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May 2013

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases of interest in the May reports. Also included below are the table of cases and flynotes.

Earlier this year the Namibian Law Reports celebrated its 30th edition of independent jurisprudence. Due to the increasing volume of reportable judgments being handed down by the Namibian courts, these reports will henceforth be published four times a year. The 2013(1) edition is now available. Please see below for the table of cases and flynotes.

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

SOUTH AFRICAN LAW REPORTS

Swollen ankle claimed as a serious injury

A claim was made against the Road Accident Fund for R390 000, yet it emerged that the plaintiff had only sustained a swollen ankle. Judge Satchwell investigates how the expert witness and the lawyer could have supported and pursued such a claim. Motswai v Road Accident Fund 2013 (3) SA 8 (GSJ)

Paternity test shows maintenance payments made in error

The child’s constitutionally protected rights to family and parental care needed to be protected where a husband claimed the return of maintenance payments made in the mistaken belief that he was the father. MN v AJ 2013 (3) SA 26 (WCC)

Residents over-billed for substandard water supply

The residents complained that the shambles in the water supply and metering system meant that accurate billing was impossible, resulting in widespread over-billing and chronic water shortages. The municipality admitted that most of the billing accounts issued against the residents were inaccurate. Due to many water meter readings not being functional, the municipality was simply making estimates of what was due and owing. South African National Civic Organisation v Capricorn District Municipality and Another 2013 (3) SA 225 (GNP)

SOUTH AFRICAN CRIMINAL LAW REPORTS

How to pay legal fees when properties under preservation order

Where his property was under a prevention-of-crime preservation order, the respondent requested that funds be released to cover his living expenses and legal fees. The court looks at the two preconditions: need and disclosure. The respondent claimed to be living on charity and loans from his friends, but did not provide any details of his liabilities in respect of the loans made to him. National Director of Public Prosecutions v Elran 2013 (1) SACR 429 (CC)

Appeal goes badly wrong in drug dealing case

The two appellants were convicted in the high court for their part in trying to smuggle R2 million worth of cocaine into the country. They were each sentenced to 12 years and decided to appeal their convictions. The Supreme Court of Appeal set aside their sentences and replaced them with 20 years. S v Cwele and Another 2013 (1) SACR 478 (SCA)

Ubuntu for petty thief

The accused had a long history of petty thefts and so when he stole packets of yeast from a supermarket, the magistrate sentenced him to three years’ imprisonment. On review the court held that the magistrate should have been alive to the accused’s socio-economic background, and applied the well-known principle of ubuntu and taken into consideration the reason for his being unable to pay a fine, and his sickly condition at the time of sentencing. Ordered that the accused be cautioned and discharged, and immediately released from prison. S v Matiwane  2013 (1) SACR 507 (WCC)

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SOUTH AFRICAN LAW REPORTS

TABLE OF CASES

  • Adlem and Another v Arlow 2013 (3) SA 1 (SCA)

  • Motswai v Road Accident Fund 2013 (3) SA 8 (GSJ)

  • MN v AJ 2013 (3) SA 26 (WCC)

  • Motaung v Department of Education and Others 2013 (3) SA 44 (LC)

  • Singh v Minister of Justice and Constitutional Development and Others 2013 (3) SA 66 (EqC)

  • Bright Bay Property Service (Pty) Ltd v Moravian Church in South Africa 2013 (3) SA 78 (WCC)

  • Foize Africa (Pty) Ltd v Foize Beheer BV and Others 2013 (3) SA 91 (SCA)

  • KOPM Logistics (Pty) Ltd v Premier, Gauteng Province, and Others 2013 (3) SA 105 (GNP)

  • SA Airlink (Pty) Ltd v Mpumalanga Tourism and Parks Agency and Others 2013 (3) SA 112 (GSJ)

  • Rhoode v De Kock and Another 2013 (3) SA 123 (SCA)

  • Sentinel Mining Industry Retirement Fund and Another v Waz Props (Pty) Ltd and Another 2013 (3) SA 132 (SCA)

  • Pangbourne Properties Ltd v Pulse Moving CC and Another 2013 (3) SA 140 (GSJ)

  • Rodel Financial Service (Pty) Ltd v Naidoo and Another 2013 (3) SA 151 (KZP)

  • Roering and Others NNO v Nedbank Ltd 2013 (3) SA 160 (GSJ)

  • Sheriff of the High Court, Johannesburg South v Sithole and Three Similar Cases 2013 (3) SA 168 (GSJ)

  • Centre for Child Law and Others v Minister of Basic Education and Others 2013 (3) SA 183 (ECG)

  • Bridon International GmbH v International Trade Administration Commission and Others 2013 (3) SA 197 (SCA)

  • FirstRand Bank Ltd v Lodhi 5 Properties Investment CC 2013 (3) SA 212 (GNP)

  • South African National Civic Organisation v Capricorn District Municipality and Another 2013 (3) SA 225 (GNP)

  • In re BOE Trust Ltd and Others NNO 2013 (3) SA 236 (SCA)

  • Shabangu v Road Accident Fund 2013 (3) SA 245 (GNP)

  • Groeschke v Trustee, Groeschke Family Trust and Others 2013 (3) SA 254 (GSJ)

  • Farjas (Pty) Ltd v Minister of Agriculture and Land Affairs and Others, and Another Case 2013 (3) SA 263 (SCA)

  • Hattingh and Others v Juta 2013 (3) SA 275 (CC)

  • General Council of the Bar and Another v Mansingh and Others 2013 (3) SA 294 (SCA)

  • Contract Employment Contractors (Pty) Ltd v Motor Industry Bargaining Council and Others 2013 (3) SA 308 (LC)

  • Qoboshiyane NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others 2013 (3) SA 315 (SCA)

FLYNOTES

ADLEM AND ANOTHER v ARLOW (SCA)

CLOETE JA, CACHALIA JA, SHONGWE JA, THERON JA and ERASMUS AJA

2012 NOVEMBER 6, 19

Land—Agricultural land—Portion—Meaning of in Subdivision of Agricultural Land Act 70 of 1970, s 3(d)(e)—Meaning piece of land forming part of property registered in deeds registry.

