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November 2016

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases in the November law reports.

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

JUDGMENTS OF INTEREST IN THE NOVEMBER EDITIONS OF THE SALR, SACR AND THE NAMIBIAN LAW REPORTS 2016 (3)

 

SOUTH AFRICAN LAW REPORTS

Google Adwords and competition

If you search the internet via Google for a certain company, but its competitor has paid to have its website feature in the search results, is this passing off or unlawful competition? The appeal court delves into what goes on behind your internet searches. Cochrane Steel Products (Pty) Ltd v M-Systems Group (Pty) Ltd and Another 2016 (6) SA 1 (SCA)

Street names and a sense of belonging

A city’s decision to change street names resulted in opposition from citizens who contended that the process lacked sufficient public participation. Because of their strong emotional connection to the old names, they feared losing their sense of place and belonging if the old names were removed. However, the city had the constitutional and statutory power to run its affairs, and public participation could not be elevated to co-governance. Tshwane City v Afriforum and Another 2016 (6) SA 279 (CC)

Abuse of dominant position in the market

Nationwide Airlines sued the national carrier and dominant firm, South African Airways, for damages it alleged it suffered due to anticompetitive conduct. The judgment lays out the complex procedure for calculating the damages of reduced profits, by estimating the lost passengers. Nationwide Airlines (Pty) Ltd (In Liquidation) v South African Airways (Pty) Ltd  2016 (6) SA 19 (GJ)

 

SOUTH AFRICAN CRIMINAL LAW REPORTS

Arrest of children

The Constitution requires that best interests of child be accorded paramount importance, so there had to be no other, less invasive, means than arrest to secure the attendance of the child at court. The police, when arresting a child, had to do so through the lens of the Bill of Rights and pay special attention to the best interests of the child. MR v Minister of Safety And Security 2016 (2) SACR 540 (CC)

Evidence of accomplice

A witness who testifies against his accomplices can only be granted a section 204 discharge from prosecution if he answers all questions frankly and honestly. The nature and procedure of the enquiry whether to discharge the witness is laid out in this judgment. S v Kuyler 2016 (2) SACR 563 (FB)

Indigenous languages for trials

The government programme for elevating the use of indigenous languages was not yet sufficiently advanced that it should be used where the exigencies of the matter did not demand such use. A delay of two and a half years in preparing the record because of translation difficulties led to the compromise of the accused’s fundamental rights. S v Feni 2016 (2) SACR 581 (ECB)

 

NAMIBIAN LAW REPORTS

Dolus eventualis and a gruesome murder

That the accused’s intent to murder was dolus eventualis was not a mitigating factor for sentencing, when an elderly person was killed in a cruel and gruesome manner. The court was aghast at the cowardliness and brutality of the assault. S v Gariseb 2016 (3) NR 613 (SC)

Security for costs

When considering the security for costs to be furnished by a foreigner, the position of honour and integrity of the first plaintiff’s position as a judge in Italy counted in the plaintiffs’ favour. The quantum that would actually be determined should not serve to effectively close the portals of the courts of Namibia to the plaintiffs, particularly where two minors were involved. Martucci and Others v Mountain View Game Lodge (Pty) Ltd 2016 (3) NR 789 (HC)

Counselling and training before dismissal

This case is a cautionary tale for dismissal of an employee on poor performance. The employer should attempt to assist the employee with advice and guidance, to overcome his shortcomings. The employer needed to identify the causes of the employee’s underperformance, and institute remedial action in the form of training and counselling, to enable him to perform to his optimum. Tow-In Specialist CC v Urinavi 2016 (3) NR 829 (LC)

 

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 SOUTH AFRICAN LAW REPORTS
 TABLE OF CASES
 
  • Cochrane Steel Products (Pty) Ltd v M-Systems Group (Pty) Ltd and Another 2016 (6) SA 1 (SCA)
  • Nationwide Airlines (Pty) Ltd (in Liquidation) v South African Airways (Pty) Ltd 2016 (6) SA 19 (GJ)
  • Kythera Court v Le Rendez-Vous Cafe CC and Another 2016 (6) SA 63 (GJ)
  • Solidarity and Others v South African Broadcasting Corporation 2016 (6) SA 73 (LC)
  • Blue Chip 2 (Pty) Ltd t/a Blue Chip 49 v Ryneveldt and Others (National Credit Regulator as Amicus Curiae) 2016 (6) SA 102 (SCA)
  • Sheriff, Piketberg and Another v Lourens 2016 (6) SA 110 (WCC)
  • Palala Resources (Pty) Ltd v Minister of Mineral Resources and Energy and Others 2016 (6) SA 121 (SCA)
  • KLD Residential CC v Empire Earth Investments 17 (Pty) Ltd 2016 (5) SA 485 (WCC)
  • Ex parte Fuls and Three Similar Matters 2016 (6) SA 128 (GP)
  • Klaase and Another v Van der Merwe NO and Others 2016 (6) SA 131 (CC)
  • Off-Beat Holiday Club and Another v Sanbonani Holiday Spa Shareblock Ltd and Others 2016 (6) SA 181 (SCA)
  • Ramuhovhi and Another v President of the Republic of South Africa and Others 2016 (6) SA 210 (LT)
  • Griessel and Another v Lizemore and Others 2016 (6) SA 236 (GJ)
  • Potgieter v Olivier and Another 2016 (6) SA 272 (GP)
  • Tshwane City v Afriforum and Another 2016 (6) SA 279 (CC)
 
