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July 2014


Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases of interest in the July reports.

The Index and Annotations to the Namibian Law Reports 1990-2013 is now available. The subject index has been revised to reflect current trends in the law, with detailed cross-referencing, to enable speedy and thorough location of cases on topic.

For more information, please click on the link below.

The Index and Annotations to the Namibian Law Reports 1990-2013

 

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

SOUTH AFRICAN LAW REPORTS

A child's right to school books

The Constitutional right to basic education was infringed when all textbooks were not delivered in time to schools, before the commencement of the academic year. Basic Education for All and Others v Minister of Basic Education and Others 2014 (4) SA 274 (GP)

To prosecute or not to prosecute?

The Supreme Court of Appeal upheld the high court’s setting-aside of the impugned decisions not to continue with Lieutenant-General Mdluli’s prosecution, only insofar as setting it aside was justified on the grounds of legality and rationality, and not also—as the high court had found—on the basis that such decisions were subject to review under the Promotion of Administrative Justice Act. National Director of Public Prosecutions and Others v Freedom Under Law 2014 (4) SA 298 (SCA)

A deponent's knowledge of the facts

It is required that a deponent in a verifying affidavit be able to swear positively to the facts. A deponent for a corporation need not have first-hand knowledge of every fact comprising the corporation’s cause of action, and may rely for knowledge on documents in the corporation’s possession. Rees and Another v Investec Bank Ltd 2014 (4) SA 220 (SCA)

SOUTH AFRICAN CRIMINAL LAW REPORTS

The validity of the Sexual Offences Register

The compulsory registration of a child sex offender in all circumstances was an infringement of the best-interests principle. There were less restrictive means to achieve the aims of the Register, and courts should be afforded a discretion and the child offender the concomitant opportunity to lead evidence. J v National Director of Public Prosecutions and Others 2014 (2) SACR 1 (CC)

Splitting of charges

The proper test is to take a common-sense view of the matters, in light of fairness to accused, to establish whether a single offence or more than one has been committed. In view of the possible overlap between different offences under the Sexual Offences Act, prosecutors must, when faced with a single incident, formulate the most appropriate charge, bearing in mind the need to avoid duplication. Charges are to be formulated with clarity and, where reliance is placed on statutory provisions, the appropriate provisions must be identified. S v BM 2014 (2) SACR 23 (SCA)

Accused's evidence in mitigation

The accused’s evidence under oath in mitigation went unchallenged, however, it appeared from the magistrate’s reasons for sentencing that he disbelieved the accused. The magistrate was obliged to put these misgivings to the accused, at the time, so that the accused had a chance to address the doubts. The sentencing proceedings had been unfair. S v Madibane 2014 (2) SACR 88 (GP)

 

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SOUTH AFRICAN LAW REPORTS

TABLE OF CASES

  • Erasmus NO v Estate Late Booysen 2014 (4) SA 1 (SCA)

  • Johannesburg, City of v Chairman, Valuation Appeal Board and Another 2014 (4) SA 10 (SCA)

  • Ellerine Brothers (Pty) Ltd v McCarthy Ltd 2014 (4) SA 22 (SCA)

  • Strydom NO and Others v Bakkes and Others 2014 (4) SA 29 (GP)

  • Missouri Trading CC and Another v Absa Bank Ltd and Others 2014 (4) SA 55 (KZD)

  • De Jong and Others v Trustees, Simcha Trust, and Another 2014 (4) SA 73 (WCC)

  • Fines4U CC and Another v Johannesburg Metropolitan Police Department and Others 2014 (4) SA 89 (GJ)

  • Mdodana v Premier, Eastern Cape and Others 2014 (4) SA 99 (CC)

  • Pithey v Road Accident Fund 2014 (4) SA 112 (SCA)

  • Botha and Another v Rich NO and Others 2014 (4) SA 124 (CC)

  • Joubert Galpin Searle Inc and Others v Road Accident Fund and Others 2014 (4) SA 148 (ECP)

  • Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer, South African Social Security Agency and Others 2014 (4) SA 179 (CC)

  • RD v TD 2014 (4) SA 200 (GP)

  • Chemical Industries National Provident Fund v Sasol Ltd and Others 2014 (4) SA 205 (GJ)

