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JUDGMENTS OF INTEREST IN THE AUGUST 2018 EDITIONS OF THE SALR AND SACR AS WELL AS THE NAMIBIAN LAW REPORTS 2018 (2).
SOUTH AFRICAN LAW REPORTS
Mining Charter: once empowered, always empowered?
This case considers whether the Mining Charter’s empowerment targets for ownership by historically disadvantaged persons, impose an obligation on mining right holders to restore and continuously maintain targets where beneficiaries dispose of ownership, or whether ‘once empowered’, they were ‘always empowered’. Chamber of Mines v Minister of Mineral Resources and Another 2018 (4) SA 581 (GP)
Duty of courts towards lay-litigants when ordering bonded immovable property executable
Courts, when declaring bonded immovable property executable, must inform lay-litigant debtors that, should they pay arrears before sale in execution, the original agreement would be reinstated. Duma v Absa Bank Ltd 2018 (4) SA 463 (GP)
Articles: preconditions for attendance at practical training course
Strict compliance with s 15(1)(b)(ivA) of the Attorneys Act 53 of 1979, which insists on prior registration or service of articles, is not required; attendance at a practical training course may therefore take place before registration of articles. Ex parte Mdyesha 2018 (4) SA 468 (GP)
SOUTH AFRICAN CRIMINAL LAW REPORTS
Duties of police towards persons in their custody after arrest
Senior police officers recommended bail for the plaintiff after his arrest for drunken driving, but this recommendation was not given effect to when he was transferred to a different police station. There, the plaintiff was instead detained for the weekend in cells together with violent-crime detainees, and was sodomised. In his claim for damages, the court considers whether the failure of the police to have separated him from violent-crime detainees constituted a dereliction of their duties towards persons in their custody after arrest. EF v Minister of Safety and Security 2018 (2) SACR 123 (SCA)
Crimes against minors: adequacy of proof of complainant’s age in guilty plea
The court considers whether, in a written statement in terms of s 112(2) of Criminal Procedure Act 51 of 1977, an admission of the complainant’s age—where it is an essential element of charge—constitutes sufficient proof of the complainant’s age, absolving the state of the duty of proving the child’s age. Director of Public Prosecutions, Gauteng Division, Pretoria v Hamisi 2018 (2) SACR 230 (SCA)
Bail pending appeal: reasonable prospects on appeal alone not enough
While the regional magistrate who heard the appellant’s bail application pending his appeal (against a conviction for murder and a sentence of 12 years’ imprisonment) was of the opinion that there was a reasonable prospect of success on appeal, the magistrate nevertheless refused bail. In an appeal against this the decision, the High Court held that the cumulative effect of other considerations rendered it not in the interest of justice to extend bail: the mere fact that court a quo considered that the appellant had reasonable prospects on appeal did not per se mean that the interests of justice dictated release on bail. S v Pataka 2018 (2) SACR 135 (GJ)
THE NAMIBIAN LAW REPORTS 2018(2)
When desertion is ‘malicious and constructive'
The plaintiff in divorce proceedings sought an order that the defendant forfeit the benefits derived from their marriage in community of property in respect of a specific immovable property which was registered in plaintiff’s name. The court, inter alia, considers the meaning of ‘malicious and constructive desertion’, the main basis of the plaintiff’s claim. WWB v Aipanda NO 2018 (2) NR 446 (HC)
Practice directive when relying on foreign, in lieu of local, case law
Rule 130 of High Court Rules requires that counsel relying on foreign authority must certify that no Namibian authority was found. The court held that, as a matter convenience and fairness to the court and opponents, legal practitioners must refer to the particular pages, paragraphs or excerpts relied upon. Conrad v Dohrmann and Another 2018 (2) NR 535 (HC)
Substantial compliance with required formalities when executing a will sufficient
Only the first three pages of a will was signed by the testatrix and witnesses. This strictly constituted non-compliance with s 2(1)(a)(iii) and (iv) of Wills Act 7 of 1953, invalidating the will. The court however considered that requiring strict compliance violated the fundamental right of person to dispose of their property as they pleased, a right enshrined in art 16(1) of the Constitution; and where, as in this case, there was substantial compliance with statutory provisions, the Will was valid. Mwoombola and Another v Master of the High Court 2018 (2) NR 482 (HC)
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SOUTH AFRICAN LAW REPORTS
TABLE OF CASES
SAIDI AND OTHERS v MINISTER OF HOME AFFAIRS AND OTHERS (CC)
ZONDO ACJ, CAMERON J, FRONEMAN J, JAFTA J, KATHREE-SETILOANE AJ, KOLLAPEN AJ, MADLANGA J, MHLANTLA J, THERON J and ZONDI AJ
Immigration - Refugee—Asylum seeker permit—Whether, after rejection of asylum application, and exhaustion of internal review and appeal, and pending judicial review, refugee reception officer having power to extend permit—Whether, on being asked, officer having discretion to extend or not extend—Refugees Act 130 of 1998, ss 22(1) and 22(3).
