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August 2014

 

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases of interest in the August reports. Also available this month is the Namibian Law Reports 2014(2), which reports are issued every three months.

 

JUDGMENTS OF INTEREST IN THE AUGUST EDITIONS OF THE SALR, THE SACR AND THE NAMIBIAN LAW REPORTS 2014(2)

SOUTH AFRICAN LAW REPORTS

Trusts and divorce

The wife claimed that a family trust was the alter ego of her husband, and that its assets should be deemed to form part of his assets for the purpose of determining the accrual of his estate. It was not her case that the assets were his property, nor that the trust was a sham; it was simply that he had the power and the ability to use the assets for his sole benefit and that they should therefore be taken into account. MM and Others v JM 2014 (4) SA 384 (KZP)

Sham trust?

In this case the applicants applied to court for it to ‘go behind’ a trust and to disregard its ‘veneer’ in order to give effect to what they said was the true situation. This they alleged was that it was the alter ego of one K. The court held that ‘going behind the trust form’ and establishing that a trust was a sham, had to be distinguished. Here the applicants had failed to show that the trust was a sham or that K had used it as his alter ego. Van Zyl and Another NNO v Kaye NO and Others 2014 (4) SA 452 (WCC)

Court’s powers in dispute of fact

May a court intervene regarding a referral of a dispute of fact to oral evidence? The court may do so to suggest an alternative approach or argument, but it remains for the parties to adopt it. If the parties wished to stand by the issues they had formulated, it was not open to the court to raise new ones or compel them to deal with matters other than those they had formulated in their pleadings or affidavits. Fischer and Another v Ramahlele and Others 2014 (4) SA 614 (SCA)

SOUTH AFRICAN CRIMINAL LAW REPORTS

Intermediaries desirable for young children witnesses

The need for, and procedure for appointing intermediaries for child witnesses, is discussed in S v Peyani  2014 (2) SACR 127 (GP), where the accused was facing numerous charges of serious sexual offences, and where the witnesses would have suffered undue stress without an intermediary.

Fraud to the world at large?

The merits of the appeal turned on a question of law: whether a misrepresentation that had been made to the world at large, could constitute fraud. The court held that there was authority for the proposition that such a misrepresentation could constitute fraud. In the light of this, and the often difficult question whether silence or nondisclosure was criminally fraudulent, there was a reasonable prospect of success on appeal. Director of Public Prosecutions, Western Cape v Malan 2014 (2) SACR 146 (WCC)

Minimum sentence not to be lightly departed from

Under the minimum sentencing legislation, the starting point is the prescribed minimum sentence, and this is not to be departed from for flimsy reasons. A sentence of an effective three years’ imprisonment imposed on 19-year-old offender for participating in an attack on two women and a child in their home at night was woefully inadequate. The sentence was altered to an effective 12 years’ imprisonment. S v Nkunkuma and Others 2014 (2) SACR 168 (SCA)

THE NAMIBIAN LAW REPORTS 2014(2)

The line between self-defence and murder

In looking at the accused’s intention, the court has to consider the cumulative conduct of the accused, the nature of the weapon used, as well as the location and number of the injuries inflicted.  S v Lukas 2014 (2) NR 374 (HC)

Exceptio rei judicatae

A judgment or order that does not have the effect of settling or disposing of the dispute between the parties with finality cannot found the exceptio rei judicatae. In order to determine whether the judgment and order does so, it must be carefully construed. Fish Orange Mining Consortium (Pty) Ltd v !Goaseb and Others 2014 (2) NR 385 (SC)

Family feud over grandmother’s will

In this bitterly-fought battle over the validity of a second will, various tests drawn from reported cases are set out and used in determining testamentary capacity in terms of s 4 of Wills Act 7 of 1953. The second will was challenged on the basis that the grandmother was suffering from Alzheimer’s disease when she signed it. Vermeulen and Another v Vermeulen and Others 2014 (2) NR 528 (SC)

 

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SOUTH AFRICAN LAW REPORTS

TABLE OF CASES

  • Roshcon (Pty) Ltd v Anchor Auto Body Builders CC and Others 2014 (4) SA 319 (SCA)
  • Capricorn District Municipality and Another v The South African National Civic Organisation 2014 (4) SA 335 (SCA)
  • Boost Sports Africa (Pty) Ltd v South African Breweries Ltd 2014 (4) SA 343 (GP)
  • South African Informal Traders Forum and Others v City of Johannesburg and Others 2014 (4) SA 371 (CC)
  • MM and Others v JM 2014 (4) SA 384 (KZP)
  • Investec Bank Ltd t/a Investec Private Bank v Ramurunzi 2014 (4) SA 394 (SCA)
  • Democratic Alliance v President of South Africa and Others 2014 (4) SA 402 (WCC)
  • Minister of Local Government, Environmental Affairs and Development Planning, Western Cape v Habitat Council and Others 2014 (4) SA 437 (CC)
  • Van Zyl and Another NNO v Kaye NO and Others 2014 (4) SA 452 (WCC)
  • Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC)
  • Tuning Fork (Pty) Ltd t/a Balanced Audio v Greeff and Another 2014 (4) SA 521 (WCC)
  • A Company and Others v Commissioner, South African Revenue Services 2014 (4) SA 549 (WCC)
  • TM v NM and Others 2014 (4) SA 575 (SCA)
  • Van Heerden v Nolte 2014 (4) SA 584 (GP)
  • Zulu and Others v Ethekwini Municipality and Others 2014 (4) SA 590 (CC)
  • Fischer and Another v Ramahlele and Others 2014 (4) SA 614 (SCA)
  • Absa Bank Ltd v Van Rensburg and Another 2014 (4) SA 626 (SCA)

