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July 2013

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases of interest in the July reports. Also included below are the table of cases and flynotes.

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

SOUTH AFRICAN LAW REPORTS

The minerals expropriation issue finaly laid to rest?

Before commencement of the Mineral and Petroleum Resources Development Act 28 of 2002, a holder of mineral rights could prospect, mine, sterilise or freely sell or lease such rights. On coming into force the Act terminated the ability to freely sell or lease the rights, but otherwise left them intact. Thus a law of general application which was not arbitrary had deprived the holders of their rights. In issue was whether this deprivation was also an expropriation. Agri SA v Minister for Minerals and Energy 2013 (4) SA 1 (CC)

The voetstoots clause and the faulty roof

Where the purchaser was aware of certain damage, but the seller made fraudulent misrepresentation, relied upon by purchaser, regarding continued validity of warranty in respect of repairs, the seller forfeited the protection of the voetstoots clause and was liable for the costs of further repairs. Banda and Another v Van der Spuy and Another  2013 (4) SA 77 (SCA)

Municipalities subject to Consumer Protection Act?

Afriforum challenged two notices of the Minister of Trade and Industry exempting medium- and low-capacity municipalities from parts of the Consumer Protection Act. Municipal services are at the centre of quality of life for all citizens, and their rights as consumers against municipalities cannot be deferred in perpetuity in absence of an express legislative provision allowing it. Afriforum v Minister of Trade and Industry and Others 2013 (4) SA 63 (GNP)

SOUTH AFRICAN CRIMINAL LAW REPORTS

Tragic deaths of children not murder

The high court convicted a driver of multiple counts of murder after he drove a minibus full of children past a railway boom and collided with an oncoming train. On appeal to the Supreme Court of Appeal the case turned on whether there had been an intention to kill. S v Humphreys 2013 (2) SACR 1 (SCA)

Definition in Criminal Procedure Act unconstitutional

The high court found that the insertion of ‘accomplice’ in the definition of ‘aggravating circumstances’ in s 1(1)(b) of Criminal Procedure Act 51 of 1977 created strict liability that infringed the right to freedom and security, and the right to fair trial, and the court accordingly declared the provision invalid. S v Masingili and Others 2013 (2) SACR 67 (WCC)

Deliberate HIV infection amounting to attempted murder

Our common law covers the situation where the HIV virus is intentionally transferred to another person during a rape, justifying a further conviction of attempted murder. S v Nyalungu 2013 (2) SACR 99 (T)

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SOUTH AFRICAN LAW REPORTS

TABLE OF CASES

  • Agri SA v Minister for Minerals and Energy 2013 (4) SA 1 (CC)

  • Page Automation (Pty) Ltd v Profusa Properties CC t/a Homenet OR Tambo and Others 2013 (4) SA 37 (GSJ)

  • Knox NO v Mofokeng and Others 2013 (4) SA 46 (GSJ)

  • Afriforum v Minister of Trade and Industry and Others 2013 (4) SA 63 (GNP)

  • Banda and Another v Van der Spuy and Another 2013 (4) SA 77 (SCA)

  • Gaertner and Others v Minister of Finance and Others 2013 (4) SA 87 (WCC)

  • Tasima (Pty) Ltd v Department of Transport and Others 2013 (4) SA 134 (GNP)

  • Berg River Municipality v Zelpy 2065 (Pty) Ltd 2013 (4) SA 154 (WCC)

  • Department of Correctional Services and Another v POPCRU and Others 2013 (4) SA 176 (SCA)

  • Commissioner, South African Revenue Service v Tradehold Ltd 2013 (4) SA 184 (SCA)

  • Absa Bank Ltd v Companies and Intellectual Property Commission and Others 2013 (4) SA 194 (WCC)

  • Hlophe and Others v City of Johannesburg and Others 2013 (4) SA 212 (GSJ)

  • Rademan v Moqhaka Local Municipality 2013 (4) SA 225 (CC)

  • Mazibuko NO v Sisulu and Others NNO 2013 (4) SA 243 (WCC)

