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September 2018

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases in the September 2018 law reports.

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

JUDGMENTS OF INTEREST IN THE SEPTEMBER 2018 EDITIONS OF THE SALR AND SACR LAW REPORTS.

 

SOUTH AFRICAN LAW REPORTS

Term ‘surviving spouse’ to include those in Muslim marriages

The provision in the s 2C(1) of the Wills Act 7 of 1953, that where a surviving spouse and descendants were beneficiaries in a testator’s will, the benefits renounced by descendants vested in the surviving spouse, did not include spouses in monogamous and polygamous Muslim marriages. The CC held that therefore the provision offended their constitutional rights to equality and dignity; and ordered that words are to read into the section: that ‘surviving spouse’ is to include ‘every husband and wife of de facto monogamous and polygamous Muslim marriages solemnised under the religion of Islam’. Moosa NO and Others v Minister of Justice and Others 2018 (5) SA 13 (CC).

Loss of future earnings: exclusion of pre-accident voluntary contributions to retirement annuity fund

The appellant, a claimant for future loss of income as damages arising from a motor vehicle accident, argued that the exclusion of pre-accident voluntary contributions to a retirement annuity fund from the calculation thereof, constituted unfair discrimination because it placed them on equal footing with employees whose employer contributed to a pension fund as part of their remuneration. The SCA held that it did not amount to unfair discrimination: they were treated equally in the sense that regard was had to the employment contract as a whole in order to determine loss of future earnings. Bouttell v Road Accident Fund 2018 (5) SA 99 (SCA).

Debt rearrangement: when competent to amend applicable interest rate

On a purposive interpretation of the National Credit Act 34 of 2005—which encouraged the consensual resolution of disputes—in circumstances where the debt counsellor and credit provider agrees to an amended interest rate, a magistrates’ court has the jurisdiction to make an order rearranging the consumer’s obligations based upon such amended interest rate. Pettenburger-Perwald v Vosloo and Others 2018 (5) SA 206 (WCC).

 

SOUTH AFRICAN CRIMINAL LAW REPORTS

Time bar against instituting prosecution for certain sexual offences lifted

The Constitutional Court declared s 18 of the Criminal Procedure Act 51 of 1977 constitutionally invalid insofar as it barred the institution of criminal proceedings for sexual offences other than rape and compelled rape after the lapse of 20 years from the time that the crime was committed. This on the basis that the distinction was arbitrary and irrational. NL and Others v Estate Late Frankel and Others 2018 (2) SACR 283 (CC).

Constitutionality of certain provisions of Intimidation Act prohibiting inducement to harm

In two similar cases, consolidated for that reason, the SCA confirmed that the provisions of s 1(1)(b) and s 1(2) of the Intimidation Act 72 of 1982 (the Act) were constitutionally valid. It held that the expressions or threats of instigation of violence were excluded from protection of freedom of expression by s 16(2)of Constitution. Moyo and Another v Minister of Justice and Constitutional Development and Others 2018 (2) SACR 313 (SCA).

Traffic offences: duty to assist injured person at scene of accident

The accused, stopping after an accident and discovering damage to the vehicle involved, proceeded to a police station to report the matter—instead of first rendering assistance to the person injured in the accident. The court confirmed that failure to render assistance to injured persons at scene of accident was an offence, contravening as it did s 61(1)(c) of National Road Traffic Act 93 of 1996. S v Taute 2018 (2) SACR 263 (ECG).

