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August 2013

Dear South African Law Reports and Criminal Law Reports subscriber

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

Further below are the table of cases and flynotes of the Namibian Law Reports 2013(2), which is now available.

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

SOUTH AFRICAN LAW REPORTS

Court develops Tsonga customary law

The Constitutional Court developed Tsonga customary law to include the rule that the husband must obtain the first wife’s consent in order to enter into a further marriage, and that failure to do so will result in invalidity of further marriage. MM v MN and Another 2013 (4) SA 415 (CC)

Huur gaat voor koop

It is the occupation of the leased premises that confers on the tenant the protection of a real right afforded by the huur gaat voor koop rule. The rule is not applicable to short-term leases where the tenant has abandoned possession of the premises, unless the purchaser had prior knowledge of the lease. Metcash Seven Eleven (Pty) Ltd v Pollev Property Holding and Investment CC 2013 (4) SA 506 (GSJ)

Public interest v Cancer drug patent

An interdict was sought to prevent a cheaper generic cancer drug from infringing a patent. Raised against the granting of the interdict were the constitutional right to healthcare and also the public interest. The court conducts a wide-ranging examination of all the issues. Cipla Medpro (Pty) Ltd v Aventis Pharma SA and Related Appeal  2013 (4) SA 579 (SCA)

SOUTH AFRICAN CRIMINAL LAW REPORTS

Long-term imprisonment for parents who murdered their baby

The parents were convicted of the murder of their two-month-old baby who had been cruelly tortured over period of two weeks. Despite having had dismal childhoods, and having been in dire straits when the baby was born, the mother was sentenced to 10 years’ imprisonment and the father to 12 years’ imprisonment. S v Rudman and Another 2013 (2) SACR 209 (GNP)

Father grooming adopted daughter over time guilty of rape

The court found that the daughter had been induced by threats and rewards over a long period to have regular sexual intercourse with the adoptive father. Despite not displaying any particular conduct indicating a lack of consent, the court found that there was a lack of real consent to the acts. S v SM 2013 (2) SACR 111 (SCA)

Collateral harm for criminal's children not a barrier to jail term

Incarceration causing collateral harm for the criminal’s children was not considered by the court sufficient to render a sentence inappropriate when incarceration would otherwise have been appropriate. S v Chetty 2013 (2) SACR 142 (SCA)

All prisoners eligible for parole after 25 years

The appellant was sentenced to a total of 275 years’ imprisonment. He contended that, as he would only be considered for parole once he had served half of his sentence, this amounted to a cruel, inhuman and degrading punishment. The right to parole, whether the prisoner was sentenced to a determinate sentence, or to life imprisonment, was held to be the same. Accordingly, the appellant was entitled to be considered for parole once he had served 25 years of his term of imprisonment. S v Mafoho 2013 (2) SACR 179 (SCA)

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SOUTH AFRICAN LAW REPORTS

TABLE OF CASES

  • City of Tshwane Metropolitan Municipality v Mathabathe and Another 2013 (4) SA 319 (SCA)

  • Valuline CC and Others v Minister of Labour and Others 2013 (4) SA 326 (KZP)

  • SJ v CJ 2013 (4) SA 350 (GSJ)

  • Nedbank Ltd v Cooper NO and Others 2013 (4) SA 353 (FB)

  • Casey and Another v First National Bank Ltd 2013 (4) SA 370 (GSJ)

  • NM v Presiding Officer of Children’s Court, Krugersdorp, and Others 2013 (4) SA 379 (GSJ)

  • YG v Executor, Estate Late CGM 2013 (4) SA 387 (WCC)

  • Gainsford and Others NNO v Tanzer Transport (Pty) Ltd 2013 (4) SA 394 (GSJ)

  • MM v MN and Another 2013 (4) SA 415 (CC)

  • Minister of Mineral Resources and Others v Sishen Iron Ore Co (Pty) Ltd and Others 2013 (4) SA 461 (SCA)

  • Communicare and Others v Khan and Another 2013 (4) SA 482 (SCA)

  • Fritz v Fundsatwork Umbrella Pension Fund and Others 2013 (4) SA 492 (ECP)

  • Dreyer v Wiebols and Others 2013 (4) SA 498 (GSJ)

  • Metcash Seven Eleven (Pty) Ltd v Pollev Property Holding and Investment CC 2013 (4) SA 506 (GSJ)

  • Booth and Others NNO v Minister of Local Government, Environmental Affairs and Development Planning and Another 2013 (4) SA 519 (WCC)

  • Oakdene Square Properties (Pty) Ltd and Others v Farm Bothasfontein (Kyalami) (Pty) Ltd and Others 2013 (4) SA 539 (SCA)

  • Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer, South African Social Security Agency, and Others 2013 (4) SA 557 (SCA)

  • Cipla Medpro (Pty) Ltd v Aventis Pharma SA and Related Appeal 2013 (4) SA 579 (SCA)

  • Chiliza v Govender and Another 2013 (4) SA 600 (KZD)

  • Hyprop Investments Ltd and Another v NCS Carriers and Forwarding CC and Another 2013 (4) SA 607 (GSJ)

  • Van Staden v Angel Ozone Products CC (In Liquidation) and Others 2013 (4) SA 630 (GNP)

FLYNOTES

CITY OF TSHWANE METROPOLITAN MUNICIPALITY v MATHABATHE AND ANOTHER (SCA)

PONNAN JA, MAJIEDT JA, ERASMUS AJA, SWAIN AJA and ZONDI AJA

2013 MAY 6, 22

Local authority—Municipal service charges—Municipal clearance certificate—Debts incurred prior to two-year period envisaged by s 118(1)—Municipality not entitled to withhold certificate until given undertaking by transferring attorneys that such debts to be paid within reasonable time—Local Government Municipal Systems Act 32 of 2000, ss 118(1) and 118(3).

