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June 2015

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases in the June law reports.

Click on the case name to download the original judgment.

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

SOUTH AFRICAN LAW REPORTS

 

Oppressive conduct in companies

The section in the new Companies Act that provides relief from oppressive conduct should be interpreted to advance the remedy, rather than to limit it. The list of orders that the section permitted a court to make, was non-exhaustive and open-ended. Grancy Property Ltd v Manala and Others 2015 (3) SA 313 (SCA)

Bill Clinton defence not applicable

An attorney was spending time on a farm with his family, when he discovered his wife engaged in oral sex with his uncle. Defending the delictual claim, the uncle argued that the act in question was not adultery, on the basis that adultery involved sexual intercourse, and fellatio could not be said to be sexual intercourse. PV v AM 2015 (3) SA 376 (ECP)

Costs de bonis propriis for indifferent officials

Costs de bonis propriis were only to be awarded in exceptional circumstances, such as this case, where officials had shown indifference and incompetence, detailed by multiple failures in their duties. Although such costs orders were drastic measures, the court was faced with state employees who simply could not be bothered to do their work. Recent authorities dealing with the conduct of public officials revealed that shaming them no longer worked—even the exhortations of the highest court fell on deaf ears. Lushaba v MEC For Health, Gauteng 2015 (3) SA 616 (GJ)

 

SOUTH AFRICAN CRIMINAL LAW REPORTS

Effect of new Superior Courts Act on appeals

Disquiet was expressed at the effect of s 16(1)(b) of Superior Courts Act 10 of 2013. There was a real danger that appeals which deserved to be heard would be stifled because the bar had been set far too high once a petition to the high court failed. In failing to properly regulate the process, the legislature may have opened the door to some worthy appeals failing to make the cut. S v Van Wyk And Another 2015 (1) SACR 584 (SCA)

Substantial and compelling circumstances

Even if an accused was legally represented, but failed to prove substantial and compelling circumstances, whether through lack of experience or proper instructions, a legal duty remained on the presiding officer to ensure that all available facts were properly enquired into, before sentence was decided. S v Mokgara 2015 (1) SACR 634 (GP)

The role of prosecutors

The role of prosecutors could not be equated with that of magistrates or judges. Their duties and functions were different. The contention that the involvement of the prosecutor would compromise the accused’s right to a fair trial simply because he had previously assisted in litigation to which the accused was linked, could not be sustained. Porritt and Another v National Director of Public Prosecutions and Others 2015 (1) SACR 533 (SCA)

 

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 SOUTH AFRICAN LAW REPORTS
 
 TABLE OF CASES
 
  • Grancy Property Ltd v Manala and Others 2015 (3) SA 313 (SCA)
  • Competition Commission v South African Breweries Ltd and Others 2015 (3) SA 329 (CAC)
  • Levenson v Fluxmans Inc 2015 (3) SA 361 (GJ)
  • Mabuza v Nedbank Ltd and Another 2015 (3) SA 369 (GP)
  • PV v AM 2015 (3) SA 376 (ECP)
  • Cape Town City v South African National Roads Authority and Others 2015 (3) SA 386 (SCA)
  • DS v RM 2015 (3) SA 424 (WCC)
  • Cloete Murray and Another NNO v FirstRand Bank Ltd t/a Wesbank 2015 (3) SA 438 (SCA)
  • South African Hang and Paragliding Association and Another v Bewick 2015 (3) SA 449 (SCA)
  • Newton Global Trading (Pty) Ltd v De Corte and Another 2015 (3) SA 466 (GP)
  • Hardenberg and Another v Nedbank Ltd 2015 (3) SA 470 (WCC)
  • Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd 2015 (3) SA 479 (CC)
  • Van Deventer v Ivory Sun Trading 77 (Pty) Ltd 2015 (3) SA 532 (SCA)
  • Minister of Home Affairs and Others v Somali Association of South Africa and Another 2015 (3) SA 545 (SCA)
  • WT and Others v KT 2015 (3) SA 574 (SCA)
  • Jili v FirstRand Bank Ltd t/a Wesbank 2015 (3) SA 586 (SCA)
  • Commissioner, South African Revenue Service v Tradex (Pty) Ltd and Others 2015 (3) SA 596 (WCC)
  • Lushaba v MEC for Health, Gauteng 2015 (3) SA 616 (GJ)
 
 FLYNOTES
 

GRANCY PROPERTY LTD v MANALA AND OTHERS (SCA)

MTHIYANE DP, NUGENT JA, LEWIS JA, TSHIQI JA and PETSE JA

2013 MARCH 18; MAY 10

[2013] ZASCA 57

Company—Oppressive conduct—Relief—Courts to interpret section to advance remedy rather than narrow it—Orders listed in section are non-exhaustive—Companies Act 71 of 2008, s 163.

