Back

September 2017

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases in the September law reports.

•    Click on the case name to download the original judgment.

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

 

SOUTH AFRICAN LAW REPORTS

Whether a minority shareholder’s claim for relief from oppressive conduct is a debt capable of prescription

The Constitutional Court, upholding an appeal from the Supreme Court of Appeal, held that a minority shareholder’s claim under the old Companies Act 61 of 1973 for relief from oppressive conduct was not a ‘debt’ as defined in the recent case of Makate v Vodacom Ltd 2016 (4) SA 121 (CC) (2016 (6) BCLR 709; [2016] ZACC 13). It was therefore incapable of prescription. Off-Beat Holiday Club and Another v Sanbonani Holiday Spa Shareblock Ltd and Others 2017 (5) SA 9 (CC)

Duties of a landowner when a fire starts on their property

In issue was the fault of a defendant landowner relating to a fire that had started on his property and had spread to the plaintiff’s neighbouring plantation, causing substantial damages. The SCA found that while the defendant had not in fact prevented the fire spreading, his steps taken in attempting to do so were reasonable in the circumstances, and he could not therefore be said to be negligent. The court also ruled conclusively that foreseeability was not relevant to the determination of wrongfulness, but confined to the elements of negligence and causation. MTO Forestry (Pty) Ltd v Swart NO 2017 (5) SA 76 (SCA)

Power of the Speaker of National Assembly to direct that voting in a motion of no-confidence take place by secret ballot

When the Speaker of the National Assembly refused a request by the UDM to direct that voting in a motion of no confidence in the President be conducted by secret ballot, on the basis that she was not empowered to do so, the present declaratory proceedings were launched. The Constitutional Court granted the declarator sought, that the Constitution and the Rules of the NA permitted the Speaker to direct that a vote on a motion of no confidence in the President be conducted by secret ballot. United Democratic Movement v Speaker, National Assembly and Others 2017 (5) SA 300 (CC)

 

SOUTH AFRICAN CRIMINAL LAW REPORTS

An appropriate sentence for a double-contract killing

In the SCA the state appealed against two sentences of 20 years’ imprisonment imposed by the High Court on the accused in respect of two counts of murder—the accused had contracted killers to kill her husband and then to kill one of the contracted killers who attempted to blackmail her. Taking into account inter alia that the accused actively participated in the murders and displayed no remorse, the SCA substituted the sentences on each count for life imprisonment. Director of Public Prosecutions, Gauteng v Tsotetsi 2017 (2) SACR 233 (SCA)

Constitutionality of CPA provisions imposing prescription period of 20 years for sexual offences, other than rape or compelled rape

The High Court declared that s 18 of the Criminal Procedure Act 51 of 1977 was arbitrary, irrational and unconstitutional to the extent that it imposed a period of prescription of 20 years for offences as contemplated by the Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007 other than rape or compelled rape. NL and Others v Frankel and Others 2017 (2) SACR 257 (GJ).

Appropriate award for general damages in respect of an unlawful search of a family’s home

On appeal, the SCA confirmed the correctness of the sums (R200 000 or R250 000) granted by the court a quo to each of respondents—a family of four—for general damages arising from the entry into their home of numerous police officials without a lawful warrant and for the unlawful pointing of firearms at them, and for assaulting, humiliating and intimidating them. In doing so the SCA stressed the aggravating circumstances: the incident happened in the dead of night; it took place in the sanctity of the family’s home; and the respondents suffered serious trauma. Minister of Safety and Security v Augustine and Others 2017 (2) SACR 332 (SCA).

