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November 2017

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 AND SACR AS WELL AS THE NAMIBIAN LAW REPORTS 2017 (3).

SEE ALSO, FURTHER BELOW, THE TABLE OF CASES FOR BURRELL’S INTELLECTUAL PROPERTY LAW REPORTS 2016, AS WELL AS THE BOTSWANA LAW REPORTS 2014 (1).

 

SOUTH AFRICAN LAW REPORTS

Municipal service charges on a property—The position of the new owner

Section 118(3) of the Local Government: Municipal Systems Act 32 of 2000 provided that an amount due for municipal service fees was a ‘charge upon the property in connection with which the amount is owing’. The Constitutional Court held that this section did not allow a municipality to claim, from a new owner of property, debts a predecessor in title incurred. Jordaan and Others v Tshwane Metropolitan Municipality and Others 2017 (6) SA 287 (CC)

Freedom of conscience and religion at public schools

The applicant in proceedings in the High Court attacked as unconstitutional a number of religious practices in public schools. While the court declined most of the relief on the basis of the principle of subsidiarity, the court deemed it appropriate to grant relief in respect of a school’s adopting of one religion (in this case Christianity), to the exclusion of others. The court declared such conduct to be contrary to s 7 of the Schools Act 84 of 1996, which protected freedom of conscience and religion at public schools. Organisasie vir Godsdienste-Onderrig en Demokrasie v Laerskool Randhart and Others 2017 (6) SA 129 (GJ)

The limits on the powers of the Public Protector

This matter addressed the constitutionality of a report by the Public Protector on the government’s failure to recover funds used in an apartheid-era Reserve Bank bailout of a commercial bank. Among its remedial action was an instruction to Parliament to amend the Constitution to alter the constitutional mandate of the Reserve Bank, to one of promoting economic growth. But this, the High Court held, was contrary to the principle of the separation of powers and was unconstitutional, interfering as it did on Parliament’s exclusive authority, and on the national executive’s prerogative to set economic policy. The court set aside the remedial action. South African Reserve Bank v Public Protector and Others 2017 (6) SA 198 (GP)

 

SOUTH AFRICAN CRIMINAL LAW REPORTS

Delays in the submission of matters on automatic review to the High Court: A solution

The High Court addressed the widespread problem in the Western Cape of delays in the submission of matters to the High Court on automatic review from magistrates’ courts. A solution was proposed: a list should be introduced in which was recorded particulars of all outstanding judgments requiring automatic review from each magistrate court within the province; this way the Department of Justice could identify where problems were experienced and ensure that resources were diverted to address them. S v Jacobs and Six Similar Matters 2017 (2) SACR 546 (WCC)

Obligation to consider all relevant information in deciding whether to place a prisoner on parole

The Minister of Justice had refused a prisoner’s application for release on parole. But in doing so, it had failed to consider all relevant information, as it was required to do in terms of the Correctional Services Act 111 of 1998: ie it did not consider the victim impact statement, and any representations in response thereto by the prisoner. This failure constituted a fatal procedural irregularity, the SCA asserted. The matter had to be remitted to the Minister for a fresh decision, taking such information into account. Minister of Justice and Correctional Services v Walus 2017 (2) SACR 473 (SCA)

Requirements for a valid plea-and-sentence agreement

For a valid sentence to be imposed in terms of a plea-and-sentence agreement in terms of s 105A of the Criminal Procedure Act 51 of 1977, a certificate of authorisation by the National Director of Public Prosecutions had to be handed in to court; and the court had to pronounce on a conviction as required by the section. S v Knight 2017 (2) SACR 583 (GP)

 

THE NAMIBIAN LAW REPORTS

Minimum sentences for stock theft declared to be unconstitutional

The Supreme Court declared to be unconstitutional s 14(1)(a)(ii) and 14(1)(b) of the Stock Theft Act 12 of 1990, which imposed mandatory minimum sentences of 20 years for first offenders and 30 years for second and subsequent offenders. Such minimum sentences amounted to cruel, inhuman and degrading treatment within the meaning of article 8 of the Constitution. Prosecutor-General v Daniel and Others 2017 (3) NR 837 (SC)

Relaxation of the res judicata principle

In this matter the Supreme Court considered the principle of res judicata—the idea that once a court had taken a decision in a case, it was final, bound the parties to the dispute and the court became functus officio. Noting developments internationally, the court asserted that it was not an inflexible rule, and could be relaxed in exceptional circumstances to do justice, especially where the liberty of the subject was involved.  S v Likanyi 2017 (3) NR 771 (SC)

Recusal of a judge—Principles applicable

The Supreme Court reiterated the test to be applied to determine whether a judge had to recuse him- or herself, ie there had to exist a reasonable apprehension of bias. The court stressed that reasonableness had to be assessed in the light of a judge’s oath of office of administrating justice without fear or favour, and that the presumption of a judge’s impartiality was not easily dislodged, requiring convincing evidence. S v SSH 2017 (3) NR 871 (SC)

 


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 SOUTH AFRICAN LAW REPORTS
 TABLE OF CASES
 
  • Genesis Medical Aid Scheme v Registrar, Medical Schemes and Another 2017 (6) SA 1 (CC)
  • KLD Residential CC v Empire Earth Investments 17 (Pty) Ltd 2017 (6) SA 55 (SCA)
  • PA Pearson (Pty) Ltd v Ethekwini Municipality and Others 2017 (6) SA 82 (SCA)
  • Mulaudzi v Old Mutual Life Assurance Co (South Africa) Ltd and Others 2017 (6) SA 90 (SCA)
  • Organisasie vir Godsdienste-Onderrig en Demokrasie v Laerskool Randhart and Others 2017 (6) SA 129 (GJ)
  • NCP Chlorchem (Pty) Ltd v National Energy Regulator and Others 2017 (6) SA 158 (GJ)
  • Belwana v MEC for Education, Eastern Cape and Another 2017 (6) SA 182 (ECB)
  • South African Reserve Bank v Public Protector and Others 2017 (6) SA 198 (GP)
  • Passenger Rail Agency of South Africa v Swifambo Rail Agency (Pty) Ltd 2017 (6) SA 223 (GJ)
  • Escherich and Another v De Waal and Others 2017 (6) SA 257 (WCC)
  • National Union of Metalworkers of South Africa v Oosthuizen and Others 2017 (6) SA 272 (GJ)
  • Jordaan and Others v Tshwane Metropolitan Municipality and Others 2017 (6) SA 287 (CC)
  • Nedbank Ltd v Zevoli 208 (Pty) Ltd and Others 2017 (6) SA 318 (KZP)
 
