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October 2012

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases of interest in the October reports. Also included below are the table of cases and flynotes.  Also below is the table of cases for Burrell's Intellectual Property Law Reports 2011, which is now available.

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

SOUTH AFRICAN LAW REPORTS

Do defaulting consumers collect their registered mail?

When banks send defaulting consumers a notice under the Credit Act and the registered mail is returned as uncollected, who bears the risk of non-receipt? Will the bank need to take another step to notify the consumer? Two high court judgments consider the recent Constitutional Court judgment of Sebola and then tackle this issue. Absa Bank Ltd v Mkhize and Another and Two Similar Cases 2012 (5) SA 574 (KZD) and Nedbank Ltd v Binneman and Thirteen Similar Cases 2012 (5) SA 569 (WCC)

Protection from eviction from agricultural land

The Extension of Security of Tenure Act protects occupiers of agricultural land from eviction, if the occupier had express or tacit consent to stay there. The Supreme Court of Appeal looks at what sort of consent is sufficient and whether it needed to originate in agreement, in particular where a right of residence was based on an employment contract. Sterklewies (Pty) Ltd t/a Harrismith Feedlot v Msimanga and Others 2012 (5) SA 392 (SCA)

Extradition to face a possible death penalty

Can South Africa deport a person wanted for criminal prosecution in another country, when that country might impose the death penalty? And what if a country with the death penalty assures that it will not impose such penalty? Minister of Home Affairs and Others v Tsebe and Others 2012 (5) SA 467 (CC)

SOUTH AFRICAN CRIMINAL LAW REPORTS

Illegal shebeen run with barefaced disregard for the law

Despite police efforts, a shebeen continued to thrive as a co-ordinated business to profit from criminal activity. In the circumstances forfeiture of the house under the Prevention of Crime Act was proportionate and appropriate. Van der Burg and Another v National Director of Public Prosecutions and Another 2012 (2) SACR 331 (CC)

Youth of accused not enough to avoid life imprisonment

The accused were young, unskilled and had only piecemeal jobs. Their hard, deprived upbringing was however no excuse for the brutal and vicious murder using a golf club. The court could find no circumstances to avoid imposing life sentences. S v Mahlangu and Others 2012 (2) SACR 373 (GSJ)

Accused's bail application on affidavit not succeeding

In his bail application the accused put forward circumstances that weighed in his favour. However, in light of the state’s oral evidence, the accused had not discharged the onus of showing the exceptional circumstances required for his release on bail. S v Najoe 2012 (2) SACR 395 (ECP)

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SOUTH AFRICAN LAW REPORTS

TABLE OF CASES

  • Northern Metropolitan Local Council v Company Unique Finance (Pty) Ltd and Others 2012 (5) SA 323 (SCA)

  • Commissioner, South African Revenue Service v De Beers Consolidated Mines Ltd 2012 (5) SA 344 (SCA)

  • Stellenbosch Farmers' Winery Ltd v Commissioner, South African Revenue Service 2012 (5) SA 363 (SCA)

  • TH Restaurants (Pty) Ltd v Rana Pazza (Pty) Ltd and Others 2012 (5) SA 378 (WCC)   

  • Sterklewies (Pty) Ltd t/a Harrismith Feedlot v Msimanga and Others 2012 (5) SA 392 (SCA)

  • Excellent Petroleum (Pty) Ltd (In Liquidation) v Brent Oil (Pty) Ltd 2012 (5) SA 407 (GNP)

  • Investec Bank Ltd v Bruyns 2012 (5) SA 430 (WCC)

  • Commissioner, South African Revenue Service v LG Electronics SA (Pty) Ltd 2012 (5) SA 439 (SCA)

  • Distell Ltd v Commissioner, South African Revenue Service 2012 (5) SA 450 (SCA)

  • Minister of Home Affairs and Others v Tsebe and Others 2012 (5) SA 467 (CC)

  • Nedbank Ltd v Bestvest 153 (Pty) Ltd 2012 (5) SA 497 (WCC)

  • Essa and Another v Bestvest 153 (Pty) Ltd and Others 2012 (5) SA 497 (WCC)

  • AG Petzetakis International Holdings Ltd v Petzetakis Africa (Pty) Ltd and Others (Marley Pipe Systems (Pty) Ltd and Another Intervening) 2012 (5) SA 515 (GSJ)

  • Liberty Group Ltd v Singh and Another 2012 (5) SA 526 (KZD)

  • Barnard and Others NNO v Imperial Bank Ltd and Another 2012 (5) SA 542 (GSJ)

  • Huang v Bester NO 2012 (5) SA 551 (GSJ)

  • BC v CC and Others 2012 (5) SA 562 (ECP)

