD AND ANOTHER (ECB)
Sexual offences - Causing child to witness sexual act—Contravention of s 21(2)(a) of Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007—What constitutes—Mere presence of child insufficient—Perpetrator must have consciously and deliberately created circumstances conducive to child witnessing sexual act and been aware that child watching.
Rape - Alibi—Proper treatment of by police, prosecutor and presiding officers—Need by all role players to familiarise themselves with proper treatment of alibi.
NATIONAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS v MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND OTHERS (CC)
NKABINDE ADCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MHLANTLA J, MUSI AJ and ZONDO J
Animal - Cruel ill-treatment—Prosecution of—Power of NSPCA to institute private prosecution.
S v HEWITT (SCA)
MAYA DP, TSHIQI JA and SERITI JA
Sentence - Factors to be taken into account—Celebrated status of accused—Constitution decreeing equality before law, which knew of no class distinction.
Rape - Sentence—Factors to be taken into account—Celebrated status of accused and effect of his fall from grace—Former champion tennis player and coach convicted of raping two girls entrusted to his care and of indecently assaulting another—Accused 75 years old at time of conviction—Sentence of imprisonment for six years upheld.
S v MBOKAZI (KZP)
D PILLAY J and MBATHA J
Evidence - Witness—Oath—Admonition to speak the truth—Child explaining in own words what she understood by truth and lies—Her explanation, together with manner of testifying, indicating that requirements of ss 162 and 164 of Criminal Procedure Act 51 of 1977 met.
S v MABITLE (NWM)
LANDMAN J, GUTTA J and DJAJE AJ
Murder - Sentence—Factors to be taken into account—Youthfulness and mercy—Contract killing—Sentence of life imprisonment on 20-year-old offender reduced to 25 years’ imprisonment.
S v MONYE AND ANOTHER (SCA)
BOSIELO JA, ZONDI JA, VAN DER MERWE JA, SCHOEMAN AJA and POTTERILL AJA
Sentence - Factors to be taken into account—Remorse—Question of fact—Accused denying role in murder until last moment before sentencing, when they performed volte-face—Not true remorse.
S v DW (NCK)
KGOMO JP and MAMOSEBO J
Child - Trial—Child under age of 18 years at commission of offence—Application of Child Justice Act 75 of 2008—Duties of legal practitioner representing child offender—Required to make extra effort in ensuring best interests of child paramount.
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v RAMLUTCHMAN (SCA)
BOSIELO JA, MATHOPO JA and VAN DER MERWE JA
Prevention of crime - Confiscation order in terms of Prevention of Organised Crime Act 121 of 1998—Benefits of crime that may be confiscated—Although value of contract could fall within wide meaning of ‘benefit’, court to determine whether appropriate that whole amount be confiscated.
Prevention of crime - Confiscation order in terms of Prevention of Organised Crime Act 121 of 1998—Enquiry under s 18(1)—Nature of—No onus on National Director of Public Prosecutions—Magistrate required to direct enquiry.
Prevention of crime - Confiscation order in terms of Prevention of Organised Crime Act 121 of 1998—Sequestration of accused—Participation in enquiry under s 18—Accused having locus standi where he had reversionary interest in estate.
PANAYIOTOU v THE STATE AND OTHERS (ECP)
Fundamental rights - Right to fair trial—Right of access to information—Contents of sections B and C of police docket—Mere assertion of right of access to documents, without any prima facie facts to establish relevance, insufficient—In casu, stated intention to challenge conduct of investigation to establish that evidence implicating him inadmissible, by reason of manner in which it was obtained, sufficient to establish right to access to section C.
Evidence - Witness—Subpoena—Issue of subpoena duces tecum to police official in respect of documents already subject of dispute in application to compel access to police docket—Subpoenaed persons required to attend hearing of application—Rule 38(1)(b) not permitting party to nominate date for appearance of witness other than date of trial and procedure adopted accordingly irregular—Conduct of attorney unacceptable and to be deprecated—Uniform Rules of Court, rule 38(1)(b).
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