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September 2013

Dear South African Law Reports and Criminal Law Reports subscriber

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

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

SOUTH AFRICAN LAW REPORTS

Exercising the right to acquire marketable security and simulation

The Western Cape High Court considers whether gains made by taxpayers who participated in their employer's  deferred delivery share incentive scheme, constituted taxable gains for the purposes of s 8A of Income Tax Act 58 of 1962. The court also considers the much debated effect that the decision in Commissioner for the South African Revenue Service v NWK Ltd 2011 (2) SA 67 (SCA) ([2011] All SA 347; [2010] ZASCA 168) has on the well-established common-law principles for simulation. Bosch and Another v Commissioner, South African Revenue Service 2013 (5) SA 130 (WCC).

Insurance law: whether non-owner has insurable interest in fishing vessel

In this case Lorcom Thirteen (Pty) Ltd was the 100 % shareholder in Gansbaai Fishing Wholesalers (Pty) Ltd, which owned the Buccaneer, a fishing boat. Lorcom had the right to use the boat and also an expectation of becoming its owner. Lorcom was also the insured under a contract of insurance with Zurich Insurance Company South Africa Ltd, which provided for the payment of R3 million in the event of the total loss of the Buccaneer. The R3 million was the market value of the vessel. The Buccaneer was lost and Lorcom claimed under the policy, but Zurich repudiated the claim and this led Lorcom to sue. In issue was whether Lorcom has an insurable interest in the Buccaneer to the extent of its market value.  See Lorcom Thirteen (Pty) Ltd v Zurich Insurance Company South Africa Ltd 2013 (5) SA 42 (WCC).

High-handed official rebuked for abuse of power

The Supreme Court of Appeal issued a warning to government officials who abused their powers that costs orders de bonis propriis would be made against them, in particular where they attempted to interfere in litigation initiated against them. The court’s ire was provoked by the conduct of the MEC for Economic Development, Gauteng, who had, on a pretext, dissolved the provincial gambling board when it refused to accede to her wish that it accommodate a third party of her choosing in its building, and had subsequently attempted to meddle in the litigation instituted by the board. A costs order on attorney and client scale was made against her. See Gauteng Gambling Board and Another v MEC for Economic Development, Gauteng 2013 (5) SA 24 (SCA).

SOUTH AFRICAN CRIMINAL LAW REPORTS

Rape committed on elderly and children equally egregious

In imposing a term of life imprisonment for the rape of an 82-year-old woman, the court held that children and elderly people were both vulnerable members of society. They were soft targets for criminals and required, expected and deserved equal protection from the courts, and that this should be reflected in sentences imposed for the rape of such people. S v Tuswa 2013 (2) SACR 269 (KZP)

Misappropriation of social grant payments by clerk deserving of imprisonment

The court held that the notion that the perpetrators of white-collar crime did not deserve imprisonment was incorrect.  Despite being a first offender, it was considered that the interests of society far outweighed the appellant’s interests and those of her family. The appeal succeeded to the extent that the period of imprisonment was reduced to four years’ imprisonment.  S v Piater 2013 (2) SACR 254 (GNP)

Gambling addiction no excuse for repeat offender

Appellant was convicted of the theft of a large amount of money from her employer and was sentenced to 15 years’ imprisonment. She had on two previous occasions been convicted for similar offences. In confirming her sentence the court held that her addiction did not constitute a ‘substantial and compelling circumstance’ and that the matter was clearly one in which the nature of the crime and interests of society had to carry a substantial amount of weight. S v Wiggil 2013 (2) SACR 246 (ECG)


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SOUTH AFRICAN LAW REPORTS

SEPTEMBER 2013

TABLE OF CASES

  • North East Finance (Pty) Ltd v Standard Bank of South Africa Ltd 2013 (5) SA 1 (SCA)

  • Hua Qiang, MV 2013 (5) SA 12 (KZD)

