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September 2015

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

The International Criminal Court

It was unconstitutional of the state to disregard ICC arrest warrants and an order of court that compelled their enforcement. The rule of law and the democratic state itself were threatened when international law and court orders were disregarded. Southern Africa Litigation Centre v Minister of Justice and Constitutional Development and Others 2015 (5) SA 1 (GP)

Right to transport to school

The right to basic education is meaningless without transport to and from school, at state expense, in appropriate cases. In instances where scholars’ access to schools is hindered by distance and an inability to afford the costs of transport, the state is obliged to provide transport to them in order to fulfil its constitutional obligations. Tripartite Steering Committee and Another v Minister of Basic Education and Others 2015 (5) SA 107 (ECG)

Salary-attachment orders against the poor

Since the debtors had consented to the orders, there had been no enquiry as to affordability or whether the orders were ‘just and equitable’. Most of the orders had also been obtained on written consent in jurisdictions located far from where these debtors lived and worked. University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice and Correctional Services and Others 2015 (5) SA 221 (WCC)

 

SOUTH AFRICAN CRIMINAL LAW REPORTS

Heavily-armed self-defence

Police approached a remote farm in the dark of the night, armed with assault rifles, and ended up shooting dead a man who fired a shot at them when they refused to announce themselves. The court emphasised the differences between self-defence and putative self-defence. S v Papu and Others 2015 (2) SACR 313 (ECB)

Mentally ill to be placed in psychiatric hospital

The High Court found unconstitutional certain criminal procedure provisions requiring a mentally ill person to be placed in a psychiatric hospital, because this infringed such person’s right to freedom and security of the person, as well as children’s rights. The Constitutional Court gives it findings at the confirmatory proceedings. De Vos NO and Others v Minister of Justice and Constitutional Development and Others 2015 (2) SACR 217 (CC)

Drug courier delivered long sentence

A woman aged 46 was given an 18-year sentence, of which 4 was suspended. She had acted as a courier, carrying almost 26 kilograms of methamphetamine from one province to another. The accused could not claim ignorance of the negative and devastating repercussions of drugs on society in general and addicts, when she decided to courier such a large amount. S v Mandlozi 2015 (2) SACR 258 (FB)

 

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 SOUTH AFRICAN LAW REPORTS
 TABLE OF CASES
 
  • Southern Africa Litigation Centre v Minister of Justice and Constitutional Development and Others 2015 (5) SA 1 (GP)
  • Leask and Another v Road Accident Fund 2015 (5) SA 20 (GJ)
  • Group Five Construction (Pty) Ltd and Others v MEC for Public Transport, Roads and Works, Gauteng and Others 2015 (5) SA 26 (GJ)
  • Boost Sports Africa (Pty) Ltd v South African Breweries (Pty) Ltd 2015 (5) SA 38 (SCA)
  • Richter v Absa Bank Ltd 2015 (5) SA 57 (SCA)
  • Panamo Properties (Pty) Ltd and Another v Nel and Others NNO 2015 (5) SA 63 (SCA)
  • Standard Bank of South Africa Ltd v Swanepoel NO 2015 (5) SA 77 (SCA)
  • DE v RH 2015 (5) SA 83 (CC)
  • Tripartite Steering Committee and Another v Minister of Basic Education and Others 2015 (5) SA 107 (ECG)
  • S v Motsepe 2015 (5) SA 126 (GP)
  • Chater Developments (Pty) Ltd (in Liquidation) v Waterkloof Marina Estates (Pty) Ltd and Another 2015 (5) SA 138 (SCA)
  • South African Reserve Bank and Another v Shuttleworth and Another 2015 (5) SA 146 (CC)
  • African Banking Corporation of Botswana Ltd v Kariba Furniture Manufacturers (Pty) Ltd and Others 2015 (5) SA 192 (SCA)
  • Absa Bank Ltd v Hammerle Group 2015 (5) SA 215 (SCA)
  • University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice and Correctional Services and Others 2015 (5) SA 221 (WCC)
  • FirstRand Bank Ltd v Kona and Another 2015 (5) SA 237 (SCA)
  • Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and Another 2015 (5) SA 245 (CC)
  • Absa Bank Ltd v Golden Dividend 339 (Pty) Ltd and Others 2015 (5) SA 272 (GP)
  • Fedgroup Participation Bond Managers (Pty) Ltd v Trustee, Capital Property Trust 2015 (5) SA 290 (SCA)
  • Willow Waters Homeowners Association (Pty) Ltd v Koka NO and Others 2015 (5) SA 304 (SCA)
 
