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June 2014

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases of interest in the June reports.

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

SOUTH AFRICAN LAW REPORTS

Psychiatric injury claim against Road Accident Fund

To sustain such a claim, psychiatric evidence was required that was clear and cogently reasoned. Grief would not be compensable. The insured driver’s act also had to be linked closely enough to the loss for liability. Hing and Others v Road Accident Fund 2014 (3) SA 350 (WCC)

Attorney as debt counsellor?

A person may practice as both debt counsellor and attorney, and may charge both debt-counselling fees and attorney’s fees, however, these must be within the bounds of the National Credit Act. Bornman v National Credit Regulator 2014 (3) SA 384 (SCA)

School desks required for right to education

It was found that the department of education was violating children’s constitutional right to a basic education, by failing to provide adequate and appropriate furniture which would enable each child to have their own reading and writing space. Madzodzo and Others v Minister of Basic Education and Others 2014 (3) SA 441 (ECM)

SOUTH AFRICAN CRIMINAL LAW REPORTS

Media access to a criminal trial

There was great public interest in the criminal trial because the accused was a sports icon, and the media asked to televise the proceedings. The court had to balance the interests of open justice, the right of freedom of expression, and right to a fair trial. The court granted full audio and limited audiovisual and photographic coverage of the trial. Multichoice (Pty) Ltd and Others v National Prosecuting Authority and Another: In Re S v Pistorius; Media 24 Ltd and Others v Director of Public Prosecutions, North Gauteng and Others 2014 (1) SACR 589 (GP)

Adding additional charges

Further charges may only be added before any evidence is led. The addition or substitution of charges later in the proceedings is irregular. S v Ncoko 2014 (1) SACR 607 (ECG) and S v Mhlambiso and Another 2014 (1) SACR 610 (ECG)

Prospects of an appeal

The mere possibility that another court might come to different conclusion is insufficient grounds for an appeal. There must be reasonable prospects of success, and the severity of the sentence imposed is not an issue when the appeal is against the merits. S v Kruger 2014 (1) SACR 647 (SCA)

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SOUTH AFRICAN LAW REPORTS

TABLE OF CASES

  • Theron and Another NNO v Loubser NO and Others 2014 (3) SA 323 (SCA)

  • Potgieter and Another v Howie and Others NNO 2014 (3) SA 336 (GP)

  • Hing and Others v Road Accident Fund 2014 (3) SA 350 (WCC)

  • Bornman v National Credit Regulator 2014 (3) SA 384 (SCA)

  • Loureiro and Others v iMvula Quality Protection (Pty) Ltd 2014 (3) SA 394 (CC)

  • Ex parte MS and Others 2014 (3) SA 415 (GP)

  • Janse van Rensburg v Mahu Exhaust CC and Another 2014 (3) SA 431 (NCK)

  • Madzodzo and Others v Minister of Basic Education and Others 2014 (3) SA 441 (ECM)

  • Commissioner, South African Revenue Service v Krok and Another 2014 (3) SA 453 (GP)

  • Gainsford and Others NNO v Tanzer Transport (Pty) Ltd 2014 (3) SA 468 (SCA)

  • MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd t/a Eye & Lazer Institute 2014 (3) SA 481 (CC)

  • National Association of Broadcasters v South African Music Performance Rights Association and Another 2014 (3) SA 525 (SCA)

  • National Union of Public Service and Allied Workers obo Mani and Others v National Lotteries Board 2014 (3) SA 544 (CC)

  • African National Congress v Democratic Alliance and Another 2014 (3) SA 608 (GJ)

  • Royal Anthem Investments 129 (Pty) Ltd v Lau and Another 2014 (3) SA 626 (SCA)

FLYNOTES

THERON AND ANOTHER NNO v LOUBSER NO AND OTHERS (SCA)

PONNAN JA, LEACH JA, MAJIEDT JA, WALLIS JA and PETSE JA

2013 NOVEMBER 13; DECEMBER 2

Trust—Trustee—Identity—Anyone with interest in trust has locus standi to approach court for declaration on identity of its trustees.

