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SOUTH AFRICAN LAW REPORTS
State’s obligations to execute international arrest warrants
In June 2015 President Omar al Bashir of Sudan visited South Africa to attend the Africa Union Summit in Johannesburg. At the time he was the subject of an international arrest warrant issued by the International Criminal Court. The South African government however allowed him to leave the country without executing the warrants; this in spite of a high court order instructing it to do so. Was the conduct of the government unconstitutional in the light of South Africa’s being party to the Rome Statute? Minister of Justice and Constitutional Development and Others v Southern Africa Litigation Centre and Others 2016 (3) SA 317 (SCA).
Binding nature of Public Protector’s findings
In her report arising from an investigation into the costs of the Department of Public Works’ security upgrade of the President’s private residence, the Public Protector found that the President and his family were unduly enriched, and ordered the President to repay the costs. The National Assembly conducted its own investigation and absolved the President. The Constitutional Court however found the remedial action taken by the Public Protector to be binding on the National Assembly and the President, and in ignoring her report they had acted unconstitutionally. Economic Freedom Fighters v Speaker, National Assembly and Others 2016 (3) SA 580 (CC).
Liability for injuries sustained by passenger on train
Mr Mashongwa sustained a number of serious injuries after being robbed, beaten and thrown off a moving train by three men, who had entered the carriage after the train had already started moving. Mr Mashongwa sued the Passenger Rail Service of South Africa, the owner of the train, for his damages arising from the injuries. He argued that, in its failure to close the doors and post a guard on the train, it had acted wrongfully and negligently. Mashongwa v Passenger Rail Agency of South Africa 2016 (3) SA 528 (CC).
SOUTH AFRICAN CRIMINAL LAW REPORTS
Diversion from criminal justice system of minor, orphaned foreign child
The accused, a Malawian national, had been convicted of certain minor immigration offences. He had however been convicted on the understanding that he was 18 years old, when he was in fact 17 years of age. On review the matter was set aside for want of compliance with the Child Justice Act 75 of 2008. The reviewing court further stressed that, given the accused’s circumstances—he was a minor, orphaned foreign child—a thorough investigation into his background was required. Diversion from the criminal justice system was appropriate, and this had to be investigated. S v HJ 2016 (1) SACR 629 (KZD).
Sentencing for first offenders of white-collar crime
The accused had been convicted on multiple accounts of fraud and had originally been sentenced to five years’ imprisonment, which was wholly suspended for five years. The appeal court addressed the appropriateness of such a sentence and remarked (while not overturning the sentence imposed) that imprisonment for first offenders charged with white-collar crimes ought to be imposed in suitable cases. The matter also dealt with the right of the state to appeal against the alteration of a sentence by a High Court sitting as a court of appeal. DPP Western Cape v Kock 2016 (1) SACR 539 (SCA).
Appropriate sentence for a young offender having committed a violent crime
The accused, a young offender, had been convicted of murder and robbery with aggravating circumstances, and was sentenced to life imprisonment. The appeal court addressed the appropriateness of the sentence and found it to be not shockingly inappropriate: the accused displayed a propensity to commit violent crimes, and this in case had brazenly broke into the home of a frail, elderly man and strangled him. S v Vananda 2016 (1) SACR 592 (WCC).
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SOUTH AFRICAN LAW REPORTS
TABLE OF CASES
MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND OTHERS v SOUTHERN AFRICA LITIGATION CENTRE AND OTHERS (SCA)
LEWIS JA, MAJIEDT JA, PONNAN JA, SHONGWE JA and WALLIS JA
2016 FEBRUARY 12; MARCH 15
International law - International criminal law—International Criminal Court—Arrest warrant—Binding on South African state—Implementation of Rome Statute of the International Criminal Court Act 27 of 2002, s 4(2) and s 10(9).
International law - International criminal law—Immunity—Head-of-state immunity—International-crimes exception—Impossible to assert such exception at present—But South Africa bound to execute warrants issued by International Criminal Court—Implementation of Rome Statute of the International Criminal Court Act 27 of 2002, s 4(2) and s 10(9).