 FLYNOTES
 

SOUTHERN AFRICA LITIGATION CENTRE v MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND OTHERS (GP)

LAMBO JP, LEDWABA DJP and FABRICIUS J

2015 JUNE 14–15, 23

International law - International criminal law—International Criminal Court—Arrest warrant—Binding on South African state—State granting immunity to visiting head of state against whom ICC arrest warrants pending—State’s disregard of warrants and of court order to compel their enforcement unconstitutional—Constitution, s 231; Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002.

International law - Diplomatic immunity—Discretion of minister to grant immunity—Must be lawfully exercised—Diplomatic Immunities and Privileges Act 37 of 2001.

Constitutional law - Constitution—Foundational values—Rule of law—Duty of state to adhere to international law—Disregard—Threat to democratic state—Constitution, s 231.

Constitutional law - Constitution—Foundational values—Rule of law—Duty of state to abide by court order—Disregard—Threat to democratic state.

LEASK AND ANOTHER v ROAD ACCIDENT FUND (GJ)

WEINER J

2015 MARCH 2

Delict - Specific forms—Loss of support—Claim by parents for loss of support of deceased child—Indigence—Requirements discussed.

GROUP FIVE CONSTRUCTION (PTY) LTD AND OTHERS v MEC FOR PUBLIC TRANSPORT, ROADS AND WORKS, GAUTENG AND OTHERS (GJ)

SATCHWELL J

2015 JANUARY 28, 29; FEBRUARY 13

Recusal - Familiarity—Same party, similar dispute—Trial and subsequent motion proceedings—Familiarity with parties and dispute not compelling recusal of judge from motion proceedings—Recusal refused in absence of extraordinary circumstances.

Engineering and construction - Building contract—Construction guarantee—Demand for payment in terms of guarantee based on false information and therefore fraudulent—Constituting ground for refusal to enforce guarantee.

BOOST SPORTS AFRICA (PTY) LTD v SOUTH AFRICAN BREWERIES (PTY) LTD (SCA)

2015 JUNE 1; MAY 13

[2015] ZASCA 93

Company - Proceedings by and against—Security for costs—Application for furnishing of—Approach of court—Effect of omission in new Companies Act of provision similar to that of repealed Companies Act allowing court to order plaintiff company to furnish security for costs—Court may order plaintiff incola company to furnish security if satisfied that proceedings vexatious, reckless or otherwise amounting to abuse.

RICHTER v ABSA BANK LTD (SCA)

MHLANTLA JA, LEACH JA, PILLAY JA, FOURIE AJA and DAMBUZA AJA

2015 MAY 18; JUNE 1
[2015] ZASCA 100

Company - Business rescue—Resolution to begin—Setting-aside of—When permitted—Companies Act 71 of 2008, s 130(5).

PANAMO PROPERTIES (PTY) LTD AND ANOTHER v NEL AND OTHERS NNO (SCA)

NAVSA ADP, MAJIEDT JA, WALLIS JA, ZONDI JA and DAMBUZA AJA

2015 MAY 14, 27
[2015] ZASCA 76

Company - Business rescue—Resolution to begin—Appointment of business rescue practitioner—Failure to comply with procedural requirements in respect of resolution or appointment of practitioner—Effect—Companies Act 71 of 2008, ss 129(3)–(5).

Company - Business rescue—Resolution to begin—Setting-aside of—When permitted—Companies Act 71 of 2008, s 130(5).