     

FLYNOTES

ROSHCON (PTY) LTD v ANCHOR AUTO BODY BUILDERS CC AND OTHERS (SCA)
MAYA JA, SHONGWE JA, WALLIS JA, PETSE JA and SALDULKER JA
2014 MARCH 21, 31
[2014] ZASCA 40

Contract—Consensus—Simulation—Supplier and floor-plan agreements reserving bank’s ownership of property subject to finance agreement—Such agreements serving entirely legitimate commercial purpose of securing finance house’s interests—Structuring agreements in such way not constituting simulation.
Contract—Consensus—Simulation—Test—Supreme Court of Appeal’s decision in NWK case not to be interpreted as condemning as simulated all contractual arrangements enabling parties to avoid tax or operation of law—Whether transaction simulated remained question of its genuineness, which depended on consideration of all facts and circumstances surrounding it.
Contract—Consensus—Simulation—Test—Whether parties actually intended their agreement should have effect in accordance with its terms—Supplier and floor plan agreement reserving bank’s ownership of property subject to finance agreement—Contracting parties structuring their agreement for sound commercial reasons—No proof of secret understanding between them to disguise agreement—Appellant failing to prove that impugned agreements constituting disguise or simulation.

CAPRICORN DISTRICT MUNICIPALITY AND ANOTHER v SOUTH AFRICAN NATIONAL CIVIC ORGANISATION (SCA)
MTHIYANE DP, LEWIS JA, BOSIELO JA, PETSE JA and WILLIS JA
2014 FEBRUARY 21; MARCH 31
[2014] ZASCA 39

Constitutional law—Separation of powers—Between executive and judiciary—Judicial intrusion on executive domain—What constitutes—Court directing local authority to fix water reticulation and metering systems and to charge flat rate until this is achieved—Order constituting unwarranted intrusion on executive domain—Imposition of flat rate contrary to constitutional principles.

BOOST SPORTS AFRICA (PTY) LTD v SOUTH AFRICAN BREWERIES LTD (GP)
HASSIM AJ
2013 NOVEMBER 25–27; 2014 MARCH 19

Company—Proceedings by and against—Security for costs—Application for furnishing of—Approach of court—New Companies Act lacking provision allowing court to order plaintiff company to furnish security for costs of opponent—Effect of omission—Not negating court’s inherent power to regulate own process by compelling incola plaintiff company to provide security for costs of opponent where claim vexatious or lacking in merit.
Contract—Breach—Disclosure of confidential information—Defendant used concept pitched to it by plaintiff—Damages claimed—Concept in public domain before plaintiff’s pitch—Hence not objectively confidential—Concept not protected.

SOUTH AFRICAN INFORMAL TRADERS FORUM AND OTHERS v CITY OF JOHANNESBURG AND OTHERS (CC)
MOSENEKE ACJ, SKWEYIYA ADCJ, CAMERON J, DAMBUZA AJ, FRONEMAN J, JAFTA J, MADLANGA J, MHLANTLA AJ, NKABINDE J and ZONDO J
2013 DECEMBER 5; 2014 APRIL 4
[2014] ZACC 8

Appeal—To Constitutional Court—Urgent application for appeal against interim order—When granted—Only as last resort—Constitutional Court will interfere only if applicant can show that high court or Supreme Court of Appeal not providing for proper urgent procedure that would result in proposed relief.
Appeal—To Constitutional Court—Application for leave to appeal against interim order—When granted—Street traders unlawfully evicted from trading locations—Livelihoods threatened—Constitutional rights implicated—Facing immediate and irreversible harm—Court allowing appeal and granting urgent interim relief.

MM AND OTHERS v JM (KZP)
PLOOS VAN AMSTEL J
2013 DECEMBER 2; 2014 FEBRUARY 13

Marriage—Divorce—Proprietary rights—Accrual system—Assets held in trust—Husband having power and ability to use assets of trust for sole benefit—Whether assets to be excluded from accrual—Discretion of court—Difference between redistribution order under Divorce Act and accrual claim under Matrimonial Property Act—Court pointing out that accrual claim based on facts and numbers, not matter of discretion—Divorce Act 70 of 1979, s 7(3); Matrimonial Property Act 88 of 1984, s 3.

INVESTEC BANK LTD t/a INVESTEC PRIVATE BANK v RAMURUNZI (SCA)
LEWIS JA, PONNAN JA, BOSIELO JA, SALDULKER JA and MOCUMIE AJA
2014 MAY 2, 19
[2014] ZASCA 67

Credit agreement—Consumer credit agreement—Debt enforcement—Summons—Service of before notice of default delivered to consumer—Action instituted without prior notice valid—Service of summons before notice delivered interrupting prescription—National Credit Act 34 of 2005, ss 129(1)(a) and 130.

DEMOCRATIC ALLIANCE v PRESIDENT OF SOUTH AFRICA AND OTHERS (WCC)
ROGERS J
2014 MARCH 4–5, 13

Constitutional law—Parliament—Act of Parliament—Passage of Bill through parliament—Whether Bill to be enacted in terms of s 75 or s 76 of Constitution—Bill falling within functional area in sch 4 to be enacted in terms of s 76—Test for whether Bill falling within functional area in sch 4—Constitution, ss 75, 76 and sch 4.

