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June 2013

Dear South African Law Reports and Criminal Law Reports subscriber

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

To be released at the end of May is the latest cumulative index to the South African Criminal Law Reports, covering the years 2010--2012.

Juta's law reports stock-reduction sale has begun, and will run until the end of June. Substantial discounts are being offered on part and full sets of the South African Law Reports and the South African Criminal Law Reports. Download the brochure here for more details.

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

SOUTH AFRICAN LAW REPORTS

The Dalai Lama and the visa that never came

When the Dalai Lama’s visit to the country had to be cancelled because of the delay in processing his visa, the only inference that could be drawn was that Home Affairs were intent upon procrastination, that the matter had been deliberately delayed so as to avoid a decision. The minister had unreasonably delayed her decision on the visa and had acted unlawfully. Buthelezi and Another v Minister of Home Affairs and Others 2013 (3) SA 325 (SCA)

Eviction of disabled mother and children

Where proceedings for the eviction of a disabled mother involve the eviction of the children, the court has to consider the rights and the needs of the children, the disabled mother and the woman-headed household. The question whether alternative accommodation was available to the mother and children is a highly relevant consideration in such circumstances.  Where the case involves the unfortunate family dynamic of a father seeking to evict his minor children with their mother, the circumstances cry out for a solution by way of mediation and engagement short of going to court. Arendse v Arendse and Others 2013 (3) SA 347 (WCC) 

National demographics a barrier to policewoman's promotion

An Indian woman was refused promotion on the grounds that it would conflict with the national racial demographic. She challenged the decision on the grounds that it amounted to unfair discrimination since the plan was an absolute barrier to her appointment, and that the manner of its implementation and the targets set were inconsistent and arbitrary, and thus unfair. Naidoo v Minister of Safety and Security and Others 2013 (3) SA 486 (LC)

SOUTH AFRICAN CRIMINAL LAW REPORTS

Was guilty plea made while accused mentally impaired?

The applicant supplied affidavits from psychologists and applied to set aside his conviction for murder, maintaining that he was not in his sound and sober senses when he appeared in court. The case was one where the interests of justice demanded that the evidence be properly tested and evaluated, and was accordingly referred for the hearing of oral evidence. S v Sewnarain 2013 (1) SACR 543 (KZP)

Appeal conundrum

When the accused’s case reached the full bench on appeal against sentence, the court found that there was merit in an appeal against the conviction, but no leave had been granted for this, so the court was powerless to consider it, and had to make a provisional determination, pending grant of leave to appeal by the President of Supreme Court of Appeal. S v Mazongolo 2013 (1) SACR 564 (WCC)

Right to a lawyer when making a statement to police

The policeman had offered to stop proceedings so that the accused could acquire a lawyer, but the accused decided to proceed and make a statement. It is not expected of the police officer taking a confession or statement to offer an accused person any legal advice as to how best to exercise his or her rights. There is no duty on the police to provide any further assistance than what is required in the Constitution.  S v Mngeni 2013 (1) SACR 583 (WCC)

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SOUTH AFRICAN LAW REPORTS

TABLE OF CASES

  • Buthelezi and Another v Minister of Home Affairs and Others 2013 (3) SA 325 (SCA)

  • Trustees, Estate Whitehead v Dumas and Another 2013 (3) SA 331 (SCA)

  • Kadoma Trading 15 (Pty) Ltd v Noble Crest CC 2013 (3) SA 338 (SCA)

  • Arendse v Arendse and Others 2013 (3) SA 347 (WCC)

  • Wright v Wright and Another 2013 (3) SA 360 (GSJ)

  • Chetty v Italtile Ceramics Ltd 2013 (3) SA 374 (SCA)

  • Gore and Others NNO, Ex parte 2013 (3) SA 382 (WCC)

  • Sil and Others v Road Accident Fund 2013 (3) SA 402 (GSJ)