 

WE WELCOME YOUR FEEDBACK

 

Please forward any comments regarding The South African Law Reports and The South African Criminal Law Reports to lawreports@juta.co.za

Kind Regards

The Juta Law Reports Team

Download the PDF version of the Law Reports Advance Notification 
Download the Word version of the Law Reports Advance Notification 

 

 SOUTH AFRICAN LAW REPORTS
 TABLE OF CASES
 
  • SA Riding for the Disabled Association v Regional Land Claims Commissioner and Others 2017 (5) SA 1 (CC)
  • Off-Beat Holiday Club and Another v Sanbonani Holiday Spa Shareblock Ltd and Others 2017 (5) SA 9 (CC)
  • FirstRand Bank Ltd v KJ Foods CC 2017 (5) SA 40 (SCA)
  • Mpumalanga Tourism and Parks Agency and Another v Barberton Mines (Pty) Ltd 2017 (5) SA 62 (SCA)
  • MTO Forestry (Pty) Ltd v Swart NO 2017 (5) SA 76 (SCA)
  • New Adventure Shelf 122 (Pty) Ltd v Commisioner, South African Revenue Services 2017 (5) SA 94 (SCA)
  • Saharawi Arab Democratic Republic and Another v Owners and Charterers of the Cherry Blossom and Others 2017 (5) SA 105 (ECP)
  • AD and Another v MEC for Health and Social Development, Western Cape 2017 (5) SA 134 (WCC)
  • Ex parte Whitfield and Similar Matters 2017 (5) SA 161 (ECP)
  • Readam SA (Pty) Ltd v BSB International Link CC and Others 2017 (5) SA 184 (GJ)
  • Normandien Farms (Pty) Ltd v Mathimbane and Others 2017 (5) SA 204 (LCC)
  • Earthlife Africa and Another v Minister of Energy and Others 2017 (5) SA 227 (WCC)
  • Louistef (Pty) Ltd v Snyders NO and Others 2017 (5) SA 276 (SCA)
  • Trustco Group International (Pty) Ltd v Vodacom (Pty) Ltd and Another 2017 (5) SA 283 (SCA)
  • Smith NO v Clerk, Pietermaritzburg Magistrates’ Court 2017 (5) SA 289 (KZP)
  • United Democratic Movement v Speaker, National Assembly and Others 2017 (5) SA 300 (CC)
 
 FLYNOTES
 

SA RIDING FOR THE DISABLED ASSOCIATION v REGIONAL LAND CLAIMS COMMISSIONER AND OTHERS (CC)

NKABINDE ACJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MBHA AJ, MHLANTLA J, MUSI AJ and ZONDO J
2017 FEBRUARY 23
[2017] ZACC 4

Land - Land reform—Restitution—Claim—Right to intervene—Claim for restitution of state land—Right to intervene of lawful occupier who made improvements to property during occupancy—May intervene only for purpose of determining compensation—Restitution of Land Rights Act 22 of 1994, s 35(9).

Land - Land reform—Restitution—Compensation of lawful occupiers of state land subject to restitution—May intervene if left out of restitution proceedings—Restitution of Land Rights Act 22 of 1994, s 35(9).

OFF-BEAT HOLIDAY CLUB AND ANOTHER v SANBONANI HOLIDAY SPA SHAREBLOCK LTD AND OTHERS (CC)

NKABINDE ACJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MBHA AJ, MHLANTLA J, MUSI AJ and ZONDO J
2017 MAY 23
[2017] ZACC 15

Company - Oppressive conduct—Relief—Minority shareholder’s claim under old Companies Act—Prescription—Not ‘debt’—Incapable of prescription—Companies Act 61 of 1973, s 252.

FIRSTRAND BANK LTD v KJ FOODS CC (SCA)

MPATI AP, THERON JA, SERITI JA, VAN DER MERWE JA and SCHOEMAN AJA
2017 APRIL 26
[2015] ZASCA 50

Company - Business rescue—Business rescue plan—Vote—Rejection—Setting aside rejection vote—Effect—No further vote envisaged—Proposed business plan to be considered adopted by operation of law—Companies Act 71 of 2008, ss 153(1)(a)(ii), 153(1)(b)(i)(bb), 153(2)(b) and 153(7).