MINISTER OF LOCAL GOVERNMENT, ENVIRONMENTAL AFFAIRS AND DEVELOPMENT PLANNING, WESTERN CAPE v HABITAT COUNCIL AND OTHERS (CC)
MOSENEKE ACJ, SKWEYIYA ADCJ, CAMERON J, DAMBUZA AJ, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MAJIEDT AJ, VAN DER WESTHUIZEN J and ZONDO J
2014 FEBRUARY 10; APRIL 4
[2014] ZACC 9

Local authority—Town planning—Town-planning and zoning schemes—Appeal rights—Provision permitting appeal of municipal land-use decisions to provincial government—Provision unconstitutional and invalid—Land Use Planning Ordinance 15 of 1985, s 44.

VAN ZYL AND ANOTHER NNO v KAYE NO AND OTHERS (WCC)
BINNS-WARD J
2014 MARCH 11–12; APRIL 15

Trust—Legal personality—Separate identity—Piercing of trust veneer—Nature of remedy.
Trust—Legal personality—Sham trust—Nature of.
Evidence—Admissibility—Statement from s 417 enquiry into affairs of company at later civil proceedings—Such admissible, if requirements of s 3 of Act 45 of 1988 met—Companies Act 61 of 1973, s 417; Law of Evidence Amendment Act 45 of 1988, s 3.
Insolvency—Trustee—Provisional trustee—Actions by and against—Authorisation to proceed—Provisional trustee may apply simultaneously for authority to bring proceedings and for substantive relief—Requirements for grant—Insolvency Act 24 of 1936, s 18(3).

COOL IDEAS 1186 CC v HUBBARD AND ANOTHER (CC)
MOSENEKE ACJ, SKWEYIYA ADCJ, CAMERON J, DAMBUZA AJ, FRONEMAN J, JAFTA J,
KHAMPEPE J, MADLANGA J, MAJIEDT AJ, VAN DER WESTHUIZEN J and ZONDO J
2014 FEBRUARY 5; JUNE 5
[2014] ZACC 16

Housing—Consumer protection—Unregistered builder—Contract between consumer (home buyer) and unregistered builder—Court refusing to enforce arbitral award directing consumer to pay balance of contract price—Housing Consumers Protection Measures Act 95 of 1998, s 10.
Arbitration—Award—Enforcement—Award directed at performance of act prohibited by statute unenforceable—Principle of party autonomy will yield to principle of legality where enforcement of award would constitute criminal offence.
Constitutional law—Constitution—Foundational values—Principle of legality—Fairness may not be invoked to circumvent plain meaning of statute which is rationally connected to legitimate purpose.

TUNING FORK (PTY) LTD t/a BALANCED AUDIO v GREEFF AND ANOTHER (WCC)
ROGERS J
2014 MAY 19, 28

Company—Business rescue—Business rescue plan—Release of company from debts—Business rescue provisions of Act not containing term preserving creditor’s rights against sureties where rescue plan releasing company from its debts—Companies Act 71 of 2008, ss 128–154.

A COMPANY AND OTHERS v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE (WCC)
BINNS-WARD J
2014 FEBRUARY 13; MARCH 17

Evidence—Privilege—Legal professional privilege—Legal advice privilege—Ambit—Extending to disclosure of actual communications between attorney and client in respect of seeking and giving legal advice, and such parts of documents from which such content may be inferred.
Evidence—Privilege—Legal professional privilege—Legal advice privilege—Attorney’s fee notes—Not privileged category of document per se—Privilege only extending to parts of fee notes disclosing content of privileged communications between attorney and client or from which such content may be inferred—Test to be applied whether, objectively, reference to legal advice disclosing content (and not only existence) of privileged material.
Evidence—Privilege—Legal professional privilege—Legal advice privilege—Attorney’s fee notes—Manner of asserting legal privilege—Incumbent on party claiming privilege to contextualise claim so as to facilitate determination of issue without court having to resort to private judicial inspection.

TM v NM AND OTHERS (SCA)
MTHIYANE DP, PETSE JA, SALDULKER JA, VAN ZYL JA and LEGODI AJA
2014 MARCH 20; APRIL 1
[2014] ZASCA 49

Customary law—Customary marriage—Validity—Proof—Certificate of registration providing prima facie proof of existence of customary marriage—In absence of countervailing evidence impugning authenticity, conclusive proof of such marriage.

VAN HEERDEN v NOLTE (GP)
MURPHY J
2014 JANUARY 28

Credit agreement—Consumer credit agreement—Credit provider—Whether obliged to register if not frequently providing credit—National Credit Act 34 of 2005, ss 40(1)(a) and (b).

ZULU AND OTHERS v ETHEKWINI MUNICIPALITY AND OTHERS (CC)
MOSENEKE ACJ, SKWEYIYA ADCJ, CAMERON J, DAMBUZA AJ, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MAJIEDT AJ, VAN DER WESTHUIZEN J and ZONDO J
2014 FEBRUARY 12; JUNE 6
[2014] ZACC 17

Land—Unlawful occupation—Eviction—Interim order aimed at preventing future land invasion or occupation—Existing occupiers having locus standi in such proceedings where parts of interim order could have effect of authorising their eviction.
Constitutional law—Duties of state—Assistance to and protection of courts—Court should be able to rely on submissions made by organ of state—Where inconsistent, state party failing their constitutional mandate—Constitution, ss 7(2) and 165(4).

FISCHER AND ANOTHER v RAMAHLELE AND OTHERS (SCA) 
MPATI P, THERON JA, WALLIS JA, HANCKE AJA and SWAIN AJA
2014 MAY 27; JUNE 4
[2014] ZASCA 88

Practice—Applications and motions—Dispute of fact—Referral for oral evidence—Whether court may raise point of law mero motu at oral-evidence hearing—Court may do so to suggest alternative approach or argument but it remains for parties to adopt it—Court may not require that issues so raised be argued instead of hearing oral evidence and deciding issues as formulated by parties.


