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August 2012

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.

The Namibian Law Reports 2012(1) is soon to be released: see below for the table of cases and flynotes.

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

SOUTH AFRICAN LAW REPORTS

Writ of execution and the processes that follow

The effect of the Constitutional Court judgments on writs of execution against immovable property are discussed in Sani and Another v FirstRand Bank Ltd and Others 2012 (4) SA 370 (WCC). The court found that the invalidity of s 66(1)(a) of the Magistrates’ Courts Act 32 of 1944 was insufficient to undo everything that followed upon a writ of execution that was issued under it by a clerk of the court before it was declared unconstitutional. Where a sale in execution and subsequent transfer of the property to the purchaser had taken place, an application for the rescission of the default judgment should be brought in order for the debtor to benefit from the declaration of unconstitutionality.

Can a trade union sue for defamation?

While political parties may invariably be shaped and defined by personalities and their policies, it is also so that they invariably rely on their reputation for the support that they wish to garner from voters and prospective voters. If a defamatory statement about the way in which it conducts its affairs would be calculated to cause it financial prejudice, it should not be barred from bringing an action for defamation. South African National Defence Union v Minister of Defence and Others 2012 (4) SA 382 (GNP)

Hospital ignores request for information

In Hlaba v MEC For Health, Eastern Cape, and Others 2012 (4) SA 401 (ECM) the applicant and his attorneys had made a number of requests over a period of 14 months to a hospital to complete a claim form, but received no response. The court found that the public body had entirely failed to engage with applicant’s requests for information. Since the applicant was in effect denied access to an internal appeal procedure, he was entitled to directly approach the court for a mandamus.

SOUTH AFRICAN CRIMINAL LAW REPORTS

The Child Justice Act and young offenders

Three relatively young offenders were each sentenced to three years’ imprisonment, despite a probation officer having recommended that they be sentenced to terms of correctional supervision. On review it appeared that no regard was had to the provisions of the Child Justice Act 75 of 2008. The relevant provisions were peremptory, and such failure constituted a gross irregularity. The sentences were altered to correctional supervision. S v RS and Others 2012 (2) SACR 160 (WCC)

Together in crime, but not together in confession

A confession made by an accused which refers to his co-accused is per se inadmissible against his co-accused, and, if it falls short of a confession, will only be admissible under common law against his co-accused if uttered or written in furtherance of their common purpose. In the present case, where the statement was made after the accused’s arrest, the statement could not have been made in furtherance of a common purpose. S v Mangena and Another 2012 (2) SACR 170 (GSJ)

Appeal court settles statutory sentencing issue

The Supreme Court of Appeal has settled the issue of whether courts can sentence accuseds under the Sexual Offences Act, where no penalty has been prescribed for the particular offence. The provisions of the Act are couched in a language that proclaims unequivocally that their purpose is to render criminal conduct described therein. The Act is equally unequivocal in its contemplation that on conviction courts will impose on appropriate sentence on the accused. Despite the absence of a penalty clause, courts are entitled to convict and impose punishment. Director of Public Prosecutions, Western Cape v Prins and Others 2012 (2) SACR 183 (SCA)

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SOUTH AFRICAN LAW REPORTS

TABLE OF CASES

  • Johannesburg, City of, and Another v Ad Outpost (Pty) Ltd 2012 (4) SA 325 (SCA)

  • G & C Shelf 103 (Pty) Ltd v Chemical Specialities (Pty) Ltd 2012 (4) SA 335 (KZD)

  • Fikre v Minister of Home Affairs and Others 2012 (4) SA 348 (GSJ)

  • Sani and Another v FirstRand Bank Ltd and Others 2012 (4) SA 370 (WCC)

  • South African National Defence Union v Minister of Defence and Others 2012 (4) SA 382 (GNP)

  • Hlaba v MEC for Health, Eastern Cape, and Others 2012 (4) SA 401 (ECM)

  • Dlusha v King Sabata Dalindyebo Municipality and Others 2012 (4) SA 407 (ECM)

  • Stols v Garlicke & Bousfield Inc 2012 (4) SA 415 (KZP)

  • Reichman v Reichman and Others 2012 (4) SA 432 (GSJ)

