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May 2018

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases in the May law reports.

JUDGMENTS OF INTEREST IN THE MAY 2018 EDITIONS OF THE SALR AND SACR AS WELL AS THE NAMIBIAN LAW REPORTS 2018 (1).

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

 

SOUTH AFRICAN LAW REPORTS

Removal of consumer’s record of debt rearrangement

The removal of consumer’s record of debt rearrangement by a credit bureau or by the credit register, is not a judicial process. It may only be affected through the prescribed administrative process in s 71 of the National Credit Act 34 of 2005. Phaladi v Lamara 2018 (3) SA 265 (WCC).

Validity of lease where building plans not approved and/or occupancy certificate not issued

The Supreme Court of Appeal considers the correctness of the High Court’s decision, that a lease of property without approved building plans and/or valid occupancy certificate (as required by ss 4(1) and 14(1) of the National Building Regulations and Building Standards Act 103 of 1977) was valid but unenforceable. Wierda Road West Properties (Pty) Ltd v Sizwe Ntsaluba Gobodo Inc 2018 (3) SA 95 (SCA).

Duty of to inquire as to marital status of party contracting with

Section 15(9)(a) of the Matrimonial Property Act 88 of 1984 provides that when a spouse in a marriage in community of property enters into a transaction without the consent of the other spouse required  under ss 15(2) or (3), and the other transacting party ‘does not know and cannot reasonably know that the transaction is being entered into contrary to those provisions . . . it is deemed that the transaction concerned has been entered into with the consent required in terms of the said subsection (2) or (3)’. The court considers whether the phrase ‘cannot reasonably know’, imposes a positive duty to enquire as to the marital status of the other contracting party which must be discharged before the deeming clause is triggered. Broodie NO v Maposa and Others 2108 (3) SA 129 (WCC).

 

SOUTH AFRICAN CRIMINAL LAW REPORTS

Notice of regulated gatherings

The section of the Regulation of Gatherings Act 205 of 1993 that requires notice of a regulated gathering (s 12 (1)(a)), held to infringe the rights of freedom assembly and declared unconstitutional. S v Mlungwana and Others 2018 (1) SACR 538 (WCC).

Substantial and compelling circumstances

The Supreme Court of Appeal considers whether a two-year period of incarceration prior to sentencing constitutes substantial and compelling circumstances to reduce a minimum sentence of life imprisonment.  S v Ngocobo 2018 (1) SACR 479 (SCA).

Prisoner’s right to education infringed

Failure by prison authorities to forward an examination entry form to the education authorities, held to amount to an unlawful interference with a prisoner’s right to education. Sigudo v Minister of Higher Education and Others 2018 (1) SACR 485 (GJ).

 

THE NAMIBIAN LAW REPORTS 2017(4)

Costs award against police officers behaving badly

Two police officers are held personally liable for costs of suit on attorney and client scale. Their conduct—engaging in repeated unlawful arrests and detention, and searched and seizures without warrants—was held to have been objectionable, unreasonable, unjustifiable. and oppressive of the plaintiff’s rights. Lazarus v Government of the Republic of Namibia (Ministry of Safety and Security) (2) 2018 (1) NR 56 (HC).

When to raise an alibi

The accused relied, inter alia, on an alibi which he first raised when he testified. The court confirmed that disclosing an alibi at such a late stage might adversely affect the value to be accorded to it. S v Britz 2018 (1) NR 97 (HC).

Variation of custody orders

Disputes regarding the custody of children are never res judicata, and as upper guardian of children  a court is never functus officio. Portions of agreements dealing with custody of children are always subject to variation upon good cause shown, and subject to best interest of child. SK v SK 2018 (1) NR 268 (HC).

 


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 SOUTH AFRICAN LAW REPORTS
 TABLE OF CASES
 
  • Salem Party Club and Others v Salem Community and Others 2018 (3) SA 1 (CC)
  • Basson v Hugo and Others 2018 (3) SA 46 (SCA)
  • Cradle City (Pty) Ltd v Lindley Farm 528 (Pty) Ltd 2018 (3) SA 65 (SCA)
  • Roazar CC v The Falls Supermarket CC 2018 (3) SA 76 (SCA)
  • Waymark Infotech (Pty) Ltd v Road Traffic Management Corporation 2018 (3) SA 90 (SCA)
  • Wierda Road West Properties (Pty) Ltd v Sizwe Ntsaluba Gobodo Inc 2018 (3) SA 95 (SCA)
  • Abrinah 7804 (Pty) Ltd v Kapa Koni Investments CC 2018 (3) SA 108 (NCK)
  • Broodie NO v Maposa and Others 2018 (3) SA 129 (WCC)
  • CDH Invest NV v Petrotank South Africa (Pty) Ltd and Another 2018 (3) SA 157 (GJ)
  • De Kock v Middelhoven 2018 (3) SA 180 (GP)
  • Ex parte CJD and Others 2018 (3) SA 197 (GP)
  • Four Wheel Drive Accessory Distribution CC v Rattan NO 2018 (3) SA 204 (KZD)
  • KM v TM 2018 (3) SA 225 (GP)
  • Makah v Magic Vending (Pty) Ltd 2018 (3) SA 241 (WCC)
  • MEC for Co-operative Governance and Traditional Affairs v Maphanga 2018 (3) SA 246 (KZP)
  • Old Mutual Finance (Pty) Ltd v Makalapetlo 2018 (3) SA 258 (LP)
  • Phaladi v Lamara 2018 (3) SA 265 (WCC)
  • South African Bank of Athens Ltd v Zennies Fresh Fruit CC 2018 (3) SA 278 (WCC)
  • South African Human Rights Commission v Masuku and Another 2018 (3) SA 291 (GJ)
  • FirstRand Bank Ltd v Cowin NO and Others 2018 (3) SA 322 (GP)
 
