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SOUTH AFRICAN LAW REPORTS
Competition law: a first case on predatory pricing
Here the Competition Appeal Court held that the test for whether predatory pricing—where a dominant firm undermines competitors by deliberately reducing prices to a loss-making level—was objective, and the dominant company’s intention therefore irrelevant. It was further held the appropriate cost benchmark in this determination is ‘average avoidable costs’. Media 24 (Pty) Ltd v Competition Commission 2018 (4) SA 278 (CAC).
Extent of record for purposes of reviewing proceedings of judges’ appointment
Transcripts of the Judicial Service Commission’s post-interview deliberations form part of record for the purposes a review of a selection process to appoint judges. This was so, the Constitutional Court here held, because Uniform Rule 53(1)(b) had be interpreted to advance applicant’s rights of access to courts and to equality. Helen Suzman Foundation v Judicial Service Commission 2018 (4) SA 1 (CC).
Two issues relating to accrual system
Is the commencement value of each estate as stated in antenuptial contract, binding on the parties when the accrual is calculated? This case holds that declared values are merely prima facie proof of the actual commencement values, and subject to rebuttal by any party, including the spouses. It also holds that an accrual claim may be decided during divorce proceedings. TN v NN and Others 2018 (4) SA 316 (WCC).
SOUTH AFRICAN CRIMINAL LAW REPORTS
First appearance: duty of court, prosecutor and investigating officer to consider bail
The accused was brought to court within two hours of his arrest on a charge of assault with the intention to do grievous bodily harm. The matter was then postponed for further investigation—without the court considering releasing the accused on bail—resulting in the accused being incarcerated for a week on charge that did not warrant his remaining in custody. This oversight, said the SCA, constituted a shocking violation by the prosecutor, the magistrate and the investigating officer of their duties to ensure that the question of bail was properly considered at the appellant’s first appearance. De Klerk v Minister of Police 2018 (2) SACR 28 (SCA).
Poaching marine living resources not victimless crime
In considering an appropriate sentence following a conviction on charges of unlawful possession or control of abalone for commercial purposes, the court highlighted the negative effect poaching has on coastal communities—it was not a victimless crime and called for severe punishment. S v Miller and Others 2018 (2) SACR 75 (WCC).
Evidential value of voice identification
During the course of a robbery, the accused asked the complainant if he recognised him as he had previously worked for him. After his arrest, he was identified by the complainant in an identification parade—through his voice. This case holds that, provided the parade is properly held, evidence of voice is acceptable in our courts but it had to be credible in the sense of reliability. S v Mahlangu 2018 (2) SACR 64 (GP).
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SOUTH AFRICAN LAW REPORTS
TABLE OF CASES
HELEN SUZMAN FOUNDATION v JUDICIAL SERVICE COMMISSION (CC)
ZONDO DCJ, CAMERON J, FRONEMAN J, JAFTA J, KATHREE-SETILOANE AJ, KOLLAPEN AJ,
Judge - Appointment—Judicial Service Commission—Selection process—Review—Record on review—Extent of record—Transcript of commission’s post-interview deliberations forming part of record—Must be supplied to applicant—Uniform Rules of Court, rule 53(1)(b).
Review - Procedure—Record on review—Extent of record—Applicable rule to be interpreted to advance applicant’s rights of access to courts and to equality of arms before it—Judicial Service Commission’s post-interview deliberations on appointment to bench forming part of record on review—Must be supplied to applicant—Uniform Rules of Court, rule 53(1)(b).
CITY CAPITAL SA PROPERTY HOLDINGS LTD v CHAVONNES BADENHORST ST CLAIR COOPER AND OTHERS (SCA)
LEACH JA, SALDULKER JA, PLASKET JA, TSOKA AJA and SCHIPPERS AJA
Company - Winding-up—Master—Only Master authorised to appoint liquidators—Not competent for High Court to appoint liquidators—Where, as in present case, High Court declaring separate wound-up companies as single entity, its appointment of liquidators in respect thereof amounting to nullity—Companies Act 71 of 2008, ss 20(9), 22, 141(2)(c) and 141(3)
Appeal - Power of court of appeal—Power to dismiss appeal where judgment or order sought would have no practical effect or result—Appeal against court a quo’s refusal to set aside earlier court’s appointment of liquidators—Where appeal based on it not being competent for court to appoint liquidators, but Master thereafter appointing same liquidators, appeal having no practical effect—Appeal accordingly dismissed—Superior Courts Act 10 of 2013, s 16(2)(a)(i).