Company - Business rescue—Business rescue plan—Vote—Rejection—Application to court to set aside rejection vote on grounds of being inappropriate—Court’s discretion to, upon such application, set aside vote if reasonable and just to do so—Not entailing that vote’s inappropriateness first be established before court may set it aside—Entailing single enquiry into whether its setting aside reasonable and just, with reference to listed factors and all circumstances—Companies Act 71 of 2008, ss 153(1)(a)(ii), 153(1)(b)(i)(bb) and 153(7).

MPUMALANGA TOURISM AND PARKS AGENCY AND ANOTHER v BARBERTON MINES (PTY) LTD (SCA)

PONNAN JA, TSHIQI JA, MAJIEDT JA, DAMBUZA JA and VAN DER MERWE JA
2017 MARCH 14
[2017] ZASCA 9

Environmental law - Protected areas—Prohibition on mining and prospecting activities in protected areas—Prohibition extending to areas declared, designated or reserved as such by provincial legislation—Whether provincial legislation adequately identified designated protected area—National Environmental Management: Protected Areas Act 57 of 2003, ss 12, 48(1)(a) and (b); Mineral and Petroleum Resources Development Act 28 of 2002, s 48(1)(c).

Minerals and petroleum - Mining and prospecting rights—Prohibition on mining and prospecting activities in protected areas—Prohibition extending to areas declared, designated or reserved as such by provincial legislation—National Environmental Management: Protected Areas Act 57 of 2003, ss 12, 48(1)(a) and (b); Mineral and Petroleum Resources Development Act 28 of 2002, s 48(1)(c).

MTO FORESTRY (PTY) LTD v SWART NO (SCA)

LEACH JA, WILLIS JA, MATHOPO JA, MOCUMIE JA and COPPIN AJA
2017 MAY 22
[2017] ZASCA 57

Delict - Elements—Unlawfulness or wrongfulness—Foreseeability—Foreseeability of harm should not be considered in determining wrongfulness, but should be confined to rubrics of negligence and causation.

Fire - Veld or forest fire—Presumption of negligence—Scope—Where essential facts known, role of presumption truncated—National Veld and Forest Fire Act 101 of 1998, s 34(1).

Fire - Veld or forest fire—Negligence alleged—Duty of landowner—Not obliged to ensure that in all circumstances fire on its property would not spread beyond its boundaries—Respondent obliged to take steps that were reasonable in circumstances to guard against such event occurring—If taking such steps and fire spreading nevertheless, it could not be held liable for negligence just because further steps could have been taken.

NEW ADVENTURE SHELF 122 (PTY) LTD v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICES (SCA)

SHONGWE JA, LEACH JA, WALLIS JA, MOCUMIE JA and NICHOLLS AJA
2017 MARCH 28
[2017] ZASCA 29

Revenue - Capital gains tax—Assessment—Reopening and redetermination—Whether competent where agreement giving rise to capital gain cancelled in subsequent year of assessment, without full proceeds of disposal being received—No reopening of assessment for redetermination contemplated—Capital loss made in year of cancellation to be set off against future capital gains—Income Tax Act 58 of 1962, sch 8, paras 25(2) and 35(3).

SAHARAWI ARAB DEMOCRATIC REPUBLIC AND ANOTHER v OWNERS AND CHARTERERS OF THE CHERRY BLOSSOM AND OTHERS (ECP)

MBENENGE ADJP, PLASKET J and GOOSEN J
15 JUNE 2017

International law - Jurisdiction of courts—Act occurring abroad—Applicants seeking attachment of ship’s cargo unlawfully taken from non-self-governing territory of Western Sahara—High Court holding that violation of inhabitants’ sovereignty over territory’s natural resources justifying granting of application—Order made with rider that cargo would be allowed to proceed if appropriate security furnished.

International law - Jurisdiction of courts—Act of state doctrine—Principle that domestic courts should exercise judicial restraint in pronouncing on acts of foreign states—Courts to be guided by Constitution when deciding whether to decline adjudication.