 FLYNOTES
 

SALEM PARTY CLUB AND OTHERS v SALEM COMMUNITY AND OTHERS (CC)

ZONDO DCJ, CAMERON J, FRONEMAN J, JAFTA J, KATHREE-SETILOANE AJ, KOLLAPEN AJ, MADLANGA J, MHLANTLA J, THERON J and ZONDI AJ
2017 DECEMBER 11

Land - Land reform—Restitution—Claim for restitution of right in land—Claim by community—Deprived of beneficial occupation and customary interest—Whether owner’s predecessors’ title and control precluding acquisition of indigenous rights by claimants—Existence of parallel rights in land recognised—Restitution of Land Rights Act 22 of 1994, s 2(1)(d).

Land - Land reform—Claim for restitution of right in land—Claim by community—Dispossession—Subdivision of land by court order without consultation with inhabitants—Restitution of Land Rights Act 22 of 1994, s 2(1)(d).

Land - Land reform—Claim for restitution of right in land—Evidence—Court may admit any relevant evidence, even if inadmissible in other court—While court’s approach to evidence to take account of distinctive nature of land claims, ordinary standard of proof applying—Restitution of Land Rights Act 22 of 1994, s 30(1) and (2).

 

BASSON v HUGO AND OTHERS (SCA)

SHONGWE AP, SERITI JA, SWAIN JA, MOKGOHLOA AJA and SCHIPPERS AJA
2018 JANUARY 17

Administrative law - Administrative action—Review—Duty to exhaust internal remedy before instituting proceedings for judicial review—Exceptional circumstances exempting from duty—Ineffective internal remedy—Doctor asking members of professional conduct committee to recuse themselves for bias but they refusing—Whether doctor obliged to appeal refusal to appellate committee before instituting review thereof—Health Professions Act 56 of 1974, s 10(3); Promotion of Administrative Justice Act 3 of 2000, s 7(2).

CRADLE CITY (PTY) LTD v LINDLEY FARM 528 (PTY) LTD (SCA)

NAVSA ADP, TSHIQI JA, PETSE JA, TSOKA AJA and MBATHA AJA
2017 DECEMBER 6

Land - Sale—Contract—Reciprocity of obligations—Seller unable to provide vacant occupation as agreed—Purchaser refusing to pay balance of purchase price—Seller instituting action—Obligations interlinked—Exceptio non adimpleti contractus available—Purchaser electing to persist in agreement—Appropriate remedy—Judgment in favour of seller suspended until able to provide vacant occupation.

ROAZAR CC v THE FALLS SUPERMARKET CC (SCA)

TSHIQI JA, MAJIEDT JA, PLASKET AJA, MOKGOHLOA AJA and MBATHA AJA
2017 NOVEMBER 29

Contract - Legality—Constitutionality—Importation of constitutional principles into law of contract—Good faith and ubuntu—Duty to negotiate in good faith—In purely business transaction, not competent for court to import term obliging parties to negotiate in good faith, where such term not intended by parties.

WAYMARK INFOTECH (PTY) LTD v ROAD TRAFFIC MANAGEMENT CORPORATION (SCA)

LEWIS JA, SERITI JA, MATHOPO JA, DAVIS AJA and PLASKET AJA
2018 MARCH 6

Government procurement - Contract—For computing services, running over three years—Whether binding institution to future financial commitment—Public Finance Management Act 1 of 1999, ss 66(1), 66(3)(c) and 68.

WIERDA ROAD WEST PROPERTIES (PTY) LTD v SIZWE NTSALUBA GOBODO INC (SCA)

CACHALIA JA, MAJIEDT JA, PLASKET AJA, MEYER AJA and MBATHA AJA
2017 DECEMBER 1

Lease - Validity—Whether lease invalidated by absence of approved building plan or occupancy certificate—National Building Regulations and Building Standards Act 103 of 1977, ss 4(1) and 14(1).