International law - Diplomatic immunity—Discretion of minister to grant immunity—Yielding to obligation of South African state to execute arrest warrants issued by International Criminal Court—Diplomatic Immunities and Privileges Act 27 of 2001, s 4(1)(a); Implementation of Rome Statute of the International Criminal Court Act 27 of 2002, s 4(2) and s 10(9).
Practice - Parties—Amici curiae—Supreme Court of Appeal—Admission and right to make oral submissions—Admission not giving rise to right to make oral submissions, which may be allowed at discretion of court hearing appeal—New contentions required—What constitute—Supreme Court of Appeal Rules, rule 16.
MOLUSI AND OTHERS v VOGES NO AND OTHERS (CC)
MOGOENG CJ, MOSENEKE DCJ, CAMERON J, JAFTA J, KHAMPEPE J, MADLANGA J, NKABINDE J, NUGENT AJ and ZONDO J
2015 NOVEMBER 12; 2016 MARCH 1
Land - Land reform—Statutory protection of tenure—Protected occupation of land—Limitation of owner’s powers to terminate residence and evict—Importation of principles of equity and fairness—Balance of hardship—Owner relying on common-law ground that was not pleaded—Unfair and impermissible—Extension of Security of Tenure Act 62 of 1997, s 8(1) and s 9.
Housing - Right to housing—Statutory protection of tenure—Landlord’s common-law right to terminate lease—Subordinate to requirements of ESTA—Extension of Security of Tenure Act 62 of 1997, s 8(1) and s 9.
Land - Ownership—Limitation—Statutory curtailment of rei vindicatio—Common-law principle of rei vindicatio subject to requirements of Extension of Security of Tenure Act 62 of 1997, s 8(1) and s 9.
GRIFFITHS v JANSE VAN RENSBURG AND ANOTHER NNO (SCA)
SHONGWE JA, PILLAY JA, PETSE JA, SALDULKER JA and GORVEN AJA
2015 SEPTEMBER 1; OCTOBER 26
Insolvency - Voidable dispositions—Voidable preference—What constitutes—Disposition in terms of void agreement—Whether in ordinary course of business—Insolvency Act 24 of 1936, s 29(1).
Insolvency - Voidable dispositions—Voidable preference—What constitutes—Semble: Payment under condictio ob turpem vel iniustam causam could be disposition in ordinary course of business—Insolvency Act 24 of 1936, s 29(1).
Insolvency - Voidable dispositions—Voidable preference—Interest—Debt created when court sets aside disposition and declares right to recover property—Mora begins and mora interest runs from this date—Insolvency Act 24 of 1936, s 32(3).
ANGLO PLATINUM MANAGEMENT SERVICES (PTY) LTD v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE (SCA)
CACHALIA JA, LEACH JA, TSHIQI JA, PILLAY JA and MBHA JA
2015 NOVEMBER 5, 30
Revenue - Income tax—Gross income—‘Gross income’ as defined in s 1 of Income Tax Act 58 of 1962—Taxable benefit as contemplated in para (i) read with seventh schedule—Whether scheme of sacrificing salaries in return for use of company motor vehicle constituted such taxable benefit—Objective test applied.
BR AND ANOTHER v TM (GJ)
2015 JUNE 9; AUGUST 13
Marriage - Divorce—Contemporaneous motion proceedings—Defendant in pending divorce proceedings seeking declaration as to paternity and parental rights and responsibilities of spouse—Such issues in dispute in pending divorce action—Impermissible to seek to resolve issues already in dispute in pending divorce action by way of separate, contemporaneous motion proceedings—Children’s Act 38 of 2005, s 28.
ABSA BANK LTD v DE BEER AND OTHERS (GP)
2014 NOVEMBER 13, 14; 2015 DECEMBER 18
Credit agreement - Consumer credit agreement—Reckless credit—What constitutes—Credit provider not taking reasonable steps to assess proposed consumer’s existing financial situation—Reasonable steps meaning that assessment must be done reasonably, not irrationally—In present case, irrational to have taken surety’s income into account in assessing proposed consumer’s existing financial means—Credit agreement subsequently entered into declared reckless credit—National Credit Act 34 of 2005, ss 80(1) and 81(2)(a).
Credit agreement - Consumer credit agreement—Reckless credit—What constitutes—Credit provider not having reasonable basis for concluding commercial purpose of credit agreement may be successful—National Credit Act 34 of 2005, ss 80(1); 81(2)(b).