 FLYNOTES
 

GENESIS MEDICAL AID SCHEME v REGISTRAR, MEDICAL SCHEMES AND ANOTHER (CC)

MOGOENG CJ, NKABINDE ADCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MHLANTLA J, MOJAPELO AJ, PRETORIUS AJ and ZONDO J
2017 JUNE 6
[2017] ZACC 16

Medicine - Medical aid—Medical aid scheme—Contributions—All contributions, including funds allocated to members’ personal medical savings accounts (PMSAs), constituting assets of scheme—Scheme may retain interest accruing to PMSAs—Medical Schemes Act 131 of 1998, s 35(9)(c).

Administrative law - Administrative action—Review—Grounds—Action materially influenced by error of law—Position if error only subsequently established—Materiality of error—Promotion of Administrative Justice Act 3 of 2000, s 6(2)(d).

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

LEWIS JA, TSHIQI JA, MBHA JA, FOURIE AJA and SCHIPPERS AJA
2017 JULY 6
[2017] ZASCA 98

Evidence - Privilege—Legal professional privilege—Scope—Without prejudice rule—Exceptions—Acknowledgment of liability made in settlement offer admissible in evidence for limited purpose of interrupting prescription—Prescription Act 68 of 1969, s 14.

Evidence - Admissibility—Without prejudice rule—Scope—Exceptions—Acknowledgment of liability made in settlement offer admissible in evidence for limited purpose of interrupting prescription—Prescription Act 68 of 1969, s 14.

Prescription - Extinctive prescription—Interruption—By acknowledgment of liability—Without prejudice communications—Acknowledgment of liability made in settlement offer admissible in evidence for limited purpose of interrupting prescription—Prescription Act 68 of 1969, s 14.

PA PEARSON (PTY) LTD v ETHEKWINI MUNICIPALITY AND OTHERS (SCA)

LEWIS JA, PETSE JA, SWAIN JA, MBHA JA and MOLEMELA AJA
2017 MAY 29
[2017] ZASCA 63

Local authority - Rates—Credit-control and debt-collection measures—Right of municipality to transfer credits between accounts—Single account holder in respect of accounts associated with properties A and B—Properties having different owners—Municipality demanding payment of outstanding rates on property A from its owner when account holder failing to pay—Right to do so where municipality having previously transferred credits from account for property A to account for property B, with effect that contingent liability of owner of property A increased—Municipality entitled to claim from owner of property A increased balance owed—Local Government: Municipal Systems Act 32 of 2000, s 102(1)(b) and s 118(3).

MULAUDZI v OLD MUTUAL LIFE ASSURANCE CO (SOUTH AFRICA) LTD AND OTHERS (SCA)

PONNAN JA, CACHALIA JA, THERON JA, MATHOPO JA and MBATHA AJA
2017 JUNE 6
[2017] ZASCA 88

Judge - Recusal—When required—Litigant’s attorney is judge’s attorney.

ORGANISASIE VIR GODSDIENSTE-ONDERRIG EN DEMOKRASIE v LAERSKOOL RANDHART AND OTHERS (GJ)

LAMONT J, VAN DER LINDE J and SIWENDU J
2017 JUNE 28

Constitutional law - Human rights—Right to freedom of religion—Religious observances in public schools—Public schools holding out that they adhered to single religion—Offending right to freedom of religion and conscience for public school to do so—Order granted declaring that conduct offending s 7 of Schools Act—Constitution, s 15(1) and (2); South African Schools Act 84 of 1996, s 7.

Constitutional law - Human rights—Right to freedom of religion—Religious observances in public schools—Application for orders declaring as unconstitutional range of religious practices by public schools, as well as interdictory relief in respect of certain schools—Principle of subsidiarity applied—Applicant obliged to rely either on breach of subsidiary laws or on unconstitutionality of subsidiary laws, as opposed to directly invoking constitutional right to freedom of religion.

NCP CHLORCHEM (PTY) LTD v NATIONAL ENERGY REGULATOR AND OTHERS (GJ)

KATHREE-SETILOANE J
2016 OCTOBER 17

Electricity - National Energy Regulator—Dispute resolution—Not constituting administrative action regulated by Promotion of Administrative Justice Act 3 of 2000—But decision subject to review under principle of legality—Decision to be lawful and rational—Electricity Regulation Act 4 of 2006, s 30.

Electricity - Supply—Price—Industrial consumer directly supplied by Eskom—Not subject to municipal tariff—Eskom to contract directly with consumer—Constitution, s 156(1)(a) and sch 4 part B.

Electricity - Supply—By municipality—Municipalities not having monopoly on electricity supply, merely right to set up and administer grids within their areas—If consumer obtains electricity directly from Eskom, then Eskom to contract directly with consumer—Constitution, s 156(1)(a) and sch 4 part B.

BELWANA v MEC FOR EDUCATION, EASTERN CAPE AND ANOTHER (ECB)

STRETCH J
2017 MAY 18

Administrative law - Access to information—Access to information held by public body—Request—Refusal—Whether justified—Applicant failing to make short list of candidates to be interviewed for position in Department of Education for which she applied—Requesting information on shortlisting meetings of school governing body and deliberations of interview panel—Not entitled to information about process of which she was not part—Request ‘manifestly frivolous or vexatious’ and application dismissed—Promotion of Access to Information Act 2 of 2000, s 45.

Administrative law - Access to information—Generally—PAIA giving effect to constitutional right to access to information by entitling a person to any information about him or her—Applicant not entitled to information about process of which she was not part.