  • KwaZulu-Natal Joint Liaison Committee v MEC for Education, Kwa-Zulu-Natal and Others 2013 (4) SA 262 (CC)

FLYNOTES

AGRI SA v MINISTER FOR MINERALS AND ENERGY (CC)

MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, NKABINDE J, SKWEYIYA J, VAN DER WESTHUIZEN J, YACOOB J and ZONDO J

2012 NOVEMBER 8; 2013 APRIL 18

Mines and minerals—Mineral rights—Expropriation—What constitutes—Act not expropriating mineral rights holders’ entitlements to freely sell, lease or sterilise rights on coming into force—Mineral and Petroleum Resources Development Act 28 of 2002.

Expropriation—Acquisition—Requirement of expropriation that state acquire substance of what expropriatee deprived of.

PAGE AUTOMATION (PTY) LTD v PROFUSA PROPERTIES CC t/a HOMENET OR TAMBO AND OTHERS (GSJ)

HEATON-NICHOLLS J

2012 AUGUST 24; OCTOBER 26

Cession—Validity—Real right—Whether real right capable of being ceded—Law of cession to be developed to accommodate cession of ownership or cession of right of vindication—Where cession of rental agreement included ownership of equipment concerned, transfer of ownership and delivery of such equipment effected upon cession.

Ownership—Movable property—Transfer—Delivery—Cession—Law of cession to be developed to accommodate cession of ownership or cession of right of vindication—In circumstances of present case, where cession of rental agreement included ownership of equipment concerned, transfer of ownership and delivery of such equipment effected upon cession.

KNOX NO v MOFOKENG AND OTHERS (GSJ)

LJ VAN DER MERWE AJ

2012 JANUARY 30

Execution—Sale in execution—Immovable property—Where judgment under which sale in execution carried out rescinded after registration of transfer to bona fide purchaser—Abstract theory of passing of ownership applicable—Judgment debtor not entitled to recover property from bona fide purchaser, unless real agreement between sheriff and purchaser defective—Rescission of judgment not retroactively invalidating real agreement—However, if sale in execution invalid, sheriff’s lack of authority to pass transfer constituting defect in both underlying and real agreement.

Sale—Land—Transfer—Abstract theory of passing of ownership—Common-law adage, that no one may transfer more rights than he or she has, applicable to real agreements between successive bona fide purchasers—Accordingly, where transfer passed to bona fide purchaser in terms of defective real agreement and thereafter passed to successive bona fide purchaser/s, such successive real agreement/s also defective.

AFRIFORUM v MINISTER OF TRADE AND INDUSTRY AND OTHERS (GNP)

VICTOR J

2013 FEBRUARY 28; MARCH 12

Consumer protection—Deferral—Validity—Ministerial deferral of implementation of statutory consumer rights—Minister, acting under transitional provisions of CPA, issuing notice exempting all medium- and low-capacity municipalities from complying with CPA—Minister not empowered to so exempt entire categories of municipalities—Notice rescinded—Minister ordered to publish new notice individually listing municipalities to be exempted from CPA—Consumer Protection Act 86 of 2008, sch 3 item 2(3)(b).

BANDA AND ANOTHER v VAN DER SPUY AND ANOTHER (SCA)

LEWIS JA, MAYA JA, CACHALIA JA, ERASMUS AJA and SWAIN AJA

2013 MARCH 7, 22

Sale—Warranties—Against latent defects—Non-disclosure—Duty to disclose—When arising—Seller partially aware of causes of defect and of fact that repairs it had effected not sufficient—Though purchaser aware of certain damage, seller having made fraudulent misrepresentation, relied upon by purchaser, regarding continued validity of warranty in respect of repairs—Seller in such circumstances forfeiting protection of voetstoots clause and liable for costs of further repairs.