  • Rees and Another v Investec Bank Ltd 2014 (4) SA 220 (SCA)

  • Graham and Another v Law Society, Northern Provinces and Others (Road Accident Fund Intervening) 2014 (4) SA 229 (GP)

  • Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd 2014 (4) SA 253 (SCA)

  • Basic Education for All and Another v Minister of Basic Education and Others 2014 (4) SA 274 (GP)

  • National Director of Public Prosecutions and Others v Freedom Under Law 2014 (4) SA 298 (SCA)

FLYNOTES

ERASMUS NO v ESTATE LATE BOOYSEN (SCA)

MTHIYANE DP, PETSE JA, WILLIS JA, SALDULKER JA and LEGODI AJA

2014 MARCH 17, 28

Will—Fideicommissum—Multiplex—Fiduciary, first and second fideicommissaries—First fideicommissary dying before fiduciary—Property passing to second fideicommissary.

CITY OF JOHANNESBURG v CHAIRMAN, VALUATION APPEAL BOARD AND ANOTHER (SCA)

MTHIYANE DP, MAYA JA, LEACH JA, WILLIS JA and MOCUMIE AJA

2014 FEBRUARY 18; MARCH 12

Local authority—Rates—Imposition—Properties used for multiple purposes—Valuation of—Local Government: Municipal Property Rates Act 6 of 2004, s 9(2).

ELLERINE BROTHERS (PTY) LTD v McCARTHY LTD (SCA)

NAVSA JA, MHLANTLA JA, LEACH JA, PETSE JA and VAN ZYL AJA

2014 MARCH 19; APRIL 1

Insolvency—Effect—On uncompleted contracts—Lease—Impact of concursus creditorum on right to cancel lease.

STRYDOM NO AND OTHERS v BAKKES AND OTHERS (GP)

MURPHY J

2014 MARCH 18–27

Banking—Unlawful conduct of business of bank—Acceptance of deposits from general public by special-purpose institution which is not a bank—Commercial paper (promissory notes) issued against acceptance of money from general public—Issue contravening regulations applicable to commercial paper—Constituting unlawful conduct of business of bank—Banks Act 94 of 1990, s 11.

MISSOURI TRADING CC AND ANOTHER v ABSA BANK LTD AND OTHERS (KZD)

KOEN J

2014 JANUARY 31; MARCH 20

Close corporation—Deregistration—Reinstatement of registration—Prospective only—Close Corporations Act 69 of 1984, s 26; Companies Act 71 of 2008, s 82(4).

DE JONG AND OTHERS v TRUSTEES, SIMCHA TRUST, AND ANOTHER (WCC)

ROGERS J

2013 NOVEMBER 11, 22

Administrative law—Administrative action—Review—Remedies—Setting aside—Court may set aside decision and remit it, or substitute it, or order compensation—Remittal, substitution and compensation mutually exclusive—Promotion of Administrative Justice Act 3 of 2000, s 8(1)(c).

FINES4U CC AND ANOTHER v JOHANNESBURG METROPOLITAN POLICE DEPARTMENT AND OTHERS (GJ)

ANDRÉ GAUTSCHI AJ

2014 JANUARY 29; FEBRUARY 25

Road—Traffic offences—Infringers—Corporations—May elect through proxy to be tried in court—Administrative Adjudication of Road Traffic Offences Act 46 of 1998, s 17(1)(f)(iv).

Road—Traffic offences—Infringers—May not elect both to be tried in court and to make representations—Administrative Adjudication of Road Traffic Offences Act 46 of 1998, s 17(1)(f)(iv).

Road—Traffic offences—Representations—Issuing authority not obliged to reply to infringer’s representations—Administrative Adjudication of Road Traffic Offences Act 46 of 1998, ss 18(4)(b) and 5(a).

Road—Traffic offences—Representations officer—May not be employee of issuing authority—Administrative Adjudication of Road Traffic Offences Act 46 of 1998, s 10(2).

MDODANA v PREMIER, EASTERN CAPE 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 NOVEMBER 13; 2014 MARCH 25

Constitutional law—Legislation—Validity—Declaration of constitutional invalidity—Ordinance—Whether ordinance was provincial Act whose invalidity required confirmation—Ordinance not provincial Act, in that it lacked province-wide effect and provincial legislature had never expressed itself on it—Confirmation not required—Pounds Ordinance 18 of 1938 (Eastern Cape); Constitution, ss 167(5) and 172(2)(a).