SOUTH AFRICAN RESERVE BANK v PUBLIC PROTECTOR AND OTHERS (GP)

MURPHY J
2017 AUGUST 15

Constitutional law - Chapter 9 institutions—Public Protector—Powers—Ambit—Public Protector issuing remedial action directing Parliament to amend Constitution to change mandate of Reserve Bank—Proposed remedial action contrary to doctrine of separation of powers and unconstitutional—Set aside—Constitution, s 182 and s 224.

Banking - Reserve Bank—Independence and mandate confirmed—Attempt by Public Protector to instruct Parliament to amend primary object of Reserve Bank from currency protection to economic growth ruled unconstitutional and set aside on review—Constitution, s 182 and s 224.

PASSENGER RAIL AGENCY OF SOUTH AFRICA v SWIFAMBO RAIL AGENCY (PTY) LTD (GJ)

FRANCIS J
2017 JULY 3

Government procurement - Procurement process—Irregularities—Where invalidating award—Appropriate remedy where invalid contract partially completed—Factors to consider—Innocence of tenderer—Whether tenderer involved in fronting practice—Broad-Based Black Economic Empowerment Act 53 of 2003, s 1 sv ‘fronting practice’.

Government procurement - Procurement process—Irregularities—Fronting—What constitutes—Broad-Based Black Economic Empowerment Act 53 of 2003, s 1 sv ‘fronting practice’.

ESCHERICH AND ANOTHER v DE WAAL AND OTHERS (WCC)

BOZALEK J
2017 JUNE 30

Local authority - Municipality—Streets and roads—Public street—Owner of land through which public street passes having no right to unilaterally close or obstruct road—Common-law remedy of neighbouring landowner—Divisional Councils Ordinance 18 of 1976, s 121.

Local authority - Buildings—Demolition—Unauthorised structure encroaching on public street—Local authority having locus standi to seek relief under applicable legislation—Neighbouring landowner having common-law remedy—National Building Regulations and Building Standards Act 103 of 1977, s 21; Divisional Councils Ordinance 18 of 1976, s 127(1).

NATIONAL UNION OF METALWORKERS OF SOUTH AFRICA v OOSTHUIZEN AND OTHERS (GJ)

VAN DER LINDE J
2017 MARCH 10

Practice - Class action—Certification—Application—Requirements—Timing—Application for certification must be brought before instituting action—Whether ex post facto certification in already pending action should be allowed if in interests of justice.

JORDAAN AND OTHERS v TSHWANE METROPOLITAN MUNICIPALITY AND OTHERS (CC)

MOGOENG CJ, NKABINDE ADCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MHLANTLA J, MOJAPELO AJ, PRETORIUS AJ and ZONDO J
2017 AUGUST 29
[2017] ZACC 31

Local authority - Municipal service charges—Statutory charge on property in respect of amount due—Statutory history—Common-law meaning—Constitutionality—Charge not surviving transfer—Municipality not entitled to reclaim from new owner of property debts predecessor in title incurred—Local Government: Municipal Systems Act 32 of 2000, s 118(3).

NEDBANK LTD v ZEVOLI 208 (PTY) LTD AND OTHERS (KZP)

MADONDO DJP
2017 JULY 4

Company - Business rescue—Moratorium on legal proceedings against company—Enforcement of suretyship—Sureties cannot claim benefit of moratorium—Absent specific provision in business rescue plan for sureties, their liability remaining unaffected by business rescue—Companies Act 71 of 2008, s 133(1).

 

 SOUTH AFRICAN CRIMINAL LAW REPORTS
 TABLE OF CASES
  
  • Minister of Justice and Correctional Services v Walus 2017 (2) SACR 473 (SCA)
  • S v Chabalala 2017 (2) SACR 486 (LT)
  • Van Breda v Media 24 Ltd and Others 2017 (2) SACR 491 (SCA)
  • S v Barlow 2017 (2) SACR 535 (CC)
  • S v Jacobs and Six Similar Matters 2017 (2) SACR 546 (WCC)
  • S v Guzu and Two Similar Matters 2017 (2) SACR 575 (ECM)
  • National Director of Public Prosecutions v PDP 2017 (2) SACR 577 (NCK)
  • S v Knight 2017 (2) SACR 583 (GP)
  • S v Hector 2017 (2) SACR 588 (ECG)
 
 FLYNOTES
 

MINISTER OF JUSTICE AND CORRECTIONAL SERVICES v WALUS (SCA)

MAYA P, SHONGWE ADP, MBHA JA, VAN DER MERWE JA and SCHIPPERS AJA
2017 MAY 29; AUGUST 18
[2017] ZASCA 99

Prisoner - Parole—Release on—Application for—Consideration of by Minister—Minister not considering victim impact statement in circumstances where not provided to prisoner with opportunity to respond thereto—All relevant information required had to be considered—Application remitted to Minister for reconsideration of application, including victim impact statement and prisoner’s response.

S v CHABALALA (LT)

MAKHAPOLA J and NAIR AJ
2017 MAY 15

Trial - Presiding officer—Conduct of—Manner of addressing accused—Addressed as ‘accused’ and not by name—Practice deprecated.

Review - Queries by reviewing judge—Duty of magistrates to provide reasons in terms of s 304(2)(a) of Criminal Procedure Act 51 of 1977—Judicial management oversight of queries suggested.

VAN BREDA v MEDIA 24 LTD AND OTHERS (SCA)

PONNAN JA, LEACH JA, MBHA JA, ZONDI JA and VAN DER MERWE JA
2017 JUNE 21
[2017] ZASCA 97

Fundamental rights - Right to freedom of expression—Freedom of press and other media—Right of media to broadcast court proceedings—Right to freedom of expression extending to public’s right to receiving information and to open justice—Preventing media from broadcasting proceedings amounting to limitation of both media and public’s right to freedom of expression—Default position being that no objection in principle to broadcasting—Media to request permission to broadcast on case-by-case basis—Court to use constitutionally mandated discretion to protect and regulate its own processes, in deciding such applications—Constitution, ss 16(1) and 173.