International law - Non-self-governing territory under article 73 of United Nations Charter—Right to self-determination—Sovereignty over natural resources—Ownership of cargo of phosphate mined by private company in Morocco-claimed and -controlled part of Western Sahara—High Court finding that sovereignty over cargo vesting in people of Western Sahara, legitimately represented by applicants—Granting application for its attachment pending vindicatory action by applicants.

International law - State immunity—Protection from indirect impleading—Party invoking protection to show that non-party state’s rights and liabilities at international law affected by decision of domestic court.

AD AND ANOTHER v MEC FOR HEALTH AND SOCIAL DEVELOPMENT, WESTERN CAPE (WCC)

ROGERS J
2017 MARCH 1

Evidence - Privilege—Legal professional privilege—Scope—Rule prohibiting disclosure of ‘without prejudice’ communications—Exceptions to—Disclosure, after judgment granted, and in support of punitive costs order, of settlement offer expressly made ‘without prejudice save as to costs’—Being in line with public policy considerations underlining rule, so-called ‘Calderbank’ offers were admissible in relation to costs and could be disclosed for that purpose once judgment had been given.

Costs - Punitive costs order—When to be awarded—Where defendant in damages action refusing to accept plaintiff’s settlement offer made ‘without prejudice save as to costs’—Factors to be considered.

EX PARTE WHITFIELD AND SIMILAR MATTERS (ECP)

GOOSEN J, REVELAS J and ROBERSON J
2017 MARCH 28

Land - Restrictive conditions of title—Removal—High Court’s jurisdiction—Whether authority of High Court to remove restrictive conditions with consent of interested parties altered by Spatial Planning Act—Spatial Planning and Land Use Management Act 16 of 2013, s 47(1).

READAM SA (PTY) LTD v BSB INTERNATIONAL LINK CC AND OTHERS (GJ)

SUTHERLAND J
2017 FEBRUARY 27

Contempt of court - Disobedience of court order—What constitutes—Order obtained in SCA requiring close corporation to partially demolish building erected in breach of applicable town planning scheme—Corporation deliberately not complying with order, but seeking to circumvent compliance through consolidation and rezoning applications—Corporation in deliberate contempt—To refuse finding of contempt would be to allow corporation to present unlawful exercise as fait accompli, undermining principle of legality.

Contempt of court - Disobedience of court order—Failure of court order to set out deadlines for compliance—Effect of.

Contempt of court - Disobedience of court order—Variation of court order—Whether respondent in contempt proceedings should be granted opportunity to apply for variation of order, to obtain judicial sanction for its course of conduct—Inappropriate where effect of doing so would be to excuse contemptuous non-compliance.

NORMANDIEN FARMS (PTY) LTD v MATHIMBANE AND OTHERS (LCC)

MEER AJP
2015 NOVEMBER 5

Land - Agricultural land—Conservation—Prevention of erosion—Overgrazing—By livestock belonging to labour tenant—Remedies of landowner—Removal of labour tenant’s livestock—Duty of state to relocate—Constitution, s 24; Conservation of Agricultural Resources Act 43 of 1983, s 6; Land Reform: Provision of Land and Assistance Act 126 of 1993, s 10(1); National Environmental Management Act 107 of 1998, s 32.

EARTHLIFE AFRICA AND ANOTHER v MINISTER OF ENERGY AND OTHERS (WCC)

BOZALEK J and BAARTMAN J
2016 DECEMBER 13; 2017 FEBRUARY 22–24; APRIL 26

Electricity - Generation and supply—Generation capacity—2013 and 2016 determinations of need, source (nuclear) and procurer—Nature and validity of minister’s determinations and regulator’s concurrences therein—Electricity Regulation Act 4 of 2006, s 34(1); National Energy Regulator Act 40 of 2004, s 10(1)(d).

International law - International agreements, treaties and conventions—Agreements on nuclear energy—Whether validly tabled under s 231(3)—Constitution, ss 231(2) and 231(3).