Lease—Validity—Prohibition of lease of portion of agricultural land—Land concerned registered in deeds office as remaining extents of portions of farm—Meaning of ‘portion’—Meaning piece of land forming part of property registered in deeds registry—Prohibition not applicable where whole of such property leased—Subdivision of Agricultural Land Act 70 of 1970, s 3(d)(e)

MOTSWAI v ROAD ACCIDENT FUND (GSJ)

SATCHWELL J

2012 NOVEMBER 15; DECEMBER 7

Motor vehicle accident—Compensation—Claim against Road Accident Fund—Abuse of system—Alleged ‘serious injury’ claim pursued and then settled on trial date in order to obtain benefit of costs order—No serious injury, no triable issue and no benefit for nominal claimant—Sole objective enrichment of lawyers and expert witnesses—Amounting to dishonest litigation and abuse of compensation system—Judgment forwarded to various professional bodies concerned—Issue of costs de bonis propriis postponed for hearing.

Attorney—Rights and duties—Duties—Duty when signing pleadings—Doing so as officer of court—By appending signature to pleading attorney attesting that he or she was scrupulous in preparation of pleading.

MN v AJ (WCC)

GAMBLE J and ALLIE J

2010 AUGUST 20; 2011 FEBRUARY 17

Enrichment—Condictio indebiti—Claim by husband for restoration of payments made to wife in terms of divorce order for maintenance of child born during their marriage, where later transpiring that husband not such child’s natural father—In circumstances error not excusable nor enrichment proven—Also, given equitable nature of remedy, unfair to wife to order restoration of payments utilised for child’s maintenance—Semble: Public policy requiring courts to be wary of recognising claims which necessitate enquiry into paternity and which may prejudice child’s constitutionally protected rights to family and parental care.

Practice—Pleadings—Particulars of claim—Particulars of claim lacking material allegations—Defendant not entitled to do nothing and then to complain that he/she was taken by surprise by defective pleadings—If pleading bad in law, answer was to except; if vague and embarrassing, notice to cure or further particulars—Also open to defendant to object to evidence not in accordance with pleadings—In circumstances of present case, where plaintiff’s case formulated on basis of condictio indebiti and defendant made alive thereto in opening address, defendant not prejudiced by poor formulation of plaintiff’s claim.

MOTAUNG v DEPARTMENT OF EDUCATION AND OTHERS (LC)

LA GRANGE J

2011 NOVEMBER 28–30; 2012 OCTOBER 14

Labour law—Unfair discrimination—Conscience—Discrimination on ground of diligence and conscientiousness—Employee divested of functions, given unsatisfactory performance evaluations, and denied notch increase when she refused to bow to pressure to ignore certain work regulations—Amounting to unfair discrimination on account of acting according to dictates of her conscience—Constitution, s 9(3) and Employment Equity Act 55 of 1998, s 6(1).

SINGH v MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND OTHERS (EqC)

LEDWABA J

2011 OCTOBER 27; 2013 JANUARY 23

Labour law—Unfair discrimination—Disability—Vision-impaired persons—Excluded from consideration for appointment as magistrate—Disability omitted from selection criteria—Appointment committees failed to take complainant’s disability into account—Need for clear policy on promotion and advancement of disabled persons.

FOIZE AFRICA (PTY) LTD v FOIZE BEHEER BV AND OTHERS (SCA)

MTHIYANE DP, CLOETE JA, HEHER JA, SHONGWE JA and LEACH JA

2012 AUGUST 23; SEPTEMBER 20

Interdict—When granted—Against peregrinus—Will not be granted where act sought to be interdicted would take place outside area of court’s jurisdiction—But interdict can be granted against peregrinus in case involving contract concluded in South Africa, which is to be performed in this country, which respondent threatens to breach in this country and which incola applicant seeks to enforce in this country, even if contempt proceedings not available.

Jurisdiction—Foreign jurisdiction and arbitration clause in contract—Enforcement—Discretion of court—Clause raised as objection in limine to proceedings—Misdirection for court to hold that it lacked jurisdiction to hear matter—Discretion lying in deciding whether exercise of jurisdiction to be stayed pending outcome of foreign proceedings—No hard rule as to stage when court should exercise discretion to enforce foreign jurisdiction and arbitration clause—Mere fact that issue raised when relief in form of interim interdict sought as precursor to trial not in itself precluding court from exercising its discretion at that stage.

SA AIRLINK (PTY) LTD v MPUMALANGA TOURISM AND PARKS AGENCY AND OTHERS (GSJ)

SALDULKER J

2012 APRIL 11; AUGUST 22

Administrative law—Access to information—Access to information held by public body—Request—Refusal—Grounds—Confidentiality—Once public body enters into commercial agreement of public character, imperatives of transparency and accountability entitling public to access to such agreement—Right to public access may not be circumvented by resorting to confidentiality clause.

Administrative law—Access to information—Access to information held by public body—Commercial agreement of public character concluded by public body—Imperatives of transparency and accountability entitling public to access to such agreement—Parties to agreement may not circumvent right to public access by resorting to confidentiality clause.

RHOODE v DE KOCK AND ANOTHER (SCA)

CLOETE JA, CACHALIA JA, BOSIELO JA, WALLIS JA and PILLAY JA

2012 NOVEMBER 19, 29

VindicationRei vindicatio—Requirements for—Tender to return part performance received under failed contract not required to complete cause of action.