  • Imvula Quality Protection (Pty) Ltd v Loureiro and Others 2013 (3) SA 407 (SCA)

  • Absa Technology Finance Solutions (Pty) Ltd v Michael’s Bid A House CC and Another 2013 (3) SA 426 (SCA)

  • Law Society of the Cape of Good Hope v Randell 2013 (3) SA 437 (SCA)

  • Heritage Hill Home Owners’ Association v Heritage Hill Devco (Pty) Ltd 2013 (3) SA 447 (GNP)

  • Minister of Safety and Security v Jongwa and Another 2013 (3) SA 455 (ECG)

  • Tsung and Another v Industrial Development Corporation of South Africa Ltd and Another 2013 (3) SA 468 (SCA)

  • Naidoo v Minister of Safety and Security and Others 2013 (3) SA 486 (LC)

  • Nedbank Ltd v Soneman and Another 2013 (3) SA 526 (ECP)

  • Scalabrini Centre and Others v Minister of Home Affairs and Others 2013 (3) SA 531 (WCC)

  • BHP Billiton plc Inc and Another v De Lange and Others 2013 (3) SA 571 (SCA)

  • M & G Media Ltd v President of the Republic of South Africa and Others 2013 (3) SA 591 (GNP)

  • Steve Tshwete Local Municipality v Fedbond Participation Mortgage Bond Managers (Pty) Ltd and Another 2013 (3) SA 611 (SCA)

  • Absa Bank and Others v Robb 2013 (3) SA 619 (GSJ)

  • Alina II, MV 2013 (3) SA 626 (WCC)

  • Kumba Shipping Hong Ltd v Prima Shipping Co Ltd and Another, In re: MV Alina II 2013 (3) SA 626 (WCC)

FLYNOTES

BUTHELEZI AND ANOTHER v MINISTER OF HOME AFFAIRS AND OTHERS (SCA)

NUGENT JA, HEHER JA, TSHIQI JA, WALLIS JA and MBHA AJA

2012 NOVEMBER 12, 29

Immigration—Aliens—Admission—Minister unreasonably delayed her decision to grant or withhold visas to Dalai Lama and entourage, and in so doing acted unlawfully—Order to this effect granted on appeal.

TRUSTEES, ESTATE WHITEHEAD v DUMAS AND ANOTHER (SCA)

LEWIS JA, PONNAN JA, CACHALIA JA, THERON JA and PETSE JA

2013 MARCH 1, 20

Banker—Bank deposit—Fraudulent misrepresentation inducing deposit—W inducing D to make deposit into W’s account—Whether W acquiring right to funds—Bank becoming owner of moneys on their deposit into W’s account, with W acquiring right to them under bank-customer agreement.

EnrichmentCondictio ob turpem vel iniustam causam—W inducing D by fraudulent misrepresentations to pay moneys into W’s bank account for investment in unlawful scheme—Whether W acquiring right against bank to funds, or W acquiring no right and bank enriched at D’s expense—No enrichment because causa existing for transfer—Bank becoming owner of moneys on their deposit into W’s account, with W acquiring right to their payment under bank-customer agreement.

KADOMA TRADING 15 (PTY) LTD v NOBLE CREST CC (SCA)

MAYA JA, SHONGWE JA, PILLAY JA, ERASMUS AJA and SWAIN AJA

2013 MARCH 1, 28

Close corporation—Deregistration—Restoration to register—Effect—Agreements concluded while corporation was deregistered are valid—Close Corporations Act 69 of 1984, s 26(7).

ARENDSE v ARENDSE AND OTHERS (WCC)

MEER J

2012 JUNE 5; JULY 30; AUGUST 20

Land—Unlawful occupation—Eviction—Statutory eviction—Vulnerable persons—Disabled mother and children—Court to be specially sensitive to rights and needs of children, disabled mothers and woman-headed households—Availability of alternative accommodation highly relevant—Consideration of these factors prerequisite to court arriving at opinion that just and equitable to evict—Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, s 4(6) and (7).