Credit agreement - Consumer credit agreement—Reckless credit—Remedy—Court’s discretion to suspend or set agreement aside—In present case ‘just and reasonable’ to set all consumer’s rights and obligations aside—National Credit Act 34 of 2005, ss 81(2) and 83(2)(a).
NON-DETONATING SOLUTIONS (PTY) LTD v DURIE AND ANOTHER (SCA)
MHLANTLA JA, THERON JA, PETSE JA, MBHA JA and VAN DER MERWE AJA
2015 AUGUST 24; OCTOBER 2
Discovery and inspection - Anton Piller orders—Nature—Requirement of specificity—Degree of specificity required.
JOROY 4440 CC v POTGIETER AND ANOTHER NNO (FB)
2015 NOVEMBER 19; 2016 JANUARY 28
Consumer protection - Enforcement of consumer rights under CPA—Jurisdiction of courts limited—All other statutory remedies must first be exhausted—Consumer Protection Act 68 of 2008, s 69(d).
DEMOCRATIC ALLIANCE v SOUTH AFRICAN BROADCASTING CORPORATION SOC LTD AND OTHERS (WCC)
2015 OCTOBER 12; NOVEMBER 27
Review - Grounds—Rationality—Decision by minister to accept recommendation by board of SABC to appoint acting chief operating officer to permanent position—Public Protector having released report citing instances of misconduct, and recommending disciplinary action against appointee—Law providing that findings of Public Protector binding—In making decision, with knowledge of report, which binding on SABC and minister, minister acting irrationally.
Review - Grounds—Rationality—Decision by minister to accept recommendation by board of SABC to appoint acting chief operating officer to permanent position—Public Protector having released report placing qualifications and integrity of appointee in doubt, and recommending disciplinary action against appointee—Board and minister relying on parallel investigation and report exonerating appointee of wrongdoing, which report not adequately responding to findings in Public Protector’s report—On assumption that findings of Public Protector not binding, whether conduct rational—Broadcasting Act 4 of 1999, s 13(4).
DEMOCRATIC ALLIANCE v SPEAKER, NATIONAL ASSEMBLY AND OTHERS (CC)
MOSENEKE DCJ, CAMERON J, JAFTA J, KHAMPEPE J, MADLANGA J, NKABINDE J, NUGENT AJ, VAN DER WESTHUIZEN J AND ZONDO J
2015 NOVEMBER 5; 2016 MARCH 18
Constitutional law - Legislation—Validity—Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004, s 11—Arrest and removal of any person creating or joining disturbance during parliamentary, house or committee sittings—Provision limiting members’ parliamentary privileges of free speech and against arrest—Provision amended by insertion of words ‘other than a member’ after words ‘any person’.
Parliament - Members—Privileges—Of free speech and against arrest—Violated by provision in s 11 of Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 allowing arrest and removal of ‘any person’ creating a ‘disturbance’—Provision amended by insertion of words ‘other than a member’ after words ‘any person’—Constitution, ss 58(1) and 71(1).
MASHONGWA v PASSENGER RAIL AGENCY OF SOUTH AFRICA (CC)
MOGOENG CJ, MOSENEKE DCJ, CAMERON J, JAFTA J, KHAMPEPE J, MADLANGA J, MATOJANE AJ, NKABINDE J, VAN DER WESTHUIZEN J, WALLIS AJ and ZONDO J
2015 AUGUST 6; NOVEMBER 26
Delict - Elements—Unlawfulness or wrongfulness—Liability for omission—Failure to post guard on passenger train—Failure to close carriage’s doors.
EX PARTE CONCATO AND SIMILAR CASES (WCC)
2014 NOVEMBER 6; 2015 FEBRUARY 25; SEPTEMBER 18
Insolvency - Voluntary surrender—Application—Multiple applications brought on batch basis—Permissible, provided applications dealt with on merits, were bona fide, and not shoehorned into predetermined formula designed only to achieve a favourable result.
Insolvency - Voluntary surrender—Application—Requirement that surrender be to advantage of creditors—Strong likelihood that order of voluntary surrender would result in buy-back agreement under which insolvent would buy back assets at forced-sale value in instalments—Unlikely to be in best interests of body of creditors.