SENTINEL MINING INDUSTRY RETIREMENT FUND AND ANOTHER v WAZ PROPS (PTY) LTD AND ANOTHER (SCA)

CLOETE JA, MALAN JA, SHONGWE JA, TSHIQI JA and SOUTHWOOD AJA

2012 AUGUST 15; SEPTEMBER 21

Contract—Interpretation—Headings—Can be taken into account in interpreting contract—Where heading conflicts with body of contract, body of contract to prevail—But where heading and detailed provisions of contract can be read together, this should be done.

PANGBOURNE PROPERTIES LTD v PULSE MOVING CC AND ANOTHER (GSJ)

WEPENER J

2010 NOVEMBER 4, 19

Practice—Applications and motions—Affidavits—Late filing—Both parties failing to comply with Uniform Rules of Court—Neither party bringing application for condonation for late filing—Insistence on compliance formalistic exercise in futility—No allegation of prejudice to either party if matter disposed of on merits, despite late filings—Interests of justice require that affidavits be considered and additional costs avoided.

RODEL FINANCIAL SERVICE (PTY) LTD v NAIDOO AND ANOTHER (KZP)

SEEGOBIN J

2010 SEPTEMBER 2; 2011 FEBRUARY 18

Novation—What constitutes—Consists of replacing existing obligation with new one, discharging existing obligation—Matter of intention and consensus—Presumption against novation, and onus on party asserting it to show that novation has occurred—Clear, cogent and unequivocal proof required—Party more likely to have intended to strengthen existing right with new contract than to destroy it through novation—Mere giving of acknowledgment of debt coupled with intention to pay debt meaning that creditor may sue either on acknowledgment of debt or original debt.

Credit agreement—Consumer credit agreement—Whether agreement subject to NCA—Acknowledgment of debt—Debtor acknowledging indebtedness to creditor for capital amount and discounting fees due in terms of discounting agreement—Discounting fees not interest charge as intended in NCA—Acknowledgment of debt accordingly not a credit agreement as contemplated in National Credit Act—National Credit Act 34 of 2005, s 8(4)(f).

ROERING AND OTHERS NNO v NEDBANK LTD (GSJ)

VAN OOSTEN J

2012 AUGUST 29; OCTOBER 4

Insolvency—Effect—On uncompleted contracts—Instalment agreement—Effect of buyer’s insolvency on seller’s accrued right of cancellation—Only completed right of cancellation surviving concursus—Where concursus occurring before expiration of notice given to buyer to pay arrear instalments, seller’s right to cancel not complete—Does not survive concursus—Seller losing ownership subject to right to claim as preferred creditor for balance due under agreement—Insolvency Act 24 of 1936, s 84.

SHERIFF OF THE HIGH COURT, JOHANNESBURG SOUTH v SITHOLE AND THREE SIMILAR CASES (GSJ)

SPILG J

2011

Execution—Sale in execution—Immovable property—Purchaser in default—Summary cancellation of sale by judge—Purpose of procedure to achieve quick and inexpensive resale under supervision of court—Hearing in chambers contemplated, but judge may elect to hold hearing in open court in exceptional circumstances—Procedure for distribution or return of deposit—Forfeiture of purchaser’s deposit not sanctioned and forfeiture provision in conditions of sale accordingly invalid—Deposit to be refunded after resale, unless aggrieved distribution creditor wishes to apply for judgment to recover losses from defaulting purchaser—Duties of sheriff in respect of deposit—Uniform Rules of Court, rule 46(11).

CENTRE FOR CHILD LAW AND OTHERS v MINISTER OF BASIC EDUCATION AND OTHERS (ECG)

PLASKET J

2012 JUNE 26; JULY 3

Constitutional law—Co-operative government—Autonomy of spheres of government—National intervention in provincial administration—National government not only assuming provincial government’s powers but also its obligations—Constitution, s 100(1)(b).

Education—Right to education—Duties of state—Appointment of non-teaching staff—Member of executive council under statutory obligation to declare post establishment for non-teaching staff at public schools in province and for year concerned, and to fill posts so declared—Public Service Act, 1994 (Proclamation 103 of 3 June 1994), s 1.

Education—Right to education—Duties of state—Appointment of non-teaching staff—Where failure to do so resulting in administrative and support functions of school not being discharged properly, right to basic education threatened—Constitution, s 29(1)(a).

BRIDON INTERNATIONAL GMBH v INTERNATIONAL TRADE ADMINISTRATION COMMISSION AND OTHERS (SCA)

BRAND JA, CLOETE JA, MHLANTLA JA, WALLIS JA and SOUTHWOOD AJA

2012 MAY 15, 30

Trade and industry—Trade—International trade—Administration—International Trade Administration Commission—Proceedings—Confidentiality—Contested claims—Whether section applying solely to proceedings before Commission or also to proceedings before high court—Section applying also to proceedings before high court (here for review of Commission’s decision)—International Trade Administration Act 71 of 2002, s 35(2).

Trade and industry—Trade—International trade—Administration—International Trade Administration Commission—Proceedings—Confidentiality—Contested claims—Nature of court’s decision—Value judgment subject to unrestricted re-evaluation on appeal—International Trade Administration Act 71 of 2002, s 35(2).

FIRSTRAND BANK LTD v LODHI 5 PROPERTIES INVESTMENT CC (GNP)

VAN DER BYL AJ

2012 MARCH 15, 20

Company—Winding-up—‘Solvent’ and ‘insolvent’—Meaning of terms—‘Solvent company’ meaning company that is neither actually nor commercially insolvent—‘Insolvent company’ meaning company that is either actually or commercially insolvent—Former falling under ch 2 part G of 2008 Companies Act—Latter to be dealt with under ch XIV of 1973 Act—Companies Act 71 of 2008, ss 79–81 and sch 5 item 9.

