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March 2014

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases of interest in the March reports. The 2013(4) edition of the Namibian Law Reports will be available at the end of February. For the table of cases and flynotes, see further below.

 

JUDGMENTS OF INTEREST IN THE MARCH EDITIONS OF THE SALR, THE SACR AND THE NAMIBIAN LAW REPORTS 2013(4)

SOUTH AFRICAN LAW REPORTS

Affirmative action and the best candidate

A white female police captain was twice refused promotion, despite being the best candidate. The post was subsequently scrapped because it was ‘non-critical’ and that the vacancy ‘would not affect service delivery’. The captain alleged that she was denied the position solely because she was white and that this amounted to unfair discrimination. Solidarity obo Barnard v South African Police Service 2014 (2) SA 1 (SCA)

International issues in our courts

The police have the power to investigate conduct perpetrated outside of South Africa, but the power to investigate is confined to within South Africa’s borders. The Supreme Court of Appeal looks at the Rome Statute. National Commissioner, South African Police Service and Another v Southern African Human Rights Litigation Centre and Another 2014 (2) SA 42 (SCA)

A mother disregarded the terms of a divorce order granted in the Cape High Court and took her children to Zimbabwe. The court had jurisdiction, on the basis of the doctrine of continuance of jurisdiction, and ultimately it ordered that she was in contempt of the divorce order. JC v DC 2014 (2) SA 138 (WCC)

Emotional shock from road accidents

The exclusion in the Road Accident Fund Act, of liability for emotional shock, is to bar claims by persons who were not injured in the accident. The exclusion would not apply where the plaintiffs were spouses injured in an accident in which two of their children were killed, for in such a case it would be impossible to distinguish the psychological trauma and shock resulting from the accident itself from the emotional shock induced by the deaths of the children. Fourie and Another v Road Accident Fund  2014 (2) SA 88 (GNP)

SOUTH AFRICAN CRIMINAL LAW REPORTS

Duty of prosecutor to protect the public interest

A man spent days detained in disgusting conditions, when there was exculpatory matter in the docket at the time of his first appearance in court. A prosecutor’s function was not merely to have the matter placed on the roll to then simply be postponed for further investigation. A prosecutor had to pay attention to the contents of his docket. He had to act with objectivity and protect the public interest: in the present case that had not been done. Minister of Police and Another v Du Plessis 2014 (1) SACR 217 (SCA)

Police powers to search a vehicle

An attorney sued the police for attempting to search his motor vehicle without a warrant, because it humiliated and degraded him, and invaded his constitutional rights to privacy. The court found that in the circumstances, where effective and swift action was required by the police, following a robbery, the plaintiff’s right to privacy was outweighed by state’s duty to take action. Tinto v Minister of Police 2014 (1) SACR 267 (ECG)

Accused must be informed of minimum sentence

A life sentence was set aside on appeal because at his trial the accused was not informed of the possibility of a life sentence being imposed. The accused must be informed of fact that the provisions of the Amendment Act are to be applied and the consequences thereof. It could not be assumed that, because an accused was legally represented, the provisions of the Act had been pertinently brought to his attention. S v Mabaso 2014 (1) SACR 299 (KZP)

NAMIBIAN LAW REPORTS 2013(4)

Traditional medicine turns into crime

A traditional healer applied ointment internally to his female patients, using his body parts. He told his patients that he would use his supernatural powers to curse them if they reported him. The law, however, caught up with him, and the court discusses the boundaries of traditional medicine. S v BM 2013 (4) NR 967 (NLD)

Pack your Namibian law books before crossing the border

A matter was struck from the roll because counsel had referred to South African case law, where Namibian case law was available on the issues. All practitioners are reminded of Practice Directive 37 of 2009 which requires practitioners relying on foreign authority, to certify that no Namibian authority could be found. Westcoast Fishing Properties v Gendev Fish Processors Ltd and Another 2013 (4) NR 1036 (HC)


Labour hire companies being cramped?

