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November 2018

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the corrected cases in the November law reports.

JUDGMENTS OF INTEREST IN THE NOVEMBER 2018 EDITIONS OF THE SALR AND SACR AS WELL AS THE NAMIBIAN LAW REPORTS 2018(3).

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

 

SOUTH AFRICAN LAW REPORTS

Head of state immunity and the spouse of a head of state

In 2017, while in South Africa with her husband, then President Robert Mugabe of Zimbabwe, Dr Grace Mugabe allegedly assaulted a third person. Does customary international law include a rule that a head of state’s spouse is immune from the criminal jurisdiction of another state? Democratic Alliance v Minister of International Relations and Co-Operation and Others 2018 (6) SA 109 (GP)

Vicarious liability of the Minister of Safety and Security, for damages of an individual shot by her romantic partner, a policeman

While on a break from duty and in uniform, a policeman shoots his romantic partner at her home. In such circumstances, is the Minister of Safety and Security liable to the romantic partner for the damages resulting from her injury? Booysen v Minister of Safety and Security 2018 (6) SA 1 (CC)

Judge completing the hearing of a trial but dying before giving judgment. What options are available to the litigants?

A judge hears, and completes the hearing of a trial, but dies before giving judgment. May the parties now agree that the trial should not start anew, but that a decision should be made by another judge after his reading all of the material that was available to the deceased judge, and his hearing argument? Mondi Shanduka Newsprint (Pty) Ltd v Murphy 2018 (6) SA 230 (KZD)
 

SOUTH AFRICAN CRIMINAL LAW REPORTS

Should an accused be compelled to exercise his right to legal representation?

After his legal representative withdrew due to ill health on the day of trial, the accused elected to proceed without representation when asked what he wished to do. Short of compelling the accused to engage legal representation, could anything more could be expected of the court. S v Shiburi 2018 (2) SACR 485 (SCA)

Prisoner’s rights: blanket ban on use of laptops in cells for study purposes unfair?

The prisoners were pursuing tertiary studies in prison and had insufficient opportunity to use communal computer facilities to study. The court considered whether a blanket ban imposed on the use of laptops in their cells constituted unfair discrimination in view of their perfect security records and justifiable need. Pretorius and Others v Minister of Justice and Correctional Services and Others 2018 (2) SACR 501 (GP)

Effect of confiscation order on sentencing in corruption matters
There was no inflexible rule that the effect of a confiscation order should be disregarded when imposing sentence in corruption matters. It would, however, be wrong to place undue emphasis on it. S v Scholtz 2018 (2) SACR 526 (SCA)
 

THE NAMIBIAN LAW REPORTS 2018(3)

Vicarious liability—standard of care expected of a medical practitioner

The respondent accidentally shot himself through the leg, which eventually, after treatment in a state hospital, resulted in the amputation of his leg. The respondent sued the appellant, the Minister of Health and Social Services, for the recovery of damages caused by the negligence of the doctor and/or other medical officers employed by the appellant. The court considers the standard of care expected from general practitioners and whether it is the same for specialist practitioners. Minister of Health and Social Services NO v Kasingo 2018 (3) NR 714 (SC)

The constitutionality of the imposition of land tax in terms of the Agricultural (Commercial) Land Reform Act 6 of 1995

The appellant launched numerous constitutional applications in the court a quo in which its main attack was directed against ss 76–80 of the Agricultural (Commercial) Land Reform Act 6 of 1995 (the Act) which provide for the imposition of land tax. The High Court found that the land tax imposed under these sections passed constitutional muster and dismissed the challenges to the regulations and other decisions taken pursuant to them. The Supreme Court held that the approach of the appellant that land tax was unconstitutional for any authority other than the legislature to prescribe or determine any element of a tax was fundamentally misconceived and was in conflict with an ordinary meaning of the term ‘provide for taxation’ which was contained in art 63(2)(b) of the Constitution of Namibia. Kambazembi Guest Farm CC t/a Waterberg Wilderness v Minister of Lands and Resettlement and Others 2018 (3) NR 800 (SC)

Right to privacy guaranteed under art 13 of the Constitution of Namibia demanding strict interpretation of search and seizure provisions

The state sought to have six search warrants issued by a magistrate in terms of s 22(4) of the Anti-Corruption Act 8 of 2003 admitted into evidence. The search warrants were issued on the mentioned dates directing ‘all authorised officers’ to search the premises identified. The court held that by its ordinary meaning an authorised officer must be identified and mentioned in the warrant to conduct the entry and search, not any or all officers. S v Lameck and Others 2018 (3) NR 902 (HC)
 


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 SOUTH AFRICAN LAW REPORTS
 TABLE OF CASES
 