PITHEY v ROAD ACCIDENT FUND (SCA)

NAVSA JA, THERON JA, PETSE JA, SWAIN AJA and LEGODI AJA

2014 MARCH 13; APRIL 16

Motor vehicle accident—Compensation—Claim against Road Accident Fund—Sufficiency of information furnished in claim form—Information provided in claim form as read with supporting documentation inconsistent regarding nature of claim advanced—Crucial to properly identify claim but contradictory information not invalidating claim as long as category of claim still capable of determination—Road Accident Fund Act 56 of 1996, ss 17(1)(a) and (b).

BOTHA AND ANOTHER v RICH NO 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 NOVEMBER 20; 2014 APRIL 17

Land—Sale—Contract—Instalment sale agreement—Statutory right of purchaser to demand transfer upon payment of 50% of purchase price against registration of bond in seller’s favour to secure balance and interest—Purchaser in arrears with instalments—May claim transfer against payment of arrears—Alienation of Land Act 68 of 1981, s 27(1) and (3).

Contract—Breach—Remedies—Cancellation—Cancellation clause—Enforceability—Clause providing for forfeiture of sums paid under instalment of sale of land—Penalty disproportionate, contrary to public policy and unconstitutional.

Contract—Reciprocity of obligations—Principle of reciprocity to be relaxed where interests of justice and fairness demand it.

JOUBERT GALPIN SEARLE INC AND OTHERS v ROAD ACCIDENT FUND AND OTHERS (ECP)

PLASKET J

2014 FEBRUARY 5–7; MARCH 25

Government procurement—Procurement process—Irregularities—Award after expiry of tender validity period—Whether tender may be revived by extending bid validity period after expiry of original period—Tender process rendered completed by expiry—No ‘extension of bid validity’ permissible outside of applicable treasury regulations.

ALLPAY CONSOLIDATED INVESTMENT HOLDINGS (PTY) LTD AND OTHERS v CHIEF EXECUTIVE OFFICER, SOUTH AFRICAN SOCIAL SECURITY AGENCY AND OTHERS (CC)

MOSENEKE ACJ, CAMERON J, DAMBUZA AJ, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MAJIEDT AJ, VAN DER WESTHUIZEN J and ZONDO J

2014 FEBRUARY 11; APRIL 17

Government procurement—Procurement process—Irregularities—Where invalidating award—Appropriate remedy—Just and equitable order—Proper approach to determining just and equitable remedy in government procurement context—Constitution, s 172(1)(b).

RD v TD (GP)

DE KLERK AJ

2014 MARCH 5

Partnership—Universal partnership—Marriage out of community of property—Postnuptial partnership agreement relating to particular commercial enterprise—Whether antenuptial contract (excluding community of profit and loss) precluding conclusion of such agreement—Antenuptial contract not excluding liberty of partners to enter into joint undertaking for joint profit as bona fide business partners.

CHEMICAL INDUSTRIES NATIONAL PROVIDENT FUND v SASOL LTD AND OTHERS (GJ)

MAYAT J

2014 MARCH 10; APRIL 4

Pension—Pension fund—Member—Cessation of membership in one pension fund and commencement of membership in another—Process relating to transfer of affected member independent of process relating to transfer of member’s assets and liabilities.

REES AND ANOTHER v INVESTEC BANK LTD (SCA)

MTHIYANE DP, LEWIS JA, PONNAN JA, MAYA JA and SALDULKER JA

2014 FEBRUARY 20; MARCH 28

Practice—Judgments and orders—Summary judgment—Verifying affidavit—Requirement that deponent able to swear positively to facts—Deponent for corporation need not have first-hand knowledge of every fact comprising corporation’s cause of action—May rely for knowledge on documents in corporation’s possession—Uniform Rules of Court, rule 32(2).

