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April 2018

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases in the April 2018 law reports.

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

JUDGMENTS OF INTEREST IN THE APRIL 2018 EDITIONS OF THE SALR AND SACR LAW REPORTS.

 

SOUTH AFRICAN LAW REPORTS

Registrar of Deeds held liable for negligent registration of transfer

The applicant’s immovable property had been sold and transferred, without her knowledge, to the third respondent, who shortly thereafter sold it on to the first respondent. It was not disputed that the first transaction was fraudulent and that both transfers fell to be set aside. The main issue was whether the second respondent, the Registrar of Deeds should be held liable for second purchaser’s damages. This based on the deeds office’s negligence in allowing registration of the first transfer when the deeds ought to have been rejected. Stirling v Fairgrove (Pty) Ltd and Others 2018 (2) SA 469 (GJ).

A financial services provider’s indemnity insurance policy: proper interpretation of an exemption clause

An exemption clause in a financial services provider’s indemnity insurance policy provided that the insurer would not be liable for certain claims, but with the proviso that ‘this (e)xclusion shall not apply to any loss due solely to negligence on the part of the Insured or Employee of the Insured in failing to effect a specific investment transaction in accordance with the specific prior instructions of a client of the Insured’.  The court held that when the exemption clause was considered with the policy as a whole and contextually, the proviso did not mean that the policy only indemnified the insured against claims arising from negligent investment advice contemplated in proviso. Oosthuizen v Castro and Another 2018 (2) SA 529 (FB).

Environmental rights: Protection against potential risk of environmental disaster

Flooding of a river flowing through a suburb damaged bordering properties, caused the walls of the riverbed to collapse and blocked a bridge’s culverts with rubble and debris. The applicants, fearing that in its current state the river was at a great risk of further flooding and the bridge of collapsing—all posing a great danger to their staff and property—brought an application for an interim structural interdict that, inter alia, the local authority take all reasonable steps to rehabilitate the relevant portion of the river, clean-out the culverts and provide feedback on the steps taken to accomplish this. The court, granting this relief, held that a person’s sense of environmental security in relation to potential risks and dangers of environmental disaster fell within s 24 of the Constitution’s scope of protection. Propshaft Master (Pty) Ltd and Another v Ekurhuleni Metropolitan Municipality and Others 2018 (2) 555 (GJ).

 

SOUTH AFRICAN CRIMINAL LAW REPORTS

Corruption: appropriate sentence for a bribe

The accused, representatives of a foreign manufacturer, paid incentives to an employee of a South African mining company so that he would persuade his employer to purchase machinery from their principal.  The court sentenced them to 10 and five years' imprisonment, respectively. S v Wang and Another 2018 (1) SACR  426 (NWM).

Robbery: forced electronic fund transfer

The accused stood trial on two counts of murder and two counts of robbery with aggravating circumstances. The accused was allegedly one of three men who had invaded an elderly couple’s  home, and had robbed and murdered them. One of the counts of robbery involved the forced electronic transfer of monies. The court raised the question whether this constituted robbery; and answered it in the affirmative.  S v Sishuba 2018 (1) SACR 402 (WCC).

NDPP: review of decision, based on error of law, to withdraw charges

Where a decison to withdraw charges was based on a material error of law—here that a deputy DPP, Ms Jiba, was protected from perjury charges by s 78 of the Prevention of Organised Crime Act 121 of 1998—the decision fell to be set aside.  Freedom Under Law (RF) NPC and Others v National Director of Public Prosecutions 2018 (1) SACR 436 (GP).

 

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 SOUTH AFRICAN LAW REPORTS
 TABLE OF CASES
 
  • Dladla and Others v City of Johannesburg and Another 2018 (2) SA 327 (CC)
  • Public Servants Association obo Ubogu v Head, Department of Health, Gauteng and Others 2018 (2) SA 365 (CC)
  • Diener NO v Minister of Justice and Others 2018 (2) SA 399 (SCA)
  • Head of Department, Western Cape Education Department and Others v MS 2018 (2) SA 418 (SCA)
  • Minister of Home Affairs v Ruta 2018 (2) SA 450 (SCA)
  • Stirling v Fairgrove (Pty) Ltd and Others 2018 (2) SA 469 (GJ)
  • Tebtale Marine Inc v MS Mare Traveller Schiffahrts GmbH & Co KG 2018 (2) SA 490 (WCC)
  • Kumah and Others v Minister of Home Affairs and Others 2018 (2) SA 510 (GJ)
  • South African Property Owners Association v Minister of Trade and Industry and Others 2018 (2) SA 523 (GP)
  • Oosthuizen v Castro and Another 2018 (2) SA 529 (FB)
  • Propshaft Master (Pty) Ltd and Others v Ekurhuleni Metropolitan Municipality and Others 2018 (2) SA 555 (GJ)
  • Economic Freedom Fighters and Others v Speaker of the National Assembly and Another 2018 (2) SA 571 (CC)
 
