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April 2014

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases of interest in the April reports.

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

SOUTH AFRICAN LAW REPORTS

Ubuntu and eviction

When considering the fairness of an eviction of an unlawful occupier, the spirit of ubuntu must be taken into account. Ubuntu promotes a normative notion of humanity, of human beings who recognise the ‘other’, of values of solidarity, compassion and respect for human dignity. These are no less important when the person involved has tenaciously tried to hold on to her home so as to provide an education for her child within a stable environment, as it would be for a larger community of applicants. Resnick v Government Of The Republic Of South Africa And Another  2014 (2) SA 337 (WCC)

Duty of bank when instruction forged

A third party altered an overseas transfer form, resulting in 1,6 million dollars being transferred out of the customer's account. He claimed damages from the bank. The bank was required to effect credit transfers timeously, in good faith and without negligence; and the customer to draw his payment instructions with reasonable care so as to prevent fraud or forgery. Absa Bank Ltd v Hanley 2014 (2) SA 448 (SCA)

Misappropriation of money by agent of bank

An agent swindled large sums of deposits, but fled the country when sequestrated by the bank. Two customers came forward seeking compensation, but it emerged that fictitious names had been used in concluding certain investment agreements, to conceal substantial taxable funds from the eyes of Receiver. The plot thickens, and the Supreme Court of Appeal writes the final chapter. Absa Bank Ltd v Arif and Another 2014 (2) SA 466 (SCA)

Interpretation of contracts

The process of interpretation starts with words, but does not stop at literal meaning. All relevant context must be considered. The former distinction of background and surrounding circumstances is no longer to be made. The process is no longer in stages, but is now unitary. Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk 2014 (2) SA 494 (SCA)

SOUTH AFRICAN CRIMINAL LAW REPORTS

Circumstantial evidence in rural areas

The appellant was linked to murder and robbery through his possession of a cellphone taken at the time of robbery and possession of firearm used to shoot deceased. The items were found in his possession one and a half months after the incident. Although a significant period of time had passed since incident, as this was rural area where items were not easily traded, possession was recent enough to conclude that the appellant involved in the incident. S v Thwala 2014 (1) SACR 414 (KZP)

Crimes by those in authority

A senior police officer with 24 years’ experience was convicted of numerous counts of fraud, corruption, defeating or obstructing the course of justice, and theft. The criminal scheme involved stealing firearms from police and planting them on innocent civilians, and claiming a share of the reward from an informer who was part of the scheme. A minimum sentence of 15 years’ imprisonment on each count of fraud was appropriate, despite the accused’s favourable personal circumstances. S v Boshoff  2014 (1) SACR 422 (ECG)

No escape from life sentence for rapist

A life sentence was given to a 24-year-old man, a first offender, who ran a tuck-shop, was a primary caregiver, and capable of rehabilitation. The Supreme Court of Appeal considered that he had raped a 12-year-old girl, three times, after brazenly abducting her while she played with her friends. His appeal against the sentence was dismissed. S v Kwanape 2014 (1) SACR 405 (SCA)


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SOUTH AFRICAN LAW REPORTS

TABLE OF CASES

  • Commission for Conciliation, Mediation and Arbitration and Others v Law Society of the Northern Provinces 2014 (2) SA 321 (SCA)

  • Resnick v Government of the Republic of South Africa and Another 2014 (2) SA 337 (WCC)

  • SHFL Entertainment Inc v TCS John Huxley (Pty) Ltd and Another 2014 (2) SA 345 (GP)

  • Cape Town Municipality v South African Local Authorities Pension Fund and Another 2014 (2) SA 365 (SCA)

  • Casey and Another v FirstRand Bank Ltd 2014 (2) SA 374 (SCA)

  • Coface South Africa Insurance Co Ltd v East London Own Haven t/a Own Haven Housing Association 2014 (2) SA 382 (SCA)

  • Silver Star, MV 2014 (2) SA 392 (ECP)

  • Hilane Ltd v Action Partner Ltd and Others: MV Silver Star 2014 (2) SA 392 (ECP)