STANDARD BANK OF SOUTH AFRICA LTD v SWANEPOEL NO (SCA)

LEWIS JA, MHLANTLA JA, PILLAY JA, SCHOEMAN AJA and DAMBUZA AJA

2015 MAY 11, 22
[2015] ZASCA 71

Trust - Contracts—Parties—Description of party to contract as trust (as opposed to its trustee)—Whether sufficient.

DE v RH (CC)

MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAPPIE AJ, KHAMPEPE J, MADLANGA J, MOLEMELA AJ, NKABINDE J and THERON AJ

2015 JUNE 19
[2015] ZACC 18

Delict - Specific forms—Injuria—Adultery—Delictual action for adultery (contumelia and loss of consortium) obsolete and unconstitutional—Abolition of action confirmed.

TRIPARTITE STEERING COMMITTEE AND ANOTHER v MINISTER OF BASIC EDUCATION AND OTHERS (ECG)

PLASKET J

2015 JUNE 11, 15

Education - Right to education—Duties of state—Provision of transport—Right to basic education including transport to and from school, at state expense, where appropriate—Constitution, s 29(1)(a).

S v MOTSEPE (GP)

MOLEFE J and JANSE VAN NIEUWENHUIZEN J

2014 OCTOBER 6; NOVEMBER 5

Media - Freedom of expression—Limitations—Criminal defamation—Limitation of media freedom justified—No grounds for decriminalisation of defamation in respect of media accused.

CHATER DEVELOPMENTS (PTY) LTD (IN LIQUIDATION) v WATERKLOOF MARINA ESTATES (PTY) LTD AND ANOTHER (SCA)

NAVSA ADP, THERON JA, WALLIS JA, MBHA JA and DAMBUZA AJA

2014 NOVEMBER 13, 28
[2014] ZASCA 198

Company - Winding-up—Property of company—Sale of by liquidator—Validity—If property purchased in good faith, sale valid even if not authorised by members of company—Insolvency Act 24 of 1936, s 82(8) read with Companies Act 61 of 1973, s 339.

SOUTH AFRICAN RESERVE BANK AND ANOTHER v SHUTTLEWORTH AND ANOTHER (CC)

MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAPPIE AJ, KHAMPEPE J, MOLEMELA AJ, NKABINDE J, THERON AJ and TSHIQI AJ

2015 MARCH 3; JUNE 18
[2015] ZACC 17

Constitutional law - Parliament—Act of Parliament—Money Bills—What constitutes—Difference between taxes and regulatory charges—Dominantpurpose test—Constitution, s 77 read with s 75.

Exchange control - Exchange Control Regulations—Exit charge on value of assets sought to be exported upon emigration—Whether regulatory charge, or revenue-raising mechanism subject to compliance with Currency and Exchanges Act 9 of 1933, s 9(4) and reg 10(1)(c); Constitution, s 77 read s 75.

Exchange control - Exchange Control Regulations—Exit charge on value of assets sought to be exported upon emigration—Broad discretionary powers of minister to oppose—Necessary for flexible, speedy and expert approach to exchange control.

AFRICAN BANKING CORPORATION OF BOTSWANA LTD v KARIBA FURNITURE MANUFACTURERS (PTY) LTD AND OTHERS (SCA)

MPATI P, MHLANTLA JA, LEACH JA, SCHOEMAN AJA and DAMBUZA AJA

2015 MARCH 3; MAY 20
[2015] ZASCA 69

Company - Business rescue—‘Binding offer’—Meaning—Questions in respect of—Companies Act 71 of 2008,  s153(1)(b)(ii).

Company - Business rescue—Practitioner—Duties—Costs orders against—Companies Act 71 of 2008, ss 138–141 and 150(4).

ABSA BANK LTD v HAMMERLE GROUP (SCA)

BRAND JA, MAYA JA, CACHALIA JA, MBHA JA and MHLANTLA JA

2015 MARCH 13, 26
[2015] ZASCA 43

Company - Winding-up—Grounds—Inability to pay debts—Proof—‘Without prejudice’ offer indicating inability to pay debts—Amounting to admission of insolvency—Not privileged—Admissible in liquidation proceedings.