Land—Unlawful occupation—Eviction—Statutory eviction—Role of court—Duty to be proactive—Court to encourage parties to find mutually acceptable solutions and to participate in mediation—Court to obtain report from municipality where eviction might lead to homelessness—Failure to consider any of these options constituting fundamental procedural flaw.

WRIGHT v WRIGHT AND ANOTHER (GSJ)

KATHREE-SETILOANE J

2012 AUGUST 29; DECEMBER 7

Practice—Reference of particular matter to referee—Referee’s report—Discretion of court to make ‘such other order in regard thereto as may be necessary or desirable’—Empowering court to set aside referee’s report if patently unreasonable, irregular or incorrect; or to refer report or aspects thereof to oral evidence or trial if real dispute of fact shown to exist—Supreme Court Act 59 of 1959, s 19 bis.

CHETTY v ITALTILE CERAMICS LTD (SCA)

MALAN JA, BRAND JA, PILLAY JA, SOUTHWOOD JA and ERASMUS AJA

2012 NOVEMBER 16, 28

Delict—Specific forms—Condictio furtivaFurtum usus—What constitutes—Stock rolling and implementation of unauthorised delivery system—Liability for furtum usus—Stock-rolling not constituting use of stock—Sale of stock pursuant to unauthorised delivery system regarded as use of goods—However, insufficiently closely or directly linked to loss for legal liability to ensue.

EX PARTE GORE AND OTHERS NNO (WCC)

BINNS-WARD J

2012 DECEMBER 14; 2013 FEBRUARY 13

Company—Legal personality—Separate identity—Common-law doctrine of ‘piercing corporate veil’—Case law considered and principles restated—Supplemented (not substituted) by introduction of statutory basis for disregarding corporate personality—Companies Act 71 of 2008, s 20(9).

Company—Legal personality—Separate identity—Statutory basis for disregarding corporate personality—Supplementing (not substituting) common-law doctrine of piercing corporate veil—Companies Act 71 of 2008, s 20(9).

Company—Legal personality—Separate identity—Statutory basis for disregarding corporate personality—Remedy available whenever illegitimate use of concept of juristic personality adversely affecting third party in way that reasonably should not be countenanced—In instant case, conduct of controllers of companies who treated group in way not drawing proper distinction between separate personalities of constituent members, within ambit of provision—Companies Act 71 of 2008, s 20(9).

Company—Legal personality—Separate identity—Statutory basis for disregarding corporate personality—Meaning of undefined term ‘any interested person’ who may apply for such relief—Person having direct and sufficient interest in relief sought—Companies Act 71 of 2008, s 20(9).

SIL AND OTHERS v ROAD ACCIDENT FUND (GSJ)

SUTHERLAND J

2012 JUNE 8, 11

Motor vehicle accident—Compensation—Claim against Road Accident Fund—Limits—Limit in respect of loss of income or support—Calculation—Purpose of limit and method of its calculation set out—Limit not intended to interfere with calculation of loss—Contingencies to be dealt with before capping applied—Road Accident Fund Act 56 of 1996, s 17(4)(c).

IMVULA QUALITY PROTECTION (PTY) LTD v LOUREIRO AND OTHERS (SCA)

MTHIYANE DP, CLOETE JA, MHLANTLA JA, BOSIELO JA and MBHA AJA

2012 NOVEMBER 21; 2013 MARCH 15

Delict—Elements—Negligence—What constitutes—Guard opening gate to robber posing as policeman—Held not negligent in circumstances.

ABSA TECHNOLOGY FINANCE SOLUTIONS (PTY) LTD v MICHAEL'S BID A HOUSE CC AND ANOTHER (SCA)

LEWIS JA, THERON JA, PETSE JA, PLASKET AJA and SWAIN AJA

2013 FEBRUARY 26; MARCH 15

Appeal—In what cases—Against part of order—Although court will as a rule not entertain appeals against part of order, it might do so if balance of convenience dictates it or if matter in issue of general relevance (not case-specific).