SOUTH AFRICAN NATIONAL CIVIC ORGANISATION v CAPRICORT DISTRICT MUNICIPALITY AND ANOTHER (GNP)

LEGODI J

2012 SEPTEMBER 17; OCTOBER 12

Local authority—Services—Water—Supply—Leakages and defective metering resulting in overbilling—Appropriate remedy—Court directing local authority to fix water reticulation and metering systems, charge flat rate until this is achieved, and halt practice of refusing clearance certificates to indebted residents.

IN RE BOE TRUST LTD AND OTHERS NNO (SCA)

CLOETE JA, MALAN JA, SHONGWE JA, PILLAY JA and ERASMUS AJA

2012 SEPTEMBER 10, 28

Will—Execution—Freedom of testation—Trustees seeking removal of racial restriction from bursary bequest in order to make it palatable to university, which had rejected bequest—Good intentions of trustees and commendable purpose of bursary not trumping intention of deceased, who had, in anticipation of rejection, provided that, if impossible for trustees to carry out their mandate, trust income to go to charities—Appeal against decision not to delete word ‘white’ from bequest dismissed.

Will—Execution—Freedom of testation—Not absolute—Court not bound to give effect to wishes of testator where rule of law preventing it from doing so.

Practice—Joinder—Non-joinder—Necessary party—Extra-judicial notice informing party of proceedings and requesting it to join, sufficient to cure non-joinder if met by unequivocal response that it abided decision of court.

SHABANGU v ROAD ACCIDENT FUND (GNP)

DIEDERICKS AJ

2012 JUNE 8; AUGUST 24

Court—High court—Powers—Power of court to protect and regulate its own process—Extent—Not extending to assumption of powers it does not otherwise have—High court not empowered to interfere or meddle in affairs of inferior courts—High court lacking power to order, at instance of plaintiff, transfer of action from magistrates’ court to high court—Constitution, s 173.

Motor vehicle accidents—Compensation—Claim against Road Accident Fund—Application by plaintiff for transfer of magistrates’ court action to high court to accommodate size of claim—Plaintiff fare-paying passenger in taxi—Claim originally formulated on basis of negligence of insured driver, not taxi, due to statutory limitation on claim in respect of negligence of taxi drivers—Limitation declared unconstitutional—Plaintiff seeking to institute claim on basis of taxi driver’s negligence in amount beyond jurisdiction of magistrates’ court—Seeking transfer of action to high court—High court lacking, and could not assume, power to order such transfer—Not appropriate case for fashioning of constitutionally acceptable remedy.

GROESCHKE v TRUSTEE, GROESCHKE FAMILY TRUST AND OTHERS (GSJ)

BESTER AJ

2012 OCTOBER 19, 31

Trust—Trust deed—Amendment—Act not requiring application to master to amend trust deed—Trust Property Control Act 57 of 1988, s 4(2).

Trust—Trustee—Identity of interest between trustees and beneficiaries—Sole trustee becoming sole beneficiary at same time—Effect on trust—Semble: Not invalidating trust.

FARJAS (PTY) LTD v MINISTER OF AGRICULTURE AND LAND AFFAIRS AND OTHERS, AND ANOTHER CASE (SCA)

LEWIS JA, PONNAN JA, MHLANTLA JA, SHONGWE JA and ERASMUS AJA

2012 NOVEMBER 2, 29

Land—Land reform—Restitution—Compensation—Equitable redress in form of financial compensation—Using consumer price index as indicator of change in value of money over time having just and equitable result as required by Constitution, s 25(3)—Restitution of Land Rights Act 22 of 1994, s 33(eC).

Land—Land reform—Restitution—Compensation—Equitable redress in form of financial compensation—Using compound interest as indicator of change in value of money over time not having just and equitable result as required by Constitution, s 25(3)—Restitution of Land Rights Act 22 of 1994, s 33(eC).

Land—Land reform—Restitution—Compensation—Solatium for non-financial, emotional deprivation—Award of solatium not automatic in every case—Claimant having to adduce evidence of hardship caused by expropriation to justify payment of solatium—Restitution of Land Rights Act 22 of 1994, s 33.

Constitutional law—Human rights—Right to property—Land reform—Restitution—Compensation—Equitable redress in form of financial compensation—Ambit of constitutional requirement that compensation be just and equitable—Fairness requiring compensation awarded be just and equitable not only to appellants but also to members of society who have interest in utilisation of public resources—Constitution, s 25(3) and Restitution of Land Rights Act 22 of 1994, s 33(eC).

HATTINGH AND OTHERS v JUTA (CC)

MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, NKABINDE J,

SKWEYIYA J, VAN DER WESTHUIZEN J, YACOOB J and ZONDO J

2012 NOVEMBER 6; 2013 MARCH 14

Land—Land reform—Statutory protection of tenure—Protected occupation of land—Occupier—Rights—To family life in accordance with culture of that family—Meaning of ‘family’—Not confined to nuclear family—Extension of Security of Tenure Act 62 of 1997, s 6(2)(d).

Land—Land reform—Statutory protection of tenure—Protected occupation of land—Occupier—Rights—To family life in accordance with culture of that family—Meaning of ‘family life’—As full a family life as possible is intended—Its extent determined by balancing occupier’s right to family life against landowner’s rights—Extension of Security of Tenure Act 62 of 1997, s 6(2)(d).

Land—Land reform—Statutory protection of tenure—Protected occupation of land—Occupier—Rights—Section requiring court to strike just and equitable balance of rights of occupier and landowner—Extension of Security of Tenure Act 62 of 1997, s 6(2).