  • Booysen v Minister of Safety and Security 2018 (6) SA 1 (CC)
  • Aon South Africa (Pty) Ltd v Van den Heever NO and Others 2018 (6) SA 38 (SCA)
  • Madibeng Local Municipality v Public Investment Corporation Ltd 2018 (6) SA 55 (SCA)
  • Amandla GCF Construction CC and Another v Municipal Manager, Saldanha Bay Municipality and Others 2018 (6) SA 63 (WCC)
  • Bannister’s Print (Pty) Ltd v D&A Calendars CC and Another 2018 (6) SA 77 (GJ)
  • Bright Idea Projects 66 (Pty) Ltd v Former Way Trade and Invest (Pty) Ltd 2018 (6) SA 86 (KZP)
  • Cilliers v La Concorde Holdings Ltd and Others 2018 (6) SA 97 (WCC)
  • Democratic Alliance v Minister of International Relations and Co-Operation and Others 2018 (6) SA 109 (GP)
  • Du Plessis NO and Others v Van Niekerk and Others 2018 (6) SA 131 (FB)
  • Dias v Petropulos and Another 2018 (6) SA 149 (WCC)
  • Joint Municipal Pension Fund v Ehlanzeni District Municipality 2018 (6) SA 197 (GP)
  • Molobi v South African National Parks and Others 2018 (6) SA 217 (LCC)
  • Mondi Shanduka Newsprint (Pty) Ltd v Murphy 2018 (6) SA 230 (KZD)
  • Numsa obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Ltd and Others 2018 (6) SA 240 (LAC)
  • Roos v Saaiman NO and Others 2018 (6) SA 279 (GP)
  • Swart and Another v Cash Crusaders Southern Africa (Pty) Ltd 2018 (6) SA 287 (GP)
  • Trollip v Taxing Mistress, High Court and Others 2018 (6) SA 292 (ECG)
  • Witzenberg Properties (Pty) Ltd v Bokveldskloof Boerdery (Pty) Ltd and Another 2018 (6) SA 307 (WCC)
  • Xantha Properties 18 (Pty) Ltd v National Home Builders Registration Council and Others 2018 (6) SA 320 (WCC)
 
 FLYNOTES
 

BOOYSEN v MINISTER OF SAFETY AND SECURITY (CC)

ZONDO DCJ, CAMERON J, FRONEMAN J, JAFTA J, KATHREE-SETILOANE AJ, KOLLAPEN AJ, MADLANGA J, MHLANTLA J, THERON J and ZONDI AJ
2018 JUNE 27
[2018] ZACC 18

Delict - Specific forms—Vicarious liability—Minister’s liability for policeman shooting romantic partner—Policeman on duty, in uniform, dining with partner at her home, thereafter shooting her with service pistol.

AON SOUTH AFRICA (PTY) LTD v VAN DEN HEEVER NO AND OTHERS (SCA)

NAVSA JA, THERON JA, WALLIS JA, PETSE JA and ZONDI JA
2017 MAY 30
[2017] ZASCA 6

Estoppel - Res judicata—Issue estoppel—Requirements—Same party—Identity of interest between plaintiffs in two different actions sufficient to satisfy same-party requirement.

MADIBENG LOCAL MUNICIPALITY v PUBLIC INVESTMENT CORPORATION LTD (SCA)

PONNAN JA, WALLIS JA, WILLIS JA, PLASKET AJA and MAKGOKA AJA
2018 JUNE 1
[2018] ZASCA 93

Practice - Trial—Witnesses—Evidence—By affidavit—Correct approach to—Uniform Rules of Court, rule 38(2).

AMANDLA GCF CONSTRUCTION CC AND ANOTHER v MUNICIPAL MANAGER, SALDANHA BAY MUNICIPALITY AND OTHERS (WCC)

BOQWANA J
2018 JUNE 22

Local authority - Tenders—Award—Appeal—21-day time limit—Whether official or office bearer of municipality empowered to condone non-compliance with time limits—No general power afforded to municipality (acting through its officials or office bearers) to extend a statutory time period, except if that power conferred on it by particular section of a statute—Section under consideration providing no such power—Local Government: Municipal Systems Act 32 of 2000, s 62(1).

BANNISTER’S PRINT (PTY) LTD v D&A CALENDARS CC AND ANOTHER (GJ)

MEYER J
2018 AUGUST 14

Set-off - Requirements—Whether debts of same nature, between same persons, and liquidated.

BRIGHT IDEA PROJECTS 66 (PTY) LTD v FORMER WAY TRADE AND INVEST (PTY) LTD (KZP)

D PILLAY J
2018 JULY 10

Minerals and petroleum - Petroleum—Arbitration—Whether eviction proceedings to be stayed, pending outcome of s 12B arbitration of fairness of brand fee—Petroleum Products Act 120 of 1977, s 12B.

CILLIERS v LA CONCORDE HOLDINGS LTD AND OTHERS (WCC)

PAPIER J
2018 JUNE 14

Company - Shares and shareholders—Shareholders—Appraisal rights of dissenting shareholders—Disposal of all or greater part of assets of subsidiary—Shareholders in holding company entitled to appraisal rights where disposal would amount to disposal of all or greater part of assets of holding company—Companies Act 71 of 2008, s 115(2)(b), s 164(2)(b).

DEMOCRATIC ALLIANCE v MINISTER OF INTERNATIONAL RELATIONS AND CO-OPERATION AND OTHERS (GP)

VALLY J
2018 JULY 30

International law - Customary international law—Whether including rule that head of state’s spouse immune from criminal jurisdiction.