VALULINE CC AND OTHERS v MINISTER OF LABOUR AND OTHERS (KZP)

KOEN J

2013 FEBRUARY 29; MARCH 13

Labour law—Collective agreement—Bargaining council agreement—Extension to non-parties—Legality—Apparent from request for extension that number of employees falling within scope of collective agreement not sufficient to warrant extension—Minister disregarding said figures and relying instead on outdated certificate containing deemed, not strictly germane, figure—Not having properly applied her mind to issue of representivity—Minister’s decision to extend collective agreement for clothing industry to entire industry declared invalid and rescinded with retrospective effect—Labour Relations Act 66 of 1995, s 32(3)(c).

Labour law—Courts—Jurisdiction—High court and labour court—Concurrent jurisdiction—Review of minister’s decision to extend collective agreement to non-parties—High court having concurrent jurisdiction with labour court—Labour Relations Act 66 of 1995, ss 32(3) and 158(1)(g).

SJ v CJ (GSJ)

LAMONT J

2013 MARCH 28

Marriage—Divorce—Appointment of legal representative for handicapped child—Maintenance enquiry to determine needs of child and ability of parent to contribute—Assessment to occur after redistribution order—No conflict found—Appointment of representative unnecessary—Divorce Act 70 of 1979, s 6(3).

NEDBANK LTD v COOPER NO AND OTHERS (FB)

VAN ZYL J

2012 OCTOBER 25; 2013 FEBRUARY 11

Company—Winding-up—Liquidation and distribution account—Drawing of—Liquidation and distribution account to be drawn as at deemed date of commencement of winding-up—Companies Act 61 of 1973, s 348.

Company—Winding-up—Liquidation and distribution account—Drawing of—Creditors’ claims to be drawn as at deemed date of commencement of winding-up—Companies Act 61 of 1973, s 348.

Company—Winding-up—Property of company—Proceeds from insurance policy—Policy ceded as security—Where surrendered by cessionary (bank) before deemed commencement of winding-up of cedent (company), and proceeds received after commencement—Right to receive payment of surrender values remaining vested in and forming asset in estate of company upon its liquidation.

CASEY AND ANOTHER v FIRST NATIONAL BANK LTD (GSJ)

SPILG J

2011 MARCH 11; AUGUST 8

Banking—Irrevocable documentary credit—Standby letter of credit—Nature—Backup guarantee intended for use if obligations set out in SLOC not met—Obligations under SLOC independent of validity underlying primary contract—SLOC issued to secure debt—Prescription of debt not affecting enforceability of SLOC.

NM v PRESIDING OFFICER OF CHILDREN'S COURT, KRUGERSDORP, AND OTHERS (GSJ)

MATHOPO J and CARELSE J

2013 APRIL 12

Children—Orphan—Foster care—Foster parent—Caregiver with duty to support child may be appointed its foster parent—Children’s Act 38 of 2005, ss 150(1)(a) and 156(1)(e).

YG v EXECUTOR, ESTATE LATE CGM (WCC)

GANGEN AJ

2012 MARCH 14; JUNE 6

Marriage—Divorce—Proprietary rights—Redistribution order—Marriage dissolved—Claim for redistribution order not competent where marriage already dissolved, for example by death of spouse, irrespective of whether litis contestatio has taken place—Divorce Act 71 of 1979, s 7(3).

GAINSFORD AND OTHERS NNO v TANZER TRANSPORT (PTY) LTD (GSJ)

SALDULKER J

2012 APRIL 24; OCTOBER 25

Company—Winding-up—Liquidator—Proceedings by and against—Citation—Proceedings brought by liquidator on behalf of company must be brought in name of company—Liquidator not entitled to bring claim in own name, whether nomine officio or not—Companies Act 61 of 1973, s 386(4)(a).

Company—Winding-up—Voluntary winding-up—Creditors’ voluntary winding-up—Powers of liquidator—Power to apply for repayment of moneys paid out by company after liquidation—Liquidator not having sought nor obtained consent of creditors to institute application—Court may not in such circumstances confer required power on liquidator—Companies Act 61 of 1973, s 388(1).

Company—Winding-up—Setting-aside of winding-up order—Application—Who may apply—Liquidator of company, creditors and members of company may apply—Person who was creditor at date of liquidation order or at any time thereafter having locus standi to bring such application—Companies Act 61 of 1973, s 354(1).

MM v MN AND ANOTHER (CC)

MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, NKABINDE J, SKWEYIYA J, YACOOB J and ZONDO J

2012 NOVEMBER 20; 2013 MAY 30

Customary law—Customary marriage—Validity—Further marriage—Husband must obtain first wife’s consent in order to enter into further marriage—Failure to do so will result in invalidity of further marriage.

MINISTER OF MINERAL RESOURCES AND OTHERS v SISHEN IRON ORE CO (PTY) LTD AND OTHERS (SCA)

BRAND JA, LEWIS JA, CACHALIA JA, SOUTHWOOD AJA and SWAIN AJA

2013 FEBRUARY 19; MARCH 28

Minerals and petroleum—Mining right—Transition to new order under MPRDA—Continuation of old order rights and subsequent conversion into mining rights under MPRDA—Effect of failure by co-holder to convert undivided share in old order mining right within prescribed time—Such right ceasing to exist and co-holder who had converted his rights as prescribed becoming sole holder of mining right in terms of MPRDA—Mineral and Petroleum Resources Development Act 28 of 2002, sch II items 7(1) and 7(8).