  • Nedbank Ltd v Binneman and Thirteen Similar Cases 2012 (5) SA 569 (WCC)

  • Absa Bank Ltd v Mkhize and Another and Two Similar Cases 2012 (5) SA 574 (KZD)

  • Engen Petroleum Ltd v Multi Waste (Pty) Ltd and Others 2012 (5) SA 596 (GSJ)

  • CMC Woodworking Machinery (Pty) Ltd v Pieter Odendaal Kitchens 2012 (5) SA 604 (KZD)

  • Papenfus en 'n Ander v Torre NO en Andere 2012 (5) SA 612 (GNP)

  • Alam v Minister of Home Affairs 2012 (5) SA 626 (ECP)

  • Somali Association for South Africa and Another v Minister of Home Affairs and Others 2012 (5) SA 634 (ECP)

  • Nedbank Ltd v Samsodien NO 2012 (5) SA 642 (GSJ)

FLYNOTES

NORTHERN METROPOLITAN LOCAL COUNCIL v COMPANY UNIQURE FINANCE (PTY) LTD AND OTHERS (SCA)

MPATI P, CLOETE JA, SNYDERS JA, BOSIELO JA and NDITA AJA

2012 FEBRUARY 21; MAY 21

Estoppel—Estoppel by representation—Agency by estoppel—Ostensible authority—Whether council estopped from denying authority of one of its many employees—Authority of employee to tell world that his subordinate had authority to bind council—Employees in question both low-ranking—No evidence of trappings of authority—Impression of seniority gained by plaintiff not one created by employees’ appointments—No liability attaching to council. 

COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE v DE BEERS CONSOLIDATED MINES LTD (SCA)

NAVSA JA, VAN HEERDEN JA, LEACH JA, McLAREN AJA and SOUTHWOOD AJA

2012 MAY 7; JUNE 1

Revenue—Value-added tax—Imported services—Whether acquired ‘otherwise than for . . . purpose of making taxable supplies’—Answer only determinable in relation to factual finding on what particular ‘enterprise’ consisting of—Respondent company’s ‘enterprise’ mining, marketing and selling diamonds—VAT on advisory services, acquired by company to discharge statutory duty, too far removed from advancement of ‘enterprise’ to qualify as services acquired for ‘consumption, use or supply in course of making taxable supplies’—Value-Added Tax Act 89 of 1991, ss 1 and 7(1)(c).

Revenue—Value-added tax—Imported services—Whether services consumed and/or utilised in South Africa—Practical approach required to determine place of consumption and/or utilisation—Board of company acquiring imported services met and implemented transaction at its South African head offices—In such circumstances, despite some meetings with supplier having taken place overseas, conclusion compelling that imported services consumed in South Africa—Value-Added Tax Act 89 of 1991, ss 1 and 7(1)(c).

Revenue—Value-added tax—Input tax—When deductible—Whether VAT on advisory services acquired by company to discharge statutory duty, deductible as input tax—Where company’s enterprise consisting of mining, marketing and selling diamonds—Purpose of acquiring advisory services too far removed from advancement of enterprise to qualify as services acquired for ‘consumption, use or supply in course of making taxable supplies’—Value-Added Tax Act 89 of 1991, s 1.

STELLENBOSCH FARMERS' WINERY LTD v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE; COMMISSIONER, SOUTH AFRICAN REVENUE SERVICES v STELLENBOSCH FARMERS' WINERY LTD (SCA)

BRAND JA, VAN HEERDEN JA, TSHIQI JA, KROON AJA and BORUCHOWITZ AJA

2012 MAY 2, 25

Revenue—Income tax—Income or capital accrual—No single criterion but determined by facts of each case—Well-established guideline-test whether accrual ‘gain made . . . in carrying out . . . scheme for profitmaking’—This not what transpired in present case when taxpayer received compensation for distribution rights lost as result of early termination of agreement—Where taxpayer losing valuable incorporeal asset, compensation for such loss properly viewed as receipt of capital nature.

Revenue—Value-added tax—Liability—Where agreed compensation paid to vendor by non-resident for early termination of agreement granting vendor distribution rights—Agreement constituting surrender of rights which, in turn, constituting taxable supply of service by vendor to non-resident—Where, as in present case, such services also not directly connected with movable property situated in South Africa, zero rate applicable as contemplated in Value-Added Tax Act 89 of 1991, s 11(2)(l)(ii).

TH RESTAURANTS (PTY) LTD v RANA PAZZA (PTY) LTD AND OTHERS (WCC)

YEKISO J

2012 APRIL 16–17; JUNE 8

Contract—Reciprocity of obligations—Exceptio non adimpleti contractusWhether obligations reciprocal or collateral—Franchise agreement containing ‘without deduction or set-off’ clause—If obligations to render services and to pay for them reciprocal, reliance on exceptio not excluded by clause. 