ABRINAH 7804 (PTY) LTD v KAPA KONI INVESTMENTS CC (NCK)

PHATSHOANE ADJP, OLIVIER J and PAKATI J
2017 DECEMBER 1

Land - Sale—Contract—Conditions—Suspensive condition—Condition that purchaser obtain bank loan equal to purchase price before certain date—Date passing and seller, in writing, giving purchaser another two weeks to comply—Seller then cancelling even though purchaser complied during extension period—Court finding that contract irrevocably lapsed when condition not met before initial expiry date—No subsequent ‘revival’ possible—No recourse to equity—Cancellation valid.

BROODIE NO v MAPOSA AND OTHERS (WCC)

BINNS-WARD J
2018 FEBRUARY 19

Marriage - Proprietary rights—Community of property—Powers of spouses—Alienation of property without consent of spouse—Where other transacting party ‘cannot reasonably know’ spouse contracting without required consent—Other party not always under positive duty to inquire as to marital status of party contracting with—Whether other party under such duty determined by circumstances of each case—Matrimonial Property Act 88 of 1984, s 15(9)(a).

CDH INVEST NV v PETROTANK SOUTH AFRICA (PTY) LTD AND ANOTHER (GJ)

VAN DER LINDE J
2017 NOVEMBER 17

Company - Directors and officers—Director—Fiduciary duty—Ambit—Powers of directors to increase authorised shares, or to issue shares, subject to fiduciary duty to act bona fide, for proper purpose, and in best interests of company—Nature of test to be applied—Relevant considerations—Companies Act 71 of 2008, ss 36(3), 38(1) and 76(3).

Company - Shares and shareholders—Shareholders—Meetings—Application to court in terms of s 61(12) for order requiring company to convene meeting—Court intervention not simply there for asking—Unless special circumstances requiring otherwise, court having to be satisfied that calling members’ meeting bona fide intended, with legitimate purpose, and in best interests of company—Companies Act, s 61(12).

DE KOCK v MIDDELHOVEN (GP)

MABUSE J
2017 OCTOBER 12

Practice - Pleadings—Amendment—Application—Form—Rule 28(4) postulating two procedures by which party might approach court for leave to amend—One, by substantive application for leave to amend, and another by simply orally applying for leave to amend on day of hearing—Choice up to discretion of applicant—Uniform Rules of Court, rule 28(4).

EX PARTE CJD AND OTHERS (GP)

TOLMAY J
2017 NOVEMBER 17

Children - Surrogacy—Surrogate motherhood agreement—Confirmation—Application for—Information to be disclosed about family unit—Children’s Act 38 of 2005, ss 292 and 295(e).

FOUR WHEEL DRIVE ACCESSORY DISTRIBUTION CC v RATTAN NO (KZD)

D PILLAY J
2017 JULY 4

Contract - Enforcement—Public policy—Standard form agreement—Text too small to read.

KM v TM (GP)

THOMPSON AJ
2017 NOVEMBER 20

Marriage - Divorce—Proprietary rights—Marriage in community of property—Adjustment in terms of s 15(9)(b) of Matrimonial Property Act—Can only be ordered by court when granting divorce—Receiver/liquidator cannot itself decide whether adjustment to be made—Adjustment must be properly ventilated in pleadings and in evidence—Matrimonial Property Act 88 of 1984, s 15(9)(b).

MAKAH v MAGIC VENDING (PTY) LTD (WCC)

HENNEY J and SALIE-HLOPHE J
2017 MAY 16

Consumer protection - Consumer agreement—Cancellation—By supplier—20-day notice period—Not applicable to month-to-month residential lease—Only applicable to fixed-term agreements—Consumer Protection Act 68 of 2008, s 14(2)(b)(ii).

MEC FOR CO-OPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS v MAPHANGA (KZP)

GORVEN J
2017 DECEMBER 7

Court - Process—Vexatious proceedings—Common law and Act—Respective scope of application—Meaning of ‘persistently. . . instituted’—Vexatious Proceedings Act 3 of 1956, s 2(1)(b).

OLD MUTUAL FINANCE (PTY) LTD v MAKALAPETLO (LP)

MAKGOBA JP, MOKGOHLOA DJP and MULLER J
2017 DECEMBER 6

Court - High Court—Jurisdiction—Review jurisdiction—High Court having no inherent power to review irregular judgments of magistrates’ courts.

Magistrates’ court - Powers—Court may not mero motu refer civil judgment of magistrate or clerk of court to High Court for review—Court faced with irregular judgment should instead point out irregularity to affected parties and advise them that matter reviewable by High Court—Judgment may also be rescinded at instance of judgment debtor.

PHALADI v LAMARA (WCC)

BINNS-WARD J
2018 JANUARY 12

Credit agreement - Consumer credit agreement—Consumer credit records—Removal of record of debt rearrangement by credit bureau or national credit register—Not judicial process—May only be effected through prescribed administrative process—National Credit Act 34 of 2005, s 71.