COMMUNICARE AND OTHERS v KHAN AND ANOTHER (SCA)

CLOETE JA, CACHALIA JA, MALAN JA, SHONGWE JA and SWAIN AJA

2012 NOVEMBER 14, 29

Company—Shares and shareholders—Shareholders—Right of shareholders to enforce articles against company and to object to irregularity committed by company in respect of articles—Conflicting right of majority to correct, condone or ratify irregular conduct of company—If right sought to be enforced personal to shareholders and not corporate in nature, then such right not susceptible to control by majority of shareholders—Shareholders’ voting rights at annual general meeting on election of directors constituting such personal rights.

FRITZ v FUNDSATWORK UMBRELLA PENSION FUND AND OTHERS (ECP)

GOOSEN J

2012 JUNE 21; AUGUST 28

Marriage—Divorce—Proprietary rights—Division of joint estate—Pension interest—Joint estate having, as matter of fact, been divided in divorce action—Not competent for court thereafter to grant order in terms of s 7(7) of Divorce Act 70 of 1979, effect of which is to ‘deem’ pension interest to be part of joint estate.

DREYER v WIEBOLS AND OTHERS (GSJ)

COPPIN J

2012 DECEMBER 5

Contempt of court—Disobedience of court order—Jurisdiction—Application to high court for order committing respondents to prison for disobedience of magistrates’ court order—Proceedings to be brought in magistrates’ court—High court may entertain application, as process-in-aid, to enforce order only if it cannot be effectively enforced though magistrates’ court’s own process—Applicant having to show good and sufficient reason for high court to enforce judgment of another court, ie whether remedies available in other court effective in protecting rights of applicant.

METCASH SEVEN ELEVEN (PTY) LTD v POLLEV PROPERTY HOLDING AND INVESTMENT CC (GSJ)

KATHREE-SETILOANE J and BASHALL AJ

2012 MARCH 5; OCTOBER 19

Lease—Huur gaat voor koop rule—When applicable—Rule not applicable to short-term unregistered leases where tenant not in occupation of leased premises, unless purchaser had knowledge of lease—Where tenant abandoning lease (and occupation), doctrine of notice not conferring right capable of cession on purchaser.

BOOTH AND OTHERS NNO v MINISTER OF LOCAL GOVERNMENT, ENVIRONMENTAL AFFAIRS AND DEVELOPMENT PLANNING AND ANOTHER (WCC)

ROGERS J

2013 FEBRUARY 18; MARCH 6

Local authority—Town planning—Town-planning and zoning schemes—Rezoning—Granting and refusal of applications—Lack of desirability and effect on existing rights are only bases on which applications can be refused—If an application is granted, any terms of approval can only take into account safety and welfare of community, preservation of environment, or effect on existing rights—Land Use Planning Ordinance 15 of 1985, ss 36(1) and (2).

Interdict—Suspension—Criminalised conduct—Court having power to suspend interdict in respect of conduct that is criminal offence.

OAKDENE SQUARE PROPERTIES (PTY) LTD AND OTHERS v FARM BOTHASFONTEIN (KYALAMI) (PTY) LTD AND OTHERS (SCA)

BRAND JA, CACHALIA JA, VAN DER MERWE AJA, ZONDI AJA and MEYER AJA

2013 MAY 8, 27

Company—Business rescue—Discretion to order—Nature—Discretion in loose sense of value judgment—Companies Act 71 of 2008, s 131(4).

Company—Business rescue—Availability—Where clear at outset company will be unable to continue and only better return for creditors and shareholders can be achieved—Rescue proceedings available—Companies Act 71 of 2008, ss 128(1)(b)(iii), 128(1)(h) and 131(4)(a).

Company—Business rescue—Requirements—Reasonable prospect of rescue—Meaning—Less than reasonable probability but more than prima facie case or arguable possibility—Prospect based on reasonable grounds—Detailed plan not required—Companies Act 71 of 2008, s 131(4)(a).

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

NUGENT JA, PONNAN JA, THERON JA, PETSE JA and SOUTHWOOD AJA

2013 FEBRUARY 15; MARCH 27

Government procurement—Procurement process—Irregularities—Whether invalidating award—Invalidating public contracts for inconsequential irregularities would be gravely prejudicial to public interest—Irregularities only invalidating awards when in conflict with law and therefore unable to produce legally valid result.

Government procurement—Procurement process—Irregularities—Where invalidating award—Appropriate remedy—At most re-evaluation of bids without irregularities could be ordered—However, such order pointless where outcome of award would be same.

CIPLA MEDPRO (PTY) LTD v AVENTIS PHARMASA AND RELATED APPEAL (SCA)

NUGENT JA, HEHER JA, SNYDERS JA, TSHIQI JA and McLAREN AJA

2012 MAY 15; JULY 26

Intellectual property—Patent—Infringement—Remedies—Interdict—Refusal on ground of public interest—Pharmaceutical company seeking interim interdict to prevent rival from infringing its patent by marketing cheaper generic equivalent of cancer drug—Though interim interdicts may be refused in public interest, court will not do so only to frustrate patent holder’s lawful monopoly—In any event no material prejudice to public interest in present case since patent holder itself intending to launch own cheap generic.

Intellectual property—Patent—Infringement—Contributory infringement—Inciting and abetting infringement of patent—Unlawfulness—Not covered by South African patent legislation but enjoying widespread international acceptance—Contributory infringement would on ordinary delictual principles be unlawful in South Africa—Thus, where product imported and disposed of with specific and sole intention that it will be used so as to infringe patent, such conduct unlawful.

Intellectual property—Patent—Amendment—Validity—Whether amendment unlawfully broadening scope of claim—Amended claim merely expressing what was silent in original claim—Neither broadening nor narrowing scope of claim—Since scope not broadened, amendment valid—Patents Act 57 of 1978, s 51(7).