S v BARLOW (CC)

NKABINDE ADCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MHLANTLA J, MOJAPELO AJ, PRETORIUS AJ and ZONDO J
2017 MARCH 7; AUGUST 3
[2017] ZACC 27

Court - Constitutional Court—Appeal to—Application for leave to appeal—Application based on failure of High Court on appeal to consider merits of one of counts on which applicant convicted—High Court’s rejection of applicant’s version as untrustworthy meant his defence could not stand and therefore no prospects of success—Application dismissed.

S v JACOBS AND SIX SIMILAR MATTERS (WCC)

HENNEY J and SHER AJ
2017 AUGUST 16

Review - Automatic review—Delay in submission of matter on review—In seven matters submitted on review from outlying magistrates’ courts, some delays were of egregious nature, up to three years late—Systemic problem identified and solution proposed.

S v GUZU AND TWO SIMILAR MATTERS (ECM)

MAJIKI J and BROOKS J
2016 SEPTEMBER 22

Sentence - Generally—Formulation of sentence—Ill-expressed sentences posing difficulties of understanding by accused and could not be altered by simple clerical amendment—Sloppiness in expression of sentence deprecated.

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v PDP AND OTHERS (NCK)

MAMOSEBO J
2017 APRIL 21; JUNE 2

Prevention of crime - Preservation of property order—When to be granted—Illicit drugs being conveyed in motor vehicle allegedly belonging to 6-year-old child—Child’s interests in vehicle requiring protection by appointment of curator ad litem.

Prevention of crime - Preservation of property order—When to be granted—Illicit drugs being conveyed in motor vehicle—Police manning road block observing bag being thrown out of window of vehicle—No indication whether driver or one of passengers had possessed the drugs—Insufficient nexus being shown for order in respect of vehicle.

S v KNIGHT (GP)

BAQWA J and HAWYES AJ
2017 JULY 31

Sentence - Plea-and-sentence agreement—Requirements for—Certificate of authorisation by National Director of Public Prosecutions required to be handed in to court—Court required to pronounce on conviction of accused—Without such pronouncement there could be no valid sentence imposed.

S v HECTOR (ECG)

MBENENGE J and BLOEM J
2016 AUGUST 17, 18

Indictment and charge - Duplication of convictions—Robbery and unlawful possession of firearms—Firearms in question having been taken from victim during course of robbery—Appellant in process making himself guilty of two separate and distinct offences, each with its own elements and requiring its own evidence, with different mens rea for each offence—No duplication of convictions.

 

 THE NAMIBIAN LAW REPORTS 2017 (3)
 TABLE OF CASES
  TABLE OF CASESTABLE OF CASES  
  • Prosecutor-General v Taapopi 2017 (3) NR 627 (SC)
  • S v Lameck and Others 2017 (3) NR 647 (SC)
  • Mugimu v Minister of Finance and Others 2017 (3) NR 670 (HC)
  • S v NV 2017 (3) NR 700 (HC)
  • Ondonga Traditional Authority v Elifas and Another 2017 (3) NR 709 (HC)
  • Christian Congregation of Jehovah’s Witnesses of Namibia v Social Security Commission 2017 (3) NR 724 (LC)
  • MM v VT 2017 (3) NR 743 (HC)
  • Elgin Brown & Hamer Namibia (Pty) Ltd v Hydrodive Offshore International Ltd 2017 (3) NR 752 (HC)
  • Husselmann and Others v Saem and Others 2017 (3) NR 761 (HC)
  • S v Likanyi 2017 (3) NR 771 (SC)
  • Louw v Strauss 2017 (3) NR 808 (HC)
  • Rössing Uranium Ltd and Another v Former Members of the Rössing Pension Fund 2017 (3) NR 819 (SC)
  • Prosecutor-General v Daniel and Others 2017 (3) NR 837 (SC)
  • Namibian Association of Medical Aid Funds and Others v Namibia Competition Commission and Another 2017 (3) NR 853 (SC)
  • S v SSH 2017 (3) NR 871 (SC)
  • Di Savino v Nedbank Namibia Ltd 2017 (3) NR 880 (SC)
  • Free Namibia Caterers CC v Chairperson of the Tender Board of Namibia and Others 2017 (3) NR 898 (SC)
  • S v Engelbrecht 2017 (3) NR 912 (SC)
 FLYNOTES
 

PROSECUTOR-GENERAL v TAAPOPI (SC)

SMUTS JA, CHOMBA AJA and MOKGORO AJA
2016 OCTOBER 5; 2017 JUNE 19

Appeal - In what cases—Refusal of rule nisi—Final in effect—Appealable—Proceedings under Prevention of Organised Crime Act 29 of 2004 civil in nature—No leave to appeal required.

Criminal procedure - Organised crime—Preservation order—Application for rule nisi—Section 51(2) of Prevention of Organised Crime Act 29 of 2004—Application ex parte without notice—Once statutory requirements of s 51(2) met, court obliged to grant order—Provisions of s 91(1) requiring notice of applications in terms of reg 7(b) not applicable to s 51(2) applications—Rule nisi preserved right to be heard in terms of art 12 of Constitution until return date when respondent must be heard.

S v LAMECK AND OTHERS (SC)

DAMASEB DCJ, SMUTS JA and HOFF JA
2016 JUNE 13; 2017 JUNE 19

Criminal procedure - Presiding officer—Appealability of refusal of presiding officer to recuse himself—Appealability went beyond s 316(1) of Criminal Procedure Act 51 of 1977—Competence of presiding judge to define parties’ rights in question—Appealable before sentence.

Judge - Recusal of—Applicant has onus of rebutting presumption of judicial impartiality—Applicant must show reasonable apprehension based on reasonable grounds—Judge prejudging live issue important to appellants’ defence—Created perceived lack of impartiality leading to apprehension of bias—Judge should have recused himself—Appeal succeeded.

MUGIMU v MINISTER OF FINANCE AND OTHERS (HC)

ANGULA DJP
2017 APRIL 28; MAY 19
[2017] NAHCMD 151

Court - Jurisdiction—High Court—Income tax matters—Establishment of Special Income Tax Court not entirely ousting jurisdiction of ordinary courts—Ordinary courts retained review jurisdiction and jurisdiction for granting interim declaratory orders and determining legal issues in respect of taxation.