Appeal—To Supreme Court of Appeal—Issues—Separation—Parties seeking separation must apply for direction to this effect—Such will only be granted in rare instances.

 

POTGIETER AND ANOTHER v HOWIE AND OTHERS NNO (GP)

BAQWA J

2013 OCTOBER 29

Stock exchanges—Rules—Contravention—Appeal—To Financial Services Appeal Board after adverse ruling by stock exchange (JSE)—Power of board to vary ruling—May not substitute ruling with one of its own—May ‘vary’ it by upholding some facets of multifaceted ruling—Financial Services Board Act 97 of 1990, s 26B(15).

HING AND OTHERS v ROAD ACCIDENT FUND (WCC)

GRIESEL J, NDITA J and BINNS-WARD J

2014 JANUARY 29; FEBRUARY 13

Delict—Specific forms—Psychiatric injury—Law surveyed—Distinction between such injury and severe grief.

Delict—Specific forms—Psychiatric injury—Determination—To be based on psychiatric evidence.

Evidence—Expert evidence—Evaluation—Psychiatric evidence—Must be clear, cogently reasoned and preceded by summary—Uniform Rules of Court, rule 36(9)(b).

Delict—Elements—Causation—Legal causation—Loss of support—Wife injured in collision and dying—Two years later husband retrenched and claiming loss of support—Whether negligent driver’s act close enough to loss for liability.

Costs—Taxation—Taxing master—Role—Determining allowable expenses and attendances—Court may not usurp function—But court may express its views on costs to assist him—Uniform Rules of Court, rule 70(3).

BORNMAN v NATIONAL CREDIT REGULATOR (SCA)

LEWIS JA, PONNAN JA, MALAN JA, SHONGWE JA and SALDULKER JA

2013 SEPTEMBER 16, 26

Credit agreement—Consumer credit agreement—Debt counsellor—Registration—Cancellation—Breach of conditions and failure to comply with duties—Order made for refund of collection fees received in breach of NCA and conditions of registration—National Credit Act 34 of 2005, s 150(h).

Credit agreement—Consumer credit agreement—Debt counsellor—May also practise as attorney—May charge counselling fee qua debt counsellor and attorney’s fee for legal work required by NCA.

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

MOSENEKE ACJ, SKWEYIYA ADCJ, CAMERON J, DAMBUZA AJ, FRONEMAN J, JAFTA J, MADLANGA J, NKABINDE J, VAN DER WESTHUIZEN J and ZONDO J

2013 NOVEMBER 6; 2014 MARCH 20

Delict—Elements—Negligence—What constitutes—Guard opening gate to robber posing as policeman—Held that guard negligent.

EX PARTE MS AND OTHERS (GP)

KEIGHTLEY AJ

2013 NOVEMBER 1; DECEMBER 2

Children—Parents—Surrogate mother—Surrogate motherhood agreement—Confirmation by court—Agreement concluded post-fertilisation—May be retrospectively confirmed in appropriate circumstances—Children’s Act 38 of 2005, ss 292 and 295.

JANSE VAN RENSBURG v MAHU EXHAUST CC AND ANOTHER (NCK)

OLIVIER J

2014 JANUARY 31; FEBRUARY 21

Lease—Landlord—Hypothec—Exclusion—Movable subject to instalment agreement—Nature of instalment agreement—Security by Means of Movable Property Act 57 of 1993, s 2(1)(b).

MADZODZO AND OTHERS v MINISTER OF BASIC EDUCATION AND OTHERS (ECM)

GOOSEN J

2014 FEBRUARY 13, 20

Education—Right to education—Duties of state—Provision of school furniture—Non-provision violating right to basic education—Constitution, s 29(1)(a).

COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE v KROK AND ANOTHER (GP)

FABRICIUS J

2013 DECEMBER 2, 3; 2014 JANUARY 31

Revenue—Income tax—Recovery—On behalf of foreign government—Measure of proof required to obtain preservation order in terms of Tax Administration Act 28 of 2011, ss 163 and 185.