Interdict—Interim interdict—Discretion of court—Public interest—Requirements of interim interdict flexible enough for public interest to be taken into account in appropriate circumstances.

Statute—Interpretation—Requirement that court ‘promote the spirit, purport and objects of the Bill of Rights’ when interpreting legislation—Not opening door to changing meaning of statute—If statute in conflict with Bill of Rights, remedy is to strike statute down—Constitution, s 39(2).

CHILIZA v GOVENDER AND ANOTHERE (KZD)

VAHED J

2013 JANUARY 29; APRIL 29

Insolvency—Compulsory sequestration—Provisional sequestration—Requirements—Creditor furnish sequestration petition to SARS—Semble: Requirement mandatory—Insolvency Act 24 of 1936, s 9(4A)(a)(iii).

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

HYPROP INVESTMENTS LTD AND ANOTHER v NCS CARRIERS AND FORWARDING CC AND ANOTHER (GSJ)

BORUCHOWITZ J, SPILG J and COPPIN J

2012 NOVEMBER 22; 2013 MARCH 14

Lease—Termination—Holding over—Whether claim for market related rental liquid or illiquid—Assumption in law that market rental value same as rental per terminated agreement, unless defence raising evidence to contrary—Where claim brought on motion for market related rental as final relief, such evidence having to raise bona fide defence (ie real dispute of fact)—If not, then claim for market related rental liquid and capable of supporting motion proceedings.

Lease—Termination—Holding over—Damages claim not limited to market related rental—Term ‘holding over’ no more than convenient label attached to conduct or act affording remedy in damages—Landlord entitled to claim damages for holding over from any source.

VAN STADEN v ANGEL OZONE PRODUCTS CC (IN LIQUIDATION) AND OTHERS (GNP)

LEGODI J

2012 SEPTEMBER 18; OCTOBER 12

Company—Winding-up—Conversion of winding-up proceedings into business-rescue proceedings—Liquidation proceedings may at any time be converted into rescue proceedings—May happen even where company was placed in liquidation under old Companies Act—Companies Act 71 of 2008, s 131(7) read with s 135(4).

Company—Winding-up—Winding-up and liquidation—Winding-up being continuation of liquidation process—Liquidation order allowing winding-up to commence, and entire process ending in master’s confirmation of liquidation and distribution account—Latter, unlike liquidation order, being document which may be executed upon.

Close corporation—Business rescue—Conversion of liquidation proceedings into business-rescue proceedings—Liquidation proceedings may at any time be converted into business-rescue proceedings—May happen even where close corporation was placed in liquidation under old Companies Act—Companies Act 71 of 2008, s 131(7) read with s 135(4).

Company—Business rescue—Conversion of winding-up proceedings into business-rescue proceedings—Liquidation proceedings may at any time be converted into business-rescue proceedings—May happen even where company was placed in liquidation under old Companies Act—Companies Act 71 of 2008, s 131(7) read with s 135(4).

Close corporation—Liquidation—Conversion of liquidation proceedings into business-rescue proceedings—Liquidation proceedings may at any time be converted into business-rescue proceedings—May happen even where close corporation was placed in liquidation under old Companies Act—Companies Act 71 of 2008, s 131(7) read with s 135(4).

SOUTH AFRICAN CRIMINAL LAW REPORTS

TABLE OF CASES

  • S v SM 2013 (2) SACR 111 (SCA)

  • S v Matshona 2013 (2) SACR 126 (SCA)

  • S v Mayisela 2013 (2) SACR 129 (GNP)

  • S v OZ 2013 (2) SACR 138 (GNP)

  • S v Chetty 2013 (2) SACR 142 (SCA)

  • S v VC 2013 (2) SACR 146 (KZP)

  • Pretorius and Others v Magistrate, Durban, and Others 2013 (2) SACR 153 (KZP)

  • S v Mabunda 2013 (2) SACR 161 (SCA)

  • S v Radebe and Another 2013 (2) SACR 165 (SCA)

  • S v Maselani and Another 2013 (2) SACR 172 (SCA)

  • S v Mafoho 2013 (2) SACR 179 (SCA)

  • S v Mpambanso 2013 (2) SACR 186 (ECB)

  • S v Ndawonde 2013 (2) SACR 192 (KZD)

  • Minister of Safety and Security v Jongwa and Another 2013 (2) SACR 197 (ECG)

  • S v Rudman and Another 2013 (2) SACR 209 (GNP)

FLYNOTES

S v SM (SCA)

MAYA JA, SHONGWE JA and ERASMUS AJA

2013 MARCH 28

Rape—Elements of—Absence of consent—Proof of—Minor adopted child induced by threats and rewards over long period to regular sexual intercourse with adoptive father—Despite no apparent lack of consent, there was no real consent—Conviction for rape confirmed.

S v MATSHONA (SCA)

NAVSA JA, PONNAN JA and LEACH AJA

2008 MAY 7, 28

Appeal—In what cases—Appeal from decision in provincial division refusing leave to appeal in terms of s 309C of Criminal Procedure Act 51 of 1977—Supreme Court of Appeal may not determine appeal, but merely consider whether leave to appeal should have been granted.

S v MAYISELA (GNP)

MAKGOKA J and LAKA AJ

2013 MARCH 28

Rape—Proof of—Penetration—Accused convicted of raping mentally retarded woman—Credible evidence by child witness who had seen accused undressing complainant and himself, lying on top of her after touching her private parts, and ‘bumping’ on her—Only inference to be drawn was that he had penetrated her.

S v OZ (GNP)

RABIE J and THULARE AJ

2013 MARCH 8

Rape—Sentence—Imposition of—Young offender of 18 years of age—No probation officer’s report obtained—Insufficient evidence placed before court to enable it to impose sentence—Sentence of 25 years’ imprisonment set aside and matter remitted to magistrate for probation officer’s report.