Company - Winding-up—Grounds—Inability to pay debts—Debt relied on subordinated in favour of other creditors—Applicant nevertheless contingent creditor—Debt due and payable and applicant entitled to apply for winding-up—Companies Act 61 of 1973, s 346(1)(b).

UNIVERSITY OF STELLENBOSCH LEGAL AID CLINIC AND OTHERS v MINISTER OF JUSTICE AND CORRECTIONAL SERVICES AND OTHERS (WCC)

DESAI J

2015 JULY 8

Execution - Attachment of salary—Constitutionality of process—Provisions unconstitutional and invalid to extent that failing to provide for judicial oversight over issuing of attachment order against judgment debtor—Magistrates’ Courts Act 32 of 1944, ss 65J.

Magistrates’ court - Civil proceedings—Jurisdiction—Consent—Where credit agreements regulated by NCA—Judgment debtor not permitted to consent to jurisdiction in place other than where resident or employed—Magistrates’ Courts Act 32 of 1944, s 45; National Credit Act 34 of 2005, s 90 and s 91.

FIRSTRAND BANK LTD v KONA AND ANOTHER (SCA)

MPATI P, CACHALIA JA, MBHA JA, VAN DER MERWE AJA and MEYER AJA

2015 FEBRUARY 26; MARCH 13
[2015] ZASCA 11

Credit agreement - Consumer credit agreement—Debt re-arrangement—Debt re-arrangement and sequestration—Existence of rearrangement order not barring sequestration of consumer’s estate at behest of credit provider—National Credit Act 34 of 2005, s 88(3).

Court - Precedent and stare decisis—Observance of doctrine mandatory.

TRENCON CONSTRUCTION (PTY) LTD v INDUSTRIAL DEVELOPMENT CORPORATION OF SOUTH AFRICA LTD AND ANOTHER (CC)

MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAPPIE AJ, KHAMPEPE J, MADLANGA J, MOLEMELA AJ, NKABINDE J and THERON AJ

2015 MARCH 5; JUNE 26
[2015] ZACC 22

Administrative law - Administrative action—Review—Remedies—Substitution of decision—Test—Promotion of Administrative Justice Act 3 of 2000, s 8(1)(c)(ii)(aa).

Administrative law - Administrative action—Review—Remedies—Court’s discretion to grant any order that is just and equitable—Whether discretion in true or loose sense—Promotion of Administrative Justice Act 3 of 2000, s 8(1).

ABSA BANK LTD v GOLDEN DIVIDEND 339 (PTY) LTD AND OTHERS (GP)

LAZARUS AJ

2014 AUGUST 14–15; DECEMBER 17

Company - Business rescue—Resolution to begin—Application to set aside—Whether necessary to join creditors—Companies Act 71 of 2008, s 130(3)(b).

Company - Business rescue—Business rescue plan—Extension of time for publication—Whether extension to be granted at meeting—Companies Act 71 of 2008, s 150(5)(b).

Company - Business rescue—Business rescue plan—Quaere: Whether creditor may challenge plan not meeting requirements of Act—Companies Act 71 of 2008, s 150(2).

FEDGROUP PARTICIPATION BOND MANAGERS (PTY) LTD v TRUSTEE, CAPITAL PROPERTY TRUST (SCA)

NAVSA ADP, MHLANTLA JA, PILLAY JA, WILLIS JA and SALDULKER JA

2015 MAY 19; JUNE 30
[2015] ZASCA 103

Land - Ownership—Encroachment—Encroacher may not bring independent cause of action claiming transfer of encroached-upon land in absence of removal order by owner.

WILLOW WATERS HOMEOWNERS ASSOCIATION (PTY) LTD v KOKA NO AND OTHERS (SCA)

MAYA JA, THERON JA, SALDULKER JA, MOCUMIE AJA and GORVEN AJA

2014 SEPTEMBER 15; DECEMBER 12
[2014] ZASCA 220

Land - Rights in—Registered title deed condition prohibiting transfer without homeowners’ association consent—Whether real or personal right—Whether binding on trustees of property owners in sequestration.