SOUTH AFRICAN BANK OF ATHENS LTD v ZENNIES FRESH FRUIT CC (WCC)

KUSEVITSKY AJ
2018 FEBRUARY 1

Company - Business rescue—Termination—Rejection of proposed business rescue plan—What constitutes—Adjournment of creditors’ meeting without voting to approve plan on preliminary basis—Not amounting to rejection of plan—Companies Act 71 of 2008, ss 152(1)(d)(ii),152(1)(e) and 152(3)(a).

Company - Business rescue—Termination—Failure by business rescue practitioner to apply for extension of business rescue where not ending within three months of commencement—Where, as in present case, delay unreasonable, order terminating business rescue justified—Companies Act 71 of 2008, s 132(3).

SOUTH AFRICAN HUMAN RIGHTS COMMISSION v MASUKU AND ANOTHER (GJ)

MOSHIDI J
2017 JUNE 29

Equality legislation - Hate speech—What constitutes—Anti-Zionist statements and threats—In context of present case, constituting hate speech targeting Jewish people—Not valid defence that offending statements were true or fair comment on matters of public interest—How statement perceived relevant, not intention with which made—Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, s 10(1).

FIRSTRAND BANK LTD v COWIN NO AND OTHERS (GP)

BAQWA J
2017 JULY 24

Company - Winding-up—Creditors—Locus standi—Whether s 387(4) giving creditor F standing to bring application to resolve whether creditor N or company in liquidation owned debts—Liquidators not resolving issue and refusing to approach court to do so—Companies Act 61 of 1973, s 387(4).

 

 SOUTH AFRICAN CRIMINAL LAW REPORTS
 TABLE OF CASES
  
  • S v Ngcobo 2018 (1) SACR 479 (SCA)
  • Sigudo v Minister of Higher Education and Others 2018 (1) SACR 485 (GJ)
  • S v Okah 2018 (1) SACR 492 (CC)
  • S v Jordaan and Others 2018 (1) SACR 522 (WCC)
  • S v Mlungwana and Others 2018 (1) SACR 538 (WCC)
  • S v Nel and Others 2018 (1) SACR 576 (GJ)
  • S v Blignaut and Others 2018 (1) SACR 587 (ECP)
 
 FLYNOTES
 

S v NGCOBO (SCA)

WALLIS JA, PILLAY AJA and SCHIPPERS AJA
2018 FEBRUARY 15, 23

Rape - Sentence—Life imprisonment—Minimum sentence in terms of Criminal Law Amendment Act 105 of 1997—Substantial and compelling circumstances—What constitutes—Effect of two-year period of incarceration prior to sentencing.

SIGUDO v MINISTER OF HIGHER EDUCATION AND OTHERS (GJ)

WILLIS AJ
2017 APRIL 21; 2018 JANUARY 10

Prisoner - Rights of—Right to education—Unlawful interference with amounting to constitutionally invalid act—Failure of prison authorities to forward examination entry form to educational authorities.

S v OKAH (CC)

ZONDO ACJ, CAMERON J, FRONEMAN J, JAFTA J, KATHREE-SETILOANE AJ, KOLLAPEN AJ, MADLANGA J, MHLANTLA J, THERON J and ZONDI AJ
2017 NOVEMBER 28; 2018 FEBRUARY 23

International co-operation to combat terrorism - Extraterritorial jurisdiction—Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004—Exemption from definition of terrorism for acts done in furtherance of legitimate rights in accordance with principles of international humanitarian law in terms of s 1(4) of Act—What constitutes—Two double-car bombings aimed at civilian targets in Nigeria planned and bankrolled from South Africa—Not qualifying for exemption under provision.

S v JORDAAN AND OTHERS (WCC)

BINNS-WARD J
2017 NOVEMBER 16 

Arms and Ammunition - Unlawful possession of firearm in contravention of s 3(1) of Firearms Control Act 60 of 2000—Firearm of unknown calibre and make—Proof that device constituting firearm—Description of device, its use in incident and consequences of firing shot sufficient without expert evidence.

Words and phrases - ‘Planned or premeditated’—Meaning of in s 51(1) read with part 1 of sch 2 to Criminal Law Amendment Act 105 of 1997.

S v MLUNGWANA AND OTHERS (WCC)

NDITA J and MAGONA AJ
2018 JANUARY 24

Public order offences - Public gatherings and meetings—Organising gathering without giving notice—Section 12(1)(a) of Regulation of Gatherings Act 205 of 1993 infringing right to freedom of assembly in s 17 of Constitution in requiring notice, and provision accordingly unconstitutional.

S v NEL AND OTHERS (GJ)

PETERSEN AJ
2017 OCTOBER 16, 17

Bail - Application for—Procedure—Timeous ruling to be made on applicable schedule or section of Criminal Procedure Act 51 of 1977.

Bail - Refusal of—In terms of s 60(4)(c) of Criminal Procedure Act 51 of 1977 because of attempt to conceal or destroy evidence—Legal representative of accused having visited hospital where complainants treated and privy to their treatment information—No grounds for holding this highly irregular behaviour against accused.

