Dear South African Law Reports and Criminal Law Reports subscriber
SOUTH AFRICAN LAW REPORTS
State entities may be held to their promises
In 1989 the general manager of the SA Transport Services, a state organ, promised employees that their pension benefits would remain the same when government-owned company Transnet Ltd took over. The promise was echoed by government officials. When the promise was broken a decade later, the applicants, both members the new Transnet pension funds, instituted a class action against them. The Constitutional Court found that the breach of promise constituted unlawful state action that could be challenged outside PAJA. Pretorius and Another v Transport Pension Fund and Others 2019 (2) SA 37 (CC)
Ancient doctrine invoked to protect community land rights
When a landowner sought to evict a community from a parcel of land on which it had a church and where its children went to missionary school, the community—which had been present in the area since the early 1800s—invoked the doctrine of vetustas to ask for the registration of pubic servitude in its favour. The Supreme Court of Appeal found that the community had established immemorial usage of the land in question and directed the Registrar of Deeds to register a servitude for the purpose of a church and related activities. Grootkraal Community and Others v Botha NO and Others 2019 (2) SA 128 (SCA)
Foreign welfare payment as collateral benefit in RAF claim
The plaintiff, a British citizen resident in South Africa, sustained serious injuries in a car crash before permanently leaving for the United Kingdom, where his injuries qualified him for a welfare payment called a personal independence payment (PIP) valued at R2 million. The Road Accident Fund conceded liability, leaving the issue of the contingency to be applied to the PIP for decision by the Western Cape High Court (the parties were agreed that the value of the PIP had to be deducted from the award). The court found that, given the of evidence about the pervading projected socioeconomic and political environment in the UK, a 20 % contingency would be fair. D’Oliveira v Road Accident Fund 2019 (2) SA 247 (WCC)
SOUTH AFRICAN CRIMINAL LAW REPORTS
Pushing complainant not sufficient to constitute aggravating circumstances
The accused pushed the complainant off her feet while escaping the scene of a housebreaking. The court found that this did not constitute aggravating circumstances for purposes of s 1(1) of Criminal Procedure Act 51 of 1977. S v Davids 2019 (1) SACR 257 (WCC)
Identification of child complainant in sexual offence
The court held that it was incumbent on court to never reveal the identity of a child complainant in a sexual offence. S v Masuku 2019 (1) SACR 276 (GJ)
Whether light being shone into vehicle at night constituting search
A law-enforcement official shone his light into a vehicle revealing two hunting rifles that would have been easily visible in daytime. The court held that such did not constitute a search and the evidence seized was not unconstitutionally obtained. Du Toit and Others v Provincial Minister of Environmental Affairs and Development Planning, Western Cape and Others 2019 (1) SACR 311 (WCC)
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SOUTH AFRICAN LAW REPORTS
TABLE OF CASES
MALEDU AND OTHERS v ITERELENG BAKGATLA MINERAL RESOURCES (PTY) LTD AND ANOTHER (CC)
ZONDO DCJ, DLODLO AJ, FRONEMAN J, GOLIATH AJ, JAFTA J, KHAMPEPE J, MADLANGA J, PETSE AJ and THERON J
Land - Informal land rights—Deprivation—Right of informal land right holders to be consulted—Interim Protection of Informal Land Rights Act 31 of 1996, s 2.
Minerals and petroleum - Mining and prospecting rights—Associated rights—Access to land—Disputes between holders of mining and prospecting rights, and owners or holders of informal rights in land—Mandatory to exhaust dispute-resolution mechanism of MPRDA before mining may commence—Mineral and Petroleum Resources Development Act 28 of 2002, s 54(7)(a).
PRETORIUS AND ANOTHER v TRANSPORT PENSION FUND AND OTHERS (CC)
ZONDO DCJ, CAMERON J, FRONEMAN J, JAFTA J, KATHREE-SETILOANE AJ, KOLLAPEN AJ, MADLANGA J, MHLANTLA J, THERON J and ZONDI AJ
Constitutional law - The state—Unlawful state action—Breach of promise—State unlawfully and unconscionably reneging on promise—Court recognising claim based on unlawful state action distinct from claim to administrative justice.
Constitutional law - Human rights—Right to fair labour practices—May be directly relied on—Constitution, s 23(1).
State - Promise by—Enforcement—Exception to claim against state based on breach of contract—State unconscionably breaching promise to grant annual pension increase to employees of state organ—Exception to pleaded contract dismissed.
