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August 2016

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases in the August law reports, as well as those in the Namibian Law Reports.

JUDGMENTS OF INTEREST IN THE AUGUST EDITIONS OF THE SALR AND SACR, AS WELL AS THE NAMIBIAN LAW REPORTS 2016(2)

 
Click on the case name to download the original judgment.
 

SOUTH AFRICAN LAW REPORTS

Media access to company records

Unqualified access to a company’s securities register was essential for effective journalism and an informed citizenry. The public had a right to obtain information and ideas from the media. Nova Property Group Holdings Ltd and Others v Cobbett and Another 2016 (4) SA 317 (SCA)

Tswana customary law and the Road Accident Fund

A Tswana daughter had an agreement with her mother to contribute to her indigent parents’ household expenses. After she was killed in a car crash, the question was whether the Road Accident ought to pay her parents for loss of support. Seleka v Road Accident Fund 2016 (4) SA 445 (GP)

Education: the light of the nation

A regulation prevented a learner’s prospective school from requesting a confidential report in relation to such a learner from their current school. The court held that the regulation was designed to prevent unfair discrimination against a learner during the admission phase. There could be no justification for one school to shift the burden of admission of a troublesome learner onto other schools. Federation of Governing Bodies for South African Schools v MEC for Education, Gauteng and Another 2016 (4) SA 546 (CC)

 
 

SOUTH AFRICAN CRIMINAL LAW REPORTS

Murder delayed?

Both deceased were alleged to have been shot by the appellant in separate incidents on the same day, and both were admitted to hospital, one dying three months later, and the other ten months later. The judgment covers admissibility of evidence, and causation in murder. S v Seemela 2016 (2) SACR 125 (SCA)

Fake rhino horn

Was there the element of prejudice in a charge of fraud for the sale of a fake rhino horn? The co-accused had sold a very good imitation of a rhino horn to a police trap. It was contended that as the police trap had no intention to pay for the rhinoceros horn, there could be no prejudice. S v Ndwambi 2016 (2) SACR 195 (SCA)

Road shooting

Was it plausible that the biker had continuously pointed a pistol with his left hand, while riding next to the accused’s car, and while stopping and dismounting from the bike? The court ponders whether it needs expert testimony on the controls of a motorbike. S v Masooa 2016 (2) SACR 224 (GJ)

 

THE NAMIBIAN LAW REPORTS 2016(2)

Criminal association

There was a legal duty on a security guard to report theft, the same as with a police officer. The failure to perform such a duty had the effect of associating with the commission of the offence, resulting in a conviction of theft. S v Puriza 2016 (2) NR 429 (HC)

Owner of vehicle, but without papers

The plaintiff sued the defendant for damages to his motor vehicle, but the defendant sought to non-suit the plaintiff because the car was not registered in the plaintiff’s name. The court held that locus standi concerned the sufficiency and directness of a person’s interest in the litigation. Vehicle registration legislation did not water down or abrogate the common-law meaning and consequences of ownership. Uvanga v Steenkamp and Others 2016 (2) NR 465 (HC)

Spoliation order restores law and order

The deputy sheriff changed the locks and chased the employees away, but without a court order. The maintenance of law and order was greater than the right to recover possession of property. A spoliation order was granted. Witvlei Meat (Pty) Ltd v Agricultural Bank of Namibia 2016 (2) NR 547 (HC)

 

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The Juta Law Reports Team

Download the PDF version of the Law Reports Advance Notification
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 SOUTH AFRICAN LAW REPORTS
 
 TABLE OF CASES

 

  • Nova Property Group Holdings Ltd and Others v Cobbett and Another 2016 (4) SA 317 (SCA)
  • Commissioner, South African Revenue Service v Capstone 556 (Pty) Ltd 2016 (4) SA 341 (SCA)
  • Smyth and Others v Investec Bank Ltd and Another 2016 (4) SA 363 (GP)
  • Business Partners Ltd v Tsakiroglou and Others 2016 (4) SA 390 (WCC)
  • Chiliza v Govender 2016 (4) SA 397 (SCA)
  • South African Local Authorities Pension Fund v Msunduzi Municipality 2016 (4) SA 403 (SCA)
  • Links v Department of Health, Northern Province 2016 (4) SA 414 (CC)
  • Itzikowitz v Absa Bank Ltd 2016 (4) SA 432 (SCA)
  • Seleka v Road Accident Fund 2016 (4) SA 445 (GP)
  • Eastern Cape Parks and Tourism Agency v Medbury (Pty) Ltd 2016 (4) SA 457 (ECG)
  • Tshiyombo v Refugee Appeal Board and Others 2016 (4) SA 469 (WCC)
  • Free Market Foundation v Minister of Labour and Others 2016 (4) SA 496 (GP)
  • Federation of Governing Bodies for South African Schools v MEC for Education, Gauteng and Another 2016 (4) SA 546 (CC)
  • Engelbrecht v Khumalo 2016 (4) SA 564 (GP)
  • Du Toit NO v Thomas NO and Others 2016 (4) SA 571 (WCC)
  • Commissioner, South African Revenue Service v Kluh Investments (Pty) Ltd 2016 (4) SA 580 (SCA)
  • Moneyweb (Pty) Ltd v Media 24 Ltd and Another 2016 (4) SA 591 (GJ)

 

 FLYNOTES
 

NOVA PROPERTY GROUP HOLDINGS LTD AND OTHERS v COBBETT AND ANOTHER (SCA)

MAYA AP, MAJIEDT JA, MBHA JA, PLASKET AJA and KATHREE-SETILOANE AJA
2016 MARCH 1; MAY 12
[2016] ZASCA 63

Appeal - Appealability—Interlocutory order—Appeal would resolve real issue between parties on which there is conflicting precedent—Appealable under s 17(1) of Superior Courts Act 10 of 2013.
Companies—Records—Access—Securities register—Right of access unqualified—Motive of person seeking access to register irrelevant—Right not subject to PAIA—Companies Act 71 of 2008, s 26(2); Promotion of Access to Information Act 2 of 2000.

COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE v CAPSTONE 556 (PTY) LTD (SCA)

PONNAN JA, BOSIELO JA, WALLIS JA and MBHA JA and VAN DER MERWE AJA
2015 NOVEMBER 9; 2016 FEBRUARY 9
[2016] ZASCA 2

Revenue - Capital gains tax—Base cost of asset—Expenditure actually incurred in costs of acquisition of asset—Indemnity obligation assumed upon acquisition of shares—Payment made to discharge such obligation—Deductible as part of base cost where liability in terms of indemnity formed part of consideration for acquisition—Income Tax Act 58 of 1962, sch 8, para 20(1)(a).

Revenue - Income tax—Appeal—Against decision of tax court—Such appeals subject to same principles as appeals from High Court to Supreme Court of Appeal—High Court bound by factual findings of tax court unless affected by material misrepresentation or wrongly decided in its opinion—In exercising its powers of appeal, Supreme Court of Appeal must consider what order High Court should have made applying these principles.

Revenue - Income tax—Income or capital accrual—Test—Determination of intention with which asset acquired or disposed of—Approach to accruals arising from detailed commercial transactions—Such transactions must not be subjected to narrow legalistic scrutiny or broken into component parts but whole transaction must be considered.

Revenue - Income tax—Income or capital accrual—Test—Determination of intention with which asset acquired or disposed of—Whether asset acquired for purpose of reselling at profit and so assumed character of trading stock—Taxpayer’s evidence—Credibility and reliability of taxpayer’s evidence must be determined in light of objective facts, inferences drawn therefrom, probabilities and any evidence put up in contradiction thereto.

SMYTH AND OTHERS v INVESTEC BANK LTD AND ANOTHER (GP)

RABIE J
2015 SEPTEMBER 17

Company - Oppressive conduct—Relief—Who may apply—‘Member’—Meaning of—Companies Act 61 of 1973, s 252

BUSINESS PARTNERS LTD v TSAKIROGLOU AND OTHERS (WCC)

LE GRANGE J
2015 SEPTEMBER 16, 17

Company - Business rescue—Moratorium on legal proceedings against company—Moratorium’s non-application to natural-person surety is not unfair discrimination—Companies Act 71 of 2008, s 133(1).

CHILIZA v GOVENDER (SCA)

TSHIQI JA, PILLAY JA, SWAIN JA, DAMBUZA JA and TSOKA AJA
2016 MARCH 4, 31
[2016] ZASCA 47

Insolvency - Compulsory sequestration—Final sequestration—Requirements—Creditor to serve provisional order on Sars—Requirement peremptory—Insolvency Act 24 of 1936, s 11(2A)(c).

Insolvency - Compulsory sequestration—Provisional sequestration—Requirements—Creditor to furnish sequestration petition to Sars—Requirement peremptory—Insolvency Act 24 of 1936, s 9(4A)(a)(iii).

SOUTH AFRICAN LOCAL AUTHORITIES PENSION FUND v MSUNDUZI MUNICIPALITY (SCA)

LEWIS JA, PONNAN JA, THERON JA, WILLIS JA and MATHOPO JA
2015 NOVEMBER 16, 26
[2015] ZASCA 172

Pension - Pension fund—Rules—Amendment—Validity—Pension fund seeking to rely on amended rule in claiming, from employer, contributions to employee members’ benefits—Pension fund required to prove rule amended in accordance with relevant statutory provisions—No reliance could be placed on principle that invalid administrative action had legal consequences until set aside—Pension Funds Act 24 of 1956, s 12.

LINKS v DEPARTMENT OF HEALTH, NORTHERN PROVINCE (CC)

MOGOENG CJ, MOSENEKE DCJ, CAMERON J, JAFTA J, KHAMPEPE J, MADLANGA J, MATOJANE AJ, NKABINDE J, VAN DER WESTHUIZEN J, WALLIS AJ and ZONDO J
2015 AUGUST 25; 2016 MARCH 30
[2016] ZACC 10

Prescription - Extinctive prescription—Commencement—Knowledge of debt—Claim based on delict—Medical negligence—Reasonable grounds to suspect negligence required—Role of expert advice—Prescription Act 68 of 1969, s 12(3).

Medicine - Medical practitioner—Negligence—Running of prescription against claim—Claimant must have reasonable grounds to suspect negligence before prescription will commence running—Prescription Act 68 of 1969, s 12(3).

ITZIKOWITZ v ABSA BANK LTD (SCA)

PONNAN JA, CACHALIA JA, WILLIS JA, SALDULKER JA and FOURIE AJA
2016 MARCH 15, 31
[2016] ZASCA 43

Delict - Elements—Unlawfulness or wrongfulness—Claim for loss of value of shares.

Appeal - Appealability—Dismissal of exception—Not cross-appealable.

EASTERN CAPE PARKS AND TOURISM AGENCY v MEDBURY (PTY) LTD (ECG)

SMITH J
2015 OCTOBER 13; 2016 FEBRUARY 18

Animal - Wild animal—Ownership—Escaped game—Statutory protection of ownership—Certificate of enclosure sole prerequisite for protection—Game Theft Act 105 of 1991, s 2(2)(a).