DU PLESSIS NO AND OTHERS v VAN NIEKERK AND OTHERS (FB)

DAFFUE J
2018 JUNE 26

Trust - Trustee—Removal—Clause in trust deed providing that office of trustee vacated if majority of trustees requesting such trustee to resign—Whether decision of majority to request resignation, without any reason provided, sufficient for trustee to lose office—Trust law not allowing removal of trustee on such grounds—Clause, properly interpreted, meant that there had to be good cause for request and that trustee should vacate office only in event of acceptance of request—Even if interpretation incorrect, requirement of ‘good cause’ implied in trust deed, on grounds of public policy and principles of ubuntu, reasonableness and fairness—Failure of trustees to act arbitrio bono viri.

Contract - Terms—Implied and tacit terms—Implied terms—Specific instances—Clause in trust deed providing that office of trustee vacated if majority of trustees requesting such trustee to resign—Considerations of public policy and principles of ubuntu, reasonableness and fairness—Implied term to effect there had to be good cause for request and that trustee should vacate office only in event of acceptance of request.

Contract - Legality—Constitutionality—Importation of constitutional principles into law of contract—Public policy, ubuntu, reasonableness and fairness—Clause in trust deed providing that office of trustee vacated if majority of trustees requesting such trustee to resign—Implied term to effect there had to be good cause for request and that trustee should vacate office only in event of acceptance of request.

DIAS v PETROPULOS AND ANOTHER (WCC)

BOZALEK J
2018 JULY 30

Land - Lateral support—Duty to maintain lateral support between contiguous pieces of land—Scope of—Extending not only to land in its natural state but also to land with buildings on it, provided that such land not so unreasonably loaded by buildings as to place disproportionate or unreasonable burden of lateral support on neighbouring land.

Land - Lateral support—Duty to maintain lateral support between contiguous pieces of land—Breach of—What constitutes failure to provide lateral support—No closed list—Not confined to support maintaining area of excavation, irrespective of what further consequences excavation having for stability of contiguous land—In present case, removal of lateral support manifesting as slope mobilisation, causing damage to plaintiff’s property.

JOINT MUNICIPAL PENSION FUND v EHLANZENI DISTRICT MUNICIPALITY (GP)

DE VOS J, KUBUSHI J and PRINSLOO J
2018 JUNE 14

Pension - Pension fund—Members—Benefits—Claim—Locus standi—Whether pension fund (Joint Municipal Pension Fund) to which member belonging entitled to claim from employer benefits payable by employer in terms of rules of fund, for purposes of paying member—Binding nature of rules—Statutory obligation to collect contributions and distribute benefits payable to its members—Pension fund having locus standi— Pension Funds Act 24 of 1956, ss 7D and 13.

MOLOBI v SOUTH AFRICAN NATIONAL PARKS AND OTHERS (LCC)

MOLEFE J
2018 JUNE 18

Constitutional law - Legislation—Validity—Extension of Security of Tenure Act 62 of 1997, s 1 sv ‘occupier’ para (c)—Persons with monthly income above income threshold excluded from definition of ‘occupier’ and therefore protection of Act—Whether provision amounting to infringements of rights to equal protection and benefit of the law, to not be unfairly discriminated against, and to legally secure tenure—Paragraph (c) of ‘occupier’ not unconstitutional—Constitution, ss 9(1) and (3) and 25(6).

MONDI SHANDUKA NEWSPRINT (PTY) LTD v MURPHY (KZD)

LOPES J
2018 JUNE 4

Judge - Death—Before giving judgment in trial—Trial completed—Parties not wanting trial de novo—Proposal that matter be determined on available documents and after legal argument.

NUMSA obo NGANEZI AND OTHERS v DUNLOP MIXING AND TECHNICAL SERVICES (PTY) LTD AND OTHERS (LAC)

SUTHERLAND JA, COPPIN JA and SAVAGE AJA
2018 JULY 17

Labour law - Dismissal—Derivative misconduct—Failure to disclose knowledge of wrongdoing against employer—Failure to identify fellow strikers involved in violent misconduct during strike—Duty to speak triggered by presence during violence—May be proved by indirect evidence or inference—Each of dismissed employees, on probabilities, present during some or all of misconduct—Failed to give evidence or provide explanation—Derivative misconduct established—Dismissals fair.

Labour law - Employee—Duty of good faith to employer—Disclosure of knowledge of wrongdoing against employer—Duty to identify employees involved in misconduct—Violence during strike—Duty to identify culprits—Duty to speak triggered by presence during violence—Presence may be proved by indirect evidence or inference—Dismissal apt sanction for failure to identify perpetrators of violence.

ROOS v SAAIMAN NO AND OTHERS (GP)

TEFFO J
2017 OCTOBER 27

Will - Revocation—Instruction to cancel or destroy—Keeping of outdated will cannot revive it in face of clear written instruction by testator to cancel or destroy it—Wills Act 7 of 1953, s 2A(c).

