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June 2018

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases in the June 2018 law reports.

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

JUDGMENTS OF INTEREST IN THE JUNE 2018 EDITIONS OF THE SALR AND SACR LAW REPORTS.

 

SOUTH AFRICAN LAW REPORTS

Public Protector’s decisions not administrative action

The Supreme Court of Appeal so held, listing a number of features that distinguish the Public Protector’s decisions from those of an administrative nature. Accordingly, the Public Protector’s decisions was not subject to review under the Promotion of Administrative Justice Act 3 of 2000 but could be reviewed under the principle of legality. Minister of Home Affairs and Another v Public Protector 2018 (3) SA 380 (SCA).

Minister of Finance’s power or obligation to intervene in banker-client relationship

When four banks terminated their relationships with the Oakbay Group of companies, closing their accounts, they approached the Minister of Finance for assistance. This case concerned the Minister’s application for declaratory relief to the effect that he was neither empowered nor obliged to intervene in the relationship between the group and their banks. Minister of Finance v Oakbay Investments 517 and Others 2018 (3) SA 515 (GP).

Scope of extended standing under s 1571(d) of Companies Act 71 of 2008

Section  157(1)(d) provides that ‘(w)hen in terms of this Act, an application can be made to . . . a court . . . the right to make the application . . . may be exercised by a person acting in the public interest, with leave of the court’. Here, the main issue was whether this section extended standing to apply for the liquidation of a solvent company on the ground that it was in the public interest. Minister of Environmental Affairs v Recycling and Economic Development Initiative of South Africa NPC 2018 (3) SA 604 (WCC)

 

SOUTH AFRICAN CRIMINAL LAW REPORTS

What constitutes being an accomplice to rape

The victim of a rape committed during a house robbery testified that the accused, who did not rape her but was present, had laughed while she was being raped. The Supreme Court of Appeal set as aside his conviction of being an accomplice to rape. It held that the fact that he laughed might be conduct that showed his approval of what was happening, but that was not enough to establish his liability as an accomplice. S v Phetoe 2018 (1) SACR 593 (SCA).

Admissibility of pointing-out evidence

The third appellant’s conviction was based on certain pointings-out that he had made. On appeal it was held that pointing-out, in circumstances which would not have aided the investigation of crime other than to obtain self-incriminating evidence, was tantamount to a confession in the guise of pointing-out. S v Witbooi and Others 2018 (1) SACR 670 (ECG).

Appropriate sentence: government official convicted of fraud

The accused, a clerk in Department of Home Affairs, was convicted on 22 charges of fraud that involved creating fictitious entries in births-and-deaths registers to defraud insurance companies.  The court considered eight years’ imprisonment an appropriate sentence.  S v Luzipho 2018 (1) SACR 635 (ECG).

 

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 SOUTH AFRICAN LAW REPORTS
 TABLE OF CASES
 
  • Loni v MEC for Health, Eastern Cape (Bhisho) 2018 (3) SA 335 (CC)
  • Brompton Court Body Corporate SS119/2006 v Khumalo 2018 (3) SA 347 (SCA)
  • Drake Flemmer & Orsmond Inc and Another v Gajjar 2018 (3) SA 353 (SCA)
  • Minister of Home Affairs and Another v Public Protector 2018 (3) SA 380 (SCA)
  • Mobile Telephone Networks (Pty) Ltd and Another v Spilhaus Property Holdings (Pty) Ltd and Others 2018 (3) SA 396 (SCA)
  • Ocean Echo Properties 327 CC and Another v Old Mutual Life Assurance Company (South Africa) Ltd 2018 (3) SA 405 (SCA)
  • Road Accident Appeal Tribunal and Others v Gouws and Another 2018 (3) SA 413 (SCA)
  • University of the Free State v Afriforum and Another 2018 (3) SA 428 (SCA)
  • Uys NO and Another v Msiza and Others 2018 (3) SA 440 (SCA)
  • Body Corporate Santa Fe Sectional Title Scheme No 61/1994 v Bassonia Four Zero Seven CC 2018 (3) SA 451 (GJ)
  • Cape Town City and Another v Da Cruz and Another 2018 (3) SA 462 (WCC)
  • Commissioner, South African Revenue Service v Short and Another 2018 (3) SA 492 (WCC)
  • LR v PR 2018 (3) SA 507 (WCC)
  • Minister of Finance v Oakbay Investments (Pty) Ltd and Others 2018 (3) SA 515 (GP)
  • Nondabula v Commissioner, South African Revenue Service and Another 2018 (3) SA 541 (ECM)
  • Road Accident Fund v Chin 2018 (3) SA 547 (WCC)
  • Truworths Ltd and Others v Minister of Trade and Industry and Another 2018 (3) SA 558 (WCC)
  • TS v TS 2018 (3) SA 572 (GJ)
  • Minister of Environmental Affairs v Recycling and Economic Development Initiative of South Africa NPC 2018 (3) SA 604 (WCC)
 
