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APRIL 2015

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases in the April law reports.

The full original text is now provided for the judgments of interest (see the link below each summary).

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

 


SOUTH AFRICAN LAW REPORTS

 

A judge in dual capacities?

It is competent for a judge of the high court to hear equality court proceedings and high court proceedings based on a constitutional challenge (of the provisions in terms of which the equality court proceedings were brought) in one consolidated case in the dual capacity of high court judge and duly designated equality court judge. Qwelane v Minister of Justice and Constitutional Development and Others 2015 (2) SA 493 (GJ)
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Contempt of court

Are contempt proceedings against a municipality effective and appropriate? Meadow Glen Home Owners Association and Others v Tshwane City Metropolitan Municipality and Another 2015 (2) SA 413 (SCA)
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A non-party’s right to procedural fairness

The appeal court amended the trial court’s order to the detriment of a non-party. Parties had a right to a fair public hearing, and the non-party’s right to procedural fairness had been violated. Stopforth Swanepoel & Brewis Inc v Royal Anthem (Pty) Ltd and Others 2015 (2) SA 539 (CC)
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SOUTH AFRICAN CRIMINAL LAW REPORTS

Murder and driving

An intoxicated driver killed pedestrians while racing his car against another. What was his subjective foresight? Were the trial court’s findings as to the effect of intoxicating drugs on the accused’s foresight compatible with dolus eventualis? S v Maarohanye and Another 2015 (1) SACR 337 (GJ)
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Rhino horns

The accused was sentenced to 13 years’ imprisonment and a fine of R1 million for fraudulently obtaining 26 permits to shoot and kill rhinoceros on the basis that professional hunters would shoot the rhino, but the persons who were listed on the permits did not in fact shoot them. S v Lemthongthai 2015 (1) SACR 353 (SCA)
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Common purpose and a change of heart

Six people were killed during an attack and robbery on an armoured security vehicle. The accused had helped plan the robbery, but raised the defence that he had dissociated himself when he heard that the others planned to use explosives. S v Wana and Others 2015 (1) SACR 374 (ECP)
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 SOUTH AFRICAN LAW REPORTS

 
TABLE OF CASES

 
  • Silver Star, MV 2015 (2) SA 331 (SCA)

  • Mathias International Ltd and Another v Baillache and Others 2015 (2) SA 357 (WCC)

  • Marine 3 Technologies Holdings (Pty) Ltd v Afrigroup Investments (Pty) Ltd and Another 2015 (2) SA 387 (SCA)

  • Betterbridge (Pty) Ltd v Masilo and Others NNO 2015 (2) SA 396 (GP)
  • MEC for Local Government and Traditional Affairs, KwaZulu-Natal v Botha NO and Others 2015 (2) SA 405 (SCA)
  • Meadow Glen Home Owners Association and Others v Tshwane City Metropolitan Municipality and Another 2015 (2) SA 413 (SCA)
  • SA Restructuring and Insolvency Practitioners Association v Minister of Justice and Constitutional Development and Others, and another application 2015 (2) SA 430 (WCC)
  • Qwelane v Minister of Justice and Constitutional Development and Others 2015 (2) SA 493 (GJ)
  • Helen Suzman Foundation v Judicial Service Commission 2015 (2) SA 498 (WCC)
  • Murgatroyd v Van den Heever and Others NNO 2015 (2) SA 514 (GJ)
  • EB Steam Co (Pty) Ltd v Eskom Holdings Soc Ltd 2015 (2) SA 526 (SCA)
  • Stopforth Swanepoel & Brewis Inc v Royal Anthem (Pty) Ltd and Others 2015 (2) SA 539 (CC)
  • Pilot Freight (Pty) Ltd v Von Landsberg Trading (Pty) Ltd 2015 (2) SA 550 (GJ)
  • Legal Aid South Africa v Magidiwana and Others 2015 (2) SA 568 (SCA)
  • Arun Property Development (Pty) Ltd v Cape Town City 2015 (2) SA 584 (CC)
  • Shanike Investments No 85 (Pty) Ltd and Another v Ndima and Others 2015 (2) SA 610 (GJ)
  • PMG Motors Kyalami (Pty) Ltd and Another v FirstRand Bank Ltd, Wesbank Division 2015 (2) SA 634 (SCA)
 
