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July 2016

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases in the July law reports.

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

JUDGMENTS OF INTEREST IN THE JULY EDITIONS OF THE SALR AND SACR, AS WELL AS THE TABLE OF CASES FOR BURRELL'S INTELLECTUAL PROPERTY LAW REPORTS 2015

 

SOUTH AFRICAN LAW REPORTS

Learners without textbooks unlawfully discriminated against

It is the duty of the State, in terms of s 7(2) of the Constitution, to fulfil the s 29(1)(a) right of every learner by providing them with all textbooks prescribed for their grade before commencement of teaching. Minister of Basic Education and Others v Basic Education for All and Others 2016 (4) SA 63 (SCA).

Changing views of adultery

For equitable distribution in a divorce, the significance of a party’s adultery had to be assessed in light of the current prevalence of extramarital affairs, such that the stigma once attached to adultery has diminished. However, the effect of the betrayal on an aggrieved party who had remained committed to their marriage remained a relevant factor. RP v PP 2016 (4) SA 226 (KZP).

Please call me

An ex-employee takes on Vodacom for his fair share of the Please Call Me service, seeing that it was his idea and that it netted the company a fortune. The court covers, among others, interesting topics of agency, director’s ostensible authority, consensus in contracts, and estoppel. Makate v Vodacom Ltd 2016 (4) SA 121 (CC).

 

SOUTH AFRICAN CRIMINAL LAW REPORTS

Impulsive and irrational decision

When the Acting National Director announced his decision to discontinue a high-profile prosecution, no discussion had been held with senior members of the NPA to source their views. The Acting National Director had acted impulsively and irrationally in making the decision. Democratic Alliance v Acting National Director of Public Prosecutions and Others 2016 (2) SACR 1 (GP).

Racketeering and Ponzi schemes

This case covers several aspects of the Prevention of Crime Act, regarding a Ponzi scheme involving hundreds of millions of rands. The appellant had deceived the financial authorities and grossly misrepresented the extent of her activities. When confronted by the authorities, she merely changed the vehicles through which the scheme was conducted, to avoid closure. A sentence of 25 years’ imprisonment was confirmed on appeal. S v Prinsloo and Others 2016 (2) SACR 25 (SCA).

Privacy interests of child victims

The appellant was facing charges of possessing child pornography. Before trial he sought an order supplying him with copies of the images. He refused to take up an offer by the prosecutor to view the items privately, together with his legal representatives and any expert he wished to call. Du Toit v The Magistrate and Others 2016 (2) SACR 112 (SCA).

 

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 SOUTH AFRICAN LAW REPORTS
 TABLE OF CASES
 
  • Nkabinde and Another v Judicial Service Commission and Others 2016 (4) SA 1 (SCA)
  • Transport and Allied Workers Union of South Africa v Putco Ltd 2016 (4) SA 39 (CC)
  • Minister of Basic Education and Others v Basic Education for All and Others 2016 (4) SA 63 (SCA)
  • BSB International Link CC v Readam South Africa (Pty) Ltd and Another 2016 (4) SA 83 (SCA)
  • Mogalakwena Municipality v Provincial Executive Council, Limpopo and Others 2016 (4) SA 99 (GP)
  • Makate v Vodacom Ltd 2016 (4) SA 121 (CC)
  • MT v CT 2016 (4) SA 193 (WCC)
  • Lawyers for Human Rights v Minister of Home Affairs and Others 2016 (4) SA 207 (GP)
  • PA Pearson (Pty) Ltd v eThekwini Municipality and Others 2016 (4) SA 218 (KZD)
  • RP v PP 2016 (4) SA 226 (KZP)
  • Nkata v FirstRand Bank Ltd 2016 (4) SA 257 (CC)
  • GrainCo (Pty) Ltd v Van der Merwe and Others 2016 (4) SA 303 (SCA)
  • Mlanda v Mhlaba and Others 2016 (4) SA 311 (ECG)
 
