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April 2017

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases in the April law reports.

•    Click on the case name to download the original judgment.

JUDGMENTS OF INTEREST IN THE APRIL EDITIONS OF THE SALR AND THE SACR LAW REPORTS

 

SOUTH AFRICAN LAW REPORTS

Mala fide failure to comply with interim maintenance order

In a divorce, the respondent was a multimillionaire and the controlling mind behind several companies, yet claimed to be unemployed. He was a serial defaulter on maintenance payments and had several court orders against him, but he frustrated their execution by contrived challenges to attachments and by switching funds out of the affected accounts. He was concealing his assets and had engineered a decrease in salary purely to frustrate the court order, establishing mala fides. The court issued a warrant of arrest. AG v DG 2017 (2) SA 409 (GJ)

The limits of free speech

Freedom of speech is protected by the Bill of Rights, but a T-shirt bearing slogan ‘Kill all whites’ during student protests tested the limits. This was advocacy of hatred based on race alone, and constituted incitement to harm white people, which could not be protected by the Bill of Rights. Hotz and Others v University of Cape Town 2017 (2) SA 485 (SCA)

Self-help by city against shack-dwellers not permitted

People had built shacks on the respondent city’s land, so claiming illegal land invasion, the city demolished the shacks without a court order. While the residents had unlawfully acquired possession of the city’s land sufficient to constitute spoliation, the subsequent demolition constituted unlawful self-help by the city. Local authorities should not be permitted, without court sanction, to move in with heavy equipment whenever people moved onto their land. Residents of Setjwetla Informal Settlement v Johannesburg City 2017 (2) SA 516 (GJ)

 

SOUTH AFRICAN CRIMINAL LAW REPORTS

An uncivil response by a magistrate

During a review, queries raised by the judge to the magistrate were couched in respectful and moderate terms. The responses by the magistrate, however, did not address the merits of the issues but rather cast aspersions on the integrity, and intellectual and judicial capacity of the judge. The intemperate, uncivil and disrespectful language used by the magistrate was not only totally unacceptable, but called for strong censure. S v Njiva and Another 2017 (1) SACR 395 (ECM)

Accused not informed of minimum sentencing

The charge-sheet stated that the accused raped a 10-year-old girl, without mentioning the applicability of the minimum sentencing provisions. However, the legally represented accused did not raise prejudice in five separate proceedings. The majority of the court found that there was no prejudice suffered and the sentence of life imprisonment was upheld. However, the minority was of the view that to inform the accused about such a patently serious matter at the end of a trial, was to defeat the purpose of the Constitutional right to a fair trial, and was trial by ambush. S v Tshoga 2017 (1) SACR 420 (SCA)

Dangerous criminal given bail

The 22-year-old plaintiff, a third-year quantity-surveying student, was viciously attacked and raped by an intruder who had multiple previous convictions, including a number of convictions of rape, and was out on bail at the time of the incident. She based her claim on the failure of the relevant prosecutors and investigating officers to ensure that her assailant was kept behind bars, since he posed a clear threat to the community. DW v Minister of Police and Another 2017 (1) SACR 441 (GP)

 

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 SOUTH AFRICAN LAW REPORTS
 TABLE OF CASES
 
  • Gihwala and Others v Grancy Property Ltd and Others 2017 (2) SA 337 (SCA)
  • Commissioner, South African Revenue Service v Marula Platinum Mines Ltd 2017 (2) SA 398 (SCA)
  • AG v DG 2017 (2) SA 409 (GJ)
  • Ahmed and Others v Minister of Home Affairs and Another 2017 (2) SA 417 (WCC)
  • De Freitas v Jonopro (Pty) Ltd and Others 2017 (2) SA 450 (GJ)
  • MEC for Co-Operative Governance and Others v Mogalakwena Municipality and Another 2017 (2) SA 464 (GP)
  • Nedbank Ltd v Jones and Others 2017 (2) SA 473 (WCC)
  • Hotz and Others v University of Cape Town 2017 (2) SA 485 (SCA)
  • Residents of Setjwetla Informal Settlement v Johannesburg City 2017 (2) SA 516 (GJ)
  • Fluxmans Inc v Levenson 2017 (2) SA 520 (SCA)
  • RM v BM 2017 (2) SA 538 (ECG)
  • Lewis Group Ltd v Woollam and Others 2017 (2) SA 547 (WCC)
  • Lucky Star Ltd v Lucky Brands (Pty) Ltd and Others 2017 (2) SA 588 (SCA)
  • Minister of Home Affairs and Another v Public Protector and Another 2017 (2) SA 597 (GP)
  • Department of Transport and Others v Tasima (Pty) Ltd 2017 (2) SA 622 (CC)
 