S v CHETTY (SCA)

MPATI P, MTHIYANE DP and PLASKET AJA

2013 FEBRUARY 27; MARCH 14

Sentence—Imprisonment—Suitability of—Possibility of collateral harm for criminal’s children—Incarceration causing collateral harm for criminal’s children not sufficient to render that sentence inappropriate when incarceration would otherwise be appropriate.

S v VC (KZP)

JAPPIE J and STEYN J

2013 FEBRUARY 8

Review—Delay in submission of record of proceedings—Record submitted to judge six months after conviction and sentence—Delay defeated purpose of proceedings being reviewed.

Juvenile offenders—Sentence—Imprisonment—Whether appropriate—Accused, 17-year-old male, sentenced to three years’ imprisonment on each of two counts of housebreaking with intent to steal and theft, not ordered to run concurrently—Devastating effect of long period of direct imprisonment on young offender overlooked—Personal circumstances insufficiently emphasised—Not given opportunity for rehabilitation in past—Sentence replaced with 18 months’ correctional supervision in terms of s 276(1)(h) of Criminal Procedure Act 51 of 1977.

PRETORIUS AND OTHERS v MAGISTRATE, DURBAN, AND OTHERS (KZP)

KRUGER J and MOKGOHLOA J

2012 NOVEMBER 1; 2013 JANUARY 18

Legal practitioners—Competency of—As ground of review—Applicants alleging attorney’s incorrect advice and failure to properly consult causing grave injustice—No proof of incompetence by attorney—Whether he was right or wrong in his strategy could not be described as incompetence—Attorney having acted ethically—Application dismissed.

S v MABUNDA (SCA)

LEWIS JA, LEACH JA and ERASMUS AJA

2013 MARCH 12, 27

Robbery—Sentence—Robbery with aggravating circumstances—Multiple counts—Two offences committed same night—Sentences of 15 years’ imprisonment on each count, not ordered to run concurrently—Offences not most serious forms of robbery accompanied by gratuitous violence—Part of sentences ordered to run concurrently.

S v RADEBE AND ANOTHER (SCA)

LEWIS JA, LEACH JA and ERASMUS AJA

2013 MARCH 12, 27

Sentence—Imposition of—Factors to be taken into account—Period spent in prison awaiting trial—Quantification of—No mechanical rule of thumb—All circumstances of individual accused to be assessed—Such period not on its own ‘substantial and compelling circumstance’ for purposes of Criminal Law Amendment Act 105 of 1997.

S v MASELANI AND ANOTHER (SCA)

MPATI P, TSHIQI JA, PILLAY JA, SOUTHWOOD AJA and SWAIN AJA

2013 MARCH 8, 22

Words and phrases—‘Grievous bodily harm’—Meaning of in s 1(b)(ii) of Criminal Procedure Act 51 of 1977—Consequences of harm relevant in determining whether harm grievous—Where victim died as result of harm, common sense dictated that was relevant consideration.

S v MAFOHO (SCA)

MTHIYANE DP, SHONGWE JA, SCHOEMAN AJA, SWAIN AJA and MBHA AJA

2013 MARCH 12, 28

Prisons—Prisoner—Parole—Lengthy term of imprisonment imposed before coming into operation of Correctional Services Act 111 of 1998—Prisoner entitled to be considered for parole after serving 25 years’ imprisonment.

S v MPAMBANSO (ECB)

NEPGEN J

2013 APRIL 3

Indictment and charge—Amendment of—Requirements—Lack of prejudice to accused—Onus on state to show lack of prejudice—In circumstances where state sought to consolidate 54 counts of fraud into one count at end of trial, after accused had closed his case without leading any evidence, impossible to state that defence or response of accused would have remained same—Application for amendment refused.

S v NDAWONDE (KZD)

JV SANDERS AJ

2012 DECEMBER 11

Evidence—Accomplice evidence—Evaluation of—Witness who had already before trial received indemnity in previous trial of same offence against different accused—Completely different scenario to usual accomplice situation, but court nonetheless mindful of fact that witness was accomplice.

MINISTER OF SAFETY AND SECURITY v JONGWA AND ANOTHER (ECG)

PICKERING J and LOWE J

2013 FEBRUARY 28; MARCH 14

Trial—Presiding officer—Recusal of—On grounds of appearance of bias—What constitutes bias—Magistrate involved in sexual relationship with plaintiff’s attorney—Relationship having ended one year before trial—Issue one of degree of intimacy—Facts not sufficient to engender reasonable suspicion of bias—Application for setting-aside of judgment refused.

S v RUDMAN AND ANOTHER (GNP)

PRETORIUS J

2012 APRIL 16; AUGUST 13

Murder—Sentence—Murder of two-month-old baby by his parents—Both parents having had dismal childhoods and in dire straits when baby born—Baby cruelly tortured over period of two weeks—Mother sentenced to 10 years’ imprisonment and father to 12 years’ imprisonment.