  • CM v NG 2012 (4) SA 452 (WCC)

  • Gilfillan t/a Grahamstown Veterinary Clinic and Another v Bowker 2012 (4) SA 465 (ECG)

  • Jeffrey v Road Accident Fund 2012 (4) SA 475 (GSJ)

  • Peninsula Eye Clinic (Pty) Ltd v Newlands Surgical Clinic (Pty) Ltd and Others 2012 (4) SA 484 (WCC)

  • Law Society of the Northern Provinces v Le Roux 2012 (4) SA 500 (GNP)

  • National Lotteries Board and Others v South African Education and Environment Project 2012 (4) SA 504 (SCA)

  • Grainco (Pty) Ltd v Broodryk NO en Andere 2012 (4) SA 517 (FB)

  • MN v MM and Another 2012 (4) SA 527 (SCA)

  • Arse v Minister of Home Affairs and Others 2012 (4) SA 544 (SCA)

  • Bula and Others v Minister of Home Affairs and Others 2012 (4) SA 560 (SCA)

  • Ersumo v Minister of Home Affairs and Others 2012 (4) SA 581 (SCA)

  • Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)

  • International Trade Administration Commission v SCAW South Africa (Pty) Ltd 2012 (4) SA 618 (CC)

FLYNOTES

CITY OF JOHANNESBURG AND ANOTHER v AD OUTPOST (PTY) LTD (SCA)

FARLAM JA, VAN HEERDEN JA, MHLANTLA JA, LEACH JA and NDITA AJA

2012 FEBRUARY 27; MARCH 29

Administrative law—Administrative action—Invalidity—Consequences—Application for permit wrongly refused and refusal set aside by court—Application still pending and to be dealt with under legislation applicable at time of reconsideration. 

G & C SHELF 103 (PTY) LTD v CHEMICAL SPECIALITIES (PTY) LTD (KZD)

RALL AJ

2011 MAY 26; AUGUST 24

Contract—Breach—Mora debitorisMora ex persona—Pleading—Since creditor required to allege and prove breach in form of mora, debtor need only deny it—Where debtor not placed in mora by demand for performance (interpellatio), not required of him to plead absence of such demand.

Contract—Breach—Remedies—Damages—Limitations—Deduction of benefits received—Whether benefit res inter alios acta—Payout to landlord (plaintiff) under insurance policy—Tenant (defendant) having, in discharge of contractual obligations, insured building and paid premiums—Plaintiff’s entitlement to compensation under policy not wholly independent of contractual relationship between parties—Payout not res inter alios actain relation to defendant—Plaintiff having suffered no damages as result of defendant’s breach—Claim dismissed.

FIKRE v MINISTER OF HOME AFFAIRS AND OTHERS (GSJ)

SPILG J

2011 MARCH 18, 22; APRIL 21; MAY 3, 11

Constitutional law—Human rights—Right to freedom and security of the person—Proceedings concerning deprivation of liberty—Court to allow calling of oral evidence to enable it to determine whether deprivation of liberty justified—May mero motu refer matter to oral evidence if of view that this would ensure just and expeditious decision—Constitution, s 12.

Immigration—Refugee—Asylum seeker—Application for asylum refused and no appeal or application for review of decision sought within prescribed time—Refugee thereafter applying for condonation of late filing of appeal against refusal of asylum—Such application resurrecting refugee’s right under s 24(1) of Refugees Act 130 of 1998 not to be deported until all appeal and review remedies exhausted.

Immigration—Refugee—Asylum seeker—Detention—Expiry of 30-day period of detention—Detention then to be reviewed by high court—Court cannot stand idly by and wait for application for further detention to be launched—Refugees Act 130 of 1998, s 29. 

SANI AND ANOTHER v FIRSTRAND BANK LTD AND OTHERS (WCC)

ZONDI J

2011 MARCH 23; SEPTEMBER 5

Execution—Sale in execution—Immovable property—Writ of execution issued in terms of s 66(1)(a) of Magistrates’ Courts Act 32 of 1944 before section declared unconstitutional—Invalidity of s 66(1)(a) insufficient to undo sale in execution and transfer of property following on issue of writ—Application for rescission of judgment necessary.