 

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 SOUTH AFRICAN LAW REPORTS
 TABLE OF CASES
 
  • Johannesburg Metropolitan Municipality v Chairman, National Building Regulations Review Board and Others 2018 (5) SA 1 (CC)
  • Moosa NO and Others v Minister of Justice and Others 2018 (5) SA 13 (CC)
  • Mtokonya v Minister of Police 2018 (5) SA 22 (CC)
  • Rustenburg Platinum Mine v SAEWA (obo Bester) and Others 2018 (5) SA 78 (CC)
  • Bouttell v Road Accident Fund 2018 (5) SA 99 (SCA)
  • Gongqose and Others v Minister of Agriculture and Others 2018 (5) SA 104 (SCA)
  • Pan African Mineral Development Co (Pty) Ltd and Others v Aquila Steel (SA) (Pty) Ltd 2018 (5) SA 124 (SCA)
  • PG Group (Pty) Ltd and Others v National Energy Regulator of South Africa and Another 2018 (5) SA 150 (SCA)
  • Road Accident Fund v Abrahams 2018 (5) SA 169 (SCA)
  • South African National Parks v MTO Forestry (Pty) Ltd and Another 2018 (5) SA 177 (SCA)
  • Pettenburger-Perwald v Vosloo and Others 2018 (5) SA 206 (WCC)
  • Alderbaran (Pty) Ltd and Another v Bouwer and Others 2018 (5) SA 215 (WCC)
  • Collard v Jatara Connect (Pty) Ltd and Others 2018 (5) SA 238 (WCC)
  • Groep v WJ Da Grass Attorneys and Another 2018 (5) SA 248 (WCC)
  • Polaris, The 2018 (5) SA 263 (WCC)
  • Seaspan Grouse, The 2018 (5) SA 284 (KZD)
  • FirstRand Bank Ltd v Clear Creek Trading 12 (Pty) Ltd and Another 2018 (5) SA 300 (SCA)
  • BR v LS 2018 (5) SA 308 (KZD)
 
 FLYNOTES
 

JOHANNESBURG METROPOLITAN MUNICIPALITY v CHAIRMAN, NATIONAL BUILDING REGULATIONS REVIEW BOARD AND OTHERS (CC)

MOGOENG CJ, CACHALIA AJ, DLODLO AJ, FRONEMAN J, GOLIATH AJ, JAFTA J, KHAMPEPE J, MADLANGA J, PETSE J and THERON J
2018 JUNE 7
[2018] ZACC 15

Constitutional law - Legislation—Validity—National Building Regulations and Building Standards Act 103 of 1977, s 9—Provision creating right of appeal, against decision of local authority pertaining to approval of building plans, to review board falling under national sphere of government—Unconstitutional and invalid to extent it empowered national sphere of government to exercise appellate powers over matters falling within exclusive municipal executive power.

MOOSA NO AND OTHERS v MINISTER OF JUSTICE AND OTHERS (CC)

MOGOENG CJ, ZONDO DCJ, CACHALIA AJ, DLODLO AJ, FRONEMAN J, GOLIATH AJ, JAFTA J, KHAMPEPE J, MADLANGA J, PETSE AJ and THERON J
2018 JUNE 29
[2018] ZACC 19

Constitutional law - Legislation—Validity—Wills Act 7 of 1953, s 2C(1)—Provision that where surviving spouse and descendants were beneficiaries in testator’s will, benefits renounced by descendants vesting in surviving spouse—To extent that term ‘survi ving spouse’ not including spouses in monogamous and polygamous Muslim marriages, provision offending their constitutional rights to equality and dignity—Appropriate relief that words to be read in that ‘surviving spouse’ to include ‘every husband and wife of de facto monogamous and polygamous Muslim marriages solemnised under the religion of Islam’.

MTOKONYA v MINISTER OF POLICE (CC)

NKABINDE ADCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MHLANTLA J, MOJAPELO AJ, PRETORIUS AJ and ZONDO J
2017 SEPTEMBER 19
[2017] ZACC 33

Prescription - Extinctive prescription—Commencement—Knowledge of debt—Whether, before prescription could start running, it was required that creditor have knowledge that conduct of debtor giving rise to debt was both wrongful and actionable—Prescription Act 68 of 1969, s 12(3).

