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October 2016

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases in the October law reports.

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

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

 

SOUTH AFRICAN LAW REPORTS

Freedom of speech and the Marikana massacre

During a sitting of the National Council of Provinces, Mr Malema said that the ANC government massacred the people in Marikana. He was told to withdraw the statement and when he refused was ordered to leave. However, he had not contravened the standing orders and should not have been ordered to leave. Chairperson, National Council of Provinces v Malema and Another 2016 (5) SA 335 (SCA)

Without prejudice letter not admissible

To counter the defendant’s plea of prescription, the plaintiff sought to produce a without-prejudice letter written on behalf of the defendant, to show that prescription had been interrupted, arguing that the letter would be admissible for the limited purpose of establishing an interruption of prescription. KLD Residential CC v Empire Earth Investments 17 (Pty) Ltd  2016 (5) SA 485 (WCC)

Public participation

The Restitution of Land Rights Amendment Act 15 of 2014 was declared invalid because Parliament failed to satisfy its obligation to facilitate public involvement in accordance with the Constitution. Given the gravitas of the legislation and the thoroughgoing public participation process that it warranted, the truncated time line was inherently unreasonable. It had been simply impossible for the council to afford the public a meaningful opportunity to participate. Land Access Movement of South Africa and Others v Chairperson, National Council of Provinces and Others 2016 (5) SA 635 (CC)

 

SOUTH AFRICAN CRIMINAL LAW REPORTS

Cellphone photo evidence

The accused contented that the photo was inadmissible because his rights had not been explained to him prior to his photo being taken by a security guard. However, the photo aided the state witnesses in explaining their testimony as to what the accused had been wearing at the time. It substantiated their testimony, had probative value and was admissible. S v Skhosana 2016 (2) SACR 456 (GJ)

Money laundering

For a conviction on money laundering there had to be a clear intention to hide or conceal the ‘hot’ money. This entailed the laundering of the legal funds to convert them into ‘clean’ money which the criminal could then safely spend. Money-laundering was by its very nature a secretive practice but the spending of the proceeds of this accused’s fraudulent tax refunds had not been concealed at all. S v Van Der Linde  2016 (2) SACR 377 (GJ)

Sexual orientation in prison

The applicant, a gay man who was serving a sentence in prison, applied for an order directing the respondents to accommodate him in a single cell or in the same cell as inmates of the same sexual orientation. Heterosexual inmates regarded him as a woman and continually harassed him. Mapodile v Minister of Correctional Services  2016 (2) SACR 413 (GJ)

 

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 SOUTH AFRICAN LAW REPORTS
 TABLE OF CASES
 
  • Chairperson, National Council of Provinces v Malema and Another 2016 (5) SA 335 (SCA)
  • Koukoudis and Another v Abrina 1772 (Pty) Ltd and Another 2016 (5) SA 352 (SCA)
  • Swart v Starbuck and Others 2016 (5) SA 372 (SCA)
  • Jacobs v Department of Land Affairs and Others 2016 (5) SA 382 (LCC)
  • Mbethe v United Manganese of Kalahari (Pty) Ltd 2016 (5) SA 414 (GJ)
  • Roering NO and Another v Mahlangu and Others 2016 (5) SA 455 (SCA)
  • Fisher v Natal Rubber Compounders (Pty) Ltd 2016 (5) SA 477 (SCA)
  • KLD Residential CC v Empire Earth Investments 17 (Pty) Ltd 2016 (5) SA 485 (WCC)
  • New Port Finance Co (Pty) Ltd and Another v Nedbank Ltd 2016 (5) SA 503 (SCA)
  • Standard Bank of SA Ltd v Van Dyk 2016 (5) SA 510 (GP)
  • Msiza v Director-General, Department of Rural Development and Land Reform 2016 (5) SA 513 (LCC)
  • Mathebula and Another v Harry 2016 (5) SA 534 (LCC)
  • FirstRand Bank Ltd v Mdletye and Another 2016 (5) SA 550 (KZD)
  • Herbex (Pty) Ltd v Advertising Standards Authority 2016 (5) SA 557 (GJ)
  • City of Cape Town v Khaya Projects (Pty) Ltd and Others 2016 (5) SA 579 (SCA)
  • Solidarity and Others v Department of Correctional Services and Others 2016 (5) SA 594 (CC)
  • Land Access Movement of South Africa and Others v Chairperson, National Council of Provinces and Others 2016 (5) SA 635 (CC)
 
