Dear South African Law Reports and Criminal Law Reports subscriber
Herewith the cases of interest in the October reports. Also included is the table of cases for Burrell's Intellectual Property Law Reports 2012, which is now available.
JUDGMENTS OF INTEREST IN THE OCTOBER EDITIONS OF THE SALR AND THE SACR
SOUTH AFRICAN LAW REPORTS
Trade union liable to members?
The employees instituted a high court action for damages against their union for failing to properly prosecute unfair dismissal claims on their behalf. The labour union had, after representing the respondent employees at a conciliation meeting that followed on their retrenchment, failed to refer the dispute to the labour court within the required 90 days or to apply for condonation. Food and Allied Workers Union v Ngcobo NO and Another 2013 (5) SA 378 (SCA)
Res ipsa loquitur and medical negligence
Negligence cannot to be inferred from a concession by a surgeon that something must have gone wrong during the operation. Even with the best will in the world things sometimes go amiss in surgical operations or medical treatment. A doctor is not to be held negligent simply because something went wrong. The application of res ipsa loquitur in medical negligence cases is discussed. Buthelezi v Ndaba 2013 (5) SA 437 (SCA)
Issuing of licences for performing animals by magistrate declared unconstitutional
In NSPCA v Minister of Agriculture, Forestry and Fisheries, and Others 2013 (5) SA 571 the Constitutional Court found that magistrates may no longer issue licences for the exhibiting and training of performing animals since this practice offended against the doctrine of separation of powers.
SOUTH AFRICAN CRIMINAL LAW REPORTS
Prisoners see prison closer to families
The ‘high-risk’ offenders, jailed for the long term as a result of convictions for armed robbery and murder, applied to be moved to a prison closer to their families, one with less security. After looking at various aspects of the case, the court refused the application. Masilela and Others v Bouwers and Others 2013 (2) SACR 350 (GNP)
Admission of guilt or a mere traffic fine?
The accused scraped against another car while reversing from a parking bay, thought that there was no damage, and left. Tracked down, he offered to pay for the scratch, but the complainant had already reported the incident. The accused paid what he thought was a traffic fine, but was in fact an admission of guilt, giving him a criminal record. He applied for review, and the conviction and sentence were set aside. S v Mutobvu 2013 (2) SACR 366 (GNP)
Circumstantial evidence: found in bloody shirt, next to deceased
The appellant was found wearing a bloodstained shirt, next to the shot deceased, but no weapon could be found. On appeal against his murder conviction, the court looks at the inferential reasoning involved in circumstantial evidence. The fact that no weapon was found on the appellant weighed against the circumstantial evidence, and the appeal against conviction succeeded. S v Nkubungu 2013 (2) SACR 388 (ECM)
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|SOUTH AFRICAN LAW REPORTS|
|TABLE OF CASES|
GOVERNMENT OF THE REPUBLIC OF ZIMBABWE v FICK AND OTHERS (CC)
MOGOENG CJ, MOSENEKE DCJ, FRONEMAN J, JAFTA J, KHAMPEPE J, MHLANTLA AJ, NKABINDE J, SKWEYIYA J, VAN DER WESTHUIZEN J and ZONDO J
2013 FEBRUARY 28; JUNE 27
Practice—Judgments and orders—Foreign judgments—Enforceability—Judgments and orders made by tribunals or international courts created in terms of binding international agreements, treaties and conventions—Common law developed to extend concept of ‘foreign courts’ to such tribunals or international courts—Such development, however, only applying to present and future matters.
JONOSKY v ROAD ACCIDENT FUND (GSJ)
CJ CLAASSEN J
2013 MAY 16; JUNE 14
Motor vehicle accident—Compensation—Claim against Road Accident Fund—Limits—Limit in respect of loss of income or support—Calculation—Future loss of income—Calculation to incorporate projected future inflation rate on annual basis—Road Accident Fund Act 56 of 1996, s 17(4)(c) read with s 17(4A)(b).
LAND AND AGRICULTURAL DEVELOPMENT BANK OF SA v MASTER OF THE MONTH GAUTENG HIGH COURT AND OTHERS (GNP)
2013 APRIL 8
Insolvency—Trustee—Accounts—Liquidation and distribution account—Free residue—General notarial bondholder’s preference in—Such limited to proceeds of movables comprising free residue.