 FLYNOTES
 

COCHRANE STEEL PRODUCTS (PTY) LTD v M-SYSTEMS GROUP (PTY) LTD AND ANOTHER (SCA)

PONNAN JA, MBHA JA, ZONDI JA, MATHOPO JA and FOURIE AJA
2016 MAY 19, 27
[2016] ZASCA 74

Intellectual property - Trademark—Use by competitor of claimant’s commonlaw trademark as keyword in Google AdWords advertising—Whether conduct amounting to passing off or unlawful competition—No likelihood of confusion—Conduct not amounting to passing off or unlawful competition.

Competition - Unlawful competition—Passing off—Whether conduct amounting to passing off—Use by competitor of claimant’s common-law trademark as keyword in Google AdWords advertising—No likelihood of confusion—Use not amounting to passing off.

Competition - Unlawful competition—Use by competitor of claimant’s common-law trademark as keyword in Google AdWords advertising—Whether conduct amounting to wrongful interference—Whether use fair and honest—Whether likelihood of confusion or deception—No likelihood of confusion or deception in circumstances where advertiser, without more, using other trader’s trade name only as keyword—Use not amounting to unlawful competition.

NATIONWIDE AIRLINES (PTY) LTD (IN LIQUIDATION) v SOUTH AFRICAN AIRWAYS (PTY) LTD (GJ)

NICHOLLS J
2016 FEBRUARY 1–23; MARCH 30; AUGUST 8

Competition- Promotion of competition—Prohibited practices—Abuse of dominance—Quantification of damages—Lost profits—Linear-interpolation method—Three-step procedure involving counterfactuals used to determine lost profits—Appropriate contingency deduction—Competition Act 89 of 1998, s 8(d)(i).

Damages- Anticompetitive conduct—Quantification—How competitor performed versus how it would have performed but for abuse—Linear interpolation—Contingency deduction—Competition Act 89 of 1998,
s 8(d)(i).

Aviation- National airline—Anticompetitive practice—Exclusion of competitor—Commission agreements between South African Airways and travel agents—Quantification of competitor’s damages—How competitor performed versus how it would have performed but for abuse by SAA—Linear interpolation used to estimate lost passengers and hence lost profits—R105 million awarded.

KYTHERA COURT v LE RENDEZ-VOUS CAFE CC AND ANOTHER (GJ)

BORUCHOWITZ J
2016 JUNE 8, 22

Company - Business rescue—Moratorium on legal proceedings against company—Scope—Ejectment proceedings against company under business rescue—Where lease agreement lawfully cancelled and company failing to vacate premises—Company in unlawful possession—Moratorium not encompassing ejection proceedings in such circumstances—Companies Act 71 of 2008, s 133(1).

SOLIDARITY AND OTHERS v SOUTH AFRICAN BROADCASTING CORPORATION (LC)

LAGRANGE J
2016 JULY 22, 26

Labour law - Dismissal—Summary dismissal—Dismissal in breach of contractual right to disciplinary procedure and right to freedom of expression—Dismissal void ab initio—Reinstatement ordered.

Costs - Costs de bonis propriis—When to be awarded—Against public official—Applicant dismissed without regard to pending applications and expense—Court directing responsible officials to show cause why they should not be held personally liable for applicant’s costs on attorney and client scale.

BLUE CHIP 2 (PTY) LTD t/a BLUE CHIP 49 v RYNEVELDT AND OTHERS (NATIONAL CREDIT REGULATOR AS AMICUS CURIAE) (SCA)

THERON JA, WALLIS JA, PILLAY JA, PETSE JA and WILLIS JA
2016 MAY 18; JUNE 3
[2016] ZASCA 98

Magistrates’ court - Civil proceedings—Jurisdiction—Whether cause of action arising wholly within jurisdiction of court—Where delivery of notice, preceding debt enforcement, in terms of s 129(1)(a) of the NCA occurring outside of district of magistrates’ court—Delivery of notice constituting essential element of cause of action—Matter not arising wholly within jurisdiction of court—Magistrates’ Courts Act 32 of 1944, s 28(1)(d); National Credit Act 34 of 2005, s 129(1)(a).

Credit agreement - Consumer credit agreement—Debt enforcement—Preliminary procedures—Notice of default—Delivery—Constituting essential element of cause of action—Where delivery taking place outside area of jurisdiction of magistrates’ court, cause of action not wholly arising within jurisdiction of court—Court lacking jurisdiction—National Credit Act 34 of 2005, s 129(1)(a); Magistrates’ Courts Act 32 of 1944, s 28(1)(d).