Revenue - Income tax—Payment of—Income Tax Act 24 of 1981, s 78—Concept of ‘pay now argue later’ applied—Public interest demanded speedy recovery of amounts due to fiscus, preventing non-compliant taxpayers from delaying payment.

Revenue - Income tax—Payment of—Power of minister—Raising of assessment on chargeable amounts which have not been assessed—Income Tax Act 24 of 1981, s 69—Minister empowered to conduct multiple assessments on taxpayer if satisfied that taxpayer’s income had escaped previous assessments.

S v NV (HC)

NDAUENDAPO J and SHIVUTE J
2017 JANUARY 23; APRIL 18
[2017] NAHCMD 114

Constitutional law - Constitution—Interpretation of—General approach when construing constitutional provisions—Provisions to be broadly, liberally and purposively interpreted—Article 12(1)(f) should be read with arts 8, 10 and 14(3)—Article 12(1)(f) not taking away right of bodily integrity of victim of abuse—Section 195(1)(a) of Criminal Procedure Act 51 of 1977 promoting core values of Constitution by compelling spouse to give evidence—Section 195(1)(a) not unconstitutional.

Criminal procedure - Evidence—Witness—Accused charged with kidnapping, raping and assaulting spouse—Spouse competent and compellable witness—State dominus litis with sole discretion to proceed and present evidence—Section 195(1)(a) of Criminal Procedure Act 51 of 1977 not unconstitutional and in conflict with art 12(1)(f) of Constitution.

ONDONGA TRADITIONAL AUTHORITY v ELIFAS AND ANOTHER (HC)

UEITELE J
2017 APRIL 24, 28; MAY 15
[2017] NAHCMD 142

Practice - Applications and motions—Locus standi—Authority challenged in answering affidavit—Failure to meet challenge by putting up some evidence of authority—Applicant never resolved to institute proceedings—Deponent not authorised to institute proceedings at applicant’s instance.

Practice - Applications and motions—Urgency—Urgent application for joinder from bar—Urgency not exempting party from complying with rule 40 of High Court Rules—Rule 73(3) enjoined court to dispose of application in terms of rules of court as far as practical—Departure must be fair to opponents—Mere existence of urgency did not justify departure from the procedures in accordance with the rules.

CHRISTIAN CONGREGATION OF JEHOVAH’S WITNESSES OF NAMIBIA v SOCIAL SECURITY COMMISSION (LC)

UNENGU AJ
2017 FEBRUARY 10; APRIL 27
[2017] NALCMD 14

Labour law - Employee—Meaning of—Person rendering service assisting another in conducting business for remuneration—Section 128A of Labour Act 11 of 2007 containing presumptions of who were employees—Appellant’s members employees as contemplated by s 128A—Presumption not rebutted by members’ intentions or because appellant was a church.

Statute - Interpretation—Social Security Act 34 of 1994—Purpose of Act to make payments for maternity and sick leave and death, medical and pension benefits to employees—Act made no provision for deregistration of employer—Deregistration of employer will be ultra vires the Act—Employers’ obligations under Act only ceased on death, insolvency, liquidation or winding up.

MM v VT (HC)

USIKU AJ
2017 MAY 9; JUNE 14
[2017] NAHCMD 162

Land - Communal land—Customary land rights—Rights awarded by Traditional Authority to plaintiff in terms of Communal Land Reform Act 5 of 2002, s 28—Rights can only be allocated to one person—Personal right—Inseparable from holder—No joint holding of customary land rights and customary land right not asset in joint estate.

Marriage - Divorce—Proprietary rights—Marriage in community of property—Division of joint estate—Customary land right not asset in joint estate.

ELGIN BROWN & HAMER NAMIBIA (PTY) LTD v HYDRODIVE OFFSHORE INTERNATIONAL LTD (HC)

NDAUENDAPO J
2017 FEBRUARY 6; JUNE 26
[2017] NAHCMD 175

Practice - Service—Manner of service—Leave granted for service by way of edictal citation in Nigeria at specific address by person specified in rule 11 of High Court Rules—Service effected in manner flagrantly disregarding court order and rule 11(1)(a) governing service of process outside Namibia—No explanation advanced for failure to comply with court order and rule 11—Proceedings null and void—Condonation refused and application struck from roll.

HUSSELMANN AND OTHERS v SAEM AND OTHERS (HC)

MASUKU J
2017 JUNE 20; JULY 7
[2017] NAHCMD 183

Administration of estates - Executor—Executor must be joined as party in all proceedings affecting deceased estate—Executor discharged—Duties and responsibilities ceased—Executor functus officio—Master must reappoint executor or appoint another executor to be joined in proceedings.

S v LIKANYI (SC)

SHIVUTE CJ, DAMASEB DCJ, SMUTS AJ, MOKGORO AJA and FRANK AJA
2017 JULY 12; AUGUST 7

Court - Supreme Court—Reversal by Supreme Court of its earlier decision—Article 81 of Constitution—Finality of Supreme Court decisions—Competent under art 81 to correct injustice caused by its own decision—Relaxation of common-law principle of res judicata in special circumstances to provide aggrieved party with effective remedy—Exception applied where liberty of subjects involved, where earlier decision was a demonstrably wrong application of law to facts which resulted in indefensible and manifest injustice—Decision reversed.

Criminal procedure - Jurisdiction—Appellant arrested in Botswana by Namibian Police—Unlawful sovereign act of international delinquency denuding Namibian court’s jurisdiction—Appellant’s surrender to Namibia unlawful and ought not to have been subjected to jurisdiction of courts of this country—Conviction and sentence set aside and immediate release and permanent stay of prosecution ordered.

LOUW v STRAUSS (HC)

MASUKU J
2017 JULY 5; AUGUST 9
[2017] NAHCMD 217

Prescription - Extinctive prescription—‘Debt’ in terms of s 11(d) of Prescription Act 68 of 1969—Claim for transfer of immovable property not constituting debt in terms of s 11(d)—‘Debt’ has restrictive meaning of payment of money, delivery of goods or rendering of services—Impermissible extension of meaning to include claim that did not admit of common usage of word ‘debt’—Extension might cause severe injustice, considering effect plea of prescription has on right to access courts—Special plea dismissed.