  • Kalahari Mining Logistics and Others v Wilest International: MV Hua Qiang 2013 (5) SA 12 (KZD)

  • Gauteng Gambling Board and Another v MEC for Economic Development, Gauteng 2013 (5) SA 24 (SCA)

  • Lorcom Thirteen (Pty) Ltd v Zurich Insurance Company South Africa Ltd 2013 (5) SA 42 (WCC)

  • Van Zyl and Others NNO v The Master, Western Cape High Court, and Another 2013 (5) SA 71 (WCC)

  • Leadtrain Assessments (Pty) Ltd and Others v Leadtrain (Pty) Ltd and Others 2013 (5) SA 84 (SCA)

  • Mukaddam v Pioneer Foods (Pty) Ltd and Others 2013 (5) SA 89 (CC)

  • Hubbard v Cool Ideas 1186 CC 2013 (5) SA 112 (SCA)

  • Bosch and Another v Commissioner, South African Revenue Service 2013 (5) SA 130 (WCC)

  • BDE Construction v Basfour 3581 (Pty) Ltd 2013 (5) SA 160 (KZP)

  • Livanos NO and Others v Oates and Others 2013 (5) SA 165 (GSJ)

  • Absa Bank Ltd v Janse van Rensburg and Another 2013 (5) SA 173 (WCC)

  • Cape Empowerment Trust Ltd v Fisher Hoffman Sithole 2013 (5) SA 183 (SCA)

  • Absa Bank Ltd v Morrison and Others 2013 (5) SA 199 (GSJ)

  • Uniting Reformed Church, De Doorns v President of the Republic of South Africa and Others 2013 (5) SA 205 (WCC)

  • Rabie v De Wit 2013 (5) SA 219 (WCC)

  • Pithey v Road Accident Fund 2013 (5) SA 226 (GNP)

  • FirstRand Bank Ltd t/a Wesbank v Manhattan Operations (Pty) Ltd and Others 2013 (5) SA 238 (GSJ)

  • Liebenberg NO and Others v Bergrivier Municipality 2013 (5) SA 246 (CC)

  • Nulandis (Pty) Ltd v Minister of Finance and Another 2013 (5) SA 294 (KZP)

  • Rabinowitz v Van Graan and Others 2013 (5) SA 315 (GSJ)

FLYNOTES

NORTH EAST FINANCE (PTY) LTD v STANDARD BANK OF SOUTH AFRICA LTD (SCA)

LEWIS JA, PONNAN JA, SHONGWE JA, SALDULKER JA and ZONDI AJA

2013 MAY 20, 29

Arbitration—Arbitration agreement—Arbitration clause—Enforceability—Contract containing clause invalid—Although general rule being that arbitration clause not surviving in such cases, parties may agree that dispute regarding validity/enforceability of contract may nevertheless be determined by arbitration, provided that parties foresaw possibility of such dispute arising.

Contract—Interpretation—Contract must be interpreted by determining the parties’ intention having regard to context and its purpose—Commercially sensible meaning to be attributed.


MV HUA QIANG

KALAHARI MINING LOGISTICS AND OTHERS v WILEST INTERNATIONAL (KZD)

MULLINS AJ

2013 MARCH 25; MAY 30

Shipping—Admiralty law—Maritime claim—Action in rem—Arrest—Cargo arrest—Vindicatory claim by owner of cargo—Vindicatory action in rem restricted to action in respect of ship—Not available as means of vindicating cargo—Admiralty Jurisdiction Regulation Act 105 of 1983, s 3(5).


GAUTENG GAMBLING BOARD AND ANOTHER v MEC FOR ECONOMIC DEVELOPMENT, GAUTENG (SCA)

NAVSA JA, LEACH JA, WILLIS AJA, SWAIN AJA and SALDULKER AJA

2013 MAY 9, 27

Constitutional law—Constitution—Foundational values—Rule of law—Judicial control of exercise of public power—Public officials may exercise no power and perform no function beyond those conferred on them by law—Official’s action motivated by ulterior purpose—Decision set aside.