 FLYNOTES
 

LONI v MEC FOR HEALTH, EASTERN CAPE (BHISHO) (CC)

MOGOENG CJ, ZONDO DCJ, CAMERON J, FRONEMAN J, JAFTA J, KATHREE-SETILOANE AJ, KOLLAPEN AJ, MADLANGA J, MHLANTLA J, THERON J and ZONDI AJ
2018 FEBRUARY 22
[2018] ZACC 2

Prescription - Extinctive prescription—Commencement—Knowledge of debt—Claim based on delict—Medical negligence—Objective assessment—Whether reasonably apparent that treatment received substandard—Sufficiency of information at claimant’s disposal—Prescription Act 68 of 1969, s 12(3).

Medicine - Negligence—Claim—Prescription—Commencement—Discovery of harm—Deemed discovery—Objective assessment—Sufficiency of information at claimant’s disposal—Whether claimant should have realised that treatment substandard—Prescription Act 68 of 1969, s 12(3).

BROMPTON COURT BODY CORPORATE SS119/2006 v KHUMALO (SCA)

PONNAN JA, VAN DER MERWE JA, MOCUMIE JA, PILLAY AJA and MAKGOKA AJA
2018 MARCH 23
[2018] ZASCA 27

Arbitration - Award—Whether creates new debt—Right to make award order of court—Whether ‘debt’ in Prescription Act—Arbitration Act 42 of 1965, s 31; Prescription Act 68 of 1969.

DRAKE FLEMMER & ORSMOND INC AND ANOTHER v GAJJAR NO (SCA)

CACHALIA JA, TSHIQI JA, MAKGOKA AJA, PLOOS VAN AMSTEL AJA and ROGERS AJA
2017 DECEMBER 1
[2017] ZASCA 169

Attorney - Negligence—Liability to client—Damages—Negligent under-settlement of personal injury claim—Time at which damages assessed—Claim settled without proper investigation—Damages to be assessed at notional trial date of claim—Court may shield plaintiff against corroding effect of inflation by using s 2A(5) of Prescribed Rate of Interest Act 55 of 1975.

Interest - A tempore morae—Mora interest on unliquidated debt—Court’s discretion under s 2A(5) of Prescribed Rate of Interest Act 55 of 1975—May be used to neutralise effect of inflation.

MINISTER OF HOME AFFAIRS AND ANOTHER v PUBLIC PROTECTOR (SCA)

LEWIS JA, MAJIEDT JA, WILLIS JA, PLASKET AJA and MOTHLE AJA
2018 MARCH 15
[2018] ZASCA 15

Constitutional law - Chapter 9 institutions—Public Protector—Decisions of—Whether administrative action.

MOBILE TELEPHONE NETWORKS (PTY) LTD AND ANOTHER v SPILHAUS PROPERTY HOLDINGS (PTY) LTD AND OTHERS (SCA)

PONNAN JA, SALDULKER JA, SWAIN JA, PLASKET AJA and MAKGOKA AJA
2018 MARCH 15
[2018] ZASCA 16

Sectional title - Common property—Unit owner—Whether having standing to apply for removal of base station from common property—Sectional Titles Act 95 of 1986, s 41.