ABSA BANK LTD v VAN RENSBURG AND ANOTHER (SCA)

MAYA JA, SHONGWE JA, LEACH JA, SALDULKER JA and MATHOPO AJA
2014 MARCH 10, 28
[2014] ZASCA 34

Appeal—Power of court of appeal—Power to dismiss appeal where judgment or order sought would have no practical effect or result—Appeal scrapped where (1) issue raised involved ambit of court rule and best disposed of by Rules Board; (2) court having heard argument from one side only; and (3) order not of appealable nature.

SOUTH AFRICAN CRIMINAL LAW REPORTS

TABLE OF CASES


  • National Director of Public Prosecutions and Others v Freedom Under Law 2014 (2) SACR 107 (SCA)
  • S v Peyani 2014 (2) SACR 127 (GP)
  • S v Mbathsha 2014 (2) SACR 143 (ECG)
  • Director of Public Prosecutions, Western Cape v Malan 2014 (2) SACR 146 (WCC)
  • S v Mthethandaba 2014 (2) SACR 154 (KZP)
  • Baasden v Minister of Safety and Security 2014 (2) SACR 163 (GP)
  • S v Nkunkuma and Others 2014 (2) SACR 168 (SCA)
  • S v Fortune 2014 (2) SACR 178 (WCC)
  • S v Smith 2014 (2) SACR 190 (FB)
  • S v Seleke 2014 (2) SACR 199 (NCK)
  • Mkhuba v Minister of Police and Another 2014 (2) SACR 205 (ECM)
  • S v Nkosi 2014 (2) SACR 212 (GP)

 

FLYNOTES

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS v FREEDOM UNDER LAW (SCA)
MTHIYANE DP, NAVSA JA, BRAND JA, PONNAN JA and MAYA JA
2014 APRIL 1, 14
[2014] ZASCA 58

Criminal procedure—Prosecution—Prosecuting authority—Decision to discontinue prosecution—Reviewable on principle of legality, not under Promotion of Administrative Justice Act 3 of 2000.

S v PEYANI (GP)
POTTERILL J and THOBANE AJ
2013 OCTOBER 21, 25

Evidence—Intermediary—Appointment of—Criminal Procedure Act 51 of 1977, s 170A(1)—Requirements for—Intermediary merely arriving at court and acting as such after consultation with witnesses—No report by intermediary as to necessity for intermediary—In case where witnesses were young children and accused was facing numerous charges of serious sexual offences, no irregularity as witnesses would clearly suffer undue stress.

S v MBATHSHA (ECG)
ROBERSON J
2013 OCTOBER 7

Plea—Plea of guilty—Unrepresented accused—Magistrate’s duty in respect of—Explanation of rights before plea—Rights explained by prosecutor and no indication on record of content of explanation—Irregularity vitiating whole trial—Conviction and sentence set aside.

DIRECTOR OF PUBLIC PROSECUTIONS, WESTERN CAPE v MALAN (WCC)
NDITA J and SCHIPPERS J
2013 SEPTEMBER 11; OCTOBER 24, 29

Appeal—Leave to appeal—Application for—In terms of s 311(1) of Criminal Procedure Act 51 of 1977—Time within which application to be made—Outer limit for lodging of application is 30 ordinary days and any time beyond would be unreasonable.
Fraud—What constitutes—Misrepresentation—Whether misrepresentation made to world at large could constitute criminal fraud—This legal question sufficient to constitute reasonable prospects of success for appellant on appeal.

S v MTHETHANDABA (KZP)
KOEN J and VAHED J
2014 JANUARY 21

Appeal—Leave to appeal—Application for—Petition to Supreme Court of Appeal—Application for leave to appeal against refusal by high court of petition for leave to appeal—Appeal against refusal of petition lies to Supreme Court of Appeal but only with special leave of that court.

BAASDEN v MINISTER OF SAFETY AND SECURITY (GP)
BAQWA J
2014 FEBRUARY 28

Arrest—Arrest on warrant—Copy of warrant—Proof of—Appearance of existence of warrant on other document or electronic data or system not constituting warrant—Existence of warrant not proven and arrest held to be wrongful.

S v NKUNKUMA AND OTHERS (SCA)
PONNAN JA, BOSIELO JA, THERON JA, WALLIS JA and PILLAY JA
2013 SEPTEMBER 19, 23
[2013] ZASCA 122

Sentence—Prescribed sentences—Minimum sentence—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—Assessment of proper sentence—Starting point is prescribed minimum sentence—Not to be departed from for flimsy reasons.
Robbery—Aggravating circumstances—Sentence—Minimum sentence in terms of s 51 of Criminal Law Amendment Act 105 of 1997—Sentence of effective three years’ imprisonment imposed on 19-year-old offender for participating in attack on two women and child in their home at night woefully inadequate—Starting point is prescribed minimum sentence—Sentence altered to effective 12 years’ imprisonment.

S v FORTUNE (WCC)
BINNS-WARD J and MANCA AJ
2013 NOVEMBER 22

Sentence—Prescribed sentences—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—‘Substantial and compelling circumstances’—Constitutionally compatible administration of minimum sentence legislation reliant on judicial nuance, which is undesirable—Legislation had to be applied in manner that avoids infringement of convicted person’s basic rights in terms of s 12 of Bill of Rights.
Robbery—Aggravating circumstances—Sentence—Minimum sentence in terms of s 51 of Criminal Law Amendment Act 105 of 1997—Appropriate for sentencing court to have regard to gradations in manifestations of offence—Accused with number of previous convictions threatening woman in broad daylight in city street with knife and grabbing handbag—Sentence of 15 years’ imprisonment disproportionate to offence and replaced with sentence of eight years’ imprisonment.