  • JM v LM and Another 2014 (2) SA 403 (WCC)

  • Nkata v FirstRand Bank Ltd and Others 2014 (2) SA 412 (WCC)

  • CC v CM 2014 (2) SA 430 (GJ)

  • Absa Bank Ltd v Hanley 2014 (2) SA 448 (SCA)

  • Absa Bank Ltd v Arif and Another 2014 (2) SA 466 (SCA)

  • Competition Commission of South Africa v Pioneer Hi-Bred International Inc and Others 2014 (2) SA 480 (CC)

  • Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk 2014 (2) SA 494 (SCA)

  • Peniel Development (Pty) Ltd and Another v Pietersen and Others 2014 (2) SA 503 (GJ)

  • RS v MS and Others 2014 (2) SA 511 (GJ)

  • Boschpoort Ondernemings (Pty) Ltd v Absa Bank Ltd 2014 (2) SA 518 (SCA)

  • FirstRand Bank Ltd (t/a Rand Merchant Bank) and Another v Master of the High Court, Cape Town, and Others 2014 (2) SA 527 (WCC)

  • Land and Agricultural Development Bank of South Africa v Panamo Properties 103 (Pty) Ltd 2014 (2) SA 545 (GJ)

  • Theron v Minister of Transport and Public Works, Western Cape 2014 (2) SA 557 (WCC)

  • Ketler Investments CC t/a Ketler Presentations v Internet Service Providers’ Association 2014 (2) SA 569 (GJ)

  • Krog v Botes 2014 (2) SA 596 (GJ)

  • Minister of Mineral Resources and Others v Sishen Iron Ore Co (Pty) Ltd and Another 2014 (2) SA 603 (CC)

FLYNOTES

COMMISSION FOR CONCILIATION, MEDIATION AND ARBIRATION AND OTHERS v LAW SOCIETY OF THE NORTHERN PROVINCES (SCA)

NUGENT JA, MALAN JA, WALLIS JA, VAN DER MERWE AJA and SWAIN AJA

2013 SEPTEMBER 6, 20

Labour law—Commission for Conciliation, Mediation and Arbitration—Arbitration proceedings—Right to legal representation—Limitation of in certain CCMA arbitrations—Limitation passing constitutional muster.

Labour law—Commission for Conciliation, Mediation and Arbitration—Arbitration proceedings—PAJA not applicable—Promotion of Administrative Justice Act 3 of 2000, s 3(3)(a).

 

RESNICK v GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA AND ANOTHER (WCC)

DAVIS J and FORTUIN J

2012 OCTOBER 12

Land—Unlawful occupation—Eviction—Statutory eviction—Unlawful occupier—Defence to eviction—Consent to occupation—Tacit consent—Uncertainty as to ratio of leading Constitutional Court judgment concerning nature of tacit consent—Generous approach to its interpretation indicated.

Land—Unlawful occupation—Eviction—Statutory eviction—Determination that just and equitable to evict—Spirit of ubuntu promoting normative notion of humanity, including values of solidarity, compassion and respect for human dignity to be taken into account as guides to determining whether eviction just and equitable—Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, s 4.

SHFL ENTERTAINMENT INC v TCS JOHN HUXLEY (PTY) LTD AND ANOTHER (GP)

KGOMO J

2013 AUGUST 22; OCTOBER 23

Intellectual property—Patent—Amendment—Application for when proceedings for revocation of patent pending—Public interest favouring rectification of patents by way of amendment—Amendment usually granted unless conduct of patentee discouraging it—Conduct militating against granting of amendment, including undue delay causing prejudice or potential prejudice, and mala fides.

Intellectual property—Patent—Amendment—Validity—Unlawful broadening of scope of claim—Amended claim should not include claim not fairly based on original claim—Court need only be satisfied that new part sought to be introduced, (1) was broadly described in body of original specification; (2) is not inconsistent with body of specification prior to amendment; and (3) does not relate to feature about which body of specification is wholly silent—Similar considerations underlying requirement that amendment may not add new matter.

