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May 2016

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases in the May law reports.

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

JUDGMENTS OF INTEREST IN THE MAY EDITIONS OF THE SALR, THE SACR AND THE NAMIBIAN LAW REPORTS 2016 (1)

 

SOUTH AFRICAN LAW REPORTS

House transferred by loan scam

The homeowners thought they were getting a secured loan, but their house was actually sold to an ‘investor’, to whom the bank granted a home loan secured by a mortgage bond. When the ‘investor’ defaulted on his loan, the bank attached the property, still occupied by the homeowners. Absa Ltd v Moore and Another 2016 (3) SA 97 (SCA)

Garden leave

After the employee’s resignation, the company sought to enforce his ‘garden leave’ which required him to spend a whole or part of the notice period at home, thus allowing confidential information to which the employee had access to become stale, and keeping the employee out of the clutches of a competitor. Vodacom (Pty) Ltd v Motsa and Another 2016 (3) SA 116 (LC)

Province behaving badly

This case is about a provincial government behaving unconscionably. The province conducted itself without any integrity and failed to be transparent and accountable as enjoined by our Constitution. It awarded a tender in relation to a road-infrastructure programme and after the work had been completed, refused to pay on the spurious basis that the work had not been budgeted for. Free State Province v Terra Graphics (Pty) Ltd and Another 2016 (3) SA 130 (SCA)

 

SOUTH AFRICAN CRIMINAL LAW REPORTS

A gun, a diary and a plan

Documents had been seized from the detainee’s cell, after numerous items had been found, including a firearm and items that could be used in an escape, as well as a diary indicating the existence of an escape plan. Public-policy considerations prevailed over the return of the documents. Krecjir v Minister of Correctional Services and Others 2016 (1) SACR 452 (GP)

To protect and serve

There was a duty on members of the police to render assistance to victims of domestic violence by receiving and investigating the complaint. They should not shirk this responsibility by directing the complainant to seek other means. Naidoo v Minister of Police and Others 2016 (1) SACR 468 (SCA)

Diversion and child offenders

The court deals with two cases of juvenile offenders and irregularities in the diversion process. The correct procedures are explained. S v XM and Another 2016 (1) SACR 500 (KZP)

 

THE NAMIBIAN LAW REPORTS

Habeas corpus

An habeas corpus mandamus was issued mero motu against the prison authorities to produce prisoners before court, to enforce their rights to right to appear in court to challenge their convictions and sentences. Lomboleni and Ten Other Appeal Cases v The State and Others 2016 (1) NR 22 (NLD)

Tow trucker’s lien

A truck owner applied to court to have its truck released from the lien held by the towing company, because the towing charge was alleged to be exorbitant. The court found that that it was equitable to deprive the towing company of possession of the truck, and to substitute security for the lien. Blaauw’s Transport (Pty) Ltd v Auto Truck & Coach CC and Another 2016 (1) NR 132 (HC)

Illegal contract

Where the legislature criminalised certain behaviour or conduct, any contract entered into in violation of the statute became unlawful and unenforceable, despite inequities resulting therefrom. To give effect to a contract concluded in violation of the legislation would facilitate or encourage the very act or conduct that parliament proscribed and rendered a criminal offence. Kondjeni Nkandi Architects and Another v Namibian Airports Company Ltd 2016 (1) NR 223 (HC)

 

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 SOUTH AFRICAN LAW REPORTS
 
 TABLE OF CASES
 
  • Westinghouse Electric Belgium SA v Eskom Holdings (Soc) Ltd and Another 2016 (3) SA 1 (SCA)
  • Merck Sharpe Dohme Group and Another v Cipla Agrimed (Pty) Ltd 2016 (3) SA 22 (SCA)
  • Eke v Parsons 2016 (3) SA 37 (CC)
  • Attorneys Fidelity Fund v Injo Investments CC 2016 (3) SA 62 (WCC)
  • Myathaza v Johannesburg Metropolitan Bus Service Soc Ltd t/a Metrobus 2016 (3) SA 74 (LAC)
  • Absa Ltd v Moore and Another 2016 (3) SA 97 (SCA)
  • Panayiotou v Shoprite Checkers (Pty) Ltd and Others 2016 (3) SA 110 (GJ)
  • Vodacom (Pty) Ltd v Motsa and Another 2016 (3) SA 116 (LC)
  • Free State Province v Terra Graphics (Pty) Ltd and Another 2016 (3) SA 130 (SCA)
  • Lagoon Beach Hotel (Pty) Ltd v Lehane NO and Others 2016 (3) SA 143 (SCA)
  • Tronox KZN Sands (Pty) Ltd v KwaZulu-Natal Planning and Development Appeal Tribunal and Others 2016 (3) SA 160 (CC)
  • Du Plessis v Media 24 t/a Daily Sun and Another 2016 (3) SA 178 (GP)
  • Vousvoukis v Queen Ace CC t/a Ace Motors 2016 (3) SA 188 (ECG)
  • Safari Thatching Lowveld CC v Misty Mountain Trading 2 (Pty) Ltd 2016 (3) SA 209 (GP)
  • Minister of Home Affairs v Rahim and Others 2016 (3) SA 218 (CC)
  • Tshwane City v Mitchell 2016 (3) SA 231 (SCA)
  • Steenkamp and Others v Edcon Ltd 2016 (3) SA 251 (CC)
 