SHERIFF, PIKETBERG AND ANOTHER v LOURENS (WCC)

MAHOMED AJ
2016 JUNE 15; AUGUST 1

Consumer protection - Auctions—Sale in execution—Whether Sheriff of High Court must before sale enter into written agreement with ‘owner or rightful holder (who has the right to sell)’ of goods to be sold—Consumer Protection Act 68 of 2008, s 45(1); Consumer Protection Regulations, reg 22(2).

Execution - Sale in execution—Immovable property—Duties of sheriff—No general duty to establish and disclose whether value-added tax payable by purchaser.

PALALA RESOURCES (PTY) LTD v MINISTER OF MINERAL RESOURCES AND ENERGY AND OTHERS (SCA)

MAYA DP, TSHIQI JA, MAJIEDT JA, WALLIS JA and ZONDI JA
2016 MAY 12, 30
[2016] ZASCA 80

Mining and minerals - Mining and prospecting rights—Lapsing of upon deregistration of rights-holder company—Subsequent reinstatement of company’s registration retrospectively reviving lapsed prospecting right—Mineral and Petroleum Resources Development Act 28 of 2002, s 56(c); Companies Act 61 of 1973, s 73(6A).

Company - Register of companies—Reinstatement—Effect on prospecting rights which lapsed as result of deregistration—Reinstatement retrospectively reviving lapsed prospecting right—Mineral and Petroleum Resources Development Act 28 of 2002, s 56(c); Companies Act 61 of 1973, s 73(6A).

EX PARTE FULS AND THREE SIMILAR MATTERS (GP)

VAN NIEKERK AJ
2016 JUNE 23

Insolvency - Voluntary surrender—Disclosure—Application including debt arising from ‘credit agreements’ as intended in the National Credit Act—NCA’s debt review procedures may be more advantageous to creditors than voluntary surrender—Incumbent on applicant for voluntary surrender to disclose whether NCA remedies used, and if so also disclose report of debt counsellor involved—Insolvency Act 24 of 1936, s 3(1); National Credit Act 34 of 2005, ss 86–88.

KLAASE AND ANOTHER v VAN DER MERWE NO AND OTHERS (CC)

MOGOENG CJ, MOSENEKE DCJ, CAMERON J, JAFTA J, MADLANGA J, MATOJANE AJ, NKABINDE J, VAN DER WESTHUIZEN J, WALLIS AJ and ZONDO J

2015 SEPTEMBER 3; 2016 JULY 14

Land - Land reform—Statutory protection of tenure—Protected occupation of land—Wife residing on farm with occupier husband—Legal basis for—Whether husband’s right to family life, or that wife was occupier—Extension of Security of Tenure Act 62 of 1997, ss 1 and 6(2)(d).

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

MAYA ADP, CACHALIA JA, LEACH JA, TSHIQI JA and ZONDI JA
2015 AUGUST 27; 2016 APRIL 25

Company - Shares and shareholders—Minority shareholder—Personal action—Prescription—Minority shareholder’s right of action against company—Constituting ‘debt’ and prescribing after three years—Companies Act 61 of 1973, s 252; Prescription Act 68 of 1969, s 10(1).

Company - Shares and shareholders—Minority shareholder—Derivative action—Prescription—Minority shareholder’s entitlement to enforce company’s rights against delinquent directors and officers—No ‘debt’ capable of prescription existing until curator appointed to pursue company’ claims against delinquent officers or directors—Companies Act 61 of 1973, s 266; Prescription Act, s 13(1)(e).

RAMUHOVHI AND ANOTHER v PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS (LT)

LAMMINGA AJ
2016 AUGUST 1

Constitutional law - Legislation—Validity—Recognition of Customary Marriages Act 120 of 1998, s 7(1)—Having effect that polygamous customary marriages entered into prior to commencement of Act, as well as their proprietary consequences, still regulated by customary law—Venda customary law providing that wives in polygamous customary marriages having no rights in or control over marital property—Provision unjustifiably discriminating against women in polygamous customary marriages on basis of gender, race and ethnic or social origin—Provision unconstitutional—Interim relief to be granted pending enactment of legislation by Parliament governing matrimonial property regimes in respect of old polygamous customary marriages—In interim, wives in such marriages to have joint and equal rights of management of and control over marital property.

GRIESSEL AND ANOTHER v LIZEMORE AND OTHERS (GJ)

SPILG J
2015 JULY 15, 17, 22, 31; AUGUST 26

Company - Business rescue—Aims—Companies Act 71 of 2008, s 128(1)(b).

Company - Business rescue—Resolution—Requirement that board act in good faith in adopting resolution—Companies Act 71 of 2008, ss 129(1) and 130(5)(a)(ii).

Company - Business rescue—Practitioner—Time periods for filing and publishing notice of appointment—Commission has no power to extend—Companies Act 71 of 2008, s 129(4).

Company - Business rescue—Practitioner—When liable for costs—Companies Act 71 of 2008, s 140.

Company - Business rescue—Moratorium on legal proceedings against company—Not barring shareholders instituting proceedings against third parties to recover company’s property—Companies Act 71 of 2008, s 133.

