Dear South African Law Reports and Criminal Law Reports subscriber
Herewith the cases in the July law reports.
JUDGMENTS OF INTEREST IN THE JULY EDITIONS OF THE SALR AND THE SACR
SOUTH AFRICAN LAW REPORTS
Terminally ill man granted euthanasia
The court granted a terminally ill, mentally competent adult, an order allowing a willing medical practitioner to assist him in committing suicide by the supply or administration of a lethal substance. Stransham-Ford v Minister of Justice and Correctional Services and Others 2015 (4) SA 50 (GP)
The Speaker of the National Assembly
Two cases deal with the discretion and powers of the Speaker where opposition party members made statements deemed out of order or unparliamentary. The separation of powers between legislature and the judiciary, as well as the freedom of speech are examined. Lekota and Another v Speaker, National Assembly and Another 2015 (4) SA 133 (WCC) and Malema and Another v Chairman, National Council of Provinces and Another 2015 (4) SA 145 (WCC)
Abuse of the Road Accident Fund
The court condemns a scam to plunder the Fund. An alleged ‘serious injury’ claim was pursued and then settled on the trial date in order to obtain the benefit of a costs order. Unnecessary medico-legal reports were commissioned for a trivial injury, and there was no intention to call the experts. The court recommends that the fault principle be abandoned to stem the abuse of the system. Ketsekele v Road Accident Fund 2015 (4) SA 178 (GP)
Contempt of court
An airline defied a court order not to board the children of permanent residents when the children had been refused entry by immigrations staff at the airport. A senior airline employee was found to have acted mala fide in refusing to remedy the initial failure. The airline and the employee were found to be in contempt of court. Lin and Another v Minister of Home Affairs and Others 2015 (4) SA 197 (GJ)
SOUTH AFRICAN CRIMINAL LAW REPORTS
Unlawful arrest and rape by the police
The plaintiff was a 22-year-old woman who was wrongfully arrested and detained and whilst in detention went through a terrifying ordeal of sexual assault by a police officer. Mrasi v Minister of Safety and Security 2015 (2) SACR 28 (ECG)
Negligence of magistrate not wrongful
The court found that a magistrate had been grossly negligent in ignoring the accused and their attorney, and her failure to pay attention to the concerns raised with her had led to their continued detention. However, the magistrate was not liable for his or her negligent conduct when performing his or her judicial functions, because, for reasons of public and legal policy, his or her conduct was not regarded as wrongful. Minister of Safety and Security and Others v Van Der Walt and Another 2015 (2) SACR 1 (SCA)
Mistaken car leads to unlawful arrest
The court examines the reasonable suspicion of the police, when in this case they arrested two suspects with a black Toyota Yaris, when the robbers had escaped in a dark-grey Yaris. Mawu and Another v Minister of Police 2015 (2) SACR 14 (WCC)
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SOUTH AFRICAN LAW REPORTS
TABLE OF CASES
COUGHLAN NO v ROAD ACCIDENT FUND (CC)
MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAPPIE AJ, KHAMPEPE J, MADLANGA J, MOLEMELA AJ, NKABINDE J and TSHIQI AJ
2015 FEBRUARY 12; APRIL 20
Delict - Specific forms—Loss of support—Dependant’s action—Foster child and child support grants not to be deducted from damages for loss of support.
HANSA SILVER (PTY) LTD AND OTHERS v OBIFON (PTY) LTD t/a THE HIGH STREET AUCTION CO (SCA)
NAVSA ADP, SHONGWE JA, SALDULKER JA, VAN DER MERWE AJA and MEYER AJA
2015 MARCH 3, 30
Auction - Printed conditions of sale—Bids made by auctioneer on behalf of the sellers (vendor bidding)—Only permissible in auction with reserve and price—Prior notice must be given that auction subject to reserve price and vendor bidding—Not required that vendor bids be identified as such but not doing so may, in certain circumstances, constitute misrepresentation inducing sale—Consumer Protection Act 68 of 2008, ss 45(4) and (5).