STERKLEWIES (PTY) LTD t/a HARRISMITH FEEDLOT v MSIMANGA AND OTHERS (SCA)

MTHIYANE DP, FARLAM JA, WALLIS JA, KROON AJA and BORUCHOWITZ AJA

2012 MAY 18, 25

Land—Land reform—Statutory protection of tenure—Protected occupation of land—Consent of owner—Occupier merely having to show explicit or tacit consent to occupation, regardless of source of such consent—Need not originate in agreement—Extension of Security of Tenure Act 62 of 1997, ss 3(1) and 8.

Land—Land reform—Statutory protection of tenure—Protected occupation of land—Termination of right of residence and eviction—Where right of residence based on employment contract and occupier resigning or dismissed—Quaere: Whether right of residence may nevertheless persist on broad grounds of justice and equity—Extension of Security of Tenure Act 62 of 1997, s 8(1) and (2).

Land—Land reform—Statutory protection of tenure—Protected occupation of land—Termination of right of residence and eviction—Where right of residence based on employment contract and occupier resigning or dismissed—Whether employment contract provided that right of occupation would cease upon termination of contract—Extension of Security of Tenure Act 62 of 1997, s 8(1) and (2).

EXCELLENT PETROLEUM (PTY) LTD (IN LIQUIDATION) v BRENT OIL (PTY) LTD (GNP)

PRINSLOO J

2012 FEBRUARY 29; MARCH 1; MAY 22

Company—Winding-up—Unlawful alienations and preferences—Void disposition—By agreement company E paying cash to B and then becoming entitled to collect corresponding quantity of diesel—E encountering financial difficulties and creditor applying for, and court ultimately granting, provisional winding-up order—E continuing to pay and collect until some days after grant of order when B learning thereof and ceasing dealing—Liquidator later applying for declaration that post-winding-up payments void and for order that B return them—Whether payments in period from application for winding-up to grant of provisional winding-up order ought to be validated—Whether court could validate payments after grant of winding-up order—Companies Act 61 of 1973, s 341(2).

INVESTEC BANK LTD v BRUYNS (WCC)

ROGERS AJ

2011 NOVEMBER 10, 14

Company—Business rescue—Moratorium on legal proceedings against company—Enforcement of suretyship—Provision explicitly referring to contract of suretyship ‘by a company’ and to its enforcement by another person ‘against the company’—Provision not protecting surety in respect of debts of company subject to moratorium—Companies Act 71 of 2008, s 133(2).

Company—Business rescue—Moratorium on legal proceedings against company—Moratorium providing company with defence in personam against creditor—Moratorium not availing surety for debts of company subject to business rescue proceedings—Companies Act 71 of 2008, s 133(2). 

COMMISSIONER, SOUTH AFRICAN REVENUE SERVICES v LG ELECTRONICS SA (PTY) LTD (SCA)

HARMS DP, HEHER JA, NUGENT JA, LEWIS JA and GRIESEL AJA

2010 MAY 10, 28

Revenue—Customs and excise—Classification of articles for customs duty—General rule that goods characterised by their objective characteristics at time of importation—Enquiry not turning upon what product might become or be modified to be—Video monitors (screens) and tuners separately imported—Whether screens qualifying as incomplete television receivers—Screens possessing an existence and utility of their own which did not include or require incorporation of tuner—Without tuner, use of screens as ‘reception apparatus for television’ totally excluded—That screens designed to accept such devices or could be easily modified to accept them irrelevant—Screens correctly classified as video monitors.

Revenue—Customs and excise—Classification of articles for customs duty—Fraus legis—Whether separate importation of screens and tuners was cloak to disguise reality of entry of television sets into South Africa with intention of evading legitimate levying of duty on such sets—No evidence to suggest that respondent manipulated design or manufacturing or importation process to avoid payment of duties—No fraus legis.

DISTELL LTD v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE (SCA)

NAVSA JA, HEHER JA and VAN HEERDEN JA

2012 MAY 22, 31

Revenue—Customs and excise—Classification of articles for excise duty—Proper consideration of tariff headings, section notes, chapter notes and explanatory notes—Three-stage test applied for proper determination of applicable tariff—Application of International Harmonized System of classification—Customs and Excise Act 91 of 1964, s 47(8)(a).