RÖSSING URANIUM LTD AND ANOTHER v FORMER MEMBERS OF THE RÖSSING PENSION FUND (SC)

SHIVUTE CJ, DAMASEB DCJ and SMUTS JA
2017 JUNE 1, 30

Pension - Pension fund—Powers and duties of trustees of private pension fund—Trustees responsible for management of fund subject to fund rules and Pension Funds Act 24 of 1956—Rules required trustees to make recommendations only to company for apportioning surplus funds and that final decision for apportioning surplus funds was that of employer.

Administrative law - Administrative action—What constitutes—Decision that of board of company in respect of privately funded pension fund and not of state as bureaucracy carrying out state function of administrative nature through public body—Decision not susceptible to judicial review under art 18—Appeal allowed.

PROSECUTOR-GENERAL v DANIEL AND OTHERS (SC)

SHIVUTE CJ, MAINGA JA and STRYDOM AJA
2011 OCTOBER 12; 2017 JULY 28

Constitutional law - Legislation—Constitutionality of—Declaratory order sought challenging constitutionality of minimum sentences prescribed in provisions of ss 14(1)(a)(ii) and 14(1)(b) of the Stock Theft Act 12 of 1990—Necessary and appropriate for court to consider and decide constitutionality of impugned sections even though respondents also had right to appeal sentences.

Constitutional law - Legislation—Constitutionality of—Mandatory minimum sentence of 20 years for first offenders and 30 years for second or subsequent offenders in terms of ss 14(1)(a)(ii) and 14(1)(b) of the Stock Theft Act 12 of 1990 in conflict with art 8 of Constitution of Namibia—Minimum sentences amounting to cruel, inhuman or degrading treatment or punishment within meaning of art 8(2)(b) of Constitution—Provisions failing to distinguish between different kinds of stock and value of stock—Section 14(4) excluding court from suspending portion of mandatory minimum sentence for repeat offenders older than 18 years—Sections 14(1)(a)(ii) and 14(1)(b) unconstitutional—Appeal dismissed.

NAMIBIAN ASSOCIATION OF MEDICAL AID FUNDS AND OTHERS v NAMIBIA COMPETITION COMMISSION AND ANOTHER (SC)

SHIVUTE CJ, DAMASEB DCJ and SMUTS JA
2017 JUNE 21; JULY 19

Medicine - Medical aid funds—Funds registered under Medical Aid Funds Act 23 of 1995—Objectives of funds not profit making but assisting members to defray medical expenses—Social purpose of funds part of social security facilitated by MAF Act, regulated in public interest—Funds must apply sound business principles in promoting and performing useful societal function—Funds’ economic activities not market related to achieve gain or reward—Funds non-profit concerns and not ‘undertakings’ in terms of s 23 of Competitions Act 2 of 2003—Competition Commission had no jurisdiction over funds for purpose of s 2 of Competitions Act.

S v SSH (SC)

DAMASEB DCJ, SMUTS JA and HOFF JA
2017 JULY 3, 19

Judge - Recusal of—Test to be applied—Reasonable apprehension of reasonable person that judge not impartial—Reasonableness to be assessed in light of oath of office of administering justice without fear or favour—Apprehension must be based on reasonable grounds—Presumption of judge’s impartiality not easily dislodged and required cogent or convincing evidence—Judge recused herself mero motu—No evidence that accused harboured reasonable apprehension of bias—Appeal succeeded.

DI SAVINO v NEDBANK NAMIBIA LTD (SC)

SHIVUTE CJ, MAINGA JA and SMUTS JA
2016 NOVEMBER 8; 2017 AUGUST 7

Appeal - Leave to appeal—Interlocutory application—Orders by court of matters incidental to main dispute, preparatory to or during progress of litigation interlocutory and required leave to appeal—Application to amend pleading refused by court a quo—Leave to appeal by High Court required—Leave to appeal neither applied for nor granted—Appeal struck from roll—High Court Act 16 of 1990, s 18(3).

FREE NAMIBIA CATERERS CC v CHAIRPERSON OF THE TENDER BOARD OF NAMIBIA AND OTHERS (SC)

SHIVUTE CJ, MAINGA JA and HOFF JA
2017 JUNE 19; JULY 28

Review - Generally—Review of tender board decision—Appellant relying on contractual and delictual remedies for damages and restitution—Breach of administrative justice attracted public law and not private law remedies save in exceptional cases.

Estoppel - Application of—Doctrine of estoppel finds no application in circumstances where effect would be that to act otherwise would have amounted to exercising a power beyond directions of Supreme Court—Not sanctioned by law—Reliance on estoppel rejected.

Administrative law - Administrative action—Legitimate expectation of hearing before decision made—No representation by word or conduct by tender board that term of contract will be negotiated—Procedural fairness not requiring hearing before decision-making—Reliance on legitimate expectation failing.

S v ENGELBRECHT (SC)

SHIVUTE CJ, MARITZ JA and MAINGA JA
2012 NOVEMER 1; 2017 JULY 14

Criminal procedure - Evidence—Admissions and confessions—Admissibility—Court has discretion, based on public policy, of excluding unconstitutionally obtained evidence—Accused should be comprehensively and meaningfully warned and informed of his/her right to legal representation to allow him/her to make a decision and his/her response to warning should be recorded—Failure to do so violated appellant’s constitutional right to legal representation—Confession inadmissible and conviction set aside.