BARKO FINANCIAL SERVICES (PTY) LTD v NATIONAL CREDIT REGULATOR AND ANOTHER (GNP)
PRETORIUS J, VORSTER AJ and HUGHES AJ
2013 FEBRUARY 13; MARCH 28
Credit agreement—Consumer credit agreement—Financial service fees—Legality—Supplementary service fee charged by third party—Amount due to credit provider and fee due to third party paid to credit provider—No separate agreement between consumer and third party—Service fee levied unlawful—Credit provider to refund consumers excess fees levied in terms of supplementary agreement—National Credit Act 34 of 2005.
FOOD AND ALLIED WORKERS UNION v NGCOBO NO AND ANOTHER (SCA)
PONNAN JA, MALAN JA, TSHIQI JA, SOUTHWOOD AJA and PLASKET AJA
2013 MARCH 7, 28
Labour law—Trade union—Liability to members—Failure to perform mandate—Union failing to pursue unfair dismissal claim on behalf of members after having undertaken to do so—Union liable for damages in amount that would have been awarded had claim been properly pursued.
Labour law—Dismissal—Unfair dismissal—Compensation—Such being in nature of solatium—Factors to be considered—Labour Relations Act 66 of 1995, ss 193 and 194.
ARENDSNES SWEEFSPOOR CC v BOTHA (SCA)
MTHIYANE DP, SHONGWE JA, LEACH JA, PILLAY JA and PETSE JA
2013 MAY 10, 31
Practice—Pleadings—Summons—Service—On close corporation—Corporation having ceased activity at its registered office and having no employee or representative there—Substantial compliance with rule where sheriff serving summons at office on man employed by another entity—Uniform Rules of Court, rule 4(1)(a)(v).
IQBAL v MINISTER OF HOME AFFAIRS AND OTHERS (GSJ)
2012 NOVEMBER 15, 24; DECEMBER 3; 2013 JANUARY 21
Immigration—Refugee—Asylum seeker—Detention—Application for release pending reapplication for asylum—Applicant having failed to use remedies available to him after rejection of initial application—No case made out—Applicant reverting to status of illegal immigrant—Refugees Act 130 of 1998, s 21(4)(a).
ROAD ACCIDENT FUND v MYHILL NO (SCA)
BRAND JA, SHONGWE JA, LEACH JA, WILLIS AJA and VAN DER MERWE AJA
2013 MAY 3, 29
Set-off—When operative—Debtor owing amount to child, and child’s parent owing amount to debtor—Debtor may not set off what parent owes it against what it owes child.
BUTHELEZI v NDABA (SCA)
BRAND JA, LEWIS JA, CACHALIA JA, MAJIEDT JA and SALDULKER AJA
2013 MAY 13, 29
Medicine—Medical practitioner—Negligence—Surgical operation—Negligence not to be inferred from concession by surgeon that something must have gone wrong during operation—Dependent on evaluation of reasoning underlying conflicting expert opinions.
Medicine—Medical practitioner—Negligence—Surgical operation—Admission by surgeon performing hysterectomy that injury to patient’s bladder would not have happened unless something went wrong during operation—Such not amounting to admission of negligence—Doctor not to be held negligent simply because something went wrong.
Medicine—Medical practitioner—Negligence—Proof—Res ipsa loquitur rarely, if ever, applying in medical negligence cases—Particularly not where it was not established what went wrong and expert evidence giving rise to various possibilities.
Evidence—Expert evidence—Evaluation—Where dispute turns on election between opposing views of two expert witnesses, determination of dispute resting with court and not with expert witnesses—Determination of dispute depending on analysis of cogency of underlying reasoning leading experts to their conflicting opinions.
ABSA BANK LTD v SUMMER LODGE (PTY) LTD (GNP)
2013 MAY 15, 22
Company—Business rescue—Where liquidation proceedings already initiated—Meaning of ‘liquidation proceedings’—Such commence on court’s grant of liquidation order and comprise liquidator and master’s process to wind up company—Companies Act 71 of 2008, s 131(6).