SWART AND ANOTHER v CASH CRUSADERS SOUTHERN AFRICA (PTY) LTD (GP)

FABRICIUS J, WANLESS AJ and STRIJDOM AJ
2018 MAY 17

Competition - Restraint of trade agreement—Enforcement—Order—Application to execute pending appeal—Irreparable harm—New employer opposing enforcement of restraint—Applicant must allege absence of irreparable harm to new employer—Superior Courts Act 10 of 2013, s 18(1) and (3).

Execution - Application to execute pending appeal—Requirements—Applicant must allege absence of irreparable harm to all opposing parties—Leaving one out fatal to application—Superior Courts Act 10 of 2013, s 18(1) and (3).

TROLLIP v TAXING MISTRESS, HIGH COURT AND OTHERS (ECG)

PLASKET J, SMITH J and LOWE J
2018 JULY 31

Costs - Counsel’s fees—Taxation—Wasted costs of first day of postponed trial—Correct approach—Counsel entitled to full day fee as compensation for loss of opportunity, unless briefed and appearing in another matter on same day—Absent any reason to suspect counsel charged improperly, counsel not to be required by taxing officer to show loss of opportunity.

WITZENBERG PROPERTIES (PTY) LTD v BOKVELDSKLOOF BOERDERY (PTY) LTD AND ANOTHER (WCC)

CLOETE J
2018 JUNE 28

Water - Groundwater—Abstraction—Interim interdict sought by neighbouring landowner—Standing—Applicant claiming abstraction from boreholes on neighbouring farm draining its dam—Mere connectivity between boreholes and dam not enough to show harm actually committed or reasonably apprehended—No standing—Interdict denied—National Water Act 36 of 1998.

Water - National Water Act—Effect—Water law removed from private law to public law domain—National Water Act 36 of 1998.

XANTHA PROPERTIES 18 (PTY) LTD v NATIONAL HOME BUILDERS REGISTRATION COUNCIL AND OTHERS (WCC)

NUKU J
2018 MAY 16

Housing - Consumer protection—Enrolment of home—Whether home builder required, in terms of s 14 of Housing Consumers Protection Measures Act, to enrol construction of ‘home’, where home builder constructing home solely for purposes of leasing or renting out—Purpose of Act being protection of ‘housing consumer’—Tenant in terms of lease with home builder was not ‘housing consumer’—‘Home’ was accordingly limited to homes acquired by housing consumers by means of sale—Enrolment therefore not required—Housing Consumers Protection Measures Act 95 of 1998, s 1 sv ‘home’ and ‘housing consumer’, and s 14(1).

 

 SOUTH AFRICAN CRIMINAL LAW REPORTS
 TABLE OF CASES
  
  • S v Shiburi 2018 (2) SACR 485 (SCA)
  • Pretorius and Others v Minister of Justice and Correctional Services and Others 2018 (2) SACR 501 (GP)
  • National Director of Public Prosecutions v Five Star Import & Export (Pty) Ltd 2018 (2) SACR 513 (WCC)
  • S v Scholtz and Others 2018 (2) SACR 526 (SCA)
  • S v SM 2018 (2) SACR 573 (SCA)
  • S v MN 2018 (2) SACR 580 (GP)
  • S v Mhlola 2018 (2) SACR 588 (WCC)
  • S v MT 2018 (2) SACR 592 (CC)
 
 FLYNOTES
 

S v SHIBURI (SCA)

SHONGWE ADP, SALDULKER JA, PILLAY AJA, MAKGOKA AJA and HUGHES AJA
2018 MAY 29; AUGUST 29 
[2018] ZASCA 107

Trial - Accused—Legal representation of—Withdrawal of legal representative—On day of trial on grounds of ill health—Accused electing to proceed with trial without representation when asked what wished to do—Short of compelling accused to engage legal representation, nothing more could be expected of court—No irregularity occurring. 

Plea - Guilty—Questioning in terms of s 112(1)(b) of Criminal Procedure Act 51 of 1977—Not court’s function to evaluate plausibility of answers at that stage, but only whether explanation disclosing possible defence in law to charge—Court should not attempt to extract concessions from accused. 

PRETORIUS AND OTHERS v MINISTER OF JUSTICE AND CORRECTIONAL SERVICES AND OTHERS (GP)

SWANEPOEL AJ
2018 APRIL 25; MAY 14

Prisoner - Rights—Use of laptop computer in cell—Applicants pursuing tertiary studies in prison and having insufficient opportunity to use communal computer facilities to study—Correctional Services authorities imposing blanket ban on use of laptop computers in cells—Failing to consider applicants as individuals with perfect security records and justifiable need for use of such laptops—Constituting unfair discrimination and relevant order granted in favour of applicants.

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v FIVE STAR IMPORT & EXPORT (PTY) LTD (WCC)

LE GRANGE J
2018 AUGUST 30

Search and seizure - Seizure—Return in terms of s 31(1)(a) of Criminal Procedure Act 51 of 1977 of article to owner—Proof of requirements of section—Two-stage inquiry—In casu, large sum of local currency seized in highly suspicious circumstances at airport—Applicant’s explanation preposterous and police having reasonable grounds for believing intended for use in commission of offence—Money forfeited to state.

