Dear South African Law Reports and Criminal Law Reports subscriber
Herewith the cases in the May law reports, as well as those in the Namibian Law Reports.
JUDGMENTS OF INTEREST IN THE MAY EDITIONS OF THE SALR, SACR AND THE NAMIBIAN LAW REPORTS 2015 (1).
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SOUTH AFRICAN LAW REPORTS
Perception or intention?
A contractual repudiation depends on perception, not intention, and a reasonable person would not understand a demand for performance to be an indication of repudiation. B Braun Medical (Pty) Ltd v Ambasaam CC 2015 (3) SA 22 (SCA)
Charge-sheet in disciplinary proceedings
A charge-sheet in a disciplinary proceeding did not need to be drafted with the same formality as a charge in a criminal proceeding, but the facts supporting the charge had to be provided with the same level of particularity. The test was whether enough of the facts underlying the charge had been provided in order to answer it. Coetzee v Financial Planning Institute of South Africa and Others 2015 (3) SA 28 (SCA)
Insurance, non-disclosure and claim repudiation
Two judgments from the Supreme Court of Appeal give useful guidance on the issue of non-disclosure to an insurance company, whether such is material, and whether such non-disclosure affected the insurer’s acceptance of the risk or the ensuing premium charged.
SOUTH AFRICAN CRIMINAL LAW REPORTS
Witchcraft no excuse
A trainee sangoma needed genital organs to complete his initiation, so he killed his younger sister and hacked out her private parts with an axe. The full bench on appeal examines other cases where the accused believed in witchcraft, and confirmed his sentence of life imprisonment. S v Mogaramedi 2015 (1) SACR 427 (GP)
Severe sentence adjusted
The accused broke into a home where a mother was sleeping with her son and daughter. The mother fought off his attempts to rape her, so the accused kidnapped her 3-year-old daughter and then raped and killed the child. On appeal, the life sentence for the rape was confirmed, but two of the other sentences were adjusted. S v Madiba 2015 (1) SACR 485 (SCA)
Parole and the prison party
After the prisoner had been released on parole, it emerged that he had been to a party in a cell, where alcohol had been consumed. The festivities had been caught on video, which was released to the media. Past conduct of parolee brought to light subsequent to release could be taken into account. Revocation of his parole was appropriate. Du Preez v Minister of Justice and Correctional Services and Others 2015 (1) SACR 478 (GP)
THE NAMIBIAN LAW REPORTS
Settlement agreement and further proceedings
Once the parties have entered into a settlement agreement, all issues previously in dispute become res judicata as the proceedings come to an end. Government of the Republic of Namibia and Others v Katjizeu and Others 2015 (1) NR 45 (SC)
Judge sues government for alleged unfair trial
A judge came to be prosecuted in the high court on certain charges. He was discharged at the end of the state case, but the state appealed and the Supreme Court ordered that he be tried. He was again acquitted, and sued the government, contending that the judges had committed certain acts which violated his common-law rights as well as his constitutional rights to a fair trial. Teek v President of The Republic of Namibia and Others 2015 (1) NR 58 (SC)
A sweeter than expected retrenchment offer
The employer was restructuring and offered the two employees retrenchment, which they accepted. But the employer discovered that it would also have to pay for enhancements to their pensions, and offered them re-employment, which they refused. The court found that once the offer had been accepted by the employee, a binding agreement came into being and employer then bound by that agreement. Namibia Wildlife Resorts Ltd v Government Institutions Pension Fund and Others 2015 (1) NR 88 (SC)
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SOUTH AFRICAN LAW REPORTS
TABLE OF CASES
STRATFORD AND OTHERS v INVESTEC BANK LTD AND OTHERS (CC)
MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, LEEUW AJ, MADLANGA J, NKABINDE J, VAN DER WESTHUIZEN J and ZONDO J
Insolvency - Compulsory sequestration—Provisional sequestration—Application—Furnishing of copy of petition to employees of debtor—Employees including also domestic employees—Petition must be made reasonably accessible to them—Insolvency Act 24 of 1936, s 9(4A).