OCEAN ECHO PROPERTIES 327 CC AND ANOTHER v OLD MUTUAL LIFE ASSURANCE COMPANY (SOUTH AFRICA) LTD (SCA)

PONNAN JA, WILLIS JA, SALDULKER JA, MOTHLE AJA and HUGHES AJA
2018 MARCH 1
[2018] ZASCA 9

Practice - Pleadings—Exception—If upheld, then ordinarily leave to be granted to amend pleading.

ROAD ACCIDENT APPEAL TRIBUNAL AND OTHERS v GOUWS AND ANOTHER (SCA)

NAVSA ADP, SALDULKER JA, MOCUMIE JA, TSOKA AJA and MAKGOKA AJA
2017 DECEMBER 13
[2017] ZASCA 188

Motor vehicle accident - Compensation—Claim against Road Accident Fund—Road Accident Appeal Tribunal—Jurisdiction—To determine nexus between injuries sustained and driving of motor vehicle—Tribunal not having such power—Purpose of Tribunal being limited to whether ‘serious injury’ sustained for purposes of reg 3(1)(b)—Road Accident Fund Act 56 of 1996, s 17(1A); Road Accident Fund Regulations, 2008, regs 3(1)(b) and 3(11);

Administrative law - Statutory powers—Exercise—Legality—Implied powers—General principle providing that express powers needed for actions and decisions of administrators—But powers may be implied where ancillary to or exist either as necessary or reasonable consequence of express powers—Court would be more inclined to find implied power where express power was of broad, discretionary nature—Less inclined to do so where power narrow and closely circumscribed.

UNIVERSITY OF THE FREE STATE v AFRIFORUM AND ANOTHER (SCA)

CACHALIA JA, SWAIN JA, MATHOPO JA, FOURIE AJA and SCHIPPERS AJA
2016 NOVEMBER 17
[2016] ZASCA 165

Appeal - Execution—Application to execute pending appeal—Test—Requirements more onerous than those of common law—Higher threshold set, namely, in addition to presence of exceptional circumstances, proof on balance of probabilities that applicant will suffer irreparable harm if order not granted, and conversely that respondent will not, if the order granted—Extraordinary deviation requiring ‘truly exceptional’ circumstances—Whether exceptional circumstances present depending on facts of case—Prospects of success also a relevant consideration—Superior Courts Act 10 of 2013, s 18.

UYS NO AND ANOTHER v MSIZA AND OTHERS (SCA)

NAVSA ADP, CACHALIA JA, SERITI JA, TSOKA AJA and LAMONT AJA
2017 SEPTEMBER 29
[2017] ZASCA 130

Land - Land reform—Award of land to labour tenant—Compensation of owner—Calculation—Land subject to labour tenant claim negatively impacting developmental potential—Whether Pointe Gourde principle requiring one to ignore such impediment in calculating compensation—In circumstances where owner aware of impediment at time of purchasing, Pointe Gourde principle not of application in calculating compensation.

Land - Land reform—Proceedings in Land Claims Court—Costs—Exceptional circumstances justifying costs order—Extreme dilatory conduct on part of state in negotiating compensation due to owner pursuant to successful labour tenant claim—Despite having arrived at appropriate amount for compensation, state failing to tender such amount—Conduct of state necessitating parties to approach court.

SANTA FE SECTIONAL TITLE SCHEME NO 61/1994 BODY CORPORATE v BASSONIA FOUR ZERO SEVEN CC (GJ)

SARDIWALLA AJ
2018 JANUARY 25

Winding-up - Application—Of close corporation on basis of inability to pay its debts—Effect of repeal of s 68(c) of Close Corporations Act which provided inability to pay debts as basis for winding-up—Close Corporations Act 69 of 1984, s 69; Companies Act 71 of 2008, ss 344(f) and 345.