S v SCHOLTZ AND OTHERS (SCA)

LEACH JA, MATHOPO JA, VAN DER MERWE JA, MOCUMIE JA and MOTHLE AJA
2018 MAY 3; AUGUST 21
[2018] ZASCA 106

Corruption - Sentence—Factors to be taken into account—Effect of confiscation order on sentence to be imposed—Not inflexible rule that such order be disregarded—In casu, confiscation order in excess of R60 million—Despite court’s sympathy for accused’s personal circumstances, no convincing reasons why statutory minimum sentence not to be imposed.

Corruption - What constitutes—Nature of statutory offence and effect of repeal of Corruption Act 94 of 1992 by Prevention and Combating of Corrupt Activities Act 12 of 2004—Ambit of offence narrower under latter Act—Fight against corruption requiring legislative attention to definition of offence.

S v SM (SCA)

NAVSA JA, MAJIEDT JA, DAMBUZA JA, MOCUMIE JA and HUGHES AJA
2018 FEBRUARY 15; MARCH 26
[2018] ZASCA 32

Evidence - Witness—Oath—Administering of—Mental state of witness subjected to some doubt—Court failing to hold inquiry in terms of s 164 of Criminal Procedure Act 51 of 1977—Such failure fatal—Proceedings set aside.

S v MN (GP)

TEFFO J and BASSON J
2018 JANUARY 26

Trial - Mental state of accused—Enquiry in terms of s 77 of Criminal Procedure Act 51 of 1977—Court made aware of possible mental disturbance of accused and relying on memorandum bearing official stamp of hospital indicating that not suffering from any such disturbance—Document not indicating whether psychiatric hospital or by whom accused examined—Provisions of s 77(1) peremptory and irregularity occurring vitiating trial.

S v MHLOLA (WCC)

CLOETE J and ENGERS AJ
2018 AUGUST 17

Admission of guilt - Setting of by prosecutor—Amount exceeding determination made for district—Notice ultra vires provisions of s 57(5)(a) of Criminal Procedure Act 51 of 1977 and irregular—Magistrate correct in setting aside payment of fines.

S v MT (CC)

MOGOENG CJ, CACHALIA AJ, DLODLO AJ, FRONEMAN J, GOLIATH AJ, JAFTA J, KHAMPEPE J, MADLANGA J, PETSE 2018 MAY 10; SEPTEMBER 3
[2018] ZACC 27

Appeal - Leave to appeal—To Constitutional Court—Whether constitutional issue raised—Application of prescribed minimum-sentence legislation—Failure to inform accused of such—Effect of such failure—Challenge to court’s decision that wrong on facts not constitutional issue.

Appeal - Leave to appeal—To Constitutional Court—Whether constitutional issue raised—Application of prescribed minimum-sentence legislation—Failure to inform accused of such—Question whether such failure infringed accused’s right to fair trial constituting constitutional issue—Whether accused’s right infringed in particular case not substantiated.

 

 THE NAMIBIAN LAW REPORTS 2018(3)
 TABLE OF CASES
  TABLE OF CASESTABLE OF CASES  
  • Tjamuaha and Another v Master of the High Court and Others 2018 (3) NR 605 (SC)
  • Rashed v Inspector-General of the Namibian Police and Others 2018 (3) NR 619 (HC)
  • Fish Orange Mining Consortium (Pty) Ltd v Goaseb and Others 2018 (3) NR 632 (HC)
  • Brink NO and Another v Erongo All Sure Insurance CC and Others 2018 (3) NR 641 (SC)
  • Permanent Secretary of the Judiciary v Somaeb and Another 2018 (3) NR 657 (SC)
  • Communications Regulatory Authority of Namibia v Telecom Namibia Ltd and Others 2018 (3) NR 664 (SC)
  • TCIMS Industrial (Namibia) (Pty) Ltd v Minister of Finance and Others 2018 (3) NR 691 (HC)
  • S v Kundiatuka 2018 (3) NR 699 (NLD)
  • S v Gemeng and Others 2018 (3) NR 701 (HC)
  • Negonga v Nampost Ltd 2018 (3) NR 704 (HC)
  • Minister of Health and Social Services NO v Kasingo 2018 (3) NR 714 (SC)
  • Beukes and Another v First National Bank Ltd and Others 2018 (3) NR 731 (HC)
  • Namdeb Diamond Corporation (Pty) Ltd v Coetzee 2018 (3) NR 737 (SC)
  • Mbelle Panel Beaters & Transport CC v Willemse 2018 (3) NR 745 (NLD)
  • Uutoni v Freedom Square Investments Twenty Four CC t/a Oshakati Fish Shop 2018 (3) NR 752 (NLD)
  • Director General, Namibia Central Intelligence Service and Another v Haufiku and Others 2018 (3) NR 757 (HC)
  • Kambazembi Guest Farm CC t/a Waterberg Wilderness v Minister of Lands and Resettlement and Others 2018 (3) NR 800 (SC)
  • Road Fund Administration v Skorpion Mining Company (Pty) Ltd 2018 (3) NR 829 (SC)
  • Standard Bank Namibia Ltd v Shipila and Others 2018 (3) NR 849 (SC)
  • Arangies and Another v Unitrans Namibia (Pty) Ltd and Another 2018 (3) NR 869 (SC)
  • S v Kapia and Others 2018 (3) NR 885 (HC)
  • S v Lameck and Others 2018 (3) NR 902 (HC)
 FLYNOTES
 

TJAMUAHA AND ANOTHER v MASTER OF THE HIGH COURT AND OTHERS (SC)

MAINGA JA, SMUTS JA and FRANK AJA
2017 OCTOBER 11, 26

Ownership - Co-ownership—Spouses married in community of property were co-owners of assets—No real right of common property created between co-owners—Claim against co-owner for division of property personal and not vindicatory right—Upon death of spouse, surviving spouse vested with personal right for claiming division of estate—Claimant’s personal right becoming prescribed after three years in terms of Prescription Act 68 of 1969—Appeal succeeded.