POTGIETER v OLIVIER AND ANOTHER (GP)

UNTERHALTER AJ
2014 OCTOBER 13, 16

Credit agreement - Consumer credit agreement—Credit provider—Whether obligation to register—Once-off credit agreement—Registration not required—Authority to this effect doubted—National Credit Act 34 of 2005, s 40(1)(b).

TSHWANE CITY v AFRIFORUM AND ANOTHER (CC)

MOGOENG CJ, MOSENEKE DCJ, BOSIELO AJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MHLANTLA J, NKABINDE J and ZONDO J
2016 MAY 19; JULY 21
[2016] ZACC 19

Appeal - Appealablity—Interim interdict—Interdict ordering local authority, pending review of its decision to change street names, to stop changing street signs and restore those already changed—Application for leave to appeal directly to Constitutional Court—Common-law requirements for appealability of interim orders subsumed under constitutional ‘interest of justice’ standard—Leave to appeal against interim interdict must be granted if in interests of justice—Constitution, s 167(6)(b).

Constitutional law - Human rights—Right to freedom of religion, belief and opinion and rights relating to cultural, religious and linguistic communities—Whether Constitution recognising interests or rights based on a sense of belonging to place one lives, rooted in a particular history—Constitution, s 31(1).

Constitutional law - Separation of powers—Interim interdict ordering local authority, pending review of its decision to change street names, to stop changing street signs and restore those already changed—Interdict offending against principle of separation of powers—In interests of justice to grant leave to appeal directly to Constitutional Court—Whether appeal should be upheld—Balance of convenience favouring organ of state where interdict intruding on separation of powers.

Constitutional practice - Appeals to Constitutional Court—In what cases—Interim interdict—Common-law requirements for appealability of interim orders subsumed under constitutional ‘interests of justice’ standard—Leave to appeal must be granted if in interest of justice regardless of common-law impediments—General requirement that applicant must show irreparable harm not applying where in interests of justice to grant leave to appeal—Constitution, s 167(6)(b).

Interdict - Interim interdict—Irreparable harm—What constitutes—Not irreparable if harm complained of could be reversed by final order.

Interdict - Interim interdict—Balance of convenience—Competing rights or interests—Whether right or interest based on sense of belonging to place one lives, rooted in particular history, deserving of legal protection—Balance of convenience favouring organ of state where interdict would intrude on separation of powers—Constitution, s 31(1).

 

 SOUTH AFRICAN CRIMINAL LAW REPORTS
 TABLE OF CASES
 
  • S v Mothwa 2016 (2) SACR 489 (SCA)
  • Democratic Alliance v President of the Republic of South Africa and Others 2016 (2) SACR 494 (WCC)
  • S v Gama 2016 (2) SACR 530 (GJ)
  • MR v Minister of Safety and Security 2016 (2) SACR 540 (CC)
  • S v Kuyler 2016 (2) SACR 563 (FB)
  • National Director of Public Prosecutions v Airport Clinic, Johannesburg International (Pty) Ltd and Another 2016 (2) SACR 576 (GJ)
  • S v Feni 2016 (2) SACR 581 (ECB)
  • McBride v Minister of Police and Others (Helen Suzman Foundation as Amicus Curiae) 2016 (2) SACR 585 (CC)

 

 FLYNOTES
 

S v MOTHWA (SCA)

MAYA DP, THERON JA and MATHOPO JA
2015 SEPTEMBER 9; OCTOBER 1
[2015] ZASCA 143

Theft - Proof of—Doctrine of recent possession—When to be applied—Not limited to specific period but dependent on circumstances and particularly nature of property—Money and motor vehicles easily circulated.

DEMOCRATIC ALLIANCE v PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS (WCC)

DOLAMO J
2016 FEBRUARY10–12; MAY 23

Constitutional practice - Courts—Jurisdiction—Power of President in terms of s 12(6)(a) of National Prosecuting Authority Act 32 of 1998 to suspend Deputy National Director of Public Prosecutions and to institute enquiry into her alleged misconduct to determine her fitness to hold office—Constitution not conferring on President obligation to suspend or enquire into fitness to hold office—High Court having necessary jurisdiction to determine whether President had exercised his powers in terms of s 12(6)(a) rationally and lawfully—Constitution, s 167(4)(c) not applicable.

Constitutional practice - Application for review and setting-aside of decision of President not to invoke power in terms of s 12(6)(a) of National Prosecuting Authority Act 32 of 1998 to suspend Deputy National Director of Public Prosecutions and to institute enquiry into her alleged misconduct to determine her fitness to hold office—Defence of lis alibi pendens—Proceedings in another court in which same relief sought but by different applicant—Another case in different court where relief sought by another striking name of DNDPP off roll of advocates for same alleged misconduct—Cardinal requirement of plea of lis alibi pendens that litigation be between same parties, not present—Plea of lis alibi pendens dismissed.