COMPETITION COMMISSION v SOUTH AFRICAN BREWERIES LTD AND OTHERS (CAC)

DAVIS JP, ROGERS AJA and MOLEMELA AJA

2014 SEPTEMBER 17, 18; 2015 FEBRUARY 2

Competition—Unlawful competition—Restrictive horizontal practice—What constitutes—Dominant player in designated market engaging in exclusive agreements/practices with appointed distributors—Characterisation of conduct required in determining nature of relationship between parties—Relationship in casu found to be vertical despite containing horizontal aspects—Competition Act 89 of 1998, s 4(1)(b)(ii).
Competition—Unlawful competition—Restrictive vertical practice—Proof—Dominant player in designated market engaging in exclusive agreements/practices with appointed distributors—‘Effect of substantially lessening or preventing competition in a market’—Some likely effect upon price, output and/or quality of product diminishing consumer welfare needed to trigger application of provision—Competition Act 89 of 1998, s 5(1).

LEVENSON v FLUXMANS INC (GJ)

WINDELL J

2015 JANUARY 29; MARCH 27

Attorney—Fees—Contingency fees—Recovery of unlawful contingency fees—Application for order compelling repayment of fees paid under invalid contingency fee agreement (CFA)—Plea of prescription dismissed on ground that prescription only began running when applicant became aware of invalidity of CFA—Knowledge of invalidity not imputed where attorney failed to comply with duty to correctly advise client.
Prescription—Extinctive prescription—Commencement—Knowledge of debt—Suspicion not amounting to ‘knowledge’—Prescription Act 68 of 1969, s 12(3).
Prescription—Extinctive prescription—Commencement—Knowledge of debt—Deeming—Not where debtor’s attorney failed to inform him of facts—Prescription Act 68 of 1969, s 12(3).

MABUZA v NEDBANK LTD AND ANOTHER (GP)

MAVUNDLA J

2014 APRIL 22; JUNE 26

Practice—Judgments and orders—Rescission—Grounds—Fraud—Application by non-party—Non-party that was prejudicially affected by judgment may ask for its rescission.

PV v AM (ECP)

REVELAS J

2014 MAY 15–17; JUNE 25; DECEMBER 17

Delict—Specific forms—Adultery—Oral sex—Whether constituting adultery.

CAPE TOWN CITY v SOUTH AFRICAN NATIONAL ROADS AUTHORITY AND OTHERS (SCA)

PONNAN JA, SALDULKER JA, ZONDI JA, VAN DER MERWE AJA and GORVEN AJA

2015 MARCH 18, 30
[2015] ZASCA 58

Constitutional law—Constitution—Foundational values—Rule of law—Open justice—Court records by default open to public—Departure from rule permissible only where justified by exceptional circumstances—‘Implied undertaking rule’, viz that party to whom documents disclosed may not make collateral use of them, inconsistent with open justice rule—Hence not part of South African law.
Discovery and inspection—Production of documents—Implied undertaking rule—Party to whom documents disclosed will not use them for collateral or ulterior purpose—Rule inconsistent with constitutional principle of open justice and hence not part of South African law.

DS v RM (WCC)

MASUKU AJ

2014 SEPTEMBER 17
[2014] ZAWCHC 149

Jurisdiction—High Court—Enforcement of order of lower court—Application for declaration that party failing to comply with magistrates’ court divorce order and ancillary directory relief—Respondent’s failure to sell or dispose of immovable property as ordered resulting in material prejudice to applicant—Just and equitable for High Court to grant relief as process-inaid remedy.

CLOETE MURRAY AND ANOTHER NNO v FIRSTRAND BANK LTD t/a WESBANK (SCA)

NAVSA ADP, PONNAN JA, ZONDI JA, SCHOEMAN AJA and FOURIE AJA

2014 MARCH 9, 26
[2015] ZASCA 39

Company—Business rescue—Moratorium on legal proceedings against company—Meaning of ‘enforcement action’—Referring to enforcement by way of legal proceedings—Cancellation of instalment-sale agreement concluded prior to commencement of business rescue proceedings accordingly not constituting ‘enforcement action’—Companies Act 71 of 2008, s 133(1).