THE NAMIBIAN LAW REPORTS 2013 (2)

TABLE OF CASES

  • S v SM 2013 (2) SACR 111 (SCA)

  • Ayoub v Minister of Justice and Others 2013 (2) NR 301 (SC)

  • Chingufo, Ex parte: In re Semente v Chingufo 2013 (2) NR 328 (HC)

  • House and Home (a trading division of Shoprite (Pty) Ltd) v Majiedt and Another 2013 (2) NR 333 (LC)

  • S v Sakaria 2013 (2) NR 347 (HC)

  • Hangula v Motor Vehicle Accident Fund 2013 (2) NR 358 (HC)

  • S v Paulo and Another (Attorney-General as Amicus Curiae) 2013 (2) NR 366 (SC)

  • Tumas Granite CC v Minister of Mines and Energy and Another 2013 (2) NR 383 (HC)

  • S v Kalundu 2013 (2) NR 387 (HC)

  • Rally for Democracy and Progress and Others v Electoral Commission of Namibia and Others 2013 (2) NR 390 (HC)

  • Kamati v Namibia Rights and Responsibilities Inc 2013 (2) NR 452 (LC)

  • Mbambus v Motor Vehicle Accident Fund 2013 (2) NR 458 (HC)

  • Martin v Diroyal Motors Namibia (Pty) Ltd t/a Novel Ford and Others 2013 (2) NR 463 (HC)

  • Purity Manganese (Pty) Ltd v Shikongo NO and Others 2013 (2) NR 473 (LC)

  • In re Outjo Inquest 30 of 2012 2013 (2) NR 477 (HC)

  • In re Outjo Inquest 48 of 2012 2013 (2) NR 477 (HC)

  • Jack’s Trading CC v Minister of Finance and Another 2013 (2) NR 480 (HC)

  • Jack’s Trading CC v Minister of Finance and Another (Ohorongo Cement (Pty) Ltd Intervening) 2013 (2) NR 491 (HC)

  • S v Ningisa and Others 2013 (2) NR 504 (SC)

  • Chief Executive Officer of Namibia Financial Institutions Supervisory Authority and Another v FIS Life Assurance Co Ltd and Others 2013 (2) NR 532 (HC)

  • Cargo Dynamics Pharmaceuticals (Pty) Ltd v Minister of Health and Social Services and Another 2013 (2) NR 552 (SC)

  • Iyambo v Minister of Safety and Security 2013 (2) NR 562 (HC)

  • Wellmann v Hollard Insurance Co of Namibia Ltd 2013 (2) NR 568 (HC)

  • S v Tjipetekera 2013 (2) NR 587 (HC)

  • Rosh Pinah Zinc Corporation (Pty) Ltd v Muronga 2013 (2) NR 595 (LC)

FLYNOTES

AYOUB v MINISTER OF JUSTICE AND OTHERS (SC)

SHIVUTE CJ, MARITZ JA and MAINGA JA

2012 JULY 12; AUGUST 22

Extradition—Detention—Appeal—Appellant appealed against judgment and order of high court dismissing urgent application brought by him for his immediate release from detention and interdicting his arrest or detention in connection with pending extradition enquiry—Whether exercise of minister’s discretion to proceed under s 10(1) of Extradition Act 11 of 1996 subject to judicial review—Issuance of such authority precursor to endorsement of external warrant—Minister must be satisfied that order for return of wanted person could be lawfully made—Once authority given and documents received, magistrate must be satisfied in terms of s 10(2) that external warrant accompanying request authenticated as contemplated in s 18(1)—Once so satisfied, magistrate obliged in peremptory terms to endorse warrant ‘whereupon that warrant may be executed in terms of subsection (3) as if issued in court of that magistrate under the laws of Namibia relating to criminal procedure’—Next step was execution of warrant—Endorsement of duly authenticated external warrant was ‘pure’ administrative act not subject to review—Court holding that appellant entitled to question minister’s decision at this early stage, since his liberty was at stake.

Extradition—Detention—Appeal—Appellant appealed against judgment and order of high court dismissing urgent application brought by him for his immediate release from detention and interdicting his arrest or detention in connection with pending extradition enquiry—Appellant convicted in France in 1997 in absentia—Appellant contending that s 5 of Extradition Act 11 of 1996 precluding his extradition—Apparent from evidence that appellant’s conviction and sentence would be revoked and that he would be tried de novo—Court holding that minister acting reasonably in ordering extradition enquiry—Appeal against refusal of appellant’s release accordingly dismissed.

EX PARTE CHINGUFO: IN RE SEMENTE v CHINGUFO (HC)

PARKER AJ

2012 SEPTEMBER 15, 25

Medicine—Medical treatment—Consent to treatment—Adult patient—Right to refuse medical treatment—Adults have right to refuse medical treatment—However, when making such decisions they need to be compos mentis and have sufficient mental capacity to do so.

HOUSE AND HOME (A TRADING DIVISION OF SHOPRITE (PTY) LTD) v MAJIEDT AND ANOTHER (LC)

HOFF J

2012 FEBRUARY 17; AUGUST 22

Labour law—Dismissal—Fairness of—Section 33(4) of Labour Act 11 of 2007 containing presumption that employee unfairly dismissed—Employer bearing onus to prove fairness of dismissal—In present case, employee, branch manager of furniture store, dismissed, after disciplinary hearing, for serious stock losses in his store—First respondent’s explanation for stock losses implausible—Court finding that no arbitrator acting reasonably could have found dismissal unfair—Court upholding appeal from appellant that first respondent’s dismissal not unfair.

S v SAKARIA (HC)

HOFF J and SIBOLEKA J

2011 SEPTEMBER 23; 2012 MAY 28

Criminal procedure—Appeal—Withdrawal of appeal by appellant—Where court gave notice of possible increase in sentence, appellant could only withdraw appeal with leave of appeal court.

Criminal procedure—Appeal—Against sentence—Increase of sentence on appeal—Court would order increase of sentence where trial court misdirected itself—Misdirections including over- or under-estimation of relevant factors—However, court on appeal could not impose sentence beyond jurisdiction of trial court—In present case, appellant sentenced in magistrates’ court for attempted murder—Court finding sentence too lenient—Court referring matter to regional court for sentence.