FLYNOTES
 

MV SILVER STAR
OWNERS OF THE MV SILVER STAR v HILANE LTD (SCA)
PONNAN JA, WALLLIS JA, PILLAY JA, ZONDI JA and GORVEN AJA
2014 NOVEMBER 18, 28
[2014] ZASCA 195

Shipping - Admiralty law—Maritime claim—Enforcement—Action in rem—Arrest—Associated ship arrest—Claim arising out of indemnities relating to charterparty and foreign arbitration award—Whether associated ship arrest permissible—Admiralty Jurisdiction Regulation Act 105 of 1983, s 3(6) and 3(7)(c).

MATHIAS INTERNATIONAL LTD AND ANOTHER v BAILLACHE AND OTHERS (WCC)
BINNS-WARD J
2010 MARCH 8

Discovery and inspection
- Anton Piller orders—Nature—Court’s discretion to condone non-compliance with requirements—Access to preserved material—Implied undertaking to court.

MARINE 3 TECHNOLOGIES HOLDINGS (PTY) LTD v AFRIGROUP INVESTMENTS (PTY) LTD AND ANOTHER (SCA)
PONNAN JA, SWAIN JA, MATHOPO AJA, MOCUMIE AJA and GORVEN AJA
2014 NOVEMBER 25; DECEMBER 1
[2014] ZASCA 208

Intellectual property
- Patent—Revocation—Inutility—Proof—Purposive construction of claims in patent required—Claims to be construed in light in which they would be understood in particular art or science—Perverse attempts to show theoretical failure not supporting plea of non-utility—Argument that invention impossible to make via process set out in claim contradicted by fact that product being commercially manufactured and sold—Application for revocation dismissed on appeal—Patents Act 57 of 1978, s 61(1)(d)

BETTERBRIDGE (PTY) LTD v MASILO AND OTHERS NNO (GP)
UNTERHALTER AJ
2014 OCTOBER 14, 17

Prescription
- Extinctive prescription—Delay in completion—Debt object of claim filed against company in liquidation—Meaning of ‘claim filed’—Prescription Act 68 of 1969, s 13(1)(g).

MEC FOR LOCAL GOVERNMENT AND TRADITIONAL AFFAIRS, KWAZULU-NATAL v BOTHA NO AND OTHERS (SCA)
NAVSA ADP, SHONGWE JA, THERON JA, SWAIN JA and FOURIE AJA
2014 NOVEMBER 18; DECEMBER 1
[2014] ZASCA 211

Local authority - Rates—Valuations—Objections—Purchase price of immovable property misrepresented by owner (since wound up) resulting in inflated municipal valuation—No objection lodged against valuation or attempt to cause supplementary valuation—Liquidators precluded in circumstances from seeking condonation and leave for late objection under s 80 of MPRA—Local Government: Municipal Property Rates Act 6 of 2004, s80.

MEADOW GLEN HOME OWNERS ASSOCIATION AND OTHERS v TSHWANE CITY METROPOLITAN MUNICIPALITY AND ANOTHER (SCA)
CACHALIA JA, WALLIS JA, ZONDI JA, SCHOEMAN AJA and DAMBUZA AJA
2014 NOVEMBER 11; DECEMBER 1

Contempt of court
- By state organ—Municipality—Non-compliance with structural order—Court ordering municipality to perform actions in respect of informal settlement—Municipal official responsible for compliance with court orders—Approach municipality ought to have adopted on experiencing difficulty in implementing order—Appropriateness of contempt proceedings to enforce order.
Contempt of court—Committal—Suspension of committal order—Standard to which it has to be proved that conditions of suspension breached.
Contempt of court—Disobedience of court order—Contempt order—Whether it may be made by consent.