AUCTION ALLIANCE (PTY) LTD v WADE PARK (PTY) LTD (SCA)
PONNAN JA, MAJIEDT JA, SWAIN JA, DAMBUZA JA and MOTHLE AJA
Contract - Interpretation—Proper approach—Principles of interpretation restated—Failure of court a quo to follow correct approach to interpretation—When interpreting document, not sufficient for court to merely outline well-established principles—Must be evident from interpretive process itself that principles applied—Court a quo erring in finding letter to have not constituted consent.
BEE v ROAD ACCIDENT FUND (SCA)
SERITI JA, MATHOPO JA, ROGERS AJA, HUGHES AJA and SCHIPPERS AJA
Damages - Bodily injuries—Loss of income or earning capacity—Plaintiff and brother each owned 50% of close corporation—Plaintiff’s claim permissibly quantified with reference to corporation’s reduced profits.
Damages - Quantification—Collateral source rule—Benevolent payments increasing plaintiff’s post-injury earnings beyond market-related salary for reduced role—Correctly disregarded in calculation of plaintiff’s patrimonial loss resulting from diminished earning capacity.
Evidence - Expert evidence—Joint minutes—Court generally bound by—Rules for repudiation by parties.
BS v PS (SCA)
LEWIS JA, WILLIS JA, SWAIN JA, MATHOPO JA and MOCUMIE JA
Marriage - Divorce—Proprietary rights—Accrual system—Power to defer satisfaction of accrual claim (s 10)—Ousted by requirement that pension interest assigned non-member in divorce order be paid without delay (s 24A)—Matrimonial Property Act 88 of 1984, s 10; Government Employees Pension Law, 1996, s 24A.
BRAGGE v DOUGLASDALE DAIRY (PTY) LTD (GJ)
Will - Fideicommissum—Fiduciary—Ownership of property—Jus possidendi and doctrine of salva rei substantia—Fiduciary’s right to evict profitable tenant from land—Fideicommissary’s standing to oppose eviction application.
Will - Fideicommissum—Fideicommissary—Protectable interest in property—None existing during pendency of fideicommissary condition—Before this fideicommissary having no claim based on fiduciary’s obligation to transfer property salva rei substantia.
DOUGLASDALE DAIRY (PTY) LTD AND OTHERS v BRAGGE AND ANOTHER (SCA)
SHONGWE ADP, WILLIS JA, SWAIN JA, DAVIS AJA and HUGHES AJA
Will - Fideicommissum—Fiduciary—Death—Rights of fideicommissary where property registered in fiduciary’s name—Right of executor of fiduciary’s estate to enforce eviction order granted to fiduciary.
Estoppel - Res judicata—Issue estoppel—Scope of where appeal did not deal with court a quo’s factual findings.