MADIKIZELA-MANDELA v EXECUTORS, ESTATE LATE MANDELA AND OTHERS (SCA)
SHONGWE AP, SWAIN JA, MATHOPO JA, MOKGOHLOA AJA and ROGERS AJA
Review - Application—Delay in bringing application—Whether delay unreasonable—Factors to be considered—Duty on applicant to be reasonably vigilant of rights—Applicant instituting review 17 years after decision taken—While applicant only recently learning of decision, reasonable person vigilant of his or her rights would have acquired knowledge of decision much earlier—Delay unreasonable.
Review - Application—Delay in bringing application—Condonation—Factors to be considered—Court finding that, even assuming prospects of success on merits, not sufficient to overlook excessive delay when due regard was had to potential for severe prejudice to respondents should decision be set aside.
NATIONAL POLICE COMMISSIONER AND ANOTHER v NGOBENI (SCA)
SHONGWE ADP, WALLIS JA, SALDULKER JA, MATHOPO JA and PLASKET AJA
Police - National Commissioner—Powers—To establish board to inquire into allegations of misconduct by provincial commissioner—South African Police Service Act 68 of 1995, ss 8(2)(c), 8(8) and 9(1).
PATMAR EXPLORATIONS (PTY) LTD AND OTHERS v LIMPOPO DEVELOPMENT TRIBUNAL AND OTHERS (SCA)
NAVSA JA, WALLIS JA, MATHOPO JA, DAVIS AJA and HUGHES AJA
Court - Crecedent and stare decisis—Departure from prior decision on law—When SCA may depart from own decision—When judge may depart from decision of judge of same division.
PIETERMARITZBURG AND DISTRICT COUNCIL FOR THE CARE OF THE AGED v REDLANDS DEVELOPMENT PROJECTS (PTY) LTD AND OTHERS (SCA)
NAVSA JA, WALLIS JA, WILLIS JA, MATHOPO JA and PILLAY AJA
Water - Actio aquae pluviae arcendae—Upper property discharging water into municipality’s waterworks under municipality’s direction and water fed by municipality’s pipes into lower property’s canal—Lower property seeking to interdict supra-natural flow of water from upper property.
SCALABRINI CENTRE, CAPE TOWN AND OTHERS v MINISTER OF HOME AFFAIRS AND OTHERS (SCA)
CACHALIA JA, MAJIEDT JA, SALDULKER JA, LAMONT AJA and SCHIPPERS AJA
Immigration - Refugee—Asylum seeker—Refugee Reception Office—Decision to close Cape Town office—Legality review.
CHOWAN v ASSOCIATED MOTOR HOLDINGS (PTY) LTD AND OTHERS (GJ)
Delict - Elements—Unlawfulness or wrongfulness—Breach of statutory duty—Breach by employer of duty under PDA not to subject whistle-blowing employee to occupational detriment—Employee dismissed after lodging internal complaint of gender and race discrimination against employer—Provided requirements of PDA met, constituting wrongful conduct for purposes of imposition of delictual liability—Protected Disclosures Act 26 of 2000, s 3 and s 6.
Labour law - Whistle-blowers—Protected disclosure—Occupational detriment—Whether employer’s imposition of occupational detriment on employee contrary to PDA giving rise to delictual action justiciable by High Court—Labour Relations Act 66 of 1995, s 156; Protected Disclosures Act 26 of 2000, s 3 and s 6.
Labour law - Courts—Jurisdiction—High Court and Labour Court—LRA not intended to destroy civil remedies—High Court may entertain Aquilian action for breach of employer’s duty not to subject employee to occupational detriment for making protected disclosure under PDA—Labour Relations Act 66 of 1995, s 156; Protected Disclosures Act 26 of 2000, s 3 and s 6.
DE LILLE v DEMOCRATIC ALLIANCE AND OTHERS (WCC)
Local authority - Municipal council—Councillor—Voting—Motion of no confidence in Mayor—Councillors entitled to vote freely and in accordance with their conscience—Cannot be held bound to party line—Speaker of Municipal Council having discretion to order whether or not vote to take place by secret ballot.