GENERAL COUNCIL OF THE BAR AND ANOTHER v MANSINGH AND OTHERS (SCA)

BRAND JA, SHONGWE JA, LEACH JA, SOUTHWOOD AJA and SALDULKER AJA

2013 FEBRUARY 18; MARCH 15

President—Powers—Conferral of honours—Includes power to confer status of senior counsel on practising advocates—Constitution, s 84(2)(k).

CONTRACT EMPLOYMENT CONTRACTORSR (PTY) LTD v MOTOR INDUSTRY BARGAINING COUNCIL AND OTHERS (LC)

RABKIN-NAICKER J

2012 FEBRUARY 17, 27

Constitutional law—Human rights—Right to choose trade, occupation or profession freely—Meaning of ‘citizen’ in section—‘Citizen’ including juristic persons—Constitution, s 22.

QOBOSHIYANE NO AND OTHERS v AVUSA PUBLISHING EASTERN CAPE (PTY) LTD AND OTHERS (SCA)

MTHIYANE DP, BOSIELO JA, LEACH JA, WALLIS JA and PLASKET AJA

2012 NOVEMBER 14, 21

Administrative law—Access to information—Access to information held by public body—Request—Refusal—Public-interest override—In all situations where access must or may be refused, public body obliged to afford access where record containing certain types of evidence and public interest in disclosure outweighing harm that would follow from disclosure—Public body refusing access in such cases having to show that it weighed harm from disclosure against public interest in disclosure—Promotion of Access to Information Act 2 of 2000, ss 33(1) and 46.

Appeal—Peremption—Leave to appeal granted after compliance with order appealed against—Right of appeal abandoned where party unequivocally conveying intention to be bound by judgment—In present case, where appellant’s unreserved and unequivocal compliance with court’s order inconsistent with intention thereafter to challenge judgment on merits, appeal perempted and dismissed.

Appeal—Generally—Power of court of appeal—Power to dismiss appeal where judgment or order sought would have no practical effect or result—Notwithstanding mootness, court having discretion to deal with the merits of appeal if discrete legal issue of public importance arose affecting future matters requiring its adjudication—Supreme Court Act 59 of 1959, s 21A(1) .

SOUTH AFRICAN CRIMINAL LAW REPORTS

TABLE OF CASES

  • National Director of Public Prosecutions v Elran 2013 (1) SACR 429 (CC)

  • S v Gabaatlhole 2013 (1) SACR 471 (NCK)

  • S v Cwele and Another 2013 (1) SACR 478 (SCA)

  • National Director of Public Prosecutions v West 2013 (1) SACR 495 (ECP)

  • S v Matiwane 2013 (1) SACR 507 (WCC)

  • S v Musiker 2013 (1) SACR 517 (SCA)

  • S v Tshimbudzi 2013 (1) SACR 528 (SCA)

FLYNOTES

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v ELRAN (CC)

MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, NKABINDE J, VAN DER WESTHUIZEN J, YACOOB J and ZONDO J

2012 NOVEMBER 15; 2013 FEBRUARY 19

Search and seizure—Preservation of property order—Interpretation of—Section 44(2) of Prevention of Organised Crime Act 121 of 1998 (POCA)—Preservation order against assets—Whether court may permit payment of reasonable living and legal expenses from property that is subject to preservation order—Release of funds to respondent to cover living and legal expenses—Requirements for—Section 44(2) of POCA creating two preconditions, namely need and disclosure—Respondent relying on three year- old affidavit and not disclosing liabilities, not meeting preconditions—Application failed.

S v GABAATLHOLE (NCK)

NORTHERN CAPE HIGH COURT, KIMBERLEY

KGOMO JP and TLALETSI J

2012 SEPTEMBER 3, 14           

Court—Proper function of—Inadequate investigation by police and incompetence of prosecutor—Presiding officer not umpire at tennis match—Magistrate ought to have called witness to elucidate matter.

S v CWELE AND ANOTHER (SCA)

MPATI P, HEHER JA, PONNAN JA, SOUTHWOOD AJA and ERASMUS AJA

2012 AUGUST 16; OCTOBER 1

Drug offences—Cocaine—Dealing in contravention of s 5(b) of Drugs and Drug Trafficking Act 140 of 1992—Appellants recruiting couriers to bring R2 million worth of cocaine into country—First offenders sentenced to 20 years’ imprisonment.

NATIONAL DIRECTOR OF PUBLIC PROSECUITIONS v WEST (ECP)

HARTLE J

2012 MAY 31; SEPTEMBER 6

Prevention of crime—Realisation order in terms of s 30(2)(b) of Prevention of Organised Crime Act 121 of 1998 (POCA)—In respect of certain realisable property owned by defendant, subject-matter of restraint order—Confiscation order granted in terms of s 18(2)(a) of POCA specifically excluded fees of curator bonis, as these had not been proven—Amount of debt owed by defendant paid in full—Subsequent application for realisation order in terms of s 30(2)(b) in respect of fees of curator bonis not permissible where applicant had not challenged the refusal of fees for curator bonis in confiscation order.

S v MATIWANE (WCC)

HLOPHE JP and SAMELA J

2012 AUGUST 13

Sentence—Theft—Accused having long record of convictions for crimes of dishonesty—Theft of small item from shop—Sentence of three years’ imprisonment—Sentence disproportionate to offence—Previous convictions overemphasised—Accused’s socio-economic circumstances not sufficiently taken into account—Principles of ubuntu should have been applied.

S v MUSIKER (SCA)

MTHIYANE DP, LEACH JA and TSHIQI JA

2012 NOVEMBER 7, 30

Trial—Irregularity in—What constitutes—Magistrate descending into arena—Magistrate failing to guide obviously inexperienced counsel and his agitation leading counsel to abandon legitimate line of questioning—Handling of case may well have led to appellant not having had fair trial.