B BRAUN MEDICAL (PTY) LTD v AMBASAAM CC (SCA)
PONNAN JA, SHONGWE JA, SWAIN JA, MATHOPO AJA and MEYER AJA
Contract - Breach—Repudiation—Demand for performance—Not reasonably perceived as indicating repudiation.
COETZEE v FINANCIAL PLANNING INSTITUTE OF SOUTH AFRICA AND OTHERS (SCA)
NAVSA ADP, LEACH JA, SALDULKER JA, SWAIN JA and MOCUMIE AJA
Disciplinary body - Disciplinary proceedings—Charge—Facts underlying—Test for sufficiency of.
STUPEL & BERMAN INC v RODEL FINANCIAL SERVICES (PTY) LTD (SCA)
BRAND JA, MHLANTLA JA, WILLIS JA, FOURIE AJA and GORVEN AJA
Conveyancer - Relationship between conveyancer and parties to transaction—Conveyancer undertaking to pay net proceeds of sale of immovable property to third party upon transfer—Seller later instructing conveyancer to withdraw undertaking—Third party claiming payment from conveyancer on basis that undertaking irrevocable—Undertaking given as agent which seller entitled to revoke as principal.
SPENMAC (PTY) LTD v TATRIM CC (SCA)
MTHIYANE DP, LEWIS JA, SHONGWE JA, PETSE JA and MOCUMIE AJA
Contract - Consensus—Mistake—Seller’s innocent misrepresentation inducing buyer to make material and reasonable mistake as to nature of merx—‘No representations’ clause—Whether seller may employ.
MFV EL SHADDAI
OXACELAY AND ANOTHER v MFV EL SHADDAI AND OTHERS (KZD)
Shipping - Admiralty law—Admiralty jurisdiction of high court—Ambit—Matter must have meaningful marine or maritime connection—Admiralty jurisdiction not extending to matter easily dealt with via court’s normal jurisdiction—Court ordering release of arrested ship where underlying cause was loan for fishing venture—Admiralty Jurisdiction Regulation Act 105 of 1983, s 1(1)(ee).
GM v KI (GJ)
Children - Parents—Responsibilities and rights—Suspension or termination—Right may not be terminated or suspended while responsibility preserved and vice versa—Permissible duration of suspension—Children’s Act 38 of 2005, s 28(1)(a).
VISSER v 1 LIFE DIRECT INSURANCE LTD (SCA)
CACHALIA JA, WILLIS JA, SWAIN JA and FOURIE AJA
Insurance term - Long-term insurance—Life insurance—Policy—Proposal and declaration—Duty of disclosure—Materiality of misrepresentation or nondisclosure of pre-existing medical condition—Only arising as issue once insurer discharged onus of proving alleged pre-existing medical condition—Long-term Insurance Act 52 of 1998, s 59(1).
REGENT INSURANCE CO LTD v KING’S PROPERTY DEVELOPMENT (PTY) LTD t/a KING’S PROP (SCA)
LEWIS JA, WALLIS JA, PILLAY JA, FOURIE AJA and MEYER AJA
Insurance - Extinctive prescription—Period of prescription—Debt secured by general notarial bond—Not constituting ‘mortgage bond’ to which 30-year prescription period applying but ‘notarial contract’ to which 6-year prescription period applying—Prescription Act 68 of 1969, ss 11(a)(i) and 11(c).
LAND AND AGRICULTURAL DEVELOPMENT BANK OF SOUTH AFRICA v PHATO FARMS (PTY) LTD AND OTHERS (GP)
Prescription - Extinctive prescription—Period of prescription—Debt secured by general notarial bond—Not constituting ‘mortgage bond’ to which 30-year prescription period applying but ‘notarial contract’ to which 6-year prescription period applying—Prescription Act 68 of 1969, ss 11(a)(i) and 11(c).
HANGER v REGAL AND ANOTHER (FB)
Animals - Wild animal—Liability of owner for damage by wild animal kept in captivity—Himalayan bear kept in cage, on owners’ farm, surrounded by jackal-proof wire fence—Bear biting plaintiff’s hand causing injuries after pulling her arm through fence—Plaintiff allowing fingers to protrude through fence, enabling bear’s action—Safety measures taken reasonable in circumstances—Owners not liable for plaintiff’s damages.