 FLYNOTES
 

GIHWALA AND OTHERS v GRANCY PROPERTY LTD AND OTHERS (SCA)

LEWIS JA, LEACH JA, SERITI JA, WALLIS JA and TSOKA AJA
2016 FEBRUARY 22, 23; MARCH 24
[2016] ZASCA 35

Company - Shares and shareholders — Shareholders — Proceedings by and against — Action for damages by shareholder against directors of, and fellow shareholders in, company —Arising from breach of investment agreement entered between parties—Whether claims excluded by rule in Foss v Harbottle — Claims arising from breaches of obligations separate and distinct from any claim company might have—Others in respect of payments contrary to statute—Rule not applying in circumstances.

Constitutional law - Legislation—Validity—Companies Act 71 of 2008, s 162(5)(c) read with s 162(6)(b)(ii)—Court obliged to declare director delinquent if requirements met—Provision neither retrospective nor irrational but legitimate response to problem of delinquency of directors—Not unconstitutional.

COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE v MARULA PLATINUM MINES LTD (SCA)

NAVSA JA, CACHALIA JA, TSHIQI JA, MATHOPO JA and FOURIE AJA
2016 SEPTEMBER 8, 22
[2015] ZASCA 121

Revenue- Income tax — Deductions — Expenditure incurred in production of income—Trading stock—Expenses relating to mining mineral-bearing ore and processing it into mineral-bearing concentrate—Whether such expenses incurred in acquisition of trading stock or in mining operation—Mining of ore and its processing formed part of manufacturing process, bringing it within definition of trading stock—Income Tax Act 58 of 1962, s 1 sv ‘trading stock’ and ‘mining operation’.

Revenue- Income tax—Deductions—Expenditure incurred in production of income—Trading stock—Recoupment of expenses claimed as deductions—Meaning of ‘any amount which would otherwise be deducted’ in Income Tax Act 58 of 1962, s 23F(2).

AG v DG (GJ)

SPILG J
2016 AUGUST 26; SEPTEMBER 29
2016 AUGUST 31

Marriage - Divorce—Maintenance—Contempt of court—Mala fide failure to comply with interim maintenance order—Concealment of assets and artificial decrease in salary to defeat court order—Warrant of arrest issued.

AHMED AND OTHERS v MINISTER OF HOME AFFAIRS AND ANOTHER (WCC)

SHER AJ
2016 JUNE 6; SEPTEMBER 21

Immigration - Refugee—Asylum seeker—Whether asylum seeker may apply for visa under Immigration Act—Refugees Act 130 of 1998, s 27(c); Immigration Act 13 of 2002, s 27(d).

DE FREITAS v JONOPRO (PTY) LTD AND OTHERS (GJ)

SPILG J
2016 MARCH 8, 9

Competition - Unlawful competition—Passing-off—Actionable non-disclosure—Joint business run by A and B from different premises terminated by agreement—A agreeing to change name of his business—B deliberately concealing that he would open competing establishment near A once A effected name change—A effectively having destroyed his own goodwill and passed it on to B—B’s conduct constituting actionable non-disclosure.

Estoppel - Res judicata—Issue estoppel—Operation—Successive applications for interim relief—Scope of first order—Possibility not considered in first application having materialised—Defence of res judicata would fail provided earlier court’s decision did not intend to refuse relief sought—Considerations of fairness and equity may militate against application of issue estoppel.