GAERTNER AND OTHERS v MINISTER OF FINANCE AND OTHERS (WCC)

ROGERS J

2013 FEBRUARY 26; APRIL 8

Revenue—Customs and excise—Search of premises—Court declaring search provisions inconsistent with Constitution and invalid—Declaration nonretrospective and suspended for 18 months—Temporary reading-in effected—Customs and Excise Act 91 of 1964, s 4(4)(a)(i)–(ii), 4(4)(b), 4(5) and 4(6).

TASIMA (PTY) LTD v DEPARTMENT OF TRANSPORT AND OTHERS (GNP)

VAN DER MERWE DJP, TUCHTEN J and KOLLAPEN J

2013 FEBRUARY 4, 8, 25

Attorney—State attorney—Dereliction of duties in conduct of litigation—Conduct of state attorney labeled as reprehensible and prejudicial to administration of justice—Office of State Attorney, Pretoria, shown to be dysfunctional—Judgment forwarded to Minister of Justice, Parliamentary Portfolio Committee for Justice, and Law Society of Northern Provinces—Costs order de bonis propriis awarded.

Contempt of court—Disobedience of court order—By organ of state—Order relied upon doing no more than record terms of agreement between state and outside party—Not constituting direction by court to be implemented on pain of contempt—In any event, content of state’s obligation to court not set out with specificity required for non-compliance to be visited with committal for contempt.

BERG RIVER MUNICIPALITY v ZELPY 2065 (PTY) LTD (WCC)

ROGERS J

2013 FEBRUARY 28; APRIL 8

Local authority—Buildings—Building plans—Approval—Occupation of buildings erected without approval—Section impliedly prohibiting use and occupation of such buildings—National Building Regulations and Building Standards Act 103 of 1977, s 4(1).

Local authority—Buildings—Building plans—Approval—Permission to use building pending issue of certificate of occupancy—Provision not applying to building erected without approval—National Building Regulations and Building Standards Act 103 of 1977, s 14(1A).

DEPARTMENT OF CORRECTIONAL SERVICES AND ANOTHER v POPCRU AND OTHERS (SCA)

NUGENT JA, MAYA JA, PILLAY JA, PLASKET AJA and MBHA AJA

2013 FEBRUARY 19; MARCH 28

Labour law—Dismissal—Fairness—Automatically unfair dismissals—Culture, gender and religion—Male correctional officers dismissed for refusing to cut dreadlocks worn in contravention of department’s dress code—Short hair not inherent requirement of job—Discrimination irrational—Confirmed that dismissals automatically unfair—Labour Relations Act 66 of 1995, s 187(1)(f) and s 187(2)(a).

COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE v TRADEHOLD LTD (SCA)

NUGENT JA, CACHALIA JA, MALAN JA, TSHIQI JA and BORUCHOWITZ AJA

2012 MARCH 12; MAY 8

Revenue—Capital gains tax—Deemed disposal of asset—Deemed disposal when taxpayer ceasing to be resident of Republic—Double Tax Agreement (DTA) making ‘gains’ from ‘alienation of any property’ taxable in contracting state—DTAs enjoying preference over domestic law to extent of any conflict—On proper interpretation, DTA concerned applying to capital gains arising from both actual and deemed alienations or disposals of property—Contracting state accordingly having exclusive right to tax capital gains, whether actual or deemed—Income Tax Act 58 of 1962, sch 8 para 12(1).

International law—International agreements, treaties and conventions—Double tax agreements—DTAs enjoying preference over domestic law to extent of any conflict.

ABSA BANK LTD v COMPANIES AND INTELLECTUAL PROPERTY COMMISSION AND OTHERS (WCC)

YEKISO J, ROGERS J and CLOETE J

2013 APRIL 12, 19

Close corporation—Deregistration—Corporation failing to file return and being deregistered and dissolved—Court may declare dissolution void—Close Corporations Act 69 of 1984, ss 26 and 67; Companies Act 71 of 2008, ss 82(3), 83(1) and 83(4).

