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SOUTH AFRICAN LAW REPORTS
Sexual assault in the workplace
A municipal worker resigned after sexual assault by her supervisor, and sued the municipality. The municipality denied that the supervisor had acted in the course and scope of his employment, as was required for vicarious liability. However, when the connection between the deviant conduct and the employment was considered, it became clear that the municipality had, by placing the supervisor in a position of trust and authority over the worker, forged the required causal link between the supervisor’s position and the wrongful act. PE v Ikwezi Municipality and Another 2016 (5) SA 114 (ECG)
The right to housing and informal settlements
Despite 20 years of promises, the city failed to implement a government upgrading policy in an informal settlement, and instead wanted to relocate the residents. This conduct was unlawful and unreasonable, and the city was accordingly directed to proceed with the upgrade. Melani And Others v Johannesburg City and Others 2016 (5) SA 67 (GJ)
Mandament van spolie
A homeowners association suspended a member’s access cards and biometric access to the housing estate, pending payment of outstanding fines. Their contention was that alternative access was available, and that the suspension had been effected in terms of agreed conduct rules. Singh and Another v Mount Edgecombe Country Club Estate Management Association (RF) NPC and Others 2016 (5) SA 134 (KZD)
SOUTH AFRICAN CRIMINAL LAW REPORTS
Possession of automatic rifle
The appellant was a passenger in a stolen car, stopped by the police. He was found in possession of an R4 automatic rifle, loaded with 34 rounds of ammunition. The registration number of the rifle had been erased. He appealed against the sentence of 15 years. S v Delport 2016 (2) SACR 281 (WCC)
Contempt of court
The accused conceded that she disobeyed a court order evicting her from an informal dwelling on state land, but she said that she had nowhere else to go. In such a case, did she deliberately and mala fide disobey the order? S v Samuels 2016 (2) SACR 298 (WCC)
Intent to kill
An experienced farmer, in anger, struck a drunk farmworker with a hay hook, which penetrated the worker’s heart and killed him. Hay hooks are not normally regarded as weapons, so did the farmer foresee that striking the worker could kill him? The bench on appeal was not in full agreement. S v Van Schalkwyk 2016 (2) SACR 334 (SCA)
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SOUTH AFRICAN LAW REPORTS
TABLE OF CASES
ELECTORAL COMMISSION v MHLOPE AND OTHERS (CC)
MOGOENG CJ, MOSENEKE DCJ, BOSIELO AJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MHLANTLA J, NKABINDE J and ZONDO J
2016 MAY 9; JUNE 14
Election law - Electoral Commission—Duties—Compilation of national voters’ roll—Commission must record all reasonably ascertainable voters’ addresses—Though current, address-deficient roll unlawfully compiled, order of invalidity suspended until 30 June 2018 to allow August 2016 municipal elections to proceed—Commission ordered to obtain, during period of suspension, all reasonably available addresses of voters registered from 17 December 2003—Electoral Act 73 of 1998, s 16(3).
Election law - Electoral Commission—Duties—Compilation of national voters’ roll—Electoral Act providing voters’ roll must include voters’ addresses ‘where . . . available’—‘Available’ meaning objectively available or ascertainable addresses of voters registered after 17 December 2003—Electoral Act 73 of 1998, s 16(3).
MELANI AND OTHERS v JOHANNESBURG CITY AND OTHERS (GJ)
2015 NOVEMBER 12; 2016 MARCH 22
Housing- Right to housing—Informal settlements—Upgrading—City failing, despite 20 years of promises, to implement government upgrading policy—Wanting instead to relocate residents—Conduct unlawful and unreasonable—Set aside—City directed to proceed with upgrade—Constitution, s 26(1).