Revenue—Customs and excise—Classification of articles for excise duty—Alcoholic beverages—Mixtures—Component giving beverage its essential characteristic being determinative—Classification of beverages based on ‘stripped’ wine with added distilled spirits and flavourants—Essential ‘vinosity’ of beverages lost through stripping—Beverages correctly classified as distilled spirits falling under tariff heading 22.08—Customs and Excise Act 91 of 1964, sch 1.

MINISTER OF HOME AFFAIRS AND OTHERS v TSEBE AND OTHERS (CC)

MOGOENG CJ, YACOOB ADCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MAYA AJ, NKABINDE J, SKWEYIYA J, VAN DER WESTHUIZEN J and ZONDO AJ

2012 FEBRUARY 23; JULY 27

Immigration—Aliens—Deportation—Deportation for trial on offence carrying death penalty—State may not extradite or deport person if this will expose him to real risk of death penalty—State may do so if foreign state gives assurance that it will not impose, or, if it does impose, will not execute, death penalty. 

NEDBANK LTD v BESTVEST 153 (PTY) LTD; ESSA AND ANOTHER v BESTVEST 153 (PTY) LTD AND OTHERS (WCC)

GAMBLE J

2012 APRIL 10, 11; JUNE 12

Company—Business rescue—RequirementsReasonable prospect of rescue—EvidenceApplication to set out sufficient facts enabling court to assess prospects of successful rescueWhere, as here, applicant nontrading company with incomplete building development as its only asset, such facts should ideally include prospects of financing costs of completion and how, once completed, commercial viability to be attained—Companies Act 71 of 2008, s 131(4)(a).

AG PETZETAKIS INETERNATIONAL HOLDINGS LTD v PETZETAKIS AFRICA (PTY) LTD AND OTHERS (MARLEY PIPE SYSTEMS (PTY) LTD AND ANOTHER INTERVENING) (GSJ)

JP COETZEE AJ

2012 FEBRUARY 3, 6

Company—Business rescue—Application—Although application predating rescue plan, such future plan and its alternative object (better returns for creditors or shareholders than would result from immediate liquidation) relevant when rescue order considered—If achievable draft plan with substantial support provided at time of application, prospects of approval improved—But absence of such plan at time of application not necessarily fatal—Prerequisites for order are that any one of ss (i), (ii) or (iii) of s 131(4) must be fulfilled and that court to be satisfied that reasonable prospect of rescuing company exists—Latter requirement must be present irrespective of which of ss (i), (ii) or (iii) of s 131(4) applicable—Companies Act 71 of 2008, s 131(4).

Company—Business rescue—Requirements—Reasonable prospect of rescue—Once company under business rescue, rescue plan may be aimed at alternative object of plan, namely better returns for creditors or shareholders than would result from immediate liquidation—Likelihood of that object being achieved to appear from founding papers in application.

Company—Business rescue—Business rescue proceedings—Legislative intention that such proceedings be conducted reasonably speedily—Reason being that rescue proceedings temporarily protecting company from legal proceedings by its creditors without any input from creditors and removing unfettered management of company from directors—Delays in proceedings would extend duration of temporary statutory arrangements

LIBERTY GROUP LTD v SINGH AND ANOTHER (KZD)

SWAIN J

2012 MAY 11; JUNE 7

Attorney—Rights and duties—Rights—Appearance in high court—Registrar’s certificate conferring right on attorney to appear in high court conferring right on him or her to appear before, and carry out functions of advocate in, all divisions of high court—Certificate also entitling attorney to sign pleadings, qua advocate, in all divisions of high court—Right of Appearance in Courts Act 62 of 1995, ss 4(3) and 4(4).

Credit agreement—Consumer credit agreement—Whether agreement subject to NCA—Whether agreement ‘secured loan’ as intended in NCA—Cession in securitatem debiti—Thing ceded as security must be something other than amounts due under agreement—Cedent ceding claim for payment of commission against plaintiff to plaintiff as security for advances of (unearned) commission—Not falling under definition of ‘secured loan’—National Credit Act 62 of 1995, s 1 sv ‘secured loan’.

Practice—Judgments and orders—Summary judgment—When granted—Court should not allow purely technical defences to defeat application for summary judgment, particularly where defendant suffering no prejudice due to irregularity complained of.

BARNARD AND OTHERS NNO v IMPERIAL BANK LTD AND ANOTHER (GSJ)

WEINER J

2011 SEPTEMBER 19; NOVEMBER 1

Company—Winding-up—Liquidator—Proceedings by and against—Citation—Liquidator may sue nomine officio or in name of company in liquidation in proceedings under section—Companies Act 61 of 1973, s 386(4)(a).

HUANG v BESTER NO (GSJ)

SATCHWELL J, MAYAT J and TSHABALALA J

2012 APRIL 25; MAY 30

Company—Winding-up—Enquiry into affairs of company—Section 418(1) empowers court to refer s 423 enquiry to commissioner—Companies Act 61 of 1973, ss 418(1) and 423.