Costs—Costs de bonis propriis—When to be awarded—Against public official—Official exercising public power motivated by ulterior purpose—Court setting aside decision in question and criticising official’s high-handed behaviour, in particular her attempts to thwart litigation once it had already begun—Courts should in future seriously consider holding such officials personally liable for costs.


LORCOM THIRTEEN (PTY) LTD v ZURICH INSURANCE COMPANY SOUTH AFRICA LTD (WCC)

ROGERS J

2013 APRIL 8, 9, 29

Insurance—Generally—Applicable legal principles—Insurable interest—What constitutes—Shareholder’s 100% shareholding in company owning boat, coupled with shareholder’s right to use boat and its expectation of becoming its owner, constituting interest sufficient to render enforceable contract of insurance for payment of vessel’s market value on its loss.


VAN ZYL AND OTHERS NNO v THE MASTER, WESTERN CAPE HIGH COURT, AND ANOTHER (WCC)

BOZALEK J

2013 APRIL 5

Insolvency—Creditors—Concursus creditorum—Principle that creditor may not, after concursus creditorum, improve his position to detriment of other creditors—Claim based on transaction requiring treasury approval—Absence of approval not rendering claim void—Intervention of concursus not disturbing such state of affairs—Ex post facto approval not constituting interference with position obtaining at concursus—To hold otherwise would deliver windfall advantage to competing creditors.

LEADTRAIN ASSESSMENTS (PTY) LTD AND OTHERS v LEADTRAIN (PTY) LTD AND OTHERS (SCA)

NUGENT JA, PONNAN JA, TSHIQI JA, SWAIN AJA and SALDULKER AJA

2013 MARCH 11, 28

Arbitration—Award—Remittal—Ambit—Remittal distinguished from review—Good cause for remittal will exist only if arbitrator failed to deal with issue in arbitration—Once issue addressed and decided, little room for remittal—Something more than mere error (or misdirection) required for good cause to exist—No reason why award of costs should be treated any differently to any other aspect of award—Arbitration Act 42 of 1965, s 32(2).


MUKADDAM v PIONEER FOODS (PTY) LTD AND OTHERS (CC)

MOSENEKE DCJ, BOSIELO AJ, FRONEMAN J, JAFTA J, KHAMPEPE J, MHLANTLA AJ, NKABINDE J, SKWEYIYA J and ZONDO J

2013 MAY 7; JUNE 27

Practice—Class action—Certification—Court to certify class action if in interests of justice to do so—Guidelines to apply to determine where interests of justice lie are: whether class has identifiable members; whether cause of action raising triable issue; whether common issues of fact or law; and whether suitable class representative—Guidelines non-exhaustive and not conditions precedent or jurisdictional facts.

Practice—Class action—Discretion to certify—Interference with by appeal court—Appeal court may interfere with lower court’s exercise of discretion to certify where lower court did not act judicially, or where it based exercise of its discretion on wrong principle of law or on misdirection of fact.

Practice—Class action—Section 38 class action—Quaere: whether certification required—Constitution, s 38.


HUBBARD v COOL IDEAS 1186 CC (SCA)

NAVSA JA, PONNAN JA, THERON JA, WILLIS AJA and MBHA AJA

2013 MAY 10, 28

Housing—Consumer protection—Unregistered builder—Contract between consumer (home buyer) and unregistered builder valid—But builder not entitled to consideration, even in face of arbitration award in his favour—Court precluded from entering judgment in favour of unregistered home builder in application for arbitration award to be made order of court—Housing Consumers Protection Measures Act 95 of 1998, s 10.