MEC FOR CO-OPERATIVE GOVERNANCE AND OTHERS v MOGALAKWENA MUNICIPALITY AND ANOTHER (GP)

LOUW J, RANCHOD J and FABRICIUS J
2016 SEPTEMBER 23; NOVEMBER 10

Appeal - Execution—Order for execution pending appeal—Appeal against—To which court—Meaning of expression ‘next highest court of appeal’—If court making execution order consisting of one judge, then appeal lying to full court; if consisting of more than one judge, then appeal lying to Supreme Court of Appeal—Superior Courts Act 10 of 2013, s 18(1) and s 18(4).

Court - High Court—Full bench and full court—Division consisting of two judges is ‘full bench’ and court consisting of three judges is ‘full court’—Superior Courts Act 10 of 2013, s 1 sv ‘full court’ and ‘division’.

NEDBANK LTD v JONES AND OTHERS (WCC)

GAMBLE J and HACK AJ
2016 AUGUST 5; OCTOBER 12

Credit agreement - Consumer credit agreement—Debt rearrangement—Order—Debt fixed at level that would make it impossible to settle—Order ultra vires and invalid—However, court declining review because of prejudice to debtor—Instead issuing declaratory order that magistrates’ court may not vary contractually agreed interest rate and that rearrangement order containing such proviso invalid—National Credit Act, s 86(7)(c) and s 87(1)(a)(ii).

HOTZ AND OTHERS v UNIVERSITY OF CAPE TOWN (SCA)

NAVSA JA, BOSIELO JA, THERON JA, WALLIS JA and MATHOPO JA
2016 SEPTEMBER 29; OCTOBER 20
[2016] ZASCA 159

Constitutional law - Human rights—Right to freedom of expression—Exclusions—Hate speech—What constitutes—T-shirt bearing slogan ‘Kill all whites’ in context of student protests—Advocacy of hatred based on race alone, and constituting incitement to harm white people—Not amounting to speech protected by Bill of Rights—Constitution, s 16.

Constitutional law - Human rights—Right to freedom of expression—Exclusions—Hate speech—What constitutes—Slogan ‘Fuck white people’ in context of student protests—Speech protected by Bill of Rights—Constitution, s 16.

Interdict - Final interdict—Requirements—Absence of other adequate or satisfactory remedy—Alternative remedy must be legal remedy.

Interdict - Final interdict—Requirements—Once three requirements for grant of interdict established, scope, if any, for refusing relief limited—No general discretion to refuse relief.

RESIDENTS OF SETJWETLA INFORMAL SETTLEMENT v JOHANNESBURG CITY (GJ)

VAN DER LINDE J
2016 JULY 14, 15

Spoliation - Mandament van spolie—Prohibition on self-help—Local authority dispossessed of its land by unlawful shack-building—Municipality, though unlawfully dispossessed, may not demolish shacks without court order—Unlawful self-help by municipality not countenanced—Interdict granted.

FLUXMANS INC v LEVENSON (SCA)

MPATI AP, THERON JA, ZONDI JA, VAN DER MERWE JA and MAKGOKA AJA
2016 NOVEMBER 29
[2016] ZASCA 183

Prescription - Extinctive prescription—Commencement—Knowledge of debt—Debt due when creditor has ‘knowledge of . . . facts from which . . . debt arises’—Whether agreement’s invalidity was fact that had to be known for debt to become due—Prescription Act 68 of 1969, s 12(3).

RM v BM (ECG)

PLASKET J
2016 OCTOBER 18

Marriage - Divorce—Proprietary rights—Antenuptial contract—Clause listing estate’s assets for purpose of calculating accrual—Later clause excluding those assets—Effect on validity of contract.