BC v CC AND OTHERS (ECP)

DAMBUZA J

2010 SEPTEMBER 1; 2011 JANUARY 11

Husband and wife—Divorce—Proprietary rights—Accrual system—Assets held in trust—Trust a sham—Husband de facto/beneficial owner of trust assets—Value of trust assets to be taken into account in determination of accrual of husband’s estate—Application by wife for order directing that value of assets in trust established by husband be taken into account in determining accrual of his estate—Whether necessary averments made—Matrimonial Property Act 88 of 1984, s 4.

NEDBANK LTD v BINNEMAN AND THIRTEEN SIMILAR CASES (WCC)

GRIESEL J

2012 JUNE 11–15, 21

Credit agreement—Consumer credit agreement—Debt enforcement—Proceedings in anticipation of judicial proceedings—Notice of default—Delivery—Risk of non-receipt—Where notice sent by registered mail to correct post office but returned unclaimed—Sebola case not overruling established authority placing risk of non-receipt on consumer—National Credit Act 34 of 2005, s 129(1).

ABSA BANK LTD v MKHIZE AND ANOTHER AND TWO SIMILAR CASES (KZD)

OLSEN AJ

2012 JUNE 28; JULY 6

Credit agreement—Consumer credit agreement—Debt enforcement—Proceedings in anticipation of judicial proceedings—Notice of default—Delivery—Requirements—Risk of non-receipt of notice—Where notice sent by registered mail to correct post office but returned unclaimed—In such cases credit provider not complying with requirements for delivery as set out by Constitutional Court in Sebola case—National Credit Act 34 of 2005, s 129(1).

Credit agreement—Consumer credit agreement—Debt enforcement—Proceedings in anticipation of judicial proceedings—Notice of default—Where not complying with requirements of NCA—Ambit of court’s power to give directions as to steps credit provider must complete before application for enforcement may be resumed—Order may include direction that delivery be made to address not chosen by consumer—Credit provider to provide court with information under oath to assist it making such order—Recommended practice where order sanctioning ordinary mail—National Credit Act 34 of 2005, ss 129(1) and 130(4)(b)(ii).

Credit agreement—Consumer credit agreement—Debt enforcement—Proceedings in anticipation of judicial proceedings—Notice of default—Where not complying with requirements of NCA—Where notice sent by registered mail to correct post office but returned unclaimed—Recommended practice for achieving compliance at first hearing in such cases—National Credit Act 34 of 2005, ss 129(1) and 130(4)(b)(ii).

ENGEN PETROLEUM LTD v MULTI WASTE (PTY) LTD AND OTHERS (GSJ)

BORUCHOWITZ J

2011 SEPTEMBER 23; OCTOBER 25

Company—Business rescue—Application—Requirements—Application must be on long form notice of motion—Companies Act 71 of 2008, s 131(1).

Company—Business rescue—Application—Notification of—Applicant must satisfy court that all reasonable steps taken to identify affected persons and their addresses, and to deliver application to them—If delivery is by email or fax, evidence is required of compliance with requirements for cover message or page—Companies Act 71 of 2008, s 131(2)(b), regs 7(1), 7(4) and 124.

CMC WOODWORKING MACHINERY (PTY) LTD v PIETER ODENDAAL KITCHENS (KZD)

STEYN J

2010 JULY 31; AUGUST 3

Practice—Service—Substituted service—Of notices and documents to website address—Made possible by June 2012 amendments to Uniform Rules—Each case to be considered on merits and in light of type of document to be served—Where applicant establishing (1) that none of normal forms of service set out in rules could be effected; (2) likelihood that notice would be brought to attention of respondent; and (3) that respondent’s right to privacy would not be infringed, substituted service by sending notices concerned via Facebook message to respondent’s Facebook page allowed—Here, legal certainty requiring that such notice also be published in local newspaper to cover eventuality of defendant not having access to electronic communication devices—Uniform Rules of Court, rule 4A(1)(c).

PAPENFUS EN 'N ANDER v TORRE NO EN ANDERE (GNP)

PRINSLOO R

2007 JUNIE 12; SEPTEMBER 5

Auction and auctioneer—Auctioneer—Sale of immovable property—Auctioneer not automatically acting as estate agent when selling immovable property—Correct approach to have regard to particular circumstances of each occasion in deciding whether person concerned acted as auctioneer or as estate agent as defined in Estate Agency Affairs Act 112 of 1976, s 1.