 FLYNOTES
 

NKABINDE AND ANOTHER v JUDICIAL SERVICE COMMISSION AND OTHERS (SCA)

NAVSA ADP, LEWIS JA, LEACH JA, PILLAY JA and SWAIN JA

2016 FEBRUARY 15; MARCH 10
[2016] ZASCA 12

Constitutional law - Administration of justice—Judicial Service Commission—Complaint of judicial misconduct—Decisions—Review—New procedures applied retrospectively to complaint lodged in terms of old rules—Whether retrospective application infringing principle of legality—Inquiry under old rules and new procedures substantively the same—No existing rights infringed, nor any material prejudice—Principle of legality not breached.

Constitutional law - Administration of justice—Judicial Service Commission—Complaint of judicial misconduct—Complaint not under oath as required by statute—Where complaint later confirmed by oral testimony under oath before Commission, and on affidavit in litigation—Purpose of requirement, which is to provide required solemnity to complaint and discourage lodgement of frivolous complaints, met—Substantial compliance—Judicial Service Commission Act 9 of 1994, s 14(3)(b).

Constitutional law - Administration of justice—Judicial Service Commission—Complaint of judicial misconduct—Appointment of prosecutor to lead evidence for judicial conduct tribunal—Whether offending against separation of powers and independence of judiciary—Prosecutor not forming part of executive—Independence of National Prosecuting Authority protected by provisions of Constitution and National Prosecuting Authority Act 32 of 1998—Prosecutor’s role limited to collecting and leading evidence—Separation of powers and independence of judiciary not infringed—Judicial Service Commission Act 9 of 1994, s 24(1).

TRANSPORT AND ALLIED WORKERS UNION OF SOUTH AFRICA v PUTCO LTD (CC)

MOSENEKE DCJ, CAMERON J, JAFTA J, KHAMPEPE J, MADLANGA J, NKABINDE J, VAN DER WESTHUIZEN J, NUGENT AJ and ZONDO J 

2015 NOVEMBER 10; 2016 MARCH 8 
[2016] ZACC 7

Labour law- Lock-out—Legality—Purported lock-out of members of trade union which was not party to bargaining council where dispute arose and referred for conciliation—Whether lawful—Labour Relations Act 66 of 1995, ss 64(1) and 213.

Labour law - Lock-out—Legality—Purported lock-out of members of trade union which was not party to bargaining council where dispute arose and referred for conciliation—Whether union party to dispute, and subject to lock-out, by virtue of power of Minister to extend collective agreement to non-parties—Labour Relations Act 66 of 1995, ss 32 and 64(1).

Labour law - Collective agreement—Bargaining council agreement—Clause in bargaining council constitution providing that members of non-party employee trade union bound by collective agreement reached at bargaining council—Whether lawful.

Labour law - Lock-out—Legality—Purported lock-out of members of trade union which was not party to bargaining council where dispute arose and referred for conciliation—Majoritarian principle (majoritarianism)—Whether principle applying such that trade union members parties to dispute and subject to lock-out—Labour Relations Act 66 of 1995, s 64(1).

Labour law - Majoritarian principle (majoritarianism)—Purported lock-out of members of trade union which not party to bargaining council where dispute arose and referred for conciliation—Whether principle applying such that trade union members party to dispute, and subject to lock-out—Labour Relations Act 66 of 1995, s 64(1).

MINISTER OF BASIC EDUCATION AND OTHERS v BASIC EDUCATION FOR ALL AND OTHERS (SCA)

NAVSA JA, LEWIS JA, CACHALIA JA, PETSE JA and DAMBUZA JA

2015 NOVEMBER 24; DECEMBER 2
[2015] ZASCA 198

Education - Right to education—Duties of state—Provision of textbooks—Requirements as to—Constitution, s 29(1)(a).