A labour amendment Act, it was argued, placed labour hire workers on a par with other employees, and this was an undue regulation on labour hire companies. But the court made it clear that these temporary workers were now employed on the same terms and conditions as the comparable employees already in the employment of the user enterprise—no discrimination between labour hire employees and other employees was allowed. Africa Labour Services (Pty) Ltd v The Minister of Labour and Social Welfare and Another 2013 (4) NR 1175 (HC)

 

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SOUTH AFRICAN LAW REPORTS

TABLE OF CASES

  • Solidarity obo Barnard v South African Police Service 2014 (2) SA 1 (SCA)

  • Mansingh v General Council of the Bar and Others 2014 (2) SA 26 (CC)

  • National Commissioner, South African Police Service and Another v Southern African Human Rights Litigation Centre and Another 2014 (2) SA 42 (SCA)

  • Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC)

  • Fourie and Another v Road Accident Fund 2014 (2) SA 88 (GNP)

  • Solenta Aviation (Pty) Ltd v Aviation@Work (Pty) Ltd 2014 (2) SA 106 (SCA)

  • Khoza and Others v Body Corporate of Ella Court 2014 (2) SA 112 (GSJ)

  • Absa Bank Ltd v Zalvest Twenty (Pty) Ltd and Another 2014 (2) SA 119 (WCC)

  • Katshwa and Others v Cape Town Community Housing Co (Pty) Ltd and Four Similar Cases 2014 (2) SA 128 (WCC)

  • JC v DC 2014 (2) SA 138 (WCC)

  • Stevens and Others v Swart NO and Others 2014 (2) SA 150 (GSJ)

  • Gallagher Group Ltd and Another v IO Tech Manufacturing (Pty) Ltd and Others 2014 (2) SA 157 (GNP)

  • Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another 2014 (2) SA 168 (CC)

  • Mettenheimer and Another v Zonquasdrif Vineyards CC and Others 2014 (2) SA 204 (SCA)

  • Country Cloud Trading CC v MEC, Department of Infrastructure Development 2014 (2) SA 214 (SCA)

  • Head of Department, Department of Education, Free State Province v Welkom High School and Others 2014 (2) SA 228 (CC)

  • Peter Taylor & Associates v Bell Estates (Pty) Ltd and Another 2014 (2) SA 312 (SCA)

FLYNOTES

SOLIDARITY obo BARNARD v SOUTH AFRICAN POLICE SERVICE (SCA)


NAVSA ADP, PONNAN JA, TSHIQI JA, THERON JA and ZONDI AJA

2013 NOVEMBER 6, 28

Labour law—Employment equity—Affirmative action—Non-promotion of white female police captain on grounds of impact on racial representivity despite being best candidate—Competing African male candidates not appointed—Post not filled—Even so amounting to racial discrimination—Discrimination also unfair in circumstances—Employment equity plans should not be mechanically and rigidly applied.

 

MANSINGH v GENERAL COUNCIL OF THE BAR AND OTHERS (CC)

MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, MADLANGA J, MHLANTLA AJ, NKABINDE J, SKWEYIYA J, VAN DER WESTHUIZEN J and ZONDO J

2013 AUGUST 22; NOVEMBER 28

President—Powers—Conferral of honours—Includes power to confer senior counsel status on advocates—Constitution, s 84(2)(k).

NATIONAL COMMISSIONER, SOUTH AFRICAN POLICE SERVICE AND ANOTHER v SOUTHERN AFRICAN HUMAN RIGHTS LITIGATION CENTRE AND ANOTHER (SCA)

NAVSA ADP, BRAND JA, PONNAN JA, TSHIQI JA and THERON JA

2013 NOVEMBER 1, 27

International law—International criminal law—Crimes—Nature—Conduct criminalised by Act is crime under South African law at time of its commission, regardless of where or by whom it is committed—Implementation of Rome Statute of International Criminal Court Act 27 of 2002, s 4.

International law—International criminal law—Crimes—Investigation—Police have power to investigate conduct perpetrated outside of South Africa which is criminalised by Act—Power to investigate confined to within South Africa’s borders—Implementation of Rome Statute of International Criminal Court Act 27 of 2002.

International law—International criminal law—Crimes—Investigation—Test for whether to initiate investigation when suspect not present in South Africa—Investigation ought to be initiated if there is prospect of suspect’s presence in South Africa in future—Implementation of Rome Statute of International Criminal Court Act 27 of 2002.

GROOTBOOM v NATIONAL PROSECUTING AUTHORITY AND ANOTHER (CC)

MOSENEKE DCJ, FRONEMAN J, JAFTA J, KHAMPEPE J, NKABINDE, J SKWEYIYA J, ZONDO J, BOSIELO AJ and MHLANTLA AJ

2013 MAY 23; OCTOBER 21

Public service—Employee—Dismissal—Discharge—Deemed discharge on ground that employee had absented himself from service, without permission, for more than one month—Employee on suspension on allegations of misconduct—During suspension employee going to United Kingdom to study on 12-month scholarship—Employee absent from service because he was suspended—Thus absent with permission of employer—One of essential requirements of deemed discharge under Act not met—In absence of evidence that employee recalled to service, finding that he could not return to service if recalled, unfounded and speculative—Employee not absenting himself without permission from official duties—Public Service Act 103 of 1994, s 17(5)(a)(i).