SOUTH AFRICAN HANG AND PARAGLIDING ASSOCIATION AND ANOTHER v BEWICK (SCA)

BRAND JA, MHLANTLA JA, LEACH JA, SALDULKER JA and MBHA JA

2015 MARCH 9, 25
[2015] ZASCA 34

Delict—Elements—Unlawfulness or wrongfulness—Liability for omission—Failure to prevent tandem paragliding for reward.

NEWTON GLOBAL TRADING (PTY) LTD v DE CORTE AND ANOTHER (GP)

FOURIE J

2014 AUGUST 22
[2014] ZAGPPHC 628

Company—Business rescue—Directors’ resolution to begin—Requirement that resolution be published to every affected person—Proper compliance required—Companies Act 71 of 2008, ss 129(3) and (4).

HARDENBERG AND ANOTHER v NEDBANK LTD (WCC)

ROGERS J, ERASMUS J AND MANTAME J

2015 JANUARY 30; FEBRUARY 12
[2015] ZAWCHC 11

Credit agreement—Consumer credit agreement—Debt review—Termination—When competent—Whether competent if consumer were not in default of credit agreement when applying for debt review—National Credit Act 34 of 2005, s 86(10).

PAULSEN AND ANOTHER v SLIP KNOT INVESTMENTS 777 (PTY) LTD (CC)

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

2014 SEPTEMBER 16; 2015 MARCH 24
[2015] ZACC 5

Interest—In duplum rule—Interest to stop running when equal to unpaid capital—Application of rule—Rule continuing to apply after institution of litigation to recover debt.
Constitutional law—Common law—Development—In duplum rule—Power of Constitutional Court to develop.
Constitutional law—Separation of powers—Power of courts to develop common law—Not precluded by separation-of-powers doctrine.
Constitutional practice—Courts—Constitutional Court—Jurisdiction—Extension to non-constitutional matters—Requirements—Role of interests of justice—Constitution, s 167(3)(b)(ii).
Credit agreement—Consumer credit agreement—Credit agreement to which NCA not applicable—Constitutional Court confirming that such credit agreement not invalidated because credit provider not registered in terms of NCA—Credit provider entering only into exempted agreements need not register—National Credit Act 34 of 2005, s 40(1) and s 89(2)(d).
Credit agreement—Consumer credit agreement—Credit provider—Failure to register—Effect on agreement to which NCA does not apply—Agreement valid—National Credit Act 34 of 2005, s 40(1) and s 89(2)(d).

VAN DEVENTER v IVORY SUN TRADING 77 (PTY) LTD (SCA)

MPATI P, MAJIEDT JA, PILLAY JA, SCHOEMAN AJA and FOURIE AJA

2014 SEPTEMBER 3; NOVEMBER 4
[2014] ZASCA 169

Prescription—Extinctive prescription—Commencement—Claim based on right of pre-emption—Whether obligation to give option to purchase constituting debt susceptible to prescription and, if so, if and when such debt became due—Prescription Act 68 of 1969, s 12(3).

MINISTER OF HOME AFFAIRS AND OTHERS v SOMALI ASSOCIATION OF SOUTH AFRICA AND ANOTHER (SCA)

PONNAN JA, SHONGWE JA, MAJIEDT JA, SCHOEMAN AJA and MEYER AJA

2015 FEBRUARY 16; MARCH 25
[2015] ZASCA 35

Review—Grounds—Rationality—Failure to consult with interested parties—Ignorance of material facts—Remedy.

WT AND OTHERS v KT (SCA)

LEWIS JA, BOSIELO JA, PILLAY JA, MBHA JA and MAYAT AJA

2015 FEBRUARY 18; MARCH 13
[2015] ZASCA 9

Marriage—Divorce—Proprietary rights—Community of property—Discretionary family trust—Whether trust assets forming part of joint estate—Use of discretion in determining ownership of assets.