 

 

 SOUTH AFRICAN CRIMINAL LAW REPORTS
 TABLE OF CASES
  • De Vos NO and Others v Minister of Justice and Constitutional Development and Others 2015 (2) SACR 217 (CC)
  • S v Madlala 2015 (2) SACR 247 (GJ)
  • S v Mandlozi 2015 (2) SACR 258 (FB)
  • S v Masoka and Another 2015 (2) SACR 268 (ECP)
  • S v Maluka 2015 (2) SACR 273 (GP)
  • Chala and Others v Director of Public Prosecutions, KwaZulu-Natal and Another 2015 (2) SACR 283 (KZP)
  • S v Mwaka 2015 (2) SACR 306 (WCC)
  • S v Papu and Others 2015 (2) SACR 313 (ECB)
 
 FLYNOTES
 

DE VOS NO AND OTHERS v MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND OTHERS (CC)

MOGOENG CJ, MOSENEKE DCJ, FRONEMAN J, KHAMPEPE J, LEEUW AJ, MADLANGA J, NKABINDE J, TSHIQI AJ, VAN DER WESTHUIZEN J and ZONDO J

2014 NOVEMBER 17; 2015 JUNE 26
[2015] ZACC 21

Trial - Mental state of accused—Enquiry in terms of s 77 of Criminal Procedure Act 51 of 1977—Whether provisions of s 77(6)(a) peremptory—Use of words ‘shall direct’ in section peremptory. Trial—Mental state of accused—Enquiry in terms of s 77 of Criminal Procedure Act 51 of 1977—Whether provisions of s 77(6)(a) constitutionally valid—Under legislative scheme as it applied to hospitalisation, only once accused found to have committed serious offence was he admitted to psychiatric hospital, and this precautionary measure rendered provision constitutionally permissible.

Trial - Mental state of accused—Enquiry in terms of s 77 of Criminal Procedure Act 51 of 1977—Whether provisions of s 77(6)(a) constitutionally valid—Different treatment provided for by s 78(6)—Fact that s 78 provided for wider discretion of no moment as provisions dealt with different inquiries and outcomes.

Trial - Mental state of accused—Enquiry in terms of s 77 of Criminal Procedure Act 51 of 1977—Whether provisions of s 77(6)(a) constitutionally valid—Imprisonment in terms of section—Imprisonment only viable as ‘stopgap’ measure if patient were likely to cause serious harm to himself or others—These instances permissible as they served constitutionally mandated purpose of protecting public—Where accused person unlikely to cause severe harm to himself or others, presiding officer should be able to craft appropriate order pending availability of bed in psychiatric hospital akin to s 35(1)(f) of Constitution or discretion in s 79(2)(c)—Safeguards ensuring procedural component of right to freedom not violated.

Trial - Mental state of accused—Enquiry in terms of s 77 of Criminal Procedure Act 51 of 1977—Whether provisions of s 77(6)(a) constitutionally valid—Detention of children in terms of s 77(6)(a)(i)—Section entailing presiding officer had no discretion to deal with child appropriately, and unconstitutional to that extent.

Trial - Mental state of accused—Enquiry in terms of s 77 of Criminal Procedure Act 51 of 1977—Whether provisions of s 77(6)(a) constitutionally valid—Detention in terms of s 77(6)(a)(ii)—Objective of treatment could not on its own justify institutionalisation, as this failed to appreciate mental illness complex and varying types and degrees of mental disability—Trial of facts therefore not providing for appropriate procedural safeguard to deprivation of freedom—Gulf between automatic application of provision and objectives of treatment and safety too wide and breached substantive component of s 12 right.

S v MADLALA (GJ)

MONAMA J and MOSIKATSANA AJ

2014 MARCH 11; JUNE 13

Bail - Evidence adduced at bail proceedings—Admissibility of at subsequent trial—Compliance with provisions of section—Warning by presiding officer evidence might be used against him at subsequent trial equally applicable to evidence on affidavit as oral evidence—Criminal Procedure Act 51 of 1977, s 60(11B)(c).