Prosecution—Deputy National Director of Public Prosecutions—Alleged misconduct—Power of President in terms of s 12(6)(a) of National Prosecuting Authority Act 32 of 1998 to suspend Deputy National Director of Public Prosecutions and to institute enquiry into her alleged misconduct to determine her fitness to hold office—Principle of legality requiring President to act personally, in good faith and without misconstruing nature of his power—Decision to be rationally related to purpose for which power given—Both process by which decision made and decision itself having to be rational.

Prosecution - Deputy National Director of Public Prosecutions—Alleged misconduct—Power of President in terms of s 12(6)(a) of National Prosecuting Authority Act 32 of 1998 to suspend Deputy National Director of Public Prosecutions and to institute enquiry into her alleged misconduct to determine her fitness to hold office—Whether decision of President not to suspend Deputy National Director and to institute enquiry into her fitness to hold office rational and lawful—No real basis laid for drastic measure of suspension and institution of enquiry—And no basis laid for real apprehension of harm if Deputy National Director were to remain in office pending application for removal of her name from roll of advocates—Decision of President to await outcome of application to strike Deputy National Director off roll of advocates rational and lawful—Application for review and setting-aside of such decision dismissed.

S v GAMA (GJ)

AVVAKOUMIDES AJ and HUNDERMARK AJ
2015 DECEMBER 3, 11

Evidence - Witness—Cross-examination—Of state witness—On statement made to police—Magistrate not permitting cross-examination on unsigned statement of complainant in police docket in situation where complainant had made two statements, but only signed one—Irregularity committed vitiated entire proceedings.

MR v MINISTER OF SAFETY AND SECURITY (CC)

MOGOENG CJ, MOSENEKE DCJ, BOSIELO AJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MHLANTLA J, NKABINDE J and ZONDO J
2016 FEBRUARY 25; AUGUST 11
[2016] ZACC 24

Child - Arrest—Special requirements applicable to child—Provisions of s 28(2) of Constitution requiring that best interests of child be accorded paramount importance—There had to be no other, less invasive means of securing attendance of child at court.

S v KUYLER (FB)

OPPERMAN AJ
2016 APRIL 25; MAY 23

Evidence - Witnesses—Accomplice—Discharge from prosecution of witness in terms of s 204(2) of Criminal Procedure Act 51 of 1977—Enquiry into whether discharge to be given—Such sui generis and separate from main trial on merits—To be held at earliest after judgment on merits in main trial—Court to establish on balance of probabilities whether witness answered all questions frankly and honestly—Test subjective— Witness to be allowed to advance reasons and present evidence to justify his discharge—State also having interest to advance reasons and adduce evidence—Decision of court and complete order to be recorded on record of proceedings.

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v AIRPORT CLINIC, JOHANNESBURG INTERNATIONAL (PTY) LTD AND ANOTHER (GJ)

ADAMS AJ
2016 MAY 10, 13

Prevention of crime - Forfeiture order—Application for in terms of s 48 of Prevention of Organised Crime Act 121 of 1998—Property sought to be forfeited—Respondents receiving foreign currency legitimately for services rendered and goods sold, but committing offence under Exchange Control Regulations in not selling foreign currency received within 30 days—Foreign currency not 'proceeds of unlawful activities'— Order refused.

Words and phrases - 'Connection'—Meaning of in definition of 'proceeds of unlawful activities' in s 1 of Prevention of Organised Crime Act 121 of 1998—Some form of consequential relation between return and unlawful activity required.

S v FENI (ECB)

MBENENGE J and GOOSEN J
2015 SEPTEMBER 15

Trial - Record—Language—Use of indigenous languages—Government programme for elevating use of indigenous languages not sufficiently advanced that it should be used where exigencies of matter did not demand such use—Delay of two and a half years in preparing record because of translation difficulties leading to compromise of accused’s fundamental rights.

MCBRIDE v MINISTER OF POLICE AND OTHERS (HELEN SUZMAN FOUNDATION AS AMICUS CURIAE) (CC)

MOGOENG CJ, BOSIELO AJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MHLANTLA J, NKABINDE J and ZONDO J
2016 MAY 17; SEPTEMBER 6
[2016] ZACC 30

Constitutional practice - Courts—Constitutional Court—Confirmation proceedings—Court having duty to satisfy itself that High Court’s declaration of invalidity of various impugned sections of statute properly made—Constitution, s 172(2)(a).

Police - Independent Police Investigative Directorate (IPID)—Independence of—Provisions of s 6 of Independent Police Investigative Directorate Act 1 of 2011 giving Minister enormous powers and control over executive director of Directorate—Such provision antithetical to entrenched independence of IPID envisaged by Constitution and might lead to IPID becoming politicised and being manipulated—Subjecting executive director to laws of public service, as s 6(3) of IPID Act did, subversive of IPID’s institutional and functional independence—Invoking provisions of s 16A(1) of Public Service Act, Proclamation 103 of 1994, to suspend executive director and institute disciplinary proceedings against him inconsistent with s 206(6) of Constitution and invalid and set aside.