BOSCH AND ANOTHER v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICEE (WCC)

DAVIS J, WAGLAY J and BAARTMAN J

2012 JULY 27; NOVEMBER 20

Contract—Consensus—Simulation—Test—Supreme Court of Appeal’s decision in NWK case discussed—Intention in NWK not to depart from well-established common-law principles regarding simulation but to direct enquiry to whether transaction making commercial sense—In present case terms of agreement revealing clear commercial purpose—No simulation established.

Revenue—Income tax—Income—Gains made by exercising right to acquire marketable security—Employees granted options to purchase shares payable against deferred delivery, subject to agreed terms—Whether scheme conferred unconditional entitlement to acquire shares upon exercising option, or only upon deferred delivery—Income Tax Act 58 of 1962, s 8A.


BDE CONSTRUCTION v BASFOUR 3581 (PTY) LTD (KZP)

SWAIN J

2012 AUGUST 13, 31

Arbitration—Stay of legal proceedings—Party instituting proceedings seeking stay to pursue claim by way of arbitration—Since proceedings instituted in breach of arbitration agreement, innocent party faced with election whether or not to seek stay of proceedings—If electing not to seek stay, then condoning guilty party’s breach and guilty party not obliged to withdraw proceedings before referring dispute to arbitration.


LIVANOS NO AND OTHERS v OATES AND OTHERS (GSJ)

WEPENER J

2012 MARCH 1, 14

Close corporation—Members—Deceased member—Disposal of interest of deceased member—Sale to non-member—Rights of remaining members—Whether entitled to block sale to non-member on ground of willingness to purchase deceased’s interest at fair market value—Remaining member failing to take up his pre-emptive right to match non-member’s offer—Sale to non-member becoming effective—No warrant for incorporating requirement of fair market value—Close Corporations Act s 35(b)(iii) read with s 34(2).


ABSA BANK LTD v JANSE VAN RENSBURG AND ANOTHER (WCC)

GRIESEL J, FOURIE J and SALDANHA

2012 NOVEMBER 30; DECEMBER 24

Practice—Applications and motions—Summary or default judgment based on simple summons—Practice of handing in (as matter of course) original documents action is founded on—Such practice having fallen into disuse, and plaintiff no longer required to do so unless called for by presiding judge.

Practice—Judgments and orders—Default judgment—Consumer credit agreement—Confirmatory affidavit required by Western Cape Consolidated practice note 33(2)—Semble: Such affidavit should be concise and confirm rather than repeat relevant allegations already made in summons or particulars of claim—Also, it should not have as annexures copies of any document already annexed to summons or particulars of claim.

Practice—Summons—Simple summons—Where cause of action based on written agreement or documents—Plaintiff required to annex copies thereof, or such portions thereof relied upon—In present cases, where actions based on mortgage loans and suretyship agreements, copies of underlying credit agreements, mortgage bonds and suretyship agreements were to be annexed to simple summons.


CAPE EMPOWERMENT TRUST LTD v FISHER HOFFMAN SITHOLE (SCA)

BRAND JA, MAYA JA, CACHALIA JA, SHONGWE JA and SWAIN AJA

2013 FEBRUARY 28; MARCH 20

Delict—Specific forms—Pure economic loss—Negligent misstatement by auditor—Buyer of business asking seller’s auditor to certify business’ profit—Seller’s auditor certifying profit when there was none—Misstatement causing buyer to enter into transaction and to allegedly incur wasted expenses—Misstatement grossly negligent and factual cause of loss but not its legal cause nor wrongful.

Delict—Elements—Unlawfulness or wrongfulness—Policy considerations to be used in determining wrongfulness—Degree of negligence not such consideration.


ABSA BANK LTD v MORRISON AND OTHERS (GSJ)

SPILG J

2012 JUNE 14; 2013 MARCH 28

Execution—Sale in execution—Immovable property—Setting aside of—Sale may be set aside where debtor has settled what it owes to creditor in full but where creditor in error has failed to instruct sheriff to stop sale.