DIRECTOR OF PUBLIC PROSECUTIONS, WESTERN CAPE v PARKER (SCA)
BRAND JA, SHONGWE JA, LEACH JA, PILLAY JA and WILLIS JA
2014 NOVEMBER 12, 21
Revenue - Value-added tax—Offences—Failure by VAT vendor to pay VAT collected over to commissioner—Whether misappropriation by VAT vendor of VAT collected on behalf of commissioner sustaining charge of commonlaw theft—Value–Added Tax Act 89 of 1991, ss 28(1)(b) and 58.
NEWLANDS SURGICAL CLINIC (PTY) LTD v PENINSULA EYE CLINIC (PTY) LTD (SCA)
BRAND JA, LEWIS JA, PILLAY JA, DAMBUZA AJA and MAYAT AJA
2015 MARCH 5, 20
Company - Register of companies—Reinstatement—Effect—Whether s 83(4) available after reinstatement—Companies Act 71 of 2008, ss 82(4) and 83(4).
STRANSHAM-FORD v MINISTER OF JUSTICE AND CORRECTIONAL SERVICES AND OTHERS (GP)
2015 APRIL 29–30; MAY 4
Medicine - Euthanasia—Voluntary active euthanasia—Doctor-assisted suicide—Court granting application by terminally ill person for order allowing willing doctor to assist him in terminating his life—Doctor may either supply or administer lethal substance—Conduct would not render doctor criminally or civilly accountable.
LEHANE NO v LAGOON BEACH HOTEL (PTY) LTD AND OTHERS (WCC)
2014 OCTOBER 17; 2015 JANUARY 23
Insolvency - Foreign insolvency—Declaration of insolvency by court in foreign state—No bar to domestic court in South Africa adjudicating issue pertaining to such person.
Insolvency - Trustee—Foreign trustee—Recognition—Where trustee appointed by foreign court within whose jurisdiction insolvent not domiciled—Could be granted under exceptional circumstances and by reason of exceptional considerations of convenience.
GENESIS MEDICAL SCHEME v REGISTRAR OF MEDICAL SCHEMES AND ANOTHER (WCC)
2014 NOVEMBER 10; DECEMBER 24
Medicine - Medical aid scheme—Financial arrangements—Assets—Member’s credit balance in personal savings account constituting asset of scheme—Medical Schemes Act 131 of 1998, s 35(3) and s 35(9).
CONEKT BUSINESS GROUP (PTY) LTD v NAVIGATOR COMPUTER CONSULTANTS CC (GJ)
2014 MAY 28; JUNE 27
Practice - Judgments and orders—Default judgment—Rescission—Partial rescission—May be done provided judgment divisible into discrete defensible and non-defensible parts—Uniform Rules of Court, rule 31(2)(b).
KIDBROOKE PLACE MANAGEMENT ASSOCIATION AND ANOTHER v WALTON AND OTHERS NNO (WCC)
2015 MARCH 25
Trust - Trustee—Removal—Who may claim and when—Trust Property Control Act 57 of 1988, s 20(1).
Trust - Trustee—Purchase of immovable property from trust—Court must confirm.
LEKOTA AND ANOTHER v SPEAKER, NATIONAL ASSEMBLY AND ANOTHER (WCC)
FOURIE J, LE GRANGE J and HENNEY J
2012 DECEMBER 11
Constitutional law - Separation of powers—Between legislature and judiciary—Judicial review of Speaker’s rulings—Whether competent—Constitution, ss 42(1), 58 (1)(a) and 172(1)(a).
Constitutional law - Parliament—Speaker—Powers—Rulings—Lawfulness of ruling statement by member out of order—Test formulated—In circumstances of present case, ruling lawful—Constitution ss 42(1), 58(1)(a) and 172(1)(a).
MALEMA AND ANOTHER v CHAIRMAN, NATIONAL COUNCIL OF PROVINCES AND ANOTHER (WCC)
BOZALEK J and CLOETE J
2014 NOVEMBER 24; 2015 APRIL 15
Constitutional law - Separation of powers—Between legislature and judiciary—Judicial review of Speaker’s rulings—Whether competent—Constitution, ss 42(1), 58(1)(a) and 172(1)(a).
Constitutional law - Parliament—Speaker—Powers—Rulings—Lawfulness of ruling statement by member out of order—Test formulated—In circumstances of present case, ruling unlawful—Constitution ss 42(1), 58(1)(a) and 172(1)(a).