TSHIYOMBO v REFUGEE APPEAL BOARD AND OTHERS (WCC)

BINNS-WARD J
2015 NOVEMBER 16, 25
2015 NOVEMBER 10, 18

Attorney - Rights and duties—Duties—To give notice that acting for party—Uniform Rules of Court, rule 16(1).

Attorney - Rights and duties—Duties—Appearance at hearing, failure to appear at resumption—Uniform Rules of Court, rule 16(4).

Immigration - Refugee—Asylum seeker—Application for asylum—Refusal—Appeal to Refugee Appeal Board—Non-compliance by Board and officials of Department of Home Affairs with court rules—Costs order against individual officials—Refugees Act 130 of 1998.

Immigration - Refugee—Asylum seeker—Application for asylum—Refusal—Review—Systemic non-compliance by officials with court rules in refugee status reviews—Referral to Public Protector—Refugees Act 130 of 1998.

Immigration - Refugee—Asylum seeker—Application for asylum—Refusal—Appeal to Refugee Appeal Board—Board may rehear application—Proper approach to applicant’s account—Refugees Act 130 of 1998, s 26.

Immigration - Refugee—Qualificatory grounds—Prohibition of return—Generous interpretation of required—Refugees Act 130 of 1998, ss 2 and 3.

Immigration - Refugee—Qualificatory grounds—Prohibition of return—Generous interpretation of required—Refugees Act 130 of 1998, ss 2 and 3.

FREE MARKET FOUNDATION v MINISTER OF LABOUR AND OTHERS (GP)

MURPHY J, MATOJANE J and BASSON J
2016 FEBRUARY 22; MAY 4

Labour law - Collective agreement—Bargaining council agreement—Extension to non-parties—Section 32(2) of LRA requiring that Minister ‘must’ extend collective agreement to non-parties within 60 days of request—Whether provision in breach of principle of legality in s 1 of the Constitution for failure to provide sufficient state and judicial control—Request by bargaining council to Minister to extend agreement reviewable either under PAJA or general constitutional requirement of legality—Decision of Minister amounting to administrative justice and reviewable under PAJA—Adequate state and judicial supervision provided—Labour Relations Act 66 of 1995, s 32(2).

Labour law - Collective agreement—Bargaining council agreement—Extension to non-parties—Section 32(2) of LRA requiring that Minister ‘must’ extend collective agreement to non-parties within 60 days of request—Whether provision in breach of principle of legality in s 1 of the Constitution for delegating legislative power to private body under no duty to act in public interest—No general constitutional principle requiring all public power to be exercised in public interest—Labour Relations Act 66 of 1995, s 32(2).

Review - Grounds—Unreasonableness—Administrative action—Decision by Minister in terms of s 32(2) of the LRA whether to extend collective bargaining agreement to non-parties—Whether reviewable on basis of substantive reasonableness, or limited to rationality—Promotion of Administrative Justice Act 3 of 2000, s 6(2)(h); Labour Relations Act 66 of 1995, s 32(2).

FEDERATION OF GOVERNING BODIES FOR SOUTH AFRICAN SCHOOLS v MEC FOR EDUCATION, GAUTENG AND ANOTHER (CC)

MOGOENG CJ, MOSENEKE DCJ, BOSIELO AJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MHLANTLA J, NKABINDE J and ZONDO J
2016 MAY 5, 20
[2016] ZACC 14

Education - School—Public school—Learners—Admission of learners to public schools—Unfair discrimination—Provincial regulation precluding prospective school from requesting ‘any information that may be used to discriminate against learner’ from current school—Whether reasonable measure against unfair discrimination.

Education - School—Public school—Learners—Admission of learners to public schools—Validity of provincial regulations relating to admission of learners in Gauteng public schools—No conflict between impugned provincial regulations and Schools Act regarding admission policy—Regulations rational, reasonable and justifiable—MEC must establish default feeder zones after consultation with relevant stakeholders—South African Schools Act 84 of 1996, s 5(5).

ENGELBRECHT v KHUMALO (GP)

MLAMBO JP
2015 DECEMBER 2; 2016 MARCH 18

Judge - Actions against—Consent to—Superior Courts Act 10 of 2013, s 47(1).

DU TOIT NO v THOMAS NO AND OTHERS (WCC)

DONEN AJ
2015 APRIL 23; JUNE 3

Children - Maintenance—From deceased estate—Payment of before lodging of liquidation and distribution account—Maintenance Act 99 of 1998, s 16(1)(a)(i) and (ii).

COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE v KLUH INVESTMENTS (PTY) LTD (SCA)

PONNAN JA, WILLIS JA, ZONDI JA, FOURIE AJA and KATHREE-SETILOANE AJA
2016 FEBRUARY 16; MARCH 1
[2016] ZASCA 5

Revenue - Income tax—Income or capitaI accrual—Income from farming—Disposal of plantation—Only deemed gross income if taxpayer carrying on farming operations—What constitutes ‘farming operations’ question of fact—Income Tax Act 58 of 1962, s 26(1) read with sch 1, para 14.

MONEYWEB (PTY) LTD v MEDIA 24 LTD AND ANOTHER (GJ)

BERGER AJ
2015 MAY 7, 8 2016 MAY 5

Intellectual property - Copyright—Original works—What constitutes—Sufficient application of mind required—Copyright Act 98 of 1978, s 2(1).