HANGULA v MOTOR VEHICLE ACCIDENT FUND (HC)

DAMASEB JP

2011 SEPTEMBER 20; 2012 APRIL 18

Practice—Pleadings—Exception—On ground that particulars of claim not disclosing cause of action—Rule 18(10) of High Court Rules—Plaintiff claiming for bodily injury required to provide certain particulars—Bald statements not sufficient—Plaintiff must provide details to enable defendant to quantify damages—Plaintiff failing to give detail as to quantification of future medical expenses and other services—Plaintiff also not responding adequately to request for further particulars—Plaintiff’s particulars of claim accordingly excipiable.

S v PAULO AND ANOTHER (ATTORNEY-GENERAL AS AMICUS CURIAE) (SC)

SHIVUTE CJ, MARITZ JA and MAINGA JA

2012 APRIL 11; NOVEMBER 30

Constitutional law—Legislation—Validity—Generally undesirable that attack on validity should be raised for first time on appeal—Parties should raise constitutional issues in trial court, before argument stage.

Criminal law—Drug offences—Cocaine—Dealing in contravention of Abuse of Dependence-Producing Substances and Rehabilitation Centres Act 41 of 1971—Appellants driving vehicle in which secret compartment containing 30,1 kg cocaine—On appeal—Appellants’ version that they had been driving someone else’s vehicle and that they had not known that cocaine had been concealed in vehicle, was improbable—Sufficient evidence on part of state witnesses—It had not been necessary to invoke presumptions in s 10 of Act—Court on appeal upholding conviction of trial court of dealing in cocaine.

TUMAS GRANITE CC v MINISTER OF MINES AND ENERGY AND ANOTHER (HC)

PARKER AJ

2012 NOVEMBER 26; DECEMBER 6

Administrative law—Administrative act—Duty to act—Mandamus—Nature of—Mandamus not concerned with reasons why administrative body not carried out its duty—Instead, concerned with allegation that administrative body has failed or refused to exercise a statutory power.

S v KALUNDU (HC)

VAN NIEKERK J and HOFF J

2012 NOVEMBER 30

Criminal procedure—Review—In what cases—Review proceedings only applicable where accused convicted and sentenced—Where prosecution applying for conversion from criminal proceedings to maintenance enquiry, order in criminal proceedings for payment of maintenance not reviewable in terms of Criminal Procedure Act 51 of 1977.

RALLY FOR DEMOCRACY AND PROGRESS AND OTHERS v ELECTORAL COMMISSION OF NAMIBIA AND OTHERS (HC)

DAMASEB JP and PARKER J

2010 MARCH 1, 2; SEPTEMBER 20; 2011 FEBRUARY 14

Practice—Security for costs—Furnishing of—Election applications—Application declaring general election void due to irregularities—Section 116 of Electoral Act 24 of 1992 (EA) requiring filing of application within 30 days of outcome of election—EA also requiring applicants to furnish security—Applicants seeking to file ‘amplifying papers’ after filing original application—Respondents applying to strike out ‘amplifying papers’—Court striking out such papers—Security having been furnished on original papers—Applicants should have approached court for leave to file ‘amplifying papers’—Furnishing of security important jurisdictional fact.

Election law—Elections—Application challenging outcome of general election—EA frowning upon irregularities—However, such irregularities not every irregularity imaginable—Nature of irregularity must affect outcome of election—Applicants raising numerous irregularities—Court holding that evidence adduced by applicants not sufficient to substantiate claims of irregularities—Nevertheless, court finding that electoral officials not following guidelines contained in election manual—Court also finding contradictions in first respondent’s answering affidavit—Court emphasising that irregularities in elections would not be tolerated—Application dismissed—Court not awarding costs to first respondent for its opposition, due to previously mentioned circumstances.

KAMATI v NAMIBIA RIGHTS AND RESPONSIBILITIES INC (LC)

VAN NIEKERK J

2012 JANUARY 2; 2013 JANUARY 13

Court—Labour Court—Jurisdiction—Labour Court not having jurisdiction to resolve disputes relating to basic conditions of employment—Labour Court not court of first instance—Disputes relating to basic conditions of employment must be resolved in terms of Labour Act 11 of 2007.

MBAMBUS v MOTOR VEHICLE ACCIDENT FUND (HC)

VAN NIEKERK J

2011 NOVEMBER 17; 2013 JANUARY 14

Compromise—Validity of—Validity of agreement of compromise not generally dependent on validity of any contract it replaces—Nevertheless, for it to be binding contract, compromise agreement must have been properly concluded.

MARTIN v DIROYAL MOTORS NAMIBIA (PTY) LTD t/a NOVEL FORD AND OTHERS (HC)

UEITELE J

2012 AUGUST 1; 2013 JANUARY 28

Practice—Parties—Joinder—Of party under common law—Court has discretion to join party for convenience and to save costs—Such discretion can be exercised even if party to be joined not necessary party.

PURITY MANGANESE (PTY) LTD v SHIKONGO NO AND OTHERS (LC)

MILLER AJ

2011 OCTOBER 11; NOVEMBER 4; 2012 JUNE 15

Arbitration—Award—Appeal against—Section 89 of Labour Act 11 of 2007 not allowing appeal against factual finding—However, applicant can take such finding on review.

IN RE OUTJO INQUEST 30 OF 2012; IN RE OUTJO INQUEST 48 OF 2012 (HC)

VAN NIEKERK J

2013 JANUARY 7

Births and deaths—Deaths—Inquest finding—Review of—Instances in which inquest record to be submitted for review set out.