S v MANDLOZI (FB)

RAMPAI AJP and MBHELE AJ

2014 JUNE 9; JULY 3

Drug offences - Methamphetamine—Dealing in in contravention of s 5(b) of Drugs and Drug Trafficking Act 140 of 1992—Dealing in 25,8 kg of—Appellant acting as courier delivering drugs from one province to another —Dangers of methamphetamine troubling factor and quantity of involved huge—Sentence of 18 years’ imprisonment should be sparingly reserved for drug manufacturers and suppliers—Sentence of 18 years’ imprisonment set aside on appeal and replaced with 18 years’ imprisonment of which four years suspended.

S v MASOKA AND ANOTHER (ECP)

GOOSEN J and ALKEMA J

2014 JULY 17

Evidence - Admissibility—Evidence illegally obtained—Prosecutor instructing investigating officer to obtain witness statement from alibi witness of accused No 2, after alibi witness already having consulted with accused No 2’s attorney—Interference with defence witness in criminal trial compromised integrity of witness and accused’s right to fair trial —Gross irregularity on part of prosecutor.

S v MALUKA (GP)

KOLLAPEN J, THOBANE AJ and DOSIO AJ

2014 MAY 28; OCTOBER 31

Trial - Mental state of accused—Enquiry in terms of ss 77, 78, 79 of Criminal Procedure Act 51 of 1977—Order of detention in terms of s 77(6) pending decision of judge in chambers—No mechanism for review of such order—Potential prejudice requiring mechanism for review—Matter should receive attention of executive and legislature and, pending adoption of suitable mechanism, magistrates should submit matters for review.

CHALA AND OTHERS v DIRECTOR OF PUBLIC PROSECUTIONS, KWAZULU-NATAL AND ANOTHER (KZP)

VAHED J and NDAMASE AJ

2014 NOVEMBER 25; DECEMBER 9

Trial - Assessors—Appointment of—For purposes of trial—Murder trial—Section 93ter(1) of Magistrates’ Courts Act 32 of 1944—Failure to invoke provisions of s 93ter constituting fatal irregularity vitiating entire trial.

Trial - Assessors—Appointment of—For purposes of trial—Murder trial—Section 93ter(1) of Magistrates’ Courts Act 32 of 1944—Magistrate’s duty to explain to accused rights in this regard and to record accused’s response where elects not to have assessors, but magistrate nevertheless still to consider whether such course advisable in circumstances of case.

S v MWAKA (WCC)

LE GRANGE J

2014 DECEMBER 5

Bail - Appeal against refusal of—Factors to be taken into account—Accused foreign national who had fled country whilst out on bail and returned without reporting to police or court—Showing flagrant disregard for law with continued dealing in drugs, despite previous conviction—Claim of foreign nationals having suffered horrific conditions in South African justice system cheap attack—Not having discharged onus of showing interests of justice permitted release.

S v PAPU AND OTHERS (ECB)

CHETTY J, ROBERSON J and MJALI J

2014 OCTOBER 17; NOVEMBER 5

General principles of liability - General principles of liability—Defences—Private defence—Distinction between private defence and putative private defence emphasised.

General principles of liability - Defences—Private defence—When applicable—Police officials on remote farm, with battery of artillery with contingency plan to shoot if shot at, could not have entertained reasonable suspicion that quarry was at farm, and shot at deceased who was attempting to ascertain cause of disturbance and who fired shot when they refused to announce themselves—Defence of private defence rejected.

General principles of liability - Defences—Putative private defence—When applicable—Police officials on remote farm with battery of artillery with contingency plan to shoot if shot at, could not have entertained reasonable suspicion that quarry was at farm and shot at deceased who was attempting to ascertain cause of disturbance, fired shot when refused to announce themselves—Could not honestly believe that their lives were in imminent danger and were not entitled to fire into darkness directly at would-be attacker without firing warning shot—Conviction for murder upheld.

 
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