Bail - Refusal of—In terms of s 60(4)(e) of Criminal Procedure Act 51 of 1977 because of possible disturbance of public order—Court to take cognisance of high demands set by s 60(4)(e) read with s 60(8A).

S v BLIGNAUT AND OTHERS (ECP)

MAKAULA J
2017 NOVEMBER 20, 21

Conservation - Fishing—Abalone—Sentence—Accused, foreign nationals, working on farm where abalone processed—At time of arrest, 37 356 units of abalone on farm—Accused offering to pay for own deportation—Accused each sentenced to total of 13 years’ imprisonment, totally suspended for five years.

 

 THE NAMIBIAN LAW REPORTS 2018 (1)
 TABLE OF CASES
  TABLE OF CASESTABLE OF CASES  
  • South African Poultry Association and Others v Minister of Trade and Industry and Others 2018 (1) NR 1 (SC)
  • Namibia National Teachers Union and Others v Kayec Trust and Others 2018 (1) NR 21 (HC)
  • Graceland Architects CC v Howard & Chamberlain Architects and Another 2018 (1) NR 34 (HC)
  • Lazarus v Government of the Republic of Namibia (Ministry of Safety and Security) (1) 2018 (1) NR 38 (HC)
  • Lazarus v Government of the Republic of Namibia (Ministry of Safety and Security) (2) 2018 (1) NR 56 (HC)
  • S v VL 2018 (1) NR 67 (HC)
  • S v Thomas and Another 2018 (1) NR 88 (HC)
  • S v Britz 2018 (1) NR 97 (HC)
  • S v January 2018 (1) NR 111 (NLD)
  • S v Ruben 2018 (1) NR 115 (HC)
  • Prollius v Minister of Home Affairs and Immigration and Others and One Similar Case 2018 (1) NR 118 (HC)
  • First National Bank of Namibia v Musheti 2018 (1) NR 144 (HC)
  • Claud Bosch Architects CC v Auas Business Enterprises Number 123 (Pty) Ltd 2018 (1) NR 155 (SC)
  • Bank of Namibia v Small & Medium Enterprises Bank Ltd and Others (1) 2018 (1) NR 175 (HC)
  • Bank of Namibia v Small & Medium Enterprises Bank Ltd and Others (2) 2018 (1) NR 183 (HC)
  • Bank of Namibia v Small & Medium Enterprises Bank Ltd and Others (3) 2018 (1) NR 193 (HC)
  • S v Gaingob and Others 2018 (1) NR 211 (SC)
  • Egerer and Others NO v Executrust (Pty) Ltd and Others 2018 (1) NR 230 (SC)
  • Mclaren NO and Others NNO v Municipal Council of Windhoek and Others 2018 (1) NR 250 (SC)
  • SK v SK 2018 (1) NR 268 (HC)
  • Babyface Civils CC JV Hennimma Investments and Others v //Karas Regional Council and Others 2018 (1) NR 277 (HC)
  • Shiimi v City of Windhoek Municipality Council 2018 (1) NR 292 (HC)
 FLYNOTES
 

SOUTH AFRICAN POULTRY ASSOCIATION AND OTHERS v MINISTER OF TRADE AND INDUSTRY AND OTHERS (SC)

SMUTS JA, MOKGORO AJA and FRANK AJA
2017 NOVEMBER 8; 2018 JANUARY 17

Review - Application—Delay in bringing application—Condonation—Delay unreasonable—Condonation—Delay not so egregious that consideration of merits not warranted—Court a quo not taking merits into account—Criterion to apply—Interests of justice—Factors to be taken into account—Prejudice to administrative functionary, effect on administration of justice, importance of issue raised and prospects of success—Substantial legal issues raised of considerable public importance—Incumbent upon court determining criterion of interest of justice to take merits of review into account in considering condonation application—Condonation granted.

NAMIBIA NATIONAL TEACHERS UNION AND OTHERS v KAYEC TRUST AND OTHERS (HC)

USIKU J
2017 SEPTEMBER 22; DECEMBER 8

Labour law - Strike—Unconditional withdrawal of industrial action and unconditional return to work—Conduct has effect of settling dispute between parties—Clause 2(c) of Code of Good Conduct published in Government Gazette—Appellants wishing to again embark on strike had to follow prescribed procedures de novo.

Labour law - Recognition agreement—Notice of industrial action—Recognition agreement providing for five days’ notice whereas s 74(1)(d) of Labour Act 11 of 2007 prescribed a 48 hours’ notice—Parties to recognition agreement bound by the terms thereof—Section 70(1) of Labour Act—Appellants failing to give five days’ notice—Strike illegal and unprotected—Appeal dismissed.