SA RESTRUCTURING AND INSOLVENCY PRACTITIONERS ASSOCIATION v MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND OTHERS, AND ANOTHER APPLICATION (WCC)
KATZ AJ
2014 OCTOBER 13; 2015 JANUARY 13

Labour law
- Employment equity—Affirmative action—Constitutionality—Appointment policy for insolvency practitioners—Inflexible race- and genderbased regime imposed—Master’s discretion to appoint unlawfully fettered—Reduced to mere rubber stamp—Policy unconstitutional.
Insolvency—Trustee—Appointment—Appointment policy—Legality—Inflexible race- and gender-based regime imposed—Master’s discretion to appoint unlawfully fettered—Reduced to mere rubber stamp—Policy unconstitutional.

QWELANE v MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND OTHERS (GJ)
VAN OOSTEN J
2014 NOVEMBER 13, 21

Constitutional practice - Courts—Powers—Inherent power of courts to protect and regulate their own process—Consolidation of parallel high court and equality court proceedings ordered—Constitution, s 173.
Equality legislation—Equality courts—Procedure—Consolidation of parallel high court and equality court proceedings ordered—Constitution, s173.

HELEN SUZMAN FOUNDATION v JUDICIAL SERVICE COMMISSION (WCC)
LE GRANGE J
2014 AUGUST 8; SEPTEMBER 5

Judge
- Appointment—Judicial Service Commission—Selection process—Deliberations—Not forming part of record on review—Disclosure not required—Uniform Rules of Court, rule 53(1)(b).

MURGATROYD v VAN DEN HEEVER AND OTHERS NNO (GJ)
MEYER J
2014 MAY 6–8; JULY 29

Company - Business rescue—Business rescue practitioner—Expenses and disbursements—Reimbursement—Test for entitlement—Semble: Only allowed to extent that charges of service providers were market-related, ie reasonable—Companies Act 71 of 2008, ss 143(1) and (6); and reg 128(3).
Company— Business rescue—Business rescue practitioner—Powers and functions—Appointment of professionals to assist in facilitating business rescue proceedings—Companies Act 71 of 2008, s 140.

EB STEAM CO (PTY) LTD v ESKOM HOLDINGS SOC LTD (SCA)
2013 NOVEMBER 6, 27
[2013] ZASCA 167

Company - Winding-up—Application—Furnishing of copy to employees—When to be furnished—Whether section peremptory—Meaning of ‘furnish’—Alternative modes of doing so—Applicant’s affidavit—Statement on respondent’s employees—Inability to furnish papers before hearing—Whether barring court granting relief—Companies Act 61 of 1973, ss 346(4A)(a), 346(4A)(a)(ii) and 346(4A)(b).

STOPFORTH SWANEPOEL & BREWIS INC v ROYAL ANTHEM (PTY) LTD AND OTHERS (CC)
MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, LEEUW AJ, MADLANGA J, NKABINDE J, VAN DER WESTHUIZEN J and ZONDO J
2014 OCTOBER 2
[2014] ZACC 26

Contitutional Law - Human rights—Right of access to courts—Right to fair public hearing—Appeal court amending trial court’s order to detriment of non-party—Violating non-party’s right to procedural fairness—Constitution, s 34.
Conveyancer —Rights and duties—Liability—Failed sale—Funds in trust account—Liability of conveyancer to refund buyer where forfeiture clause invoked by seller—Conveyancer acting as agent of seller—Payment to conveyancer amounting to payment to seller—Seller, not conveyancer, liable to buyer.

PILOT FREIGHT (PTY) LTD v VON LANDSBERG TRADING (PTY) LTD (GJ)
KAIRINOS AJ
2014 JULY 22, 25

Company - Winding-up—Application—Furnishing of copy to employees—Affidavit on manner of furnishing—Appropriate deponent—Content with respect to employees—Companies Act 61 of 1973, s 346(4A)(b).

LEGAL AID SOUTH AFRICA v MAGIDIWANA AND OTHERS (SCA)
PONNAN JA, MAYA JA, SWAIN JA, ZONDI JA and FOURIE AJA
2014 SEPTEMBER 8, 26
[2014] ZASCA 141

Appeal - Power of court of appeal—Power to dismiss appeal where judgment or order sought would have no practical effect or result—Discretion of court—Court unable to exercise discretion when all disputes between parties settled by agreement—Superior Courts Act 10 of 2013, s 16(2)(a)(i).