 

 BURRELL'S INTELLECTUAL PROPERTY LAW REPORTS 2016
 TABLE OF CASES
 
  • Atlantic Industries v Pepsico Inc (No 1) 2016 BIP 76 (GP)
  • Atlantic Industries v Pepsico Inc (No 2) 2016 BIP 169 (GP)
  • Car Find (Pty) Ltd v Car Trader (Pty) Ltd 2016 BIP 130 (GJ)
  • Cochrane Steel Products (Pty) Ltd v M-Systems Group (Pty) Ltd 2016 BIP 189 (SCA)
  • Dinnermates (Tvl) CC v Piquante Brands International (Pty) Ltd 2016 BIP 294 (GP)
  • Distell Ltd v KZN Wines and Spirits CC 2016 BIP 134 (SCA)
  • Feltex Holdings (Pty) Ltd v Olymp Bezner GmbH & Co KG 2016 BIP 215 (GP)
  • Joest (Pty) Ltd v Jöst GmbH + KG (No 2) 2016 BIP 251 (SCA)
  • Joest (Pty) Ltd v Jöst GmbH+Co.KG (No 1) 2016 BIP 87 (GP)
  • KWV Intellectual Properties (Pty) Ltd v Mirco Foods CC 2016 BIP 205 (GP)
  • Lucky Star Ltd v Lucky Brands (Pty) Ltd 2016 BIP 180 (SCA)
  • Mega Power Centre CC t/a Talisman Plant and Tool Hire v Talisman Franchise Operations (Pty) Ltd Operations (Pty) Ltd 2016 BIP 424 (Nm)
  • Merck Sharp Dohme Corporation v Cipla Agrimed (Pty) Ltd 2016 BIP 34 (CP)
  • Merial v Cipla Vet (Pty) Ltd 2016 BIP 1 (SCA)
  • Moneyweb (Pty) Ltd v Media24 Ltd 2016 BIP 326 (GP)
  • M-Systems Group (Pty) Ltd v Cochrane Steel Products (Pty) Ltd 2016 BIP 228 (GP)
  • Novartis AG v Cipla Medro (Pty) Ltd 2016 BIP 152 (GP)
  • Pasadena Leather Products CC t/a Pasadena Products v Resca 2016 BIP 63 (SCA)
  • Pepkor Retail (Pty) Ltd v Truworths Ltd 2016 BIP 286 (SCA)
  • Roccat GmbH v SMD Technologies CC 2016 BIP 245 (GP)
  • Safika Holdings (Pty) Ltd v Safika Office for Automation (Pty) Ltd 2016 BIP 116 (GP)
  • SAIC Motor Co Ltd v Deutz AG 2016 BIP 161 (GP)
  • Shoprite Checkers (Pty) Ltd v Charoen Pokphand Group Co Ltd 2016 BIP 222 (GP)
  • Snap-On Africa (Pty) Ltd v Joubert 2016 BIP 301 (GP)
  • South African Broadcasting Corporation Soc Ltd v Via Vollenhoven & Appollis Independent CC 2016 BIP 371 (GJ)
  • Swartkops Sea Salt (Pty) Ltd v Cerebos Ltd 2016 BIP 418 (ECG)
  • Trustco Group International (Pty) Ltd v Hahn & Hahn Inc 2016 BIP 57 (GP)
  • Trustco Group International (Pty) Ltd v Vodacom (Pty) Ltd 2016 BIP 27 (SCA)
  • Truworths Ltd v Pepkor Retail (Pty) Ltd 2016 BIP 95 (WCC)
  • Van Wyk v First National Bank of Southern Africa Ltd 2016 BIP 44 (CP)
  • Yuppiechef Holdings (Pty) Ltd v Yuppie Gadgets Holdings (Pty) Ltd (formerly Yuppie Stuff Online CC) 2016 BIP 269 (SCA)
.

 