GRACELAND ARCHITECTS CC v HOWARD & CHAMBERLAIN ARCHITECTS AND ANOTHER (HC)

MILLER AJ
2017 OCTOBER 20, 27

Statute - Interpretation—Architects’ and Quantity Surveyors’ Act 13 of 1979, ss 11 and 13(1)(b)(i)—Intention of legislature—Provisions of Act confined to architectural work performed in Namibia—Act not prohibiting use of architectural work performed elsewhere and used in Namibia—Exception dismissed.

Delict - Damages—Providing wrong legal advice—Mistake in law not actionable in delict—Exception upheld.

LAZARUS v GOVERNMENT OF THE REPUBLIC OF NAMIBIA (MINISTRY OF SAFETY AND SECURITY) (1) (HC)

MASUKU J
2017 MARCH 23; APRIL 18; MAY 23; AUGUST 30

Delict - Damages—Quantum—Wrongful arrest and detention on three occasions and search and seizure without warrants, shooting at plaintiff and impounding his vehicle for 30 weeks—Court taking into account all factors and duration of unlawful detention and attendant conditions—Disregard for fundamental human rights, including the right to liberty and dignity—Violation of arts 6, 7, 8, 11, 12, 13 and 16 of Constitution—High price and value attached to such rights by courts—N$300 000 awarded.

LAZARUS v GOVERNMENT OF THE REPUBLIC OF NAMIBIA (MINISTRY OF SAFETY AND SECURITY) (2) (HC)

MASUKU J
2017 OCTOBER 4, 24; NOVEMBER 22; DECEMBER 1

Costs - Attorney and client costs—Award of—Against two police officers behaving despicably, warranting censure—Repeated unlawful arrests and detention and search and seizure without warrant—Police officers morally and legally obliged to execute their powers, duties and functions conscientiously and lawfully—Officers conduct objectionable, unreasonable, unjustifiable and oppressive of plaintiff’s rights—Police officers personally liable for cost of suit on attorney and client scale.

S v VL (HL)

LIEBENBERG J and USIKU J
2017 NOVEMER 17; DECEMBER 8

Criminal procedure - Appeal—Grounds of appeal—Appellant approached High Court on appeal complaining of procedural irregularities committed by legal representative and presiding magistrate—Appeal to be decided on what was on record.

Criminal procedure - Appeal—In what cases—Accused represented by legal practitioner of choice—Reopening case on ground of error of judgment of legal representative—Very strong case must be made out otherwise it would bring about lack of finality of court judgments which was against public interest.

Criminal procedure - Evidence—Witness—Recalling—When evidence essential—Facts known to accused and legal representative when witnesses testified—Legal representative failing to cross-examine witnesses—Recalling witness not justified under s 167 of the Criminal Procedure Act 51 of 1977.

S v THOMAS AND ANOTHER (HC)

LIEBENBERG J
2017 JUNE 5; JULY 3

Criminal procedure - Presiding officer—Recusal of—Application for recusal made when no evidence had been adduced against applicant—Application solely based on formulation of court order upon conclusion of proceedings in terms of ss 77(4) and 78(4) of Criminal Procedure Act 51 of 1977—Onus on applicant to show reasonable apprehension that objective person would on correct facts reasonably apprehend that judge not impartial—Applicant failing to discharge onus—Application dismissed.

S v BRITZ (HC)

LIEBENBERG J
2017 NOVEMBER 6–10, 16

Criminal procedure - Evidence—Admissions and confessions—Admissibility—Extra-judicial admission—Admissible in terms of 219A of Criminal Procedure Act 51 of 1977—Onus on state of proving admission made voluntarily and not amounting to confession—Admission not required to be reduced to writing during explanation of accused’s rights.

Criminal procedure - Evidence—Assessment of—Alibi—No burden on accused to prove alibi—Reasonable possibility alibi evidence proffered might be true—Court will assess reliability of alibi on totality of evidence—Value of alibi defence adversely affected where accused raising defence for first time when testifying.

S v JANUARY (NLD)

DAMASEB JP and TOMMASI J
2016 JULY 27; 2017 JULY 11

Criminal procedure - Trial—Discharge of accused at close of state’s case—Criminal Procedure Act 51 of 1977, s 174—Court on appeal may interfere if court a quo acted mala fide or with ulterior motive or did not apply its mind—Prima facie evidence adduced that substance found was cannabis—Court erred in finding insufficient evidence adduced—Discharge set aside and matter remitted to trial court.

S v RUBEN (HC)

NDAUENDAPO J
2017 MAY 18; JUNE 20

Criminal procedure - Sentence—Murder—Domestic violence—Aggravating factor in sentencing—Violence against women reached crisis point and continuing unabatedly—Imposition of severe sentences required.

PROLLIUS v MINISTER OF HOME AFFAIRS AND IMMIGRATION AND OTHERS AND ONE SIMILAR CASE (HC)

UEITELE J
2017 JUNE 29; OCTOBER 5; NOVEMBER 24

Domicile - Common law—Abandonment of domicile of origin—Acquisition of new domicile of choice—Requirements—Lawful physical presence and intention of remaining in country for unlimited period—Physical presence required proof that person has home or has been permanently resident in Namibia—Applicants lawfully present in Namibia by virtue of temporary rights of residence as holders of employment permits in terms of s 27 of Immigration Control Act 7 of 1993 for respectively seven and eight years—Applicants acquired homes, businesses and intended staying in Namibia permanently.