FRIEDSHELF 1509 (PTY) LTD t/a RTT GROUP AND OTHERS v KALIANJI (GJ)
2014 NOVEMBER 14; 2015 FEBRUARY 16
Discovery and inspection - Anton Piller order—Burden of proof—Return day—Strong prima facie case to be made out of cause of action to which order relates.
KETSEKELE v ROAD ACCIDENT FUND (GP)
2015 MAY 5
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—Unnecessary medicolegal reports commissioned for trivial injury—No intention to call experts—Scam to plunder RAF—RAF complicit—Recommended that fault principle be abandoned to stem abuse of system—Judgment forwarded to professional bodies concerned.
LIN AND ANOTHER v MINISTER OF HOME AFFAIRS AND OTHERS (GJ)
2014 AUGUST15; SEPTEMBER 12; NOVEMBER 11, 18
Contempt of court - Disobedience of court order—International airline—Boarding children of permanent residents in defiance of court orders—Ignoring subsequent orders to return them on next available flight—Court jurisdiction over ‘inadmissible facility’ reaffirmed—Defiance of initial orders inherently wilful and mala fide—Senior employee mala fide in refusing to remedy initial failure—Airline and senior employee in contempt, latter in personal capacity.
TRUSTEES, SIMCHA TRUST v DE JONG AND OTHERS (SCA)
NAVSA ADP, BRAND JA, MHLANTLA JA, ZONDI JA and SCHOEMAN AJA
2015 FEBRUARY 26; MARCH 26
Administrative law - Administrative action—Review—Remedies—Compensation—Not available if administrative action set aside and matter remitted—‘Exceptional cases’ justifying compensation referring to administrator’s choice of remedy, not quality of his or her decision—Courts should not order compensation in the absence of dishonesty—Promotion of Administrative Justice Act 3 of 2000, s 8(1)(c)(ii)(bb).
PICK ’N PAY RETAILERS (PTY) LTD v LIBERTY GROUP LTD AND OTHERS (GP)
2014 SEPTEMBER 9; NOVEMBER 19
Delict - Specific forms—Interference with contractual relationship—Present where third party’s conduct such that contracting party not obtaining performance entitled to ex contractu—Inducement and breach of contract not prerequisites for successful action.
EDCON v STEENKAMP, AND RELATED MATTERS (LAC)
TLALETSI DJP, MUSI JA and MURPHY AJA
2014 OCTOBER 23 2015 MARCH 3
Labour law - Dismissal—Notice of termination—Prescribed statutory procedures and notice periods in Labour Relations Act 66 of 1995, ss 189A(2)(a) and 189A(8)—Whether non-compliance rendering subsequent dismissal invalid.
BL v FL AND ANOTHER (FB)
2014 AUGUST 14; OCTOBER 30
Marriage - Divorce—Proprietary rights—Pension benefits—Non-member spouse’s share—Parties married in community of property—Non-member spouse seeking to compel furnishing of information regarding member spouse’s pension fund—Whether requirements for mandatory interdict established—Answer in affirmative.
SOLIDARITY AND OTHERS v DEPARTMENT OF CORRECTIONAL SERVICES AND OTHERS (LAC)
WAGLAY JP, DAVIS JA and MNGQIBISA-THUSI AJA
2015 FEBRUARY 19; APRIL 10
Labour law - Employment equity—Affirmative action—Discrimination within ‘designated groups’ under Employment Equity Act—Whether by setting employment targets based solely on national demographics and ignoring regional demographics, equity plan contravening Employment Equity Act 55 of 1998, ss 6(2)(a) and 42(1)(a).
Labour law - Employment equity—Affirmative action—Quota—What constitutes—Whether by not providing for deviations based on individual circumstances, equity plan establishing quota contravening Employment Equity Act 55 of 1998, s 15(3).
GOLD FIELDS LTD AND OTHERS v MOTLEY RICE LLC (GJ)
2015 FEBRUARY 24; MARCH 19
Champerty - Funding of litigation by non-party—Foreign law firm funding South African lawyer representing indigent mineworkers on contingencyfee basis—Whether foreign firm to be joined in mineworkers’ application for certification of class action in order to render it susceptible to costs order.