ALAM v MINISTER OF HOME AFFAIRS (ECP)

PICKERING J

2012 FEBRUARY 9, 16

Immigration—Refugee—Asylum seeker—Domicile—Asylum seeker can acquire domicile in South Africa.

Practice—Intermediate proceedings—Security for costs—Incola—Domicile makes person incola for purpose of providing security for costs. 


SOMALI ASSOCIATION FOR SOUTH AFRICA AND ANOTHER v MINISTER OF HOME AFFAIRS AND OTHERS (ECP)

PICKERING J

2012 FEBRUARY 9, 16

Immigration—Refugee—Asylum seeker—Refugee Reception Office—Director- General need consult Standing Committee before disestablishing an Office—Refugees Act 130 of 1998, s 8(1).

NEDBANK LTD v SAMSODIEN NO (GSJ)

VAN OOSTEN J

2012 MAY 3, 14

Administration of estates—Claim against deceased estate—Procedure for enforcing—Act not barring creditor using common-law procedure to enforce claim against estate—Administration of Estates Act 66 of 1965.

  

SOUTH AFRICAN CRIMINAL LAW REPORTS

TABLE OF CASES

  • Van der Burg and Another v National Director of Public Prosecutions and Another 2012 (2) SACR 331 (CC)

  • S v Nhlapo 2012 (2) SACR 358 (GSJ)

  • S v Nyumbeka 2012 (2) SACR 367 (WCC)

  • S v Mahlangu and Others 2012 (2) SACR 373 (GSJ)

  • S v Mabitse 2012 (2) SACR 380 (FB)

  • S v Minnies and Others 2012 (2) SACR 386 (SCA)

  • S v Chuir and Another 2012 (2) SACR 391 (GSJ)
  • S v Najoe 2012 (2) SACR 395 (ECP)

  • S v L 2012 (2) SACR 399 (WCC)
  • Ivanov v North West Gambling Board and Others 2012 (2) SACR 408 (SCA)

  • Panday v Minister of Police and Others 2012 (2) SACR 421 (KZD)

FLYNOTES

VAN DER BURG AND ANOTHER v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AND ANOTHER (CC)

MOGOENG CJ, YACOOB ADCJ, and CAMERON J, VAN DER WESTHUIZEN J, FRONEMAN J, JAFTA J, KHAMPEPE J, NKABINDE J and SKWEYIYA J, and MAYA AJ and ZONDO AJ

2012 MARCH 8, JUNE 12

Prevention of crime—Forfeiture order—Application for in terms of s 48(1) of Prevention of Organised Crime Act 121 of 1998—Whether property, which is instrumentality of offence not created by Act, subject to forfeiture in terms of s 50(1)(a) of Act—Immovable property in question instrumentality of offence of selling liquor without licence in contravention of s 154(1)(a) of Liquor Act 27 of 1989—No requirement in s 50(1)(a) that crime be one specifically covered by Prevention of Organised Crime Act—Forfeiture provisions of Prevention of Organised Crime Act applicable to immovable property.

Prevention of crime—Forfeiture order—Application for in terms of s 48(1) of Prevention of Organised Crime Act 121 of 1998—Whether forfeiture of residential property disproportionate to offence—Property in question instrumentality of offence of selling liquor without licence in contravention of s 154(1)(a) of Liquor Act 27 of 1989—Forfeiture sought as last resort to put end to criminality by removing main instrument used in its commission after conventional law enforcement strategies had failed to deter applicants—Manner in which offence committed, coupled with patent harm that commission of offence causing, must result in conclusion that forfeiture proportionate and appropriate.

S v NHLAPO (GSJ)

SPILG J and MUDAU AJ

2012 APRIL 30

Sentence—Previous convictions—Proof of—In order for court to discharge its adjudicative responsibilities when considering sentence, necessary for court to have details of previous convictions placed before it—Necessary for state to produce SAP69 in court and presiding officer to insist on its production unless good reason exists to avoid further remand where offender to remain in custody.

S v NYUMBEKA (WCC)

ERASMUS J and HENNEY J

2011 AUGUST 18

Verdict—Duplication of convictions—Accused convicted of assault and escaping from custody, in contravention of s 117 of Correctional Services Act 111 of 1998—Assault committed in order to effect escape from custody—Conviction on both charges amounting to duplication of convictions—Conviction of assault set aside.

Review—Automatic review—Duties of magistrate in transmitting record to high court—Duties set out—Incomplete records not to be sent on review—Delays caused thereby—While preparation of record primarily function of clerk of court, ultimately function of magistrate to ensure that proper record sent to high court—Criminal Procedure Act 51 of 1977, s 303.