 FLYNOTES
 

WESTINGHOUSE ELECTRIC BELGIUM SA v ESKOM HOLDINGS (SOC) LTD AND ANOTHER (SCA)

LEWIS JA, PONNAN JA, THERON JA, PETSE JA and MATHOPO JA

2015 NOVEMBER 23; DECEMBER 9
[2015] ZASCA 208

Government procurement - Procurement process—Irregularities—Tender awarded on basis of undisclosed evaluation criteria—Organ of state taking into account ‘strategic considerations’ extraneous to tender criteria as set out in invitation to bid—Award procedurally unfair and unlawful—Matter remitted.

MERCK SHARPE DOHME GROUP AND ANOTHER v CIPLA AGRIMED (PTY) LTD (SCA)

PONNAN JA, THERON JA, WALLIS JA, PETSE JA and WILLIS JA

2015 NOVEMBER 10, 27
[2015] ZASCA 175

Intellectual property - Patent—Revocation—Lack of novelty—Requirements of disclosure and enablement—Patents Act 57 of 1978, s 61(1)(c) read with s 25(1).

Intellectual property - Patent—Selection patent—Proper approach to.

EKE v PARSONS (CC)

MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, MADLANGA J, MOLEMELA AJ, NKABINDE J, THERON AJ and TSHIQI AJ

2015 MAY 26; SEPTEMBER 29
[2015] ZACC 30

Practice - Judgments and orders—Settlement order—Settlement agreement made order of court—Nature—Permissible content—Manner of enforcement.

Practice - Judgments and orders—Order—Requirements for validity—Approach to be adopted to flawed orders.

ATTORNEYS FIDELITY FUND v INJO INVESTMENTS CC (WCC)

HLOPHE JP, SALDANHA J and CLOETE J

2015 JULY 27; AUGUST 21

Attorney - Fidelity Fund—Claims against—Theft of trust funds—Whether money entrusted to attorneys—Payment into trust account of attorneys for purpose of providing bridging finance to clients of firm—Whether intention of claimant determinative—Attorneys Act 53 of 1979, s 26(a).

MYATHAZA v JOHANNESBURG METROPOLITAN BUS SERVICE SOC LTD t/a METROBUS (LAC)

MUSI JA, COPPIN JA and MAKGOKA AJA

2015 AUGUST 27; NOVEMBER 6

Labour law - Arbitration proceedings—Award—Prescription—Commencement—Whether certification of award having effect on commencement of prescription—Labour Relations Act 66 of 1995, s 143(3).

Labour law - Arbitration proceedings—Award—Prescription—Delay in completion—Whether application to review and set aside arbitration award delaying completion of prescription—Prescription Act 68 of 1969, s 13(1)(f).

Labour law - Arbitration proceedings—Award—Prescription—Period of prescription—Prescription period applicable to arbitration awards made under Labour Relations Act 66 of 1995—Prescription Act 68 of 1969, s 16(1).

Labour law - Arbitration proceedings—Award—Prescription—Scope of Prescription Act—Whether applying to arbitration awards made under Labour Relations Act 66 of 1995—Prescription Act 68 of 1969, s 16(1).

Labour law - Arbitration proceedings—Award—Prescription—Interruption—Whether application to make arbitration award order of court interrupting prescription—Whether warrant of execution issued pursuant to certification of award interrupting prescription—Whether application to review and set aside arbitration award interrupting prescription—Prescription Act 68 of 1969, s 15(1).

ABSA LTD v MOORE AND ANOTHER (SCA)

LEWIS JA, PONNAN JA, PILLAY JA, SALDULKER JA and VAN DER MERWE AJA

2015 NOVEMBER 6, 26
[2015] ZASCA 171

Land - Transfer—Fraud inducing transfer—If misrepresentation such that owner did not intend to transfer ownership, registration of transfer of no force—No simulation in such circumstances.

PANAYIOTOU v SHOPRITE CHECKERS (PTY) LTD AND OTHERS (GJ)

SUTHERLAND J

2015 DECEMBER 10, 17

Appeal - Execution—Pending petition to Supreme Court of Appeal for leave to appeal—Whether service of application for condonation of failure to serve petition in time having effect of suspending operation and execution of judgment—Superior Courts Act 10 of 2013, s 18(5) read with s 17(2).

