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November 2013

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases of interest in the November reports. Also included below are the table of cases and flynotes.

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

SOUTH AFRICAN LAW REPORTS

Settlement agreements as part of divorce orders

The practice of incorporating settlement agreements into divorce orders is salutary and in line with judicial policy. It benefits the parties and the administration of justice by encouraging negotiation over litigation to sort out financial and proprietary issues. Also, arrangements concerning the welfare of children born of the marriage cannot be disposed of without the intervention of the court. PL v YL 2013 (6) SA 28 (ECG)

Can your ex-attorney take a case against your?

In order to obtain an interdict preventing a legal practitioner representing a client against a former client, the former client would need to prove that (1) confidential information was imparted or received in confidence as a result of the attorney-client relationship and the information remains confidential; (2) it is relevant to the matter at hand; and (3) the interests of the present client are adverse to those of the former client. Wishart and Others v Blieden NO and Others 2013 (6) SA 59 (KZP)

Does funding litigation expose the funder to a costs order?

Parties involved in litigation in which another party is being funded by an outsider would be entitled to relief in the form of an order joining the funder to the litigations so that a direct order for costs can be obtained against it. Allowing such joinder would have the beneficial effect of combating possible abuses arising from the recognition of the validity of champertous contracts. Price Waterhouse Coopers Inc and Others v IMF (Australia) Ltd and Another  2013 (6) SA 216 (GNP)

SOUTH AFRICAN CRIMINAL LAW REPORTS

Differing opinions on rape sentence

A 56-year-old man with a previous conviction for attempted rape was convicted of the rape of a 7-year-old girl and sentenced in a regional court to life imprisonment. On appeal his sentence was reduced, however the full bench was not in agreement, and a strong dissent (in favour of a life sentence) was recorded in S v GK 2013 (2) SACR 505 (WCC).

Disastrous effect on life of rape victim

The appellant had been convicted in a regional court of the rape of his 12-year-old daughter. He was a 38-year-old man married to the complainant’s mother, and he had two other children. He had a drug habit and had previous convictions for theft, fraud, attempted rape and other offences. The evidence indicated clearly that the complainant had suffered severely as a result of the rape which had had a disastrous effect on her life thereafter. His appeal against his life sentence was dismissed. S v PB  2013 (2) SACR 533 (SCA)

Practising without a fidelity fund certificate

Section 83(10) of the Attorneys Act 53 of 1979 that creates the offence of practising as an attorney without a fidelity fund certificate is directed at persons who could notionally obtain a fidelity fund certificate. Only an admitted attorney can obtain such a certificate and the offence which the Act creates in respect of non-practitioners who purport to practice as practitioners is contained in s 83(1) of the Act. Law Society of the Cape of Good Hope v Adams  2013 (2) SACR 480 (WCC)

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SOUTH AFRICAN LAW REPORTS

TABLE OF CASES

  • Macleod v Kweyiya 2013 (6) SA 1 (SCA)

  • Road Accident Fund v Duma and Three Similar Cases 2013 (6) SA 9 (SCA)

  • PL v YL 2013 (6) SA 28 (ECG)

  • Wishart and Others v Blieden NO and Others 2013 (6) SA 59 (KZP)

  • MB v DB 2013 (6) SA 86 (KZD)

  • Osborne and Another v West Dunes Properties 176 (Pty) Ltd and Others 2013 (6) SA 105 (WCC)

  • Habitat Council and Another v Provincial Minister of Local Government etc, Western Cape, and Others 2013 (6) SA 113 (WCC)

  • Nedbank Ltd v Mendelow and Another NNO 2013 (6) SA 130 (SCA)

  • Taboo Trading 232 (Pty) Ltd v Pro Wreck Scrap Metal CC and Others 2013 (6) SA 141 (KZP)

  • XN, In re 2013 (6) SA 153 (GSJ)

  • Gerson v Mondi Pension Fund and Others 2013 (6) SA 162 (GSJ)