Practice - Special cases and adjudication upon points of law—In terms of special case, there must be a question of law that parties require court to decide on agreed facts and in light of their contentions which to be set forth in agreed statement—Court to decide question of law presented to it and having no right to travel outside four corners of agreed statement and decide a different question—Uniform Rules of Court, rule 33(1).

RUSTENBURG PLATINUM MINE v SAEWA (obo BESTER) AND OTHERS (CC)

ZONDO ACJ, CAMERON J, FRONEMAN J, JAFTA J, KOLLAPEN AJ, MADLANGA J, MHLANTLA J, THERON J and ZONDI AJ
2018 MAY 17
[2018] ZACC 13

Labour law - Dismissal—Racist statement—Use of expression ‘swart man’ (black man) may in certain contexts be racist and result in fair dismissal—Employees under duty not to undermine harmonious relationships at workplace by making racist comments.

BOUTTELL v ROAD ACCIDENT FUND (SCA)

NAVSA JA, MAJIEDT JA, MBHA JA, PLASKET AJA and HUGHES AJA
2018 MAY 31
[2018] ZASCA 90

Motor vehicle accident - Compensation—Claim against Road Accident Fund—Quantum—Loss of future earnings—Pre-accident voluntary contributions to retirement annuity fund—Cannot be taken into account when calculating future loss of earnings—Not amounting to unfair discrimination.

GONGQOSE AND OTHERS v MINISTER OF AGRICULTURE AND OTHERS (SCA)

MAYA P, MAJIEDT JA, DAMBUZA JA, PLASKET AJA and SCHIPPERS AJA
2018 JUNE 1
[2018] ZASCA 87

Customary law - Rights—When legislation extinguishing—Whether Act extinguishing customary right of access to and use of marine resources—Marine Living Resources Act 18 of 1998.

Criminal law - Defences—Excluding unlawfulness of act—Necessary authority—Statute making attempt to fish in marine protected area unlawful—Act performed under customary law right—Marine Living Resources Act 18 of 1998, s 43(2)(a).

PAN AFRICAN MINERAL DEVELOPMENT CO (PTY) LTD AND OTHERS v AQUILA STEEL (SA) (PTY) LTD (SCA)

PONNAN JA, BOSIELO JA, WILLIS JA, MATHOPO JA and TSOKA AJA
2017 NOVEMBER 29
[2017] ZASCA 165

Minerals and petroleum - Mining and prospecting right—Application for prospecting right—Acceptance—Return of prospecting rights application for non-compliance with requirements—Not amounting to rejection—Substantial compliance with requirements sufficient, strict compliance not required—Mineral and Petroleum Resources Development Act 28 of 2002, ss 16(3) and 22(3).

Minerals and petroleum - Mining and prospecting rights—Application for prospecting right—Nature of MPRDA’s queuing system—Where application of old order mineral right holder and that of another entity accepted in respect of same land and minerals—Once holder of unused old order right submitted application within one year exclusivity period, both unused old order right and the exclusivity it conferred remaining extant until the application is either granted or refused—Where application made but neither granted nor refused, unused old order right and its exclusivity period endure—During such period acceptance and processing of later application precluded—Mineral and Petroleum Resources Development Act 28 of 2002, ss 16(2)(b), 22(2)(b) and sch II, item 8(2).

Minerals and petroleum - Mining and prospecting rights—Transition to new order under MPRDA—Duration of old order right-holder’s preferent right to apply for prospecting and mining rights—Such exclusive right survived until application was either granted or refused—Mineral and Petroleum Resources Development Act 28 of 2002, sch II, item 8(3).

Minerals and petroleum - Mining and prospecting rights—Lapsing of upon deregistration of right-holder company and subsequent revival upon restoration of company’s registration—Restored company deemed to have held prospecting right throughout period of deregistration until expiry of right—Legal effect thereof that, during such period, no other application could be validly accepted and granted—Mineral and Petroleum Resources Development Act 28 of 2002, ss 16(2)(b), 22(2)(b) and sch II, item 8(2).