RASHED v INSPECTOR-GENERAL OF THE NAMIBIAN POLICE AND OTHERS (HC)

MASUKU J
2018 MAY 18; JUNE 13
[2018] NAHCMD 165

Court - Jurisdiction—High Court—Court vested with inherent jurisdiction of issuing any order not prohibited by law when just and equitable—Court has jurisdiction to enforce another court’s order where that court lacks jurisdiction to enforce its own orders.

Practice - Parties—Application to intervene—Application interlocutory in nature and effect as contemplated by High Court Rules, rule 41(2)—Respondent failing to comply with provisions of rule 32(9) and (10) applicable to interlocutory applications—Application struck from roll.

FISH ORANGE MINING CONSORTIUM (PTY) LTD v GOASEB AND OTHERS (HC)

MASUKU J
2017 SEPTEMBER 4, 5, 6, 7; 2018 FEBRUARY 8; JUNE 8
[2018] NAHCMD 154

Practice - Trial—Absolution from the instance at close of plaintiff’s case—Plaintiff claiming N$5 million damages following defendants’ unlawful transferring of its EPL—Calculation of actual damages not required to survive absolution from instance—Decision of amount of damages to be awarded matter for court assisted by expert—Sufficient evidence adduced to dismiss application for absolution from instance.

BRINK NO AND ANOTHER v ERONGO ALL SURE INSURANCE CC AND OTHERS (SC)

SHIVUTE CJ, DAMASEB DCJ and CHOMBA AJA
2018 MARCH 26; JUNE 22

Administration of estates - Executor—Locus standi—Executor/executrix has locus standi to recover assets for estate—Locus standi not exclusive—Sole heir/legatee joined as second appellant—Rule relaxed—Heir/legatee permitted to join as only other person with interest in vindicating specific asset infringed or threatened to be infringed—Joining of sole heir who had constitutional right to be heard not prejudicial to case—Sole heir/legatee having locus standi.

Practice - Pleadings—Exception—On ground that particulars of claim not disclosing cause of action—Rule 45(5) of High Court Rules requiring clear, concise material facts upon which pleader relied—Fundamental to alert other party of conduct complained of and to enable it to plead—Purpose of pleading to alert opposing party of pleader’s case and to allow such party to respond accordingly—Particulars of claim clearly setting out material facts disclosing cause of action—Appeal successful.

PERMANENT SECRETARY OF THE JUDICIARY v SOMAEB AND ANOTHER (SC)

DAMASEB DCJ
2018 JULY 3

Court - Supreme Court—Abuse of court process—Application by Permanent Secretary, employing rule 6 of Supreme Court Rules to strike appeal under s 14(7)(a) of Supreme Court Act 15 of 1990 as being frivolous, vexatious and without prospects of success—No prospects where litigant objectively viewed, had no reasonable chance of success—Appeal unmeritorious—No remedy available in law—First respondent’s appeal summarily dismissed.

Review - By Supreme Court—In what cases—Section 16 of Supreme Court Act 15 of 1990 conferring review jurisdiction on Supreme Court—Jurisdiction exercisable only by Supreme Court in respect of decisions of courts below and other administrative bodies and officials—Not competent in relation to decisions of Supreme Court.

COMMUNICATIONS REGULATORY AUTHORITY OF NAMIBIA v TELECOM NAMIBIA LTD AND OTHERS (SC)

DAMASEB DCJ, SMUTS JA and CHOMBA AJA
2018 APRIL 6; JUNE 11

Statute - Regulations—Communications Act 8 of 2009—No taxation without legislation—Legality of 1,5% levy imposed by Communications Regulatory Agency of Namibia (CRAN) in terms of s 23(2)(a) of Communications Act to defray expenses under s 23(1) questioned—Question was whether substance of levy was tax or regulatory charge—Regulatory scheme embedded in Act which saved levy from being constitutionally impermissible tax—Section 23(2)(a) constituted outsourcing of plenary legislative power to CRAN—Legislature failing to guard against risk of unconstitutional exercise of discretionary power—Section 23(2)(a) unconstitutional—Court suspended order of invalidity to afford legislature opportunity to correct defect.