JACK'S TRADING CC v MINISTER OF FINANCE AND ANOTHER (HC)

SMUTS J

2012 AUGUST 15, 31

Revenue—Customs and excise—Amendment of duties—Notice to impose additional duties on Portland cement in terms of s 65 of Customs and Excise Act 20 of 1998—Minister tabling proposal for such increase in National Assembly on 15 April 2012—Notice of increase promulgated on 27 July 2012—Applicant seeking order to declare notice invalid—Procedure in s 65 contemplating notice in Gazette to precede tabling in National Assembly—Such procedure couched in peremptory terms—Minister must adhere to principle of legality—Notice invalid by reason of non-compliance with s 65.

JACK'S TRADING CC v MINISTER OF FINANCE AND ANOTHER (OHORONGO CEMENT (PTY) LTD INTERVENING) (HC)

SMUTS J

2012 OCTOBER 4, 29

Practice—Applications and motions—Interlocutory application—Application to execute judgment pending appeal—Court setting aside notice in terms of Customs and Excise Act 20 of 1998—Minister subsequently admitting notice to be nullity—Court dismissing application, since minister would in any event, not act on impugned notice.

Practice—Judgments and orders—Rescission of judgment—Application in terms of rule 44(1)(a)—Intervening party applying for judgment to be set aside—Absence of party not necessarily rendering judgment erroneous—Intervening party failing to establish prerequisites for setting judgment aside—Court in this instance functus officio—Party could appeal if not agreeing with judgment.

S v NINGISA AND OTHERS (SC)

SHIVUTE CJ, MARITZ JA and MAINGA JA

2010 OCTOBER 7, 8 2012 AUGUST 13

Criminal procedure—Trial—Presiding officer—Recusal of—In what cases—Judge to recuse himself if reasonable person suspects bias on judge’s part which would result in unfair trial—Judge’s ‘interference’ in cross-examination where cross-examiner belabouring irrelevant points, not justifying judge’s recusal.

Criminal procedure—Evidence—Admissibility—Computer-generated documents—Admissibility of computer print-outs governed by s 221 of Criminal Procedure Act 51 of 1977—Appellants objecting to admissibility of printouts emanating from mobile telecommunications company—Print-outs having been handed in by agreement—Objection to admissibility of printouts dismissed.

CHIEF EXECUTIVE OFFICER OF NAMIBIA FINANCIAL INSTITUTIONS SUPERVISORY AUTHORITY AND ANOTHER v FIS LIFE ASSURANCE CO LTD AND OTHERS (HC)

SMUTS J

2012 OCTOBER 17; NOVEMBER 7

Financial institution—Placing under curatorship—Whether appropriate—Application to place long-term insurer under curatorship in terms of s 6(1) of Financial Institutions (Investment of Funds) Act 39 of 1984—First applicant, registrar of long-term insurers, conducting investigations into affairs of first respondent—Investigation revealing certain irregularities and unsatisfactory corporate governance—Court satisfied that first applicant establishing jurisdictional facts in terms of s 6(1)—Court granting application for curatorship.

CARGO DYNAMICS PHARMACEUTICALS (PTY) LTD v MINISTER OF HEALTH AND SOCIAL SERVICES AND ANOTHER (SC)

MARITZ JA, MAINGA JA and O’REGAN AJA

2011 NOVEMBER; 2012 SEPTEMBER 12

Appeal—Application for condonation—Late filing of notice of appeal—Appellant’s application dismissed in ex tempore judgment—Appellant subsequently seeking further written reasons—Appellant filing notice of appeal seven days late—Appellant’s explanation for late filing being that was awaiting reasons—On appeal court holding that further reasons unnecessary—Judgments can only be supplemented in exceptional circumstances—Present case not falling within such circumstances—Appellant also not having prospects of success—Condonation refused—Appeal struck from roll with costs.

IYAMBO v MINISTER OF SAFETY AND SECURITY (HC)

PARKER AJ

2013 JANUARY 29, 30; FEBRUARY 12

Delict—Specific forms—Wrongful arrest and detention—Defendant conceding unlawfulness of arrest and detention—Court awarding damages for such unlawful arrest and detention—However, defendant not liable for further detention ordered by magistrate—Magistrate acting as judicial officer—Defendant, member of Executive, not liable for actions of judicial officers.

WELLMANN v HOLLARD INSURANCE CO OF NAMIBIA LTD (HC)

GEIER J

2012 JUNE 5, 6; JULY 13; AUGUST 15

Principal and agent—Knowledge of agent—When imputable to principal—Defendant informing plaintiff’s broker of repudiation of insurance claim—Plaintiff alleging that he did not receive such notification—Such notification can be imputed to principal if agent received notification in course of duty as agent—Court satisfied that within agent’s authority to communicate repudiation to plaintiff—Court satisfied that in present case broker had received valid notification—Immaterial whether or not plaintiff himself received such notification.

S v TJIPETEKERA (HC)

VAN NIEKERK J and MULLER J

2010 MAY 31; 2012 SEPTEMBER 11

Criminal procedure—Plea—Plea of guilty on alternative count—Plea of not guilty on main count—Accused must be questioned in terms of s 115 of Criminal Procedure Act 51 of 1977 on main count and s 112(1)(b) of Act on alternative count—Admissions in plea of guilty must not be used to convict accused on plea of not guilty.

ROSH PINAH ZINC CORPORATION (PTY) LTD v MURONGA (LC)

MILLER AJ

2012 SEPTEMBER 21; 2013 JANUARY 24

Labour law—Dismissal—Incapacity—Respondent’s employment terminated on grounds of incapacity—Respondent injured in accident while off duty—Respondent unable to perform former job—Appellant offering respondent lower graded job with lower remuneration—Respondent dissatisfied with lower remuneration—Appellant not acting unfairly in offering alternative employment, albeit at lower remuneration—Appellant cannot be expected to offer lower post at higher grade remuneration—Respondent’s termination of employment accordingly not unfair.


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