Credit agreement—Consumer credit agreement—Whether agreement subject to NCA—Lease agreement—If lease does not provide for passing of ownership at end of its term, it is not subject to NCA—Extrinsic evidence contradicting written terms of lease to bring agreement within scope of NCA inadmissible in absence of plea of rectification, fraud or simulation—National Credit Act 34 of 2005, s 8(4).

Evidence—Parole evidence rule—Scope—Claim based on written agreement—Parole evidence not admissible to alter terms of written agreement in absence of plea of rectification, fraud or simulation—Court may not, under banner of giving effect to substance over form of written contract, admit evidence of intention of parties if such contrary to its terms.

LAW SOCIETY OF THE CAPE OF GOOD HOPE v RANDELL (SCA)

MTHIYANE DP, MAJIEDT JA, VAN DER MERWE AJA, SWAIN AJA and MBHA AJA

2013 FEBRUARY 21; MARCH 28

Practice—Stay of proceedings—Grounds—Criminal proceedings pending on same facts—Stay permissible where individual faces compulsion to speak and where he will likely be prejudiced in criminal proceedings.

HERITAGE HILL HOME OWNERS' ASSOCIATION v HERITAGE HILL DEVCO (PTY) LTD (GNP)

KOLLAPEN J

2012 NOVEMBER 14; 2013 FEBRUARY 5

Township—Establishment—Subdivision of land—Erven making up township coming into existence on registration of general plan—Developer becoming registered owner of individual erven in township—May be obliged to pay levies imposed by homeowner’s association.

Township—Developer—Rights and duties—Upon registration of general plan, developer becoming owner of individual erven making up township—Homeowners’ association entitled to impose levies on developer in respect of unsold erven—Such right must emanate from articles of association.

MINISTER OF SAFETY AND SECURITY v JONGWA AND ANOTHER (ECG)

PICKERING J and LOWE J

2013 FEBRUARY 28; MARCH 14

Recusal—On grounds of appearance of bias—What constitutes bias—Magistrate involved in sexual relationship with plaintiff’s attorney—Relationship having ended one year before trial—Issue one of degree of intimacy—Facts not sufficient to engender reasonable suspicion of bias—Application for setting-aside of judgment refused.

TSUNG AND ANOTHER v INDUSTRIAL DEVELOPMENT CORPORATION OF SOUTH AFRICA LTD AND ANOTHER (SCA)

LEWIS JA, CACHALIA JA, THERON JA, SCHOEMAN AJA and VAN DER MERWE AJA

2013 FEBRUARY 20; MARCH 25

Company—Directors and officers—Liability for debts of company—Reckless or fraudulent conduct of business of company—What constitutes—Directors concluding several transactions when business was unable to pay debts—Deliberate depletion of company’s assets, or misuse of corporate form for own purposes, constituting reckless trading—Directors liable—Companies Act 61 of 1973, s 424.

Company—Directors and officers—Liability for debts of company—Reckless or fraudulent conduct of business of company—Proof of causal link between reckless or fraudulent conduct and company’s inability to pay its debts—Not required where company ‘hopelessly insolvent’—Companies Act 61 of 1973, s 424.

NAIDOO v MINISTER OF SAFETY AND SECURITY AND OTHERS (LC)

SHAIK AJ

2012 DECEMBER 20; 2013 FEBRUARY 15

Constitutional law—Human rights—Right to equality—Right not to be unfairly discriminated against—Affirmative action—Discrimination within ‘designated groups’ under Employment Equity Act—Affirmative action measure raising de facto employment barrier on ground of race and gender—Such measure not consistent with constitutional right to equality and objective of creating non-racist, non-sexist society—Constitution, s 9(2) and Employment Equity Act 55 of 1998.