GAINSFORD AND OTHERS NNO v TANZER TRANSPORT (PTY) LTD (SCA)

NAVSA JA, MHLANTLA JA, LEACH JA, THERON JA and SWAIN AJA

2014 MARCH 12, 28

Company—Winding-up—Liquidator—Proceedings by and against—Citation—Proceedings brought by liquidator on behalf of company may be brought (1) in own name nomine officio or (2) in name of company—No merit in distinction between locus standi of company and that of its liquidator acting in representative capacity—Companies Act 61 of 1973, s 386(4)(a).

Company—Winding-up—Unlawful alienations and preferences—Void disposition—Court will disregard rule that disposition made after winding-up void ab initio only where interests of fairness and justice demand it—Never when there would be irreparable prejudice to creditors—Companies Act 61 of 1973, s 341(2).

MEC FOR HEALTH, EASTERN CAPE AND ANOTHER v KIRLAND INVESTMENTS (PTY) LTD t/a EYE & LAZER INSTITUTE (CC)

MOSENEKE ACJ, SKWEYIYA ADCJ, CAMERON J, DAMBUZA AJ, FRONEMAN J, JAFTA J, MADLANGA J, MHLANTLA AJ, NKABINDE J and ZONDO J

2013 NOVEMBER 12; 2014 MARCH

Administrative law—Administrative action—Invalidity—Consequences—Improper administrative decision by state official withdrawn by government—Validity of decision not subject of separate review application or counter-application—Government to follow proper forms and processes of review in setting aside decisions, even where defective.

Administrative law—Administrative action—Invalidity—Consequences—Status of improper administrative decision by state official—Decision remaining effectual until properly set aside.

NATIONAL ASSOCIATION OF BROADCASTERS v SOUTH AFRICAN MUSIC PERFORMANCE RIGHTS ASSOCIATION AND ANOTHER (SCA)

NAVSA JA, SHONGWE JA, SWAIN AJA, LEGODI AJA and MATHOPO AJA

2014 FEBRUARY 17; MARCH 14

Intellectual property—Copyright—Royalties—Sound recordings—Determination of rate of ‘needle time’ royalties payable by commercial and public radio stations to copyright owners for broadcast of sound recordings—Formula for determination of royalty rate set out—Failure of regulations to prescribe procedure for adjudication of royalty rate to be urgently addressed by minister.

Media—Broadcasting—Sound recordings—Royalties—Determination of rate of ‘needle time’ royalties payable by commercial and public radio stations to copyright owners for broadcast of sound recordings—Formula for determination of royalty rate set out—Failure of regulations to prescribe procedure for adjudication of royalty rate to be urgently addressed by minister.

NATIONAL UNION OF PUBLIC SERVICE AND ALLIED WORKERS obo MANI AND OTHERS v NATIONAL LOTTERIES BOARD (CC)

MOSENEKE ACJ, SKWEYIYA ADCJ, CAMERON J, DAMBUZA AJ, FRONEMAN J, JAFTA J, MADLANGA J, MHLANTLA AJ, NKABINDE J and ZONDO J

2013 NOVEMBER 19; 2014 APRIL 10

Labour law—Dismissal—Insubordination and disrepute—Derogatory statements about management—Petition for CEO to be retrenched—Statutory dispute-resolution process pending—Impugned conduct constituting lawful participation in union activities—Dismissal automatically unfair—Labour Relations Act 66 of 1995, s 4(2)(a).

AFRICAN NATIONAL CONGRESS v DEMOCRATIC ALLIANCE AND ANOTHER (GJ)

HELLENS AJ

2014 MARCH 27; APRIL 4

Election law—Electoral irregularities—Complaints—Publishing false statements or allegations with intention to influence conduct or outcome of election—What constitutes false statements or allegations—Not to be strictly interpreted as false if not entirely accurate—No violation of relevant provisions where statement and/or allegations constitute ‘fair comment’ as developed in law on defamation—Electoral Act 73 of 1998, s 89(2)(c) and item 9(1)(b)(ii) of sch 2.

Defamation—Defences—Fair comment—Meaning—Opinion that fair person might honestly hold—Objectively honest, genuine (though possibly exaggerated or prejudiced) expression of opinion relevant to facts upon which based, and not disclosing malice.