UNITING REFORMED CHURCH, DE DOORNS v PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS (WCC)

ZONDI J

2012 MAY 31; DECEMBER 14

Contract—Legality—Contracts contrary to public policy—Specific instances—Unequal bargaining power—Notarial lease agreement between church as tenant and state as landlord providing that at termination of lease property to be transferred to state free of charge—Tenant at time of contracting in weak bargaining position compared to state—Effect of inequality in bargaining position harmful to public interest—Contract unconstitutional and unenforceable.

Constitutional law—Human rights—Right to property—Right not to be arbitrarily deprived of property—Notarial lease agreement between church (as tenant) and state (as landlord) providing that at termination of lease property to be transferred to state free of charge—Clause contrary to constitutional right to property and unenforceable—Constitution, s 25.


RABIE v DE WITT (WCC)

GRIESEL J and NYMAN AJ

2013 FEBRUARY 22, 26

Magistrates’ court—Civil proceedings—Practice—Pleadings—Summons—Rule requiring combined summons to conform in all respects to specimen—Rule to be read flexibly—Magistrates’ Courts Rule 1(4)(a).

Magistrates’ court—Civil proceedings—Practice—Pleadings—Summons—Annexures—Pages of annexures to summons need not be numbered—Magistrates’ Courts Rules.


PITHEY v ROAD ACCIDENT FUND (GNP)

BERTELSMANN J, PRELLER J and MABUSE J

2012 AUGUST 10

Motor vehicle accident—Compensation—Claim against Road Accident Fund—Sufficiency of information furnished in claim form—Essential that claimant specify whether identity of owner/driver of insured vehicle established or not—Provision of incorrect information in this regard fatal to claim—Road Accident Fund Act 56 of 1996, s 17(1)(a) and (b).


FIRSTRAND BANK LTD t/a WESBANK v MANHATTAN OPERATIONS (PTY) LTD AND OTHERS (GSJ)

MOLAHLEHI AJ

2013 FEBRUARY 23; APRIL 18

Discovery and inspection—Production of documents—Production of specific document required for pleading—Discretion of court to order—Application proceedings—Court may direct production of such document in applications only in exceptional circumstances, and if warranted by considerations of fairness, equity and transparency—Uniform Rules, rule 35(14) read with rule 35(13).


LIEBENBERG NO AND OTHERS v BERGRIVIER MUNICIPALITY (CC)

MOGOENG CJ, MOSENEKE DCJ, FRONEMAN J, JAFTA J, KHAMPEPE J, NKABINDE J, SKWEYIYA J, ZONDO J and MHLANTLA AJ

2013 MARCH 12; JUNE 6

Local authority—Rates—Ratepayers—Non-payment—Ratepayers withholding payment on basis that rates not lawfully and/or validly imposed—Semble: Culture of non-payment for municipal services having no place in a constitutional state in which rights of all persons guaranteed and all have access to courts to protect their rights.

Local authority—Rates—Imposition—Legality—Compliance with statutory requirements—Failure by local authority to comply not necessarily rendering impugned actions invalidCorrect approach to establish whether there had been substantial compliance, taking into account relevant statutory provisions in particular and legislative scheme as whole.

Local authority—Rates—Imposition—Levying and recovery—Transitional arrangements—Levying and recovery under Local Government Transition Act 209 of 1993, s 10G(7)—Whether Transition Act surviving enactment of Local Government: Municipal Property Rates Act 6 of 2004—Transitional arrangements in s 88(1) of Rates Act extending operation of Transition Act for period contemplated in s 89(3) of Rates Act.


NULANDIS (PTY) LTD v MINISTER OF FINANCE AND ANOTHER (KZP)

D PILLAY J

2013 FEBRUARY 20; MAY 24

Company—Register of companies—Company failing to file return and being deregistered and dissolved—Only Companies and Intellectual Property Commission having power to reinstate company to register—Commission’s power limited to reinstating companies deregistered under s 82(3)—Reinstatement voiding dissolution—Companies Act 71 of 2008, ss 82(3), 82(4) and 83(1).