 FLYNOTES
 

DLADLA AND OTHERS v CITY OF JOHANNESBURG AND ANOTHER (CC)

MOGOENG CJ, NKABINDE ADCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MHLANTLA J, MOJAPELO AJ, PRETORIUS AJ and ZONDO J
2017 DECEMBER 1
[2017] ZACC 42

Local authority - Powers and duties—To shelter evicted persons—Rules of shelter—Separation of sexes, including heterosexual partners—Lockout between 08h00 and 17h30—Entry between 17h30 and 20h00—Entry barred thereafter—Constitution, ss 10, 12, 14 and 26.

PUBLIC SERVANTS ASSOCIATION obo UBOGU v HEAD, DEPARTMENT OF HEALTH, GAUTENG AND OTHERS (CC)

NKABINDE ADCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MHLANTLA J, MOJAPELO AJ, PRETORIUS AJ and ZONDO J
2017 DECEMBER 7
[2017] ZACC 45

Constitutional law - Courts—Jurisdiction—Labour Court having jurisdiction to declare legislation unconstitutional.

Constitutional law - Legislation—Validity—Public Service Act 103 of 1994, s 38(2)(b)(ii)—Authorising unilateral deductions by state employer to recover moneys wrongly paid to its employees directly from their salaries or wages—Amounting to unlawful limitation of right of access to courts—Offending rule of law by promoting self-help—Labour Court’s declaration of constitutional invalidity confirmed—Constitution, ss 1(c) and 34.

DIENER NO v MINISTER OF JUSTICE AND OTHERS (SCA)

NAVSA ADP, BOSIELO JA, MAJIEDT JA, PLASKET AJA and SCHIPPERS AJA
2017 DECEMBER 1
[2017] ZASCA 180

Company - Business rescue—Practitioner—Rescue converted to liquidation—Whether practitioner ‘creditor’ under Insolvency Act—Ranking of practitioner’s claim for remuneration and expenses—Date of liquidation—Insolvency Act 24 of 1936, s 44; Companies Act 71 of 2008, s 135(4).

HEAD OF DEPARTMENT, WESTERN CAPE EDUCATION DEPARTMENT AND OTHERS v MS (SCA)

NAVSA ADP, TSHIQI JA, SERITI JA, SALDULKER JA and MAKGOKA AJA
2017 DECEMBER 13
[2017] ZASCA 187

Education - School—Public school—Fees—Liability—Divorced or separated parents—Joint, or joint and several liability—Fee exemptions—Obligation to supply income-information of both parents—Whether infringing constitutional rights of separated or divorced parent—South African Schools Act 84 of 1996, s 40(1); Regulations Relating to the Exemption of Parents from the Payment of School Fees in Public Schools, reg 6(2).

MINISTER OF HOME AFFAIRS v RUTA (SCA)

BOSIELO JA, SERITI JA, WILLIS JA, MOCUMIE JA and SCHIPPERS AJA
2017 DECEMBER 13
[2017] ZASCA 186

Immigration - Refugee—Asylum seeker—Whether individual precluded accessing protections of Act and Regulations—Behaviour inconsistent with that of asylum seeker—Delay in applying for asylum—Refugees Act 130 of 1998; Refugee Regulations, 2000, reg 2.

STIRLING v FAIRGROVE (PTY) LTD AND OTHERS (GJ)

SENYATSI AJ
2017 SEPTEMBER 6

Land - Transfer—Deeds Office—Irregularities—Delictual liability—Failure by deeds office to (i) detect obvious irregularities in deed of transfer and (ii) authenticate credentials of conveyancer, facilitating fraudulent land transfer—Deeds office grossly negligent—Volume of work not justifying inadequate examination of deeds—Transfer void—Innocent purchaser entitled to damages in delict.

MS MARE TRAVELLER 
TEBTALE MARINE INC v MS MARE TRAVELLER SCHIFFAHRTS GMBH & CO KG (WCC)

BURGER AJ
2017 JULY 21

Shipping - Admiralty law—Maritime claim—Enforcement—Action in rem against associated ship—Ship sold after issuance of writ in rem but before arrest—View that security accruing upon actual arrest rather than issuance of writ preferable—Bona fide sale before arrest therefore destructive of action in rem against associated ship—Admiralty Jurisdiction Regulation Act 105 of 1983, s 1(2)(a), s 3(4)(b) and s 3(7)(a)(i).