Labour law—Employment equity—Affirmative action—Discrimination within ‘designated groups’ under Employment Equity Act (the Act)—SAPS equity plan setting target for race representation creating de facto employment barrier at levels where positions few—Such construct at variance with Act’s prohibition against employment barriers and quotas, as well as with its promotion of ‘broadly representative’ workforce with ‘equitable representation’—Also inconsistent with constitutional right to equality and objective of creating non-racist, non-sexist society—Employment Equity Act 55 of 1998, ss 2, 6, 15(1) and 42(a)(i) and Constitution, s 9(2).

NEDBANK LTD v SONEMAN AND ANOTHER (ECP)

REVELAS J

2013 FEBRUARY 14

Practice—Judgments and orders—Default judgment—Rescission—Rescission under common law—Rescission based on consent—Judgment properly sought and obtained—Bank seeking to have judgment against client rescinded so as to restore client’s credit worthiness—Granting application would amount to falsification of past—Would set dangerous precedent—Application for rescission dismissed.

SCALABRINI CENTRE AND OTHERS v MINISTER OF HOME AFFAIRS AND OTHERS (WCC)

ROGERS J

2013 FEBRUARY 7; MARCH 19

Administrative law—Administrative action—Review—Grounds—Procedural fairness—Decision affecting asylum seekers not yet in country—Interested parties to be heard—Promotion of Administrative Justice Act 3 of 2000, s 4.

Review—Grounds—Rationality—Process preceding decision—Failure to consult interested parties rendering decision unlawful.

BHP BILLITON PLC INC AND ANOTHER v DE LANGE AND OTHERS (SCA)

MTHIYANE DP, CLOETE JA, MHLANTLA JA, LEACH JA and PETSE JA

2012 NOVEMBER 8; 2013 MARCH 15

Administrative law—Access to information—Access to information held by public body—Request—Refusal—Application to compel—Whether out of time—Two requests made—Whether amounting to same request—If so, then hit by 180-day deadline for applications to compel—Majority of court finding marked difference between requests, since second request couched in narrower terms—Application to compel accordingly not out of time—Promotion of Access to Information Act 2 of 2000, s 78(2).

Administrative law—Access to information—Access to information held by public body—Request—Refusal—Whether justified—Mandatory protection of commercial or confidential information of third party—Where disclosure would likely cause harm to third party—Eskom and aluminium smelter refusing to disclose discounted price smelter pays for electricity on ground that doing so would harm smelter—Majority of court finding that, since much of requested information already in public domain, information not protected—Promotion of Access to Information Act 2 of 2000, s 36(1)(b).

Administrative law—Access to information—Access to information held by public body—Request—Refusal—Whether justified—Mandatory protection of commercial or confidential information of third party—Where disclosure would constitute breach of duty of confidence owed to third party in terms of agreement—Smelter refusing to disclose discounted price it pays for electricity on ground that doing so would breach duty of confidence—No express provision imposing confidentiality—Acceptance of reciprocal duty of confidentiality between public body and third party not sufficient to trigger protection—Promotion of Access to Information Act 2 of 2000, s 37(1)(a).

M & G MEDIA LTD v PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS (GNP)

RAULINGA J

2012 JUNE 14–15; AUGUST 6–7 2013,  FEBRUARY 14

Administrative law—Access to information—Access to information held by public body—Request—Refusal—Disclosure of record to court—Meaning of ‘court . . . may not disclose to any person’ in s 80(2) of PAIA—Use of ‘may’ to be interpreted as ‘shall’—Accordingly, at ex parte representation stage court ‘shall not’ disclose record to requester or his/her legal representative—Promotion of Access to Information Act 2 of 2000, s 80(2).

Administrative law—Access to information—Access to information held by public body—Request—Refusal—Disclosure of record to court—Court exercising its discretion to receive ex parte representations from parties—Such representations to be made on affidavit—However, court retaining its inherent discretion—Promotion of Access to Information Act 2 of 2000, s 80(3)(a) read with rule 4(1)(a) to PAIA.