VODACOM (PTY) LTD v MOTSA AND ANOTHER (LC)

VAN NIEKERK J

2016 FEBRUARY 4, 9

Labour law - Contract of employment—Post-termination restraint undertaking—Enforceability—Contract containing ‘garden-leave’ clause—Gardenleave clause to be taken into account when considering reasonableness of duration of post-termination restraint undertaking.

Competition - Restraint of trade agreement—Enforceability—Reasonableness—Contract containing ‘garden-leave’ clause—Garden-leave clause to be taken into account when considering reasonableness of duration of post-termination restraint undertaking.

FREE STATE PROVINCE v TERRA GRAPHICS (PTY) LTD AND ANOTHER (SCA)

NAVSA JA, PONNAN JA, LEACH JA, SALDULKER JA and ZONDI JA

2015 AUGUST 20; SEPTEMBER 10
[2015] ZASCA 116

Provincial government - Contract—Services agreement—Enforceability—Refusal of province to pay on basis that no budgetary allocation made by province for funds—Outstanding amounts to be treated as unauthorised expenditure to be met as a first charge upon Provincial Treasury in subsequent financial cycle—Public Finance Management Act 1 of 1999, ss 21(1)(b)(i), 24(1)(a)(i) and 34(2).

LAGOON BEACH HOTEL (PTY) LTD v LEHANE NO AND OTHERS (SCA)

NAVSA JA, CACHALIA JA, LEACH JA, TSHIQI JA and WILLIS JA

2015 NOVEMBER 6; DECEMBER 21
[2015] ZASCA 210

Interdict - Anti-dissipation order—Urgent application for—Large, complex matter—Reliance on hearsay—Inclusion of new material in replying affidavit—Practical and common-sense approach to be taken.

Insolvency - Trustee—Foreign trustee—Recognition—Requirement that insolvent be domiciled within jurisdiction of court appointing foreign trustee.

TRONOX KZN SANDS (PTY) LTD v KWAZULU-NATAL PLANNING AND DEVELOPMENT APPEAL TRIBUNAL AND OTHERS (CC)

MOSENEKE DCJ, CAMERON J, JAFTA J, KHAMPEPE J, MADLANGA J, NKABINDE J, NUGENT AJ, VAN DER WESTHUIZEN J and ZONDO J

2015 NOVEMBER 9; 2016 JANUARY 29
[2016] ZACC 2

Constitutional law - Legislation—Validity—KwaZulu-Natal Planning and Development Act 6 of 2008 (KZN), s 45—Providing for right to appeal municipal planning decisions to provincial tribunal—Interfering with municipalities’ exclusive power to make planning decisions—Invalid.

Constitutional law - Legislation—Invalidity—Remedy—Reading down and reading in—Difference explained.

Constitutional law - Separation of powers—Between tiers of government—Local and provincial competences—Municipal planning decisions falling within exclusive competence of municipalities.

Local authority - Town planning—Falling within exclusive competence of municipalities—Provincial statute providing that person aggrieved by planning decision on proposed development may appeal to provincial tribunal—Provision unconstitutional—KwaZulu-Natal Planning and Development Act 6 of 2008 (KZN), s 45.

DU PLESSIS v MEDIA 24 t/a DAILY SUN AND ANOTHER (GP)

TOKOTA AJ

2015 AUGUST 3–7; SEPTEMBER 2

Defamation - Liability—Imputation of racism—Newspaper article embellishing facts so as to imply racial prejudice—Defamatory per se—Defences of public interest and reasonableness failing—R80 000 awarded.

VOUSVOUKIS v QUEEN ACE CC t/a ACE MOTORS (ECG)

PICKERING J

2015 JUNE 19

Consumer protection - Whether transaction subject to CPA—Sale of used goods—Consumer Protection Act 68 of 2008, s 5(1).

Consumer protection - Statutory warranty of quality—Repair and replacement of defective goods—Whether replacement of component of complex product constituting repair or new supply of goods—Consumer Protection Act 68 of 2008, s 56(2).

Consumer protection - Statutory warranty of quality—Limited period for returning unsafe or defective goods for repair and replacement—Whether court may extend such period with ‘innovative order’—Consumer Protection Act 68 of 2005, ss 4(2)(b)(ii)(bb) and 56(2).

Sale - Goods—Latent defect—Remedies of purchaser—Actio redhibitoria—Objective test restated and applied to purchase of used motor vehicle.

SAFARI THATCHING LOWVELD CC v MISTY MOUNTAIN TRADING 2 (PTY) LTD (GP)

DAVIS AJ

2015 DECEMBER 11

Company - Business rescue—Moratorium on legal proceedings against company—Where business rescue proceedings instituted at time when legal proceedings against company already commenced—Leave to proceed with legal proceedings may be sought during those proceedings themselves—Substantive, separate application not required—Companies Act 71 of 2008, s 133(1)(b).