 BOTSWANA LAW REPORTS 2014 (1)
 TABLE OF CASES
 
  • African Banking Corporation of Botswana Ltd v Lewatle Resources (Pty) Ltd [2014] 1 BLR 587 (HC)
  • Altim Timbers (Botswana) (Pty) Ltd v Botswana Railways [2014] 1 BLR 134 (CA)
  • Attorney-General v Olebile [2014] 1 BLR 45 (HC)
  • Berea Security Services (Pty) Ltd v Tawana Land Board and Another [2014] 1 BLR 240 (HC)
  • Botswana Federation of Public Sector Unions and Others v Attorney-General and Another [2014] 1 BLR 626 (HC)
  • Botswana Telecommunications Authority v Koontse; In re: Koontse v Botswana Telecommunications Authority [2014] 1 BLR 507 (HC)
  • Bubble Estate (Pty) Ltd and Others v Stanbic Bank Botswana (Pty) Ltd [2014] 1 BLR 248 (HC)
  • Capital Bank Limited v Kaizer Kago Boatile t/a Francistown Distributors and Another [2014] 1 BLR 431 (HC)
  • Car World (Pty) Ltd v Mogotsi [2014] 1 BLR 175 (HC)
  • Castermo Enterprises (Pty) Ltd v First National Bank of Botswana Ltd; In re: First National Bank of Botswana Ltd v Castermo Enterprises (Pty) Ltd and Others [2014] 1 BLR 663 (HC)
  • China Civil Engineering Construction Botswana (Pty) Ltd v Attorney-General and Others [2014] 1 BLR 349 (HC)
  • Clifford v The State [2014] 1 BLR 667 (HC)
  • DD Manufacturing NV v First National Bank of Botswana Ltd and Others [2014] 1 BLR 222 (HC)
  • First National Bank of Botswana Ltd v Tswana Link (Pty) Ltd [2014] 1 BLR 549 (CA)
  • Fluid Control Botswana (Pty) Ltd v Attorney-General and Another [2014] 1 BLR 182 (HC)
  • Galetshoge v Botswana Power Corporation [2014] 1 BLR 77 (HC)
  • Gasenna v Mohamadi [2014] 1 BLR 614 (HC)
  • GS-26-BDP v The University of Botswana and Others [2014] 1 BLR 589 (HC)
  • Herbst and Another v Lobatse Town Council [2014] 1 BLR 538 (CA)
  • Hule v Naledi Motors [2014] 1 BLR 675 (HC)
  • James Mosokwane NO and Others v Standard Chartered Bank Botswana Limited; In re: Gabane Community Trust v Standard Chartered Bank Botswana Limited [2014] 1 BLR 238 (HC)
  • Keipeile v Attorney-General [2014] 1 BLR 502 (HC)
  • Keitseope v Keitseope [2014] 1 BLR 416 (HC)
  • Kgakishi v The State [2014] 1 BLR 347 (HC)
  • Khumalo, ABM University College v [2014] 1 BLR 88 (CA)
  • Lebitso v Directorate of Public Prosecutions [2014] 1 BLR 440 (HC)
  • Letlole v Francistown City Council and Another [2014] 1 BLR 286 (HC)
  • Liwena v Afro Ventures Botswana t/a And Beyond [2014] 1 BLR 303 (IC)
  • Lobatse Clay Works (Pty) Ltd v Cul De Sac (Pty) Ltd [2014] 1 BLR 13 (HC)
  • Loft Close Company v Ghanzi Land Board [2014] 1 BLR 296 (HC)
  • Louw v Firestone Diamonds Plc and Others [2014] 1 BLR 138 (CA)
  • Mabaka and Others v Ministry of Local Government and Others [2014] 1 BLR 280 (HC)
  • Magwila v Motsoma [2014] 1 BLR 330 (HC)
  • Mangena v The State [2014] 1 BLR 107 (CA)
  • Mapulana v The State [2014] 1 BLR 568 (HC)
  • Matlhare and Another v The State  [2014] 1 BLR 574 (HC)
  • Mawere v Botswana Building Society [2014] 1 BLR 152 (CA)
  • Mey v July [2014] 1 BLR 597 (CA)
  • Mhango v Southern African Development Community and Another [2014] 1 BLR 274 (HC)
  • Michael v The State [2014] 1 BLR 103 (CA)
  • Minister of Labour and Home Affairs and Another v Botswana Public Employees Union and Others [2014] 1 BLR 450 (CA)
  • Moakofi v Moakofi; In re: Moakofi v Moakofi [2014] 1 BLR 80 (HC)
  • Mogoge v Mogoge and Another [2014] 1 BLR 571 (HC)
  • Mokate v The State [2014] 1 BLR 204 (HC)
  • Mongala v Anthony and Another [2014] 1 BLR 419 (HC)
  • Morapedi v North East District Council [2014] 1 BLR 250 (HC)
  • Mothahu and Others v Attorney-General [2014] 1 BLR 424 (HC)
  • Mount Burgess (Botswana) (Pty) Ltd v Attorney-General [2014] 1 BLR 488 (HC)
  • Mpolokang and Another v Attorney-General [2014] 1 BLR 324 (HC)
  • Mpugwa v Mpugwa [2014] 1 BLR 199 (HC)
  • Mugende and Others v Academy of Business Management (Pty) Ltd t/a ABM University College and Others [2014] 1 BLR 214 (HC)
  • Ndebele v The State [2014] 1 BLR 110 (CA)
  • Nthite v Kahiya and Another [2014] 1 BLR 97 (CA)
  • Permanent Secretary, Ministry of Health and Others v Phillip and Another [2014] 1 BLR 124 (CA)
  • Phalabatsi v Attorney-General [2014] 1 BLR 191 (HC)
  • Phalanyane v Attorney-General [2014] 1 BLR 652 (HC)
  • Phello v Seabelo [2014] 1 BLR 386 (HC)
  • Phillip and Another v Permanent Secretary, Ministry of Health and Others [2014] 1 BLR 129 (CA)
  • Phumaphi v The Francistowner (Pty) Ltd t/a The Voice Newspaper and Others [2014] 1 BLR 364 (HC)
  • Pule v De Wet Drilling [2014] 1 BLR 640 (IC)
  • Ramaeba v The State [2014] 1 BLR 560 (CA)
  • Ramorukutlha v The State [2014] 1 BLR 427 (HC)
  • Rapuleng v Ngwakwena [2014] 1 BLR 404 (HC)
  • SA Shippers (Pty) Ltd v Golden Bee (Pty) Ltd; In re: Golden Bee (Pty) Ltd v SA Shippers (Pty) Ltd [2014] 1 BLR 67 (HC)
  • Saint Paul Apostolic Faith Mission of Botswana v Diphore and Another [2014] 1 BLR 355 (HC)
  • Sedisa v Khan [2014] 1 BLR 17 (HC)
  • Seiphepi v Bokhalenyane [2014] 1 BLR 317 (IC)
  • Seleka v The State [2014] 1 BLR 658 (HC)
  • Senn Foods (Pty) Ltd t/a Sea Food Wholesale Botswana v Quatro (Pty) Ltd t/a Indiana Spur and Others [2014] 1 BLR 37 (HC)
  • Sethole v OD Drilling (Pty) Ltd and Others [2014] 1 BLR 1 (IC)
  • Setsiba and Another v The State [2014] 1 BLR 119 (CA)
  • Shangor Insurance Brokers (Pty) Ltd v Makununika; In re: Makununika v Shangor Insurance Brokers (Pty) Ltd [2014] 1 BLR 672 (HC)
  • Speedway Freight (Pty) Ltd v Shangai Fengyue Glass & Co (Pty) Ltd [2014] 1 BLR 554 (HC)
  • State v Gabaakanye [2014] 1 BLR 256 (HC)
  • State v Magompane [2014] 1 BLR 335 (HC)
  • State v Makgetla [2014] 1 BLR 167 (HC)
  • State v Seithati [2014] 1 BLR 437 (HC)
  • Strata (Pty) Ltd v Attorney-General [2014] 1 BLR 518 (CA)
  • Tatebe v The State [2014] 1 BLR 543 (CA)
  • Teleki v The State [2014] 1 BLR 409 (HC)
  • Tenhedza v Zimbizi [2014] 1 BLR 644 (HC)
  • Thaga and Another v Barclays Bank of Botswana Ltd [2014] 1 BLR 24 (HC)
  • The Dental Clinic (Pty) Ltd and Another v JTB Botswana (Pty) Ltd and Another [2014] 1 BLR 50 (HC)
  • Three Partners Resort (Pty) Ltd v KPMG Botswana and Another; In re: African Sun Limited PCC v Three Partners Resort (Pty) Ltd [2014] 1 BLR 497 (HC)
  • Tlokweng Land Board v Matlapeng and Others [2014] 1 BLR 480 (HC)
  • Tops Operations (Pty) Ltd v Mish Trans Logistics (Pty) Ltd [2014] 1 BLR 620 (HC)
  • Tshomane v Seleke and Another; In re: Seleke v Tshomane [2014] 1 BLR 393 (HC)
  • Wakala v The State [2014] 1 BLR 113 (CA)

 

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