Constitutional practice—Compliance with rules of court and court’s directions—Failure to comply—Court pointing out that too many cases of failure occurring—Previous warnings against such failure not heeded—Prejudice to administration of justice, other parties and court highlighted—Court repeating stern warning that rules of court and court’s directions cannot be disregarded with impunity.

FOURIE AND ANOTHER v ROAD ACCIDENT FUND (GNP)

PILLAY AJ

2013 AUGUST 27–30

Motor vehicle accident—Compensation—Claim against Road Accident Fund—Exclusions—Exclusion of liability for ‘secondary emotional shock’—Shock suffered by person ‘who witnessed or observed or was informed of the bodily injury or the death of another person as a result of the driving of a motor vehicle’—Ambit of exclusion—Exclusion aimed at persons not directly involved in accident in question—Not applicable to persons who were themselves injured in accident—Road Accident Fund Act 56 of 1996, s 19(g).

SOLENTA AVIATION (PTY) LTD v AVIATION @ WORK (PTY) LTD (SCA)

MEYER AJA

2013 AUGUST 23; SEPTEMBER 12

Prescription—Extinctive prescription—Interruption—By service of process—Service on debtor of combined summons whereby action instituted by plaintiff company which was not creditor, but subsequently substituted with true one by means of amendment after prescriptive period—Service of process not interrupting prescription—Prescription Act 68 of 1969, s 15(1).

KHOZA AND OTHERS v BODY CORPORATE OF ELLA COURT (GSJ)

NOTSHE AJ

2008 NOVEMBER 11

Practice—Judgments and orders—Rescission—Application—Such application at common law suspending operation of judgment or order sought to be rescinded—Even if no common-law rule to that effect, court having constitutional and common-law power to develop procedural rule suspending operation of judgment or order upon application for its rescission—Uniform Rules of Court, rule 49(12) operating to suspend operation of order upon application for its rescission.

ABSA BANK LTD v ZALVEST TWENTY (PTY) LTD AND ANOTHER (WCC)

TRAVERSO DJP and ROGERS J

2013 NOVEMBER 4, 6

Practice—Pleadings—Generally—Reliance on written contract—Requirement that true copy be annexed to pleadings—Contract destroyed and copy cannot be found—Law allowing party to prove execution of and terms of contract by other evidence—Uniform Rules of Court, rule 18(6).

KATSHWA AND OTHERS v CAPE TOWN COMMUNITY HOUSING CO (PTY) LTD AND FOUR SIMILAR CASES (WCC)

DLODLO J and STEYN J

2013 SEPTEMBER 3

Constitutional law—State—What is—Private company, whether or not having state shareholders, and regardless of interest in it by certain organs of state, and regardless of whether or not its purpose is to generate profit, not qualifying as ‘state’.

Land—Sale—Contract—Instalment sale agreement in respect of land—Compulsory registration of contract—Exemption where seller state or local authority—Private company not qualifying as ‘state’, regardless of interest state might have in it—Cancellation of contract and consequent eviction of buyer set aside—Alienation of Land Act 68 of 1981, s 20(1)(a) and s 26.

JC v DC (WCC)

SAVAGE AJ

2013 JANUARY 22; MARCH 19

Jurisdiction—High Court—Application for declaration that party in contempt of court—Mother, in disregard of Western Cape High Court divorce order, relocating to Zimbabwe with children—Western Cape High Court having jurisdiction to declare mother in contempt of its order.

STEVENS AND OTHERS v SWART NO AND OTHERS (GSJ)

FISHER AJ

2013 MAY 29; AUGUST 15

Review—Record on review—Furnishing—May be sought from presiding officer/tribunal only under rules governing review—Rules of court making no provision for record to be obtained from third party—Frustrated applicant may act under PAIA—Uniform Rules of Court, rule 53(1)(b); Promotion of Access to Information Act 2 of 2000, s 11.

GALLAGHER GROUP LTD AND ANOTHER v IO TECH MANUFACTURING (PTY) LTD AND OTHERS (GNP)

KOLLAPEN J

2013 JULY 29; AUGUST 15

Intellectual property—Patent—Revocation—On ground of material misrepresentation in declaration, knowing such to be false when made—Whether curable by amendment—Misrepresentation to be assessed at time declaration made—Not possible to avoid consequences by subsequent amendment of patent specification—Patents Act 57 of 1978, s 61(1)(g).