Intellectual property - Copyright—Infringement—Exceptions from copyright—News of the day consisting of mere items of press information—What constitutes—Not extending to original literary work—Copyright Act 98 of 1978, s 12(8)(a).

Intellectual property - Copyright—Infringement—Exceptions from copyright—Fair dealing with literary work for purpose of reporting current events, provided that source ‘mentioned’—Fair dealing value judgment based on objective test—When reporting current events online, citing original source with hyperlink equating to mentioning such source—Copyright Act 98 of 1978, s 12(1)(c)(i).

Intellectual property - Copyright—Infringement—What constitutes—Copying substantial part of copyright work—Determining substantiality—Value judgment whether original substantially reproduced, focusing on quality rather than quantity of reproduction.

 

 SOUTH AFRICAN CRIMINAL LAW REPORTS
 TABLE OF CASES
 
  • S v Seemela 2016 (2) SACR 125 (SCA)
  • S v Patel 2016 (2) SACR 141 (GJ)
  • S v ML 2016 (2) SACR 160 (SCA)
  • S v Gayiya 2016 (2) SACR 165 (SCA)
  • Carolissen v Director of Public Prosecutions 2016 (2) SACR 171 (WCC)
  • S v Ndwambi 2016 (2) SACR 195 (SCA)
  • S v Krejcir and Others 2016 (2) SACR 214 (GJ)
  • S v Masooa 2016 (2) SACR 224 (GJ)

 

 FLYNOTES
 

S v SEEMELA (SCA)

PONNAN JA, MAYA JA, MHLANTLA JA, ZONDI JA and MEYER AJA
2015 MARCH 16, 26
[2015] ZASCA 41

Evidence - Admissibility—Hearsay evidence—Admissibility of in terms of s 3 of Law of Evidence Amendment Act 45 of 1988—Person to whom statement made not called as witness, and written statement, without more, produced in evidence—Evidence in such circumstances inadmissible.

Evidence - Admissibility—Hearsay evidence—Admissibility of in terms of s 3 of Law of Evidence Amendment Act 45 of 1988—Court should hesitate before admitting where such evidence crucial in convicting accused—In circumstances where no other incriminating evidence, statement of deceased ought to have been excluded.

Murder - Causation—Deceased shot by accused but died 10 months after shooting—Postmortem report indicating that pathologist relied on external examination of body of deceased—Further report, drawn up by professor of forensic pathology, admitted into evidence without deponent testifying, in spite of numerous questions raised by report—Cause of death not sufficiently established for proof of murder—Conviction changed to attempted murder.

S v PATEL (GJ)

COPPIN J and VILAKAZI AJ
2015 APRIL 30; AUGUST 18

Extradition - Application for—Requirements—Requirements under Extradition Act 67 of 1962—Extradition for ‘extraditable offence’ in terms of extradition treaty between South Africa and foreign state—Definition of extraditable offence in both s 1 and extradition treaty similar—Such definitions expressing principle of ‘double criminality’—On proper construction of treaty, not necessary for conduct constituting offence in foreign state also to constitute offence in South Africa at time of its commission—Sufficient if such conduct constituting offence in South Africa at time of extradition request, if not at time when extradition enquiry being conducted by magistrate.

Extradition - Application for—Requirements—Requirements under Extradition Act 67 of 1962—Extradition for ‘extraditable offence’ in terms of extradition treaty between South Africa and foreign state—Certificate in terms of s 10(2) that foreign state had ‘sufficient evidence at its disposal to warrant the prosecution of the person concerned’—Not necessary that word ‘warrant’ be used in certificate—Certificate using word ‘justify’ instead of ‘warrant’—Certificate complying with s 10(2)— Foreign state not obliged to use such certificate—Certificate merely mechanism to facilitate proof—In absence of certificate, magistrate still to satisfy himself that foreign state had sufficient evidence to warrant prosecution in foreign state.

S v ML (SCA)

MAYA AP, SWAIN JA and DAMBUZA JA
2016 FEBRUARY 24; MARCH 1
[2016] ZASCA 4

Sexual offences - Proof of—Sexual assault on young children—Medical evidence—Court again expressing dissatisfaction with trend on part of prosecutors not to call medical expert who examined complainant—Where complainant very young child and only witness implicating accused, her evidence to be treated with caution—Degree of corroboration required to reduce danger of relying solely on her evidence—Reliance on cryptic findings and bald conclusions by doctor in medical report unjustified—Evidence by doctor can have decisive effect on outcome of trial.

S v GAYIYA (SCA)

GAMBLE J and DONEN AJ
2016 MARCH 29; MAY 6

Extradition - Offence for which extradition sought—Production and dissemination of child pornography—Offence committed in South Africa but disseminated over internet and downloaded in US—United States of America seeking extradition from South Africa of suspect to be tried in terms of US law—Court in US having jurisdiction—Offences similar in nature to South African offences with similar penal provisions—Suspect liable to be extradited.

S v NDWAMBI (SCA)

NAVSA ADP, LEACH JA, WILLIS JA, SCHOEMAN AJA and MEYER AJA
2015 MARCH 11, 31
[2015] ZASCA 59

Fraud - Elements of—Prejudice—Intention to prejudice—Police trap—Contention that state had never intended to pay for fake rhino horn and that therefore no prejudice—Matter looked at from point of view of deceiver.

Fraud - Elements of—Misrepresentation—Knowledge that representation false—Proof of—Accused failing to give acceptable explanation and would be impermissible speculation in circumstances to hold that misrepresentation unknowingly made.