BSB INTERNATIONAL LINK CC v READAM SOUTH AFRICA (PTY) LTD AND ANOTHER (SCA)

PONNAN JA, MAJIEDT JA, SWAIN JA, VICTOR AJA and KATHREE-SETILOANE AJA

2016 MARCH 3; APRIL 13
[2016] ZASCA 58

Nuisance - Neighbour disputes—Building works not complying with townplanning scheme and encroaching on adjoining owner’s s rights—Court’s discretion to order demolition.

Local authority - Buildings—Demolition—Of building erected without approved building plans—Court’s discretion to order demolition—Semble: May be incorrect to interpret s 21 of National Building Regulations and Building Standards Act 103 of 1977 as removing court’s discretion to order partial or total demolition.

MOGALAKWENA MUNICIPALITY v PROVINCIAL EXECUTIVE COUNCIL, LIMPOPO AND OTHERS (GP)

TUCHTEN J

2014 JUNE 19

Constitutional law - Provincial government—Power to intervene in local government—Standard intervention—Semble: Prior directive mandatory in all but most extreme cases—Constitution, s 139(1)(a) and (b).

Constitutional law - Provincial government—Power to intervene in local government—Standard intervention—Abuse—Partisanship—Procedure used to settle political dispute in favour of preferred faction in municipal council—Unconstitutional—Constitution, s 139(1)(b)

MAKATE v VODACOM LTD (CC)

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

2015 SEPTEMBER 1; 2016 APRIL 26

[2016] ZACC 13

Agency and representation - Agent—Authority—Ostensible authority—Distinct from estoppel—Ostensible authority defined as power to act as agent indicated by circumstances; estoppel as rule precluding principal from denying that it gave authority to agent—Fact that representation giving rise to ostensible authority may also form basis of estoppel not collapsing concepts into one.

Company - Director—Authority—Ostensible authority—To bind company to agreement to compensate employee for work-related invention—Ostensible authority indicated by director’s membership of board; his position as director of product development; his wide powers over new products; and process that had to be followed before introduction of new products.

Contract - Consensus—Oral agreement to negotiate in good faith (pactum de contrahendo)—Enforceable if it provides deadlock-breaking mechanism in event of parties not reaching consensus.

Estoppel - Distinct from ostensible authority—Estoppel defined as rule precluding principal from denying that it gave authority to agent; ostensible authority defined as power to act as agent indicated by circumstances; estoppel as rule precluding principal from denying that it gave authority to agent—Fact that representation giving rise to ostensible authority may also form basis of estoppel not collapsing concepts into one.

Practice - Pleading—Ostensible authority—Distinct from estoppel—Need not be pleaded in replication—May be raised in particulars.

MT v CT (WCC)

GAMBLE J

2016 FEBRUARY 12; MARCH 11

Contempt of court - What constitutes—Failure to follow rule 37(8)(c) direction—Uniform Rules of Court, rule 37(8)(c).

LAWYERS FOR HUMAN RIGHTS v MINISTER OF HOME AFFAIRS AND OTHERS (GP)

JANSE VAN NIEUWENHUIZEN J

2016 FEBRUARY 3

Immigration - Illegal foreigner—Detention pending deportation—Confirmation—Extension—Appearance in court—Constitution, s 35(2)(d); Immigration Act 13 of 2002, s 34(1)(b) and (d).

PA PEARSON (PTY) LTD v ETHEKWINI MUNICIPALITY AND OTHERS (KZD)

MARKS AJ

2015 NOVEMBER 5; DECEMBER 2

Local authority - Rates—Credit control and debt collection measures—Single entity account holder in respect of two properties owned by different owners—Whether municipality empowered to reallocate payments made by individual account holder in respect of one account to any other account of that account holder held with municipality—Local Government: Municipal Systems Act 32 of 2000, s 102(1)(b).

RP v PP (KZP)

MOODLEY J

2013 MAY 13–17, 2014 MAY 19–21, 2016 FEBRUARY 5

Marriage - Divorce—Proprietary rights—Redistribution order—Significance to be attached to extramarital affairs of spouse in exercise of court’s discretion in determining equitable distribution—Divorce Act 70 of 1979, s 7(3)–(5).