SOUTH AFRICAN NATIONAL DEFENCE UNION v MINISTER OF DEFENCE AND OTHERS (GNP)

KOLLAPEN J

2011 AUGUST 29–31; SEPTEMBER 1–2; 2012 FEBRUARY 6

Defamation—Who may sue or be sued—Trade union—May sue for defamation.

HLABA v MEC FOR HEALTH, EASTERN CAPE AND OTHERS (ECM)

NHLANGULELA J

2012 MARCH 15, 16

Administrative law—Access to information—Access to information held by public body—Obstruction of right by public body—Request for information met by silence—Public body entirely failing to engage with applicant’s requests for information—Since applicant in effect denied access to internal appeal procedure, entitled to directly approach court for mandamus—Promotion of Access to Information Act 2 of 2000, ss 75, 78. 

DLUSHA v KING SABATA DALINDYEBO MUNICIPALITY AND OTHERS (ECM)

MAGEZA AJ

2010 FEBRUARY 4; MARCH 18

Administrative law—Access to information—Access to information held by public body—Obstruction of right by public body—Request for information met by silence—Application to court met with special plea that applicant failed to exhaust internal remedies—Special plea dismissed in light of obstructive and arrogant conduct of public body, whose duty is to serve the public—Attitude and conduct of public body criticised as unconstitutional and punished by special costs order.

STOLS v GARLICKE & BOUSFIELD INC (KZP)

GORVEN J

2011 NOVEMBER 14; DECEMBER 22

Delict—Elements—Unlawfulness or wrongfulness—Liability for omission—Pure economic loss claimed—Financial institution failing to advise party at risk of irregular use by non-account-holder of bank accounts under institution’s control—Whether omission to be regarded as wrongful and loss compensated by person who failed to act positively—Social and legal policy considerations identified and discussed—In exigencies of present case, such required imposition of legal duty on financial institution to advise party at risk that accounts were being irregularly used.


REICHMAN v REICHMAN AND OTHERS (GSJ)

SCHOLTZ AJ

2011 NOVEMBER 3, 23

Administration of estates—Executor—Removal from office—Conflict of interest between executor in capacity as beneficiary of estate and other beneficiaries—Court may order removal of executor—Semble: Appointment of independent co-executor might provide satisfactory solution in such circumstances—Executor could then recuse himself from matters in which he has personal interest—But Act presently not conferring such power on court—Administration of Estates Act 66 of 1965, s 54(1)(a)(v).

CM v NG (WCC)

GANGEN AJ

2012 APRIL 26

Minor—Custody—Care—Assignment—Subparagraphs (a) and (b) of section not disjunctive—Hence court may award care and contact to person if in best interests of child—Children’s Act 38 of 2005, ss 23(1)(a) and 23(1)(b).

Minor—Guardianship—Sole guardianship—Section applying only where person seeking to be substituted as sole guardian in place of existing but unsuitable guardian—Children’s Act 38 of 2005, s 24(3).

GILFILLAN t/a GRAHAMSTOWN VETERINARY CLINIC AND ANOTHER v BOWKER (ECG)

GOOSEN J

2012 FEBRUARY 16; MARCH 12

Practice—Stay of proceedings—Grounds—Criminal proceedings arising from same facts pending against respondent—Respondent in sequestration proceedings opposing granting of final order on ground that finding as to her indebtedness might prejudice her in criminal proceedings—Respondent protected by statute, and in any event clear that insolvency court’s findings having no bearing on criminal proceedings, in which all elements of offence to be independently proved—No prejudice shown—Stay refused—Insolvency Act 24 of 1936, s 65(2A)(b).


JEFFREY v ROAD ACCIDENT FUND (GSJ)

MOKGOATLHENG J

2011 FEBRUARY 18; 2012 FEBRUARY 15

Motor vehicle accidents—Compensation—‘Motor vehicle’—What constitutes—Quad motorcycle—Qualifying as ‘motor vehicle’ in terms of Act—Road Accident Fund Act 56 of 1996, s 1.