Close corporation—Deregistration—Corporation failing to file return and being deregistered—2008 Companies Act later commencing and making applicable to corporations its provisions on deregistration and revival—Under these provisions court may declare corporation’s dissolution void—Close Corporations Act 69 of 1984, ss 26 and 67; Companies Act 71 of 2008, ss 82(3), 83(1) and 83(4).

Company—Register of companies—Company failing to file return and being deregistered and dissolved—Court may declare dissolution void—Companies Act 71 of 2008, ss 82(3), 83(1) and 83(4).

Company—Register of companies—Company failing to file return and being deregistered before commencement of 2008 Act—Under 2008 Act court may declare dissolution void—Companies Act 71 of 2008, ss 82(3), 83(1) and 83(4).

HLOPHE AND OTHERS v CITY OF JOHANNESBURG AND OTHERS (GSJ)

SATCHWELL J

2013 APRIL 10; MAY 3

Local authority—Powers and duties—To shelter persons evicted by private landowners—City failing to comply with court orders directing it to arrange temporary shelter for evicted persons—Well aware of its responsibilities in this regard—Court making detailed order holding city officials personally responsible for ensuring city’s compliance with earlier orders.

RADEMAN v MOQHAKA LOCAL MUNICIPALITY (CC)

MOGOENG CJ, MOSENEKE DCJ, FRONEMAN J, JAFTA J, NKABINDE J, SKWEYIYA J, VAN DER WESTHUIZEN J, ZONDO J and MHLANTLA AJ

2013 FEBRUARY 5; APRIL 26

Local authority—Electricity—Disconnection of electricity supply—When lawful—Non-payment of municipal rates—Municipality rendering consolidated account—Resident obliged to pay entire consolidated debt—Fact that electricity component of account settled not precluding municipality from cutting off resident’s electricity on non-payment of rates component—Local Government: Municipal Systems Act 32 of 2000, s 102; Electricity Supply Regulation Act 4 of 2006, s 21(5)(c).

MAZIBUKO NO v SISULU AND OTHERS NNO (WCC)

DAVIS J

2012 NOVEMBER 20, 22

Constitutional law—Parliament—Motion of no confidence in President of Republic—Elected representatives of both majority and minority parties having constitutional right to bring such motion—Scheduling of debate inherently urgent—Majority cannot subvert right of minority to debate motion by unreasonably delaying its initiation—Constitution, s 102(2).

Constitutional law—Parliament—Motion of no confidence in President of Republic—National Assembly Rules not providing for vindication of right of party proposing motion to have it debated—Speaker of national assembly not having residual power to dictate when debate should be held—Also not for court to do so—Such rules should be provided—Lacuna in rules subverting right to have motion of no confidence debated as envisaged in Constitution, s 102(2).

Constitutional law—Separation of powers—Between legislature and judiciary—Judicial intervention in operations of legislature—While judiciary entitled to direct parliament to operate within constitutional boundaries, it may not trespass into legislative terrain by dictating to parliament how to arrange its order of business.

KWAZULU-NATAL JOINT LIAISON COMMITTEE v MEC FOR EDUCATION, KWAZULU-NATAL AND OTHERS (CC)

MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, NKABINDE J, SKWEYIYA J, YACOOB J and ZONDO J

2012 NOVEMBER 22; 2013 APRIL 25

Education—School—Independent school—Subsidy—State’s obligation to pay—Promised subsidy reduced after date for payment—Such impermissible.

Administrative law—Statutory powers—Unilateral obligation of state to private party—Promise of specified amounts—Amounts may not be diminished after date for their payment has passed.