ARUN PROPERTY DEVELOPMENT (PTY) LTD v CAPE TOWN CITY (CC)
MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, LEEUW AJ, MADLANGA J, NKABINDE J, VAN DER WESTHUIZEN J and ZONDO J
2014 SEPTEMBER 9; DECEMBER 15
[2014] ZACC 37

Township - Establishment—Subdivision of land—Vesting of ownership of streets and public places in local authority—Whether developer to be compensated—Compensation required if acquisition going beyond normal needs of development or allowed by policy—Meaning of ‘policy’—Land Use Planning Ordinance 15 of 1985 (WC), s 28.
Township—Establishment—Subdivision of land—Public streets and places appearing in approved subdivision plan but exceeding normal need arising from subdivision—Such land also vesting in local authority and attracting obligation to compensate developer—Developer may enforce right to compensation without first having to exhaust alternative remedies—Land Use Planning Ordinance 15 of 1985 (WC), s 28.

SHANIKE INVESTMENTS NO 85 (PTY) LTD AND ANOTHER v NDIMA AND OTHERS (GJ)
SPILG J
2014 AUGUST 12, 15, 21, 26

Land
- Unlawful occupation—Eviction—Statutory eviction—Urgent eviction—Hijacked building—Tenants embarking on rent boycott with intention to take over housing complex through intimidation—Mediation inappropriate—Real and imminent danger of substantial injury to person or damage to property if respondents not evicted—Owner entitled to take steps to secure complex, including eviction—Final interdicts and eviction orders granted—Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, s 5(1).

PMG MOTORS KYALAMI (PTY) LTD AND ANOTHER v FIRSTRAND BANK LTD, WESBANK DIVISION (SCA)
LEWIS JA, PONNAN JA, WILLIS JA, MATHOPO AJA and GORVEN AJA
2014 NOVEMBER 4, 24
[2014] ZASCA 180

Company
- Winding-up—Jurisdiction of court—Company’s residence at its principal place of business not affected by its supervening liquidation.
Insolvency —Creditors—Secured creditors—Hypothec arising out of instalment transaction—Goods returned to creditor prior to liquidation of debtor—Creditor making payment in lieu of restoring hypothecated goods to liquidator—Whether indebite—Indebite if instalment transaction was cancelled prior to winding-up—Insolvency Act 24 of 1936, s 84(2).

 
 SOUTH AFRICAN CRIMINAL LAW REPORTS

 TABLE OF CASES
 
  • Khohliso v The State and Another 2015 (1) SACR 319 (CC)

  • S v Maarohanye and Another 2015 (1) SACR 337 (GJ)

  • S v Lemthongthai 2015 (1) SACR 353 (SCA)

  • S v Chinridze 2015 (1) SACR 364 (GP)
  • S v Wana and Others 2015 (1) SACR 374 (ECP)
  • S v Linus 2015 (1) SACR 381 (GP)
  • York Timbers (Pty) Ltd v National Director of Public Prosecutions 2015 (1) SACR 384 (GP)
  • Woji v Minister of Police 2015 (1) SACR 409 (SCA)
  • S v LM 2015 (1) SACR 422 (ECG)
 
 FLYNOTES
 

KHOHLISO v THE STATE AND ANOTHER (CC)
MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, LEEUW AJ, MADLANGA J, NKABINDE J, VAN DER WESTHUIZEN J and ZONDO J
2014 MAY 27; JUNE 4

Environmental offences
- Protected wild animal—Possession of carcass of—Contravention of s 13(c) of Environmental Conservation Decree 9 of 1992 (Transkei)—Although it was valid and applicable law in Transkei, Decree 9 had not been treated in manner by Eastern Cape legislature that amounted to endorsing it or recognising its status as that of provincial Act—Confirmation of by Constitutional Court of declaration by high court of invalidity not required.. 