S v SMITH (FB)
MOLOI J and SNELLENBURG AJ
2013 JUNE 3, 27

Sentence—Habitual criminal—Declaration as in terms of s 286 of Criminal Procedure Act 51 of 1977—Accused not warned in advance of provisions of section—Magistrate also not exercising his discretion properly in failing to consider nature of offences and their commission—Declaration as habitual criminal set aside.

S v SELEKE (NCK)
LACOCK J and MAMOSEBO AJ
2013

Trial—Presiding officer—Unavailability of to continue with trial—Part-heard trial where evidence already adduced and accused convicted—Other magistrate not entitled to proceed with trial de novo—Sentence imposed by new magistrate—Court on review holding that no purpose would be served by remitting matter to original magistrate for finalisation of case, and sentence imposed by new magistrate eminently sensible sentence—Court regarding subsequent proceedings as proceedings in terms of s 275 of Criminal Procedure Act 51 of 1977.

MKHUBA v MINISTER OF POLICE AND ANOTHER (ECM)
BESHE J
2014 FEBRUARY 11, 13

Search and seizure—Seizure by police in terms of s 20 of Criminal Procedure Act 51 of 1977—Disposal of articles thereafter—Section 34 of Act applicable only in respect of items transferred to court by police for purposes of trial.
Arms and ammunition—Seizure of—Compensation for in respect of firearms and ammunition forfeited to state—Applicant seeking compensation, had valid licence to possess firearm when firearm seized, but licence had lapsed while firearm in custody of police—Sections 134 and 135 of Firearms Control Act 60 of 2000 not preventing payment of compensation.

S v NKOSI (GP)
KHUMALO J and TLHAPI J
2013 NOVEMBER 18

Sentence—Fine—Ability of accused to pay fine—Court deliberately imposing excessive fine so that accused would serve some imprisonment—Such amounting to injudicious exercise of court’s discretion and contrary to interests of justice—Sentence set aside and replaced with wholly suspended sentence.

Appeal—Power of court of appeal—Power to dismiss appeal where judgment or order sought would have no practical effect or result—Appeal scrapped where (1) issue raised involved ambit of court rule and best disposed of by Rules Board; (2) court having heard argument from one side only; and (3) order not of appealable nature.

THE NAMIBIAN LAW REPORTS 2014 (2)

TABLE OF CASES

 

  • Minister of Safety and Security v Kabotana 2014 (2) NR 305 (SC)
  • Nghikofa v Classic Engines CC 2014 (2) NR 314 (SC)
  • Black Range Mining (Pty) Ltd v Minister of Mines and Energy and Others NNO 2014 (2) NR 320 (SC)
  • Marot and Others v Cotterell 2014 (2) NR 340 (SC)
  • Lungameni and Others v Hagen and Another 2014 (2) NR 352 (LC)Puma Chemicals v Labour Commissioner and Another 2014 (2) NR 355 (LC)
  • S v Nangaku and Another 2014 (2) NR 369 (HC)
  • S v Ndakolo 2014 (2) NR 371 (NLD)
  • S v Lukas 2014 (2) NR 374 (HC)
  • Fish Orange Mining Consortium (Pty) Ltd v !Goaseb and Others 2014 (2) NR 385 (SC)
  • S v SS 2014 (2) NR 399 (HC)
  • S v Beyer 2014 (2) NR 414 (HC)
  • Van Straten NO and Others v Namibia Financial Institutions Supervisory Authority and Others 2014 (2) NR 425 (HC)
  • De Beers Marine Namibia (Pty) Ltd v Lange NO and Others 2014 (2) NR 437 (HC)
  • Factcrown Ltd v Namibia Broadcasting Corporation 2014 (2) NR 447 (SC)
  • Witvlei Meat (Pty) Ltd v Agricultural Bank of Namibia 2014 (2) NR 464 (SC)
  • Scania Finance Southern Africa (Pty) Ltd v Aggressive Transport CC and Another 2014 (2) NR 489 (HC)
  • Meyer v Felisberto 2014 (2) NR 498 (HC)
  • Kamwi v Namibia National Veterans Association 2014 (2) NR 504 (LC)
  • China Henan International Cooperation (Pty) Ltd v De Klerk and Another 2014 (2) NR 517 (HC)
  • Vermeulen and Another v Vermeulen and Others 2014 (2) NR 528 (SC)
  • New Era Investment (Pty) Ltd v Roads Authority and Others 2014 (2) NR 596 (HC)

FLYNOTES

MINISTER OF SAFETY AND SECURITY v KABOTANA (SC)
SHIVUTE CJ, MTAMBANENGWE AJA and O’REGAN AJA
2013 NOVEMBER 7; 2014 MARCH 26

Constitutional law—Fundamental rights—Rights of arrested and detained persons—Right to be brought before court within 48 hours after arrest—Whether ‘reasonably possible’ to bring person before court within 48 hours—Constitution of Namibia, art 11(3)—Delictual standard of negligence not to be used in making such determination—Such right important constitutional right to be guarded jealously—Test for determining what is reasonably possible to be judged in light of all prevailing circumstances of case—But convenience not such a factor—Article 11(3) finds its place in Constitution solely for benefit of arrested persons and not for benefit of state—Authorities to be diligent in attempts to comply with art 11(3).

NGHIKOFA v CLASSIC ENGINES CC (SC)
SHIVUTE CJ, MTAMBANENGWE AJA and O’ REGAN AJA
2013 NOVEMBER 8; 2014 MARCH 26

Labour law—Courts—High court—Jurisdiction—Claim for damages arising from contract of employment—Nothing in Labour Act 11 of 2007 excluding such claims from jurisdiction of high court—Act providing in s 86(2) that party may refer dispute to Labour Commissioner, but not compelled to do so.