JILI v FIRSTRAND BANK LTD t/a WESBANK (SCA)

MAYA JA, SHONGWE JA, LEACH JA, WILLIS JA and MOCUMIE AJA

2014 NOVEMBER 13, 26
[2014] ZASCA 183

Credit agreement—Consumer credit agreement—Debt rearrangement—Order—Breach—Credit agreement enforceable without further notice—Variation or setting-aside of debt-rearrangement order not required—National Credit Act 34 of 2005, s 88(3)(a).
Credit agreement—Consumer credit agreement—Debt enforcement—Summary judgment—Discretion vesting in court to refuse summary judgment—Whether competent to exercise such discretion in favour of consumer in default of rearrangement order—National Credit Act 34 of 2005, s 88(3)(a).

COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE v TRADEX (PTY) LTD AND OTHERS (WCC)

ROGERS J

2014 AUGUST 13; SEPTEMBER 9

Revenue—Income tax—Recovery—Preservation order—Whether ‘required to secure collection of tax’—Test—‘Required’ not meaning necessity but ‘reasonably required’ in sense of preservation order having to confer substantial advantage in collection of tax—Terms of order sought must have practical utility in reducing material risk of dissipation—Tax Administration Act 28 of 2011, s 163(3).

LUSHABA v MEC FOR HEALTH, GAUTENG (GJ)

ROBINSON AJ

2014 OCTOBER 28; NOVEMBER 26

Costs—Costs de bonis propriis—When to be awarded—Against state attorney and public officials—MEC liable for damages arising from birth of child with disability—Defence of claim unjustified and reckless—Conduct of state employees of such degree of incompetence and indifference that to be held personally responsible for portion of costs.

 

 SOUTH AFRICAN CRIMINAL LAW REPORTS
 TABLE OF CASES
 
  • Porritt and Another v National Director of Public Prosecutions and Others 2015 (1) SACR 533 (SCA)
  • National Director of Public Prosecutions v Camel Rock Social Housing Institution and Others 2015 (1) SACR 546 (ECG)
  • S v Helm 2015 (1) SACR 550 (WCC)
  • S v WR 2015 (1) SACR 571 (GP)
  • S v Van Wyk and Another 2015 (1) SACR 584 (SCA)
  • Minister of Safety and Security v Tyokwana 2015 (1) SACR 597 (SCA)
  • S v Mthethwa 2015 (1) SACR 609 (GP)
  • S v Delport and Others 2015 (1) SACR 620 (SCA)
  • S v Mokgara 2015 (1) SACR 634 (GP)
 
 FLYNOTES
 

PORRITT AND ANOTHER v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS (SCA)

MPATI P, BRAND JA, TSHIQI JA, SALDULKER JA and FOURIE AJA

2014 SEPTEMBER 11; OCTOBER 21
[2014] ZASCA 168

Plea—Prosecutor has no title to prosecute—Removal of prosecutor—Lack of title to prosecute in terms of s 106(1)(h) of Criminal Procedure Act—Effect of plea—Doubtful that it would result in acquittal—Removal of prosecutors in instant case not for want of title but of apprehension that biased.
Prosecution—Prosecutor—Powers and duties of—Role of prosecutors in criminal trial could not be equated with that of magistrates or judges: their duties, functions and responsibilities were different—Contention that involvement of prosecutor would compromise accused’s right to fair trial simply because he had previously assisted in litigation to which accused was linked, could not be sustained.

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v CAMEL ROCK SOCIAL HOUSING INSTITUTION AND OTHERS (ECG)

ROBERSON J

2013 DECEMBER 5; 2014 JANUARY 23

Search and seizure—Preservation of property order—Expiry of—Further preservation orders in respect of same property permitted by s 40 of Prevention of Organised Crime Act 121 of 1998.

 S v HELM (WCC)

GAMBLE J and SMIT AJ

2014 MAY 5; SEPTEMBER 17

Evidence—Witnesses—Calling, examination and refutation of—By court—Section 186 of Criminal Procedure Act 51 of 1977—Incumbent upon judicial officers to constantly bear in mind that their bona fide efforts to do justice could be misconstrued—Requirement of impartiality—Magistrate showing bias in calling witnesses in attempt to fill gaps in state’s case—Evidence not taking state’s case any further—Conviction set aside on appeal.