Statute - Interpretation—Presumption against legislature altering common law more than necessary—Altering common law required clear and unambiguous language—Sections 1 and 22(1)(d) read with s 22(2)(b) of Immigration Control Act 7 of 1993 (Act) not excluding applicants from being domiciled in Namibia where applicants also having intention of residing in Namibia for an unlimited period—Computation of lawful residence period—Period of residence by virtue of permit issued under ss 11, 27, 28 or 29 of Act taken into account when computing period of lawful residence in Namibia—Applicants lawfully resident in Namibia for more than two years—Applicants entitled to order declaring them domiciled in Namibia.

FIRST NATIONAL BANK OF NAMIBIA v MUSHETI (HC)

ANGULA DJP
2017 SEPTEMBER 29; OCTOBER 18

Practice - Judgments and orders—Stay of High Court Rule 108(1)(b) proceedings pending salary payment—Judicial discretion of court to stay proceedings sparingly exercised in exceptional circumstances, taking into account prejudice to debtor and creditor—Factors constituting exceptional circumstances—Debtor’s wrongful dismissal and reinstatement, his ability to pay arrears and future instalments, prejudice and hardship if stay of execution of debtor’s primary home not granted, possibility of reinstatement or renegotiating new agreement with bank—Stay granted.

CLAUD BOSCH ARCHITECTS CC v AUAS BUSINESS ENTERPRISES NUMBER 123 (PTY) LTD (SC)

MAINGA JA, SMUTS JA and HOFF JA
2017 NOVEMBER 3; 2018 FEBRUARY 6

Statute - Interpretation—Architects’ and Quantity Surveyors’ Act 13 of 1979, s 13(1)(b)—Legislature’s intention—Interpreted from entire statute construed as a whole—Registration of architects required to perform work, to render them subject to disciplinary action for improper conduct and prohibiting persons not registered as architects from performing reserved work for gain—Regulation 4(1)(kk) promulgated under Act expressly authorising registered architects to practise in legal entity—Legal entity entitled to conclude agreements for architectural services—Work to be performed by a registered architect—Prohibition in s 13(1)(b) creating criminal offence to be restrictively construed.

Contract - Legality—Illegal contract—Non-natural person not expressly prohibited from entering into agreement providing architectural services performed by registered architect—Prohibition against performance of work by unregistered person and non-natural person—Work done by registered architect—Respondent could not escape payment for work duly executed—Architects’ and Quantity Surveyors’ Act 13 of 1979, s 13(1)(b)—Appeal dismissed.

BANK OF NAMIBIA v SMALL & MEDIUM ENTERPRISES BANK LTD AND OTHERS (1) (HC)

PRINSLOO J
2017 JULY 6, 7

Company - Winding up—Application—Lodging of—Provisions of s 351(4) of Companie Act 28 of 2004 peremptory—Application to be lodged with master before presenting it to court—Lodging of application on same day with registrar and master—Evidence not clearly establishing non-compliance with s 351(4)—Court would not speculate—Substantial compliance with s 351(4)—Application not fatally defective.

BANK OF NAMIBIA v SMALL & MEDIUM ENTERPRISES BANK LTD AND OTHERS (2) (HC)

PRINSLOO J
2017 JULY 10, 11

Company - Winding up—Application—Winding up of registered bank—Applicant, after assuming control of first respondent under s 56 of Banking Institutions Act 2 of 1998, applying for provisional winding up order—Bank factually and commercially insolvent—No resources available for recapitalisation of bank—Bank’s substratum fell away—Unable to conduct business as banking institution as provided in s 1 of Banking Institutions Act.

Company - Winding up—Grounds—Winding up just and equitable—Section 349(h) of Companies Act 28 of 2004—Wide discretionary power exercised judicially, taking into account all relevant circumstances, including competing interests of all concerned—Just and equitable to grant provisional winding up order.

BANK OF NAMIBIA v SMALL & MEDIUM ENTERPRISES BANK LTD AND OTHERS (3) (HC)

PRINSLOO J
2017 OCTOBER 18, 19; NOVEMBER 29; DECEMBER 4

Company - Winding up—Application—Final order—Winding up of bank—Appointment of liquidators—Liquidators appointed by Master of High Court—Master has sole administrative discretion in appointing liquidators—Discretion could only be attacked in review proceedings on specific grounds—Aggrieved respondents failing to review master’s decision.

Company - Winding up—Application—Final order—Costs of opposition to granting of final order—Test to be applied—Whether or not it could fairly be said that there were no reasonable prospects of successfully opposing order—Respondents mainly raising technical points and contributing unnecessarily to prolixity of papers and associated costs—Court questioning bona fides of respondents’ opposition to order—Respondents ordered to pay costs of opposing final order.