S v MAHLANGU AND OTHERS (GSJ)

SATCHWELL J

2011 AUGUST 2

Sentence—Imposition of—Factors to be taken into account—Youth of offender and deprived upbringing—Relatively young first offenders convicted of brutal premeditated murder and robbery with aggravating circumstances—Personal circumstances not justifying imposition of lesser sentence than life imprisonment. 

S v MABITSE (FB)

RAMPAI J and MOLEMELA J

2010 SEPTEMBER 6, 9

Rape—Sentence—Factors to be taken into account—Provision in s 51(3)(a)(ii) of Criminal Law Amendment Act 105 of 1997 that in respect of offence of rape ‘an apparent lack of physical injury to the complainant’ not to be regarded as substantial and compelling circumstance justifying imposition of sentence less than life imprisonment—Dictates of justice require that absence of physical injury must be treated as factor that mitigates sentence.

S v MINNIES AND OTHERS (SCA)

MTHIYANE DP, LEACH JA, TSHIQI JA, PETSE AJA and NDITA AJA

2012 MAY 10; JUNE 1

Currency offences—Counterfeit money—South African Reserve Bank Act 90 of 1989—Knowingly uttering, tendering or accepting false note or coin, in contravention of s 34(1)(b)—Where all parties aware that money was in fact counterfeit money, no tendering committed for purposes of s 34(1)(b).

S v CHUIR AND ANOTHER (GSJ)

CLASSEN J and MUDAU AJ

2012 APRIL 24

Rape—Sentence—Effect of rape on complainant—Rape of 40-year-old married woman who had borne four children—Not to be categorised differently to rape of young virgin. 

S v NAJOE (ECP)

DAMBUZA J

2012 MAY 23, 25

Bail—Application for—Onus—On accused—Section 60(11)(a) of Criminal Procedure Act 51 of 1977—Accused to satisfy court of ‘exceptional circumstances’ permitting release—Discharge of onus—Accused not testifying but relying on affidavit—Although personal circumstances of accused weighed in his favour, state had presented oral evidence as to commission of offences and accused had not discharged onus—Bail denied.

S v L (WCC)

YEKISO J and CLOETE AJ

2012 MARCH 2

Juvenile offenders—Sentence—Imprisonment—Whether appropriate—Accused sentenced prior to Child Justice Act 75 of 2008, but s 28(1)(g) of Constitution nonetheless applicable—Sixteen-year-old accused sentenced to imprisonment for murder, but magistrate having failed to consider possibility of correctional supervision—Matter remitted to magistrate.

IVANOV v NORTH WEST GAMBLING BOARD AND OTHERS (SCA)

CLOETE JA, HEHER JA, SNYDERS JA, MHLANTLA JA and MCLAREN AJA

2012 MAY 14, 31

Search and seizure—Validity of—Where warrant authorising search and seizure subsequently declared invalid—Whether search thereby transformed into spoliation and possessor entitled to unqualified restoration of machines seized pursuant to search, possession of which without licence is prohibited in terms of s 9(1) of the National Gambling Act 7 of 2004 read with s 82(1) of North West Gambling Act 2 of 2001. 

PANDAY v MINISTER OF POLICE AND OTHERS (KZD)

MURUGASEN J

2012 APRIL 18

Evidence—Witnesses—Issue of subpoenas in terms of s 205(1) of Criminal Procedure Act 51 of 1977—Validity of—Whether magistrates issuing subpoenas had applied their minds properly in deciding to issue subpoenas requiring applicant’s bank managers to attend before them for examination in regard to allegations of fraud and corruption levelled against a close corporation of which applicant director—No legal basis on which magistrates’ confirmation under oath, that they had properly considered applications for subpoenas and had applied their minds before authorising the issuance of the subpoenas, could be rejected.

Evidence—Witnesses—Issue of subpoenas in terms of s 205(1) of Criminal Procedure Act 51 of 1977—Validity of—Whether failure of magistrate issuing subpoenas to keep copy of application or reasons for decision constituted procedural irregularity—No formal requirement that applications be kept or that reasons for decisions be recorded imposed by s 205—Applicant furnished with copies of applications and subpoenas and failing to show that he was prejudiced in his claim to review decisions to issue subpoenas.

Evidence—Witnesses—Issue of subpoenas in terms of s 205(1) of Criminal Procedure Act 51 of 1977—Validity of—Whether applicant entitled to be afforded hearing by magistrate before issue of subpoenas and to service of copies of subpoenas—No legal requirement that applicant be given notice of s 205 proceedings, that he be given hearing at such proceedings or that he be furnished with copies of subpoenas—Such procedures would undermine very objective of s 205: to obtain information in investigation and prosecution of serious crime.