CAPE TOWN CITY AND ANOTHER v DA CRUZ AND ANOTHER (WCC)

HLOPHE JP, FORTUIN J and SHER J
2018 FEBRUARY 2

Local authority - Buildings—Building plans—Approval—Presence of statutory disqualifying factors—Test reaffirmed and explained—National Building Regulations and Building Standards Act 103 of 1977, s 7(1)(b)(ii).

Local authority - Buildings—Building plans—Approval—Need to strike balance between rights of owners of subject property for which building plan approval sought, and rights of owners of neighbouring properties—Contextual assessment in terms of s 7(1) of Building Act requiring decision-maker to evaluate likely effect of proposed building on neighbouring properties, on their present and reasonably foreseeable future development—National Building Regulations and Building Standards Act 103 of 1977, s 7(1)(b)(ii).

Local authority - Buildings—Building plans—Approval—Obligation of local authority to have regard to recommendations of building control officer—National Building Regulations and Building Standards Act 103 of 1977, s 7(1).

COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE v SHORT AND ANOTHER (WCC)

WAGLAY J, BINNS-WARD J and NUKU J
2018 FEBRUARY 7

Revenue - Transfer duty—Amount of—Acquisition of bare dominium by one purchaser and right of habitatio by another, under same agreement—Whether constituting single transaction for transfer duty purposes—Transfer Duty Act 40 of 1949, s 2(1).

LR v PR (WCC)

ANDREWS AJ
2018 FEBRUARY 14

Marriage - Divorce—Proprietary rights—‘Clean break’ principle, as generally applied to spousal maintenance, should be extended also to proprietary consequences of divorce.

MINISTER OF FINANCE v OAKBAY INVESTMENTS (PTY) LTD AND OTHERS (GP)

MLAMBO JP, LEDWABA DJP and MODIBA J
2017 AUGUST 18

Banking - Relationship between banker and client—Minister of Finance’s power or obligation to intervene in banker-client relationship—Client’s account closed by bank—Minister not empowered to intervene in private bank-client dispute—Effect of account closure on client, bank or national economy irrelevant—Declaratory relief unnecessary.

NONDABULA v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE AND ANOTHER (ECM)

JOLWANA AJ
2017 JUNE 27

Revenue - Income tax—Assessments—Additional assessments—Notice of assessment—Required information not stated—Non-compliance unlawful and unconstitutional—Constitution, s 195; Tax Administration Act 28 of 2011, s 96(2)(a).

ROAD ACCIDENT FUND v CHIN (WCC)

SLINGERS J
2017 NOVEMBER 9

Motor vehicle accident - Compensation—Claim against Road Accident Fund—Medical examination of claimant—Objection to—Whether reasonable, material and substantial—Alleged bias of doctor to be objectively established—Measures to prevent misconduct by doctor, such as audio recording, may be put in place—Uniform Rules of Court, rule 36(2).

Motor vehicle accident - Compensation—Claim against Road Accident Fund—Medical examination by RAF doctor—Objection to—Practice of attorneys raising such objections on behalf of clients decried—Indication that plaintiff supportive of such objection required—Uniform Rules of Court, rule 36(2).

TRUWORTHS LTD AND OTHERS v MINISTER OF TRADE AND INDUSTRY AND ANOTHER (WCC)

ENGERS AJ
2018 MARCH 16 

Constitutional law - Legislation—Validity—National Credit Act 34 of 2005, reg 23A(4) of National Credit Regulations, 2006—Affordability assessment—Self-employed and informally employed consumers—Required to provide three months’ bank statements or latest financial statements—Self employed and informally employed consumers without bank accounts likely poor, and not in position to provide financial statements—Effectively excluded from credit—Unfair discrimination against—Subregulation reviewed and set aside.