 FLYNOTES
 

CHAIRPERSON, NATIONAL COUNCIL OF PROVINCES v MALEMA AND ANOTHER (SCA)

PONNAN JA, LEACH JA, PETSE JA, SALDULKER JA and SWAIN JA

2016 MAY 6, 20
[2016] ZASCA 69

Constitutional law - Parliament—Standing orders—Order that members may not impugn motives or integrity of other members—Whether properly applied.

KOUKOUDIS AND ANOTHER v ABRINA 1772 (PTY) LTD AND ANOTHER (SCA)

LEACH JA, MAJIEDT JA, PILLAY JA, VICTOR AJA and BAARTMAN AJA 

2016 MARCH 14; JUNE 2
[2016] ZASCA 95

Delict- Specific forms—Pure economic loss—Claim for damages for abuse of right—Requirements—First, subjective requirement of acting with sole or predominant intention to harm another—Second, objective requirement that act not advancing appreciable or legitimate interest of actor—Whether abuse of statutory right actionable.

SWART v STARBUCK AND OTHERS (SCA)

PONNAN JA, SERITI JA, DAMBUZA JA, MATHOPO JA and FOURIE AJA

2016 MAY 12, 30
[2016] ZASCA 83

Insolvency - Trustee—Sale by—Sale of insolvent estate’s property prior to second meeting of creditors—Whether s 82(8) applying—Insolvency Act 24 of 1936, s 82(8).

JACOBS v DEPARTMENT OF LAND AFFAIRS AND OTHERS (LCC)

NGCUCAITOBI AJ and MPSHE AJ

JUNE 2016

Land - Land reform—Restitution—Entitlement—Dispossession through racially discriminatory practice—1906 fraud on owner, facilitated by agent of state, nullifying transfer of land to new ‘owner’—Original owner evicted only in 1921—But court, taking cognisance of effect of 1906 fraud, invoking s 2(1)(c) of Restitution of Land Rights Act 22 of 1994 to hold that descendants of original owner entitled to compensation for loss of ownership, not just beneficial possession lost in 1921.

Land - Land reform—Restitution—Compensation—Equitable redress in form of financial compensation—Calculation—Compensation for loss of land may be adjusted upward to account for loss of use of land—Court taking into account hardship suffered by descendants of dispossessed and iniquity that would result from using market value of land as guideline—Court refusing, however, to adopt ‘fiction’ of undisturbed perpetual ownership and commercial exploitation—Constitution s 25(3); Restitution of Land Rights Act, s 33(1)(eB).

MBETHE v UNITED MANGANESE OF KALAHARI (PTY) LTD (GJ)

WENTZEL AJ

2015 OCTOBER 26; 2016 FEBRUARY 11

Company - Proceedings by and against—Derivative action—Leave—Requirements for in s 165(5)(b)—Onus and standard of proof—Nature of good faith—Companies Act 71 of 2008, s 165(5)(b).

Company - Proceedings by and against—Derivative action—Leave—If requirements for established, no discretion to refuse—Companies Act 71 of 2008, s 165(5)(b).

ROERING NO AND ANOTHER v MAHLANGU AND OTHERS (SCA)

WALLIS JA, WILLIS JA, SALDULKER JA, ZONDI JA and TSOKA AJA
2016 MAY 20, 30
[2016] ZASCA 79

Company - Winding-up—Enquiry into affairs of company—Summons—Setting aside—On grounds of abuse of process—Where litigation by liquidators under way or contemplated, and potential witness for other party to litigation summoned to be questioned on matters bearing upon litigation—Whether summons amounting to an abuse—Overriding question was whether enquiry for purpose contemplated by Act—Where purpose a proper one, possible advantages for purposes of future litigation accruing along way to liquidator, legitimate—Companies Act 61 of 1973, ss 417 and 418.