PENINSULA EYE CLINIC (PTY) LTD v NEWLANDS SURGICAL CLINIC (PTY) LTD AND OTHERS (WCC)

BINNS-WARD J

2012 FEBRUARY 27; MAY 2

Company—Register of companies—Deregistration of company—Reinstatement of registration—Section 82(4) requiring reading-in that it may be used to reinstate registration of company deregistered under 1973 Act—Companies Act 61 of 1973, s 73; Companies Act 71 of 2008, ss 1 and 82(4).

Company—Register of companies—Deregistration of company—Reinstatement of registration—‘Re-register’ having same meaning as ‘reinstate the registration’—Companies Act 71 of 2008, ss 1 and 82(4).


LAW SOCIETY OF THE NORTHERN PROVINCES v LE ROUX (GNP)

BERTELSMANN J and TUCHTEN J

2012 FEBRUARY 14

Attorney—Misconduct—Appropriate order—Suspension or removal from roll—Law society bringing application for suspension where prima facie and uncontested evidence showing theft of trust funds—Attorney guilty of dishonesty and prima facie unfit to practise—Suspension wholly inappropriate—Court issuing rule nisi calling on attorney to show cause why he should not be removed from the roll.

Attorney—Law society—Misconduct litigation—Misconduct involving dishonesty—Where attorney prima facie guilty of conduct that might in eyes of court merit striking-off, law society to provide for this alternative in notice of motion—Conduct of law society in applying for mere suspension in such cases criticised.

NATIONAL LOTTERIES BOARD AND OTHERS v SOUTH AFRICAN EDUCATION AND ENVIRONMENT PROJECT (SCA)

BRAND JA, VAN HEERDEN JA, CACHALIA JA, SHONGWE JA and SERITI JA

2011 SEPTEMBER 16, 28

Administrative law—Administrative action—Policy guidelines—Application—Inflexible application of guidelines by decision-maker—May result in failure to exercise any discretion at all—If object of guideline met, then insignificant or technical instances of non-compliance generally to be condoned—Failure to properly exercise discretion may not be remedied by giving different reasons after fact.

Gaming and wagering—Lottery—National Lotteries Board—Policy guidelines for allocation of grants—Inflexible or unreasonable application of guidelines not justified.

Gaming and wagering—Lottery—National Lotteries Board—Mandate—Board holding public funds for distribution to socially deserving projects—Funds not belonging to board—Grants not ‘gratuities’ to be distributed as its largesse—Board to ensure that funds allocated as intended.

GRAINCO (PTY) LTD v BROODRYK NO EN ANDERE (FB)

CILLIÉ J

2010 MEI 2009; JUNIE 18

Provisional sentence—Liquid document—What constitutes—Acknowledgment of debt providing for capital sum plus interest—Whether interest component rendering document illiquid—Interest component to be fixed in document or capable of ready calculation by applying formula therein specified—If not, provisional sentence may be granted for capital amount only.

Credit agreement—Consumer credit agreement—Whether agreement subject to NCA—Whether acknowledgment of debt providing for deferred payment and interest subject to NCA—Where underlying cause of acknowledgement not money-lending transaction but claim for damages—Legislator would not have contemplated such transaction falling within ambit of NCA—National Credit Act 34 of 2005, s 8(4)(f).

Trust and trustee—Trustee—Authority to bind trust—Where trust deed providing for authorisation of single trustee to sign documents on behalf of trust relating to trust business—Whether trustee authorised to sign acknowledgment of debt binding trust—Where such trustee unilaterally conducted business on behalf of trust over long period, inescapable inference of general authority to do so justified.

Bills of exchange—Cheque—Holder in due course—Who is—Payee of crossed cheque made payable to order—Such payee not qualifying as holder in due course—Drawer of cheque accordingly entitled to raise personal defences against such payee.

MN v MM AND ANOTHER (SCA)

MTHIYANE DP, PONNAN JA and NDITA AJA

2012 MAY 14; JUNE 1

Customary law—Customary marriage—Validity—Further marriage—If husband fails to comply with section, then first marriage’s property system continues, and second marriage valid and out of community of property—Recognition of Customary Marriages Act 120 of 1998, s 7(6).