YORK TIMBERS (PTY) LTD v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS (GP)
PRINSLOO J and MOSEAMO AJ
Criminal law - Statutory offences—Prevention of organised crime—Confiscation order—Benefits of crime—Sawmill company convicted of grading road on own property before obtaining environmental authorisation—Company’s motives altruistic and intended to reduce environmental impact—No benefit to company proven as intended by POCA—Order set aside—Prevention of Organised Crime Act 121 of 1998, s 18.
OMAR v INHOUSE VENUE TECHNICAL MANAGEMENT (PTY) LTD AND OTHERS (WCC)
Company - Oppressive conduct—What constitutes—Adverse offer for shareholding—Companies Act 71 of 2008, s 163.
MAKWICKANA v ETHEKWINI MUNICIPALITY AND OTHERS (KZD)
D PILLAY J
Local authority - Powers and duties—To regulate informal trading—Impounding of street trader’s stock for failing to produce permit—Constitutionality—Remedy.
BARNARD AND OTHERS v REGISTRAR OF MEDICAL SCHEMES (SCA)
MPATI P, LEWIS JA, PILLAY JA, SCHOEMAN AJA and FOURIE AJA
Medicine - Medical aid—Medical aid scheme—Placing under curatorship—Whether appropriate—Test—Medical Schemes Act 131 of 1998, s 56; Financial Institutions (Protection of Funds) Act 28 of 2001, ss 5(1) and 5(2).
COMBINED DEVELOPERS v ARUN HOLDINGS AND OTHERS (WCC)
Contract - Legality—Contracts contrary to public policy—Specific instances—Acceleration clause in loan agreement—Not per se contrary to public policy, but draconian and unfair implementation would be—Court refusing to allow applicant to use trivial default to trigger acceleration clause in order to gain commercial advantage over respondent.
YOUNG MING SHAN CC v CHAGAN NO AND OTHERS (GJ)
Administrative law - Administrative action—What constitutes—Ruling of rental housing tribunal—Rental Housing Act 50 of 1999, s 13(4).
DE MONTLEHU v MAYO NO AND OTHERS (GJ)
Company - Winding-up—Claim against company in liquidation—Proof—Late proof—Statutory framework—Whether Insolvency Act 24 of 1936, s 44(1), or Companies Act 61 of 1973, s 366(2), applying to late proof of claim.
KHOZA v MEC FOR HEALTH AND SOCIAL DEVELOPMENT, GAUTENG (GJ)
Medicine - Medical practitioner—Negligence—Proof—Secondary evidence of contents of lost or destroyed hospital records—Prima facie inadmissible in absence of acceptable explanation as to why original records not preserved—Semble: Such failure may also result in application of res ipsa loquitur doctrine in appropriate cases, or in adverse inferences being drawn—Law of Evidence Amendment Act 45 of 1988, s 3; National Health Act 61 of 2003, ss 13 and 17.
S v LITAKO AND OTHERS (SCA)
NAVSA JA, PONNAN JA, LEACH JA, PETSE JA and SWAIN AJA
Criminal procedure - Evidence—Admissibility—Extra-curial statement by accused—Inadmissible against co-accused, whether classified as confession or admission—Law of Evidence Amendment Act 45 of 1988, s 3(1) not applicable.
SHEPARD v EMMERICH (GJ)
VAN OOSTEN J, VICTOR J and DAMALIS AJ
Practice - Pleadings—Summons—Service—Validity—Contractually chosen domicilium citandi et executandi—Where specific method of effecting service contractually agreed, that method to be strictly complied with.
SOUTH AFRICAN CRIMINAL LAW REPORTS
TABLE OF CASES
S v MOGARAMEDI (GP)
KOLLAPEN J, DOSIO AJ and THOBANE AJ
Murder - Sentence—Imposition of—Factors to be taken into account—Murder committed in order to obtain human body parts for ritual purposes—To regard such killings as substantial and compelling circumstances would send out wrong message to community—Prevalence of such cases in South Africa high and continuation of such killings would create more instability in communities where such practices were rife—No compelling and substantial circumstances found to exist.