MINISTER OF HOME AFFAIRS v RAHIM AND OTHERS (CC)

MOGOENG CJ, MOSENEKE DCJ, CAMERON J, JAFTA J, KHAMPEPE J, MADLANGA J, NKABINDE J, NUGENT AJ, VAN DER WESTHUIZEN J and ZONDO J

2015 NOVEMBER 26; 2016 FEBRUARY 18
[2016] ZACC 3

Delict - Elements—Unlawfulness or wrongfulness—Immigration officers’ confinement of illegal foreigner at place not determined to be place of detention by Director-General—Immigration Act 13 of 2002, s 34(1).

TSHWANE CITY v MITCHELL (SCA)

MPATI P, BOSIELO JA, SALDULKER JA, ZONDI JA and BAARTMAN AJA

2015 NOVEMBER 4; 2016 JANUARY 29
[2015] ZASCA 1

Local authority - Municipal service charges—Statutory charge on property in respect of amount due—Hypothec not extinguished by transfer of immovable property pursuant to sale in execution—Semble: Municipality must comply with own bylaws relating to liability for municipal debts before pursuing hypothec’s perfection—Local Government: Municipal Systems Act 32 of 2000, s 118(3).

Execution - Sale in execution—Immovable property—Statutory charge on property in respect of amount due to local authority—Hypothec not extinguished by transfer of immovable property pursuant to sale in execution—Local Government: Municipal Systems Act 32 of 2000, s 118(3).

STEENKAMP AND OTHERS v EDCON LTD (CC)

MOGOENG CJ, MOSENEKE DCJ, CAMERON J, JAFTA J, KHAMPEPE J, MADLANGA J, MATOJANE AJ, NKABINDE J, VAN DER WESTHUIZEN J, WALLIS AJ and ZONDO J

2015 SEPTEMBER 8; 2016 JANUARY 22
[2016] ZACC 1

Labour law - Dismissal—Notice of termination—Dismissal for operational requirements by employers with more than 50 employees—Prescribed statutory notice periods—Non-compliance not rendering dismissal invalid—Declaration of invalidity not remedy contemplated by LRA—Employees limited to LRA remedies for LRA breach—LRA remedies adequate—Labour Relations Act 66 of 1995, ss 189A(2)(a) and 189A(8).

Statute - Interpretation—‘Must’—Meaning of in statutory provision—Mere use of word ‘must’ not enough to justify conclusion that thing done contrary to it a nullity.

 

 SOUTH AFRICAN CRIMINAL LAW REPORTS
 TABLE OF CASES
 
  • Director of Public Prosecutions, Gauteng v Pistorius 2016 (1) SACR 431 (SCA)
  • Krecjir v Minister of Correctional Services and Others 2016 (1) SACR 452 (GP)
  • Naidoo v Minister of Police and Others 2016 (1) SACR 468 (SCA)
  • S v Nhlapho and Others 2016 (1) SACR 489 (GP)
  • Director of Public Prosecutions, Gauteng v Mphaphama 2016 (1) SACR 495 (SCA)
  • S v XM and Another 2016 (1) SACR 500 (KZP)
  • S v Mthethwa 2016 (1) SACR 510 (KZP)
  • S v Leepile 2016 (1) SACR 513 (NWM)
  • S v Booysen 2016 (1) SACR 521 (ECG)
  • S v Dibakoane 2016 (1) SACR 532 (GP)
 
 FLYNOTES
 

DIRECTOR OF PUBLIC PROSECUTIONS, GAUTENG v PISTORIUS (SCA)

MPATI P, MHLANTLA JA, LEACH JA, MAJIEDT JA and BAARTMAN AJA

2015 NOVEMBER 3; DECEMBER 3
[2015] ZASCA 204

Murder - Mens rea—Intention to kill—Dolus eventualis—Whether present—Accused firing four shots at person behind toilet door.

Murder - Mens rea—Intention to kill—Exclusion of—Putative private defence—Whether established.

Appeal - In what cases—On questions of law reserved—Prerequisite for reservation of questions of law that there be acquittal—Conviction on competent verdict to be regarded as acquittal on main count—Criminal Procedure Act 51 of 1977, s 319.

KRECJIR v MINISTER OF CORRECTIONAL SERVICES AND OTHERS (GP)

RAULINGA J

2015 OCTOBER 9; NOVEMBER 25

Prisoner - Conditions of incarceration of—Application for order affecting conditions—Applicant not having exhausted internal remedies provided by Correctional Services Act 111 of 1998, s 21.

Prisoner - Confiscation of items belonging to—Application for order that documents be sealed and that no party, including police, have access to such items—Documents having been confiscated after cell searched and firearm and items that could be used in escape found—Applicant’s property subject of police investigation and could not be returned without jeopardising progress in matter—Public-policy considerations holding sway in circumstances.