TCIMS INDUSTRIAL (NAMIBIA) (PTY) LTD v MINISTER OF FINANCE AND OTHERS (HC)

PARKER AJ
2018 JUNE 14, 28
[2018] NAHCMD 188

Administrative law - Administrative action—What constituted—Minister’s refusal to grant manufacturing status to respondent pursuant to ss 1 and 5A(3) of Income Tax Act 24 of 1981 constituted an administrative action—Refusal unlawful, invalid and violating applicant’s art 18 constitutional right to administrative justice—Where respondents having made up their minds, the court would substitute the decision to avoid delays and prejudice to applicant—Sufficient facts available and matter not technical, enabling court to make decision.

S v KUNDIATUKA (NLD)

CHEDA J and JANUARY J
2018 JUNE 18
[2018] NAHCNLD 53

Criminal procedure - Sentence—Generally—Mitigating factors and personal circumstances of accused must be placed before court by way of evidence and appear from record of proceedings—Accused must be invited to submit mitigating factors or court should question him/her about personal circumstances—Necessary to pass appropriate and realistic sentence.

S v GEMENG AND OTHERS (HC)

SHIVUTE J
2018 JUNE 20
[2018] NAHCMD 183

Statute - Interpretation—Criminal Procedure Act 51 of 1977, s 37(3)(a) and (b)—Taking of buccal swabs for purposes of DNA testing—Section 37(3) included taking of blood and other characteristics, which included taking of buccal swabs and not only external features and characteristics—Accused ordered to submit themselves for taking of buccal swabs.

NEGONGA v NAMPOST LTD (HC)

PRINLSOO J
2018 JUNE 19; JULY 10, 13
[2018] NAHCMD 212

Banker - Relationship between banker and client—Contractual relationship of debtor and creditor—Same relationship between client and Nampost after lifting of regulations published in terms of Posts and Telecommunications Act 19 of 1992—Sui generis relationship, one of deposit, debtor and creditor and agency—Prescription did not run from date of deposit—Creditor had right to determine when performance must be made—Contractual relationship between bank and customer reiterated.

MINISTER OF HEALTH AND SOCIAL SERVICES NO v KASINGO (SC)

DAMASEB DCJ, HOFF JA and MOKGORO AJA
2016 JULY 8; 2018 JULY 6

Delict - Liability for—Vicarious liability—Negligence of medical practitioner—Standard of care expected from general practitioner not same as specialist practitioner—Prevailing circumstances—Lack of expert staff and facilities in state facility—Causation—Omission by doctor or staff too remote to attract legal liability—Absence of sufficiently close connection between alleged omission and consequence, namely amputation of leg.

BEUKES AND ANOTHER v FIRST NATIONAL BANK LTD AND OTHERS (HC)

ANGULA DJP
2018 APRIL 3, 13
[2018] NAHCMD 94

Execution - Sale in execution—Immovable property—Immovable property primary home of applicants—Valuation of immovable property—Valuation certificate only admissible as proof of value of property if regional or municipal authority council or land valuation not available—High Court Rules, rule 110(9).

NAMDEB DIAMOND CORPORATION (PTY) LTD v COETZEE (SC)

MAINGA JA, HOFF JA and FRANK AJA
2018 JULY 9; AUGUST 1

Appeal - To Supreme Court—From decision in High Court—When leave to appeal required—Application for leave to appeal in High Court struck from roll—Order striking appeal made by High Court sitting as court of appeal—Section 14(1) of Supreme Court Act 15 of 1990 qualified by s 18(2)(b) of High Court Act 16 of 1990—Leave to appeal to Supreme Court required and if refused, petition procedure in s 14(6) of Supreme Court Act to be followed.

MBELLE PANEL BEATERS & TRANSPORT CC v WILLEMSE (NLD)

CHEDA J
2018 FEBRUARY 20, 21; MARCH 12
[2018] NAHCNLD 21

Prescription - Extinctive prescription—Interruption—Service of process—Letter of demand not constituting service of ‘process’ affecting running of prescription—Prescription running from agreed date of payment—No demand for payment necessary—Debt due and payable within three years of agreed date—Summons issued after claim became prescribed—Special plea upheld.

UUTONI v FREEDOM SQUARE INVESTMENTS TWENTY FOUR CC t/a OSHAKATI FISH SHOP (NLD)

CHEDA J
2018 MAY 7; JUNE 11
[2018] NAHCNLD 51

Practice - Judgments and orders—Summary judgment—Drastic civil procedure—Opposition to—Requirements—Court to be appraised of material facts with sufficient particularity and completeness to make proper determination—Defendant’s defence meritorious and arguable—Application dismissed.

DIRECTOR, GENERAL NAMIBIA CENTRAL INTELLIGENCE SERVICE AND ANOTHER v HAUFIKU AND OTHERS (HC)

GEIER J
2018 APRIL 20; JUNE 18
[2018] NAHCMD 174

Constitutional law - Fundamental rights—Freedom of speech and expression and media guaranteed by art 21 of Constitution—Function of press to ferret out corruption, dishonesty and graft wherever it might occur and to expose perpetrators.

Interdict - Final interdict—When refused—Applicant seeking interdict preventing media from publishing article—Pleadings vague—Did not plead factual matter informing secrecy, sensitivity and classification of information.