  • Afzal v Kalim 2013 (6) SA 176 (ECP)

  • Waterkloof Marina Estates (Pty) Ltd v Charter Development (Pty) Ltd (in Liquidation) and Others 2013 (6) SA 185 (GNP)

  • Kwalindile Community v King Sabata Dalindyebo Municipality and Others 2013 (6) SA 193 (CC)

  • Price Waterhouse Coopers Inc and Others v IMF (Australia) Ltd and Another 2013 (6) SA 216 (GNP)

  • Herholdt v Nedbank Ltd (Cosatu as Amicus Curiae) 2013 (6) SA 224 (SCA)

  • MEC for Environmental Affairs and Development Planning v Clairison’s CC 2013 (6) SA 235 (SCA)

  • Holdsworth and Others v Reunert Ltd 2013 (6) SA 244 (GNP)

  • Mazibuko NO v Sisulu and Others NNO 2013 (6) SA 249 (CC)

  • Bester and Others NNO v Coral Lagoon Investments (Pty) Ltd (Tonnissen NO and Others Intervening) 2013 (6) SA 295 (WCC)

  • RMB Private Bank (A Division of FirstRand Bank Ltd) v Kaydeez Therapies CC (in Liquidation) and Others 2013 (6) SA 308 (GSJ)

FLYNOTES

MACLEOD v KWEYIYA (SCA)

MTHIYANE DP, TSHIQI JA, MAJIEDT JA, PLASKET AJA and SALDULKER AJA

2013 FEBRUARY 28; MARCH 27

Prescription—Extinctive prescription—Debt—Commencement of prescription—Knowledge of debt—When deemed—Imputation of constructive knowledge aimed at negligent, not innocent, inaction—Test for negligence—Whether knowledge could in prevailing circumstances have been acquired by exercise of reasonable care—Failure of 25-year-old to timeously bring claim for damages against attorney for under-recovery of her RAF claim (settled when she was 13) not negligent since based on reasonable belief that attorney and guardian would act in her best interests—Prescription Act 68 of 1969, s 12(3).

Prescription—Extinctive prescription—Debt—Commencement of prescription—Knowledge of debt—When deemed—Onus on debtor claiming prescription to allege and prove deemed knowledge—No negative inference to be drawn from creditor’s failure to testify where no evidence to rebut—Prescription Act 68 of 1969, s 12(3).

ROAD ACCIDENT FUND v DUMA AND THREE SIMILAR CASES (SCA)

BRAND JA, MHLANTLA JA, LEACH JA, PLASKET AJA and SALDULKER AJA

2012 NOVEMBER 6, 27

Motor vehicle accident—Claim against Road Accident Fund—Limits—‘Serious injury’ threshold for general damages—Decision on whether injury serious enough to qualify for general damages conferred on RAF, not court—Decision constituting administrative action and unreasonable delay in making it to be contested with administrative remedies—Claim for general damages premature until claimant has complied with procedure for determination of serious injury—Road Accident Fund Act 56 of 1996, ss 17(1) and 17(1A).

PL v YL (ECG)

VAN ZYL ADJP, MAJEKE AJ and MEY AJ

2013 MARCH 18; AUGUST 1

Marriage—Divorce—Order of court—Incorporating settlement agreement—Practice of incorporation of settlement agreements into divorce orders salutary and in line with judicial policy—Arrangements concerning welfare of children cannot, be disposed of without intervention of court—Divorce Act 70 of 1979, s 7(1).

WISHART AND OTHERS v BLIEDEN NO AND OTHERS (KZP)

GORVEN J

2012 SEPTEMBER 28; NOVEMBER 15

Attorney—Rights and duties—Duties—Conflict of interest—Duty of confidentiality to client—Former client—Former client seeking to interdict attorney from representing new client against him—What he must prove.

MB v DB (KZD)

LOPES J

2013 JUNE 3–7, 21

Marriage—Divorce—Proprietary rights—Accrual system—Assets excluded from accrual system—Onus on defendant to prove which assets to be excluded and why—Where such assets converted from time to time, defendant to demonstrate how, and also their present values—Matrimonial Property Act 88 of 1984, s 4(1)(b)(ii).