S v DITLHAKANYANE AND OTHERS (GJ)
Correctional services - Remand detainee—Further detention of beyond period of two years—Application in terms of s 49G(3) of Correctional Services Act 111 of 1998—Adjudication of application for release—Purpose of s 49G was to strike balance between accused’s constitutional right to liberty and interests of justice—Insufficient for applicants to blandly state that respondent’s case was weak or that, thus far, state had not laid incriminating evidence against them.
S v MATSHOBA AND OTHERS (ECP)
Correctional services - Remand detainee—Further detention of beyond period of two years—Enquiry under s 49G of Correctional Services Act 111 of 1998—Enquiry not in form of bail hearing as envisaged by s 60 of Criminal Procedure Act 51 of 1977.
SCHOEMAN AND OTHERS v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AND ANOTHER (WCC)
Prevention of crime - Restraint order in terms of Prevention of Organised Crime Act 121 of 1998—Rescission of in terms of common law—Jurisdiction of court—Applicant for rescission not limited to statutory grounds for rescission provided for by POCA, and also entitled to bring application on common-law grounds such as fraud.
DU PREEZ v MINISTER OF JUSTICE AND CORRECTIONAL SERVICES AND OTHERS (GP)
Prisons - Prisoner—Parole—Breach of parole conditions—Revocation of—For conduct that preceded prisoner’s release, only came to light after release on parole—National commissioner having wide discretion in terms of Correctional Services Act 111 of 1998 in whether to revoke or not—Past conduct of parolee brought to light subsequent to release could be taken into account—Participation of prisoner in party in cell where alcohol consumed by prisoner and captured on video recorder and subsequently released to media very serious and requiring serious censure—Revocation appropriate.
S v MADIBA (SCA)
PONNAN JA, SWAIN AJA and MATHOPO AJA
Sentence - Imposition of—Factors to be taken into account—Cumulative effect of sentences imposed on more than one count—Court sentencing accused to life imprisonment on one count and to total of 60 years’ imprisonment on three other counts but stating that sentence was effective sentence of 70 years’ imprisonment—That irregularity entitling court to intervene on appeal—Sentence on two of other counts reduced.
S v TS (WCC)
SALDANHA J and ROGERS J
Juvenile offenders - Criminal capacity—Mens rea—Culpa—Much to be said for view that subjective frailties of child found proper place in assessment of criminal capacity—If child had criminal capacity (ie it could be held accountable as adult would), negligence was tested objectively with reference to standard of reasonable person.
S v MQABHI (GJ)
SPILG J and VALLY J
Sentence - Prescribed sentence—Minimum sentences—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—‘Substantial and compelling circumstances’—Period spent in custody awaiting trial—A factor in determining presence of substantial and compelling circumstances—Factor not to be isolated but to be weighed with other circumstances—No mechanical formula applicable.
S v SKHOSANA AND 21 OTHER CASES (GJ)
SATCHWELL J and VICTOR J
Trial - Presiding officer—Unavailability of to continue with trial—Resumption of where magistrate had become disabled—Magistrate in nearfatal accident, leaving him unable to preside again—Disability of magistrate renders earlier proceedings nullity and trial to commence de novo—Legislation silent on whether nullity to be declared by high court on pre-conviction matters—Nullity principle ex lege sets trial aside—Case to be resumed before other magistrate de novo without need for order to this effect from other court.
THE NAMIBIAN LAW REPORTS
TABLE OF CASES
MEDICAL ASSOCIATION OF NAMIBIA LTD AND ANOTHER v MINISTER OF HEALTH AND SOCIAL SERVICES AND OTHERS (HC)
Constitutional law - Fundamental rights—Dignity—Licensing scheme for dispensing and sale of medicines introduced by s 31(3) of Medicines and Related Substances Control Act 13 of 2003—Scheme not infringing right to dignity of medical practitioners—Constitution of Namibia, art 8(1).