Conservation - Rhino horn—Sale of fake rhino horn—Sentence—Police official attempting to sell fake rhino horn to police trap—Sentence of six years’ imprisonment confirmed on appeal.

S v KREJCIR AND OTHERS (GJ)

LAMONT J
2014 AUGUST 4, 25

Evidence - Confession—Trial-within-a-trial—Encapsulation of—Cross-examination of state witness in trial-within-a-trial on matters relating to issues in main trial—Possibility that witness would not testify in main trial which would cause prejudice to accused—Such prejudice outweighing prejudice to state resulting from ‘contamination by proliferation’ of issues—Cross-examination allowed.

S v MASOOA (GJ)

SPILG J
2016 JANUARY 20; FEBRUARY 17

Evidence - Witness—Calling by court—In terms of s 167 and s 186 of Criminal Procedure Act 51 of 1977—In considering whether or not to receive further evidence in terms of provisions, court must adopt absolute impartiality—Court must also ensure strict neutrality maintained in way questions asked—Accused also to be afforded opportunity to call further evidence, should potentially adverse evidence be produced—Court to ensure that motive for directing further evidence under s 186 not partisan and that it is essential for just decision of case—Section 167 of Act complements s 186 insofar as calling or recalling of witnesses appears essential to court for just decision of case.

 

 

 THE NAMIBIAN LAW REPORTS 2016 (2)
 TABLE OF CASES
   
  • Hartzenberg v Standard Bank Namibia Ltd 2016 (2) NR 307 (SC)
  • Moolman and Another v Jeandre Development CC 2016 (2) NR 322 (SC)
  • S v Boois and Others 2016 (2) NR 347 (HC)
  • S v Nghixulifa and Others 2016 (2) NR 356 (HC)
  • Laicatti Trading Capital Inc and Others v Greencoal (Namibia) (Pty) Ltd and Another 2016 (2) NR 363 (HC)
  • Disciplinary Committee for Legal Practitioners v Murorua and Another 2016 (2) NR 374 (SC)
  • Social Security Commission and Another v Coetzee 2016 (2) NR 388 (SC)
  • Helao Nafidi Town Council v Shivolo 2016 (2) NR 401 (HC)
  • Maletzky v President of the Republic of Namibia and Others 2016 (2) NR 420 (HC)
  • S v Puriza 2016 (2) NR 429 (HC)
  • S v Conradie and Another 2016 (2) NR 438 (HC)
  • Woker Freight Services (Pty) Ltd v Commissioner for Customs and Excise and Others 2016 (2) NR 450 (SC)
  • Uvanga v Steenkamp and Others 2016 (2) NR 465 (HC)
  • Standard Bank Namibia Ltd v Shipila (First National Bank Namibia Ltd and Others Intervening; The Ombudsman as Amicus Curiae) 2016 (2) NR 476 (HC)
  • Okorusu Fluorspar (Pty) Ltd v Tanaka Trading CC and Another 2016 (2) NR 486 (HC)
  • Von Weidts v Minister of Lands and Resettlement and Another 2016 (2) NR 500 (HC)
  • Buchholz NO and Another v Ewert and Others 2016 (2) NR 511 (HC)
  • Donatus v Ministry of Health and Social Welfare 2016 (2) NR 532 (HC)
  • S v Uirab 2016 (2) NR 543 (HC)
  • Witvlei Meat (Pty) Ltd v Agricultural Bank of Namibia 2016 (2) NR 547 (HC)
  • Janse van Rensburg v Wilderness Air Namibia (Pty) Ltd 2016 (2) NR 554 (SC)
  • Hangana Seafood (Pty) Ltd v Viringa 2016 (2) NR 582 (LC)
  • Mashahu and Others v Katima Mulilo Town Council and Others 2016 (2) NR 586 (HC)
  • Namrights Inc v Nicodemus and Others 2016 (2) NR 596 (LC)
  • LM v JM and Others 2016 (2) NR 603 (HC)

 

 FLYNOTES
 

HARTZENBERG v STANDARD BANK NAMIBIA LTD (SC)

DAMASEB DCJ, SMUTS JA and HOFF AJA
2015 OCTOBER 26; NOVEMBER 13

Practice - Judgments and orders—Reasons for judgment—Importance of—Parties have a right to reasons—Adjudication on appeal without reasons of court a quo rare—Appellant must demonstrate genuine attemp to obtain reasons and that none was given—Imperative to provide more detailed reasons greater if order appealable.

Prescription—Extinctive prescription—Application to amend counterclaim to introduce additional claims—Objection to amendment—Claims have become prescribed—Decisive question was whether new claims same or substantially same as those in original counterclaim for amended counterclaim to interrupt prescription—Differences in new claims such as to conclude that amended counterclaim would not interrupt prescription—Amended counterclaim could not resuscitate prescribed claims—Appeal dismissed.

MOOLMAN AND ANOTHER v JEANDRE DEVELOPMENT CC (SC)

DAMASEB DCJ, SMUTS JA and HOFF AJA
2015 NOVEMBER 5; DECEMBER 3

Practice - Pleadings—Purpose—Pleadings defining issues between parties—Party relying on illegality must plead illegality—Illegality of agreement emerging during trial—Enforcement of illegal agreement contrary to public policy—Court would not enforce illegal agreement.

Contract—Legality—Illegal contract—Par delictum rule—Relaxation appropriate to extent of unjust enrichment preventing manifest injustice and inequity between individuals—Relaxation may not amount to enforcing illegal agreement—Awarding interest prior to judgment amounting to enforcing illegal contract.