CAPE TOWN MUNICIPALITY v SOUTH AFRICAN LOCAL AUTHORITIES PENSION FUND AND ANOTHER (SCA)

MTHIYANE AP, BOSIELO JA, WALLIS JA, PILLAY JA and ZONDI AJA

2013 NOVEMBER 8, 28

Pension—Disputes—Pension funds adjudicator—Determination and investigation of dispute—Exclusion of jurisdiction where proceedings relating to same subject-matter already instituted in high court—Pension Funds Act 24 of 1956, s 30H(2).

CASEY AND ANOTHER v FIRSTRAND BANK LTD (SCA)

NAVSA ADP, TSHIQI JA, PETSE JA, WILLIS JA and SWAIN AJA

2013 SEPTEMBER 12, 26

Banking—Irrevocable documentary credit—Standby letter of credit—Liability of banker—Effect of prescription of underlying obligations between customer of guaranteeing bank and beneficiary—Such obligations wholly independent from those of guaranteeing bank to honour standby letter of credit on its terms—Prescription of underlying obligations accordingly irrelevant.

COFACE SOUTH AFRICA INSURANCE CO LTD v EAST LONDON OWN HAVEN t/a OWN HAVEN HOUSING ASSOCIATION (SCA)

NAVSA ADP, MAYA JA, MALAN JA, PILLAY JA and SWAIN AJA

2013 NOVEMBER 19; DECEMBER 2

Engineering and construction law—Building contract—Construction guarantee—Autonomous nature reconfirmed—Guarantor’s obligation to perform wholly independent from underlying construction agreement between contractor and employer—Disputes in relation to construction agreement accordingly irrelevant to guarantor’s obligation to perform in terms of guarantee.

MV SILVER STAR

HILANE LTD v ACTION PARTNER LTD AND OTHERS (ECP)

EKSTEEN J

2013 NOVEMBER 14; DECEMBER 3

Shipping—Admiralty law—Judicial sale and fund in court—Judicial sale pendente lite—Court’s discretion—Factors—Opposition of owner—Prospect of deterioration of vessel—Relative value of claim—Admiralty Jurisdiction Regulation Act 105 of 1983, s 9.

Shipping—Admiralty law—Maritime claim—Enforcement—Action in rem—Arrest—Judicial sale of arrested vessel. See Shipping—Admiralty law—Judicial sale and fund in court.

JM v LM AND ANOTHER (WCC)

SAVAGE AJ

2013 NOVEMBER 13, 20

Marriage—Divorce—Maintenance—Maintenance order—Civil enforcement—Of high court maintenance order—Maintenance system through Maintenance Act not limiting right of high court to enforce its own maintenance orders—High court accordingly entitled to issue warrant of execution to enforce its own maintenance order—Maintenance Act 99 of 1998, ss 26–30 and Superior Courts Act 10 of 2013, s 42.

Marriage—Divorce—Maintenance—Maintenance order—Civil enforcement—Of high court maintenance order by high court and magistrates’ court simultaneously—No statutory provisions preventing same—Enforcement mechanisms available until full amount of maintenance debt extinguished—Party therefore entitled to high court writ for arrear maintenance, even where emoluments attachment order obtained for future and arrear maintenance through maintenance court—Maintenance Act 99 of 1998, ss 26–30 and Superior Courts Act 10 of 2013, s 42.

NKATA v FIRSTRAND BANK LTD AND OTHERS (WCC)

ROGERS J

2013 OCTOBER 21; 2014 JANUARY 16

Credit agreement—Consumer credit agreement—Reinstatement of agreement in default—By paying ‘all amounts that are overdue’—Meaning of ‘all amounts’—Such are arrear instalments, not full accelerated debt—National Credit Act 34 of 2005, s 129(3)(a).

Credit agreement—Consumer credit agreement—Reinstatement of agreement in default—By paying ‘costs of enforcing the agreement’—For credit provider to take steps to recover such costs—Should it not do so and should consumer pay instalments and other amounts due, agreement will be reinstated—National Credit Act 34 of 2005, s 129(3)(a).