S v TSHIMBUDZI (SCA)

HEHER JA, MHLANTLA JA, BOSIELO JA, SWAIN AJA and MBHA AJA

2012 NOVEMBER 16, 30

Evidence—Witnesses—Calling, examination and refutation of—The oath—Administering of—To juvenile witness—Essential that regional magistrate make some enquiry to satisfy himself that complainant understood and appreciated distinction between telling truth and lie.

THE NAMIBIAN LAW REPORTS 2013 (1)

TABLE OF CASES

  • JT v AE 2013 (1) NR 1 (SC)

  • Roland and Others v Chairperson of the Council of the Municipality of Windhoek and Others 2013 (1) NR 12 (HC)

  • National Housing Enterprise v Hinda-Mbaziira and Others 2013 (1) NR 19 (LC)

  • S v Meroro and Another 2013 (1) NR 25 (HC)

  • SS v YS 2013 (1) NR 32 (HC)

  • Merlus Seafood Processors (Pty) Ltd v Minister of Finance 2013 (1) NR 42 (HC)

  • S v Candimba and Others 2013 (1) NR 70 (HC)

  • Paulo v Shoprite Namibia (Pty) Ltd and Others 2013 (1) NR 78 (LC)

  • Schweiger v Müller 2013 (1) NR 87 (SC)

  • Van der Merwe v Director of the Law Society of Namibia and Others 2013 (1) NR 98 (HC)

  • S v S 2013 (1) NR 114 (SC)

  • Telecom Namibia Ltd v Regenstein (Pty) Ltd and Another 2013 (1) NR 128 (HC)

  • S v Malumo and 111 Others 2013 (1) NR 152 (HC)

  • Executive Properties CC and Another v Oshakati Tower (Pty) Ltd and Others 2013 (1) NR 157 (SC)

  • Pinto v First National Bank of Namibia Ltd and Another 2013 (1) NR 175 (HC)

  • Haimbili and Another v Transnamib Holdings Ltd and Others 2013 (1) NR 201 (HC)

  • Swakopmund Airfield CC v Council of the Municipality of Swakopmund 2013 (1) NR 205 (SC)

  • S v Hoabeb 2013 (1) NR 222 (HC)

  • Municipal Council of Windhoek v Awaseb 2013 (1) NR 233 (HC)

  • Mukapuli and Another v Swabou Investment (Pty) Ltd and Another 2013 (1) NR 238 (SC)

  • Witvlei Meat (Pty) Ltd and Others v Disciplinary Committee for Legal Practitioners and Others 2013 (1) NR 245 (HC)

  • Kanguatjivi and Others v Shivoro Business and Estate Consultancy and Others 2013 (1) NR 271 (HC)

  • Sebatane and Another v Mutumba and Others 2013 (1) NR 284 (HC)

  • Brandt t/a Chris Brandt Attorneys v Windhoek Truck & Bakkie CC and Others 2013 (1) NR 295 (HC)

FLYNOTES

JT v AE (SC)

SHIVUTE CJ and MARITZ JA

2006 JULY 6; 2012 OCTOBER 12

Minor—Access—By non-custodian parent—Rights of access of fathers of minors born out of wedlock—Best interests of minor primary consideration when deciding upon rights of access—When making such decisions, courts should resort to oral evidence and evidence from experts—Court a quo making decision without hearing such evidence—Court remitting matter to court a quo.

ROLAND AND OTHERS v CHAIRPERSON OF THE COUNCIL OF THE MUNICIPALITY OF WINDHOEK AND OTHERS (HC)

MILLER AJ

2012 MARCH 14; JULY 31

Local authority—Town planning—Building regulations—Regulations providing that buildings in residential area may not exceed two storey's without permission of council—When approving such plans council to consider impact on neighbouring properties—Court setting aside council’s approval of building plans where building exceeding two storey's.

NATIONAL HOUSING ENTERPRISE v HINDA-MBAZIIRA AND OTHERS (LC)

PARKER J

2012 MARCH 2; APRIL 3

Labour law—Labour Act 11 of 2007, s 86(2)(a)—Interpretation of—Dispute which concerns dismissal may be referred to Labour Commissioner in terms of subsection—Dismissal not necessarily leading to dispute.

S v MERORO AND ANOTHER (HC)

HOFF J and NDAUENDAPO J

2012 MARCH 15

Criminal procedure—Trial—Presiding officer—Role of—Presiding officer not to descend into arena of cross-examination—However, does not mean that presiding officer must be content with inadequate and incomplete cross-examination.

SS v YS (HC)

UEITELE AJ

2012 MARCH 27; APRIL 10

Court—Jurisdiction—Doctrine of continuance of jurisdiction—Plaintiff and defendant foreign nationals ordinarily resident in Namibia when divorce summons served—Defendant subsequently leaving Namibia, taking minor child with her—Continuance of jurisdiction not applicable where minor child beyond territory of court’s jurisdiction—Court accordingly lacking jurisdiction to entertain plaintiff’s custody claim.

MERLUS SEAFOOD PROCESSORS (PTY) LTD v MINISTER OF FINANCE (HC)

GEIER AJ

2011 MARCH 29; NOVEMBER 11

Revenue—Income tax—Meaning of ‘manufacture’ in s 5A of Income Tax Act 24 of 1981—Applicant, fishing company, cleaning and packing fish ready for sale—In widest sense, ‘manufacture’ could be said to mean making of any sort of article by physical labour or mechanical power—Element of ‘transformation’, expressly written into Namibian statute—Different thing was to be end-result of ‘manufacturing activity’, whether by ‘physical’ or ‘chemical process’—Act laying down that degree of ‘transformation’ required that at end of ‘physical’ or chemical ‘transformation’, of materials, process should result in ‘new product’.

Revenue—Income tax—Meaning of ‘manufacture’ in s 5A of Income Tax Act 24 of 1981—Applicant, fishing company, cleaning and packing fish ready for sale—Applicant employing ‘raw materials’ processed in Namibia by various production lines in applicant’s factory—Final product packed and priced for consumer market.