DARK FIBRE AFRICA (PTY) LTD v CAPE TOWN CITY (WCC)
Telecommunication - Fibre optic network—Construction—City imposing conditions on—Lawfulness thereof—Electronic Communications Act 36 of 2005, s 22.
EASTERN CAPE PARKS AND TOURISM AGENCY v MEDBURY (PTY) LTD t/a CROWN RIVER SAFARI (SCA)
NAVSA JA, SERITI JA, SALDULKER JA, SWAIN JA and SCHIPPERS AJA
Animals - Wild animal—Land sufficiently enclosed to confine game—Where so, and game escaping, then contra common law, ownership not lost—Whether certificate of sufficient enclosure prerequisite for protection—Game Theft Act 105 of 1991, s 2.
EASTERN PRODUCE ESTATES SA (PTY) LTD v WALES COMMUNAL PROPERTY ASSOCIATION AND OTHERS (LCC)
Land - Land reform—Restitution—Where land awarded subject to lease—Whether huur gaat voor koop applicable, and if so whether constituting infringement of constitutional right to restitution—Constitution, s 25(7); Restitution of Land Rights Act 22 of 1994, s 42D(1)(a).
ESKOM HOLDINGS LTD v GRUNDY (KZP)
JAPPIE JP, PLOOS VAN AMSTEL J and NKOSI AJ
Contract - Consensus—Caveat subscriptor—Contract providing that standard conditions contained in annexure were incorporated as part of agreement—Party A seeking to hold party B to such conditions—A failing to provide evidence that annexure was attached to agreement—Instead seeking to rely on clause in contract whereby B acknowledging receipt of annexure—Caveat subscriptor rule not applying to matters of fact in agreement, such as a recordal that another document was attached to it—If not attached, cannot be deemed to have been so attached on basis of signature—Whether or not document attached remaining a question of fact.
HOSKEN CONSOLIDATED INVESTMENTS LTD AND ANOTHER v COMPETITION COMMISSION (CAC)
DAVIS JP, VICTOR AJA and MNGUNI AJA
Competition - Competition Tribunal—Jurisdiction—To make declaratory orders—Competition Tribunal having jurisdiction to make declaratory orders—Declaratory order made that proposed transaction not constituting notifiable merger—Competition Act 89 of 1998, s 27(1).
Competition - Promotion of competition—Merger control—Merger—What constitutes—Whether, after obtaining unconditional merger approval, subsequent transaction to increase controlling company’s shareholding in controlled company constituting notifiable merger—Not where, as in present case, transaction not giving rise to change in post-transaction qualitative control—Determination of such change must be made when merger is approved, and could not be revisited later—Competition Act 89 of 1998, s 12.
MEC FOR HEALTH, LIMPOPO v RABALAGO AND ANOTHER (LP)
Constitution - Human rights—Freedom of religion—Spraying of insecticide onto body during ‘faith healing’—Interdiction of—Constitution, ss 15(1) and 31(1).
MEDIA 24 (PTY) LTD v COMPETITION COMMISSION (CAC)
DAVIS JP, ROGERS JA and BOQWANA JA
Competition - Unlawful competition—Prohibited practices—Abuse of dominance—Predatory pricing—Test objective, dominant company’s intention irrelevant—Appropriate cost benchmark ‘average avoidable costs’—Competition Act 89 of 1998, s 8(c).
MR LED (PTY) LTD v WAXFAM INVESTMENTS (PTY) LTD AND ANOTHER (GJ)
MAKUME J, MONAMA J and GAUTSCHI AJ
Contract - Performance—Demand—Demand of sum that is overstated—Admission that part of sum owing and due—Whether demand valid.
TN v NN AND OTHERS (WCC)
Marriage - Divorce—Proprietary rights—Accrual system—Parties declaring commencement values of their estates in antenuptial contract—Whether declared values binding—Whether accrual claim may be decided during divorce proceedings—Matrimonial Property Act 88 of 1984, s 6(3).
SOUTH AFRICAN CRIMINAL LAW REPORTS
TABLE OF CASES
DIRECTOR OF PUBLIC PROSECUTIONS, GRAHAMSTOWN v PELI (SCA)
SWAIN JA, MBHA JA and HUGHES AJA
Rape - Sentence—Life imprisonment—Minimum sentence in terms of Criminal Law Amendment Act 105 of 1997—Substantial and compelling circumstances—First offender, 24 years of age, claiming to have been under influence of alcohol at time when raped 6-year-old boy—No true remorse shown—Serious misdirection in finding presence of substantial and compelling circumstances—Effective sentence of six years’ imprisonment disturbingly lenient—Replaced with life imprisonment.