JOHN WALKER POOLS v CONSOLIDATED AONE TRADE & INVEST 6 (PTY) LTD (IN LIQUIDATION) AND ANOTHER (SCA)
SHONGWE ADP, WILLIS JA, MOCUMIE JA, MOTHLE AJA and ROGERS AJA
Appeal - Power of court on appeal—Power to dismiss appeal where judgment or order sought would have no practical effect or result—To be determined without reference to costs, save under exceptional circumstances—Costs meaning costs in court a quo, not appellate court—Superior Courts Act 10 of 2013, s 16(2)(a).
Appeal - Leave to appeal—Application—Costs—Proposed appeal becoming moot during pendency of application in Supreme Court of Appeal—Liability for costs in application—Time when matter became moot relevant—Duty of litigants to make reasonable proposals inter se on costs—Prospects on merits and conduct of parties.
Costs - Application for leave to appeal—Proposed appeal becoming moot during pendency of application in Supreme Court of Appeal—Liability for costs in application—Time when matter became moot relevant—Duty of litigants to make reasonable proposals inter se on costs—Prospects on merits and conduct of parties.
MANTIS INVESTMENT HOLDINGS (PTY) LTD v EASTERN CAPE DEVELOPMENT CORPORATION AND OTHERS (SCA)
PONNAN JA, SWAIN JA, DAMBUZA JA, DAVIS AJA and MOTHLE AJA
Company - Winding-up—Interrogation—Subpoena to appear—Creditor asking for subpoena of persons—Master, without proper consideration of request, issuing same—Companies Act 61 of 1973, ss 415 and 417.
MOSTERT AND OTHERS v FIRSTRAND BANK LTD t/a RMB PRIVATE BANK AND ANOTHER (SCA)
SHONGWE ADP, VAN DER MERWE JA, ROGERS AJA, HUGHES AJA and SCHIPPERS AJA
Credit agreement - Consumer credit agreement—Remedying of default in agreement—Payment can only be made by or on behalf of consumer—National Credit Act 34 of 2005, s 129(3).
NK v MEC FOR HEALTH, GAUTENG (SCA)
LEWIS JA, MAJIEDT JA, WILLIS JA, DAMBUZA JA and PILLAY AJA
Damages - Bodily injuries—General damages—Assessment—Courts to adopt flexible approach, determined by broadest general considerations, depending on what was fair in all circumstances of case.
Damages - Bodily injuries—General damages—Assessment—Compensation for pain and suffering neither a duplication of amount awarded for past and future medical and hospital expenses, nor for loss of amenities of life.
Damages - Bodily injuries—General damages—Assessment—Past awards serving as guide—Importance of awards, where sequelae similar, being consonant with one another, across country.
Damages - Bodily injuries—Loss of income or earning capacity—Calculation—Contingencies—Assessment—Approach to.
DUMA v ABSA BANK LTD (GP)
Execution - Attachment of immovable property—Declaration of executability—Judicial oversight—Duty of court, in its order declaring bonded property specially executable, to inform lay-litigant debtors that, should they pay arrears before sale in execution, original agreement would be reinstated—National Credit Act 34 of 2005, s 129(3).
EX PARTE MDYESHA (GP)
MAKGOKA J and MOLEFE J
Attorney - Admission and enrolment—Admission—Requirements—Attendance at practical training course—May take place before registration of articles—Strict compliance with s 15(1)(b)(ivA) of Attorneys Act 53 of 1979, which insists on prior registration or service of articles, not required.
Attorney - Articles of clerkship—Probation—Attorneys’ firms’ practice of making potential candidate attorneys sign pre-articles contracts containing probationary periods—Court remarking that practice still rife despite Supreme Court of Appeal’s disapproval.
LEVAY AND ANOTHER v VAN DEN HEEVER AND OTHERS NNO (GJ)
VAN DER BERG AJ
Company - Winding-up—Application—Intervention—Whether creditor or minority shareholder can intervene to oppose.