MOTOR INDUSTRY STAFF ASSOCIATION v MACUN NO AND OTHERS (SCA)
NAVSA JA, LEWIS JA, PILLAY JA, PETSE JA and DAMBUZA JA
2015 NOVEMBER 12, 30
Labour law - Courts—Jurisdiction—High Court and Labour Court—Concurrent jurisdiction—Decision by Minister to extend collective agreement of bargaining council to non-parties—Validity of extension falling within exclusive jurisdiction of Labour Court—Labour Relations Act 66 of 1995, ss 32 and 157(1) and (2).
SOUTH AFRICAN MUNICIPAL WORKERS UNION AND OTHERS v MOKGATLA AND OTHERS (SCA)
MAYA AP, WALLIS JA, MBHA JA, DAMBUZA JA and MATHOPO JA
2016 FEBRUARY 18; MARCH 18
Labour law - Courts—Jurisdiction—High Court and Labour Court—Concurrent jurisdiction—Determination of dispute concerning non-compliance with constitution of trade union—Exercise of power under the LRA—Labour Court possessing exclusive jurisdiction—Labour Relations Act, ss 157(1) and 158(1)(e).
POTPALE INVESTMENTS (PTY) LTD v MKHIZE (KZP)
2015 NOVEMBER 26; DECEMBER 15
Practice - Pleadings—Bar—Where notice of bar having been served by plaintiff on defendant—Prior to elapse of five-day time limit in notice of bar, defendant delivering notice in terms of Uniform Rule of Court 35(12) and (14) requesting plaintiff to produce documents—Whether having effect of suspending five-day time period within which to deliver pleadings—Uniform Rules of Court, rules 26 and 35(12) and (14).
Discovery and inspection - Production of documents—Notice to produce documents—Where notice of bar having been served by plaintiff on defendant—Prior to elapse of five-day time limit in notice of bar, defendant delivering notice in terms of Uniform Rule of Court 35(12) requesting plaintiff to produce documents—Whether having effect of suspending five-day time period within which to deliver pleadings—Uniform Rules of Court, rules 26 and 35(12).
Discovery and inspection - Production of documents—Notice to make documents available for inspection—Where notice of bar having been served by plaintiff on defendant—Prior to elapse of five-day time limit in notice of bar, defendant delivering notice in terms of Uniform Rule of Court 35(14) requesting plaintiff to make available documents for inspection—Whether having effect of suspending five-day time period within which to deliver pleadings—Uniform Rules of Court, rules 26 and 35(14).
SHERIFF, JOHANNESBURG NORTH AND ANOTHER v YELLOW DOT PROPERTY INVESTMENTS AND ANOTHER (GJ)
2015 DECEMBER 3; 2016 MARCH 4
Execution - Sale in execution—Immovable property—Cancellation of sale—On basis of inter alia non-compliance with condition of sale requiring purchaser to pay, within seven days of request, all amounts required by municipality for issuance of rates clearance certificate—Where rates amounts payable not clearly stated in conditions of sale but nil estimate provided—Rates amount due had to be clearly stated in conditions of sale—Uniform Rules of Court, rule 46(13); Local Government: Municipal Systems Act 32 of 2000, s 118.
PE v IKWEZI MUNICIPALITY AND ANOTHER (ECG)
2015 OCTOBER 6–7; 2016 FEBRUARY 29; MARCH 23, 31
Delict - Specific forms—Vicarious liability—Workplace sexual assault—By supervisor—Liability of municipality for sexual assault on employee by committed by her immediate supervisor—Required link between deviant conduct and employment supplied by authority conferred on supervisor.
Labour law - Sexual harassment—Vicarious liability of employer—Liability of municipality for sexual assault committed at work by supervisor on subordinate—Required link between deviant conduct and employment supplied by authority conferred on supervisor.
SINGH AND ANOTHER v MOUNT EDGECOMBE COUNTRY CLUB ESTATE MANAGEMENT ASSOCIATION (RF) NPC AND OTHERS (KZP)
2015 JUNE 12; 2016 FEBRUARY 4
Spoliation - Mandament van spolie—When available—Where homeowners association suspending access cards and biometric access allowing members entry to housing estate pending their payment of outstanding fines—Whether defence that alternative access available—Whether defence that such suspension effected in terms of agreed conduct rules.