Insolvency - Voluntary surrender—Application—Requirement that surrender be brought in good faith—Where outcome of order of voluntary surrender predetermined—Lack of good faith.
NEDBANK LTD v NORRIS AND OTHERS (ECP)
GOOSEN J and BESHE J
2015 NOVEMBER 20; 2016 MARCH 1
Court - High Court—Jurisdiction—Local division—Review of decision of magistrates’ court—Local seat of division having jurisdiction to review decisions of magistrates’ court within its territorial limits—Superior Courts Act 10 of 2013, ss 14, 21(1) and 22(1).
Credit agreement - Consumer credit agreement—Debt rearrangement—Order—Where such that consumer not obliged to pay full outstanding amount, and not covering monthly payments to be made on consumer’s behalf by credit provider in respect of insurance cover—Order failing to meet purposes of Act—National Credit Act 34 of 2005, ss 86(7)(c) and 87(1).
ECONOMIC FREEDOM FIGHTERS v SPEAKER, NATIONAL ASSEMBLY AND OTHERS (CC)
MOGOENG CJ, MOSENEKE DCJ, BOSIELO AJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MHLANTLA J, NKABINDE J and ZONDO J
2015 FEBRUARY 9; MARCH 31
Constitutional law - Chapter 9 institutions—Public Protector—Powers—To take appropriate remedial action—Legal status and effect—Constitution, ss 182(1)(c).
Constitutional law - Separation of powers—Between legislature and judiciary—Legislature’s obligation to scrutinise and oversee executive action and to hold it accountable—Outside parameters of judicial authority to prescribe to legislature how to discharge such obligation—Constitution, ss 42(3) and 55(2).
Constitutional law - State President—Obligations—To uphold, defend and
Constitutional law - Parliament—Obligations—To scrutinise and oversee executive action, to hold executive accountable, and to assist and protect ch 9 institutions—Not ensuring compliance with binding remedial action taken against President by Public Protector inconsistent with such duties—Constitution, ss 42(3), 55(2), 181(3) and 182(1)(c).
Constitutional practice - Courts—Constitutional Court—Jurisdiction—Exclusive jurisdiction to decide whether Parliament or President failed to fulfil constitutional obligation—Nature of constitutional obligation activating exclusive jurisdiction—Not obligation shared with other state organs but actor-specific—Whether President’s failure to comply with remedial action taken by Public Protector against him, activating court’s exclusive jurisdiction—Whether National Assembly’s failure to take action on Public Protector’s report,activating court’s exclusive jurisdiction—Constitution, ss 167(4)(e), 42(3), 55(2), 83(b), 181(3) and 182(c).
VAN DEVENTER AND ANOTHER v NEDBANK LTD (WCC)
ROGERS J and NUKU AJ
2016 MARCH 18, 30
Prescription - Extinctive prescription—Delay in completion—Debtor a close corporation—Where debt is the object of a claim filed against a close corporation in liquidation—Whether prescription delayed—Prescription Act 68 of 1969, s 13(1)(g).
SOUTH AFRICAN CRIMINAL LAW REPORTS
TABLE OF CASES
DPP WESTERN CAPE v KOCK (SCA)
NAVSA JA, LEWIS JA, PILLAY JA, MBHA JA and ZONDI JA
2015 NOVEMBER 20; DECEMBER 1
Appeal - By Director of Public Prosecutions—Against alteration of sentence by High Court sitting as court of appeal—DPP having no such right of appeal.
Sentence - White-collar crime—Imprisonment—First offenders—Imprisonment for first offenders ought to be imposed in suitable cases.
S v MOORE (GP)
D PILLAY J and BEZUIDENHOUT AJ
2015 MARCH 23; APRIL 20
Prevention of crime - Confiscation order in terms of Prevention of Organised Crime Act 121 of 1998—Benefits of crime—Restricted to profit or gain and not entire proceeds of crime.
S v DJ (SCA)
RANCHOD J and MNGQIBISA-THUSI J
2015 DECEMBER 14
Maintenance - Conversion of trial to enquiry—In which circumstances—After conviction but before sentence—Conviction needs to be set aside before it can be converted into enquiry—Maintenance Act 99 of 1998, ss 31 and 41.