LOUISTEF (PTY) LTD v SNYDERS NO AND OTHERS (SCA)

LEWIS JA, PILLAY JA, ZONDI JA, MOCUMIE JA and FOURIE AJA
2016 NOVEMBER 29
[2016] ZASCA 182

Minerals and petroleum - Petroleum—Fuelling station—Site licence—Nature of—Whether saleable—Petroleum Products Act 120 of 1977.

TRUSTCO GROUP INTERNATIONAL (PTY) LTD v VODACOM (PTY) LTD AND ANOTHER (SCA)

NAVSA ADP, WALLIS JA, PETSE JA, TSOKA AJA and KATHREE-SETILOANE AJA
2016 APRIL 1
[2016] ZASCA 56

Intellectual property - Patent—Registrar—Powers—Extend times—Whether reg 83 limiting registrar’s discretion under s 16(2) to extend times for doing anything—Patents Act 57 of 1978, s 16(2); Patent Regulations, 1978, reg 83.

SMITH NO v CLERK, PIETERMARITZBURG MAGISTRATES’ COURT (KZP)

MADONDO DJP and PLOOS VAN AMSTEL J
2017 MARCH 31

Execution - Attachment of salary—Magistrates’ court making administration order against debtor and authorising issue of emoluments attachment order—Another court having jurisdiction over debtor’s employer—Which court could issue emoluments order—Which orders s 74I(5) applies to—Magistrates’ Courts Act 32 of 1944, s 74I(5).

UNITED DEMOCRATIC MOVEMENT v SPEAKER, NATIONAL ASSEMBLY AND OTHERS (CC)

MOGOENG CJ, NKABINDE ADCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MHLANTLA J, MOJAPELO AJ, PRETORIUS AJ and ZONDO J
2017 JUNE 22
[2017] ZACC 21

Constitutional law - Parliament—Motion of no confidence in President of Republic—Voting procedure—Speaker empowered to direct that such motion be conducted by open ballot or by secret ballot—In exercising such discretion, Speaker may not act arbitrarily but must have rational basis for decision—Correctly exercised, Speaker’s discretion should have effect of ensuring genuine motion for effective enforcement of executive accountability—Constitution, ss 57 and 102; National Assembly Rules 104(1) and (3).

Parliament - Members—Voting—Motion of no confidence in President of Republic—In exercising their votes, members obliged to uphold constitutional values over party loyalty.

Constitutional law - Parliament—Speaker—Impartiality and neutrality—Determination of appropriate voting procedure in motion of no confidence in President of Republic—In deciding whether to conduct voting by open or by secret ballot, Speaker obliged to uphold constitutional values over party loyalty.

 

 SOUTH AFRICAN CRIMINAL LAW REPORTS
 TABLE OF CASES
 
  • Director of Public Prosecutions, Gauteng v Tsotetsi 2017 (2) SACR 233 (SCA)
  • Naidoo v Regional Magistrate, Durban and Another 2017 (2) SACR 244 (KZP)
  • NL and Others v Frankel and Others 2017 (2) SACR 257 (GJ)
  • South African Hunters and Game Conservation Association v Minister of Safety and Security 2017 (2) SACR 288 (GP)
  • S v Ndlovu 2017 (2) SACR 305 (CC)
  • S v Masuku 2017 (2) SACR 321 (WCC)
  • Minister of Safety and Security v Augustine and Others 2017 (2) SACR 332 (SCA)
  • S v MM 2017 (2) SACR 344 (NWM)

 

 FLYNOTES
 

DIRECTOR OF PUBLIC PROSECUTIONS, GAUTENG v TSOTETSI (SCA)

LEACH JA, SALDULKER JA, ZONDI JA, MATHOPO JA and COPPIN AJA
2017 MAY 4; JUNE 2
[2017] ZASCA 83

Murder - Sentence—Life imprisonment—Wife contracting killers to kill husband and then to kill one of contracted killers who attempted to blackmail her—Accused actively participating in both murders—Displaying no remorse—Murder of husband carried out for financial reasons—Sentences of 20 years’ imprisonment on each count substituted on appeal with sentences of life imprisonment.