S v BOOIS AND OTHERS (HC)

SHIVUTE J and MASUKU AJ
2015 NOVEMBER 13
[2015] NAHCMD 275

Criminal procedure - Plea—Guilty—Invocation of s 112(1)(a) of Criminal Procedure Act 51 of 1977 for minor offence—Guilty plea on advice of legal practitioners accepted by state and court—Court could not subsequently invoke provisions of s 113 of Act—Court functus officio.

Criminal procedure - Presiding officer—Recusal of—Mero motu recusal—Must have reasonable basis in law, objectively speaking, for unilateral recusal.

S v NGHIXULIFA AND OTHERS (HC)

LIEBENBERG J
2015 OCTOBER 2; NOVEMBER 20
[2015] NAHCMD 282

Criminal procedure - Charge—Further particulars to charge—Not obliged to furnish particulars of evidence—State not required to give information it did not have—Particulars furnished must reasonably and fairly inform accused of case to be met—State must give information available and to be relied on.

LAICATTI TRADING CAPITAL INC AND OTHERS v GREENCOAL (NAMIBIA) (PTY) LTD AND ANOTHER (HC)

PARKER AJ
2015 NOVEMBER 2–3; 2016 FEBRUARY 22
[2016] NAHCMD 31

Company - Winding-up—Grounds—Just and equitable—There were no fixed grounds for concluding winding-up would be just and equitable—Domestic company in substance a partnership—Members owing each other duty of good faith—Total breakdown of trust between members—Winding-up of company on similar grounds as for dissolution of partnership—Provisional winding-up order granted—Section 349(h) of Companies Act 28 of 2004.

DISCIPLINARY COMMITTEE FOR LEGAL PRACTITIONERS v MURORUA AND ANOTHER (SC)

O’REGAN AJA, ZIYAMBI AJA and GARWE AJA
2014 OCTOBER 16; 2015 NOVEMBER 20

Appeal - Condonation—Late filing of notice of appeal—Appellant showing flagrant disregard for court rules—Non-compliance inexcusable—Court not considering prospects of success—Appeal struck from roll.

Legal practitioner - Misconduct—Mandate of Disciplinary Committee for Legal Practitioners—Disciplinary Committee must ensure legal practitioners act with integrity in carrying out professional tasks and discipline those failing to meet high standards—Important mandate central to administration of justice.

Legal practitioner - Misconduct—Removal from roll—Ethical responsibility of legal practitioners to behave honestly—Where legal practitioners do not act honestly, they will be guilty of unprofessional and dishonourable conduct that is unworthy of legal practitioner and will risk being struck off roll of legal practitioners.

SOCIAL SECURITY COMMISSION AND ANOTHER v COETZEE (SC)

SHIVUTE CJ, STRYDOM AJA and LANGA AJA
2011 JULY 12; 2016 FEBRUARY 19

Estoppel - Application of—Doctrine of estoppel finds no application when statutory time limits have not been adhered to—Effect of circumventing of statutory time limits—Reliance on estoppel failing.

Labour law - Employee—Employee’s compensation for injuries at workplace—Delegation of powers to consider claims—Interpretation of statutory delegation of powers—Strict interpretation mindful of administrative practicality—Employee’s Compensation Act 30 of 1941, s 108.

HELAO NAFIDI TOWN COUNCIL v SHIVOLO (HC)

DAMASEB JP
2013 MAY 20, 21; JULY 2; SEPTEMBER 24, 26; 2016 MARCH 8
[2016] NAHCMD 62

Practice - Trial—Absolution from the instance at close of plaintiff’s case—Refusal of—When plausible inference in favour of plaintiff’s cause of action existed which was destructive of defendant’s version—Court must accept truth of plaintiff’s evidence unless incurably and inherently improbable and unsatisfactory.

Local authority—Officers and employees—Fiduciary duty—Chief executive officer also chief accounting officer—Fiduciary duties arising from both statute and employment contract—Special relationship toward local authority—Implied duty on employee of statutory body to comply with prescripts of law—Officer not acting bona fide in interest of employer—Breach of fiduciary duties—Losses recoverable.

MALETZKY v PRESIDENT OF THE REPUBLIC OF NAMIBIA AND OTHERS (HC)

PARKER AJ
2015 OCTOBER 29; 2016 MARCH 3
[2016] NAHCMD 50

Practice - Rules of court—Purpose—Creation of procedural mechanisms regulating application and implementation of substantive law in legal proceedings—Purpose of High Court Rule 5—Protection of public against charlatans masquerading as legal practitioners and maintaining and enhancing effectiveness and integrity of judicial process and due administration of justice—Rule did not impact upon contractual freedom.

Constitutional law—Legislation—Validity—Unconstitutionality of High Court Rule 5 alleged—Onus of proof—Onus on person alleging invalidity to prove that rule not reasonably justifiable in democratic society.

Constitutional law—Fundamental rights—Discrimination—Rule applied to all persons who were cessionaries—Rule not discriminatory—Rule made for legitimate, rational, legal and social purposes—High Court Rule 5(1), 5(2)(a), (b), (c) and (d), 5(3) and 5(4) not unconstitutional.

S v PURIZA (HC)

LIEBENBERG J and SHIVUTE J
2015 DECEMBER 4; 2016 FEBRUARY 12
[2016] NAHCMD 19

Criminal procedure - General principles of liability—Accomplice—Liability of—Theft in presence of security guard—Legal duty on security guard of reporting theft—Duty same as that of police officer—Failure to perform such duty—Effect of associating with commission of offence—Guilty of theft.