TEDDY BEAR CLINIC FOR ABUSED CHILDREN AND ANOTHER v MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND ANOTHER (CC)

MOGOENG CJ, BOSIELO AJ, FRONEMAN J, JAFTA J, KHAMPEPE J, MHLANTLA AJ, NKABINDE J, SKWEYIYA J and ZONDO J

2013 MAY 30; OCTOBER 3

Constitutional law—Legislation—Validity—Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, ss 15, 16—Imposition of criminal liability on children under age of 16 for consensual sexual conduct—Constitutionality—Provisions unconstitutional for unjustifiably limiting children’s rights to human dignity and privacy, and for being contrary to best interests of children—High court order invalidating provisions confirmed.

Constitutional practice—Courts—Powers—Declaration of statutory invalidity—Orders of severance and reading-in—Order of severance may only be granted if possible to sever valid provision from invalid provision and if, after severance, statutory provision still achieving its object—Severance order should not infringe on doctrine of separation of powers or usurp legislature’s power to legislate—In case of reading-in, such order should remedy the defect, interfere as little as possible with legislation, and still give effect to purpose of legislation.

METTENHEIMBER AND ANOTHER v ZONQUASDRIF VINEYARDS CC AND OTHERS (SCA)

BRAND JA, THERON JA, PILLAY JA, PETSE JA and MEYER AJA

2013 NOVEMBER 4, 19

Intellectual property—Trademark—Infringement—Unauthorised use resulting in likelihood of deception or confusion—Use in relation to goods or services in respect of which mark is registered versus use in relation to goods or services similar to goods or services in respect of which mark is registered—In latter case not required that offending mark be used in relation to goods in the class for which mark registered—Trade Marks Act 194 of 1993, s 34(1)(a) and (b).

Intellectual property—Trademark—Infringement—Unauthorised use resulting in likelihood of deception or confusion—Unauthorised use in relation to goods or services similar to goods or services in respect of which mark is registered—Proof—Lesser similarity between goods and services requiring greater similarity between marks, and vice versa—Trade Marks Act 194 of 1993, s 34(1)(b).

Intellectual property—Trademark—Infringement—Unauthorised use resulting in likelihood of deception or confusion—Use in relation to goods or services similar to goods or services in respect of which mark is registered—Determination of likelihood of deception or confusion in goods—Considerations that can be taken into account are (a) use of respective goods; (b) users of such goods; (c) physical nature of goods; and (d) respective trade channels through which goods reach their markets—List not exhaustive—Trade Marks Act 194 of 1993, s 34(1)(b).

COUNTRY CLOUD TRADING CC v MEC, DEPARTMENT OF INFRASTRUCTURE DEVELOPMENT (SCA)

BRAND JA, LEACH JA, TSHIQI JA, THERON JA and SALDULKER JA

2013 NOVEMBER 8, 26

Delict—Specific forms—Pure economic loss—Whether recoverable—Criteria—Foreseeability—Danger of indeterminate liability—Plaintiff’s vulnerability to risk.

Delict—Specific forms—Pure economic loss—Whether recoverable—Economic loss suffered by stranger to contract (plaintiff) resulting from its intentional repudiation by party to contract (defendant)—Whether public policy dictating imposition of delictual liability on defendant—Court refusing to impose delictual liability in view of danger of indeterminate liability and plaintiff’s low vulnerability to risk.

HEAD OF DEPARTMENT, DEPARTMENT OF EDUCATION, FEE STATE PROVINCE v WELKOM HIGH SCHOOL AND OTHERS (CC)

MOGOENG CJ, MOSENEKE DCJ, FRONEMAN J, JAFTA J, KHAMPEPE J, NKABINDE J, SKWEYIYA J, VAN DER WESTHUIZEN J and ZONDO J

2013 MARCH 5; JULY 10

Education—School—Public school—Governing body—Functions—Adopting code of conduct—Meaning of ‘code of conduct’—Sufficiently broad concept to accommodate more than disciplinary policies, such as also pregnancy policies—South African Schools Act 84 of 1996, s 8(2).

Education—School—Public school—Learners—Pregnancy—School policy—Governing body empowered to adopt such policy under its ‘governance’ function and as part of its duty to adopt ‘codes of conduct’—South African Schools Act 84 of 1996, ss 8(2) and 16(1).

Education—School—Public school—Learners—Governing body—‘Governance’—Meaning of—Set of responsibilities for formulating policies and regulations guiding daily management of school and ensuring appropriate environment for realisation of right to education—South African Schools Act 84 of 1996, s 16(1).

Education—School—Learners—Pregnancy—School policy—Where governing body adopting pregnancy policy automatically excluding learners from attending school for certain periods—Whether head of provincial department of education (HOD) entitled to instruct principal to readmit learners—Schools Act not empowering head of department to give such instruction—HOD required to adhere to mechanisms provided in statute or turn to court to set aside policy—South African Schools Act 84 of 1996, ss 16(3) and 22.