GRAHAM AND ANOTHER v LAW SOCIETY, NORTHERN PROVINCES AND OTHERS (ROAD ACCIDENT FUND INTERVENING) (GP)

MOTHLE J

2014 JANUARY 27–28; APRIL 15

Attorney—Law Society—Disciplinary enquiry—Investigation of complaint—Client applying to compel compliance with procedure, alternatively for supervision or takeover of investigation by court—No evidence of laxity or bias in Law Society’s conduct of enquiry—Application premature.

PAULSEN AND ANOTHER v SLIP KNOT INVESTMENTS 777 (PTY) LTD (SCA)

MPATI P, SHONGWE JA, WALLIS JA, WILLIS JA and MATHOPO AJA

2014 MARCH 4, 25

Credit agreement—Consumer credit agreement—Credit agreement to which NCA not applicable—Credit agreement not invalidated because credit provider not registered in terms of Act—National Credit Act 34 of 2005, ss 40(1) and 89(2)(d).

Interest—In duplum rule—Interest to stop running when equal to unpaid capital—Conclusion of loan agreement for short-term bridging finance—Application of rule where surety and not principal debtor sued for repayment.

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

TUCHTEN J

2014 MAY 5 CASE No 23949/14

Education—Right to education—Duties of state—Provision of textbooks—Failure to ensure timeous delivery of all textbooks to all schools before commencement of academic year—Constituting violation of right to basic education—Supervisory relief inappropriate, however, in circumstances—Constitution, s 29.

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

Administrative law—Administrative action—What constitutes—Decision to discontinue prosecution or not to prosecute—Not constituting administrative action—Exclusion of decision to institute or continue prosecution from administrative action as defined in PAJA applying also to decision to discontinue prosecution or not to prosecute—Promotion of Administrative Justice Act 3 of 2000, s 1(ff).

Constitutional law—Separation of powers—Power of courts to review prosecutorial decisions—Appropriate order where decision set aside—Only on rare occasions and for compelling reasons competent for court to issue mandatory interdicts to compel prosecution and disciplinary charges.

Review—Grounds—Legality—Decision to discontinue prosecution or not to prosecute—Reviewable on principle of legality, not under Promotion of Administrative Justice Act 3 of 2000.

SOUTH AFRICAN CRIMINAL LAW REPORTS

TABLE OF CASES

  • J v National Director of Public Prosecutions and Others 2014 (2) SACR 1 (CC)

  • S v BM 2014 (2) SACR 23 (SCA)

  • S v Mathuse 2014 (2) SACR 38 (GJ)

  • S v Mabena 2014 (2) SACR 43 (GP)

  • S v Khohliso 2014 (2) SACR 49 (ECM)

  • Goldberg v Director of Public Prosecutions, Western Cape 2014 (2) SACR 57 (WCC)

  • S v Madibane 2014 (2) SACR 88 (GP)

  • S v AU and Others 2014 (2) SACR 91 (GP)

  • S v Oliphant 2014 (2) SACR 98 (NCK)

FLYNOTES

J v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS 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

2013 FEBRUARY 6; MAY 6

Sexual offences—Sexual offences register established in terms of s 42 of Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007—Validity of—Compulsory registration of child sex offender in all circumstances infringement of best-interests principle—There were less restrictive means to achieve aims of Register—Affording courts discretion and concomitant opportunity to child offender to lead evidence and make argument on question of registration would permit greater congruence between limitation and its purpose—Section 50(2)(a) constitutionally invalid, but legislature had to be given time to correct constitutional defect.

S v BM (SCA)

MAYA JA, TSHIQI JA, MAJIEDT JA, WALLIS JA and PILLAY JA

2013 NOVEMBER 12, 25

Indictment and charge—Splitting of charges—Duplication of convictions—Proper test for is to take common sense view of matters in light of fairness to accused, to establish whether single offence or more than one has been committed—In view of possible overlap between different offences under Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, prosecutors must, when faced with single incident, formulate most appropriate charge, bearing in mind need to avoid duplication, and competent verdicts and possibility of adding alternative counts—Charges to be formulated with clarity and, where reliance placed on statutory provisions, appropriate provisions must be identified.

Trial—Cross-examination—Of accused by state—Putting of speculative questions to accused, such as demanding to know why other witness would have lied—Questions directed at eliciting this type of evidence impermissible and must be disallowed.