Administrative law—Access to information—Access to information held by public body—Request—Refusal—Disclosure of record to court—Applications for admission of further evidence at ex parte representation stage—Such applications not lightly granted—Ex parte representation procedure not ‘opening floodgates’ for admission of further evidence—In circumstances of present case, admission of affidavit as further evidence denied, in absence of reasonably sufficient explanation as to why such evidence not tendered earlier—Promotion of Access to Information Act 2 of 2000, s 80(3)(a).

STEVE TSHWETE LOCAL MUNICIPALITY v FEDBOND PARTICIPATION MORTGAGE BOND MANAGERS (PTY) LTD AND ANOTHER (SCA)

MALAN JA, SHONGWE JA, VAN DER MERWE AJA, SALDULKER AJA and MBHA AJA

2013 FEBRUARY 26; MARCH 20

Local authority—Rates—Rates clearance certificate—Properties of corporation in liquidation—To obtain certificate, rates to be paid for period in Local Government Act, not period in Insolvency Act—Insolvency Act 24 of 1936, s 89(1); Local Government: Municipal Systems Act 32 of 2000, s 118(1).

ABSA BANK AND OTHERS v ROBB (GSJ)

BORUCHOWITZ J and MOLAHLEHI AJ

2013 MARCH 14

Costs—Against public official—Debt counsellor under National Credit Act 34 of 2005—Principle that official ought not to be subjected to costs yielding to principle that party withdrawing case must pay opposing party’s costs.

MV ALINA II

IN RE KUMBA SHIPPING HONG KONG LTD v PRIMA SHIPPING CO LTD AND ANOTHER (WCC)

GAMBLE J

2012 MARCH 13–14; MAY 22; 2013 JANUARY 28

Shipping—Admiralty law—Maritime claim—Enforcement—Action in rem—Arrest—Bunkers arrest—Ownership—Sub-charterer arresting bunkers on grounds that ownership vesting in charterer—Charterer disputing ownership—Charterer described as disponent owner of vessel—Consistent with demise or time charter—Ownership of bunkers accordingly vesting in charterer—Evidence to effect that charter in effect voyage charter and bunkers thus vesting in shipowner rejected as unreliable—Arrest upheld.

Shipping—Admiralty law—Admiralty practice—Application for setting aside of arrest—Referral to oral evidence—Categorisation of charter party required—Court finding that charter party produced as evidence of agreement between applicant and shipowner fraudulent—Applicant’s version of events rejected—Arrest upheld.

SOUTH AFRICAN CRIMINAL LAW REPORTS

TABLE OF CASES

  • National Director of Public Prosecutions v Van Staden and Others 2013 (1) SACR 531 (SCA)

  • S v Sewnarain 2013 (1) SACR 543 (KZP)

  • S v Bangiso 2013 (1) SACR 558 (GNP)

  • S v Mazongolo 2013 (1) SACR 564 (WCC)

  • S v Lunga and Others 2013 (1) SACR 578 (FB)

  • S v Mngeni 2013 (1) SACR 583 (WCC)

  • S v Mashiloane 2013 (1) SACR 587 (GNP)

  • Hlomza v Minister of Safety and Security and Another 2013 (1) SACR 591 (ECM)

  • Avontuur and Associates Incorporated and Another v Chief Magistrate, Oudtshoorn and Others 2013 (1) SACR 615 (WCC)

FLYNOTES

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v VAN STADEN AND OTHERS (SCA)

LEWIS JA, MALAN JA, WALLIS JA, PILLAY JA and MBHA AJA

2012 NOVEMBER 9, 28

Prevention of crime—Restraint order in terms of Prevention of Organised Crime Act 121 of 1998—Appeal against discharge of provisional order under s 26—Order appealable.

Prevention of crime—Restraint order in terms of Prevention of Organised Crime Act 121 of 1998—Application for under s 26—Approach to—Provisional restraint orders not draconian in nature.