SHAAMA v ROUX (LC)
VAN NIEKERK J
Labour law - Appeal—From decision of arbitrator—Whether appeal or review procedure appropriate—Whether question of law involved—Procedural irregularity appearing from record and no need for evidence by way of affidavit required—Appeal procedure appropriate.
BOBO v OHORONGO CEMENT (PTY) LTD (LC)
Labour law - Appeal—Leave to appeal—When required—Refusal of condonation by Labour Court for non-compliance with rules in appeal to it from award of arbitrator—Leave to appeal required in terms of s 18(2)(c) of High Court Act 16 of 1990.
GOVERNMENT OF THE REPUBLIC OF NAMIBIA AND OTHERS v KATJIZEU AND OTHERS (SC)
SHIVUTA CJ, MAINGA and HOFF AJA
Court - Jurisdiction—Settlement agreement—Effect of—Once the parties have entered into a settlement agreement, all issues previously in dispute become res judicata as the proceedings come to an end.
TEEK v PRESIDENT OF THE REPUBLIC OF NAMIBIA AND OTHERS (SC)
NGCOBO AJA, ZIYAMBI AJA and GARWE AJA
Judge - Actions against—Claim arising out of conduct of case and alleged defamatory statements during case—Articles 78 and 81 of Constitution as well as s 17 of Supreme Court Act 15 of 1990 did not, either individually or cumulatively, preclude high court from considering such delictual claim—Those provisions aimed at preventing appeal or review of judgment of Supreme Court with aim of setting it aside.
HUGO v COUNCIL OF MUNICIPALITY OF GROOTFONTEIN (SC)
SHIVUTE CJ, MAINGA JA and DAMASEB AJA
Labour law - Conditions of employment—Retirement—Retirement age—Unilateral change of retirement age—Employee having commenced work on initial contract of employment providing for retirement age of 65—Employment subsequently governed by fixed term contract renewed from time to time—That contract providing for compulsory membership of employer’s pension fund subject to rules of that fund—Employer’s fund having compulsory retirement age of 60 years—Employee’s assent to employment contract giving employer right to unilaterally change retirement age of employee to 60 years.
NAMIBIA WILDLIFE RESORTS LTD v GOVERNMENT INSTITUTIONS PENSION FUND AND OTHERS (SC)
MAINGA JA, MTAMBANENGWE AJA and HOFF AJA
Labour law - Retrenchment—What constitutes—Employee offered retrenchment package and accepted it—Employer changing its mind when it realised the cost implications and then offered employee re-employment—Employee rejecting offer—Once offer accepted by the employee, a binding agreement came into being and employer then bound by that agreement.
NAMIBIA ESTATE AGENTS BOARD v LIKE AND ANOTHER NO (LC)
Estoppel - Res judicata—When applicable—Arbitration award under Labour Act 11 of 2007 set aside on appeal by Labour Court—No order made referring back to arbitration by another arbitrator—Party in later review application seeking order for referral back to arbitration—Order in appeal setting aside arbitration award rendering issue of referral back res judicata—Once award set aside on appeal, nothing left to set aside or refer back—Merits of review having become moot—Order for referral back declined.
LE ROUX v MINISTER OF JUSTICE AND OTHERS (HC)
VAN NIEKERK J
Magistrate - Extinc Misconduct—Dismissal—Review—Competency of—Appeal procedure provided for in s 21(4) of Magistrates Act 3 of 2003 is appeal in ordinary sense—Such procedure not mandatory to exclusion of review procedure.
S v SHIPANGA AND ANOTHER (SC)
SHIVUTE CJ, MARITZ JA and MAINGA JA
Criminal procedure - Evidence—Identification—Identification parade—Failure to hold identification parade—Witness making dock identification—Sufficiency of—Sufficient additional circumstantial evidence supporting identification.
GOVERNMENT OF THE REPUBLIC OF NAMIBIA v LM AND OTHERS (SC)
SHIVUTE CJ, MARITZ JA and MAINGA JA
Medicine - Consent to treatment—Plaintiffs (respondents), all HIV positive, all sterilised during Caesarean section—Plaintiffs claiming unlawful sterilisation—Signed consent form that had been signed while women at height of labour not amounting to informed consent in circumstances—Claim for damages upheld.