Company—Register of companies—Company failing to file return and being deregistered and dissolved—Court having power to void dissolution, but not to order restoration to register—Section giving court wide discretion—Companies Act 71 of 2008, s 83(4)(a).

Company—Register of companies—Company failing to file return and being deregistered and dissolved—Proprietary effect of—Company’s assets becoming bona vacantia and vesting in state—If court voids dissolution then deregistered company exists as an association of its members and company’s assets revert from state to association.


RABINOWITZ v VAN GRAAN AND OTHERS (GSJ)

DU PLESSIS AJ

2013 APRIL 26

Company—Directors and officers—Director—Liability for acquiescence in fraudulent or reckless trading by company—Court must declare such director delinquent and hence disqualifying him from directorship—Third party may hold director personally liable for acquiescing in reckless, grossly negligent or fraudulent conduct of company business—Companies Act 71 of 2008, s 22(1) read with s 77(3)(b), s 162(5)(c)(iv)(bb) and s 218(2).

Costs—Party and party costs—Application for amendment of pleading—Object of costs award is to reimburse party for costs to which he was wrongly put—Bona fide amendment of pleading with object of ventilating real issues between parties should be allowed—Party choosing to contest amendment expected to decide at own risk whether or not to oppose amendment.


SOUTH AFRICAN CRIMINAL LAW REPORTS

SEPTEMBER 2013

TABLE OF CASES

  • S v Nabolisa 2013 (2) SACR 221 (CC)

  • S v Wiggil 2013 (2) SACR 246 (ECG)

  • S v Piater 2013 (2) SACR 254 (GNP)

  • S v Tuswa 2013 (2) SACR 269 (KZP)

  • S v Tladi 2013 (2) SACR 287 (SCA)

  • S v SMM 2013 (2) SACR 292 (SCA)

  • S v CKM and Others 2013 (2) SACR 303 (GNP)

  • S v CS 2013 (2) SACR 323 (ECG)

FLYNOTES

S v NABOLISA (CC)

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

2013 MARCH 7; JUNE 12

Sentence—Increase of on appeal—Lack of cross-appeal by state—Section 316B creating peremptory statutory requirement of cross-appeal—In absence of cross-appeal against sentence by state, Supreme Court of Appeal lacking jurisdiction to increase sentence on appeal.


S v WIGGIL (ECG)

GRIFFITHS J and HARTLE J

2012 AUGUST 29; NOVEMBER 21

Theft—Sentence—Theft of large amount of money from employer—Accused having two previous convictions for similar offences and present offences committed during period of suspension of earlier sentence—Nature of crime and interests of society carrying substantial amount of weight—Sentence of 15 years’ imprisonment upheld.

Sentence—Imposition of—Mitigating circumstances—Accused’s gambling addiction—This factor not of its own constituting ‘substantial and compelling circumstances’ for imposition of lesser sentence in terms of Criminal Law Amendment Act 105 of 1997.

Sentence—Imprisonment—Parole—Magistrate attempting to ameliorate sentence by ordering two-thirds non-parole period—Because of amendment of s 73 of Correctional Services Act 111 of 1998 opposite effect achieved.


S v PIATER (GNP)

MAKGOKA J and BOSMAN J

2012 MARCH 26; DECEMBER 7

Sentence—White-collar crime—Theft of social grant payments—Accused in position of trust—Custodial sentence required.

Sentence—Imposition of—Factors to be taken into account—Where convicted person primary caregiver of minor children—Fraud—Court’s obligations in terms of ss 28(1)(b) and 28(2) of Constitution set out—Custodial sentence in circumstances of case would not compromise interests of children.

Sentence—Imposition of—Evidence on sentence—Submissions made from bar—In order to receive greater weight they must be admitted by representative of state, or accepted as fact by court—They cannot simply be ignored by court—Where court not prepared to accept facts stated, this to be brought to attention of accused’s legal representative.