Prevention of crime—Restraint order in terms of Prevention of Organised Crime Act 121 of 1998—Application for under s 26—Requirement of good faith on part of applicant for provisional order—Evidence of accomplice relied on for provisional order provided by means of affidavit filed expeditiously after order granted—Statement included on CD supplied to defendant—Applicant not acting in bad faith.

S v SEWNARAIN (KZP)

SWAIN J and HENRIQUES J

2012 AUGUST 2; SEPTEMBER 17

Application—Court’s powers—Referral for oral evidence—Application for setting-aside of conviction for murder and sentence of life imprisonment—Question of applicant’s mental state at time of trial could not be determined on the papers—Court referring matter for hearing of oral evidence of own accord.

S v BANGISO (GNP)

MAVUNDLA J and VAN DER BYL AJ

2012 NOVEMBER 16

Sentence—Correctional supervision—Imprisonment from which accused may be released and placed under correctional supervision at discretion of Commissioner of Correctional Services, s 276(1)(i) of Criminal Procedure Act 51 of 1977—Court is not competent under section to impose two or more sentences of imprisonment which in total exceed period of five years.

S v MAZONGOLO (WCC)

BLIGNAULT J, YEKISO J and STEYN J

2012 AUGUST 7

Appeal—Appeal against sentence—Trial judge granting leave to appeal against sentence only—High court full bench on appeal of view that there was merit in appeal against conviction—Powerless to consider, as no leave granted in this regard—Court making provisional determination regarding appeal against conviction, pending grant of leave to appeal by President of SCA.

S v LUNGA AND OTHERS (FB)

VAN DER MERWE J and MATLAPENG AJ

2012 NOVEMBER 12; DECEMBER 6

Sentence—Prescribed sentences—Minimum sentences—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—‘Substantial and compelling circumstances’—Rape of prison inmate by fellow prisoners—Appellants youthful offenders who could be rehabilitated—Taking into account cumulative effect of sentences appellants already serving—Meriting imposition of lesser sentence—Sentence of 15 years’ imprisonment imposed on four of five offenders and 20 years’ imprisonment in respect of one offender.

S v MNGENI (WCC)

HENNEY J

2012 NOVEMBER 6

Evidence—Confession—Admissibility of—Confession made to police officer—Assistance to accused—No duty on police to provide any legal advice or assistance other than what is required by Constitution, s 35.

S v MASHILOANE (GNP)

MAVUNDLA J and MSIMEKI J

2012 SEPTEMBER 17

Theft—Sentence—Accused convicted of theft of food to value of R49,97—First offender who earned little income sentenced to fine of R3000 or six months’ imprisonment wholly suspended—Sentence shockingly inappropriate—Reduced to fine of R1500 or three months’ imprisonment wholly suspended.

HLOMZA v MINISTER OF SAFETY AND SECURITY AND ANOTHER (EMC)

PAKADE ADJP, D VAN ZYL J and NOTUNUNU AJ

2012 SEPTEMBER 4

Police—Liability of—Use of firearm by off-duty policeman who shot his wife and killed himself—Police authorities aware that he was emotionally unstable and violent—His death not too remotely foreseeable—Police held liable for dependant’s claim for allowing him to keep firearm.

AVONTUUR & ASSOCIATES INC AND ANOTHER v CHIEF MAGISTRATE, OUDTSHOORN, AND OTHERS (WCC)

DLODLO J

2012 MAY 8; JUNE 6

Search and seizure—Search warrant—Validity of—Seizure of attorney’s documents relating to investigation against attorney by client—Privilege—Imputed waiver of privilege by client—Claim to privilege by attorney not genuine—Warrant valid.

Search and seizure—Search warrant—Application for—Whether obligation on investigating officer to show that there was less invasive means of obtaining documents—State not required to show that less invasive means would not produce documents.

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