S v CANDIMBA AND OTHERS (HC)

MAINGA J and SHIVUTE J

2010 FEBRUARY 15; APRIL 9

Criminal procedure—Search and seizure—Seizure of foreign currency—Forfeiture order—Court must be satisfied that accused owner of foreign currency before ordering such forfeiture.

PAULO v SHOPRITE NAMIBIA (PTY) LTD AND OTHERS (LC)

DAMASEB JP

2011 OCTOBER 12; 2012 JUNE 1

Labour law—Dismissal—Unfair dismissal—Arbitrator making award in favour of employee—Employer noting appeal and court granting suspension of arbitrator’s award—Employer’s appeal subsequently dismissed—Applicant employee seeking compensation from time of arbitrator’s award until dismissal of appeal—Employee, however, not invoking s 89(9)(b)(ii) of Labour Act 11 of 2007 which empowers court to grant such order of compensation—Court accordingly dismissing application for compensation.

SCHWEIGER v MULLER (SC)

SHIVUTE CJ and CHOMBA AJA

2005 OCTOBER 11; 2012 OCTOBER 12

Contract—Legality—Illegal contract—Parties entering into illegal agreement—Court a quo ordering repayment of capital plus interest from date when agreement entered into—Court on appeal holding that par delictum rule to be relaxed—However, such relaxation not to amount to enforcing of illegal agreement—Court ordering interest to run from date of Supreme Court judgment to date of payment.

VAN DER MERWE v DIRECTOR OF THE LAW SOCIETY OF NAMIBIA AND OTHERS (HC)

VAN NIEKERK J

2012 MARCH 2, 6

Legal practitioner—Fidelity Fund—Fidelity fund certificate—Applicant practising in partnership with fourth respondent—Partnership dissolving—Applicant and fourth respondent disputing name under which applicant wishing to practise—Court ordering first respondent to issue certificate—Focus in issuing certificate whether legal practitioner or partnership was strictly complying with provisions of ss 25 and 26 of Legal Practitioners Act 15 of 1995—Dispute regarding name was side issue having no bearing on issuing of certificate.

S v S (SC)

MARITZ JA, MAINGA JA and O’REGAN AJA

2012 JULY 6; NOVEMBER 15

Husband and wife—Divorce—Proprietary rights—Forfeiture of benefits of marriage in community of property—Dissolution of joint estate an inevitable consequence of divorce—Where defendant committing adultery, court having no discretion to refuse forfeiture of benefits.

Husband and wife—Divorce—Proprietary rights—Forfeiture of benefits of marriage in community of property—Constitutional validity of forfeiture order—Marriage in community of property requiring court to deal with joint estate at termination of marriage—Ordinary contractual principles governing disentangling joint estate—Forfeiture order not constituting violation of constitutional right to property.

TELECOM NAMIBIA LTD v REGENSTEIN (PTY) LTD AND ANOTHER (HC)

GEIER AJ

2011 MARCH 28; 2012 FEBRUARY 16

Servitude—Praedial servitude—Right of access to servitude road—Applicant owning portions of land surrounded by first respondent’s land—Access road registered servitude—Respondents erecting locked gates manned by security guards—Gates constituting unlawful interference with applicant’s access—Section 48 of Roads Ordinance 17 of 1972 prohibiting such restrictions—Applicant and its tenants entitled to access to servitude road.

S v MALUMO AND 111 OTHERS (HC)

HOFF J

2011 JUNE 21, 27–29; JULY 5, 11, 19, 25

Criminal procedure—Evidence—Confession—Admissibility of—Accused writing statement amounting to confession—No indication on statement that accused given customary warnings—State cannot produce statement as documentary evidence, thereby avoiding the more onerous duty of proving admissibility of confession in terms of s 217 of Criminal Procedure Act 51 of 1977—Statement ruled inadmissible.

EXECUTIVE PROPERTIES CC AND ANOTHER v OSHAKATI TOWER (PTY) LTD AND OTHERS (SC)

MARITZ JA, MAINGA JA and STRYDOM AJA

2012 MARCH 19; AUGUST 13

Practice—Applications and motions—Oral evidence—In what cases—Court will refer matter for oral evidence where there are prospects of tipping balance in favour of applicant—If on affidavits probabilities were evenly balanced, court more inclined to allow oral evidence—More scales depressed against applicant the less likely court would be to exercise discretion in his favour—In present case, oral evidence important for resolving dispute between parties regarding validity of sale of certain property—Court on appeal satisfied that hearing of oral evidence should be granted—Court reversing refusal of court a quo to refer matter for oral evidence.

PINTO v FIRST NATIONAL BANK OF NAMIBIA LTD AND ANOTHER (HC)

GEIER J

2012 JULY 24; OCTOBER 31

Banker—Relationship between banker and client—Based on contract—Applicant winning money in lottery—Applicant depositing money into bank account—First respondent bank reversing payment—Second respondent requesting first respondent to do such reversal, on basis that lottery constituting suspicious transaction—Applicant seeking order reversing debiting of his account—Respondents acting in terms of Prevention of Organised Crime Act 29 of 2004 (POCA) and Financial Intelligence Act 3 of 2007 (FIA)—Question whether legislation altered contractual relationship between banker and client—Purpose of legislation to combat money laundering and other suspicious transactions—Court concluding that FIA and POCA are to be regarded as terms imposed by law on traditional banker–client relationship and contractual bond existing between them—Respondents accordingly entitled to reverse payment into applicant’s bank account—Application dismissed with costs.