RAHUBE v RAHUBE AND OTHERS (CC)
CACHALIA AJ, DLODLO AJ, FRONEMAN J, GOLIATH AJ, JAFTA J, KHAMPEPE J, MADLANGA J, PETSE AJ and THERON J
Constitutional law - Legislation—Validity—Upgrading of Land Tenure Rights Act 112 of 1991, s 2(1)—Automatic conversion of certain land tenure rights into ownership—Provision unconstitutional and invalid to extent that inconsistent with right to equality—Constitution, s 9.
DIRECTOR-GENERAL, DEPARTMENT OF RURAL DEVELOPMENT AND LAND REFORM, AND ANOTHER v MWELASE AND OTHERS (SCA)
LEACH JA, SERITI JA, WILLIS JA, MOCUMIE JA and SCHIPPERS JA
Land - Land reform—Labour tenant—Claim—Appointment of special master to supervise processing of labour tenant claims under Land Reform (Labour Tenants) Act 3 of 1996—Special master tasked with preparing implementation plan for processing labour tenant claims, including determination of skills, infrastructure and budget required—Special master, a complete outsider, effectively taking over functions and responsibilities of Director-General and Department—Breach of separation of powers—Appointment of special master by Land Claims Court set aside by SCA.
FISCHER v UBOMI USHISHI TRADING CC AND OTHERS (SCA)
SHONGWE ADP, CACHALIA JA, SALDULKER JA, SCHIPPERS JA and MOTHLE AJA
Land - Ownership—Vesting of—Spouse undertaking, in settlement agreement made part of divorce order, to transfer half-share in property to other spouse—Whether ownership vesting on date of order or on date of endorsement of deed.
GROOTKRAAL COMMUNITY AND OTHERS v BOTHA NO AND OTHERS (SCA)
LEWIS JA, WALLIS JA, SWAIN JA, MATHOPO JA and MOCUMIE JA
Servitude - Acquisition—Vetustas (immemorial user)—Requirements—Claimant to show that right to occupation and usage existed for time immemorial—Presumption of legality arising—Immemorial meaning that circumstances in which right arose beyond living memory—Claimants showing 200-year community usage, for religious and other purposes, of portion of private land—Presumption of legality not rebutted—Court ordering registration of public servitude over land in question.
HARVEY NO AND OTHERS v CRAWFORD NO AND OTHERS (SCA)
PONNAN JA, TSHIQI JA, ZONDI JA, DAMBUZA JA and MOLEMELA JA
Trust - Trust deed—Interpretation—Children, issue, descendants and legal descendants—Whether including adopted children.
LIFE HEALTHCARE GROUP (PTY) LTD v SULIMAN (SCA)
2018 SEPTEMBER 20
Medicine - Medical practitioner—Malpractice—Parents claiming damages against defendant doctor for harm suffered by child during birth—Defendant doctor attending labour as cover for mother’s own doctor—Failure by defendant to personally attend to mother shortly after her admission, instead managing situation telephonically by giving instructions to treating nurses—Breach of legal duty to avoid negligently causing harm, which duty arising when defendant first giving telephonic instructions to nurses as to care of patient—Earlier attendance could have prevented injuries, therefore causation established.
MASUKU AND ANOTHER v SOUTH AFRICAN HUMAN RIGHTS COMMISSION (SCA)
LEWIS JA, WALLIS JA, ZONDI JA, DAMBUZA JA and MATOJANE AJA
Constitutional law - Human rights—Right to freedom of expression—Limitation—Only statements falling within purview of s 16(2) of Constitution not protected—Statement to be interpreted in context in which made—Hostile, hurtful, distasteful or inflammatory statements not necessarily hateful.
Constitutional law - Human rights—Right to freedom of expression—Limitation—Quaere: Whether internal limitation clause in s 16(2) obviating s 36(1) limitation analysis.
Constitutional law - Human rights—Right to freedom of expression—Limitation—Hate speech—What constitutes—Alleged advocacy of hatred in speech directed at Jewish people—Seen in context, speech political in nature and not constituting advocacy of hatred against Jews.
Equality legislation - Constitutionality—Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000—Quaere: Whether s 10 of Act condemns constitutionally protected speech—Constitution, s 16.
MONDE v VILJOEN NO AND OTHERS (SCA)
MAYA P, SWAIN JA, MOCUMIE JA, SCHIPPERS JA and MOTHLE AJA
Land - Land reform—Statutory protection of tenure—Requirements for eviction—Probation officer’s report—Report to be furnished to court before eviction may be ordered—Extension of Security of Tenure Act 62 of 1997, s 9(3).