Police - Independent Police Investigative Directorate—Independence of—Section 6(3)(a) and 6(6) of Independent Police Investigative Directorate Act 1 of 2011 declared inconsistent with Constitution and invalid—Just and equitable remedy—Court declaring suspension and institution of disciplinary proceedings by Minister against executive director invalid—Court suspending declaration of invalidity for 30 days to enable National Assembly and Minister to exercise their disciplinary powers in terms of ss 17DA(3)–17DA(7) of South African Police Service Act 68 of 1995—Such order enabling Minister to restart disciplinary process on proper basis and also protecting presumption of innocence in favour of executive director—Constitution, 1996, s 172.

 

 THE NAMIBIAN LAW REPORTS 2016 (3)
 TABLE OF CASES
   
  • S v Gariseb 2016 (3) NR 613 (SC)
  • S v Babinu 2016 (3) NR 619 (HC)
  • Ndeitunga v Kavaongelwa 2016 (3) NR 622 (HC)
  • Viviers v Ireland and Another 2016 (3) NR 644 (HC)
  • Martucci and Others v Mountain View Game Lodge (Pty) Ltd 2016 (3) NR 789 (HC)
  • Negonga and Another v Secretary to Cabinet and Others 2016 (3) NR 670 (LC)
  • Namene v Khomas Regional Council 2016 (3) NR 701 (SC)
  • MW v Minister of Home Affairs 2016 (3) NR 707 (SC)
  • S v FM 2016 (3) NR 724 (NLD)
  • S v Miguel and Others 2016 (3) NR 732 (HC)
  • Van Straten No and Another v Namibia Financial Institutions Supervisory Authority and Another 2016 (3) NR 747 (SC)
  • Martucci and Others v Colcellini and Another 2016 (3) NR 658 (HC)
  • Fire Tech Systems CC v Namibia Airports Co Ltd and Others 2016 (3) NR 802 (HC)
  • Tow-In Specialist CC v Urinavi 2016 (3) NR 829 (LC)
  • Swart v Tube-O-Flex Namibia (Pty) Ltd And Another 2016 (3) NR 849 (SC)
  • Skorpion Mining Co (Pty) Ltd v Road Fund Administration 2016 (3) NR 864 (HC)
  • Hayley Fay t/a Hayley Fay Properties v Uptown Property Investment CC and Others 2016 (3) NR 893 (HC)
  • Katjivena and Others v Prime Minister of the Republic of Namibia and Others 2016 (3) NR 903 (HC)

 

 FLYNOTES
 

S v GARISEB (SC)

SHIVUTE CJ, MAINGA JA and SMUTS JA
2016 MARCH 1; MAY 12

Criminal procedure - Sentence—Murder—Committed with constructive intention of killing—Whether dolus eventualis mitigating factor depending on facts of each case—Murder of elderly person in cruel, brutal and gruesome manner—Dolus eventualis not a mitigating factor in circumstances.

S v BABINU (HC)

LIEBENBERG J and SHIVUTE J
2016 MAY 12
[2016] NAHCMD 140

Criminal procedure - Accused—Failure to appear in court—Provisions of s 170(1) of Criminal Procedure Act 51 of 1977 not applicable to accused who was in custody which caused his/her inability to appear on date of adjourned proceedings—Accused had no legal duty to report to court after his release.

NDEITUNGA v KAVAONGELWA (HC)

DAMASEB JP
2012 FEBRUARY 20, 22–24; APRIL 18–20; OCTOBER 31; NOVEMBER 27
2013 MARCH 5; APRIL 21; JUNE 11; JULY 16; NOVEMBER 21, 26
2014 FEBRUARY 5, 18, 25; MARCH 25; APRIL 1, 16; JUNE 3–4; AUGUST 6
2016 APRIL 11
[2016] NAHCMD

Defamation - Publication—Defamatory statements—Publication admitted—Rebuttal required of presumption that publication wrongful and intentional—Proof required that statements true and in public interest or made on privileged occasion—Public policy militated against finding of privilege when sufficient safeguards were available for ventilating grievances—Rule of law requiring respect for bodies created for these purposes.

VIVIERS v IRELAND AND ANOTHER (HC)

UEITELE J
2014 MARCH 10, 11, 12; APRIL 1; 2016 MAY 18
[2014] NAHCMD 148

Ejectment - Action for ejectment—Necessary averments—Plaintiff need only allege ownership of property and occupation thereof by defendant—Onus on defendant to prove lawful occupation—Onus discharged by defendants’ evidence that agreement between parties permitted occupation—Ejectment order refused.

Contract - Conditions—Suspensive conditions—Condition in contract requiring performance of act before obligation under contract could come into existence—Parties not fixing time for performance of obligations—Plaintiff could not unilaterally stipulate time for performance—Court implying term that performance must take place within reasonable time or within time agreed by parties—Parties extending time for performance by agreement—Condition fulfilled within extended period for performance.

MARTUCCI AND OTHERS v COLCELLINI AND ANOTHER (HC)

MASUKU J
2016 APRIL 21; MAY 18
[2016] NAHCMD 149

Costs - Security—Furnishing of—Peregrini instituting action against other peregrini in Namibia—Defendants seeking security for costs—Parties might have entitlement for security for costs for variety of reasons—Granting of security for costs solely in court’s discretion including granting order in favour of peregrinus against another peregrinus—High Court Rule 59.