PG GROUP (PTY) LTD AND OTHERS v NATIONAL ENERGY REGULATOR OF SOUTH AFRICA AND ANOTHER (SCA)

LEWIS JA, PONNAN JA, LEACH JA, DAVIS AJA and MAKGOKA AJA
2018 MAY 10
[2018] ZASCA 56

Administrative law - Administrative action—What constitutes—Energy regulator determining method to calculate piped gas price and later determining it—Whether determination of method was administrative action—Promotion of Administrative Justice Act 3 of 2000.

ROAD ACCIDENT FUND v ABRAHAMS (SCA)

NAVSA JA, LEWIS JA, WILLIS JA, MAKGOKA AJA and HUGHES AJA
2018 MARCH 29
[2018] ZASCA 49

Motor vehicle accident - Compensation—Claim against Road Accident Fund—Single-vehicle collision—Where driver not employee of owner of insured vehicle, and collision result of burst tyre—Driver’s claim based on negligence of owner in failing to maintain vehicle—Such claim falling within ambit of Road Accident Fund Act 56 of 1996, s 17(1).

SOUTH AFRICAN NATIONAL PARKS v MTO FORESTRY (PTY) LTD AND ANOTHER (SCA)

NAVSA JA, LEACH JA, DAMBUZA JA, DAVIS AJA and ROGERS AJA
2018 MAY 17
[2018] ZASCA 59

Administrative law - Administrative action—What constitutes—SanParks agreeing, on forestry company’s request, to vary their lease’s tree-felling schedule—Whether Parkscape, an association, had legitimate expectation to be heard before SanParks made its decision—Promotion of Administrative Justice Act 3 of 2000.

PETTENBURGER-PERWALD v VOSLOO AND OTHERS (WCC)

NDITA J and HOLDERNESS AJ
2017 OCTOBER 23

Credit agreement - Consumer credit agreement—Debt rearrangement—Order—Powers of magistrates’ court—To rearrange over-indebted consumer’s repayment obligations by varying interest rate in credit agreement—Magistrates’ court having such power, where parties having agreed to such amended interest rate—National Credit Act 34 of 2005, ss 87(1) and 86(7)(c)(ii).

ALDERBARAN (PTY) LTD AND ANOTHER v BOUWER AND OTHERS (WCC)

DAVIS AJ
2018 MARCH 22

Company - Business rescue—Resolution to begin—Setting-aside—When permitted—‘Just and equitable’—Conclusion that termination of business rescue would be just and equitable involving exercise, not of discretion, but of judgment on relevant facts, but once that conclusion was reached, making of order to set aside resolution and terminate business rescue involved exercise of discretion—Companies Act 71 of 2008, s 130(5)(a)(ii).

Company - Business rescue—Resolution to begin—Setting-aside—Power of court to make ‘any further necessary and appropriate order’—Discretion to be exercised judicially, and only limit on further order which may be made was that it had to be both necessary and appropriate—Companies Act 71 of 2008, s 130(5)(c).

Company - Business rescue—Resolution to begin—Setting-aside—Requirement that copy of application be served on company and Companies and Intellectual Property Commission—Type of service required—Both company and Commission to be joined—In respect of company, service in terms of Uniform Rule of Court 4(1)(a), ie service by sheriff in one of manners referred to in rule 4(1)—In respect of Commission, service in terms of Uniform Rule of Court 4A(c) as read with Commission’s practice note 9 of 2017, ie service by electronic mail at email address provided by the Commission—Companies Act 71 of 2008, s 130(3).

COLLARD v JATARA CONNECT (PTY) LTD AND OTHERS (WCC)

DLODLO J
2017 MARCH 14

Company - Business rescue—Business rescue plan—Vote against its adoption—Voter’s aim to frustrate damages claim that plan envisaged company bringing against it—Application to set vote aside—Companies Act 71 of 2008, ss 153(1)(b)(i)(bb) and 153(7).