SOUTH AFRICAN CRIMINAL LAW REPORTS

TABLE OF CASES

  • S v Humphreys 2013 (2) SACR 1 (SCA)

  • S v Makgatho 2013 (2) SACR 13 (SCA)

  • F v Minister of Safety and Security and Others 2013 (2) SACR 20 (CC)

  • S v Masingili and Others 2013 (2) SACR 67 (WCC)

  • S v Diale and Another 2013 (2) SACR 85 (GNP)

  • S v Mthimkulu 2013 (2) SACR 89 (SCA)

  • S v Nyalungu 2013 (2) SACR 99 (T)

FLYNOTES

S v HUMPHREYS (SCA)

BRAND JA, CACHALIA JA, LEACH JA, ERASMUS AJA and VAN DER MERWE AJA

2013 MARCH 11, 22

Murder—Mens rea—Intention to kill—Dolus eventualis—Motor vehicle accident—Minibus driver, ignoring signals, entering boom-controlled level crossing while train approaching—Fourteen passengers killed—Not proven that driver reconciled himself to death of his passengers where no indication that he had taken his own death into bargain—Conviction changed to culpable homicide.

Culpable homicide—Sentence—Death arising from road traffic accident—Driver of minibus grossly negligent in causing deaths of 14 children when he entered boom-controlled level crossing against warning signals—Eight years’ imprisonment appropriate sentence in circumstances of case.

S v MAKGATHO (SCA)

MAYA JA, MALAN JA, SHONGWE JA, MAJIEDT JA and MBHA AJA

2013 MARCH 11, 28

Murder—Mens rea—Intention to kill—Dolus eventualis—What constitutes—Accused having fired two shots with his firearm in tavern in which there were number of people—Accused having foreseen possibility of harm and reconciling himself to this—Conviction of murder upheld.

F v MINISTER OF SAFETY AND SECURITY AND OTHERS (CC)

MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MOGOENG J, NKABINDE J, SKWEYIYA J, VAN DER WESTHUIZEN J and YACOOB J

2011 AUGUST 4; DECEMBER 15

Police—Liability—For criminal acts committed by police officer—Duty of state to protect its citizens and corresponding need for public trust in police service suggesting normative basis for such liability—Sufficiently close link between misconduct and perpetrator’s employment as police officer to be established—Officer on standby duty committing rape, facilitated by use of police vehicle—Sufficient link established—Minister vicariously liable.

Police—Liability of minister for delictual acts of police officer—Liability of state for criminal acts committed by police officer on standby duty—Rape of 13-year-old girl who was stranded and whom officer had offered lift home in police vehicle—Use of police vehicle establishing sufficient link between rape and perpetrator’s employment as police officer.

S v MASINGILI AND OTHERS (WCC)

BLIGNAULT J and VAN STADEN AJ

2013 MARCH 20

Robbery—Aggravating circumstances—What constitutes—Accomplice—Liability of where accomplice did not perform any act suggesting aggravating circumstances—Insertion of ‘accomplice’ in definition of ‘aggravating circumstances’ in s 1(1)(b) of Criminal Procedure Act 51 of 1977 creating strict liability that infringed right to freedom and security, and right to fair trial—Provision declared invalid.

S v DIALE AND ANOTHER (GNP)

KUBUSHI J

2012 DECEMBER 4

Bail—Refusal of—Appeal against—Factors to be taken into account—Accumulation of factors including strong case against accused; possibility of severe sentence; and accused not having fixed verifiable address, counting against accused—Appeal dismissed.

S v MTHIMKULU (SCA)

MAYA JA, SHONGWE JA, LEACH JA, PETSE JA and MBHA AJA

2013 MARCH 8; APRIL 4

Sentence—Imprisonment—Term of—Non-parole period—Section 276B of Criminal Procedure Act 51 of 1977—Court not obliged to fix non-parole period when sentences ordered to run concurrently.

Sentence—Imprisonment—Term of—Non-parole period—Section 276B of Criminal Procedure Act 51 of 1977—Court required to give parties opportunity to address court on making of order in terms of s 276B(2) and on period it should order.

S v NYALUNGU (T)

JORDAAN WnR

2004 MAART 15

Murder—Attempted murder—Proof of—Rapist infecting complainant with HIV virus—Rapist aware of HIV status and not taking preventative measures—Attempted murder proven.

General principles of liability—Mens rea—Intention—Attempted murder—Rapist infecting complainant with HIV virus—Rapist aware of HIV status and not taking preventative measures—Attempted murder also proven.

 

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