WOKER FREIGHT SERVICES (PTY) LTD v COMMISSIONER FOR CUSTOMS AND EXCISE AND OTHERS (HC)
Revenue - Customs and excise—Customs duty—Liability for—Applicant, a clearing agent, agreeing that its multi-purpose general bond, executed in favour of Namibian government in terms of s 73 of Customs and Excise Act 20 of 1998, could be used to assist importer of goods to clear consignment of goods imported into Namibia for further export into Angola—Goods never exported from Namibia but as result of fraudulent conduct of official of Ministry of Finance remaining in Namibia—Such use of applicant’s multi-purpose general bond creating valid accessory surety obligation for applicant—Applicant liable as surety under multi-purpose general bond for payment of duties on consignment of goods.
NGUVAUVA v MINISTER OF REGIONAL AND LOCAL GOVERNMENT AND HOUSING AND RURAL DEVELOPMENT AND OTHERS (HC)
Administrative law - Oppressiv Administrative action—Duty to act—Power of minister to designate chief in terms of s 5(2) of Traditional Authorities Act 25 of 2000—Once minister satisfied that applicant has met requirements in paras (i) to (vi) of s 5(1) of Act he has no further discretion and is obliged to appoint applicant as chief—In case where one applicant had died and there was only one other applicant who met all requirements, minister obliged to appoint that applicant as chief.
SCHÜTZ v PIRKER AND ANOTHER (HC)
Practice - Applications and motions—Condonation—Late filing of heads of argument—Such application not requiring formal notice of motion.
NEDBANK NAMIBIA LTD v TILE AND SANITARY WARE CC AND OTHERS (HC)
Practice - Judicial case management—Delay in seeking amendment of pleadings—Such applications at advanced stage of proceedings frustrated overriding principle of judicial case management—Managing judge should be slow to allow any late interlocutory proceedings which might delay final determination of case.
MUNICIPAL COUNCIL OF WINDHOEK v CLAUDIA PROPERTIES CC AND ANOTHER (HC)
Practice - Applications and motions—Fresh material—Applicant placing reliance in heads of argument on legislation not mentioned in founding affidavit—No bar to placing reliance on legal arguments provided that they were from the facts alleged.
SOUTH AFRICAN POULTRY ASSOCIATION AND OTHERS v MINISTRY OF TRADE AND INDUSTRY AND OTHERS (HC)
Practice - Applications and motions—Discovery and inspection in motion proceedings—Discovery only allowed in motion proceedings in exceptional circumstances.
PRIMEDIA OUTDOOR NAMIBIA (PTY) LTD v KAULUMA (LC)
VAN NIEKERK J
Labour court - Rules of court—Procedure on noting of appeal—Appeal from a decision of arbitrator—Labour Court Rules and Conciliation and Arbitration Rules to be read together when determining procedure to be followed on noting appeal—Procedure somewhat confusing and consideration could be given to creating greater harmony between different sets of rules—Noting of appeal from arbitrator’s award to be done in terms of Conciliation and Arbitration Rules.
MUNICIPAL COUNCIL OF GOBABIS v SMITH t/a BERTIE SMITH CONTRACTOR SERVICES (HC)
Practice - Applications and motions—Notice of opposition—To counter-application—Party required to set out question of law to be determined—Failure to do so rendering notice defective.
NEW RELEASES FROM JUTA
Superior Courts Act 10 of 2013 & Magistrates’ Courts Act 32 of 1944 and Rules & Periodic Time Charts (2018)
Sexual Offences - Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 & Regulations; Sexual Offences Act 23 of 1957
Planning Law Casebook
Namibian Companies Act 28 of 2004 & Regulations
Magistrates' Courts Act 32 of 1944; Small Claims Courts Act 61 of 1984 & Rules 6e
International Tax Law
Child Offenders in South African Criminal Justice: Concepts and Process
Child Justice Act 75 of 2008 & Regulations (Print) 12e
Annual Survey of South African Law 2016
Guide to the Protection of Personal Information Act, A
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