BLACK RANGE MINING (PTY) LTD v MINISTER OF MINES AND ENERGY AND OTHERS NNO (SC) 
SHIVUTE CJ, STRYDOM AJA and O’REGAN AJA
2012 NOVEMBER 9; 2014 MARCH 26

Appeal—To Supreme Court—Prosecution of—Time limits—Miscalculation of by practitioners due to reliance on South African rules—Such deprecated—Legal practitioners advised that they should familiarise themselves with rules of Supreme Court to ensure that they do not mistakenly conflate those rules with rules in other jurisdictions.
Mines and minerals—Exclusive prospecting licence—Application for in terms of s 47 of Minerals (Prospecting and Mining) Act 33 of 1992—Notice in terms of s 122(1) of Act prohibiting indefinitely new applications for licences for prospecting or mining of nuclear fuel group minerals— Application for order compelling ministry to accept applications for EPLs—Appellant not seeking order for setting aside of notice in terms of s 122(1)—Collateral challenge to administrative act in issue not available to appellant as it was not right remedy in right proceedings—Section 122(1) notice not sought to be applied coercively by public authority or to provide foundation for coercive action against appellant.
Mines and minerals—Exclusive prospecting licence—Application for in terms of s 47 of Minerals (Prospecting and Mining) Act 33 of 1992—Notice in terms of s 122(1) of Act prohibiting indefinitely new applications for licences for prospecting or mining of nuclear fuel group minerals—Application for order compelling ministry to accept applications for EPLs—Refusal by ministry to accept application—Effect of notice in terms of s 122(1) was to preclude receipt of applications for licences in respect of mineral or group of minerals affected by prohibition as long as restriction was in place unless prohibition was accompanied by invitation to make applications for licences in respect of affected minerals—Appeal against refusal of application dismissed.
Mines and minerals—Exclusive prospecting licence—Application for in terms of s 47 of Minerals (Prospecting and Mining) Act 33 of 1992—Notice in terms of s 122(1) of Act prohibiting indefinitely new applications for licences for prospecting or mining of nuclear fuel group minerals—Application for order compelling ministry to accept applications for EPLs—Refusal by ministry to accept application—Notice not infringing appellant’s right in terms of s 21(1)(j) of Constitution ‘to practise any profession, or carry on any occupation, trade or business’—Such right not implying that persons may carry on trade or profession free of regulation—Mining par excellence a business requiring regulation to protect range of interests—Issue of notice in terms of s 122(1) not disregarding appellant’s right in terms of s 21(1)(j) of Constitution.

MAROT AND OTHERS v COTTERELL (SC)
SHIVUTE CJ, MARITZ JA and MAINGA JA
2013 JUNE 26; 2014 MARCH 26

Sale—Of member’s interest in close corporation—Legality—Close corporation owner of commercial agricultural land—Purchasers entitled to take possession of land on signature of agreement—Parties clearly intending to sell and buy 50% ownership of close corporation and for purchasers to occupy immovable property as soon as possible—As purchasers foreign nationals, agreement in conflict with s 58 of Agricultural (Commercial) Land Reform Act 6 of 1995 and thus illegal—Action for return of part of price paid failing—Clause in agreement that purchasers entitled to possession of property on signature of agreement a material term—Clause not severable from rest of agreement.

LUNGAMENI AND OTHERS v HAGEN AND ANOTHER (LC)
SMUTS J
2013 MARCH 27
[2013] NALCMD 15

Labour law—Labour court—Powers of—Power in terms of rule 15 of Rules of Labour Court to condone non-compliance with Rules of Labour Court—Such power conferred only in respect of non-compliance with rules of court and not in respect of non-compliance with peremptory provisions of Labour Act 11 of 2007.
Labour law—Labour court—Powers of—Power to condone non-compliance with s 89(4) of Labour Act 11 of 2007 in respect of time periods for bringing applications for review of arbitration proceedings—No power to condone such non-compliance contained in Act—Court accordingly having no power to condone such non-compliance—Rule of court cannot confer such power on Labour Court in respect of peremptory provision of s 89(4) of Act.

PUMA CHEMICALS v LABOUR COMMISSIONER AND ANOTHER (LC)
GEIER J
2014 FEBRUARY 7, 10
[2014] NALCMD 09

Labour law—Labour Court—Powers of—Power in terms of rule 15 of Rules of Labour Court to condone non-compliance with Rules of Labour Court—Such power conferred only in respect of non-compliance with rules of court and not in respect of non-compliance with peremptory provisions of Labour Act 11 of 2007—Earlier decision of Labour Court to this effect approved.
Labour law—Labour Court—Powers of—Power to condone non-compliance with s 89(4) of Labour Act 11 of 2007 in respect of time periods for bringing applications for review of arbitration proceedings—No power to condone such non-compliance contained in Act—Deliberate intention of legislature to limit by statute period within which labour reviews to be brought—Provisions of s 89(4) peremptory, court accordingly having no power to condone such non-compliance.
Labour law—Labour Court—Powers of—Power to condone non-compliance with s 89(4) of Labour Act 11 of 2007 in respect of time periods for bringing applications for review of arbitration proceedings—Labour Court having no power to condone such non-compliance—Semble: May well be need for parliament to include in s 89(3) of Act provision clothing Labour Court with jurisdiction and power to entertain reviews outside time periods set in s 89(4), in deserving cases, in order to avoid hardship and injustice.