CLOETE v MARITZ (WCC)
2013 APRIL 24
Marriage—Promise to marry—Breach—Contractual damages—Law no longer permitting claim for prospective loss.
WJ BUILDING & CIVIL ENGINEERING CONTRACTORS CC v UMHLATHUZE MUNICIPALITY AND ANOTHER (KZD)
2013 APRIL 26; MAY 6
Government procurement—Procurement process—Fairness—Tender not awarded to highest-scoring tenderer—Rationale for doing so to be based on objective, reasonable and justifiable criteria—If reasons advanced arbitrary, then award prima facie unfair—Interdict granted restraining municipality from giving effect to award pending finalisation of applicant’s objection to award tender to second respondent—Preferential Procurement Policy Framework Act 5 of 2000, s 2(1)(f).
McKERSIE v SDD DEVELOPMENTS (WESTERN CAPE) (PTY) LTD AND OTHERS (WCC)
2013 JANUARY 22; MARCH 6
Land—Deeds registry—Registration of deeds—Registration of title by other than ordinary procedure—Requirements—Right to claim transfer of property to be extant—Must also be impossible to obtain registration of transfer in usual way—Semble: Because of possible transfer duty implications, and unless clearly none, salutary practice to serve rule nisi orders in such applications on South African Revenue Service—Deeds Registries Act 47 of 1937, s 33(1).
Land—Deeds registry—Registration of deeds—Registration of title by other than ordinary procedure—Ambit of phrase ‘acquired . . . right to the ownership of immovable property’ in governing Act—Including personal right to claim ownership of registered right of exclusive use—Deeds Registries Act 47 of 1937, s 33(1).
AGRI WIRE (PTY) LTD AND ANOTHER v COMMISSIONER, COMPETITION COMMISSION, AND OTHERS (SCA)
NUGENT JA, LEACH JA, TSHIQI JA, WALLIS JA and PILLAY JA
2012 AUGUST 30; SEPTEMBER 27
Competition—Unlawful competition—Cartel conduct—Competition Commission’s corporate leniency policy—Legality—Granting of immunity in return for information on cartel activities—Granting of immunity to individual cartel member—Admissibility of evidence obtained—Competition Act 89 of 1998, s 21(1).
Competition—Competition Tribunal—Jurisdiction—To hear appeals from, or review any decision of, Competition Commission—High court’s jurisdiction not excluded—May hear challenge to validity of referral to commission—Competition Act 89 of 1998, s 27(1)(c).
PICBEL GROEP VOORSORGFONDS (IN LIQUIDATION) v SOMERVILLE, AND RELATED MATTERS (SCA)
PONNAN JA, CACHALIA JA, PETSE JA, PLASKET AJA and MBHA AJA
2013 FEBRUARY 18; MARCH 22
Damages—Limitations—Contributory negligence—Reduction and apportionment of damages—Meaning of ‘full settlement of plaintiff’s claim’ in Apportionment of Damages Act 34 of 1956, s 2(12) read with s 2(6)(a) —Meaning complete settlement of plaintiff’s claim, extinguishing it completely.
BUSINESS PARTNERS LTD v TRUSTEES, RIAAN BOTES FAMILY TRUST, AND ANOTHER (WCC)
2013 JANUARY 24; MAY 3
Practice—Judgments and orders—Summary judgment—Deferral—Summary judgment may not be deferred by delivery of a notice to produce documents or tape recordings in terms of Uniform Rules of Court 35(12) and 35(14).
VAN RHYN AND OTHERS NNO v FLEURBAIX FARM (PTY) LTD (WCC)
YEKISO J, BINNS-WARD J and SAVAGE AJ
2013 JULY 24; AUGUST 8
Spoliation—Mandament van spolie—When available—Altering of route of right of way—Right of way of via simpliciter—Owner of servient tenement substituting existing route across its property with new route—Owner of dominant tenement alleging spoliation—Common law permitting such variation, provided no prejudice to owner of dominant tenement—Here no prejudice proven.