GROEP v WJ DA GRASS ATTORNEYS AND ANOTHER (WCC)

GAMBLE J
2017 NOVEMBER 15

Evidence - Privilege—Legal professional privilege—Scope—Without prejudice rule—Rule protecting admissions made during settlement negotiations from subsequent disclosure, except for limited purpose of interrupting prescription—Party, in communication made in settlement negotiations, waiving its right to rely on prescription—Interruption of prescription not arising—Communication inadmissible against party—May rely on prescription.

Evidence - Privilege—Legal professional privilege—Scope—Without prejudice rule—Courts should be reluctant to classify matter as disconnected from settlement negotiations and hence not covered by rule.

Prescription - Extinctive prescription—Defence of—Waiver during settlement negotiations—Protected from disclosure at subsequent trial, except for limited purpose of interrupting prescription.

THE POLARIS 

SOUTHERN AFRICAN SHIPYARDS (PTY) LTD v MFV POLARIS AND OTHERS (WCC)

BOQWANA J
2018 APRIL 18

Shipping - Admiralty law—Maritime claim—Enforcement—Arrest—Sale of arrested property—Property ringfenced from other claims—Court may order sale of maritime property where owner subsequently placed in business rescue—Admiralty Jurisdiction Regulation Act 105 of 1983, s 9 and s 10; Companies Act 71 of 2008, s 133(1).

Company - Business rescue—Moratorium on legal proceedings in relation to property belonging to company—Not applying to property already under maritime arrest—Admiralty court may order sale of arrested property—Admiralty Jurisdiction Regulation Act 105 of 1983, s 10; Companies Act 71 of 2008, s 133(1).

THE SEASPAN GROUSE
SEASPAN HOLDCO AND OTHERS v MS MARE TRACER SCHIFFAHRTS AND ANOTHER (KZD)

GYANDA J
2018 FEBRUARY 26

Shipping - Admiralty law—Maritime claim—Enforcement—Action in rem—Arrest, under protective writ, of associated ship—Ownership of arrested ship transferred after issue of writ but before arrest—Application to set aside arrest refused—Admiralty Jurisdiction Regulation Act 105 of 1983, s 1(2)(a), s 3(4)(b), s 3(6) and s 6.

FIRSTRAND BANK LTD v CLEAR CREEK TRADING 12 (PTY) LTD AND ANOTHER (SCA)

LEWIS JA, WILLIS JA, MBHA JA, VAN DER MERWE AJA and GORVEN AJA
2015 MARCH 9 
[2015] ZASCA 6

Practice - Trial—Separation of issues—Procedural failures in applying rule 33(4)—Whether rendering separation order incompetent—To be decided on case-by-case basis—In present case, formulation of issue and order leading to anomalies, rendering separation order incompetent—In addition, insufficient factual basis laid for separated issue to be properly determined—Court a quo’s order on separated issue set aside on appeal—Uniform Rules of Court, rule 33(4).

BR v LS (KZD)

KOEN J
2018 JUNE 15 

Children - Parents—Biological father—Sperm donor through natural insemination—Having statutory rights and responsibilities of biological father—Though such capable of post-natal variation by agreement, terms to be proved by party alleging variation—Quaere: Whether so-called ‘known sperm donor agreement’ waiving rights and responsibilities of biological father valid in South Africa.