Credit agreement—Consumer credit agreement—Reinstatement of agreement in default—Not possible after sale of property pursuant to attachment order—Meaning of ‘attachment order’—Order entitling credit provider to take repossession of movable goods—National Credit Act 34 of 2005, s 129(4)(a)(i).

Credit agreement—Consumer credit agreement—Reinstatement of agreement in default—Not possible after execution of court order enforcing agreement—Meaning of ‘execution’—When money raised pursuant to sale of attached property and paid to judgment creditor—National Credit Act 34 of 2005, s 129(4)(b).

CC v CM (GJ)

MOKGOATLHENG J

2013 JULY 19; AUGUST 1

Practice—Trial—Separation of issues—Divorce action—Separation of issue whether marital relationship irretrievably broken down from issues of maintenance and redistribution of patrimonial benefits—Rule 33(4) allowing separation of issues where question of fact or law may be decided separately before others or where issues sought to be separated may be conveniently separated—Question of convenience decided with regard to convenience of court, convenience of parties and possible prejudice to either party—Separation order obligatory unless court determines issues not able to be conveniently separated—Uniform Rules of Court, rule 33(4).

ABSA BANK LTD v HANLEY (SCA)

MALAN JA, WALLIS JA, PETSE JA, SALDULKER JA and VAN DER MERWE AJA

2013 NOVEMBER 1, 29

Banking—Transmission of funds—Duties of bank and client regarding payment instruction—Liability for loss resulting from falsification of payment instruction—Duties of customer versus bank’s negligence—Proximate cause—Failure by bank officials to notice alteration.

ABSA BANK LTD v ARIF AND ANOTHER (SCA)

MAYA JA, MALAN JA, PETSE JA, WILLIS JA and SALDULKER JA

2013 NOVEMBER 21; 2014 JANUARY 20

Banking—Deposit—Misappropriation by agent—Agent swindling clients of bank out of deposits—Clients and agent having previously colluded to open fictitious deposit-investment agreements in order to defraud fiscus—Agent having neither express nor implied authority to represent bank in concluding such agreements—Bank not liable for clients’ losses.

Estoppel—Estoppel by representation—Limitations on operation of estoppel—Illegal or invalid acts—Party to illegal transaction who knows, or ought to know, that principal would not countenance its conclusion is precluded from relying on ostensible authority of agent.

COMPETITION COMMISSION OF SOUTH AFRICA v PIONEER HI-BRED INTERNATIONAL INC AND OTHERS (CC)

MOSENEKE ACJ, SKWEYIYA ADCJ, CAMERON J, FRONEMAN J, JAFTA J, NKABINDE J, VAN DER WESTHUIZEN J, ZONDO J, MADLANGA J, MHLANTLA AJ and DAMBUZA AJ

2014 NOVEMBER 4; DECEMBER 18

Competition—Competition Tribunal—Costs—Power to award—Tribunal does not have power to award costs against Competition Commission.

Competition—Competition Appeal Court—Costs—Power to award—Competition Appeal Court does not have power to award costs against Competition Commission in relation to proceedings in Competition Tribunal.

Competition—Competition Appeal Court—Costs—Power to award—Competition Appeal Court may order costs against Competition Commission on appeal if this accords with requirements of law and fairness.

BOTHMA-BATHO TRANSPORT (EDMS) BPK v S BOTHMA & SEUN TRANSPORT (EDMS) BPK (SCA)

MTHIYANE AP, LEWIS JA, SHONGWE JA, WALLIS JA and PILLAY JA

2013 NOVEMBER 21, 28

Contract—Interpretation—Proper approach—Process of interpretation starting with words but not stopping at literal meaning—Court must rather consider them in light of all relevant context—Former distinction of background and surrounding circumstances no longer to be made—Process no longer in stages but now unitary.

PENIEL DEVELOPMENT (PTY) LTD AND ANOTHER v PIETERSEN AND OTHERS (GJ)

VALLY J

2013 SEPTEMBER 25, 26

Practice—Judgments and orders—Suspension of operation—Pending rescission application—Application to rescind judgment suspends operation of judgment—Judgment creditor need apply for authorisation to execute should it want to do so before rescission application decided—Uniform Rules of Court, rule 49(11).