PETER TAYLOR & ASSOCIATES v BELL ESTATES (PTY) LTD AND ANOTHER (SCA)

MPATI P, TSHIQI JA, PILLAY JA, PLASKET JA and SALDULKER AJA

2013 MAY 6; JULY 4

Prescription—Extinctive prescription—Interruption—By service of process—Notice of joinder—Not constituting service of process interrupting prescription—Prescription Act 68 of 1969, s 15(1).

 

SOUTH AFRICAN CRIMINAL LAW REPORTS

TABLE OF CASES

  • Minister of Police and Another v Du Plessis 2014 (1) SACR 217 (SCA)

  • S v Mofokeng 2014 (1) SACR 229 (GNP)

  • S v Ziqhu 2014 (1) SACR 247 (FB)

  • S v Ngubeni 2014 (1) SACR 266 (GSJ)

  • Tinto v Minister of Police 2014 (1) SACR 267 (ECG)

  • S v Zwane 2014 (1) SACR 285 (FB)

  • S v Maswetswa 2014 (1) SACR 288 (GSJ)

  • S v Mabaso 2014 (1) SACR 299 (KZP)

FLYNOTES

MINISTER OF POLICE AND ANOTHER v DU PLESSIS (SCA)

NAVSA ADP, PONNAN JA, BOSIELO JA, PILLAY JA and MEYER AJA

2013 SEPTEMBER 6, 20

Prosecuting authority—Prosecutor—Powers and duties of—Duty to pay attention to contents of docket—Respondent awarded substantial damages for having been detained unnecessarily when there was exculpatory matter in docket at time of his first appearance in court—Prosecutor required to act with objectivity and protect public interest.

 

S v MOFOKENG (GNP)

LAMPRECHT AJ and NIEUWENHUIZEN AJ

2013 AUGUST 16

Robbery—Aggravating circumstances—What constitutes—Accomplice—Liability of, where accomplice did not perform any act suggesting that there were aggravating circumstances—Insertion of ‘accomplice’ in definition of ‘aggravating circumstances’ in s 1(1)(b) of Criminal Procedure Act 51 of 1977—Exact role of each accused person not needing to be determined before he could be held guilty of robbery with aggravating circumstances.

S v ZIQHU (FB)

VAN ZYL R

2007 JUNIE 11

Rape—Sentence—Life imprisonment—Minimum sentence in terms of Criminal Law Amendment Act 105 of 1997—‘Substantial and compelling circumstances’—Serial rapist, regressed paedophile, convicted of 12 counts of rape of young girls committed over period of five years—Accused HIV-positive—Number of victims infected with virus—HIV-status aggravating rather than mitigating circumstance—Accused sentenced to 12 terms of life imprisonment.

S v NGUBENI (GSJ)

VICTOR J and NONYANE AJ

2013 SEPTEMBER 5

Juvenile offenders—Diversion of—From criminal justice system—Age of accused only established during sentencing stage—Magistrate not competent to set aside conviction before referring child for assessment—Proceedings set aside on review.

TINTO v MINISTER OF POLICE (ECG)

PICKERING J

2013 SEPTEMBER 9, 10, 30; OCTOBER 15

Search and seizure—Search—Without a warrant—Validity of—Reasonable belief by police officer—What constitutes—Policeman attempting to search plaintiff’s car after having received detailed evidence from credible and reliable source that occupants of three cars were acting suspiciously and appeared to be planning bank robbery—Plaintiff refusing permission to search—In circumstances where effective and swift action required by police in circumstances, plaintiff’s right to privacy outweighed by state’s duty to take action.

S v ZWANE (FB)

KRUGER R en JORDAAN R

2013 JUNIE 27

Drug offences—Dagga—Possession of in contravention of s 4(b) of Drugs and Drug Trafficking Act 140 of 1992—Sentence—Accused convicted of possessing 380 kg of dagga—Where accused used dagga for healing of others—Accused 45-year-old first offender—Sentence of five years’ imprisonment set aside and replaced with sentence of five years’ imprisonment of which two years suspended for five years.

S v MASWETSWA (GSJ)

WEPENER J

2013 MAY 13–24, 30

Sentence—Prescribed sentences—Minimum sentence—Effect of Criminal Law Amendment Act 105 of 1997—Composite offences—Desirable to frame charges in such manner as to separate two substantive offences. Housebreaking—Housebreaking with intent to rob and robbery—Effect of Criminal Law Amendment Act 105 of 1997—Desirable to frame charges in such manner as to separate two substantive offences.