Voluntary association - Homeowners association—Conduct rules—Contractual nature of confirmed—Whether rules complained of against public policy—Lawfulness of rules regulating enforcement of speed restrictions within estate, accreditation of service providers, and transportation for domestic employees on estate.
POTTERS MILL INVESTMENTS 14 (PTY) LTD v ABE SWERSKY & ASSOCIATES AND OTHERS (WCC)
2016 JANUARY 28; FEBRUARY 1
Practice - Pleadings—Amendment—Withdrawal of mistakenly admitted legal consequence—Distinguished from amendment retracting admission of fact, where prejudice to opposing party possible—Amendment granted.
AB v JB (SCA)
MAYA AP, SWAIN JA, TSOKA AJA, BAARTMAN AJA and KATHREE-SETILOANE AJA
2016 FEBRUARY 26; MARCH 24
Arbitration - Matters excluded—Matters having matrimonial cause or any matter incidental to such cause—Whether including delictual claim for damages arising from negligent misrepresentation or deliberate nondisclosure of true value of accrual in settlement agreement incorporated in divorce order—Arbitration Act 42 of 1965, s 2(a)
Marriage - Divorce—Proprietary rights—Accrual system—Proof of accrual—When determined—Date of dissolution of marriage determinative (not of litis contestatio)—Matrimonial Property Act 88 of 1984, s 3(1).
SNYDERS AND OTHERS v DE JAGER (SCA)
PONNAN JA, SALDULKER JA, DAMBUZA JA, MATHOPO JA and VAN DER MERWE AJA
2015 SEPTEMBER 15, 30
Appeal - Appealability—Lands Claims Court order confirming magistrates’- court eviction order on automatic review—Not competent for Land Claims Court to grant leave to appeal to Supreme Court of Appeal against such order—Extension of Security of Tenure Act 62 of 1997, s 19(3)(a).
Land - Land reform—Eviction—Eviction in terms of Extension of Security of Tenure Act 62 of 1997—Land Claims Court order confirming magistrates’- court eviction order on automatic review—Appealability—Not competent for Land Claims Court to grant leave to appeal to Supreme Court of Appeal against such confirmation order—Extension of Security of Tenure Act 62 of 1997, s 19(3)(a).
GOWAR AND ANOTHER v GOWAR AND OTHERS (SCA)
MAYA DP, MAJIEDT JA, PETSE JA, VICTOR AJA and BAARTMAN AJA
2016 MAY 19; JUNE 9
 ZASCA 101
Trust - Trustee—Removal—Requirements—Whether Act abrogating common law—Trust Property Control Act 57 of 1988, s 20(1).
Trust - Trust instrument—Termination—Requirements—Trust Property Control Act 57 of 1988, s 13.
NKALA AND OTHERS v HARMONY GOLD MINING CO LTD AND OTHERS (GJ)
MOJAPELO DJP, VALLY J and WINDELL J
2015 OCTOBER 12–23; 2016 MAY 13
Practice - Class action—Certification—Respondents claiming certification should be refused on basis of class definition’s being overbroad, which resulting in unmanageability of class action—Where issues and evidence uniform or applicable to each class member’s claim, concerns of manageability or overbreadth of class action not arising.
Practice - Class action—Certification—Requirement of commonality of issues amongst class members’ claims—Granting of certification not depending on each class member’s case being fully and finally determined once common issues determined in favour of class—As long as applicants showing that determination of common issues allowing cases of individual class members to move forward without duplication of judicial analysis, certification of intended class action would be justified and in interests of
Practice - Class action—Certification—Whether required where Bill of Rights violation claimed to have taken place.
Practice - Class action—Certification—Requirement that class action most suitable means to determine class members’ claims—Whether certification only warranted where factual and legal issues common to all class members outweighing non-common issues.