ROYAL ANTHEM INVESTMENTS 129 (PTY) LTD v LAU AND ANOTHER (SCA)

PONNAN JA, MHLANTLA JA, LEACH JA, MATHOPO AJA and MOCUMIE AJA

2014 FEBRUARY 21; MARCH 26

Conveyancer—Rights and duties—Duty upon cancellation of sale—Duty to repay transfer duty—Obliged to repay transfer duty to purchaser and not to hold it on behalf of seller.

Contract—Breach—Damages—Forfeiture of payments made by defaulting purchaser—Whether, upon proper interpretation, clause concerned envisaging forfeiture of deposit paid.

SOUTH AFRICAN CRIMINAL LAW REPORTS

TABLE OF CASES

  • Savoi and Others v National Director of Public Prosecutions and Another 2014 (1) SACR 545 (CC)

  • S v Tonkin 2014 (1) SACR 583 (SCA)

  • Multichoice (Pty) Ltd and Others v National Prosecuting Authority and Another: In re S v Pistorius; Media 24 Ltd and Others v Director of Public Prosecutions, North Gauteng and Others 2014 (1) SACR 589 (GP)

  • S v Ncoko 2014 (1) SACR 607 (ECG)

  • S v Mhlambiso and Another 2014 (1) SACR 610 (ECG)

  • Minister of Safety and Security v Kleinhans 2014 (1) SACR 613 (WCC)

  • S v Maswanganyi 2014 (1) SACR 622 (GP)

  • Randell v Eybers NO and Others 2014 (1) SACR 629 (ECP)

  • S v Kruger 2014 (1) SACR 647 (SCA)

FLYNOTES

SAVOI AND OTHERS v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AND ANOTHER (CC)

MOSENEKE ACJ, SKWEYIYA ADCJ, CAMERON J, DAMBUZA AJ, FRONEMAN J, JAFTA J, MADLANGA J, MHLANTLA AJ, NKABINDE J, and ZONDO J

2013 NOVEMBER 11; 2014 MARCH 20

Constitutional law—Locus standi—Abstract challenge to constitutional validity of legislation—Contention that definitions of offences so vague as to be unintelligible—Constitution consciously expansive to promote access to court, but courts treat abstract challenges with disfavour—Applicants in present matter had standing.

Prevention of crime—Offences—Contraventions of s 2(1) of Prevention of Organised Crime Act 121 of 1998—Constitutionality of—Definitions of ‘pattern of racketeering activity’ and ‘enterprise’ not invalid, void for vagueness or overbreadth—Definitions not vague and incorporation of common offences into list did not necessarily translate into vagueness—Overbreadth not a self-standing ground of constitutional invalidity.

Prevention of crime—Offences—Contraventions of s 2(1) of Prevention of Organised Crime Act 121 of 1998—Constitutionality of—Retrospectivity—Nothing retrospective (in sense envisaged by s 35(3)(l) of Constitution) in court looking to past conduct to determine whether that, together with present conduct, evinced pattern of criminal activity. Prevention of crime—Offences—Contraventions of s 2(1) of Prevention of Organised Crime Act 121 of 1998—Constitutionality of—Fact that s 2(2) permitted potentially inadmissible evidence of hearsay, similar facts and previous convictions did not create procedural unfairness that infringed accused’s fair trial rights.

Prevention of crime—Offences—Contraventions of s 2(1) of Prevention of Organised Crime Act 121 of 1998—Constitutionality of—Phrase ‘ought reasonably to have known’ in s 2(1)(a)(ii), (b)(ii), (c)(ii) and (f) merely infused element of subjectivity into pure objective test—Nothing unintelligible about that, nor was there anything constitutionally objectionable to this formulation.

 

S v TONKIN (SCA)

BRAND JA, LEWIS JA, CACHALIA JA, LEACH JA and MAJIEDT JA

2013 NOVEMBER 26, 29

Appeal—In what cases—From refusal by high court of leave to appeal from conviction in magistrates’ court—Cumbersome and wasteful procedure not yet reformed by legislation—Supreme Court of Appeal not having inherent jurisdiction to consider appeal directly.