Shipping - Admiralty law—Admiralty practice—Writ in rem—Bona fide sale of res (ship) after issuance of writ but before arrest—‘Protective writ’ issued to preserve right of action against associated ship outside jurisdiction of court—Sale destructive of action in rem—Reference to ship struck from writ—Admiralty Jurisdiction Regulation Act 105 of 1983, s 1(2)(a), s 3(4)(b) and s 3(7)(a)(i).

KUMAH AND OTHERS v MINISTER OF HOME AFFAIRS AND OTHERS (GJ)

SATCHWELL J
2016 JULY 8

Immigration - Refugee—Asylum seeker—Time Act affords illegal foreigner to apply for asylum—Reasonable opportunity only—Refugees Act 130 of 1998.

Immigration - Refugee—Asylum seeker—Detained illegal foreigners alleging they were asylum seekers—Asking court for release in order to apply for asylum—Whether supplying sufficient evidence of factors qualifying person as refugee, to satisfy court that Act applied to them—Refugees Act 130 of 1998, s 3.

SOUTH AFRICAN PROPERTY OWNERS ASSOCIATION v MINISTER OF TRADE AND INDUSTRY AND OTHERS (GP)

VAN DER WESTHUIZEN AJ
2016 NOVEMBER 29

Company - Business rescue—Post-commencement finance—Rental and other amounts payable i ro occupation of immovable property by company under business rescue—Not constituting ‘financing’ or ‘costs of business recue proceedings’—Companies Act 71 of 2008, ss 135(2) and 135(3).

OOSTHUIZEN v CASTRO AND ANOTHER (FB)

DAFFUE J
2017 SEPTEMBER 18

Financial institution - Financial services providers—Duty to insured—Duty to exercise reasonable skill and care—Breach—Negligent failure to properly consider risk profile of investment.

Insurance - Liability of insurer—Liability exclusion clause—Of insurer’s liability to indemnify financial services provider against certain claims arising from investment advice—Interpretation of proviso that such exclusion not applying where loss solely result of insured’s negligence in failing to effect transaction in accordance with specific instructions—Not meaning that policy only indemnifying insured against claims arising from negligent investment advice contemplated in proviso.

PROPSHAFT MASTER (PTY) LTD AND OTHERS v EKURHULENI METROPOLITAN MUNICIPALITY AND OTHERS (GJ)

DAVIS AJ
2017 SEPTEMBER 20

Local authority - Powers and duties—Local municipality—Flooding in built-up areas—Nature of obligations imposed—Failure to do anything amounting to breach of right to environment not detrimental to person’s health and wellbeing—Appropriate relief for failure to perform—Constitution, s 24.

Constitutional law - Human rights—Right to an environment not detrimental to person’s health and wellbeing—Person’s sense of environmental security in relation to potential risks and dangers of environmental disaster falling within scope of protection—Constitution, s 24.

ECONOMIC FREEDOM FIGHTERS AND OTHERS v SPEAKER OF THE NATIONAL ASSEMBLY AND ANOTHER (CC)

MOGOENG CJ, ZONDO DCJ, CAMERON J, FRONEMAN J, JAFTA J, KATHREE-SETILOANE AJ, KOLLAPEN AJ, MADLANGA J, MHLANTLA J, THERON J and ZONDI AJ
2017 DECEMBER 29
[2017] ZACC 47

Constitutional law - Parliament—Motion for removal of President of Republic—National Assembly obliged to make rules specifically tailored for s 89(1) impeachment process—Ad hoc committee inappropriate as mechanism for removal of President—Constitution, s 89(1).

Constitutional law - Parliament—Obligations—National Assembly’s obligation to scrutinise and oversee executive action and to hold it accountable—Constitutional Court finding that President Zuma had violated constitutional obligations by failing to implement Public Protector’s remedial action against him—Parliament obliged to determine whether grounds for impeachment existed in terms of s 89(1)(a) or (b) of Constitution—Failure to do so in breach of ss 89(1) and 42(3)—Constitution, ss 42(3) and 89(1).

 

 SOUTH AFRICAN CRIMINAL LAW REPORTS
 TABLE OF CASES
  
  • S v RM 2018 (1) SACR 357 (GP)
  • Cooper v District Magistrate, Cape Town 2018 (1) SACR 369 (WCC)
  • S v AF 2018 (1) SACR 377 (WCC)
  • S v Phika 2018 (1) SACR 392 (GJ)
  • S v Sishuba 2018 (1) SACR 402 (WCC)
  • S v Masenya 2018 (1) SACR 407 (GP)
  • S v Steyn 2018 (1) SACR 410 (KZP)
  • S v Wang and Another 2018 (1) SACR 426 (NWM)
  • Freedom Under Law (RF) NPC v National Director of Public Prosecutions and Others 2018 (1) SACR 436 (GP)
 
 FLYNOTES
 

S v RM (GP)

FABRICIUS J
2017 FEBRUARY 6; DECEMBER 5

Evidence - Witness—Cross-examination—Rule requiring accused to put version to prosecution witness—Not requiring whole of accused’s version to be put to such witness, only material parts thereof.