Damages - Bodily injuries—Claim for general damages—Plaintiff dying after having instituted claim and before litis contestatio—Common law developed—Claim for general damages transmitted to deceased’s estate.
Damages - Bodily injuries—Claim for general damages—Death of defendant after plaintiff’s having instituted claim and before litis contestatio—Common law developed—Deceased’s estate remaining liable for general damages.
Delict - Action for damages—Bodily injuries—Claim for general damages—Plaintiff dying after having instituted claim and before litis contestatio—Common law developed—Claim for general damages transmitted to deceased’s estate.
Delict - Action for damages—Bodily injuries—Claim for general damages—Death of defendant after plaintiff’s having instituted claim and before litis contestatio—Common law developed—Deceased’s estate remaining liable for general damages.
SOUTH AFRICAN CRIMINAL LAW REPORTS
TABLE OF CASES
S v MOTLOUNG (SCA)
CACHALIA JA, MAJIEDT JA and VICTOR AJA
2016 MAY 9; JUNE 2
Appeal - Against sentence—Powers of court on appeal—When appellate court may intervene—May do so when there is material misdirection by sentencing court—In absence of such, it may intervene when disparity between trial court’s sentence and sentence which appellate court would have imposed is shocking, startling or disturbingly inappropriate—Law on issue reiterated—Sentence of 14 years’ imprisonment for murder, of which 6 years suspended, increased on appeal where there were misdirections by trial court and sentence held to be startlingly inappropriate—Sentence increased to 15 years’ imprisonment.
Sentence - Imposition of—Court giving directions to parole board on dealing with unexpired portion of sentence on previous conviction—Such constituting interference with parole board’s powers—Court imposing sentence for one set of crimes cannot impose directions on parole board where complexities of concurrence of sentences and cumulative effect of other multiple sets of crimes not before sentencing court—Such direction set aside by appellate court.
Arms and ammunition - Unlawful possession of firearm and ammunition in contravention—Whether sentencing provisions of s 51(2) of Criminal Law Amendment Act 105 of 1997 impliedly repealed by Firearms Control Act 60 of 2000—No conflict between sentencing regimes of the two Acts—Accordingly not falling into exception where later statute repeals earlier one—No indication that Firearms Control Act intended to repeal s 51(2) of earlier Criminal Law Amendment Act.
MAKWELA v MINISTER OF JUSTICE AND OTHERS (GJ)
2016 FEBRUARY 29; MARCH 1, 4, 29; APRIL 1
Sentence - Concurrence of sentences—Calculation of term to be served—Sentence of imprisonment for period that is to run concurrently with an earlier sentence shorter than later sentence—Accused must continue serving rest of later sentence after he has completed original term.
S v SILO (WCC)
HENNEY J and NELSON AJ
2016 MARCH 11, 22
Rape - Attempted rape—What constitutes—Act of consummation of crime—Assault on victim before rape takes place considered act of consummation if assault inflicted with intention to rape in order to overcome resistance—Appellant pushing complainant onto bed in her flat saying that he wanted to have sexual intercourse with her, assaulting her, instructing her to take off her gown and panties, and attempting to fetch knife to further threaten and restrain her—Such amounting to clear acts in commencement or consummation of crime of rape.
Rape - Attempted rape—Sentence—Prescribed minimum sentence—Criminal Law (Sentencing) Amendment Act 105 of 1997—Legislation not making express provision in parts I–IV of sch 2 for imposition of prescribed minimum sentence in case of attempt to commit listed offence—But s 55 of Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 providing that offender, on conviction of attempted rape, liable for punishment to which would have been subjected if had actually committed such offence—Where prosecution reveals in charge of attempted rape that minimum-sentence legislation relied on, court would be correct in applying provisions of such legislation.