S v MAAROHANYE AND ANOTHER (GJ)
MLAMBO J, MALULEKE J and PRETORIUS J
2014 JUNE 11; OCTOBER 8

Murder
- Mens rea—Intention to kill—Dolus eventualis—Effect of intoxication—Subjective foresight—Intoxicated drivers killing pedestrians while racing each other—Appeal against murder conviction based on dolus eventualis—Trial court’s findings as to effect of intoxicating drugs on mental disposition and foresight of accused irreconcilable with dolus eventualis—Appeal upheld.

S v LEMTHONGTHAI (SCA)
NAVSA ADP, WALLIS JA and SWAIN JA
2014 SEPTEMBER 10, 14
[2014] ZASCA 131

Environmental offences - Rhino horn—Unlawful trading in rhino horn in contravention of National Environmental Management: Biodiversity Act 10 of 2004—Sentence—Accused having arranged hunting expedition for purpose of trading in rhino horn and having fraudulently obtained permit—Hunting party shot 26 rhino—Appellant first offender—Effective sentence of 30 years’ imprisonment, imposed by high court on appeal, excessive and disproportionate—Replaced with sentence of 13 years’ imprisonment and fine of R1 million..

S v CHINRIDZE (GP)
KOLLAPEN J and DOSIO AJ
2014 JULY 25

Rape
 Elements of—Absence of consent—Both factual and legal—Complainant mentally challenged—At no point evidence of factual consent—On this basis alone appeal fails—Not strict compliance with s 1 of Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007—Essential that be conclusive finding by psychiatrist in compliance with section—Cannot with certainty say no legal consent—However, on evidence clear that complainant unable to differentiate between meaning of ‘rape’ and ‘sexual intercourse’—Appeal fails as no factual consent proven.

S v WANA AND OTHERS (ECP)
GOOSEN J
2014 MARCH 19, 20

General principles of liability
- Common purpose—Dissociation from common purpose—Proof of—Greater involvement and more advanced execution of criminal enterprise, more clearly accused person who relies on dissociation must establish basis for finding of dissociation—Accused must establish performance of some positive act of withdrawal or dissociation—Necessary to establish that accused had clear and unambiguous intention to withdraw from criminal enterprise.

S v LINUS (GP)
MOLOPA-SETHOSA J and SEMENYA AJ
2014 AUGUST 28

Drug offences - Methcathinone—Dealing in contravention of s 5(b) of Drugs and Drug Trafficking Act 140 of 1992—Sentence—First offender sentenced to ten years’ imprisonment for selling methcathinone and methamphetamine to undercover agent—Sentence upheld on appeal, court holding that it was most serious offence warranting imprisonment.

YORK TIMBERS (PTY) LTD v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS (GP)
PRINSLOO J and MOSEAMO AJ
2014 MARCH 25

Prevention of crime
- Confiscation order in terms of Prevention of Organised Crime Act 121 of 1998—Benefits of crime—Prosecution of sawmill company that had graded road over its property without environmental authorisation in terms of s 24 of National Environmental Management Act 107 of 1998—Company’s motive for building road completely altruistic and in order to reduce environmental impact—No benefit to company having been proven.
Prevention of crime—Confiscation order in terms of Prevention of Organised Crime Act 121 of 1998—Procedure—No provision made in legislation for replying affidavits.

WOJI v MINISTER OF POLICE (SCA)
MAYA JA, TSHIQI JA, SALDULKER JA, SWAIN JA and GORVEN AJA
2014 AUGUST 20; SEPTEMBER 11
[2014] ZASCA 108

Bail - Refusal of—Appeal against—Magistrate relying on information at bail hearing provided by policeman who informed court that accused clearly depicted on video as one of number of bank robbers—Clear from video that accused was not one of bank robbers—Amounted to breach of public law duty owed by policeman to accused not to violate his right to freedom—Accused entitled to be compensated for wrongful detention.

S v LM (ECG)
TSHIKI J and STRETCH J
2014 FEBRUARY 21, 27

Sentence - Imposition of—Evidence—Proper procedure to be followed and argument in mitigation and aggravation of sentence can only follow when all evidence has been led.
Sentence — Prescribed sentences—Minimum sentence—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—Multiple counts of rape—What constitutes—Accused ejaculating twice without withdrawing penis—Constituted single count.

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