S v NANGAKU AND ANOTHER (HC)
PARKER AJ and UNENGU AJ
2013 DECEMBER 3
[2013] NAHCMD 368

Criminal law—Possession of housebreaking implements—Contravention of s 9 of Police Offences Proclamation 27 of 1920—Sentence—Sentence of community service imposed in addition to suspended sentence of fine with alternative of imprisonment imposed in terms of Proclamation read with s 297(1)(a) and (b) of Criminal Procedure Act 51 of 1977—Such additional sentence not in accordance with Proclamation and accordingly ultra vires.

S v NDAKOLO (NLD)
CHEDA J and MILLER AJ
2013 DECEMBER 5
[2013] NAHCNLD 57

Criminal procedure—Sentence—Minimum sentences—Combating of Rape Act 8 of 2000—‘Substantial’ and ‘compelling’ circumstances—None found where 19-year-old perpetrator raped 9-year-old boy—Retributive and deterrent aspects of sentence to be afforded more weight than the personal circumstances of the accused—17 years’ imprisonment confirmed on appeal.

S v LUKAS (HC)
SHIVUTE J
2013 JULY 16–31; NOVEMBER 1
[2013] NAHCMD 313

Criminal law—Persons, liability of—Self-defence—Requirements for—Reiterated that attack must be unlawful; attack must be directed at interest legally deserving of protection; and attack must be imminent but not yet completed.
Criminal law—Murder—Mens rea—Intention—Type of intention—Determination of—Court to consider cumulative conduct of accused, nature of weapon used, position on body where injuries inflicted and number of times injuries inflicted.

FISH ORANGE MINING CONSORTIUM (PTY) LTD v !GOASEB AND OTHERS (SC) 
SHIVUTE CJ, MARITZ JA and MAINGA JA
2013 JUNE 28; 2014 MARCH 28

Estoppel—Res judicata—Requirements for—Judgment or order not having effect of settling or disposing of dispute between parties with finality cannot found exceptio rei judicatae—In order to determine whether judgment and order does so, it must be carefully construed—Parties to two suits the same and factual background to sustain relief sought in both suits the same, but could not be said that same thing claimed in two suits nor was reliance placed on same cause of action—Mere fact that common elements present in allegations made in both suits not justifying exceptio rei judicatae—If it appears that differences between first and second suits so wide and obvious that it could not be said that same thing claimed in both suits or were brought on same cause of action, exceptio rei judicatae should not be upheld.

S v SS (HC)
DAMASEB JP and SHIVUTE J
2013 NOVEMBER 15; 2014 JANUARY 31

Criminal procedure—Accused—Unrepresented—Duty of court—Decision not to enlist services of lawyer not to be used as some kind of punishment—Insufficient to merely give formulaic explanations of procedural rights—Assistance to be of substance and meaningful—Trier of fact to be vigilant throughout trial—Duty of presiding officer to direct accused’s attention to any evidence pointing to his innocence or throwing doubt on state’s case.
Criminal procedure—Evidence—Documents—Medical report in form of J88 form—Doctor other than doctor who compiled form testifying and explaining contents of form—That an accepted practice but improper for doctor to give explanation about word which suggested that disputed fact had been finding of absent doctor.

S v BEYER (HC)
GEIER J
2013 DECEMBER 2, 3; 2014 JANUARY 31

Criminal procedure—Bail—Pending appeal—When to be granted—More lenient approach to be adopted in line with fundamental right to liberty—As long as appeal not doomed to failure courts should grant bail to avoid prejudice to appellant.

VAN STRATEN NO AND OTHERS v NAMIBIA FINANCIAL INSTITUTIONS SUPERVISORY AUTHORITY AND OTHERS (HC)
CHEDA J
2013 OCTOBER 8; 2014 JANUARY 31

Practice—Exception—Claim against Namibia Financial Institution Supervisory Authority alleging dereliction of duty by registrar of stock exchanges—Failure to cite registrar as party to claim—Registrar a distinct statutory entity in terms of s 4(1)(f) of the Stock Exchanges Control Act 1 of 1985—Claim excipiable.

DE BEERS MARINE NAMIBIA (PTY) LTD v LANGE NO AND OTHERS (HC)
GEIER J
2013 OCTOBER 18

Practice—Judicial case management—Compliance of parties and legal practitioners with rule 37 of High Court Rules—Effect of pre-trial orders—Such orders are of binding nature and courts will not readily or lightly vary their own simple interlocutory orders.

FACTCROWN LTD v NAMIBIA BROADCASTING CORPORATION (SC)
MAINGA JA, STRYDOM AJA and CHOMBA AJA
2013 OCTOBER 24; 2014 MARCH 17

Principal and agent—Authority of agent—Ostensible authority—Such authority not open-ended—Limited to what would fall within ordinary powers of that particular agent in that particular business—Ostensible authority may be wider than actual authority—When agent’s authority limited, such limitation falls within internal arrangements of principal—People doing business with agent who are unaware of limitation not bound thereby—Where events leading to conclusion of agreement so patently irregular that it cannot be said to fall within ordinary powers of agent, cannot be found that agent had implied or ostensible authority to bind principal to agreement.
Practice—Trial—Absolution from the instance at close of plaintiff’s case—To survive absolution from instance, plaintiff to make out prima facie case, ie present evidence relating to all elements of claim—Without such evidence no court could find for plaintiff.