NKOLA v ARGENT STEEL GROUP (PTY) LTD (SCA)
LEWIS JA, SALDULKER JA, SWAIN JA, PILLAY AJA and MAKGOKA AJA
Execution - Immovable property—Debtor claiming, but not pointing out or making available, movables sufficient to satisfy debt—Whether creditor may execute against debtor’s immovable property.
PROPELL SPECIALISED FINANCE (PTY) LTD v ATTORNEYS INSURANCE INDEMNITY FUND NPC (SCA)
LEWIS JA, SALDULKER JA, ZONDI JA, MATHOPO JA and MOKGOHLOA AJA
Attorney - Fidelity Fund—Claims against—Cession of indemnification rights under insurance policy to third party—Nature of contractual relationship between parties involving delectus personae—Agreement to cede rights under policy without Fidelity Fund’s consent invalid.
Insurance - Professional indemnity insurance—Whether indemnification rights cedable—Nature of contractual relationship between parties involving delectus personae—Agreement to cede rights under policy without insurer’s consent invalid.
ROAD ACCIDENT FUND v KERRIDGE (SCA)
SHONGWE ADP, DAMBUZA JA, MOCUMIE JA, SCHIPPERS JA and NICHOLLS AJA
Motor vehicle accident - Compensation—Claim against Road Accident Fund—Loss of income or earning capacity—Expert evidence not to be accepted without more—Both courts and Road Accident Fund should actively evaluate facts on which expert evidence based—In present case, this not done—On appeal, post-morbid contingencies increased.
D’OLIVEIRA v ROAD ACCIDENT FUND (WCC)
Damages - Bodily injuries—Loss of income or earning capacity—Calculation—Deduction of collateral benefit—Foreign welfare entitlement—Contingency to be applied—Court, citing unpredictable variables, applying contingency deduction of 20% to future value of benefit.
Damages - Bodily injuries—Medical expenses—Past medical expenses—Domestic care—Care by spouse—Claim against Road Accident Fund—Claimant to establish actual cost of wife’s services—Road Accident Fund Act 56 of 1996, s 17(1).
Damages - Bodily injuries—Medical expenses—Past medical expenses—Domestic care—Employment of full-time careperson—Whether warranted.
GOVENDER NO AND OTHERS v GOUNDEN AND OTHERS (KZD)
K PILLAY J, KOEN J and PLOOS VAN AMSTEL J
Administration of estates - Heirs and legatees—Heir—Inheritance—When right to inheritance vesting—Whether spouse married in community of property may renounce inheritance without other spouse’s consent—When in time renunciation may be made.
JACOBS v ROAD ACCIDENT FUND (GP)
Motor vehicle accident - Compensation—Claim against Road Accident Fund—Liability of Fund—Claim, by surviving partner in live-in relationship, for loss of maintenance and support—Deceased still married to someone else when he died—Whether duty of support proved—Issue of boni mores.
Delict - Specific forms—Loss of support—Dependant’s action—Whether arising in respect of surviving partner in live-in relationship where deceased still married to another person—Issue of boni mores—Liability of Road Accident Fund.
MINISTER OF POLICE AND ANOTHER v YEKISO (WCC)
DAVIS J, BOQWANA J and NUKU J
Prescription - Extinctive prescription—Delay in completion—Incarceration—Plaintiff seeking damages for unlawful arrest and detention—Whether incarceration amounting to ‘superior force’ preventing plaintiff from interrupting prescription—Incarceration not preventing plaintiff from giving instructions to attorney to institute proceedings on his or her behalf—Key question being whether plaintiff having access to legal representative whom he or she could instruct to institute civil proceedings—Prescription Act 68 of 1969, s 13(1)(a).
VAN ROOYEN obo MOTAU v ROAD ACCIDENT FUND (GP)
Motor vehicle accident - Compensation—Claim against Road Accident Fund—Prescription—Insane person—Collision rendering claimant insane—Claim brought more than three years after collision—Section 13(1)(a) of Prescription Act applying and saving claim from prescription under s 23(1) of Road Accident Fund Act—Prescription Act 68 of 1969, s 13(1)(a); Road Accident Fund Act 56 of 1996, s 23(1).
STAUFEN INVESTMENTS (PTY) LTD v MINISTER OF PUBLIC WORKS AND OTHERS (ECP)
Expropriation - Legality—State expropriating part of farm on which Eskom had mistakenly built substation two decades before—Substation serving public good—Costs of relocation prohibitive—Expropriation rational, valid—Application for review of decision to expropriate dismissed—Constitution, s 25(3); Electricity Regulation Act 4 of 2006, s 26(1) and (3); Expropriation Act 63 of 1975, s 2(1).