Credit agreement - Consumer credit agreement—Reckless credit—Affordability assessment—Self-employed and informally employed consumers—Regulation 23A(4) requiring them to provide three months’ bank statements or latest financial statements—Self-employed and informally employed consumers without credit—Unfair discrimination against—Subregulation reviewed and set aside.

TS v TS (GJ)

SPILG J
2017 AUGUST 7 

Marriage - Divorce—Maintenance—Pendente lite—Inadequate financial disclosure in rule 43 proceedings—Court’s power to case-manage and order production of information and documents—Uniform Rules of Court, rule 43(5).

MINISTER OF ENVIRONMENTAL AFFAIRS v RECYCLING AND ECONOMIC DEVELOPMENT INITIATIVE OF SOUTH AFRICA NPC (WCC)

HENNEY J
2017 SEPTEMBER 15 

Company - Winding-up—Application—Locus standi—Extended standing to apply for remedies under s 157 of Companies Act, 2008—Whether extending standing to applicant for liquidation of solvent company not otherwise having standing—Companies Act 71 of 2008, ss 88(1) and 157(1)(d).

 

 SOUTH AFRICAN CRIMINAL LAW REPORTS
 TABLE OF CASES
  
  • S v Phetoe 2018 (1) SACR 593 (SCA)
  • Mngomezulu and Another v Van den Heever NO and Others 2018 (1) SACR 601 (GJ)
  • S v Tucker 2018 (1) SACR 616 (WCC)
  • S v Thakeli and Another 2018 (1) SACR 621 (SCA)
  • S v Makhalima 2018 (1) SACR 625 (ECG)
  • S v Dyidi 2018 (1) SACR 630 (WCC)
  • S v Luzipho 2018 (1) SACR 635 (ECG)
  • S v Klaas 2018 (1) SACR 643 (CC)
  • S v Moyo 2018 (1) SACR 658 (GJ)
  • S v Witbooi and Others 2018 (1) SACR 670 (ECG)
  • S v Horn 2018 (1) SACR 685 (WCC)
  • Vawda and Another v Chairman of Appeal Board and Another 2018 (1) SACR 695 (GP)
  • David v Regional Court Magistrate and Others 2018 (1) SACR 702 (ECB)
 
 FLYNOTES
 

S v PHETOE (SCA)

FABRICIUS J
2018 FEBRUARY 16; MARCH 16
[2018] ZASCA 20

Rape - Accomplice to—What constitutes—Mere presence during rape and appearing to approve thereof not sufficient to constitute liability as accomplice.

MNGOMEZULU AND ANOTHER v VAN DEN HEEVER NO AND OTHERS (GJ)

FISHER J
2017 NOVEMBER 14; 2018 FEBRUARY 6

Prevention of crime - Restraint order in terms of Prevention of Organised Crime Act 121 of 1998—Rescission of—Duties of curator—Curator obliged to account to owner of property in terms of common law, over and above statutory duties to account under POCA—Curator not needing to be discharged as soon as restraint order rescinded.

S v TUCKER (WCC)

DOLAMO J and THULARE AJ
2018 FEBRUARY 21

Bail - Appeal against refusal of—In extradition proceedings—Procedure—Governed by provisions of s 65 of the Criminal Procedure Act 51 of 1977 and may be heard by a single judge.

S v THAKELI AND ANOTHER (SCA)

LEWIS JA, SERITI JA, SALDULKER JA, VAN DER MERWE JA and MAKGOKA AJA
2018 FEBRUARY 15; MARCH 28
[2018] ZASCA 47

Indictment and charge - Amendment of—By presiding officer without giving accused opportunity to address court on amendment—Failure constituting fundamental irregularity destroying validity of amendment.

S v MAKHALIMA (ECG)

ROBERSON J and TOKOTA J
2018 MARCH 28, 29

Theft - Proof of—Shopper forgetting to pay for item put into personal bag—Accused distracted by telephone call from spouse whilst at paypoint and putting item into said bag in order to distract child—Accused’s version reasonable and ought to have been given benefit of doubt.