S v WR (GP)

TUCHTEN J and MSIMEKI J

2014 OCTOBER 23

Appeal—Application for hearing of further evidence—When to be permitted—Decision whether or not to receive further evidence under s 309B(5)(c)(i) of Criminal Procedure Act 51 of 1977, that of court which tried applicant—An appeal court rarely heard such evidence only—This court has power under s 19(d) of Superior Courts Act 10 of 2013 to set aside decision which subject of appeal—Application allowed.

S v VAN WYK AND ANOTHER (SCA)

NAVSA ADP, BRAND JA, PONNAN JA, SWAIN JA and MATHOPO AJA

2014 SEPTEMBER 22, 29
[2014] ZASCA 152

Appeal—To Supreme Court of Appeal—Leave to appeal—Effect of s 16(1)(b) of Superior Courts Act 10 of 2013—Special leave—Rule 6 of Supreme Court of Appeal Rules required to be scrupulously followed—Generalised attack on findings of high court insufficient, as is reliance on notice of appeal, or recitation of grounds of appeal.
Appeal—To Supreme Court of Appeal—Leave to appeal—Effect of s 16(1)(b) of Superior Courts Act 10 of 2013—Disquiet expressed at effect of legislation—Real danger that appeals which deserved to be heard would be stifled because bar had been set far too high once petition to high court failed—In failing to properly regulate process, legislature may have opened door to some worthy appeals failing to make cut.

MINISTER OF SAFETY AND SECURITY v TYOKWANA (SCA)

BRAND JA, TSHIQI JA, SALDULKER JA, FOURIE AJA and MATHOPO AJA

2014 AUGUST 25; SEPTEMBER 23
[2014] ZASCA 130

Arrest—Detention of accused by police—Detention following upon unlawful arrest—Time at which unlawfulness of detention ceased—Remanding by court of arrested person in custody following upon unlawful arrest not rendering detention lawful.

S v MTHETHWA (GP)

MAKGOKA J and TOLMAY J

2014 APRIL 3; JULY 10

Rape—Elements of—Penetration—Proof of—Medical examination revealed signs of repeated penetration, but could not tell if signs of fresh penetration—State failed to prove penetrated on date of alleged offence—Issue not whether penetrated before, but whether on date of alleged offence—Complainant’s evidence as single witness was also poor and lacked coherence.
Trial—Presiding officer—Conduct of—Manner of addressing complainant—Magistrate brash, abrasive and overbearing towards child witness, complainant in rape case—Imperative that judicial officers, presiding in matters where sexual violation alleged, should exhibit necessary patience, empathy and sensitivity when dealing with victims.
Trial—Presiding officer—Conduct of—Discussion with witness ‘off the record’—Everything mentioned in court concerning case should be on record for all concerned to understand and follow.

S v DELPORT AND OTHERS (SCA)

CACHALIA JA, LEACH JA, THERON JA, MAJIEDT JA and SCHOEMAN AJA

2014 NOVEMBER 26, 28
[2014] ZASCA 197

Appeal—In what cases—From decision in high court remitting matter to magistrate’s court for continuation of trial—General rule against permitting piecemeal appeals—Objection to prosecutor’s title to prosecute, if upheld, would not necessarily lead to nullification of trial—No prejudice to accused—Appeal in any event not on any of grounds permitted by court granting leave to appeal—Appeal struck from roll.
Appeal—Against remittal order—Whether order of high court (sitting as a court of appeal), remitting matter to magistrate for trial to continue, appealable—Authority of prosecutor to prosecute challenged five years after commencement of trial—Whether in interests of justice for appeal to be entertained—No unusual circumstances—Remittal order not appealable—Whether Supreme Court of Appeal has jurisdiction to entertain appeal where leave is granted by high court on specific rather than general grounds—Appeal struck from roll.

S v MOKGARA (GP)

DE VOS J, MOTHLE J and TEFFO J

2014 OCTOBER 22

Trial—Presiding officer—Duties of—Accused facing sentence of life imprisonment if convicted—Even if accused legally represented but failed to prove substantial and compelling circumstances, whether through lack of experience or proper instructions, legal duty remained on presiding officer to ensure that all available facts properly enquired into before the decision made on sentence.

 

 NEW RELEASES FROM JUTA
 
Superior Courts Act 10 of 2013 & Rules 5e
Sectional Titles Act 95 of 1986 & Regulations
South African Sheriffs’ Guide: Practice and Procedure, The (Print)
Namibian Constitution
Handbook of South African Copyright Law (Online)

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