GAMA ARMS CC v MINISTER OF POLICE AND OTHERS (GJ)
VAN OOSTEN J
2015 FEBRUARY 10, 12
Arms and ammunition - Dealer in firearms—Licence—Termination of—Initial investigation in terms of s 42 of Firearms Control Act 60 of 2000 not requiring that police official conduct hearing.
S v GONGQOSE AND OTHERS (ECM)
MBENENGE J and GRIFFITHS J
2015 NOVEMBER 13; 2016 FEBRUARY 18
Conservation - Fishing—Within marine reserve in contravention of Marine Living Resources Act 18 of 1998, s 43(2)(a)—Customary rights accorded to appellants not negating unlawfulness.
Conservation - Fishing—Within marine reserve in contravention of Marine Living Resources Act 18 of 1998, s 43(2)(a)—Constitutionality of provision in respect of conflict with customary rights to exploit marine resources—Nothing in provision offending against Constitution.
S v NTLANYENI (SCA)
TSHIQI JA, WALLIS JA, DAMBUZA JA, PLASKET AJA and TSOKA AJA
2016 FEBRUARY 15, 25
Appeal - Leave to appeal—Reconsideration of—Delay in bringing application—Authority of President of SCA to reconsider not time-bound but exceptional circumstances must exist—Superior Courts Act 10 of 2013, s 17(2)(f).
S v CS (WCC)
MEER J, HENNEY J and KLOPPER AJ
2016 FEBRUARY 26; MARCH 9
Child - Sentence—Imprisonment—Fifteen-year-old accused, convicted of cold-blooded murder, not showing any remorse and refusing to take responsibility for actions—Conduct during detention in child and youth care centre awaiting trial militating against sentence of compulsory residence in such centre—Sentence of eight years’ imprisonment imposed.
S v VANANDA (WCC)
ERASMUS J and RILEY AJ
2015 MARCH 6
Sentence - Life imprisonment—When appropriate—Young offender displaying propensity to commit violent crimes by brazenly breaking into home of frail, elderly man and strangling him—Life imprisonment not shockingly inappropriate.
S v GANGA (WCC)
YEKISO J and RILEY AJ
2015 NOVEMBER 18
Sexual offences - Proof of—Admissibility of complaint made by complainant—Complaint made only after child victim threatened by mother—Rule that evidence of complaint inadmissible where not made voluntarily should not be applied inflexibly—Careful examination of all facts and circumstances required.
Sentence - Life imprisonment—When appropriate—Life sentence reserved for cases devoid of substantial factors—In casu, accused convicted of three sexual offences involving young girls—No expert evidence presented of emotional and psychological harm—Cumulative effect of accused’s personal circumstances not considered—Sentence replaced with sentence of 15 years’ imprisonment.
S v MABASO (SCA)
LEACH JA, ZONDI JA and FOURIE AJA
2016 MARCH 2, 23
Evidence - Of pointing-out—Admissibility—Pointing-out, as well as certain statements made during pointing-out—Accused not given opportunity to obtain requested legal advice before pointing-out—Interpreted statement not read back—Statements amounting to confession—Right to fair trial requiring exclusion of both pointing-out and statements.
S v MAFIKA (FB)
VAN ZYL ADJP and EBRAHIM J
2016 FEBRUARY 4
Trial - Accused—Legal representation of—Legal representative withdrawing at outset of trial and accused requesting legal representation since he did not understand charge—Magistrate proceeding with trial despite accused lacking such representation—Gross irregularity amounting to failure of justice—Proceedings set aside.
S v HJ (KZD)
CHETTY J and JEFFREY AJ
2015 SEPTEMBER 15
Child - Diversion of—From criminal justice system—Orphaned foreign child charged with being in South Africa without valid permit—Thorough investigation required of background; what became of parents; how and for what reason entered country; and who caring for him—Child’s best interests of paramount importance.
MINISTER OF SAFETY AND SECURITY v BOTHMA AND ANOTHER (ECG)
REVELAS J and LOWE J
2015 SEPTEMBER 11; OCTOBER 8
Arrest - Legality of—Arrest without a warrant—Criminal Procedure Act 51 of 1977, s 40(1)—Reasonable suspicion—What constitutes—Discrepancy between statements of two accused persons—Discrepancy material where commission of crime clearly established.
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