NTOMBELA v ROAD ACCIDENT FUND (GJ)
Evidence - Expert evidence—Joint minutes—Failure to comply with requirements in court’s Practice Manual—Appropriate order and costs order.
OCTAGON CHARTERED ACCOUNTANTS v ADDITIONAL MAGISTRATE, JOHANNESBURG, AND OTHERS (GJ)
GAUTSCHI AJ, MAKUME J and SIWENDU J
Magistrates’ court - Civil proceedings—Jurisdiction—Removal of actions to High Court—Section 50(1) of Magistrates’ Courts Act allowing for removal of both claim in convention and claim in reconvention to High Court—Magistrates’ Courts Act 32 of 1944, s 50(1).
TRANSCEND RESIDENTIAL PROPERTY FUND LTD v MATI AND OTHERS (WCC)
Consumer protection - Consumer agreement—Cancellation—By supplier—20-day notice period to remedy defects—Unnecessary for supplier to expressly state in such notice that consumer had 20 business days to remedy defect—Consumer Protection Act 68 of 2008, s 14(2)(b)(ii).
Consumer protection - Consumer—Lease agreement—Occupant paying rent, but not described as tenant in lease—Such occupant a beneficiary of particular services in terms of lease, and therefore qualifying as ‘consumer’ in terms of Consumer Protection Act, given broad definition of consumer, and given that whole tenor of Act was to protect consumer—Consumer Protection Act 68 of 2008, s 1 sv ‘consumer’.
TC v SC (WCC)
DIANE DAVIS AJ
Marriage - Divorce—Dispute resolution—Parenting disputes—Facilitator—Whether, absent agreement of parents, court may appoint—Whether appointment of is impermissible delegation of court’s power.
TRUSTEES, AVENUES BODY CORPORATE v SHMARYAHU AND ANOTHER (WCC)
BINNS-WARD J and LANGA AJ
Housing - Consumer protection—Community Schemes Ombud—Appeal against adjudicator’s order—Correct procedure—Community Schemes Ombud Service Act 9 of 2011, s 57.
Housing - Consumer protection—Community Schemes Ombud—Application for dispute resolution—Standing to make application—Requirements—Applicant must be materially affected by community-scheme related matter, and must have material interest in scheme—Both requirements must be met for standing to be established—Community Schemes Ombud Service Act 9 of 2011, ss 38(1) and 39(1).
CHAMBER OF MINES v MINISTER OF MINERAL RESOURCES AND ANOTHER (GP)
MABUSE J, SIWENDU J and BARRIE AJ
Minerals and petroleum - Mining and prospecting rights—Charter contemplated in s 100 of MPRDA—Legal status of—Effect of mining rights under MPRDA—Whether charter’s empowerment target imposing obligation to restore and continuously maintain target where beneficiaries disposing of ownership, or whether ‘once empowered, always empowered’—Mineral and Petroleum Resources Development Act 28 of 2002, ss 23(1)(h), 23(6), 100(1)(b) and item 7 of sch II.
SOUTH AFRICAN CRIMINAL LAW REPORTS
TABLE OF CASES
EF v MINISTER OF SAFETY AND SECURITY (SCA)
LEWIS JA, SERITI JA, SALDULKER JA, MAKGOKA AJA and SCHIPPERS AJA
Police - Duties and powers of—Towards persons in their custody after arrest—Senior police officers recommending bail for plaintiff after arrest for drunken driving, but not given effect to when transferred to different police station—Plaintiff detained in cells for weekend where sodomised—Police failing to separate him from violent-crime detainees—Damages awarded.
S v PATAKA (GJ)
Bail - Pending appeal—When to be granted—Prospects of success on appeal—Mere fact that court considers that appellant has reasonable prospects on appeal does not per se mean that interests of justice dictate release on bail.
NATIONAL POLICE COMMISSIONER AND ANOTHER v NGOBENI (SCA)
SHONGWE ADP, WALLIS JA, SALDULKER JA, MATHOPO JA and PLASKET AJAA J, THERON J and ZONDI A
Police - National Commissioner—Powers—To establish board to inquire into allegations of misconduct by provincial commissioner—South African Police Service Act 68 of 1995, ss 8(2)(c), 8(8) and 9(1).