NAIDOO v MINISTER OF POLICE AND OTHERS (SCA)

MAYA ADP, LEWIS JA, PETSE JA, MBHA JA and MATHOPO JA

2015 AUGUST 31; OCTOBER 2
[2015] ZASCA 152

Domestic violence - Police—Duties of—National instruction imposing duty on members of SAPS to render assistance to victims of domestic violence—Police failing in their duty by refusing to accept charge of domestic violence by complainant and requiring her first to obtain protection order.

S v NHLAPHO AND OTHERS (GP)

BERTELSMANN J and JANSEN J

2015 MAY 6 2

Trial - Assessors—Absence of—No assessors appointed by court and accused not having requested court to proceed in absence of such—Constituting gross irregularity enabling High Court to interfere, even before conviction—Magistrates’ Courts Act 32 of 1944, s 93ter.

DIRECTOR OF PUBLIC PROSECUTIONS, GAUTENG v MPHAPHAMA (SCA)

MAJIEDT JA, WILLIS JA and BAARTMAN AJA

2016 FEBRUARY 24; MARCH 3
[2016] ZASCA 8

Appeal - By Director of Public Prosecutions—Against alteration of sentence by High Court sitting as court of appeal—DPP having no such right of appeal.

S v XM AND ANOTHER (KZP)

SEEGOBIN J and POYO-DLWATI J

Child - Diversion of—From criminal justice system—Requirements of—Schedule 3 offences—Written consent required from DPP—Failure to obtain such constituting fatal irregularity—Importance of preliminary inquiry emphasised for safeguarding of child’s interests.

S v MTHETHWA (KZP)

K PILLAY J, VAHED J and POYO-DLWATI J

2015 JANUARY 26; FEBRUARY 16

Child - Sentence—For murder and attempted murder—Accused’s childhood characterised by neglect and ineffective parenting as he was abandoned as baby—Court a quo failing to attach sufficient weight to youthfulness and prospects of rehabilitation—Sentence of 18 years’ imprisonment reduced on appeal to 12 years’ imprisonment.

S v LEEPILE (NWM)

GUTTA J and DJAJE AJ

2016 JANUARY 29; FEBRUARY 11

Trial - Presiding officer—Conduct of—Descending into arena of conflict—Presiding officer to guard against such conduct—Might create impression of partisanship or that issues pre-decided—Should not put attacking propositions to accused or cross-examine accused.

S v BOOYSEN (ECG)

GOOSEN J and MGXAJI AJ

2015 OCTOBER 7; NOVEMBER 25

Bail - Presiding officer—Where formal hearing held considering factors in s 60 of Criminal Procedure Act 51 of 1977, presiding officer ordinarily disqualified from presiding at subsequent trial.

S v DIBAKOANE (GP)

ISMAIL J and SWARTZ AJ

2015 MAY 19

Trial - Postponement of—When to be granted—Postponement for purpose of obtaining legal representation—Trial previously postponed for same purpose—Record showing accused not wanting trial to proceed and seeking to frustrate it—Refusal of postponement in circumstances not misdirection.

 

 THE NAMIBIAN LAW REPORTS
 TABLE OF CASES
 
  • Locke v Van der Merwe and Others 2016 (1) NR 1 (SC)
  • Lomboleni and Ten Other Appeal Cases v The State and Others 2016 (1) NR 22 (NLD)
  • JM and Another v SM 2016 (1) NR 27 (HC)
  • Gurirab v Minister of Home Affairs and Immigration and Another 2016 (1) NR 37 (HC)
  • Shambo v Amukugo 2016 (1) NR 44 (HC)
  • Standard Bank of South Africa Ltd v Council of the Municipality of Windhoek 2016 (1) NR 51 (SC)
  • S v PV 2016 (1) NR 77 (HC)
  • S v LK 2016 (1) NR 90 (SC)
  • S v JB 2016 (1) NR 114 (SC)
  • S v Haufiku and Others 2016 (1) NR 120 (HC)
  • Buhrmann & Partners Consulting Engineers v Garbade 2016 (1) NR 125 (SC)
  • Blaauw’s Transport (Pty) Ltd v Auto Truck & Coach CC and Another 2016 (1) NR 132 (HC)
  • Kamuhanga NO v Master of the High Court and Others 2016 (1) NR 141 (SC)
  • Swartbooi and Another v Mbengela NO and Others 2016 (1) NR 158 (SC)
  • Tjamuaha and Another v Master of the High Court and Others 2016 (1) NR 186 (HC)
  • CV v JV 2016 (1) NR 214 (HC)
  • Kondjeni Nkandi Architects and Another v Namibian Airports Company Ltd 2016 (1) NR 223 (HC)
  • Usakos Town Council v Jantze and Others 2016 (1) NR 240 (HC)
  • S v Hangue 2016 (1) NR 258 (SC)
  • Hallie Investment 142 CC t/a Wimpy Maerua and Another v Caterplus Namibia (Pty) Ltd t/a Blue Marine Interfish 2016 (1) NR 291 (SC)
 
 FLYNOTES
 

LOCKE v VAN DER MERWE AND OTHERS (SC)

MAINGA J, MTAMBANENGWE AJA and HOFF AJA

2014 JULY 15; 2015 MARCH 17; SEPTEMBER 11

Land - Sale—Agricultural land—Suspensive condition—Sale subject to suspensive condition that buyer obtained Namibian citizenship within five years—Binding real and definite contractual relationship—Rights in abeyance pending fulfilment of condition to avoid restrictions of s 58 of Agricultural (Commercial) Land Reform Act 6 of 1995.