ARSE v MINISTER OF HOME AFFAIRS AND OTHERS (SCA)

MPATI P, CLOETE JA, CACHALIA JA, MALAN JA and THERON AJA

2010 FEBRUARY 24; MARCH 12

Immigration—Refugee—Asylum seeker—Asylum seeker permit—On grant of, recipient ceasing to be illegal foreigner—Refugees Act 130 of 1998, ss 21(4) and 22(1); Immigration Act 13 of 2002, s 23(2).

Immigration—Refugee—Asylum seeker—Asylum seeker permit—Allows holder to ‘sojourn’—This disallowing detention—Refugees Act 130 of 1998, s 22(1); Immigration Act 13 of 2002, s 23(2).

Immigration—Refugee—Asylum seeker—Application for asylum—Minister may not proceed against individual who has applied for asylum until decision made on his application or his rights of review or appeal exhausted—Refugees Act 130 of 1998, ss 21(4); Immigration Act 13 of 2002, ss 23(2) and 34(1).

BULA AND OTHERS v MINISTER OF HOME AFFAIRS AND OTHERS (SCA)

NAVSA JA, CLOETE JA, MAYA JA, BOSIELO JA and LEACH JA

2011 NOVEMBER 9, 29

Immigration law—Refugee—Asylum seeker—Who is—Not for court to decide if detained individual is bona fide asylum seeker who can be allowed to approach refugee reception office to apply for asylum—Refugees Act 130 of 1998; Refugee Regulations, reg 2(2).

Immigration law—Refugee—Asylum seeker—Intention to apply for asylum—If detained individual indicates intention to apply for asylum, he is entitled to be freed and to be issued with permit valid for 14 days, in which he must approach refugee reception office to complete asylum application—Individual need not indicate intention immediately on encountering immigration officials—At reception office, it is for refugee reception officer to assist individual to complete application, which is given to refugee status determination officer to decide—Refugees Act 130 of 1998; Refugee Regulations, reg 2(2).

ERSUMO v MINISTER OF HOME AFFAIRS AND OTHERS (SCA)

MTHIYANE DP, NUGENT JA, MAJIEDT JA, WALLIS JA and NDITA AJA

2012 MARCH 27, 28

Immigration—Refugee—Asylum seeker—Delay in applying for asylum—Such not relieving officials of obligation to entertain application, and not resulting in asylum seeker losing his rights under reg 2(2)—Refugees Act 130 of 1998; Refugee Regulations, reg 2.

Immigration—Refugee—Asylum seeker—Asylum-transit permit—Semble: Where permit issued under reg 2(2), asylum application not made, permit lapsing, and asylum seeker again encountering immigration official, and again indicating intention to apply for asylum, no obligation arising to issue another permit—Refugees Act 130 of 1998; Refugee Regulations, reg 2(2).


NATAL JOINT MUNICIPAL PENSION FUND v ENDUMENI MUNICIPALITY (SCA)

FARLAM JA, VAN HEERDEN JA, CACHALIA JA, LEACH JA and WALLIS JA

2012 FEBRUARY 23; MARCH 16

Statute—Construction—Proper approach to interpretation of documents—Process objective, not subjective, and unrelated to whatever intention those selecting words had—Point of departure language of provision itself, read in context and with regard to purpose and background of document’s preparation and production—Where more than one meaning possible, each possibility to be weighed in light of these objective factors.

Local authority—Pension fund—Claim for payment of adjusted contribution made by local authority—Whether permitted by regulations—Whether proviso to relevant regulation valid and permitting fund’s claimWhether requirements for invocation of proviso satisfied—Pension Funds Act 24 of 1956, s 12(1).

INTERNATIONAL TRADE ADMINISTRATION COMMISSION v SCAW SOUTH AFRICA (PTY) LTD (CC)

NGCOBO CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, KHAMPEPE J, MOGOENG J, NKABINDE J, SKWEYIYA J and VAN DER WESTHUIZEN J

2009 NOVEMBER 12; 2010 MARCH 9

Constitutional law—Separation of powers—Between judiciary and executive—Judicial intrusion on executive domain—What constitutes—Interdict restraining responsible minister from terminating certain international anti-dumping duties—Amounting to unwarranted intrusion by court into executive domain (formulation and implementation of international trade policy).