SOUTH AFRICAN CRIMINAL LAW REPORTS
TABLE OF CASES
MINISTER OF SAFETY AND SECURITY AND OTHERS v VAN DER WALT AND ANOTHER (SCA)
MPATI P, TSHIQI JA, THERON JA, SWAIN JA and MOCUMIE AJA
2014 SEPTEMBER 9; NOVEMBER 19
Court - Judicial officer—Liability of—Vicarious liability—For negligence whilst performing judicial functions—For reasons of public and legal policy, magistrate’s negligent conduct not regarded as wrongful—No liability attaching to magistrate in that regard and therefore Minister of Justice not vicariously liable either.
MAWU AND ANOTHER v MINISTER OF POLICE (WCC)
2014 MAY 14; FEBRUARY 10–12, 17–18
Arrest - Legality of—Arrest without a warrant—Criminal Procedure Act 51 of 1977, s 40(1)—Reasonable suspicion—What constitutes—Requirements of s 40(1)(b) discussed—Officer arresting owner of vehicle after he had been given registration number of vehicle speeding away from robbery—Although registration numbers the same, discrepancy in description of vehicle—In circumstances ought to have made further investigation before making arrest—Arrest unlawful.
MRASI v MINISTER OF SAFETY AND SECURITY (ECG)
2014 AUGUST 4–8, 18
Damages - Measure of—For unlawful arrest, detention and assault—Wrongful and unlawful arrest and detention by two police officials—Whilst in detention, raped anally and vaginally by male police officer in police cells—As result suffered post-traumatic stress disorder, requiring future medical attention—Award of R425 000 for contumelia and general damages for assault, R100 000 for wrongful arrest and detention and R13 113 for future medical expenses.
S v COTENBERG (WCC)
HENNEY J, DOLAMO J and MANTAME J
2014 MAY 30
Court - High Court—Full court—Absence of member of—Where all judges who constituted court on previous occasion no longer available, no reason why matter could not start de novo—Provisions of s 17(2) of Supreme Court Act 59 of 1959 and s 14(5) of Superior Courts Act 10 of 2013 had to be interpreted purposively.
S v NTSHONYANE AND ANOTHER (FB)
DAFFUE J and MURRAY AJ
2014 AUGUST 21
Verdict - Correction of—Charge and conviction of—Contravention of Aliens Control Act 96 of 1991—Aliens Act had been repealed in entirety by Immigration Act 13 of 2002—Section 9(4) of new Act was new version of s 23(a) of repealed Act—Although it was doubtful that conviction under s 9(4) could be seen as competent verdict on charge under s 23(a), in terms of s 54 of new Act anything done under provisions of law repealed by that Act and which could have been done under new Act was deemed to have been done under new Act—No prejudice to accused if conviction and sentence were deemed to have been imposed in terms of new Act.
S v GR (SCA)
CACHALIA JA, WILLIS JA and SCHOEMAN AJA
2014 SEPTEMBER 9, 26
Trial - The accused—Accused not legally represented—Magistrate failing to explain to accused who was facing sentence of life imprisonment that he was entitled to legal representation—Evident from record that accused an unsophisticated person who had difficulty cross-examining—Failure to explain accused’s rights amounting to irregularity in circumstances vitiating entire trial—Conviction and sentence set aside.
TSHIKANE v MINISTER OF CORRECTIONAL SERVICES AND OTHERS (GJ)
2014 OCTOBER 6, 17
Prison - Prisoners—Rights of—Transfer of prisoner to different prison—Multitude of urgent applications coming before court to interdict transfer—Time may have arrived that such matters be heard in court convened in prison because of administrative and security issues involved. Prison—Prisoners—Rights of—Transfer of prisoner to different prison—Prisoner entitled to be informed of reasons for transfer in terms of s 43 of Correctional Services Act 111 of 1998.
NEW RELEASES FROM JUTA
South African Sheriffs’ Guide: Practice and Procedure, The (Print)
Commentary on the Consumer Protection Act
Guide to the Protection of Personal Information Act, A