Interdict - Final interdict—Requirements for—Preventing media from publishing article aimed at exposing certain alleged corrupt activity and unauthorised expenditure—Injury actually committed or reasonably apprehended—Could be no reasonable apprehension of injury or harm where information sought to be interdicted was already in public domain—It would make no sense to interdict information which was to form substance of newspaper article.

KAMBAZEMBI GUEST FARM CC t/a WATERBERG WILDERNESS v MINISTER OF LANDS AND RESETTLEMENT AND OTHERS (SC)

MAINGA JA, SMUTS JA and MOKGORO AJA
2018 JULY 2, 27

Constitutional law - Legislation—Constitutionality of—Agricultural (Commercial) Land Reform Act 6 of 1995, ss 76–80—Argument that land tax regime in Act amounted to impermissible delegation of legislative power to minister—Such delegation alleged to be in conflict with doctrine of separation of powers and in direct conflict with art 63(2)(b) of Constitution—Appellant’s approach fundamentally misconceived.

Constitutional law - Legislation—Constitutionality of—Agricultural (Commercial) Land Reform Act 6 of 1995 and various regulations—Appellant failed to show how each of impugned regulations offended against constitutional provisions and principles relied upon or common law—Attack upon constitutionality of land tax regime as provided for in Act and regulations was without merit.

Costs - Constitutional litigation—Proper approach—Manner in which multiple applications were pursued at minimum fell within category of manifestly inappropriate—Conduct and unnecessary proliferation of this litigation was to be discouraged, resulting in considerable costs and judicial time being spent upon it—Ordered to pay costs.

ROAD FUND ADMINISTRATION v SKORPION MINING COMPANY (PTY) LTD (SC)

DAMASEB DCJ, SMUTS JA and HOFF JA
2018 JUNE 7; JULY 13

Appeal - Condonation—Late prosecution and reinstatement—Unacceptable conduct of appellant’s counsel—High Court allowed art 18 of Namibian Constitution to be used as cause of action and to grant constitutional damages in respect of what was otherwise private law action for damages—Not proper case to refuse condonation out of hand without considering prospects of success.

Constitutional practice - Courts—Decisions of—Constitution must be last and not first resort in resolution of disputes that come before courts—Court was faced with two mutually destructive versions in action proceedings, dispute was capable of and was one which had to be resolved by common law.

STANDARD BANK NAMIBIA LTD v SHIPILA AND OTHERS (SC)

HOFF JA, CHOMBA AJA and MOKGORO AJA
2016 OCTOBER 11; 2018 JULY 6

Practice - Judgments and orders—Default judgment—Order declaring bonded property executable—Whether new application required—Court not precluded from considering order for foreclosure of bond together with order for default judgment in respect of capital amount—High Court Rules, rule 108(1)(a) and (b).

Practice - Judgments and orders—Default judgment—Order declaring bonded property executable—Where immovable property was primary home of judgment debtor, substantial compliance with Form 24 would suffice—Court must consider all relevant circumstances including ‘less drastic measures than a sale in execution’.

ARANGIES AND ANOTHER v UNITRANS NAMIBIA (PTY) LTD AND ANOTHER (SC)

SHIVUTE CJ, HOFF JA and FRANK AJA
2018 JUNE 22; JULY 27

Review - By Supreme Court—In what cases—Supreme Court Act 15 of 1990, s 16—Irregularity in case management proceedings—Audi alteram partem—Managing judge committed irregularity but had he granted applicants’ legal practitioners full hearing same conclusion not to admit witness statements and video clip should have been reached.

Practice - Judicial case management—Orders made in case management—Unacceptable for applicants to, contrary to order and with total disregard for case management process, shortly before resumption of trial file witness statements in respect of matter which, had there been proper preparation, should have been filed at outset of case.

S v KAPIA AND OTHERS (HC)

LIEBENBERG J
2018 JUNE 11–12, 28; JULY 5
[2018] NAHCMD 202

Criminal procedure - Sentence—Fine—Crimes ranging from fraud, theft by conversion and contravention of s 424(3) of Companies Act 61 of 1973—Factors considered when imposing sentence—Court taking judicial notice that ‘white-collar’ crimes on increase—Punishment in form of fines imposed in so called ‘white-collar’ crime should not be such that it made game seem worth candle.

Criminal procedure - Sentence—Generally—Remorse as mitigating factor—Important factor when considering deterrence as objective of punishment.

Criminal procedure - Sentence—Fraud—Competent sentence for conviction of fraud and contravening s 424(3) of Companies Act 61 of 1973—Same sentencing objectives could be achieved by imposition of punishment other than direct imprisonment.

Criminal procedure - Sentence—Theft—Competent sentence for conviction of theft (by conversion) and contravening s 424(3) of Companies Act 61 of 1973—Nature of and circumstances under which accused misused his company being more reprehensible, sentence of imprisonment seemed warranted.

S v LAMECK AND OTHERS (HC)

LIEBENBERG J
2018 JUNE 19–20; JULY 16
[2018] NAHCMD 214

Criminal procedure - Evidence—Admissibility—Search warrant—Addressed to all authorised officers and not specified officer—Right to privacy guaranteed under art 13 of Constitution and demanding strict interpretation of search and seizure provisions.

 

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