RS v MS AND OTHERS (GJ)

BESTER AJ

2012 OCTOBER 15

Marriage—Divorce—Anti-dissipation interdict pendente lite—Marriage out of community of property—Interdict to protect spouse’s contingent right to accrual—Only granted in clearest of cases—Application refused where shown that respondent would suffer significant financial harm and that he had sufficient funds to satisfy any eventual claim by applicant.

BOSCHPOORT ONDERNEMINGS (PTY) LTD v ABSA BANK LTD (SCA)

CACHALIA JA, PETSE JA, WILLIS JA, SWAIN AJA and MEYER AJA

2013 NOVEMBER 15, 28

Company—Winding-up—Solvent and insolvent companies—Meaning of terms—‘Solvent’ means commercially solvent—Only commercially solvent companies (whether factually solvent or insolvent) may be wound up under Act 71 of 2008—Commercially insolvent companies (factually solvent or insolvent) may only be wound up under ch 14 of Act 61 of 1973—Commercially solvent companies may not be wound up under ch 14—Companies Act 61 of 1973, ch 14; Companies Act 71 of 2008, ss 79–81 and sch 5 items 9(2)–(3).

FIRSTRAND BANK LTD (t/a RAND MERCHANT BANK) AND ANOTHER v MASTER OF THE HIGH COURT, CAPE TOWN, AND OTHERS (WCC)

BLIGNAULT J

2013 SEPTEMBER 10; NOVEMBER 11

Administrative law—Administrative action—What constitutes—Master’s decision to authorise enquiry under ss 417 and 418 of Companies Act 61 of 1973—Promotion of Administrative Justice Act 3 of 2000.

Review—Grounds—Legality—Master failing to hear interested party before authorising enquiry—This offending three aspects of principle of legality: fairness, rationality and transparency.

LAND AND AGRICULTURAL DEVELOPMENT BANK OF SOUTH AFRICA v PANAMO PROPERTIES 103 (PTY) LTD (GJ)

CJ CLAASSEN J

2013 NOVEMBER 11, 25

Mortgage—Mortgage bond—Validity—Invalidity of principal agreement—Invalidating mortgage bond—Exception where bond securing additional liquid debt unconnected to principal debt—Obligation to repay additional advances made enforceable.

Mortgage—Mortgage bond—Validity—Bond need not describe amount, origin or nature of obligation secured, which may be conditional or even not yet incurred—Defect relating to form of bond as instrument of debt not by itself destroying its validity as instrument of hypothecation.

Agriculture—Land Bank—Object—To assist previously disadvantaged persons to enter agricultural sector—Not including township development—Contract between Land Bank and third party for purchase of agricultural land with intention to establish township invalid—Bank cannot be estopped from relying on its invalidity—Land and Agricultural Development Bank Act 15 of 2002, s 3.

THERON v MINISTER OF TRANSPORT AND PUBLIC WORKS, WESTERN CAPE (WCC)

NDITA J

2011 JULY 7; 2013 JANUARY 23

Land—Sale—Contract—Formalities—Statutory requirements for disposal of public assets—On proper interpretation of statutory requirements concerned, defendant’s non-compliance therewith rendering agreement for sale of land void—Western Cape Land Administration Act 6 of 1998, ss 3(2) and (3), and reg 4.

Land—Sale—Contract—Formalities—Statutory requirements for disposal of public assets—Compliance imperative, even where no express statutory declaration of nullity for non-compliance prescribed—Compliance prerequisite for deed of sale developing into completed contract.

KETLER INVESTMENTS CC t/a KETLER PRESENTATIONS v INTERNET SERVICE PROVIDERS' ASSOCIATION (GJ)

SPILG J

2012 JUNE 12; 2013 JUNE 6

Media—Freedom of expression—Limitations—Defamation—What constitutes—Applicant sending bulk unsolicited advertising material via email—Respondent, statutorily recognised representative body in internet service industry, listing applicant on webpage entitled ‘Hall of Shame’ as ‘spammer’—Word ‘spammer’ or derivatives not per se defamatory—Listing defamatory, however, in its secondary meaning through innuendo.