Land - Sale—Agricultural land— Agricultural (Commercial) Land Reform Act 6 of 1995 providing no agreement of any force or effect until agricultural land first offered to state and certificate of waiver obtained—Contract not forbidden or null and void—Contract merely unenforceable until owner has offered land to state and obtained certificate of waiver—Agricultural (Commercial) Land Reform Act 6 of 1995, s 17(2) as amended by Agricultural (Commercial) Land Reform Amendment Act 13 of 2002.

LOMBOLENI AND TEN OTHER APPEAL CASES v THE STATE AND OTHERS (NLD)

DAMASEB JP

2015 AUGUST 25; SEPTEMBER 2
[2015] NAHCNLD 43

Criminal procedure - Appeal—Prisoner’s right to appear in court to challenge conviction and sentence—Duty on state to secure prisoner’s presence in court—Failure to do so unlawful—Habeas corpus mandamus issued mero motu against prison authorities to produce prisoners before court.

JM AND ANOTHER v SM (HC)

GEIER J

2015 SEPTEMBER 17, 18, 21; OCTOBER 5
[2015] NAHCMD 235

Minor - Custody—Court’s role as upper guardian—Approach in determining best interest of children—Court has extremely wide powers to establish best interest of minor children—Court not bound by procedural strictures or limitation of evidence—Court might have recourse to any and all information to determine best interest of children.

GURIRAB v MINISTER OF HOME AFFAIRS AND IMMIGRATION AND ANOTHER (HC)

PARKER AJ

2015 OCTOBER 20; NOVEMBER 5
[2015] NAHCMD 262

Administrative law - Administrative action—Review—Exhaustion of internal or domestic remedies before approaching court—Court to take into account wording of statute and whether internal remedy would be sufficient to afford practical relief—Application premature—Court should not usurp functions of administrative agencies—Wrongfulness of decision did not undermine internal remedies created by statute—Marriage Act 25 of 1961, s 9(2).

SHAMBO v AMUKUGO (HC)

MASUKU AJ

2015 SEPTEMBER 1; OCTOBER 9
[2015] NAHCMD 244

Prescription - Extinctive prescription—Interruption—Summons issued out of magistrates’ court—Claim before magistrates’ court different in every respect from High Court claim—Magistrates’ court summons did not interrupt prescription—Prescription Act 68 of 1969, s 15.

Prescription - Extinctive prescription—Continuous wrong—Fraud consummated in 2009—Not inchoate and continuing to be perpetrated—Continuous wrong argument did not avail plaintiff.

STANDARD BANK OF SOUTH AFRICA LTD v COUNCIL OF THE MUNICIPALITY OF WINDHOEK (SC)

MARITZ JA, STRYDOM AJA and DAMASEB AJA

2006 OCTOBER 18; 2015 OCTOBER 26

Banker - Guarantee—Demand guarantee—Autonomy principle—Independent from underlying contract—Payable upon demand except in case of fraud.

Banker - Guarantee—Demand guarantee—Doctrine of strict performance—Payable upon meeting conditions of demand—Demand must be accompanied by declaration of basis for demand—Demand not conforming with conditions of guarantee—No obligation to pay.

S v PV (HC)

UEITELE J and UNENGU AJ

2015 AUGUST 14; SEPTEMBER 11
[2015] NAHCMD 216

Criminal procedure - Appeal—Notice of appeal—Purpose to inform respondent clearly and specifically of case to meet, to crystallise issues and to inform court of appeal of issues—Magistrates’ Courts Rules, rule 67(1)—Introduction of new grounds of appeal in heads of argument not allowed—Procedural fairness requiring amendment of notice of appeal.

Criminal procedure - Charge—Formulation—Charge of rape under Combating of Rape Act 8 of 2000—Allegation of coercive circumstances sufficient—Details of coercive circumstances not required to be stated—Criminal Procedure Act 51 of 1977, s 84(3).

Criminal procedure - Appeal—Record—Preparation—Duty of clerk of magistrates’ court—Dereliction of duty—Potential injustice from undue delay in administration of justice.