S v MABASO (KZP)

KOEN J, D PILLAY J and PLOOS VAN AMSTEL J

2013 FEBRUARY 6; MAY 10

Rape—Sentence—Life imprisonment—Minimum sentence in terms of Criminal Law Amendment Act 105 of 1997—Appellant not informed that sentence of life imprisonment a possibility—Sentence of life imprisonment set aside and replaced with lengthy terms of imprisonment for two counts of rape.

Sentence—Prescribed sentences—Minimum sentence—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—Charge-sheet—Accused must be informed of fact that provisions of Act are to be applied and implications and consequences thereof—It would be of little assistance to accused to know that particular sentence may be imposed if he is not told of particular provisions applicable to him.

THE NAMIBIAN LAW REPORTS

TABLE OF CASES

  • Kandukira v Shinguadja and Another 2013 (4) NR 903 (LC)

  • S v Nhinda 2013 (4) NR 909 (NLD)

  • Oka Investments (Pty) Ltd v Chair of the Tender Board, City of Windhoek and Another 2013 (4) NR 916 (HC)

  • Kahuure and Another in re Nguvauva v Minister of Regional and Local Government and Housing and Rural Development and Others 2013 (4) NR 932 (SC)

  • S v Tjiveze 2013 (4) NR 949 (HC)

  • Roads Contractor Co Ltd v Lemur Investments No 26 CC and Others 2013 (4) NR 954 (HC)

  • S v Mfuka 2013 (4) NR 965 (HC)

  • S v BM 2013 (4) NR 967 (NLD)

  • Kleynhans v Chairperson of the Council for the Municipality of Walvis Bay and Others 2013 (4) NR 1029 (SC)

  • Westcoast Fishing Properties v Gendev Fish Processors Ltd and Another 2013 (4) NR 1036 (HC)

  • Luderitz Town Council v Shipepe 2013 (4) NR 1039 (LC)

  • Prosecutor-General v Kanime 2013 (4) NR 1046 (HC)

  • Minister of Education and Others v Free Namibia Caterers (Pty) Ltd 2013 (4) NR 1061 (SC)

  • Elisenheim Property Development Co (Pty) Ltd v Guest Farm Elisenheim and Another 2013 (4) NR 1085 (HC)

  • Shaanika and Others v The Windhoek City Police and Others 2013 (4) NR 1106 (SC)

  • Afrikaner v The Master of the High Court of Namibia and Others 2013 (4) NR 1129 (HC)

  • S v Munuma and Others 2013 (4) NR 1156 (SC)

  • Africa Labour Services (Pty) Ltd v The Minister of Labour and Social Welfare and Another 2013 (4) NR 1175 (HC)

FLYNOTES

KANDUKIRA v SHINGUADJA AND ANOTHER (LC)

GEIER J

2012 SEPTEMBER 21

Labour law—Labour dispute—Dispute between employee and trade union constituting dispute in terms of Labour Act 11 of 2007—Court setting aside Labour Commissioner’s refusal to refer dispute between employee and trade union, to arbitration.

S v NHINDA (NLD)

LIEBENBERG J

2013 FEBRUARY 22, 28

Criminal procedure—Evidence—Post-mortem reports—Important that such reports be legible and comprehensible—In future, such reports should be typed, as far as it is possible to do so.

OKA INVESTMENTS (PTY) LTD v CHAIR OF THE TENDER BOARD, CITY OF WINDHOEK AND ANOTHER (HC)

SCHIMMING-CHASE AJ

2013 MARCH 22; APRIL 5

Interpretation of statutes—General principles—Tender Board Regulations—On the face of it, two conflicting regulations contained in one set of regulations—General rule that latter sections in statute prevailed or governed.

Administrative law—Administrative action—What constitutes—First respondent cancelling agreement with applicant—Applicant entering into agreement to supply fuel to respondents—Applicant failing to comply with terms of agreement—First respondent cancelling agreement—Such cancellation not amounting to administrative act but to commercial one.

KAHUURE AND ANOTHER IN RE NGUVAUVA v MINISTER OF REGIONAL AND LOCAL GOVERNMENT AND HOUSING AND RURAL DEVELOPMENT AND OTHERS (SC)

SHIVUTE CJ, MARITZ JA and MAINGA JA

2013 MARCH 27; JUNE 18

Practice—Parties—Application to intervene—Prerequisites for such applications restated—Applicants to adduce prima facie evidence of direct and substantial interest.