Media—Freedom of expression—Limitations—Defamation—Justification—Defence of truth and public benefit—Applicant sending bulk unsolicited advertising material via email—Respondent, statutorily recognised representative body in internet service industry, listing applicant on webpage entitled ‘Hall of Shame’ as ‘spammer’—Respondent demonstrating applicant’s conduct as spammer as ‘shameful’ in terms of ECTA and code of conduct, thus establishing truth of content—Also demonstrating public benefit through role as self-regulator and public interest served in dealing with spam—Defence upheld—Electronic Communications and Transactions Act 25 of 2002, ss 45 and 71.

Media—Freedom of expression—Limitations—Defamation—Justification—Defence of consent—Applicant sending bulk unsolicited advertising material via email—Respondent, statutorily recognised representative body in internet service industry listing applicant on webpage entitled ‘Hall of Shame’ as ‘spammer’—Applicant consenting to relisting in case of breach of respondent’s code of conduct, but subsequently withdrawing consent—Post-publication withdrawal of consent irrelevant and respondent entitled to rely thereon to relist applicant’s name—Defence upheld.

KROG v BOTES (GJ)

WEINER J

2013 FEBRUARY 13; MARCH 6

Interdict—Anti-dissipation order—Application by creditor for anti-dissipation interdict prohibiting debtor from dealing with proceeds of sale of immovable property pendente lite—Applicant having loaned respondent money to buy house for herself—Seeking to secure proceeds of sale pending action directly involving house—Probability of irreparable harm—Balance of convenience—No alternative remedy—Application granted.

MINISTER OF MINERAL RESOURCES AND OTHERS v SISHEN IRON ORE CO (PTY) LTD AND ANOTHER (CC)

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

2013 SEPTEMBER 3; DECEMBER 12

Minerals and petroleum—Mining and prospecting rights—Mining rights—Transition to new order under MPRDA—Continuation of old order rights and subsequent conversion into mining rights under MPRDA—Effect of failure to convert old order mining right within prescribed period—Where such right consisting of undivided share of common-law mineral right and mining licence in respect thereof—Co-holder of duly converted undivided share not becoming sole holder of mining right in terms of MPRDA—Mineral and Petroleum Resources Development Act 28 of 2002, sch II, items 7(1) and 7(8)

Minerals and petroleum—Mining and prospecting rights—Mining rights—Transition to new order under MPRDA—Continuation of old order rights and subsequent conversion into mining rights under MPRDA—Effect of failure to convert old order mining right within prescribed period—Such right ceasing to exist and minerals that it related to reverting to state for allocation of new mining and prospecting rights in respect thereof—However, where lapsed right consisting of undivided share of common-law mineral right and mining licence in respect thereof, new right may only be allocated to existing right-holder, ie co-holder of duly converted undivided shares—Mineral and Petroleum Resources Development Act 28 of 2002, ss 16(2)(b) and 22(2)(b); sch II, items 7(1) and 7(8).

 

SOUTH AFRICAN CRIMINAL LAW REPORTS

TABLE OF CASES

  • Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another 2014 (1) SACR 327 (CC)

  • S v Melapi 2014 (1) SACR 363 (GP)

  • S v Maqubela and Another 2014 (1) SACR 378 (WCC)

  • S v Rossouw 2014 (1) SACR 390 (WCC)

  • S v Madlala 2014 (1) SACR 396 (KZP)

  • S v Kwanape 2014 (1) SACR 405 (SCA)

  • S v Thwala 2014 (1) SACR 414 (KZP)

  • S v Boshoff 2014 (1) SACR 422 (ECG)

FLYNOTES

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

Criminal law—Sexual offences—Liability of children for—Statutory imposition of—Constitutionality—Criminal liability imposed on children under age of 16 for consensual sexual conduct—Provisions in question unconstitutional for unjustifiably limiting right to human dignity and right to privacy, and for being contrary to best interests of children—High court order invalidating such sections confirmed—Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, ss 15, 16.