Electricity - Supply—Eskom—Obtaining expropriation order to secure electricity supply via substation mistakenly built on wrong land—Application for review of decision to expropriate dismissed—Constitution, s 25(3); Electricity Regulation Act 4 of 2006, s 26(1) and (3); Expropriation Act 63 of 1975, s 2(1).
SEBENZA SHIPPING & FORWARDING (PTY) LTD v PASSENGER RAIL AGENCY OF SOUTH AFRICA SOC LTD (GJ)
Provisional sentencet - Practice—Requirement in High Court practice manual that original liquid document on which provisional sentence sought must be handed up in court—Plaintiff relying on acknowledgement of debt sent to it by defendant by electronic means—Such document constituting original for purposes of provisional sentence—If not constituting original, then non-production thereof would be condoned—Practice manual should be amended to delete such requirement.
SOUTH AFRICAN CRIMINAL LAW REPORTS
TABLE OF CASES
S v KHOZA AND ANOTHER (SCA)
MAYA P, VAN DER MERWE JA and NICHOLLS AJA
Sentence - Prescribed minimum sentences—Criminal Law Amendment Act 105 of 1997—Failure to give notice to accused of applicability of minimum-sentence legislation—Whether accused prejudiced—Prejudice would exist if reasonable possibility that defence or response of accused may not have been same.
S v DAVIDS (WCC)
WILLE J and SLINGERS AJ
Robbery - Aggravating circumstances—What constitutes—Accused pushing complainant out of way while escaping not constituting aggravating circumstances for purposes of s 1(1) of Criminal Procedure Act 51 of 1977.
S v BRAND (GJ)
MAKUMA J and THOMPSON AJ
Sentence - Habitual criminal—Declaration as in terms of s 286 of Criminal Procedure Act 51 of 1977—Accused not warned in advance of provisions of section—Such warning should have been given at previous trial—Declaration set aside and replaced with sentence of fixed term of imprisonment.
S v MASUKU (GJ)
VALLY J, VAN DER LINDE J and KEIGHTLEY J
Evidence - Witness—Children—Identification—Child complainant in sexual offence—Incumbent on court to never reveal such child’s identity.
Evidence - Witness—Children—Cross-examination—Child complainant in sexual offence case—Questioning on details of genitalia and intricate sexual matters showing disrespect to child—Duty of legal representatives and court to protect child.
S v MADHINHA (WCC)
DOLAMO J and THULARE AJ
Admission of guilt - Review—Conviction and sentence in terms of s 57(6) of Criminal Procedure Act 51 of 1977—Not verdict but automatic consequence of administrative act—Review in terms of s 304(4) of Act appropriate way to bring review of proceedings.
DU TOIT AND OTHERS v PROVINCIAL MINISTER OF ENVIRONMENTAL AFFAIRS AND DEVELOPMENT PLANNING, WESTERN CAPE AND OTHERS (WCC)
LE GRANGE J
Search and seizure - Search—What constitutes—Law-enforcement official shining light into vehicle revealing two hunting rifles—Items would have been easily visible in daytime—No search carried out.
LATHA AND ANOTHER v MINISTER OF POLICE AND OTHERS (KZP)
Damages - Measure of—For unlawful arrest, detention and assault—Plaintiffs subjected to most humiliating, degrading and dehumanising treatment at hands of police and held for six years and 11 months before they were acquitted—Plaintiffs awarded R3,5 million each in respect of non-patrimonial damages.
VAN ROOYEN AND ANOTHER v MINISTER OF POLICE AND OTHERS (NCK)
Search and seizure - Search warrant—Validity of—Affidavit attested before officer in same directorate but different unit—No abuse of power or gross violation of rights of person searched—Search warrant valid.
Search and seizure - Search and seizure—Search warrant—Validity of—Warrant not setting out specific sections of legislation alleged to have been breached nor dates and times of the alleged offences—Such specifics not expected of police at outset of investigation—Search warrant valid.
S v MYENI (ECG)
BLOEM J and JAJI J
Fraud - Sentence—Conspiracy to defraud municipality by hacking its software and intercepting bank payment notifications—Involving R1,4 million—Society expected courts to treat persons who stole from public purse harshly—Such money intended for much-needed services to be delivered by municipalities—Sentence of 15 years’ imprisonment confirmed.
Fraud - Sentence—Factors affecting—Targeting of local authorities—Society expected courts to treat persons who stole from public purse harshly—Such money intended for much-needed services to be delivered by municipalities—Sentence of 15 years’ imprisonment confirmed.
BOTSWANA LAW REPORTS
NEW RELEASES FROM JUTA
Legal Practice Act 28 of 2014 & Rules and Regulations 2e
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