S v TJIVEZE (HC)

VAN NIEKERK J and GEIER J

2013 APRIL 24

Criminal procedure—Sentence—Sentencing in terms of s 14 of the Stock Theft Act 12 of 1990—General guidelines with regard to sentencing in stock theft cases set out.

THE ROADS CONTRACTOR CO LTD v LEMUR INVESTMENTS NO 26 CC AND OTHERS (HC)

SMUTS J

2012 JULY 19; OCTOBER 19

Practice—Interlocutory applications—Application to strike out in terms of rule 23(2) of High Court Rules—General principles in regard to such applications set out and explained.

S v MFUKA (HC)

VAN NIEKERK J and UEITELE J

2013 APRIL 2

Criminal procedure—Charge—Formulation of charge—Charges relating to contravention of Exchange Control Regulations—When formulating charges, account should be taken of different offences created by different regulations.

S v BM (NLD)

LIEBENBERG J

2013 JANUARY 17–31; FEBRUARY 1–28; APRIL 2–24; MAY 20–21; JUNE 14–26

Criminal law—Rape in contravention of Act 8 of 2000—What constitutes—Accused, traditional healer, smearing herbs into the private parts of complainants and then having sexual intercourse with complainants—Accused informing complainants that sexual intercourse a necessary part of their treatment—If sexual intercourse does not take place, complainant would not be cured and a curse could be brought upon her—Court finding that this constituted misrepresentation within the meaning of s 2(1)(h) of the Act—Accused accordingly guilty of rape.

Criminal law—Rape in contravention of Act 8 of 2000—What constitutes—Accused, a traditional healer, smearing herbs in vagina of complainants as part of treatment—Such treatment not constituting ‘sound medical practices’ within the meaning of definition of ‘sexual act’ in s 1 of the Act—Sound medical practices rooted in medical science and medical practitioners regulated by law—No such regulation existing regarding traditional healers—Smearing herbs into vagina of complainants by traditional healers accordingly an unlawful sexual act within meaning of s 1 of the Act.

KLEYNHANS v CHAIRPERSON OF THE COUNCIL FOR THE MUNICIPALITY OF WALVIS BAY AND OTHERS (SC)

MAINGA JA, STRYDOM AJA and MTAMBANENGWE AJA

2013 MARCH 19; JUNE 26

Appeal—Condonation for non-compliance with Rules of Court—Appellant’s legal practitioners displaying casual and lackadaisical attitude towards rules—Explanations for breaches unsatisfactory and unconvincing—Applications for condonation dismissed with costs and appeal struck from roll.

WESTCOAST FISHING PROPERTIES v GENDEV FISH PROCESSORS LTD AND ANOTHER (HC)

GEIER J

2013 JUNE 28; JULY 3

Practice—Compliance with Practice Directive 37 of 2009—Directive providing that counsel relying on foreign authority, must certify that no Namibian authority was found—Purpose of Directive to safeguard and ensure achievement of proper adjudication of all cases in this jurisdiction in accordance with applicable Namibian authorities.

LUDERITZ TOWN COUNCIL v SHIPEPE (LC)

SMUTS J

2013 MARCH 18, 27

Labour law—Payment of benefits to employees of local authorities—Section 27(1)(c)(ii)(bb) of Local Authorities Act 23 of 1992 requiring approval of minister for payment of such benefits—Section peremptory—Section presumably enacted to ensure uniformity among local authorities—Section not in conflict with Labour Act—Payment of benefits without ministerial approval accordingly invalid and unenforceable

THE PROSECUTOR-GENERAL v KANIME (HC)

GEIER J

2012 SEPTEMBER 20; DECEMBER 20

Criminal law—Statutory offences—Offences in contravention of Prevention of Organised Crime Act 29 of 2004 (POCA)—Provisional preservation order having been granted against respondent for having earned income derived from unlawful means—On return day, court setting out requirements for granting final preservation order.

MINISTER OF EDUCATAION AND OTHERS v FREE NAMIBIA CATERERS (PTY) LTD (SC)

MARITZ JA, CHOMBA AJA and MTAMBANENGWE AJA

2011 OCTOBER 17; 2013 JULY 15

Administrative law—Application to review and set aside administrative decisions—Such review intending to secure justice where there had been failure of justice–Failure must be necessary component of, and intrinsic to, decision-making process itself—Should not be on basis of what happens either prior or subsequent to decision-making process—Burden to prove grounds resting on applicant for review.

Administrative law—Review of administrative actions—Trial court setting aside administrative decision on grounds that administrative body not giving reasons and abdicating statutory responsibility—Neither factor intrinsic to administrative decision—Factors relied on by trial court, taking place either before or subsequent to decision—Trial court setting aside decision on erroneous grounds.