Marriage - Divorce—Proprietary rights—Redistribution order—Date at which estates of parties to be valued for purposes of redistribution—Court to have regard, as far as was practicable, to assets and liabilities as at date of order—If such date not practicable, court still confined to time of trial—Divorce Act 70 of 1979, s 7(3).

Marriage - Divorce—Proprietary rights—Redistribution order—Parties entering into antenuptial agreement prior to commencement of Matrimonial Property Act 88 of 1984 and introduction of accrual system—Clause in agreement excluding property of claimant spouse from any community of property, as well as marital power of husband—Whether having effect that such claimant spouse’s immovable property not susceptible to redistribution order—Divorce Act 70 of 1979, s 7(3).

NKATA v FIRSTRAND BANK LTD (CC)

MOSENEKE DCJ, CAMERON J, JAFTA J, KHAMPEPE J, MADLANGA J, NKABINDE J, NUGENT AJ, VAN DER WESTHUIZEN J AND ZONDO J

2015 NOVEMBER 19, 2016 APRIL 21
[2016] ZACC 12

Credit agreement - Consumer credit agreement—Reinstatement of agreement in default—Occurring by operation of law—No prior notice to the credit provider required—Consumer’s payment in prescribed manner sufficient to trigger reinstatement—National Credit Act 34 of 2005, s 129(3)(a).

Credit agreement - Consumer credit agreement—Reinstatement of agreement in default—Payment of ‘all amounts that are overdue’—Referring only to arrear instalments, not also accelerated debt—National Credit Act 34 of 2005, s 129(3)(a).

Credit agreement - Consumer credit agreement—Reinstatement of agreement in default—Payment of credit provider’s ‘reasonable costs of enforcing’—Non-payment only precluding reinstatement if due and payable—Only ‘reasonable’ if agreed or taxed—Credit provider, not consumer, to take appropriate steps to quantify such costs—Only due and payable on notice to consumer—National Credit Act 34 of 2005, s 129(3)(a).

Credit agreement - Consumer credit agreement—Reinstatement of agreement in default—Preclusion of ‘after . . . . execution of any other court order enforcing that agreement’—Meaning of ‘execution’—Not referring to process of execution but to realisation of proceeds of sale in execution—National Credit Act 34 of 2005, s 129(4)(b).

GRAINCO (PTY) LTD v VAN DER MERWE AND OTHERS (SCA)

PONNAN JA, WALLIS JA, MBHA JA, MATHOPO JA and PLASKET AJA

2016 MARCH 17, 30

[2016] ZASCA 42

Sale - Business—Business and goodwill sold—Implied prohibition on canvassing customers—Scope.

Contract - Terms—Implied and tacit terms—Implied term—Contract for sale of business with goodwill—Implied prohibition on canvassing customers—Scope

MLANDA v MHLABA AND OTHERS (ECG)

PICKERING J and ROBERSON J

2015 NOVEMBER 12, 17

Will - Execution—Certificate by commissioner of oaths—Required content—Statement that satisfied of identity of testatrix (that mark-maker was testatrix)—Whether words used suggesting this without doubt—Wills Act 7 of 1953, s 2(1)(a)(v).

 
 SOUTH AFRICAN CRIMINAL LAW REPORTS
 TABLE OF CASES
 
  • Democratic Alliance v Acting National Director of Public Prosecutions and Others 2016 (2) SACR 1 (GP)
  • S v Prinsloo and Others 2016 (2) SACR 25 (SCA)
  • S v De Beer 2016 (2) SACR 106 (GP)
  • Du Toit v The Magistrate and Others 2016 (2) SACR 112 (SCA)
 
 FLYNOTES
 

DEMOCRATIC ALLIANCE v ACTING NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS (GP)