FISHER v NATAL RUBBER COMPOUNDERS (PTY) LTD (SCA)

LEWIS JA, WALLIS JA, WILLIS JA, SALDULKER JA and MATHOPO JA
2016 MARCH 4, 24
[2016] ZASCA 33

Prescription - Extinctive prescription—Interruption—Lapsing—Cession of claim—Summons whereby creditor claiming payment of debt served on defendant, interrupting prescription—Subsequent to litis contestatio, creditor ceding claim, and thereafter amending summons to substitute cessionary as plaintiff—Amendment not resulting in interruption of prescription lapsing—Prescription Act 68 of 1969, s 15(2) and (6).

Practice - Pleadings—Amendment—Summons—Substitution of plaintiff following cession of claim—Summons whereby creditor claiming payment of debt served on defendant, interrupting prescription—Subsequent to litis contestatio, creditor ceding claim, and thereafter amending summons to substitute cessionary as plaintiff—Amendment not resulting in interruption of prescription lapsing—Prescription Act 68 of 1969, s 15(2) and (6).

KLD RESIDENTIAL CC v EMPIRE EARTH INVESTMENTS 17 (PTY) LTD (WCC)

ROGERS J

2016 JUNE 14, 24

Evidence - Privilege—Legal professional privilege—Scope—Without-prejudice correspondence—Whether without-prejudice correspondence admissible as evidence of interruption of prescription—Prescription Act 68 of 1969, s 14.

Evidence - Admissibility—‘Without prejudice’ rule—Scope—Whether withoutprejudice correspondence admissible as evidence of interruption of prescription—Prescription Act 68 of 1969, s 14.

Prescription - Extinctive prescription—Interruption—By acknowledgment of liability—Without-prejudice correspondence—Whether without-prejudice correspondence admissible as evidence of interruption of prescription—Prescription Act 68 of 1969, s 14.

NEW PORT FINANCE CO (PTY) LTD AND ANOTHER v NEDBANK LTD (SCA)

NAVSA ADP, MAJIEDT JA, WALLIS JA, SALDULKER JA and ZONDI JA

2014 NOVEMBER 25; DECEMBER 1
[2014] ZASCA 210

Company - Business rescue—Suretyship—Effect of company’s business rescue on its sureties’ liability—Companies Act 71 of 2008, s 154.

STANDARD BANK OF SA LTD v VAN DYK (GP)

VAN OOSTEN J

2016 APRIL 25, 29

Practice - Pleadings—Exception—Exception to particulars of claim succeeding and plaintiff ordered to amend its papers within specified time period—Plaintiff failing to do so—Defendant bringing application for dismissal of action without having first served notice of bar—Dismissal application constituting irregular step—Uniform Rules of Court, rules 26 and 30(1).

Practice - Irregular proceedings—Setting aside—Exception to particulars of claim succeeding and plaintiff ordered to amend its papers within specified time period—Plaintiff failing to do so—Defendant bringing application for dismissal of action without having first served notice of bar—Dismissal application constituting irregular step—Uniform Rules of Court, rules 26 and 30(1).

MSIZA v DIRECTOR-GENERAL, DEPARTMENT OF RURAL DEVELOPMENT AND LAND REFORM AND OTHERS (LCC)

NGCUKAITOBI AJ and CANCA AJ 

2016 JULY 5

Expropriation - Compensation—Calculation—Market value of land not to be overemphasised at expense of other factors mentioned in s 25 of Constitution—Established two-step procedure (assessment of market value followed by equitable adjustment) followed—Court awarding less than market value on ground that maket value did not strike equitable balance between public interest and interests of owner.

Land - Land reform—Award of land to labour tenant—Compensation of owner—Calculation—Land Reform (Labour Tenants) Act 3 of 1996.

MATHEBULA AND ANOTHER v HARRY (LCC)

NGCUKAITOBI AJ

2015 MAY 29–30; JUNE 2

Land - Land reform—Occupier—Right to bury family members—Requirements for—Meaning of ‘residing’, ‘permission’ and ‘routinely gave permission’—Extension of Security of Tenure Act 62 of 1997, ss 1 and 6(2)(dA).