Evidence - Expert witness—Duty of—Witness to present evidence that was independent product of expert, uninfluenced as to form and content by exigencies of litigation—Expert not hired gun.

General principles of liability - Criminal capacity—Sane automatism—What constitutes—Hallmark of definition of automatism was absence of evidence of premeditation—Conduct of accused indicative of voluntary goal-directed behaviour and accordingly criminally liable.

COOPER v DISTRICT MAGISTRATE, CAPE TOWN (WCC)

BAARTMAN J and ANDREWS AJ
2017 NOVEMBER 24

Trial - Accused—Failure to appear in court—Enquiry in terms of s 170 of Criminal Procedure Act 51 of 1977—Procedure at—Magistrate conducting summary enquiry without informing accused of nature of proceedings, charge or his rights—Furthermore, ignoring fact that accused was represented and not involving legal representative at all—Proceedings not in accordance with justice and set aside.

Trial - Accused—Failure to appear in court—Enquiry in terms of s 170 of Criminal Procedure Act 51 of 1977—Magistrate convicting accused of contravention of s 55 of Act instead of s 170(1) where accused out on warning.

S v AF (WCC)

GAMBLE J and FORTUIN J
2018 FEBRUARY 9

Evidence - Witness—Cross-examination—Of accused—On basis of alleged fabricated claim by complainant—Questions requiring witness to express opinion about subjective state of mind of another person permissible when issue raised in evidence-in-chief.

S v PHIKA (GJ)

VICTOR J and ADAMS AJ
2015 DECEMBER 11

Plea - Guilty—Informal plea bargain between state and accused—Magistrate not accepting plea of guilty to offence of culpable homicide and insisting that prosecutor change charge to one of murder—Matter then proceeding before same presiding officer—Proceedings improper but not set aside in circumstances where further delay prejudicial to accused.

S v SISHUBA (WCC)

HENNEY J
2017 AUGUST 29; SEPTEMBER 7

Robbery - What constitutes—Forced transfer of money by electronic means—Such conduct could be subject of crime of robbery.

S v MASENYA (GP)

RABIE J, LEGODI J and FABRICIUS J
2017 MAY 19, 24

Rape - Sentence—Life imprisonment—Prescribed minimum sentence in terms of Criminal Law Amendment Act 105 of 1997—When applicable—Conviction at same time and in same proceedings for multiple offences of rape—Intention of legislature in enacting item (a)(iii) of part I of sch 2 to Act was that convictions had to have occurred before proceedings and convictions in trial thereafter—Sentences of life imprisonment on each count set aside and replaced with 10 years.

S v STEYN (KZP)

RADEBE J and TOPPING AJ
2016 SEPTEMBER 8; 2017 JUNE 2

Evidence - Witness—Calling by court—Section 186 of Criminal Procedure Act 51 of 1977—When appropriate—Defence alleging that statement tampered with and calling expert handwriting analyst whose evidence was inconclusive—Court only calling witness in terms of provision because defence expert had not examined original document, not knowing at time that witness would refute defence evidence—Nothing improper in court’s conduct.

S v WANG AND ANOTHER (NWM)

GURA J and KGOELE J
2017 NOVEMBER 17, 21

Corruption - Sentence—Offering incentives to employee of mining company to persuade employer to purchase machinery from foreign manufacturer—Representatives of manufacturer sentenced to 10 and five years’ imprisonment, respectively—Sentences confirmed on appeal.

FREEDOM UNDER LAW (RF) NPC v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS (GP)

MOTHLE J, TLHAPI J and WRIGHT J
2017 OCTOBER 30, 31; DECEMBER 21

Prosecution - National Director of Public Prosecutions—Conduct of—Inquiry into and suspension of Acting NDPP and Special Director of Public Prosecutions—Adverse comments by courts having led to their being struck from roll of advocates—Essential for State President to act swiftly and decisively in terms of s 12(6)(a) of the National Prosecuting Authority Act 32 of 1998 to hold inquiry and suspend officials.

Prosecution - National Director of Public Prosecutions—Withdrawal of charge by—Review of such decision—Decision to withdraw charge based on material error of law—Decision to withdraw had to be set aside.

 

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