HAIMBILI AND ANOTHER v TRANSNAMIB HOLDINGS LTD AND OTHERS (HC)

MILLER AJ

2012 APRIL 27; MAY 14

Court—Jurisdiction—High court—Labour related matters—Applicants bringing urgent application for immediate reinstatement by employer—Court not having jurisdiction in this matter—High Court’s jurisdiction to grant urgent relief in labour matters confined to instances where dispute was lodged in terms of ch 8 of Labour Act 11 of 2007 and was awaiting resolution.

SWAKOPMUND AIRFIELD CC v COUNCIL OF THE MUNICIPALITY OF SWAKOPMUND (SC)

MARITZ JA, MAINGA JA and STRYDOM AJA

2012 JUNE 25; DECEMBER 13

Practice—Particular defences—Defence of lis alibi pendens—In what cases—Respondent’s urgent application struck from roll for lack of urgency—Respondent bringing fresh application with new affidavits—Merits of application not dealt with in urgent application—Subsequent application constituting fresh lis between parties—Defence of lis alibi pendens accordingly dismissed.

Landlord and tenant—Ejectment—Lien over leased property as result of improvements—Question was whether improvements constituting useful or necessary improvement by which respondent was unjustly enriched at appellant’s expense—Appellant relying on improvement of runway on leased property—Common cause that runway had fallen into disrepair—Improvement thus not enhancing property—Appellant could accordingly not rely on lien over property.

S v HOABEB (HC)

HOFF J and MILLER AJ

2012 JULY 18

Criminal procedure—Review—Criminal proceedings not finalised—Review of unterminated proceedings—Court will only deal with unterminated cases on review under rare circumstances—Court in present case setting aside entry in terms of s 113 of Criminal Procedure Act 51 of 1977 (Act)—There had been no basis for such entry—Court referring decision back to magistrate’s court to be dealt with in accordance with s 275 of Act.

MUNICIPAL COUNCIL OF WINDHOEK v AWASEB (HC)

NDAUENDAPO J

2011 FEBRUARY 4; 2012 NOVEMBER 12

Insolvency—Compulsory sequestration—Acts of insolvency—Disposition of property to prejudice of creditors—Bald statement was not sufficient and creditor must explain why such disposition was prejudicial—Court must be satisfied that inference that disposition was prejudicial, was reasonable one in circumstances of case—Requirements of s 8(b) and (c) of Insolvency Act 24 of 1936 explained.

MUKAPULI AND ANOTHER v SWABOU INVESTMENT (PTY) LTD AND ANOTHER (SC)

MARITZ JA, MAINGA JA and NGCOBO AJA

2012 APRIL 2; AUGUST 13

Practice—Judgments and orders—Final orders—Judge of high court no jurisdiction to review constitutionality of high court judgment—Remedy for litigants who allege such violation lies in appeal to Supreme Court.

WITVLEI MEAT (PTY) LTD AND OTHERS v DISCIPLINARY COMMITTEE FOR LEGAL PRACTITIONERS AND OTHERS (HC)

SMUTS J

2012 JANUARY 23; FEBRUARY 20

Legal practitioner—Disciplinary procedure—Appeal against decision by disciplinary committee of law society—Disciplinary committee entitled to dismiss complaint without a hearing if no prima facie case on papers—Legal Practitioners Act 15 of 1995, s 35(2).

Legal practitioner—Disciplinary procedure—Appeal against decision by disciplinary committee of law society—Appeal procedure laid down in s 35(3) of Legal Practitioners Act 15 of 1995—Such procedure in nature of appeal—Court would rehear merits, limited to evidence placed before disciplinary committee—Applicants presenting material not serving before disciplinary committee—Court not inclined to take cognisance of new material—Court satisfied that disciplinary committee correct in dismissing complaint.

Legal practitioner—Legal professional privilege—What constitutes—Deponent to answering affidavit legal practitioner—Deponent, a trustee, disclosing certain confidential information regarding trust—Deponent acting as trustee in personal capacity—Information accordingly not subject to attorney-client privilege.

KANGUATJIVI AND OTHERS v SHIVORO BUSINESS AND ESTATE CONSULTANCY AND OTHERS (HC)

VAN NIEKERK J

2012 AUGUST 23; OCTOBER 16; DECEMBER 3

Administration of estates—Accounts—Liquidation and distribution account—Inspection of—Administration of Estates Act 66 of 1965, s 35(4)—Section providing that accounts ‘shall’ lie for inspection for 21 days—In present case, account lying for only 20 days—Court holding that provision directory and not peremptory—Applicants not showing that they suffered prejudice—Court satisfied that objectives of legislature would be achieved by substantial compliance with s 35(4) and that in present case there was such substantial compliance.

SEBATANE AND ANOTHER v MUTUMBA AND OTHERS (HC)

SHIVUTE J (AS HE THEN WAS)

2003 MARCH 18; 2012 OCTOBER 4

Constitutional law—Human rights—Right of access to courts—Constitutional validity of s 2(1)(a) of Limitation of Legal Proceedings (Provincial and Local Authorities) Act 94 of 1970—Section requiring creditor to serve notice on debtor within 90 days of knowledge of claim—Purpose of section to allow authorities to investigate claims as early as possible—Limitation having legitimate purpose—Right of access to courts not absolute—Impugned section not infringing right of access to court—Section merely providing formalities and limitations within which rights to be exercised—Section accordingly not unconstitutional.

BRANDT t/a CHRIS BRANDT ATTORNEYS v WINDHOEK TRUCK & BAKKIE CC AND OTHERS (HC)

CORBETT AJ

2011 NOVEMBER 15; 2012 APRIL 5

Practice—Judgments and orders—Summary judgment—Liquidated amount—What constitutes—Payment of legal practitioner’s fees and disbursements not liquidated amount—Amount not easily ascertainable by mere calculation—Taxing master required to examine reasonableness of services rendered and fees charged—Application for summary judgment dismissed.

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