COMPETITION COMMISSION v ARCELORMITTAL SOUTH AFRICA LTD AND OTHERS (SCA)
BRAND JA, NUGENT JA, CACHALIA JA, PILLAY JA and MBHA AJA
2013 MAY 21, 31
Evidence—Privilege—Legal professional privilege—Litigation privilege—When attaching to communication—If prepared by third party for purpose of submission to legal advisor, and if litigation pending or contemplated—Said purpose to be ascertained by reference to person under whose authority communication was procured, not its author—Quaere: Whether submission of communication for legal advice should be sole or just dominant purpose for privilege to attach to it.
Evidence—Privilege—Legal professional privilege—Litigation privilege—Waiver—Implied waiver—Reference to privileged communication in pleading—Reference to part of document sufficient to constitute waiver destroying privilege attached to entire document, not just part referred to.
Competition—Unlawful competition—Cartel conduct—Competition Commission’s corporate-leniency policy—Application for leniency—Protection from disclosure—Commission may waive protection by making reference to application in referral affidavit—Once waiver established, entitlement to claim information as restricted similarly waived.
Competition—Competition Commission—Investigation procedures—Records —Access by litigant—Restricted information—If commission seeks to restrict access, required to identify specific documents or categories of documents to which it would restrict access.
Competition—Unlawful competition—Competition Commission—Investigative procedures—Right of informants to claim confidentiality—Commission to treat all information submitted by informants as confidential—Once decision made to use information before Competition Tribunal, information specifically claimed to be confidential to be dealt with in terms of Act—Tribunal proper forum for testing of claim of confidentiality under Act—Competition Act 89 of 1998, s 44(1)(a) and s 45(1).
FIRSTRAND BANK LTD v BRERA INVESTMENTS CC (SCA)
LEWIS JA, PONNAN JA, MALAN JA, THERON JA and PLASKET AJA
2013 MARCH 4, 25
Engineering and construction law—Building contract—Construction guarantee—Interpretation—Guarantee in favour of subcontractor—Guarantee providing that guarantor would incur liability to subcontractor if guarantor received certain documents relating contractor’s failure to furnish payment certificate by due date—Whether guarantor liable under guarantee if such event occurred but payment certificate subsequently furnished—Well established that guarantees must be paid according to their terms—Guarantor’s liability not affected by events occurring after due date.
ABSA BANK LTD v BOTHA NO AND OTHERS (GNP)
2013 MAY 14; JUNE 7
Practice—Judgments and orders—Summary judgment—Verifying affidavit—Deponent declaring she was female but commissioner certifying deponent was male—Inference that deponent did not sign in presence of commissioner—Non-compliance with requirement for making of affidavit—Document not an affidavit and could not support application for summary judgment.
NSPCA v MINISTER OF AGRICULTURE, FORESTRY AND FISHERIES, AND OTHERS (CC)
MOGOENG CJ, MOSENEKE DCJ, FRONEMAN J, JAFTA J, KHAMPEPE J, MHLANTLA AJ,
NKABINDE J, SKWEYIYA J and ZONDO J
2013 MARCH 19; JULY 11
Constitutional law—Separation of powers—Between judiciary and executive—Whether performance of administrative function by judiciary offending doctrine of separation of powers—Complete separation not required—Test formulated—Performance of certain administrative functions by judiciary not infringing doctrine.
Constitutional law—Separation of powers—Independence of judiciary—Whether issuing of licences by magistrates for exhibiting and training of performing animals offending doctrine of separation of powers—Such function non-judicial and not closely connected to core function of judiciary—No compelling reason why such function should be performed by member of judiciary—Applicable sections of enabling Act unconstitutional and invalid—Performing Animals Protection Act 24 of 1935, ss 2 and 3.
NAIDOO AND OTHERS v KALIANJEE NO AND OTHERS (GNP)
2013 JUNE 11
Insolvency—Effect—On insolvent—Property vesting in trustee—Warrant to take possession of insolvent estate’s property—Warrant may be issued collectively to trustee of estate, sheriff and police—Insolvency Act 24 of 1936, s 69(3).
VAN REENEN v SANTAM LTD (SCA)
MAYA JA, LEACH JA, THERON JA, WILLIS JA and MEYER AJA
2013 MAY 21, 29
Insurance—Liability of insurer—Claim by creditor against insolvent’s insurer—Nature—Distinct cause of action—Not statutory cession—Insolvency Act 24 of 1936, s 156.