Tenders—Award of tenders—First and second appellants awarding tender to third appellant—Respondent dissatisfied with award of tender—Trial court upholding respondent’s application to set aside tender—Court on appeal upholding trial court’s decision, but on different grounds—Court finding certain irregularities in tender process—Third appellant initially disqualified and respondent qualifying for award of tender—Subsequent interventions causing a reversal of fortune—Court on appeal holding interventions resulting in reversal of tender process to be irregular—Court dismissing appeal by appellants—Matter referred back to Tender Board.

ELISENHEIM PROPERTY DEVELOPMENT CO (PTY) LTD v GUEST FARM ELISENHEIM AND ANOTHER (HC)

SMUTS J

2013 JUNE 17; JULY 5

Trade and trademark—Application for expungement of trademark ‘Elisenheim’ from trademark register—First respondent registering trademark in 2010—Under common law, trademark would only become form of property in consequence of use by trader who could claim to have acquired repute in mark–Would entail establishing that mark had become distinctive in minds of purchasing public in distinguishing goods or services from other similar goods or services—Existence of trademark requiring evidence of its use from trade as to its distinctiveness and documentary evidence to establish that mark had become distinctive—Applicant adducing evidence of its own use and acquisition of right in mark ‘Elisenheim’—Body of advertising and promotional material serving to demonstrate use of mark ‘Elisenheim’ by applicant—Use not disputed by first respondent—Applicant thus establishing repute in use of mark ‘Elisenheim’—Registration by first respondent of trademark in conflict with s 16(1) of Trade Marks in South West Africa Act 48 of 1973—Section prohibiting registration of trademark which would deceive or cause confusion—Application for expungement of trademark accordingly granted.

SHAANIKA AND OTHERS v THE WINDHOEK CITY POLICE AND OTHERS (SC)

MARITZ JA, MAINGA JA and O’REGAN AJA

2012 NOVEMBER 8; 2013 JULY 15

Practice—Applications and motions—Doctrine of ‘unclean hands’—When applicable—Appellants admitting unlawful occupation of respondents’ land—However, no evidence of dishonesty, fraud or mala fides—Not appropriate to apply doctrine of ‘unclean hands’ in such circumstances.

Constitutional law—Constitutional validity of ss 4(1) and (3) of Squatters Proclamation 21 of 1985—Sections, inter alia, excluding access to courts—Article 12 of Namibian Constitution protecting right of access to courts—Such right not absolute, but no basis in present case for limiting such right—Proclamation authorising demolition of structures without prior notice or recourse to court—Homes important to human beings and right to invasion of privacy should be protected—Requiring a local authority to seek court order prior to demolishing homes, not precluding them from preventing illegal occupation of land—However, ss 4(1) and (3) couched in very broad terms and violating rights entrenched in art 12 of Constitution—Sections accordingly declared to be unconstitutional.

AFRIKANER v THE MASTER OF THE HIGH COURT OF NAMIBIA AND OTHERS (HC)

GEIER J

2013 MARCH 20; JULY 29

Will—Validity of will—Section 2(1)(a)(v) of Wills Act 7 of 1953—Section requiring that where signed by mark or thumbprint, each page must be certified by notary—In present case, notary only certifying last page—Court not prepared to condone oversight by notary—Certificate cannot be placed on other pages of will by notary post-mortem the testator.

S v MUNUMA AND OTHERS (SC)

SHIVUTE CJ, MARITZ JA and STRYDOM AJA

2012 MARCH 23; 2013 JULY 15

Judge—Recusal—Under what circumstances—Appellants challenging jurisdiction of court—Judge rejecting challenge and making certain credibility findings—Appellants’ application for his recusal dismissed—On appeal, court holding that credibility findings at that stage had bearing on trial as a whole—Impartiality of judge fundamental to fair trial—Judge ought to have recused himself—Refusal to do so constituting gross irregularity such as to vitiate whole proceedings—Appeal accordingly allowed—Matter remitted to trial court to start de novo before another judge.

AFRICA LABOUR SERVICES (PTY) LTD v THE MINISTER OF LABOUR AND SOCIAL WELFARE AND ANOTHER (HC)

LIEBENBERG J and GEIER J

2012 SEPTEMBER 27; 2013 JUNE 27

Labour law—Labour hire—Section 128 of Labour Amendment Act 2 of 2012 regulating labour hire—Applicant contending that section creating material barrier to its business—Section placing employees of labour hire companies on par with other employees—Court holding that such regulation not constituting undue regulation or material barrier to labour hire companies—Application accordingly dismissed with costs.


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