S v BRINK (WCC)
ALLIE J and DAVIS AJ
Traffic offences - Driving with excessive concentration of alcohol in blood—Contravention of s 65(2)(a) of National Road Traffic Act 93 of 1996—Sentence—Suspension of driver’s licence—Circumstances to be taken into account—Includes personal circumstances of accused.
Traffic offences - Driving with excessive concentration of alcohol in blood—Contravention of s 65(2)(a) of National Road Traffic Act 93 of 1996—Sentence—Previous convictions—Proof of—Insufficient for court to rely solely on evidence of accused.
Traffic offences - DDriving with excessive concentration of alcohol in blood—Contravention of s 65(2)(a) of National Road Traffic Act 93 of 1996—Sentence—Previous convictions—Determination of whether offence was first, second or third offence for purposes of s 35(1)—Relevant question was whether offence fell under ss 35(1)(a), (aA), (b) and (c) and not whether it fell under identical statutory provision.
S v DE BESCH (NCK)
TLALETSI JP, WILLIAMS J and PHATSHOANE J
Murder - Sentence—Life imprisonment—When to be imposed—Murder committed with dolus directus attracting different minimum sentence than same murder planned or premeditated, accordingly imperative that trial court specify whether murder indeed planned or premeditated.
DE KLERK v MINISTER OF POLICE (SCA)
SHONGWE ADP, LEACH JA, MAJIEDT JA, ROGERS AJA and HUGHES AJA
Arrest - Without warrant—For assault with intent to do grievous bodily harm—Nature and seriousness of wound not established—Arrest without warrant not justified in such circumstances—Criminal Procedure Act 51 of 1977, sch 1.
Arrest - Procedure after arrest—Detention of accused after appearing in court—Investigating officer aware that accused would not be released on bail on appearance in court, despite recommending bail—Such appearance mechanical act and no inquiry made into justification for further detention—Police not responsible for damages for further detention, even though initial arrest unlawful.
AUSTIN v MINISTER OF JUSTICE AND OTHERS (ECG)
Trial - Stay of prosecution—Temporary stay—Application for—Pending decision of Constitutional Court on constitutionality of various provisions of statutes impacting on present cases—In interests of justice to grant stay.
S v MABUZA (GP)
RANCHOD J and LUKHAIMANE AJ
Evidence - Witness—Children—Appointment of intermediary in terms of s 170A(1) of Criminal Procedure Act 51 of 1977—Prosecutor making use of services of social worker to interview children to determine whether intermediary required—Competency report not required before appointing intermediary—Contents thereof not constituting evidence on which witnesses could be cross-examined.
S v MAHLANGU (GP)
MONAMA J and BASSON J
Evidence - Identification—Voice identification—Such evidence acceptable, subject to its credibility and reliability—Criminal Procedure Act 51 of 1977, s 37(1)(c).
S v HEROLDT (KZP)
PLOOS VAN AMSTEL J and MBATHA J
Witness - Competence of—Child witness—Questioning by presiding officer—Magistrate’s questions direct and specific and answers clear and precise—Five-year-old child competent to testify.
Witness - Children—As complainants in sexual offences—Use of infantile words to describe parts of genitalia acceptable and sufficiently understood by all concerned.
S v MILLER AND OTHERS (WCC)
Conservation - Fishing—Abalone—Possession or control for commercial purposes—Contraventions of regulations under Marine Living Resources Act 18 of 1998—Sentence—Effect of poaching on environment and social implications for coastal community highlighted—Not victimless crime—In case where large amounts of abalone involved, severe sentences imposed.
Conservation - Fishing—Abalone—Possession or control for commercial purposes—Contraventions of regulations under Marine Living Resources Act 18 of 1998—Sentence—Value of abalone involved—No direct correlation between value of abalone and sentence—Large profits to be made by participants in value chain.
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)—Sentence—Involvement in poaching and processing of abalone—Large amounts of abalone involved.
Sentence - Factors to be taken into account—Length of trial—Lengthy trial and case having hung over accused’s heads for 11 years—Sentence had to be ameliorated.
BOTSWANA LAW REPORTS
NEW RELEASES FROM JUTA
Precedents for Applications in Civil Proceedings
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