WITVLEI MEAT (PTY) LTD v AGRICULTURAL BANK OF NAMIBIA (SC)
MAINGA JA, STRYDOM AJA and CHOMBA AJA
2013 OCTOBER 28; 2014 MAY 27

Lease—Renewal of—Whether collateral issues carried forward into new lease—Where renewal governed by an express contract between the parties would depend on interpretation of renewal contract and in this regard it was relevant whether what was renewed was only lease simpliciter or whether intention was to renew document containing lease which would then include all terms contained in such document, also collateral issues such as option to purchase—Terms of agreement as well as conduct of parties indicating that option to purchase carried forward.
Land—Agricultural land—Agricultural Land Bank—Powers of—Power to alienate or encumber land—Ministerial approval not required by bank—Agricultural Bank of Namibia Act 5 of 2003, s 6(1)(b).
Land—Agricultural land—Agricultural Land Bank—Sale of land by—Offer of land by bank indicating terms of loan that bank would offer—Acceptance of offer by purchaser without simultaneous acceptance of terms of loan constituting valid offer and acceptance as purchaser entitled to seek alternative sources of funding.

SCANIA FINANCE SOUTHERN AFRICA (PTY) LTD v AGGRESSIVE TRANSPORT CC AND ANOTHER (HC)
SMUTS J
2014 JANUARY 17, 22
[2014] NAHCMD 19

Practice—Pleadings—Amendment—Amendment of plea in order to introduce new defence sought at late stage of trial—Case the subject of judicial case management—Parties having agreed upon issues of fact and law to be resolved during trial and such agreement made order of court—Agreement binding on parties and parties cannot resile from it unless upon good cause shown—High Court Rules, rule 37(14)—Explanation for such amendment must be compelling and persuasive.

MEYER v FELISBERTO (HC)
MILLER AJ
2014 FEBRUARY 10–13; MARCH 14
[2014] NAHCMD 85

Delict—Malicious prosecution—Requirements—Not sufficient to attract liability that defendant did no more than place facts or information before police as result of which proceedings are instituted—Defendant must have gone further and actively assist and identify himself with prosecution.
Delict—Malicious prosecution—Damages—Measure of—General damages for contumelia, deprivation of freedom and discomfort—Plaintiff, 58 years old, never before arrested, arrested and spending one day in custody in unhygienic conditions in crowded cell—Plaintiff humiliated and suffering depression—Awarded N$25 000 damages.

KAMWI v NAMIBIA NATIONAL VETERANS ASSOCIATION (LC)
SMUTS J
2013 NOVEMBER 1; DECEMBER 20
[2013] NALCMD 46

Labour law—Arbitration—Appeal from award in terms of s 84 of Labour Act 11 of 2007—Section 89(1) confining appeals from such awards to questions of law alone—Issue whether person has on facts established whether he or she is an employee or not, not amounting to question of law alone as intended in s 89(1)(a), but would ordinarily entail question of fact.
Labour law—Arbitration—Applicant for arbitration needing to establish employment relationship where such disputed—Section 128A of Labour Act 11 of 2007 aiding applicant in establishing employment relationship—Section not confined to cases involving labour hire, but is of general application—Once applicant shows that he or she works for or renders services to respondent and can show presence of one or more factors listed in s 128A(a)–(h), presumption contained in section comes into effect—Onus then shifting to respondent to show that applicant not an employee.

CHINA HENAN INTERNATIONAL COOPERATION (PTY) LTD v DE KLERK AND ANOTHER (HC)
GEIER J
2013 OCTOBER 30; NOVEMBER 26
[2013] NAHCMD 356

Practice—Pleadings—Required averments—Action based on contract—Pleadings silent on where and by whom the oral contract had been agreed upon—Non-compliance with rule 18(6) of the Rules of High Court in these respects not fatal to summons.

VERMEULEN AND ANOTHER v VERMEULEN AND OTHERS (SC)
SHIVUTE CJ, MAINGA JA and MTAMBANENGWE AJA
2013 JUNE 5; 2014 MARCH 3

Will—Validity—Testamentary capacity—In proceedings for determination of testamentary capacity, court to assess evidence as a whole, ie from facts disclosed by entire body of evidence—Facts to be taken into account including manner in which instructions given, content of instructions, setting in which instructions given and outcome of enquiries made by attorney acting in matter—Where matter to be decided without scientific evidence, court to take what evidence put before it, and decide issue on probabilities—Where evidence reveals great change of testamentary disposition, by departure from previous testamentary intentions, that requiring explanation.
Will—Validity—Testamentary capacity—In proceedings for determination of testamentary capacity—Standard of proof—Court to be satisfied affirmatively that testator/testatrix had capacity to make valid will—Standard of proof same as in all civil cases, ie upon balance of probabilities—But court to exercise caution appropriate to issue by vigilant examination of whole of relevant evidence—If such process results in court being satisfied that necessary testamentary capacity present, then order that will valid should be made—Such approach not applying higher standard of proof—On proper approach choice or preference of one version above the other ought to be preceded by evaluation and assessment of credibility of witnesses, their reliability and probabilities.
Will—Validity—Testamentary capacity—In proceedings for determination of testamentary capacity—Tests for—Various tests drawn from reported cases set out and held to be applicable in determining testamentary capacity in terms of s 4 of Wills Act 7 of 1953.

NEW ERA INVESTMENT (PTY) LTD v ROADS AUTHORITY AND OTHERS (HC) 
PARKER AJ
2014 JANUARY 31; FEBRUARY 20

Practice—Applications and motions—Urgency—Requirements for—Application by unsuccessful tenderer contesting award of tender—Harm that aggrieved party could suffer if review application were to be heard in ordinary course sufficient to constitute urgency—Rule 6(12)(b) of Rules of High Court.
Review—Tender—Application to review decision of Tender Board—In what cases—Requirements of audi alteram partem rule—Fairness in shape of audi principle a variable concept—Unsuccessful tenderer not entitled to be afforded opportunity of commenting on application of factors to be applied by Tender Board or on adverse comments received by board on previous construction work undertaken by applicant.

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