Criminal procedure—Sentence—Theft—Theft by employee—Security guard in position of trust—Breach of trust serious and deserving of deterrent sentence.

S v CONRADIE AND ANOTHER (HC)

MASUKU J
2015 DECEMBER 1, 2; 2016 FEBRUARY 12
[2016] NAHCMD 24

Criminal procedure - Jurisdiction—Challenge to court’s jurisdiction—Tendering of plea mandatory—Issue of court’s jurisdiction must be pleaded before it could be considered—Criminal Procedure Act 51 of 1977, ss 105 and 106(1)(f)—Accused ordered to plead forthwith.

Criminal procedure - Charge—Quashing of—Charge fully informing accused of case against him—Quashing charge tantamount to refusal of affording state, who was dominus litis, basic procedural right of leading evidence in proving charge against accused—Quashing of charge refused.

WOKER FREIGHT SERVICES (PTY) LTD v COMMISSIONER FOR CUSTOMS AND EXCISE AND OTHERS (SC)

MAINGA JA, SMUTS JA and HOFF AJA
2016 MARCH 3; APRIL 6

Revenue - Customs and excise—Customs duty—Liability for—Legislature imposing liability for customs duty on wide variety of persons in definitions of importer and exporter—Appellant authorising use of its security bond by another agent for releasing from bonded storage goods destined for Angola—Goods never exported from Namibia—Appellant an exporter within definition of Customs and Excise Act 20 of 1998, s 1 and liable as such for custom duties in terms of s 18 of Act.

Revenue - Customs and excise—Clearing of goods—Meaning of—Meaning determined in statutory context—Clearing of goods meaning provision of security for payment of duties and meeting further conditions of Act—Customs and Excise Act 20 of 1998, s 17(3), 17(7) and 17(8).

UVANGA v STEENKAMP AND OTHERS (HC)

MASUKU AJ
2015 OCTOBER 5–8; NOVEMBER 13
[2015] NAHCMD 273

Practice - Parties—Locus standi—Legal interest—Plaintiff must prove legal right or recognised interest in proceedings.

Ownership - Movables—Common-law meaning and consequences of ownership—Third party registered owner of vehicle—Rebuttable by evidence of ownership at common law—Vehicle registration legislation not watering down or abrogating common-law meaning and consequences of ownership.

STANDARD BANK NAMIBIA LTD v SHIPILA (FIRST NATIONAL BANK NAMIBIA LTD AND OTHERS INTERVENING; THE OMBUDSMAN AS AMICUS CURIAE) (HC)

MILLER AJ
2015 MAY 22; NOVEMBER 19
[2015] NAHCMD 281

Practice - Judgments and orders—Order declaring property executable—Nulla bona return and application to court required to declare any property including mortgaged property executable prior to issue of writ—Purpose of judicial oversight—Protection of primary home owners and leases of homes where alternative reasonable manner of debt settlement possible—High Court Rules 108(1) and (2).

OKORUSU FLUORSPAR (PTY) LTD v TANAKA TRADING CC AND ANOTHER (HC)

MASUKU J
2015 SEPTEMBER 7, 8, 17; DECEMBER 7; 2016 FEBRUARY 5
[2016] NAHCMD 16

Practice - Trial—Absolution from the instance at close of plaintiff’s case—Court must bring own judgment to bear on evidence adduced—Court must establish, prima facie viewed, whether there was evidence relating to the elements of the claim.

Prescription - Extinctive prescription—Original particulars of claim interrupted prescription—Amendment not introducing new cause of action, merely expanding and fleshing out skeletal particulars of claim—Right of action same or substantially same as original claim—Special plea dismissed.

VON WEIDTS v MINISTER OF LANDS AND RESETTLEMENT AND ANOTHER (HC)

MASUKU J
2016 MARCH 17; APRIL 4
[2016] NAHCMD 92

Constitutional law - Legislation—Collateral challenge to constitutionality of statute—Challenge must be raised at commencement of proceedings—Imperative to join government functionary responsible for legislation from outset—Collateral challenge only raised after litigation finalised—Government functionary not joined—Application for leave to appeal dismissed.

Constitutional law - Legislation—Collateral challenge to constitutionality of statute—Challenge could only be raised in relation to coercive exercise of administrative power by public authority—Execution of eviction order sanctioned by court not exercise of administrative power by public authority—Collateral challenge inappropriate.

Court - Abuse of process—Duplication of proceedings—Litigation on all issues at once and not in piecemeal or truncated fashion which resultantly called on other party to be dragged to court time and again on same matter—Proliferation of proceedings has deleterious consequences on use of court time.

BUCHHOLZ NO AND ANOTHER v EWERT AND OTHERS (HC)

PARKER AJ
2016 JANUARY 19; FEBRUARY 25
[2016] NAHCMD 37

Sale - Land—Agricultural land—Land Reform Act providing that agricultural land first be offered to state—State had preferential right of first refusal of acquiring all agricultural land—Land only to be sold if state issued waiver—Sale of land in contravention of Agricultural (Commercial) Land Reform Act 6 of 1995 (as amended), s 17(1) void and unenforceable.

HKL v MML (SC)

SHIVUTE CJ, DAMASEB DCJ and SMUTS JA
2016 MARCH 29; APRIL 19

Appeal - Condonation—Non-compliance with Rules of Court—Violation of most rules—Cumulative effect of glaring, inexplicable and flagrant disregard of rules compounded by dishonesty—Court would not consider prospects of success.