Marriage—Divorce—Proprietary rights—Accrual system—Proof of accrual—Where respective estates of parties to be assessed—Operative moment litis contestatio, and not when divorce order made—Matrimonial Property Act 88 of 1984, s 3(1).

Marriage—Divorce—Proprietary rights—Accrual system—Proof of accrual—Incomplete disclosure of financial information—Court entitled to make inferences and take probabilities into account in deciding whether or not assets concerned forming part of non-discloser’s estate—Matrimonial Property Act 88 of 1984, s 3(1).

Marriage—Divorce—Litigation—Parties not entitled to conceal their intentions in order to obtain technical advantage over other party.

Evidence—Hearsay—When admissible—Statements based on discovered documents in divorce action, where used to establish accrual claim—Even if hearsay, such statements in certain circumstances admissible in terms of Law of Evidence Amendment Act 45 of 1988, s 3(1).

OSBORNE AND ANOTHER v WEST DUNES PROPERTIES 176 (PTY) LTD AND OTHERS (WCC)

BLIGNAULT J

2013 APRIL 18; JUNE 6

Land—Sale—Contract—Rectification—Misidentification of party—Signed contract reflecting wrong party as purchaser—Not complying with formalities—Not capable of rectification by substitution of true purchaser—Alienation of Land Act 68 of 1981, s 2(1).

HABITAT COUNCIL AND ANOTHER v PROVINCIAL MINISTER OF LOCAL GOVERNMENT etc, WESTERN CAPE, AND OTHERS (WCC)

DAVIS J

2013 AUGUST 14

Constitutional law—Legislation—Validity—Land Use Planning Ordinance 15 of 1985, s 44—Allowing appeals to minister in respect of every decision made by municipality under LUPO—Allowing minister to replace decision with own decision—Section 44 violating doctrine of separation of powers and unconstitutional—Order of invalidity suspended for 24 months to allow provincial parliament to amend or replace s 44.

Constitutional law—Separation of powers—Between tiers of government—Local and provincial competences—Determination of boundaries between functional areas of each tier—Proper approach—Constitution, sch 4 and sch 5.

NEDBANK LTD v MENDELOW AND ANOTHER NNO (SCA)

LEWIS JA, MAYA JA, MALAN JA, SHONGWE JA and ZONDI AJA

2013 AUGUST 16; SEPTEMBER 5

Land—Transfer—Fraud inducing transfer—Fraud leading Master of the high court to sign certificate of no objection to transfer of immovable property forming part of deceased estate and inducing Registrar of Deeds to register transfer of property and mortgage bond—Beneficiary of estate having no intention to transfer ownership—Consequences that ownership not passing, bond falling to be cancelled, and property requiring to be transferred back into name of deceased estate.

Administrative law—Administrative action—What constitutes—Master of high court’s signing of certificate of no objection to transfer of immovable property—Such merely clerical act not amounting to administrative action—Administration of Estates Act 66 of 1965, s 42; Promotion of Administrative Justice Act 3 of 2000.

Administrative law—Administrative action—What constitutes—Registrar of Deeds’ registering of transfer of property and of mortgage bond—Merely clerical acts not amounting to administrative action in this instance—Deeds Registries Act 47 of 1937, s 3(1); Promotion of Administrative Justice Act 3 of 2000.

TABOO TRADING 232 (PTY) LTD v PRO WRECK SCRAP METAL CC AND OTHERS (KZP)

HARTZENBERG AJ

2013 JUNE 27; JULY 10

Company—Business rescue—Application—When application can be said to have been made—Application made once it has been lodged with registrar, issued, copy served on CIPC, and each affected person notified—Companies Act 71 of 2008, s 131(6).