Trade and competition—Trade—International trade—Import control—Antidumping duties—Imposition and termination—Function falling exclusively within executive domain (formulation and implementation of international trade policy)—High court interdicting responsible minister from terminating certain anti-dumping duties—Interdict breaching doctrine of separation of powers.

Appeal—In what cases—Against order granting interim interdict—Interdict restraining responsible minister from terminating certain international anti-dumping duties—Interdict causing irreparable harm, final in effect and appealable (even though characterised as ‘interim’).

JUDGMENT SELECTION CRITERIA (REPORTABILITY)

Court—Judgment—Reporting—Selection criteria.


SOUTH AFRICAN CRIMINAL LAW REPORTS

TABLE OF CASES

  • S v Majikazana 2012 (2) SACR 107 (SCA)

  • 37 Gillespie Street, Durban (Pty) Ltd v National Director of Public Prosecutions and Another 2012 (2) SACR 118 (KZP)

  • S v Naidoo 2012 (2) SACR 126 (WCC)

  • S v Van Rooyen 2012 (2) SACR 141 (ECG)

  • S v Williams 2012 (2) SACR 158 (WCC)

  • S v RS and Others 2012 (2) SACR 160 (WCC)

  • S v Mangena and Another 2012 (2) SACR 170 (GSJ)

  • Director of Public Prosecutions, Western Cape v Prins and Others 2012 (2) SACR 183 (SCA)

  • Basdew NO v Minister of Safety and Security 2012 (2) SACR 205 (KZD)

  • S v Engelbrecht 2012 (2) SACR 212 (GSJ)

     

FLYNOTES

S v MAJIKAZANA (SCA)

MPATI P, VAN HEERDEN JA, MHLANTLA JA, SHONGWE JA and THERON AJA

2010 MARCH 2, 26

Trial—Presiding officer—Recusal of—Recusal sought for first time on appeal on basis that trial judge had also dealt with accused’s earlier appeal against refusal of bail—Failure to apply for recusal at beginning or during trial indicating that inference had to be that there was no reasonable apprehension of bias before and during trial—If accused and his legal representative had not realised that trial judge had dealt with earlier bail appeal, and judge had never entertained question of recusal, actual bias would have to be proved for appeal based on special entry to succeed—If record and reasoned decision of presiding officer do not indicate that trial judge in any way biased, appeal against conviction would have to fail.

Arms and ammunition—Unlawful possession of arms and ammunition—Firearm—Accused taking possession of firearm in order to return it to owner—Not having necessary mens rea to found criminal liability for unlawful possession thereof—But where he used firearm in commission of offence (to murder deceased), he cannot believe that he was still holding firearm innocently—Such conduct establishing mens rea for unlawful possession of firearm—Arms and Ammunition Act 75 of 1969, s 2. 

37 GILLESPIE STREET, DURBAN (PTY) LTD v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AND ANOTHER (KZP)

NDLOVU J, GORVEN J and LOPES J

2011 AUGUST 10; SEPTEMBER 22

Prevention of crime—Preservation of property order—Prevention of Organised Crime Act 121 of 1998—Immovable property—Section 38(2)—Delictual liability for damage to property—Property seized and placed under curatorship of curator bonis—Preservation order subsequently set aside as property could not properly be described as ‘an instrumentality of an offence’—Owner instituting action against NDPP for damages caused to property through his negligence—As property under curatorship of curator and since NDPP never took possession and control of property, no duty of care in relation to its preservation or maintenance on part of NDPP could have arisen—Exception to claim upheld.

S v NAIDOO (WCC)

BINNS-WARD J and CLOETE AJ

2011 NOVEMBER 25; DECEMBER 6

Fundamental rights—Right to a fair trial—Right to be tried within a reasonable time—Inordinate delay in bringing prosecution—Remedy—Permanent stay of prosecution—Jurisdiction of lower court to grant stay—Other than in circumstances provided for by s 342A of Criminal Procedure Act 51 of 1977 (ie in cases of intracurial delay) lower court does not have jurisdiction to hear such application.

S v VAN ROOYEN (ECG)