LEDWABA DJP, PRETORIUS J and MOTHLE J

2016 MARCH 1–3; APRIL 29

Prosecution - Discontinuance—Decision to discontinue prosecution—National Prosecuting Authority basing decision on abuse-of-process doctrine—Court of law appropriate authority to deal with such doctrine, not extra-judicial process—Legal authorities, of which NPA should have been aware, not supporting decision taken by NPA—Decision not to refer complaint of abuse of process to court irrational—When Acting National Director announced decision to discontinue prosecution, no discussion held with senior members of NPA to source their views—Such failure also irrational—Acting National Director having acted impulsively and irrationally in making decision—Matter should have been dealt with by court—Application to review and set aside decision granted.

S v PRINSLOO AND OTHERS (SCA)

BRAND JA, FOURIE AJA and EKSTEEN AJA

2015 NOVEMBER 18; DECEMBER 4

[2015] ZASCA 207

Prevention of crime - Offences—Contraventions of s 2(1) of Prevention of Organised Crime Act 121 of 1998—Racketeering in contravention of s 2(1)(e) and s 2(1)(f)—Managing enterprise which engaged in racketeering and being involved in enterprise engaged in racketeering—Two separate offences created in terms of s 2(1)(e) and s 2(1)(f) of POCA—No good reason why person who both managed and participated in affairs of enterprise directly should be liable for only one of two roles—No duplication of convictions.

Prevention of crime - Offences—Contraventions of s 2(1) of Prevention of Organised Crime Act 121 of 1998—Racketeering in contravention of s 2(1)(f)—Mens rea required—Culpa sufficient form of mens rea for offence.

Prevention of crime - Offences—Contraventions of s 2(1) of Prevention of Organised Crime Act 121 of 1998—Racketeering in contravention of s 2(1)(e)—Mens rea required—No need for further enquiry as to additional mens rea requirement over and above mens rea required by predicate offences listed in sch 1 to POCA.

Prevention of crime - Offences—Contraventions of s 2(1) of Prevention of Organised Crime Act 121 of 1998—Sentence—Racketeering in contravention of s 2(1)(e) and s 2(1)(f)—Ponzi scheme involving hundreds of millions of rand—Deterrence playing important role—Appellant deceiving financial authorities and grossly misrepresenting extent of her activities—When confronted by authorities she merely changed vehicles through which scheme conducted to avoid closure—Sentence of 25 years’ imprisonment confirmed on appeal.

S v DE BEER (GP)

JANSEN J and KGANYAGO AJ

2016 MARCH 24

Trial - Accused—Legal representation of—Legal representative acting incompetently—Witnesses not called—Conviction set aside and matter referred back to court a quo.

DU TOIT v THE MAGISTRATE AND OTHERS (SCA)

PONNAN JA, CACHALIA JA, PETSE JA, MBHA JA and VICTOR AJA

2016 FEBRUARY 15; MARCH 11

[2016] ZASCA 15

Sexual offences - Child pornography—Possession of—Disclosure of images to accused prior to trial—Restriction on disclosure, by not permitting copying of images, permissible in light of privacy interests of children depicted in images—Not infringing accused’s fair-trial rights where refusal subject to review by court.

 BURRELL'S INTELLECTUAL PROPERTY LAW REPORTS
 2015
TABLE OF CASES
 

 