LEWIS GROUP LTD v WOOLLAM AND OTHERS (WCC)

BINNS-WARD J
2016 OCTOBER 11

Company - Shares and shareholders—Shareholders—Derivative action—Use of derivative action to obtain order declaring director delinquent—Two remedies distinct—Use of derivative action in delinquency proceedings, while not expressly forbidden, would be vexatious in absence of standing to proceed derivatively—Companies Act 71 of 2008, s 162 and s 165.

Company - Directors and officers—Directors—Declaration of delinquency—Through derivative action—Whether vexatious—Companies Act 71 of 2008, s 162 and s 165.

Company - Directors and officers—Directors—Declaration of delinquency—Serious misconduct entailing dishonesty, wilful misconduct or gross negligence required—Companies Act 71 of 2008, s 162(5)(c).

LUCKY STAR LTD v LUCKY BRANDS (PTY) LTD AND OTHERS (SCA)

PONNAN JA, PETSE JA, SWAIN JA, DAMBUZA JA and KATHREE-SETILOANE AJA
2016 MAY 10, 27
[2016] ZASCA 77

Intellectual property - Trademark—Infringement—Use of confusingly similar mark—LUCKY STAR and LUCKY FISH in respect of selling and marketing of fish—Average consumer would not be confused or deceived—Trade Marks Act 194 of 1993, s 34(1)(a).

Intellectual property - Trademark—Infringement—Test—Comparison of marks—Principle that enquiry to be confined to marks themselves—No regard to be had to other features of get-up or other indications of origin—Trade Marks Act 194 of 1993, s 34(1)(a).

MINISTER OF HOME AFFAIRS AND ANOTHER v PUBLIC PROTECTOR AND ANOTHER (GP)

PPRINSLOO J
2015 FEBRUARY 13; 2016 OCTOBER 26

Administrative law - Administrative action—What constitutes—Actions and decisions of Public Protector—Amounting to administrative action.

Constitutional law - Chapter 9 institutions—Public Protector—Powers—To investigate unfair-labour complaints of employee of state—Falling under extremely wide powers granted to Public Protector—Constitution, s 182(1); Public Protector Act 23 of 1994, s 6.

DEPARTMENT OF TRANSPORT AND OTHERS v TASIMA (PTY) LTD (CC)

MOGOENG CJ, BOSIELO AJ, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MHLANTLA J, NKABINDE J and ZONDO J
2016 MAY 24; NOVEMBER 9
[2016] ZACC 39

Administrative law - Administrative action—Decision of functionary—Collateral challenge to validity of decision—Whether available to state functionaries against validity of their own decisions—State functionaries entitled to challenge exercises of public power, including their own, in appropriate circumstances.

Contempt of court - Disobedience of court order—Where invalid order giving rise to contempt order—Duty to obey court orders subsequently found to be invalid—Effect on contempt order of setting aside disobeyed invalid order—Constitution, s 165(5).

Review - Application—Delay in bringing application—Condonation—Whether constitutional injunction that courts must declare unconstitutional conduct invalid, having effect that courts must always condone delay in bringing application for review of clearly unconstitutional conduct—Constitution ss 172(1) and 237.

 

 SOUTH AFRICAN CRIMINAL LAW REPORTS
 TABLE OF CASES
 
  • S v Phillips 2017 (1) SACR 373 (SCA)
  • S v Longano 2017 (1) SACR 380 (KZP)
  • S v Njiva and Another 2017 (1) SACR 395 (ECM)
  • Arendse v Magistrate, Wynberg and Others 2017 (1) SACR 403 (WCC)
  • S v Tshoga 2017 (1) SACR 420 (SCA)
  • DW v Minister of Police and Another 2017 (1) SACR 441 (GP)
  • Patel v National Director of Public Prosecutions 2017 (1) SACR 456 (SCA)
  • S v Qhayiso 2017 (1) SACR 470 (ECB)
  • National Director of Public Prosecutions v Scholtz and Others 2017 (1) SACR 483 (NCK)

 

 FLYNOTES
 

S v PHILLIPS (SCA)

LEACH JA, TSHIQI JA, ZONDI JA, SCHOEMAN AJA and SCHIPPERS AJA
2016 NOVEMBER 11; DECEMBER 1
[2016] ZASCA 187

Corruption - Sentence—Section 26(1)(a)(ii) of Prevention and Combating of Corrupt Activities Act 12 of 2004—Provision not limiting court’s sentencing discretion by prescribing fine as first option.