S v ZOTWA (ECG)
STRETCH J and JOLWANA AJ
Traffic offences - Sentence—Suspension of driver’s licence in terms of s 35(1) of National Road Traffic Act 93 of 1996—Magistrate failing to bring provisions of s 35(3) and (4) to attention of accused—Irregularity committed, and suspension set aside.
SULANI v MASHIYI AND ANOTHER (ECP)
Trial - Accused—Failure to appear in court—Issue of warrant of arrest—Provisions of s 67(1)(b) of Criminal Procedure Act 51 of 1977 not precluding court from staying execution of warrant of arrest in appropriate cases.
MINISTER OF SAFETY AND SECURITY v SOUTH AFRICAN HUNTERS AND GAME CONSERVATION ASSOCIATION (CC)
ZONDO DCJ, CACHALIA AJ, DLODLO AJ, FRONEMAN J, GOLIATH AJ, JAFTA J, PETSE AJ and THERON J
Arms and ammunition - Licensing—Renewal of licence—Sections 24 and 28 of Firearms Control Act 60 of 2000 constitutionally valid.
EX PARTE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS (SCA)
SHONGWE ADP, SERITI JA, SWAIN JA, PLASKET AJA and D PILLAY AJA
Prevention of crime - Preservation of property order—Application for—Application may be brought ex parte and without notice to other party—Provisions of statute take precedence over rules of court and practice directives—Prevention of Organised Crime Act 121 of 1998, s 38(1).
GOUNDEN AND ANOTHER v NONCEBU NO AND OTHERS (KZP)
SEEGOBIN J and MAHABEER AJ
Review - Criminal proceedings not finalised—Whether decision on admission of certain evidence reviewable—Accused’s financial distress not sufficient ground for piecemeal adjudication of case.
S v PILLAY (KZD)
Murder - Sentence—Mitigating factors—Crime not premeditated or planned—Accused acting with diminished responsibility after break-up of relationship—Genuine remorse shown and accused pleading guilty from outset—Sentence of 20 years’ imprisonment imposed.
Sentence - Imprisonment—Cumulative effect of—Order that sentences should run concurrently—When appropriate—Accused convicted of murder and unlawful possession of firearm used to commit murder— Unlawful possession of firearm antedated murder by long period—No reason for sentences to run concurrently.
S v PERMALL AND ANOTHER (WCC)
BOQWANA J and THULARE AJ
Traffic offences - Sentence—Fine with alternative of imprisonment—Ratio between monetary amount of fine and months of imprisonment—Golden mean ratio 3333,33.
DIRECTOR OF PUBLIC PROSECUTIONS, NORTHERN CAPE v SWART AND ANOTHER (NCK)
Appeal—Reservation of question of law—Question of law—What constitutes—Whether trial court failed to apply applicable legal principles to proven facts—In casu, court examining record and finding trial court accounted for all evidence and accorded it due weight in acquitting accused—No question of law raised, but one of fact.
S v VAN EEDEN (NCK)
TLALETSI JP and OLIVIER J
Trial - Irregularity in—What constitutes—Accused represented at trial by attorney barred from practising by High Court interdict, at instance of Law Society—Fatal irregularity—Proceedings set aside.
DIRECTOR OF PUBLIC PROSECUTIONS, GAUTENG DIVISION, PRETORIA v HAMISI (SCA)
LEWIS JA, DAMBUZA JA and ROGERS AJA
Plea - Guilty—Written statement in terms of s 112(2) of Criminal Procedure Act 51 of 1977—Sufficiency of—Admission of age of complainant when essential element of charge—Where accused admits complainant’s age in statement, state absolved of duty of proving child’s age.
THE NAMIBIAN LAW REPORTS 2018 (2)
TABLE OF CASES
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