S v SWARTZ (WCC)
DESAI J, ROGERS J and BAARTMAN J
2014 JULY 28; AUGUST 4
Arms and ammunition - Unlawful possession of firearm in contravention of s 4 of Firearms Control Act 60 of 2000—Sentence—Minimum-sentencing provisions in Criminal Law Amendment Act 105 of 1997—Effect of on general penalty provision in Firearms Control Act—Minimum-sentencing provisions taking precedence over Firearms Control Act.
S v DELPORT (WCC)
BINNS-WARD J and KLOPPER AJ
2016 MARCH 15
Arms and ammunition - Unlawful possession of firearm in contravention of s 4 of Firearms Control Act 60 of 2000—Sentence—Firearm fully automatic rifle—Minimum sentence of 15 years’ imprisonment prescribed by s 51(2) of Criminal Law Amendment Act 105 of 1997—Special minimum- sentencing provisions intended to trump general penalty provisions in Firearms Control Act.
Arms and ammunition - Unlawful possession of firearm—Sentence—Comparison of sentences imposed under Arms and Ammunition Act 75 of 1969 with sentences imposed under Firearms Control Act 60 of 2000—Need to have regard to context and effect of changes introduced by new legislation against background of greater incidence of unlawful possession of firearms and their use in violent crime.
S v SAMUELS (WCC)
DLODLO J and NUKU AJ
2016 MARCH 11, 31
Contempt of court - What constitutes—Court order disobeyed—Order evicting accused from informal dwelling on state land—Accused pleading guilty but, when questioned under s 112(1)(b) of CPA, answered that she had nowhere else to go—Accused convicted on plea without any evidence to gainsay her statement—Plea ought to have been changed to not guilty, given clear doubt as to whether she had intention to deliberately and mala fide disobey order—Criminal Procedure Act 51 of 1977, ss 112(1)(b) and 113.
Contempt of court - Sentence—Suspended sentence—Conditions of suspension—Accused disobeying court order evicting her from informal dwelling on state land—Sentence of imprisonment imposed suspended on condition that vacate premises within 14 days—Accused’s contention that she had nowhere else to go ignored—Condition violated s 26(3) of Constitution which required proper judicial enquiry into circumstances and consequences of eviction.
S v CHAKE (FB)
VAN ZYL J and MURRAY AJ
2015 OCTOBER 12
Sentence - Suspended sentence—Putting into operation of—Sentence of imprisonment for offence which triggered putting into operation of suspended sentence of imprisonment—Concurrence of two sentences—Which court can order that such sentences should run concurrently—Court imposing sentence in absence of relevant (trial) court empowered to order earlier suspended sentence to run concurrently with new or any other sentence—Earlier interpretation of legislation to effect that only ‘trial court’ had power to order concurrency of sentences incorrect—Constitutional standards of legality, equality, proportionality and the protection of human dignity in relation to sentencing applied—Criminal Procedure Act 51 of 1977, ss 275, 276(1)(b), 280(2), 297(1)(b) and 297(9)(a)(ii).
S v VAN SCHALKWYK (SCA)
LEWIS JA, TSHIQI JA, WILLIS JA, PLASKET AJA and BAARTMAN AJA
2016 MARCH 10, 31
Murder - Mens rea—Intention to kill—Farmer having struck deceased with hay hook—Hook in question different to long knife and would not inevitably inflict serious or fatal wound—No clear evidence as to how farmer had struck deceased—No proof that farmer foresaw possibility of death ensuing—Farmer guilty of culpable homicide.
KELLY v MINISTER OF CORRECTIONAL SERVICES AND OTHERS (GJ)
2016 FEBRUARY 29; MARCH 3
Prisoner - Parole—Decision of Minister not to place prisoner on parole based on recommendation of NCCS—Conditions set by NCCS and Minister impossible for prisoner to achieve as he had not been provided with necessary means to do so—NCCS not taking into account relevant factors, and taking into account irrelevant factors—Decision set aside on review—Parties set strict time frame within which to consider parole application.
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