IN RE XN (GSJ)

SALDULKER J and VICTOR J

2012 MAY 18

Children—Adoption—Application—Supporting documents—Letter recommending adoption—Applicant failing to include letter with application—This condoned where request made to department concerned for letter but department failing to provide one—Children’s Act 38 of 2005, ss 48(1)(a) and 239(1)(d).

GERSON v MONDI PENSION FUND AND OTHERS (GSJ)

DU PLESSIS AJ

2013 MAY 2, 21

Pension—Pension fund—Board—Decisions—Not constituting administrative action—Not subject to statutory or common-law review—Audi principle as it applies to administrative decisions not applicable.

Pension—Disputes—Pension funds adjudicator—Powers—Disposal of complaints—May make order which court of law can make—May not without more substitute own discretion for that of board of trustees—Pension Funds Act 24 of 1956, s 30E.

Pension—Disputes—Pension funds adjudicator—Determination of dispute—Application to high court for relief against—Procedure appeal in wide sense, not review—Applicant to lay legal basis on which adjudicator, and thus court, should set aside decision of board of trustees—Pension Funds Act 24 of 1956, s 30P.

AFZAL v KALIM (ECP)

PLASKET J

2013 JUNE 27; JULY 9

Spoliation—Mandament van spolie—Defences—Statutory protection from eviction (PIE)—Estranged spouse (wife) moving back into co-owned house against will of husband—Husband invoking mandament—Wife relying on PIE, contending that husband failed to comply with its requirements—House no longer her home—Not entitled to protection of PIE—Mandament granted—Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, s 4(1).

WATERKLOOF MARINA ESTATES (PTY) LTD v CHARTER DEVELOPMENT (PTY) LTD (IN LIQUIDATION) AND OTHERS (GNP)

PRETORIUS J

2013 APRIL 11; MAY 10

Company—Winding-up—Liquidator—Powers—To sell property—Liquidator selling company’s property with authorisation of creditors but without that of members—Sale nonetheless valid—Insolvency Act 24 of 1936, s 82(8); Companies Act 61 of 1973, ss 339, 386(3)(a) and 386(4)(h).

KWALINDILE COMMUNITY v KING SABATA DALINDYEBO MUNICIPALITY AND OTHERS (CC)

MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, NKABINDE J, SKWEYIYA J, VAN DER WESTHUIZEN J and ZONDO J

2012 NOVEMBER 13; 2013 MARCH 28

Land—Land reform—Restitution—Application for ante omnia order—Such to be made with sufficient particularity as to not unduly curtail claimant’s constitutional possible right to restoration—Applicant to identify land in question with reasonable certainty so that order would precisely target land or part thereof which is not to be restored—Restitution of Land Rights Act 22 of 1994, ss 34(1) and 34(5)(b).

Land—Land reform—Restitution—Application for ante omnia order—Whether in public interest to make such order or whether, if such order not made, public would suffer substantial prejudice—Applicant to adduce facts enabling court to exercise value judgment of where public interest lays in relation to land sought not to be restored—Court to consider nature and extent of restoration claim when making such value judgment—Restitution of Land Rights Act 22 of 1994, s 34(6).

PRICE WATERHOUSE COOPERS INC AND OTHERS v IMF (AUSTRALIA) LTD AND ANOTHER (GNP)

BOTHA J

2010 JUNE 11

Champerty—Funding of litigation by non-party—Application for joinder of funder—Allowing joinder would combat abuse of champerty by holding funder directly liable for costs—Application granted.

HERHOLDT v NEDBANK LTD (COSATU AS AMICUS CURIAE) (SCA)

NUGENT JA, CACHALIA JA, SHONGWE JA, WALLIS JA and SWAIN AJA

2013 AUGUST 23; SEPTEMBER 5

Labour law—Commission for Conciliation, Mediation and Arbitration (CCMA)—Arbitration proceedings—Arbitration award by commissioner—Review—Threshold—Gross irregularity—Arbitrator must have misconceived nature of inquiry or arrived at unreasonable result—Material error of fact and weight attached to facts relevant only if effect to render outcome unreasonable—No room for importation of ‘dialectical unreasonableness’ as ground for review—Labour Relations Act 66 of 1995, s 145(2)(a)(ii).