FIRSTRAND BANK LTD v MDLETYE AND ANOTHER (KZD)

GORVEN J 

2016 JUNE 7, 21; JULY 1

Credit agreement - Consumer credit agreement—Debt enforcement—Application to declare consumer’s immovable property executable—Judicial oversight—Factors to consider must include potential effect on reinstatement of credit agreement in default—National Credit Act 34 of 2005, s 129(4).

Credit agreement - Consumer credit agreement—Reinstatement of agreement in default—Possibility of must be included as factor to consider when exercising judicial oversight over declaring immovable property executable—National Credit Act 34 of 2005, s 129(4).

Execution - Attachment of immovable property—Declaration of executability—Judicial oversight—Factors to consider must include potential effect on reinstatement of consumer credit agreement in default—National
Credit Act 34 of 2005, s 129(4).

HERBEX (PTY) LTD v ADVERTISING STANDARDS AUTHORITY (GJ)

DU PLESSIS AJ 

2016 APRIL 25; MAY 5

Media - Advertising—Advertising Standards Authority—Jurisdiction over nonmembers—No lawful basis for exercising jurisdiction over non-members—Practical consequences of adjudicating complaints against non-members constituting imposition of jurisdiction, infringing non-members’ constitutional rights of freedom of association and expression—ASA may not issue any instruction, order, ruling or sanction against non-members without their consent or submission to jurisdiction.

Voluntary association - Action by—Against non-members—No lawful basis for exercising jurisdiction over non-members—Practical consequences of voluntary association’s adjudication of complaints against non-members may, as in present case, constitute imposition of jurisdiction, infringing non-members’ constitutional rights of freedom of association and expression—No instruction, order, ruling or sanction may be taken against non-members without their consent or submission to jurisdiction.

CITY OF CAPE TOWN v KHAYA PROJECTS (PTY) LTD AND OTHERS (SCA)

MAYA DP, MAJIEDT JA, SERITI JA, WILLIS JA and VICTOR AJA

2016 MAY 10; JULY 26
[2016] ZASCA 107

Constitutional law - Human rights—Socioeconomic rights—Right to adequate housing—Whether infringed by defective construction of houses destined for low-income group—Principle of subsidiarity applied—In circumstances of present case, contractor not ‘organ of state’ incurring constitutional obligations—Constitution, ss 26(1) and 239.

SOLIDARITY AND OTHERS v DEPARTMENT OF CORRECTIONAL SERVICES AND OTHERS (CC)

MOSENEKE DCJ, CAMERON J, JAFTA J, KHAMPEPE J, NKABINDE J, NUGENT AJ, VAN DER WESTHUIZEN J and ZONDO J

2015 NOVEMBER 18; 2016 JULY 15
[2016] ZACC 18

Labour law - Employment equity—Affirmative action—Discrimination within ‘designated groups’ under Employment Equity Act—All groups falling under black designated group, and both genders, must be equitably represented throughout workforce—Designated employer entitled to deny members of such groups appointment on basis of their adequate representation or overrepresentation—Employment Equity Act 55 of 1998, s 6(2)(a).

Labour law - Employment equity—Affirmative action—Discrimination within ‘designated groups’ under Employment Equity Act—Failure to take into account regional demographics in setting numerical targets and assessing representivity—Constituting unfair discrimination and unfair labour practice—Employment Equity Act 55 of 1998, ss 11(1) and 42(1)(a).

Labour law - Employment equity—Affirmative action—Quota—What constitutes—Flexible numerical target not constituting quota—Employment Equity Act 55 of 1998, s 15(3).

LAND ACCESS MOVEMENT OF SOUTH AFRICA AND OTHERS v CHAIRPERSON, NATIONAL COUNCIL OF PROVINCES AND OTHERS (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 16; JULY 28
[2016] ZACC 22

Constitutional law - Legislation—Validity—Restitution of Land Rights Amendment Act 15 of 2014—Unconstitutionality on grounds of failure of National Council of Provinces to facilitate adequate public involvement—Given gravitas of legislation and thoroughgoing public involvement warranted, truncated time line for enactment, which self-imposed, unreasonable—Constitution, s 72(1)(a).