  • Al Baik Fast Food Distribution Co SAE v El Baik Food Systems Co SA 2015 BIP 163 (RTM)
  • Bhavanbhai v Ebony Braids & Hair Pieces CC 2015 BIP 134 (RTM)
  • Boost Sports Africa (Pty) Ltd v South African Breweries (Pty) Ltd 2015 BIP 22 (SCA)
  • CCG Australasia (Pty) Ltd And Another v Cable Gland Company (Pty) Ltd 2015 BIP 343 (GJ)
  • Chantelle v Designer Group (Pty) Ltd 2015 BIP 231 (GP)
  • Designer Group (Pty) Ltd v Chantelle 2015 BIP 154 (RTM)
  • Eduard Willie Gmbh & Co KG v Toolstream Limited 2015 BIP 363 (GP)
  • El Baik Food Systems Co SA v Al Baik Fast Food Distribution Co SAE 2015 BIP 302 (GP)
  • Els And Another v Pretorius 2015 BIP 277 (GP)
  • Energy Brands Inc And Another v QK Meats SA (Pty) Ltd 2015 BIP 349 (GP)
  • Etraction (Pty) Ltd v Tyrecor (Pty) Ltd 2015 BIP 253 (SCA)
  • Fairhaven Country Estate (Pty) Ltd v Harris And Another 2015 BIP 506 (WCC)
  • Global Vitality Inc v Enzyme Process Africa (Pty) Ltd 2015 BIP 520 (WCC)
  • Groot Constantia Trust v Dgb (Pty) Ltd 2015 BIP 330 (GP)
  • Jack Maserow Manufacturers CC v Axzs Industries (Pty) Ltd t/a Don Elly Enterprises 2015 BIP 450 (GP)
  • Kansai Plascon (Pty) Ltd v Duram (Pty) Ltd 2015 BIP 202 (GP)
  • Lotte Confectionary Co Ltd v Orion Corporation 2015 BIP 224 (GP)
  • Mantella Trading 310 (Pty) Ltd v Kusile Mining (Pty) Ltd 2015 BIP 1 (SCA)
  • Media 24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd 2015 BIP 384 (WCC)
  • Merck Sharp Dohme Group And Another v Cipla Agrimed (Pty) Ltd 2015 BIP 101 (SCA)
  • Mullane And Another v Smith And Others 2015 BIP 474 (GJ)
  • Nestlé Nespresso SA v Secret River Trading CC t/a Caffeluxe Distributors 2015 BIP 413 (WCC)
  • Orica Mining Services South Africa (Pty) Ltd v Elbroc Mining Products (Pty) Ltd 2015 BIP 116 (CP)
  • Owner Of Papa Super Maize Meal (Pty) Ltd v Tau Rollemeule CC 2015 BIP 374 (GJ)
  • Pandora A/S v Truworths Ltd 2015 BIP 268 (GP)
  • Philip Morris Products SA v Westminster Tobacco Co (Cape Town And London) (Pty) Ltd And Another 2015 BIP 285 (GP)
  • Resca And Another v Pasadena Leather Products CC T/A Pasadena Products And Another 2015 BIP 76 (CP)
  • Rothmans Of Pall Mall, London, Ltd v Mul Chand Malu 2015 BIP 208 (GP)
  • Siemtech CC and Another v Highveld Telecoms (Pty) Ltd and Others 2015 BIP 463 (GP)
  • Steytdal Farm (Pty) Ltd v The Spar Group Ltd And Spar South Africa (Pty) Ltd 2015 BIP 145 (RTM)
  • Strix Ltd v Nu-World Industries (Pty) Ltd 2015 BIP 89 (SCA)
  • Synthachem Technical Services (Pty) Ltd v Harker 2015 BIP 487 (KZP)
  • Tekno-Medical Optik Chirurgie Gmbh v Tekno Surgical And Medical (Pty) Ltd And Two Others 2015 BIP 273 (GP)
  • Terespolsky And Another v Morituri Restaurant (Lakeside) And Others 2015 BIP 180 (WCC)
  • The South African Music Performance Rights Association v Foschini Retail Group (Pty) Ltd And 9 Others 2015 BIP 424 (SCA)
  • TPN Group (Pty) Ltd v Ebay Inc 2015 BIP 213 (GP)
  • Union-Swiss (Pty) Ltd v Bio-Cream Cosmetics CC 2015 BIP 494 (GP)
  • Urban Genesis Management (Pty) Ltd And Another v Jooste And Another 2015 BIP 454 (GJ)
  • Yuppiechef Holdings (Pty) Ltd v Yuppie Stuff Online CC 2015 BIP 542 (WCC)

 

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