INDUSTRIAL DEVELOPMENT CORPORATION OF SOUTH AFRICA v SOOLIMAN AND OTHERS (GSJ)
2013 JULY 17, 19
Practice—Applications and motions—Urgent application—Application for reconsideration of order granted in person’s absence—If affidavit is filed in answer to what was before court when order granted, reply may be filed—But if no answering affidavit is filed, no replying affidavit may be filed—Uniform Rules of Court, rule 6(12)(c).
IMPERIAL BANK LTD v BARNARD AND OTHERS NNO (SCA)
MPATI P, CACHALIA JA, PILLAY JA, SCHOEMAN AJA and SALDULKER AJA
2013 FEBRUARY 22; MARCH 28
Company—Winding-up—Liquidator—Proceedings by and against—Citation—Proceedings brought by liquidator on behalf of company must be brought in name of company—However, particulars of proceedings brought by liquidator in own name may, where clear that acting in representative capacity, be corrected by addition of name of company as plaintiff—Companies Act 61 of 1973, s 386(4)(a).
M AND ANOTHER v MINISTER OF POLICE (GNP)
2013 APRIL 18; JULY 3
Children—Rights—Parental care—Ambit—Including rights flowing from parental obligations of ‘care’ as defined in Children’s Act—Extending beyond meeting child’s need for financial support to all parental care duties required to prepare child for life—Semble: Absence of reference to ‘love and affection’ in definition of ‘care’ excluding deprivation of parental love and affection as basis for claim for constitutional damages—Constitution, s 28(1)(b); and Children’s Act 38 of 2005, s 1.
Constitutional law—Constitutional damages—Award—Infringement of child’s right to parental care—Constitutional damages appropriate—Constitution, ss 28(1) and 38; and Children’s Act 38 of 2005, ss 1 and 15.
Constitutional practice—Enforcement of rights—Action for constitutional damages for infringement of right to parental care—To be based on s 28 of Constitution read with relevant provisions of Children’s Act—Cause of action to be stated as appropriate relief in terms of s 15 of Children’s Act, for compensation arising out of loss of parental care—Constitution, s 28(1); and Children’s Act 38 of 2005, ss 1 and 15.
Delict—Specific forms—Loss of support—Dependant’s action—Dependent child’s action—Such action no longer governed by common law but by Constitution and Children’s Act—Any claim for damages arising out of infringement of child’s rights must be based on s 28 of Constitution read with relevant provisions of Children’s Act—Constitution, ss 28(1) and 38; and Children’s Act 38 of 2005, ss 1 and 15.
|SOUTH AFRICAN CRIMINAL LAW REPORTS|
|TABLE OF CASES|
S v NEDZAMBA (SCA)
NAVSA JA, BRAND JA, TSHIQI JA, PETSE JA and ZONDI AJA
2013 MAY 17, 27
Sexual offences—Repeal of common-law sexual offences by Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007—Effect of where rape committed after commencement of Act and indictment not specifically referring to new statutory offence—Deficiency in indictment not fatal in circumstances of case where accused legally represented and summary of substantial facts sets out details.
S v MALGAS AND OTHERS (SCA)
NAVSA JA, MAJIEDT JA and WILLIS AJA
2013 MAY 22, 31
Sentence—Appeal against—Lengthy delay between imposition of sentence and hearing of appeal—No automatic alleviation of sentence merely because of long interval—Where appellant responsible for delay and on bail pending appeal there was no cause for reduction in sentence by virtue of this factor.
MASILELA AND OTHERS v BOUWERS AND OTHERS (GNP)
2013 APRIL 16
Prisons—Prisoner—Accommodation—Application to transfer prisoners from maximum security centre far from their homes to lesser security centres closer to their homes so that they could be closer to families—Applicants not having established grounds for relief sought nor for urgency—Applications dismissed.
S v KUMKANI (WCC)
HENNEY J and MANTAME J
2013 MAY 21
Trial—Right of accused to fair trial in terms of s 35(3) of Constitution of the Republic of South Africa, 1996—Right to be informed at end of trial of rights to review and appeal—Effect of failure—Conviction and sentence set aside where rights not explained.