S v LK (SC)

SHIVUTE CJ, MAINGA JA, STRYDOM AJA, MTAMBANENGWE AJA and HOFF AJA

2015 MARCH 30; NOVEMBER 13

Statute - Interpretation—Criminal Procedure Act 51 of 1977, s 316A(1)(a) and (b)—Meaning of ‘including’—Wording of subsection wide—Intention of legislature to add to instances which state could appeal against to include sentence or orders made by court.

Criminal procedure - Appeal—By state—Against sentence only—State has right of appeal with leave of High Court—State also entitled to petition Chief Justice for leave to appeal against sentence only—Criminal Procedure Act 51 of 1977, s 316A(1)(a) and 316(6).

Criminal procedure - Sentence—Minimum sentences—Combating of Rape Act 8 of 2000—‘Substantial and compelling circumstances’—Not defined by legislature—What constitutes—Each case must be considered on own facts—Consideration of all facts and circumstances including proportionality of crime committed in relation to other more serious manifestations of crime—Must consider whether prescribed sentence justified in interest of victim as well as accused and needs of society.

Criminal procedure - Sentence—Minimum sentences—Combating of Rape Act 8 of 2000—Complainant under age of 13—Aggravating circumstance must be reflected in sentence even when substantial and compelling circumstances were found to exist—Sentence imposed by High Court too lenient.

S v JB (SC)

SHIVUTE CJ, STRYDOM AJA and MTAMBANENGWE AJA

2013 NOVEMBER 1; 2015 NOVEMBER 13

Criminal procedure - Appeal—By state—Against sentence only—State has right of appeal with leave of High Court—State also entitled to petition Chief Justice for leave to appeal against sentence only.

Criminal procedure - Sentence—Minimum sentences—Combating of Rape Act 8 of 2000—Court under statutory duty to impose prescribed minimum sentence in absence of substantial and compelling circumstances—Period offender spent in jail awaiting finalisation of trial not substantial and compelling circumstances.

S v HAUFIKU AND OTHERS (HC)

SIBOLEKA J and USIKU J

2015 OCTOBER 8, 30
[2015] NAHCMD 259

Criminal procedure - Sentence—Minimum sentences—Stock theft—Effect of striking down of minimum sentence provisions in Stock Theft Act 12 of 1990—Court’s ordinary sentencing jurisdiction restored—Lengthy custodial sentence must be considered as deterrence—Wholly suspended sentence contrary to purpose of Stock Theft Amendment Act 19 of 2004.

BUHRMANN & PARTNERS CONSULTING ENGINEERS v GARBADE (SC)

SHIVUTE CJ, DAMASEB AJA and HOFF AJA

2014 MARCH 19; 2015 OCTOBER 27

Contract - Parties—Identity of parties to commercial relationship—Factual issue—Value judgment in line with common business sense—Onus on party raising misjoinder to prove material facts in support of special plea of misjoinder.

BLAAUW’S TRANSPORT (PTY) LTD v AUTO TRUCK & COACH CC AND ANOTHER (HC)

PARKER AJ

2015 SEPTEMBER 29; NOVEMBER 12
[2015] NAHCMD 268

Lien - Salvage lien—Substitution of security for—Court having discretion to order substitution on considerations of justice and equity—Genuine and bona fide dispute between parties about amounts charged—Applicant entitled to have its rights and obligations determined by court.

KAMUHANGA NO v MASTER OF THE HIGH COURT AND OTHERS (SC)

DAMASEB DCJ, STRYDOM AJA and O’REGAN AJA

2015 JUNE 16; NOVEMBER 13

Administration of estates - The master—Decision of—Review—Master must act fairly and reasonably and in compliance with law—Master expert in field of administrating estates—Court will only interfere if decision unfair or unreasonable in circumstances—Administration of Estates Act 66 of 1965, s 35(10).

Administration of estates - Accounts—Liquidation and distribution account—Objections—Cannot challenge process of decision under s 47 of Administration of Estates Act 66 of 1965 by objecting to liquidation and distribution account—Separate review must be lodged for decisions under s 47—Section 35(10) reviews reserved for unsuccessful objections to liquidation and distribution accounts and not general mechanism for heirs’ complaints about conduct of executor.

SWARTBOOI AND ANOTHER v MBENGELA NO AND OTHERS (SC)

DAMASEB DCJ, SMUTS JA and CHOMBA AJA

2015 OCTOBER 19; NOVEMBER 24

Labour Court - Review—Arbitration award—Powers of review confined to defects in arbitration proceedings defined in s 89(5)(a) and (b) of Labour Act 11 of 2007—Onus of establishing category of defects in proceedings on applicant.

Labour law - Labour arbitration tribunal—Tribunals established in s 85 of Labour Act 11 of 2007 were tribunals contemplated in art 12 of Constitution—Article 18 of Constitution applied only to decisions amounting to administrative action—Adjudicative function of tribunal under art 12 not constituting act of an administrative body—Article 18 could not be invoked for review proceedings of tribunals established under s 85 of Act.