NAIDOO v REGIONAL MAGISTRATE, DURBAN AND ANOTHER (KZP)

MNGUNI J, STEYN J and CHETTY J
2017 JANUARY 12; MAY 23

Trial - Stay of prosecution—On grounds other than delay in prosecution—Jurisdiction of magistrates’ courts—Such applications to be brought before High Court having jurisdiction.

NL AND OTHERS v FRANKEL AND OTHERS (GJ)

HARTFORD AJ
2017 MAY 22, 23; JUNE 15

Sexual offences - Prescription of—Exclusion from prescription of only rape and compelled rape by s 18 of Criminal Procedure Act 51 of 1977—Arbitrary, irrational and unconstitutional in relation not only to children, but to all persons.

SOUTH AFRICAN HUNTERS AND GAME CONSERVATION ASSOCIATION v MINISTER OF SAFETY AND SECURITY (GP)

TOLMAY J
2017 APRIL 25; JULY 4

Arms and ammunition - Licensing of—Constitutionality of ss 24 and 28 of Firearms Control Act 60 of 2000.

S v NDLOVU (CC)

NKABINDE ADCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MHLANTLA J, MOJAPELO AJ, PRETORIUS AJ and ZONDO J
2017 FEBRUARY 23; JUNE 15
[2017] ZACC 19

Rape - Sentence—Life imprisonment—Minimum sentence in terms of Criminal Law Amendment Act 105 of 1997—Charge of rape read with provisions of s 51(2)—Regional magistrate finding accused ‘guilty as charged’, but imposing life term in terms of s 51(1) due to infliction of serious injuries during rape—Evidence of injuries not automatically curing charge because such complete and not defective—Accused accordingly convicted of rape read with s 51(2), and regional magistrate not entitled to impose sentence of life imprisonment.

S v MASUKU (WCC)

YEKISO J and SHER AJ
2016 JUNE 17, 23

Appeal - Powers of court on appeal—Review powers—Not to be used as back door for appeal on merits where leave granted to appeal on sentence.

Indictment and charge - Charge-sheet—Requirements—Date of offence—Error in charge-sheet—Not material to offence and nature of defence—Proceedings not vitiated by defect.

MINISTER OF SAFETY AND SECURITY v AUGUSTINE AND OTHERS (SCA)

SHONGWE ADP, LEWIS JA, PETSE JA, MBHA JA and GORVEN AJA
2017 MAY 4, 24
[2017] ZASCA 59

Search and seizure - Search—Without warrant—Unlawful search—Damages—Large number of police breaking into family’s home in dead of night and subjecting them to assault, intimidation and humiliation—Family suffering severe post-traumatic stress disorder—Damages of R200 000 and R250 000 awarded.

S v MM (NWM)

LEEUW JP and HENDRICKS ADJP

Trial - Mental state of accused—Order in terms of s 47 of Mental Health Care Act 72 of 2002—Review of—Magistrate not entitled to submit matter on review after making order.

 

 NEW RELEASES FROM JUTA
 

Class Action Litigation in South Africa (Print)
Comparative and International Law Journal of Southern Africa, The (CILSA) (Print)
Law of Landlord and Tenant, The
Practical Approach to Criminal Procedure in Botswana, A
Pregnancy Law in South Africa

 

HOW CAN WE ASSIST YOU?

Click here to register a profile and opt-in to receive these newsletters.

Click here to opt-out from this communication (please note that users are still required to have a profile in order to opt-out from receiving marketing communications from this website).

CONTACT US:

> Jutastat e-publications user helpdesk lawsupport@juta.co.za

> Juta Customer Services cserv@juta.co.za

> Juta Law Marketing lawmarketing@juta.co.za

PLEASE NOTE:

Jutastat electronic subscribers and print subscribers may receive important service-related information relating to their Juta publications from time to time.

Visit the Juta Law Website

SOUTH AFRICA'S PREMIER PUBLISHERS OF LEGAL AND REGULATORY INFORMATION
© Juta and Company (PTY) LTD  2019