Constitutional law - Legislation—Enactment—Parliament—National Council of Provinces—Duty to facilitate public involvement—Timetable for allowing public involvement in legislative process—In drawing up timetable, Parliament should not act perfunctorily: it must apply its mind taking into account whether real need for urgency; time truly required to complete process; and magnitude of right in issue—Constitution, s 72(1)(a).

Constitutional law - Provincial legislature—Duties—Facilitation of public involvement—Scope of duty—Where National Council of Provinces (NCOP), in enacting legislation, electing to facilitate public involvement through provincial legislatures—While NCOP entitled to do so, provincial legislatures not subordinated to authority of NCOP—Still having duty to play their part properly in affording public opportunity to participate in legislative process—Where truncated time line for enactment of legislation provided by NCOP, such that adequate public involvement impossible, nothing precluding legislatures from telling NCOP as much—Constitution, s 118(1)(a).

 
 SOUTH AFRICAN CRIMINAL LAW REPORTS
 TABLE OF CASES
 
  • S v Vilakazi 2016 (2) SACR 365 (SCA)
  • S v Van der Linde 2016 (2) SACR 377 (GJ)
  • S v Jolingana 2016 (2) SACR 404 (ECB)
  • Mapodile v Minister of Correctional Services and Others 2016 (2) SACR 413 (GJ)
  • Director of Public Prosecutions, Pretoria v Alberts 2016 (2) SACR 419 (GP)
  • S v Samuels 2016 (2) SACR 298 (WCC)
  • S v Vilakazi 2016 (2) SACR 432 (GP)
  • S v N 2016 (2) SACR 436 (KZP)
  • S v Singh and Others 2016 (2) SACR 443 (SCA)
  • S v Skhosana 2016 (2) SACR 456 (GJ)
  • Director of Public Prosecutions, Pretoria v Mtshali 2016 (2) SACR 463 (GP)
  • Minister of Police and Others v Kunjana 2016 (2) SACR 473 (CC)
 
 FLYNOTES
 

S v VILAKAZI (SCA)

MHLANTLA JA, SHONGWE JA, THERON JA, DAMBUZA JA and MATHOPO JA

22015 JUNE 10; NOVEMBER 5

[2015] ZASCA 103

Evidence - Sexual offences—First report of complaint—Admissibility of—Complainant only reporting offence to her mother after interrogation and subsequent hiding—Such not constituting evidence of voluntary or spontaneous first complaint but fact of coercion not on its own indication that allegation of rape fabricated.

Indictment and charge—Charge-sheet—Validity of—Date on which or period during which offence committed—If time when offence committed not material element of offence, failure to specify not rendering charge defective.

S v VAN DER LINDE (GJ)

NICHOLLS J

2016 APRIL 18; MAY 27

Prevention of crime - Offences—Contraventions of s 4 of Prevention of Organised Crime Act 121 of 1998—Money-laundering—What constitutes—Fraudulent VAT refunds deposited into business accounts and then immediately withdrawn by means of cash cheques or deposited into another business account—Where no attempt at concealment, money-laundering not proven.

S v JOLINGANA (ECB)

DAWOOD J, HARTLE J and MBENENGE J

2014 APRIL 29; MAY 31

Evidence - Witnesses—Cross-examination—Of state witness—On previous inconsistent statement to police—Requirement that basis be laid before embarking upon such cross-examination—Intervention by court that prevented cross-examination while defence counsel still in process of laying such basis constituting misdirection vitiating trial.

MAPODILE v MINISTER OF CORRECTIONAL SERVICES AND OTHERS (GJ)

MABESELE J

2016 JUNE 24

Prisoner - Sexual orientation—Right to be accommodated in cell with others of same sexual orientation—Order granted confirming right.