S v DYIDI (WCC)

MANTAME J and THULARE AJ
2017 NOVEMBER 15

Review - In what cases—Part-heard matter in which magistrate had resigned—Magistrate having duty to finalise case—Resignation of magistrate not justifiable reason for invoking s 304 of Criminal Procedure Act 51 of 1977.

S v LUZIPHO (ECG)

BESHE J and GOOSEN J
2017 NOVEMBER 22; 2018 JANUARY 30

Trial - Judgment—Reasons for—Terse judgment—Despite being terse, reasons could be discerned from judgment.

Fraud - Sentence—Government official—Clerk in Department of Home Affairs creating fictitious entries in births-and-deaths register to defraud insurance companies—Accused convicted of 22 counts—In view of severity of offences, sentence of eight years’ imprisonment appropriate.

S v KLAAS (CC)

MOGOENG CJ, ZONDO DCJ, CAMERON J, FRONEMAN J, JAFTA J, KATHREE-SETILOANE AJ, KOLLAPEN AJ, MADLANGA J, MHLANTLA J, THERON J and ZONDI AJ
2018 MARCH 15
[2018] ZACC 6

Drugs - Mandrax—Dealing in in contravention of s 5(b) of Drugs and Drug Trafficking Act 140 of 1992—Sentence—Application of minimum-sentence provisions of Criminal Law Amendment Act 105 of 1997—Proof required that drugs worth more than R50 000 were involved—Estimate by police officer insufficient.

S v MOYO (GJ)

OPPERMAN J and NAIR AJ
2017 NOVEMBER 6, 9, 10, 30

Trial - Assessors—Failure to appoint in violation of s 93ter(1) of Magistrates’ Courts Act 32 of 1944—Explanation that assessors not appointed due to ‘lack of resources’—Court’s concern at this brought to attention of Minister of Justice.

Review - In what cases—Leave to appeal against conviction in regional magistrates’ court refused, but granted in respect of sentence—Discovery at hearing of appeal that no assessors appointed in violation of s 93ter(1) of Magistrates’ Courts Act 32 of 1944—Fatal irregularity that could be corrected on review—Court accordingly setting aside proceedings.

S v WITBOOI AND OTHERS (ECG)

ROBERSON J and LOWE J
2017 DECEMBER 13; 2018 JANUARY 23

Theft - Proof of—Doctrine of recent possession—Nature of objects stolen relative to time lapse from theft important.

Evidence - Admissibility—Pointing-out—Pointing out in circumstances which would not have aided investigation of crime other than to obtain self-incriminating evidence—Tantamount to confession in guise of pointing-out.

S v HORN (WCC)

WILLE J and ANDREWS AJ
2018 FEBRUARY 26

Arms and ammunition - Declaration of unfitness to possess firearm in terms of s 103(1) of Firearms Control Act 60 of 2000—Magistrate failing to hold inquiry into unfitness of accused on conviction of housebreaking with intent to steal and theft—Magistrate since having resigned—Court ordering on review that accused not unfit to possess firearm.

VAWDA AND ANOTHER v CHAIRMAN OF APPEAL BOARD AND ANOTHER (GP)

DS FOURIE J
2017 NOVEMBER 29

Arms and ammunition - Declaration of unfitness to possess firearm in terms of s 102 of Firearms Control Act 60 of 2000—Review of decision of Chairman of Appeal Board—Applicants in shooting incident—Decision made taking into account irrelevant considerations and ignoring relevant considerations—Evidence and findings not rationally connected—Decision set aside and remitted to Appeal Board for reconsideration.

DAVID v REGIONAL COURT MAGISTRATE AND OTHERS (ECB)

TOKOTA J
2017 OCTOBER 17; NOVEMBER 14

Trial - Presiding officer—Unavailability of to continue with trial—After plea of not guilty but no evidence adduced—Purpose of s 118 of CPA to cater for situations where judicial officer becomes unavailable after plea, but before evidence—Permissible that trial continue before judicial officer who is available.

 

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