Appeal - Condonation—Non-compliance with Rules of Court—Failure of legal practitioners to comply with rules—Limit beyond which litigant could not escape practitioner’s lack of diligence and insufficiency of explanation—Application for condonation and reinstatement dismissed.

CITY OF WINDHOEK v KATUUO AND OTHERS (LC)

PARKER AJ
2016 JANUARY 29; MARCH 17
[2016] NALCMD 11

Labour law - Unfair labour practice—What constitutes—Practices under s 50(1) of Labour Act 11 of 2007—Failure to identify section in Act—Gross irregularity—Arbitrator’s award set aside.

Labour law - Labour dispute—Dispute about new terms and conditions of agreement—Dispute of interest—Arbitrator had no jurisdiction to conduct arbitration.

DONATUS v MINISTRY OF HEALTH AND SOCIAL WELFARE (HC)

MASUKU J
2016 FEBRUARY 10; MARCH 2
[2016] NAHCMD 49

Practice - Discovery and inspection—Duty of making discovery—Non-compliance with court order serious—Sanctions prescribed in High Court Rules—Consideration of various factors in exercise of discretion—Fair and appropriate sanction required—High Court Rules 28(8) and 53.

Practice - Discovery and inspection—Duty of making discovery—Failure to make full discovery—Striking of defence—Grave and serious sanction—Effectively excluding party from participating in proceeding—Good practice, propriety and fairness requiring notice of application for striking of defence.

S v UIRAB (HC)

LIEBENBERG J
2016 APRIL 1, 6
[2016] NAHCMD 96

Criminal procedure - Mental state of accused—Capacity—Enquiry into mental capacity—Appointment of two psychiatrists not obligatory but justified when accused faced serious charges which could attract lengthy custodial sentences—Appointment of more than one psychiatrist within court’s discretion—Criminal Procedure Act 51 of 1977, s 79(1)(b).

WITVLEI MEAT (PTY) LTD v AGRICULTURAL BANK OF NAMIBIA (HC)

PARKER AJ
2016 FEBRUARY 10; APRIL 7
[2016] NAHCMD 97

Spoliation - Mandament van spolie—When available—Deputy sheriff changing locks on premises and chasing applicant’s security guards and employees away—Deputy sheriff acting as respondent’s agent without court order—Respondent illicitly depriving applicant of its peaceful and undisturbed possession—Maintenance of law and order greater than right to recover possession of property—Spoliation order granted.

JANSE VAN RENSBURG v WILDERNESS AIR NAMIBIA (PTY) LTD (SC)

SHIVUTE CJ, SMUTS JA and O’REGAN AJA
2015 NOVEMBER 4 2016 APRIL 11

Labour Court - Appeals from—Questions of law alone—What constitutes—When decision was asserted as perverse or when fairness of decision questioned—Test exacting—Whether decision of arbitrator was one that no reasonable decision-maker could have reached—Where question of fairness was one where law required one answer and arbitrator had erred or when arbitrator made decision formulating legal test or rule which was asserted as wrong in law—Appeals would lie against those decisions being questions of law—Labour Act 11 of 2007, s 89(1)(a).

HANGANA SEAFOOD (PTY) LTD v VIRINGA (LC)

PARKER AJ
2015 OCTOBER 30; DECEMBER 3
[2015] NALCMD 27

Labour law - Dismissal—Fairness of—Domestic disciplinary body—Duty of acting procedurally fairly, of discharging duties honestly, impartially and in good faith—Domestic disciplinary body not court of law and not bound by rules of evidence.

Labour law—Dismissal—Fairness of—Domestic disciplinary body—Fair reason—Test whether dismissal for fair reason—If reasonable employer might reasonably have dismissed employee—Employee in breach of duty of acting honestly—Breach material and went to root of employment contract—Dismissal fair.

MASHAHU AND OTHERS v KATIMA MULILO TOWN COUNCIL AND OTHERS (HC)

MASUKU AJ
2015 OCTOBER 28; NOVEMBER 18
[2015] NAHCMD 284

Land - Communal land—Customary land rights—Proof of existence of customary land rights—Identification of allocated right in terms of Communal Land Reform Act 5 of 2002, s 21 required—Failing to identify category of allocated right—Failing to disclose prima facie right to relief sought—Interim interdict refused.

NAMRIGHTS INC v NICODEMUS AND OTHERS (LC)

MILLER AJ
2014 OCTOBER 3; 2015 OCTOBER 2
[2015] NALCMD 23

Immigration - Employment permits—Required to regulate and control presence of non-Namibians and reservation of employment for Namibians—Refugee required to hold employment permit unless exempted in terms of s 35 of Immigration Control Act 7 of 1993.

Labour law - Contract of employment—Contract in contravention of laws of Namibia—Refugee working without work permit—Dismissal fair—Monetary claims unenforceable—Contract illegal and unenforceable—Contravention of ss 24 and 27 of Immigration Control Act 7 of 1993.

LM v JM AND OTHERS (HC)

MILLER AJ
2015 JUNE 2–6; AUGUST 5
[2015] NAHCMD 181

Partnership - Universal partnership—Tacit agreement—Evidence required for manifestation of conduct consistent with universal partnership—Court must be satisfied that it was more probable than not that agreement came into existence.

Customary law - Customary marriage—Dissolution of—Annulment in terms of customary law—Constitutionality of customary law—Evidence required to establish customary law and to establish unconstitutionality of customary law.

Customary law - Community court—Enforcement of order—Procedures for enforcement prescribed in s 23 of Community Courts Act 10 of 2003.

 

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