Prosecuting authority—Prosecutor—Authority of—Whether prosecutors authorised to bring s 205 applications—Issuing of authorities to prosecutors to bring requests in terms of s 205 falling within ambit of necessary functions incidental to instituting and conducting criminal proceedings provided for in terms of s 20(1)(b)of National Prosecuting Authority Act 32 of 1998—No requirement in s 205 that authority under which prosecutor applies for subpoena be granted specifically for each individual application—Prosecutors authorised to bring applications.


BURRELL'S INTELLECTUAL PROPERTY LAW REPORTS 2011

TABLE OF CASES

  • 3 Jerks Manufacturing CC v Vital Health Foods (Pty) Ltd 2011 BIP 423 (WCC)

  • ABB AG v Huadian South Africa (Pty) Ltd 2011 BIP 334 (GNP)

  • ABE Construction Chemicals (Pty) Ltd v Ardex Gesellschaft Mit Beschrankter Haftung 2011 BIP 143 (RTM)

  • Adidas AG v Pepkor Retail Ltd 2011 BIP 220 (WCC)

  • Alliance Property Group (Pty) Ltd v Alliance Group Ltd 2011 BIP 377 (SCA)

  • Aspen Pharmacare Holdings Ltd v Sanofi Aventis 2011 BIP 101 (RTM)

  • Ausplow (Pty) Ltd v Northpark Trading 3 (Pty) Ltd 2011 BIP 1 (CP)

  • Ausplow (Pty) Ltd v Northpark Trading 3 (Pty) Ltd 2011 BIP 12 (SCA)

  • Aventis Pharma SA and Others v Cipla Life Sciences (Pty) Ltd 2011 BIP 61 (CP)

  • Bayer Schering Pharma AG v Pharma Dynamics 2011 BIP 73 (CP)

  • Beecham Group plc v Colgate-Palmolive Company 2011 BIP 159 (GNP)

  • Calypso Dealers CC v Registrar of Designs 2011 BIP 326 (GNP)

  • Cipla Medpro (Pty) Ltd v Aventis Pharma SA 2011 BIP 57 (CP)

  • Dynamic Fluid Control (Pty) Ltd v LW Tank Systems CC 2011 BIP 79 (CP)

  • Epic Foods (Pty) Ltd v Pret A Manger (Europe) Ltd 2011 BIP 202 (GNP)

  • Goncharko v The State 2011 BIP 330 (C)

  • Groupe LFE (SA) (Pty) Ltd v Swartland Winery Ltd 2011 BIP 117 (SCA)

  • Kemtek (Pty) Ltd v Jaymia CC 2011 BIP 197 (GNP)

  • LA Sport 4x4 & Outdoor CC v Sergio’s Auto Electrical CC 2011 BIP 124 (NWM)

  • MCG Industries (Pty) Ltd v Chespak (Pty) Ltd 2011 BIP 284 (GNP)

  • New Balance Athletic Shoe Inc v Dajee NO 2011 BIP 106 (GNP)

  • New Balance Athletic Shoe Inc v Dajee NO 2011 BIP 139 (GNP)

  • Nycomed Austria GmbH v Cipla Medpro (Pty) Ltd 2011 BIP 152 (GSJ)

  • Oilwell (Pty) Ltd v Protec International Ltd 2011 BIP 400 (SCA)

  • Resca v Dave Sheer Gunsmithing CC 2011 BIP 6 (CC)

  • Royal Salt Company (Pty) Ltd v Swartkops Sea Salt (Pty) Ltd 2011 BIP 260 (ECG)

  • Sasol Dyno Nobel (Pty) Ltd v African Explosives Ltd 2011 BIP 36 (CP)

  • Sea Harvest Corporation (Pty) Ltd v Irvin & Johnson Ltd 2011 BIP 386 (WCC)

  • SK-2000 Manufacturing (Pty) Ltd v SGA Trading CC 2011 BIP 4 (CC)

  • Swartkops Sea Salt (Pty) Ltd v Cerebos Ltd 2011 BIP 411 (ECP)

  • Tele Atlas Africa (Pty) Ltd v Afrigris (Pty) Ltd 2011 BIP 341 (GNP)

  • Three Cities Investments Ltd v Signature Life (Pty) Ltd 2011 BIP 352 (KZD)

  • Tiger Food Brands Intellectual Property Holdings Company (Pty) Ltd v Adcock Ingram Healthcare (Pty) Ltd 2011 BIP 167 (GSJ)

  • University of Pretoria v Registrar of Patents 2011 BIP 41 (CP)

  • Wirra IP (Pty) Ltd v Aspen Pharmcare Holdings Ltd 2011 BIP 275 (GNP)

  • Zietsman v Electronic Media Network Ltd 2011 BIP 30 (SCA)

 

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