VON WEIDTS v GOUSSARD AND ANOTHER (HC)

DAMASEB JP

2012 JUNE 26–28; 2013 NOVEMBER 11–15; 2014 JANUARY 17
2015 MARCH 16
[2015] NAHCMD 57

Contract - Breach—Remedies for—Specific performance—Party seeking specific performance had to be ready, willing and able to perform and had onus to prove compliance with agreement unless unlawfully prevented from doing so.

Evidence - Parol evidence rule—Scope—Claim based on written contract—Integrated contract with non-variation clause—Not allowed to contradict, add to or modify written instrument by reference to extrinsic evidence in absence of misrepresentation, duress, undue influence, illegality, failure to comply with the terms of a statute, and mistake.

TJAMUAHA AND ANOTHER v MASTER OF THE HIGH COURT AND OTHERS (HC)

SCHIMMING-CHASE AJ

2015 JUNE 19; OCTOBER 12
[2015] NAHCMD 245

Will - Construction—Clear language—Power to sell farm if necessary given—Irrespective of what testator intended—General presumption against creation of fideicommissum—Reliance on implied fideicommissum failing.

Curator - Appointment of—Curator ad litem—Necessity of appointing curator for minor children—Validity of redistribution agreement concluded without appointing curator—Minor children benefitting from agreement—Absence of curator ad litem not affecting validity of agreement—Agreement valid.

Prescription - Extinctive prescription—Debt—Vindicatory claim not constituting debt—Acquisitive period of thirty years constituting extinctive prescription period for vindicatory claims—Prescription Act 68 of 1969, ss 1 and 10.

CV v JV (HC)

MASUKU AJ

2015 MAY 7, 26
[2015] NAHCMD 117

Practice - Applications and motions—Interlocutory application—Application in terms of High Court Rule 61 interlocutory—Non-compliance with rule 32(9) and (10) rendering application fatally defective.

Practice - Irregular proceedings—Requirements—Applicant must identify irregularity with clarity and precision—Applicant must show prejudice if irregularity not addressed—Failure to comply with requirements rendering application liable to fail—High Court Rules, rule 61.

KONDJENI NKANDI ARCHITECTS AND ANOTHER v NAMIBIAN AIRPORTS COMPANY LTD (HC)

MASUKU AJ

2015 JULY 1; SEPTEMBER 11
[2015] NAHCMD 223

Contract - Legality—Illegal contract—Legislature criminalised certain conduct—Contract in violation of statutory prohibitions unlawful and unenforceable despite inequities resulting therefrom—Architects’ and Quantity Surveyors’ Act 13 of 1979, s 13(1)(a) and (b).

USAKOS TOWN COUNCIL v JANTZE AND OTHERS (HC)

UEITELE J

2015 SEPTEMBER 2, 16
[2015] NAHCMD 225

Court - Jurisdiction—High Court—Labour related matters—Enforcement of arbitrator’s award by attachment of assets—Applicant seeking setting aside of attachment and interdicting sale in execution—High Court not having jurisdiction—Labour Court having exclusive jurisdiction—Application dismissed—Labour Act 11 of 2007, s 117(1)(a)–(i).

Labour court - Jurisdiction—Labour court has exclusive jurisdiction in respect of all matters necessary or incidental to court’s functions under Act—Labour Act 11 of 2007, s 117(1)(a)–(i).

S v HANGUE (SC)

SHIVUTE CJ, MARITZ JA and CHOMBA AJA

2004 OCTOBER 19; 2015 DECEMBER 15

Constitutional law - Commonlaw—Changes to common law prior to independence form part of Namibian Law—Namibian courts responsible for interpretation and pronouncement on content and development of common law after independence—Constitution, art 66(1).

Criminal law - Mens rea—Proof of—Murder and attempted murder—Mental element had to bear on actus reus of crime perpetrator was charged with—Prosecution had onus of proving mental element of mens rea when crime committed.

Criminal law - Criminal capacity—Defence of temporary non-pathological criminal incapacity—Person’s liability—Intoxication—Such defence available—Duty on accused to establish proper basis for defence.

HALLIE INVESTMENT 142 CC t/a WIMPY MAERUA AND ANOTHER v CATERPLUS NAMIBIA (PTY) LTD t/a BLUE MARINE INTERFISH (SC)

DAMASEB DCJ, SMUTS JA and CHOMBA AJA

2015 OCTOBER 22; DECEMBER 7

Court - Precedent and stare decisis—Decision of foreign courts—Not binding on Namibian Courts—Foreign authority only applicable if justified—Guidelines for citation of foreign and local authorities—Decisions of inferior foreign courts not persuasive authority in Supreme Court until new approach settled law—Foreign law subject to appeal not to be cited—Excessive citation of authorities discouraged—Citation of one Supreme Court case suffice.

Practice - Pleading—Exception—Exception successful—Opportunity to amend pleading should be given—Invariable practice in Namibian Courts.

 

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