MULTICHOICE (PTY) LTD AND OTHERS v NATIONAL PROSECUTING AUTHORITY AND ANOTHER: IN RE S v PISTORIUS; MEDIA 24 LTD AND OTHERS v DIRECTOR OF PUBLIC PROSECUTIONS, NORTH GAUTENG AND OTHERS (GP)

MLAMBO JP

2014 FEBRUARY 19, 25

Court—Radio and television broadcast of judicial proceedings—Application for broadcast permission of criminal trial—Balancing of interests of open justice, right of freedom of expression and right to fair trial—Great public interest in criminal trial involving sport icon—Balancing exercise of contesting rights—Full audio and limited audiovisual and photographic coverage of trial permitted.

Trial—Right to a fair trial—Effect of broadcasting of trial on accused’s right to a fair trial—Concern that mere knowledge of presence of audiovisual equipment, especially cameras, would inhibit accused and witnesses, as well as counsel—Accused’s rights could be protected by full audio coverage and limited audiovisual and photographic coverage.

S v NCOKO (ECG)

PICKERING J and PLASKET J

2013 NOVEMBER 13

Indictment and charge—Joinder of charges—When charges may be joined—In terms of s 81(1) of Criminal Procedure Act 51 of 1977 charges may only be joined before any evidence has been led—Addition of charges later on in same proceedings is irregular after evidence has been adduced.

S v MHLAMBISO AND ANOTHER (ECG)

PICKERING J and HARTLE J

2013 NOVEMBER 21

Indictment and charge—Joinder of charges—Joining of further charges during trial after evidence adduced—No provision allowing such amendment—Conviction set aside on review.

MINISTER OF SAFETY AND SECURITY v KLEINHANS (WCC)

LE GRANGE J and ROGERS J

2013 DECEMBER 17

Arrest—Legality of—Arrest without warrant—Arrest for purpose of issuing notice in terms of s 56 of the Criminal Procedure Act 51 of 1977—Police not in possession of fine book and person refusing to accompany them to police station—Arrest in particular circumstances not unlawful.

S v MASWANGANYI (GP)

BAM AJ and HASSIM AJ

2013 OCTOBER 28

Sentence—Prescribed sentences—Minimum sentence—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—Charge-sheet—Error in—Charge-sheet incorrectly stating offence as one of contravening s 51(2) instead of s 51(1)—Error in charge-sheet not rendering proceedings invalid as far as imposition of life sentence—Court not precluded from imposing life sentence.

Rape—Sentence—Life imprisonment—Minimum sentence in terms of Criminal Law Amendment Act 105 of 1997—‘Substantial and compelling circumstances’ as contemplated in s 51(3)(a)—Youthful first offender—Magistrate failing to consider prospects of rehabilitation—Life sentence set aside and replaced with sentence of 20 years’ imprisonment.

RANDELL v EYBERS NO AND OTHERS (ECP)

GOOSEN J

2013 AUGUST 27, 28; SEPTEMBER 19

Search and seizure—Restraint order in terms of Prevention of Organised Crime Act 121 of 1998—Application for provision of reasonable legal expenses in terms of s 26(6)—Intervention of interested party other than creditor—Locus standi—Ambit of discretion provided for in POCA consistent with exercise of court’s general powers to hear any person who had interest in proceedings, such as victims of alleged criminal conduct—POCA, ss 25 and 26.

S v KRUGER (SCA)

LEWIS JA, LEACH JA, THERON JA, PILLAY JA and PETSE JA

2013 NOVEMBER 22; DECEMBER 2

Appeal—Leave to appeal—Application for—Requirements—Existence of reasonable prospect of success—Mere possibility that another court might come to different conclusion insufficient—Severity of sentence imposed not issue when appeal against merits.

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Index and Annotations to the South African Law Reports, The (2009—2013)

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The Judiciary in South Africa

Handbook of the Banking Ombudsman, The

Understanding Unemployment Insurance Law

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