DIRECTOR OF PUBLIC PROSECUTIONS, PRETORIA v ALBERTS (GP)

BAQWA J and KUBUSHI J

2016 APRIL 19; JUNE 30

Sexual offences - Child pornography—Possession of in contravention of s 27(1)(a) of Films and Publications Act 65 of 1996—Sentence—Accused convicted of 481 counts of possession of child pornography and sentenced to two concurrent terms of five years’ imprisonment—Pictures depicting absolute depravity—Sentence disturbingly inappropriate and increased to one of 10 years’ imprisonment.

S v VILAKAZI (GP)

RANCHOD J and MABUSE J

2015 DECEMBER 7

Drugs - Possession of in contravention of s 4(b) of Drugs and Drug Trafficking Act 140 of 1992—Sentence—Conviction on single charge of possession of cocaine and heroin—Magistrates’ court imposing separate sentence in respect of each drug—Such amounting to irregularity—Sentence replaced on review by single sentence in respect of charge of possessing both drugs.

Drugs - Possession of in contravention of s 4(b) of Drugs and Drug Trafficking Act 140 of 1992—Sentence—Portion of sentence suspended on condition that accused not convicted of possession, use or dealing in drugs during period of suspension—Condition of suspension to be qualified by provision that suspended sentence can only be put into effect if accused sentenced to unsuspended sentence of imprisonment of more than six months—Such would avoid implementation of suspended sentence on conviction of minor offence.

S v N (KZP)

POYO-DLWATI J

2016 APRIL 7

Murder - Sentence—Correctional supervision—Mother of two minor children, one of whom was 2 years old, convicted of murdering man with whom she had relationship—Substantial mitigating circumstances including that she had acted with diminished responsibility—Court obliged to bear in mind best interests of child—Not advisable for child to be incarcerated with mother in correctional facility, even where provision made for young children—Such incarceration also in conflict with art 30 of African Charter on Rights and Welfare of Child—Correctional supervision of five years’ imprisonment in terms of s 276(1)(i) of Criminal Procedure Act 51 of 1977 imposed.

S v SINGH AND OTHERS (SCA)

TSHIQI JA, SWAIN JA, MBHA JA, TSOKA AJA and VICTOR AJA

2016 MARCH 2, 24
[2016] ZASCA 37

Evidence - Traps—Section 252A of Criminal Procedure Act 51 of 1977—Undercover agent used to infiltrate organised-crime syndicate involved in armed hijacking of vehicles—Participation by agent in crimes which exposed certain members of public to potential violence not rendering evidence obtained by undercover operation inadmissible in terms of s 35(5) of Constitution.

S v SKHOSANA (GJ)

WEINER J and DOSIO AJ

2016 JUNE 7

Evidence - Admissibility—Photographs—Cellphone photograph of accused taken by security officer—Admissibility not disputed in court a quo—Provisions of s 37(1)(d) of Criminal Procedure Act 51 of 1977, which permitted police officer to take photographic image of any arrested person, not unconstitutional—Photograph admissible.

DIRECTOR OF PUBLIC PROSECUTIONS, PRETORIA v MTSHALI (GP)

DE VOS J

2016 JUNE 14, 20

Appeal - Condonation—Requirements for—Appeal by Director of Public Prosecutions against lenient sentence imposed for rape—Fact of lenient sentence imposed not brought to attention of prosecutor’s superiors despite general instructions to do so—Public interest requiring that condonation be granted where non-custodial sentence imposed for violent rape.

MINISTER OF POLICE AND OTHERS v KUNJANA (CC)

MOSENEKE DCJ, BOSIELO AJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J,
MADLANGA J, MHLANTLA J, NKABINDE J and ZONDO J

2016 MAY 12; JULY 27
[2016] ZACC 21

Drugs - Search—Search without warrant in terms of s 11(1)(a) and (g) of Drugs and Drug Trafficking Act 140 of 1992—Provisions infringing right to privacy in circumstances where less restrictive means available to achieve aims of legislation—High Court declaration of invalidity confirmed with prospective effect.

Constitutional practice - Costs—Confirmation of declaration of invalidity—Party (respondent in Constitutional Court) not entitled to costs of representation in circumstances where no novel or complex issues raised and applicants had not only conceded that legislation constitutionally invalid but had themselves brought the confirmation application.

 

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