NEGONGA AND ANOTHER v SECRETARY TO CABINET AND OTHERS (LC)

GEIER J
2016 APRIL 22; JUNE 6
[2016] NAHCMD 19

Labour law - Arbitration award—Appeal—Power to interfere strictly circumscribed—Only if arbitrator had exercised his discretion wrongly, based on applicable principles or when discretion was capriciously exercised or arbitrator had not acted for substantial reasons or materially misdirected himself/herself.

Labour law - Arbitration award—Appeal—Arbitrator could make any appropriate award including awards contemplated in Labour Act 11 of 2007, ss 86(15)—Reinstatement not primary award.

Labour law - Dismissal—Unfair dismissal—Reinstatement—New employment agreements came into existence subject to statutory terms elected by appellants to apply to their employment relationship—Statutory terms prescribed compulsory retirement age—Appellants having reached retirement age—Appellants could not be reinstated—Appeal dismissed—Public Service Act 2 of 1980, s 14.

NAMENE v KHOMAS REGIONAL COUNCIL (SC)

SMUTS JA, HOFF JA and CHOMBA AJA
2016 JUNE 17

Practice - Pleadings—Exception—Reliance on written contract—Requirement that true copy be annexed to pleadings—Contract and copy lost or not available to defendant—Law allowing party to prove execution and terms of contract by other evidence—Uniform Rules of Court, rule 18(6).

MW v MINISTER OF HOME AFFAIRS (SC)

DAMASEB DCJ, SMUTS JA and O’REGAN AJA
2015 NOVEMBER 2; 2016 JUNE 23

Constitutional law - Citizenship—By birth—In terms of art 4(1)(d) of Namibian Constitution—Citizenship by birth extended to be granted to as varied classes of people as possible as exemplified by extension of citizenship by birth—Article 4(1)(d) to be given generous and purposive interpretation advancing interests of child born in Namibia rather than limiting such interests—Parents resident in Namibia in terms of employment permits—Such parents ‘ordinarily resident’ in Namibia within meaning of art 4(1)(d).

S v FM (NLD)

JANUARY J and TOMMASI J
2016 APRIL 8; JUNE 13
[2016] NAHCNLD 39

Criminal procedure - Evidence—Witnesses—Competence of—Young complainant—Court has duty to follow provisions of s 164 of Criminal Procedure Act 51 of 1977—Court must be satisfied that witness appreciated meaning of telling the truth and was capable of giving intelligible evidence—Proper admonishment to be truthful required by court—Failure by court to properly admonish witness constituted an irregularity.

S v MIGUEL AND OTHERS (HC)

LIEBENBERG J
2016 JUNE 1, 20
[2016] NAHCMD 175

Criminal procedure - Bail—Appeal against magistrate’s refusal to grant bail—New ground, challenging jurisdiction of court a quo, raised for first time during appeal—New ground must be raised before trial court for consideration—Not in interests of justice to allow argument pertaining to jurisdiction on appeal.

Criminal procedure - Bail—Appeal against magistrate’s refusal to grant bail—Court may only overturn decision if satisfied that court a quo exercised judicial discretion wrongly—Court bound by provisions of Criminal Procedure Act 51 of 1977, s 65(4)—Not every irregularity committed resulting in overturning court a quo on appeal.

VAN STRATEN NO AND ANOTHER v NAMIBIA FINANCIAL INSTITUTIONS SUPERVISORY AUTHORITY AND ANOTHER (SC)

SHIVUTE CJ, SMUTS JA and HOFF AJA
2016 MARCH 15; JUNE 8

Practice - Pleadings—Exception—Exception as disclosing no cause of action—Allegations in pleading must be taken as correct—Pleading only excipiable if no possible evidence led on pleadings could disclose a cause of action.

Practice - Pleadings—Exception—Exception as being vague and embarrassing—Pleading must contain statement of material facts in compliance with High Court Rule 45 subject to overriding objective of judicial case management—Determination whether pleading lacking particularity resulting in vagueness and whether vagueness causing prejudice.

Company—Directors—Duties—Knowledge of directors or board of directors who were particeps criminalis was not imputed to company

Delict - Lex Aquilia—Extension of—Pure economic loss—At exception stage, plaintiffs must allege wrongfulness and plead facts in support of these essential allegations—Matter should then be left to trial court to decide these issues.

Delict - Liability for—Pure economic loss—Statutory body—Duty of enforcing regulatory provisions governing financial institutions—Failure of enforcing peremptory regulations and properly supervising institutions in terms of powers under Namibia Financial Institutions Act 3 of 2001 undermining rule of law and value of accountability—Foreseeable that members of public entrusting investments to those institutions could be at risk of losing their investments.

Delict - Liability for—Pure economic loss—Breach of statutory duties and obligations imported into contractual relationship—Delictual liability for loss resulting from breach of duties arising from Public Accountants’ and Auditors’ Act 51 of 1951 and related legislation and standards—Trial court might find, based on policy considerations that there was need to extend Aquilian action to avoid claimants being remediless in cases of professional negligence if limited to claim under contract.