Fraud—Sentence—White-collar crime—Accused convicted of large-scale theft of social grant money—Accused in position of trust—Although appellant had minor children, lengthy custodial sentence needed to be imposed.


S v TUSWA (KZP)

STRETCH AJ

2012 NOVEMBER 9, 12, 16

Rape—Charge—Prosecution relying on infliction of grievous bodily harm in order to seek imposition of life imprisonment in terms of s 51, read with sch 2, of Criminal Law Amendment Act 105 of 1997—Accused to be informed thereof before pleading—Charge should explicitly inform accused that prosecution alleging rape involved infliction of grievous bodily harm.

Rape—Sentence—Infliction of grievous bodily harm—Part 1 of sch 2 to Criminal Law Amendment Act 105 of 1997—Life imprisonment—Not necessary for court to find that accused had intention to cause grievous bodily harm—Nor is it required that there be two sets of injuries, namely those inflicted during act of sexual intercourse normally in area of genitalia and those inflicted on other parts of body and with something other than body part of accused.

Rape—Sentence—Infliction of grievous bodily harm—Part 1 of sch 2 to Criminal Law Amendment Act 105 of 1997—Life imprisonment—Words ‘involving’ and ‘grievous’ in part 1 of sch 2—Word ‘involving’ meaning including something as necessary part or result of activity of raping complainant—And word ‘grievous’ meaning serious, not trivial or insignificant, injury—Whether injury serious will depend on facts and circumstances of case.

Rape—Sentence—Factors to be taken into account—Rape committed on elderly people and children—Such people vulnerable members of society and require, expect and deserve equal protection of courts—Such need to be reflected in sentences for rape of such people.


S v TLADI (SCA)

MAYA JA, TSHIQI JA, PILLAY JA, MBHA AJA and SALDULKER AJA

2013 MAY 23, 31

Rape—Elements of—Repeated acts of penetration—Insufficient interruption in sexual intercourse and sexual acts closely linked, amounting to single continuing course of conduct.


S v SMM (SCA)

MTHIYANE DP, CACHALIA JA, MAJIEDT JA, ERASMUS AJA and SALDULKER AJA

2013 MARCH 5; MAY 9

Sentence—Prescribed sentences—Minimum sentences—Rape—Criminal Law Amendment Act 105 of 1997, s 51—‘Substantial and compelling circumstances’ justifying imposition of sentence less than prescribed minimum—Provision in s 51(3)(aA)(ii) that ‘an apparent lack of physical injury to the complainant’ not be regarded as ‘substantial and compelling circumstance’, capable of interpretation that would not render it unconstitutional.


S v CKM AND OTHERS (GNP)

BERTELSMANN J and TOLMAY J

2011 NOVEMBER 23; 2012 JANUARY 19

Juvenile offenders—Sentence—Committal to child and youth centre—When appropriate—Although cases concluded prior to coming into operation of Children’s Act 38 2005, constitutional principles ought to have been taken into account, and nature of offences and children’s need for care ought not to have resulted in sentence of committal to reform school.

Juvenile offenders—Sentence—Committal to child and youth centre—Child absconding from—Administrative order detaining children in awaiting-trial facility unlawful where no charge pending against child.


S v CS (ECG)

REVELAS J and ROBERSON J

2013 APRIL 24

Juvenile offenders—Sentence—Committal to child and youth centre—Appeal against order—Where matter had already been sent on review where question was whether matter subject to review—Proceedings in magistrates’ court still subject to appeal.

Juvenile offenders—Sentence—Committal to child and youth centre—When appropriate—First offender—Offences not very serious—Committal inappropriate.

Juvenile offenders—Sentence—Committal to child and youth centre—When appropriate—Second-to-last sentencing option contained in Criminal Justice Act 75 of 2008, last being imprisonment.


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