Children—Sexual offences by—Criminal liability—Statutory imposition of—Constitutionality—Criminal liability imposed on children under age of 16 for consensual sexual conduct—Provisions in question unconstitutional for unjustifiably limiting rights to human dignity and privacy, and for being contrary to best interests of children—High court order invalidating such sections confirmed—Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, ss 15, 16

 

S v MELAPI (GP)

PRETORIUS J and TOLMAY J

2013 SEPTEMBER 17

Juvenile offenders—Sentence—Committal to child and youth care centre—Child who is over 18 years of age at time of sentencing, but was younger than 18 when offence committed—Committal in terms of s 76 of Child Justice Act 75 of 2008, competent sentence for such offender and institution obliged to accept him.

S v MAQUBELA AND ANOTHER (WCC)

MURPHY J

2013

Indictment and charge—Amendment of—Amendment of in terms of s 86(1) of Criminal Procedure Act 51 of 1977—Court entitled to amend mero motu—Burden of proof not resting on prosecution to show that there would be no prejudice to accused—Court merely required to indicate its intention and afford defence an opportunity of showing that there would be prejudice.

S v ROSSOUW (WCC)

DAVIS R en SCHIPPERS R

2013 NOVEMBER 8

Arms and ammunition—Unlawful possession of firearm in contravention of s 3 of Firearms Control Act 60 of 2000—Sentence—Firearm semiautomatic pistol—Provisions of Criminal Law Amendment Act 105 of 1997 not brought to attention of accused who had two previous convictions for similar offences—Sentence of six years’ imprisonment upheld on appeal.

Arms and ammunition—Unlawful possession of firearm in contravention of s 3 of Firearms Control Act 60 of 2000—Sentence—Duty of prosecutor and court to be attentive to provisions of minimum sentencing legislation in regard to such offences.

S v MADLALA (KZP)

GORVEN J and POYO-DLWATI AJ

2013 NOVEMBER 12, 19

Arms and ammunition—Unlawful possession of firearm in contravention of s 4 of Firearms Control Act 60 of 2000—Sentence—Automatic firearm—Minimum sentence of 15 years’ imprisonment prescribed by s 51(2) of Criminal Law Amendment Act 105 of 1997—Accused had previous conviction for possession of firearm (albeit not an automatic or semiautomatic one), and present offence committed relatively soon after release—Accused discharged firearm concealed in bag in presence of small child—Sentence not startlingly disproportionate.

S v KWANAPE (SCA)

NUGENT JA, PETSE JA and ERASMUS AJA

2012 NOVEMBER 14, 26

Rape—Sentence—Life imprisonment—Minimum sentence in terms of Criminal Law Amendment Act 105 of 1997—‘Substantial and compelling circumstances’—Rape of 12-year-old girl who was abducted whilst playing with friends and held overnight—Consequences of rape devastating to complainant—Rape horrendous enough to justify imposition of ultimate penalty, despite appellant being young first offender.

S v THWALA (KZP)

KRUGER J, MADONDO J and SEEGOBIN J

2013 JULY 31; SEPTEMBER 5

Evidence—Circumstantial evidence—Assessment of—Inferential reasoning—Appellant linked to murder and robbery at shop in rural area by his possession of cellphone taken at time of robbery and possession of firearm used to shoot deceased—Items found in his possession one and a half months after incident—Although significant period of time had passed since incident, as this was rural area where items were not easily traded, possession was recent enough to conclude appellant involved in incident.

S v BOSHOFF (ECG)

EKSTEEN J and PLASKET J

2013 SEPTEMBER 18, 27

Police—Offences—By members of police force—Sentence—Senior police officer with 24 years’ experience convicted of numerous counts of fraud, corruption, defeating or obstructing course of justice, and theft—Criminal scheme involved stealing firearms from police and planting them on innocent civilians and claiming share of reward from informer who was part of scheme—Frightening abuse of arbitrary and capricious power—Minimum sentence of 15 years’ imprisonment on each count of fraud not disproportionate, despite accused’s favourable personal circumstances.

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