S v GAINGOB AND OTHERS (SC)

SHIVUTE CJ, SMUTS JA, HOFF JA, MOKGORO AJA and FRANK AJA
2017 NOVEMBER 7; 2018 FEBRUARY 6

Constitutional law - Fundamental rights—Dignity—Whether fixed prison sentences of 67 and 64 years infringed upon appellants’ art 8 constitutional right to human dignity or right not to be subjected to cruel, inhuman or degrading treatment or punishment—Sentences infringed upon art 8 rights—Lengthy sentences removed all realistic hope of release in future—Statutory purpose of rehabilitation undermined—Sentences substituted with life imprisonment.

Criminal procedure - Sentence—Imprisonment—Excessively long sentences—Court substituting sentences to life imprisonment—Such sentence not violating appellants’ art 8 constitutional right—Life sentence subject to parole provisions of ss 115 and 117 of Correctional Service Act 9 of 2012—Trial courts should not impose excessively long sentences to circumvent right of hope of release through parole eligibility.

EGERER AND OTHERS NO v EXECUTRUST (PTY) LTD AND OTHERS (SC)

DAMASEB DCJ, MAINGA JA and HOFF JA
2017 OCTOBER 12; 2018 FEBRUARY 6

Trust and trustees - Trustee—Deed of trust—Powers of founder trustee—Power to prescribe mode of appointment of trustees, power of exclusively appointing additional trustees or conferring power of assumption on other trustees and power of establishing vesting date of trust.

Trust and trustees - Trustee—Deed of trust—Trust founder placing assets under control of trustees for benefit of beneficiaries—Interpretation of deed of trust—Deed expressly providing only capital beneficiaries to benefit from trust on vesting date—Trust deed reserved power of founder trustee to determine vesting date and appointing trustees in his will—Appointment of three trustees not ultra vires the deed of trust—Monetary bequests in will unenforceable—Founder trustee could not in his will dispose of trust assets held in trust for trust beneficiaries.

MCLAREN NO AND OTHERS NNO v MUNICIPAL COUNCIL OF WINDHOEK AND OTHERS (SC)

MAINGA JA, HOFF JA and FRANK AJA
2017 NOVEMBER 13; 2018 JANUARY 17

Administrative law - Administrative action—What constitutes—Lease agreement—Commercial contractual relationship—Source and nature of power contractual—Organ of state contracted in equal power relation with powerful commercial entity—Local authority terminating long-term lease agreement—Decision to cancel agreement not administrative action—Decision not reviewable.

Contract - Breach—What constitutes—Lessee’s conduct, judged objectively, amounting to repudiation—Cessation by lessee of its operations clearly indicating intention not to continue with agreement constituting material breach and repudiation—Applicant entitled to accept repudiation and to cancel agreement.

SK v SK (HC)

PRINSLOO J
2017 NOVEMBER 9, 17

Marriage - Custody of minor children—Settlement agreement made order of court—Custody of children never res judicata—Court not functus officio—Court upper guardian of children—Portions of agreement dealing with custody of children subject to variation upon good cause shown and subject to best interest of child.

BABYFACE CIVILS CC JV HENNIMMA INVESTMENTS AND OTHERS v //KARAS REGIONAL COUNCIL AND OTHERS (HC)

ANGULA DJP
2017 OCTOBER 5; 2018 FEBRUARY 7

Estoppel - Application of—Cancellation of tender award—Doctrine of estoppel found no application where neither official nor his/her agent had power to extend time for provision of guarantee—Tender award also made without compliance with peremptory provisions of s 17 of State Finance Act 31 of 1991 and s 37(2) of Regional Councils Act 22 of 1992—Doctrine of estoppel could not give effect to what was not permitted by law—Reliance on estoppel failing.

Administrative law - Tender award—Regional council awarded tender for building a school—Council was delegated powers defined in Decentralisation Enabling Act 33 of 2000 to perform functions as agent of line minister—Council failing to obtain treasury approval for expenditure under s 17 of State Finance Act 31 of 1991 and s 37(2) of Regional Councils Act 22 of 1992—Tender award unlawful, null and void and liable to be set aside.

SHIIMI v CITY OF WINDHOEK MUNICIPALITY COUNCIL (HC)

PRINSLOO J
2017 SEPTEMBER 26, 27

Local authority - Legal proceedings—Limitation of—Limitation of Legal Proceedings (Provincial and Local Authorities) Act 94 of 1970, ss 2(1)(a) and (c)—Purpose to protect local authority against lawsuits—Aimed at providing local authority opportunity of investigating matter—Debt due when creditor has knowledge of identity of debtor and facts giving rise to debt or first day creditor could acquire knowledge of facts by exercising reasonable care—Creditor required to take steps reasonable person would have taken to acquire knowledge of cause of action.

 

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