Corruption - Sentence—Police officer demanding money from complainant to avoid arrest on false charge—First offender with prospects of rehabilitation sentenced to four years’ imprisonment.

S v LONGANO (KZP)

STEYN J, MOODLEY J and BEZUIDENHOUT J
2016 MAY 23; OCTOBER 25

Trial - Irregularity in—Appearance of bias—What constitutes—Presiding judge provided with psychologist’s report not handed in during proceedings in which psychologist did not testify—Perception inevitable that court would be unable to disabuse its mind of contents and integrity accordingly compromised—Irregularity committed.

Trial - Irregularity in—What constitutes—Recusal application—Failure to give reasons for dismissing application for recusal amounting to irregularity.

Trial - Irregularity in—What constitutes—Calling of witness by court in terms of s 186 of Criminal Procedure Act 51 of 1977—Court calling witness not essential for determination of case without inviting submissions from parties before doing so—Irregularity committed.

S v NJIVA AND ANOTHER (ECM)

NHLANGULELA DJP and ALKEMA J
2016 NOVEMBER 7

Review - Queries by reviewing judge—Queries and responses always to be couched in civil and respectful language.

ARENDSE v MAGISTRATE, WYNBERG AND OTHERS (WCC)

BOZALEK J
2016 MAY 18; JUNE 24

Sentence - Imprisonment—Delay of eight years in implementing sentence after failure of appeal to Supreme Court of Appeal—Applicant seeking order that he be deemed to have served term of imprisonment—Blame for not informing him that he had to undergo his term of imprisonment not only attributable to state, applicant partly to blame for doing nothing—Application dismissed.

S v TSHOGA (SCA)

BOSIELO JA, TSHIQI JA, DAMBUZA JA, SCHOEMAN AJA and NICHOLLS AJA
2016 NOVEMBER 11; DECEMBER 15
[2016] ZASCA 205

Rape - Sentence—Life imprisonment—Minimum sentence in terms of Criminal Law Amendment Act 105 of 1997—Appellant not informed of possibility of life imprisonment—Charge-sheet stating that appellant raped 10-year-old girl without mentioning applicability of Act—Legally represented appellant not raising prejudice in five separate proceedings—No prejudice suffered and sentence of life imprisonment upheld.

DW v MINISTER OF POLICE AND ANOTHER (GP)

PRINSLOO J
2016 NOVEMBER 11

Damages - Victims of crime—Prosecuting and investigating officials failing to ensure that dangerous criminal kept behind bars—Plaintiff viciously attacked and raped—Entitled to be compensated at higher level because of seriousness of consequences for her of attack.

PATEL v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS (SCA)

MAYA AP, PILLAY JA, SWAIN JA, VAN DER MERWE JA and SCHIPPERS AJA
2016 NOVEMBER 15; DECEMBER 1
[2016] ZASCA 191

Extradition - Offence for which extradition sought—Double-criminality requirement—Date at which to be determined—Required to be offence in South Africa at time of extradition request.

S v QHAYISO (ECB)

D VAN ZYL J and MBENENGE J
2016 NOVEMBER 30

Evidence - Adequacy of proof—Accused—Court accepting that accused’s innocent explanation reasonably possibly true—Effect—There must, at same time, have been reasonable possibility that evidence implicating him false.

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v SCHOLTZ AND OTHERS (NCK)

PHATSHOANE J
2016 SEPTEMBER 28; DECEMBER 6

Prevention of crime - Confiscation order in terms of Prevention of Organised Crime Act 121 of 1998—Benefits of crime that may be confiscated—Not restricted to net amount of proceeds but includes value of appreciation of assets so acquired.

 

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