Delict - Liability for—Pure economic loss—Investors suffering loss—Whether omission wrongful and actionable by investors against auditors, were questions for determination by trial court, also taking into account policy considerations, the limits of fairness, reasonableness and justice.

MARTUCCI AND OTHERS v MOUNTAIN VIEW GAME LODGE (PTY) LTD (HC)

MASUKU J
2016 JUNE 28; JULY 22
[2016] NAHCMD 217

Costs - Security—Furnishing of—High Court Rule 59—Court must determine liability of providing security for costs—Amount and manner of providing security for costs to be determined by registrar and not by court.

Costs - Security—Furnishing of—Factors to be taken into account—Character of foreigner—Nature of primary claim—Amount of security should not close doors of courts in Namibia.

FIRE TECH SYSTEMS CC v NAMIBIA AIRPORTS CO LTD AND OTHERS (HC)

UEITELE J
2016 APRIL 19; JULY 22
[2016] NAHCMD 220

Review - Administrative body—Citation of administrative body—Requirements of High Court Rule 76(1)—Chairman of board must be cited in his representative capacity in review proceedings irrespective of whether administrative body was juristic person or not—Separate citation of board—Unnecessary proliferation of parties.

Administrative law - Fair administrative justice—Administrative officials were subject to constitutional values of accountability, transparency and openness—Officials were obliged to record and justify reasons for decisions and to provide reasons upon request—Failure to consider tenders—Officials acting capriciously, irrationally and unfairly in contravention of art 18 of Constitution—Decision unlawful and invalid.

Constitutional practice—Enforcement of rights—Impractical to set aside tender award—Contract had run its course—Court in its discretion not setting aside award—Court exercised power under art 25(3) of Constitution to make appropriate order to secure enjoyment of rights and freedoms conferred by Constitution—Leave granted to applicant to recover damages from respondent if so advised.

TOW-IN SPECIALIST CC v URINAVI (LC)

UEITELE J
2015 MAY 22; JUNE 12; 2016 JANUARY 20
[2016] NALCMD 3

Labour law - Dismissal—Fairness of—Poor work performance by employee—Requirement for lawful dismissal—Substantive fairness—Employer must conduct assessment of employee’s performance—Value judgment of performance had to be objective and reasonable—Coaching and training essential for proper assessment.

SWART v TUBE-O-FLEX NAMIBIA (PTY) LTD AND ANOTHER (SC)

SHIVUTE CJ, DAMASEB DCJ and CHOMBA AJA
2016 MARCH 31; JULY 25

Labour law - Employee—What constitutes—Appellant, retired erstwhile managing director of first respondent, appointed as sales director earning commission on sales instead of salary—Absence of control strong indication that relationship not one of employment—Rebuttable presumption of factors in s 128A of Labour Act 11 of 2007 as amended—Onus on person wanting to avoid employer/employee relationship—Onus discharged on facts of case.

SKORPION MINING CO (PTY) LTD v ROAD FUND ADMINISTRATION (HC)

MASUKU J
2015 JUNE 15–17, 19; JULY 24; 2016 JULY 12
[2016] NAHCMD 201

Administrative law - Administrative bodies—Road Fund Administration—Administrative body exercising administrative functions within meaning of art 18 of Namibian Constitution—Required to act fairly and reasonably, not unduly harsh, free from bias and prejudice, impartial, rational and considerate—Procedure adopted in rejecting claims not fair and reasonable within meaning of art 18—Statutory regime must comply with audi principle unless expressly excluded by Parliament.

HAYLEY FAY t/a HAYLEY FAY PROPERTIES v UPTOWN PROPERTY INVESTMENT CC AND OTHERS (HC)

MASUKU J
2016 JUNE 21; JULY 12
[2016] NAHCMD 202

Practice - Pleadings—Exception—Particulars of claim vague and embarrassing—Two stage approach—Notice to remove cause of complaint within ten days failing which, filing of exception proper—High Court Rules 57(2) and (3).

Sale - Land—Statutory requirements of Formalities in Respect of Contracts of Sale of Land Act 71 of 1969, s 2—Applicability of requirement for contract to be in writing—Statutory requirements of s 2 of Act not applicable to contracts of mandate orally concluded to find a purchaser for land—Exception dismissed.

KATJIVENA AND OTHERS v PRIME MINISTER OF THE REPUBLIC OF NAMIBIA AND OTHERS (HC)

PARKER AJ
2016 APRIL 20; MAY 18
[2016] NAHCMD 146

Practice - Applications and motions—Locus standi—Challenge to locus standi must be raised in answering affidavit—Respondent must give applicant fair opportunity of meeting challenge in replying affidavit—Point in limine not properly before court and was rejected.

Practice - Parties—Locus standi—Applicant applying for interdict and declaratory order on her own behalf and on behalf of fellow employees—Actio popularis not part of Namibian law—Application did not constitute actio popularis—Right applicant sought to enforce available to her and her fellow employees—Respondents’ point in limine dismissed.

 

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