 

 SOUTH AFRICAN CRIMINAL LAW REPORTS
 TABLE OF CASES
  
  • S v Oosthuizen and Another 2018 (2) SACR 237 (SCA)
  • S v Fransman and Another 2018 (2) SACR 250 (WCC)
  • S v Taute 2018 (2) SACR 263 (ECG)
  • S v Porrit 2018 (2) SACR 274 (GJ)
  • S v Luzil 2018 (2) SACR 278 (WCC)
  • NL and Others v Estate Late Frankel and Others 2018 (2) SACR 283 (CC)
  • Moyo and Another v Minister of Justice and Constitutional Development and Others 2018 (2) SACR 313 (SCA)
 
 FLYNOTES
 

S v OOSTHUIZEN AND ANOTHER (SCA)

NAVSA JA, WILLIS JA and SCHIPPERS AJA
2018 MAY 28; JUNE 1

Bail - Pending appeal—Refusal of—Granting of application for leave to appeal not per se entitling person to be released on bail—Had to be real prospect in relation to success on conviction and that non-custodial sentence would be imposed.

S v FRANSMAN AND ANOTHER (WCC)

HENNEY J and SHER J
2018 JUNE 22

Trial - Record—Duty of presiding officer to keep record of proceedings—Questioning of accused—Must be carried out carefully and with scrupulous regard for elements relevant to charge—In case of written notation of questioning, record ought as far as possible to be reproduction of what actually transpired.

Review - Delay in submission of record of proceedings—Should be measures to ensure that judicial queries dealt with expeditiously and records submitted—Delay of one year in responding to query reported to Magistrates Commission.

S v TAUTE (ECG)

GOOSEN J and BLOEM J
2018 MAY 2; JUNE 26

Traffic offences - Failure to render assistance to injured person at scene of accident—Accused, after stopping after accident and discovering damage to vehicle, proceeding to police station to report matter instead of rendering assistance to injured person—Such conduct constituting offence of contravening s 61(1)(c) of National Road Traffic Act 93 of 1996.

S v PORRIT (GJ)

WEPENER J
2018 MARCH 9

Bail - Cancellation of—Appeal against—Leave to appeal having been granted by Supreme Court of Appeal—Accused seeking declaratory order, by way of application, suspending cancellation of bail pending appeal hearing—Accused required to proceed in terms of Criminal Procedure Act 51 of 1977—Application proceedings not competent.

S v LUZIL (WCC)

WILLE J and THULARE AJ
2018 JUNE 19

Bail - Failure of accused on bail to appear at trial—Forfeiture of bail—Procedure in court after arrest of accused and final forfeiture of bail—Second inquiry had to follow relating to status of accused—Criminal Procedure Act 51 of 1977, ss 50 and 60.

NL AND OTHERS v ESTATE LATE FRANKEL AND OTHERS (CC)

ZONDO ACJ, CAMERON J, FRONEMAN J, JAFTA J, KATHREE-SETILOANE AJ, KOLLAPEN AJ, MADLANGA J, MHLANTLA J, THERON J and ZONDI AJ
2017 NOVEMBER 14; 2018 JUNE 14

Sexual offences - Prescription of Section 18 of Criminal Procedure Act 51 of 1977 excluding rape and compelled rape from prescription, and no other sexual offences—Such distinction arbitrary, irrational and unconstitutional—Declaration of invalidity of provision confirmed, but suspended for 24 months to allow Parliament to enact remedial legislation

MOYO AND ANOTHER v MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND OTHERS (SCA)

MAYA P, WALLIS JA, MBHA JA, VAN DER MERWE JA and MAKGOKA AJA
2018 MARCH 2; JUNE 20
[2018] ZASCA 100

Intimidation - Contravention of s 1(1)(b) read with s 1(2) of Intimidation Act 72 of 1982—Constitutionality of—Expressions or threats of instigation of violence excluded from protection of freedom of expression by s 16(2) of Constitution—Provision in s 1(2) not creating reverse-onus provision, but contravening provisions of s 35(3)(h) of Constitution, in that it placed improper pressure on accused to forgo constitutional right to silence.

Intimidation - Contravention of s 1(1)(b) read with s 1(2) of Intimidation Act 72 of 1982—Constitutionality of—Nothing in s 1(1)(b) to suggest that mens rea not required for offence—Did not encompass cases of conventional and protected freedom of expression—Provision passed constitutional muster.

 

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