S v MATHUSE (GJ)

MASHILE J and THOBANE AJ

2013 OCTOBER 17; NOVEMBER 4

Rape—Sentence—Life imprisonment—Minimum sentence in terms of Criminal Law Amendment Act 105 of 1997—‘Substantial and compelling circumstances’—Accused 33-year-old first offender who, despite low level of education, provided for his family, even with high level of unemployment—Although vicious rape, accused’s personal circumstances constituting substantial and compelling circumstances—Life imprisonment disproportionate to offence.

S v MABENA (GP)

MAKGOBA J and THULARE AJ

2013 MARCH 4

Appeal—Record—Record lost, destroyed or incomplete—Reconstruction of—Duty to reconstruct—Trial magistrate proper person to ensure that record reconstructed, as he/she was only person who could certify that record was reconstruction of proceedings.

S v KHOHLISO (ECM)

MJALI J and GRIFFITHS J

2013 DECEMBER 12

Environmental offences—Protected wild animal—Possession of carcass of—Contravention of s 13(c) of Environmental Conservation Decree 9 of 1992 (Transkei)—Provision creating inequality between persons of former Transkei and those in rest of Eastern Cape, resulting in unfair discrimination prohibited by ss 9 and 10 of Constitution.

Environmental offences—Protected wild animal—Possession of carcass of—Contravention of s 13(c) of Environmental Conservation Decree 9 of 1992 (Transkei)—Provision providing for strict liability infringing accused’s right to fair trial and right to be presumed innocent in s 35(3)(h) of Constitution.

GOLDBERG v DIRECTOR OF PUBLIC PROSECUTIONS, WESTERN CAPE (WCC)

GOLIATH J, LE GRANGE J and ROGERS J

2013 NOVEMBER 28–29; DECEMBER 17

Search and seizure—Validity of—Goods seized on open display for public in shop—Law enforcement officials only forming view that offence committed when manager could not produce documentation to show that goods were lawfully possessed—Seizure at that stage permitted by s 23(1) of Criminal Procedure Act 51 of 1977.

Environmental offences—Ivory—Possession of—In contravention of s 42(1)(b) and s 46(c) of Nature and Environmental Conservation Ordinance 19 of 1974 (Cape)—Manufactured item made from tusk or part of tusk of elephant constituting ‘carcase’ as intended by definition thereof in Ordinance.

Environmental offences—Ivory—Possession of—In contravention of s 42(1)(b) and s 46(c) of Nature and Environmental Conservation Ordinance 19 of 1974 (Cape)—Form of possession required for contravention was possession for one’s own benefit—Possession of ivory not absolutely prohibited, only unlawful if person who possessed it was not in possession of statement of origin.

Environmental offences—Ivory—Possession of—In contravention of s 42(1)(b) and s 46(c) of Nature and Environmental Conservation Ordinance 19 of 1974 (Cape)—Form of mens rea required for commission of offence—Sufficient if perpetrator negligently contravened provision.

S v MADIBANE (GP)

BERTELSMANN J and DE VOS J

2013 NOVEMBER 20

Sentence—Imposition of—Evidence in mitigation—By accused—Weight to be accorded to evidence—If presiding officer disbelieves accused’s assertions under oath, obliged to express such doubts to accused.

S v AU AND OTHERS (GP)

MABUSE J, MAKGOBA J and MNGQIBISA-THUSI J

2013 MAY 22–23

Murder—Sentence—Life imprisonment—When to be imposed—No substantial and compelling circumstances found to exist—Murder by domestic servant of her employer, elderly and defenseless woman, whose home she, together with two other accused, had broken into—Murder not planned or premeditated—Accused first offender—Sentence of life imprisonment not in terms of law and should not have been imposed—Replaced with sentences of 18 and 20 years’ imprisonment, respectively.

S v OLIPHANT (NCK)

PHATSOANE J and MAMOSEBO AJ

2013 DECEMBER

Plea—Plea of guilty—Alteration of to one of not guilty in terms of s 113 of Criminal Procedure Act 51 of 1977—On review—Accused committed to regional court in terms of s 114(1)(b) for sentencing as result of his previous convictions—Record lost and after reconstruction accused declined to confirm plea of guilty—Alteration of plea to one of not guilty grossly irregular and set aside on review.

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