S V MASIYA AND OTHERS (GNP)
LOUW J and PRINSLOO J
2013 MARCH 4
Review—In what cases—Before trial concluded but after conviction—Where s 304A of Criminal Procedure Act 51 of 1977 not applicable, as proceedings were in accordance with justice and record could not be reconstructed after 11 years due to no fault of accused—Matter reviewable to prevent injustice.
S v MUTOBVU (GNP)
RANCHOD J and MOTHLE J
2012 NOVEMBER 15
Admission of guilt—Setting aside of—Accused paying fine under mistaken belief that he was paying a traffic fine—Unaware of the consequences, including acquiring of criminal record—Summons in question not setting out consequences of paying admission of guilt fine—Conviction and sentence set aside.
S v MARQUES (GNP)
PHATUDI J and MSIMEKI J
2012 NOVEMBER 30
Review—In what cases—Gross irregularity in proceedings as envisaged by s 24(1)(c) of Supreme Court Act 59 of 1959—Discovery during cross -examination of witness that prosecutor assisted in changing his statement not gross irregularity in proceedings and matter not reviewable prior to conclusion of criminal proceedings.
S v SINGH (KZD)
GYANDA J and KHALLIL AJ
2013 APRIL 5
Review—Special review in terms of s 304(4) of Criminal Procedure Act 51 of 1977—In what case—Not intended to be cheap alternative to appeal.
S v SENGAMA (SCA)
BRAND JA, LEACH JA and WALLIS JA
2013 AUGUST 23
Appeal—To Supreme Court of Appeal—Leave to appeal—Applications for—Record—Procedure set out where petitioner not legally represented at trial or where not legally represented for purposes of petition—Criminal Procedure Act 51 of 1977, s 316(10)(c).
NGQUKUMBA v MINISTER OF SAFETY AND SECURITY AND OTHERS (SCA)
BRAND JA, MAYA JA, THERON JA, PETSE JA and MEYER AJA
2013 MAY 16, 31
Traffic offences—Possession, without lawful cause, of vehicle bearing falsified engine or chassis number prohibited, s 68(6)(b) of National Road Traffic Act 93 of 1996—Although vehicle unlawfully seized by police, vehicle not to be returned to owner where vehicle having any features referred to in s 68(6)—Possession of such vehicle criminal offence.
S v NKUBUNGU (ECM)
EKSTEEN J and BARTLE J
2013 JUNE 21; JULY 4
Evidence—Circumstantial evidence—Assessment of—Inferential reasoning—Appellant found wearing bloodstained shirt, with deceased who had been shot, but no weapon found in possession of or in vicinity of appellant immediately after shooting—Other persons present immediately before shooting—No residue found on appellant’s hands—Appellant not testifying at trial—State evidence not passing muster and appellant entitled to acquittal.
S v GXALEKA (ECB)
VAN ZYL J and DUKADA J
2012 OCTOBER 26
Juvenile offenders—Trial of—Fact that accused under age of 18 years only coming to attention of court during cross-examination of state witness—Failure to deal with accused as child in terms of Child Justice Act 75 of 2008 serious irregularity—Proceedings set aside and remitted to magistrates’ court—Legal practitioner having role to play to ensure objectives of Child Justice Act achieved.
MPOFU v MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT (CC)
MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, NKABINDE J, SKWEYIYA J, VAN DER WESTHUIZEN J, YACOOB J and ZONDO J
2012 NOVEMBER 29; 2013 JUNE 6
Appeal—To Constitutional Court—Application for leave to appeal and condonation—Against sentence—Application based on allegation that applicant a child when sentenced to life imprisonment some 10 years earlier—Factual basis for allegation not established—Not in interests of justice that matter be heard.
S v SEKOERE (FB)
KRUGER J, DAFFUE J and MUSI J
2013 JUNE 27
Juvenile offenders—Sentence—Committal to child and youth care centre—Reviewability of sentence—Sentence subject to review, whether child legally represented or not—Child Justice Act 75 of 2008, ss 76 and 85.
|BURRELL'S INTELLECTUAL PROPERTY LAW REPORTS 2012|
|TABLE OF CASES|
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