MEC FOR ENVIRONMENTAL AFFAIRS AND DEVELOPMENT PLANNING v CLAIRISON'S CC (SCA)

NUGENT JA, PONNAN JA, TSHIQI JA, WILLIS AJA and SWAIN AJA

2013 MAY 16, 31

Administrative law—Administrative action—Review—Decision of functionary—If functionary entrusted with discretion, then for functionary to decide on weight to be attached to particular factors—Court may not interfere as long as functionary acts in good faith.

Administrative law—Administrative action—Review—Grounds—Perception of bias—Application of policy in exercise of discretionary power—Predisposition not in itself constituting objectionable bias—No room for rescission on ground of perceived bias where political head of government department adopted recommendations made by departmental officials in pursuit of policy.

HOLDSWORTH AND OTHERS v REUNERT LTD (GNP)

MOTHLE J

2013 MAY 21

Insolvency—Creditors—Proof of claims—Application for discovery of proved claim—Reference in papers to ‘proved claim’ may trigger order for production of such claim—Insolvency Act 24 of 1936, s 44 read with Uniform Rules of Court, rule 35(12).

MAZIBUKO NO v SISULU AND OTHERS NNO (CC)

MOGOENG CJ, MOSENEKE DCJ, FRONEMAN J, JAFTA J, KHAMPEPE J, NKABINDE J,  SKWEYIYA J, VAN DER WESTHUIZEN J, ZONDO J and MHLANTLA AJ

2013 MARCH 28; AUGUST 27

Constitutional law—Parliament—Motion of no confidence in President of Republic—Members of National Assembly, whether acting alone or with other members, entitled to having National Assembly schedule, deliberate and vote on such motion—Chapter 12 of Rules of National Assembly constitutionally invalid to extent of not providing for such constitutional right to be exercised—Declaration of invalidity suspended for six months to afford opportunity to remedy defect—Constitution, s 102(2).

Constitutional law—Parliament—Motion of no confidence in President of Republic—Whether inherently urgent—Scheduling of debate and vote subject to National Assembly’s constitutional authority to ‘determine and control its internal arrangements, proceedings and procedures’—Sufficient that motion be accorded priority over other motions and business, by being scheduled, debated and voted on within reasonable time given assembly’s programme—Constitution, s 57(1).

BESTER AND OTHERS NNO v CORAL LAGOON INVESTMENTS (PTY) LTD (TONNISSEN NO AND OTHERS INTERVENING) (WCC)

HENNEY J

2013 FEBRUARY 20

Credit agreement—Consumer credit agreement—Whether agreement subject to NCA—Whether agreement one at arm’s length—Related juristic persons—Controlling interest—Direct or indirect control—Wide definition of ‘control’ adopted—National Credit Act 34 of 2005, s 4(1)(a)(i), 4(2)(b)(i) and 4(2)(d).

RMB PRIVATE BANK (A DIVISION OF FIRSTRAND BANK LTD) v KAYDEEZ THERAPIES CC (IN LIQUIDATION) AND OTHERS (GSJ)

SATCHWELL J

2012 MAY 30

Credit agreement—Consumer credit agreement—Whether agreement subject to NCA—Suretyship agreement where agreement not subject to NCA but parties erroneously agreeing applicable—Only parliament, not individuals or entities, capable of determining whether NCA applicable to suretyship agreements—Contracting parties not capable of rendering NCA applicable  by agreement unless expressly incorporating certain provisions into their agreement—National Credit Act 34 of 2005.

SOUTH AFRICAN CRIMINAL LAW REPORTS

TABLE OF CASES

  • Tulip Diamonds FZE v Minister of Justice and Constitutional Development and Others 2013 (2) SACR 443 (CC)

  • Law Society of the Cape of Good Hope v Adams 2013 (2) SACR 480 (WCC)

  • Mamase v National Director of Public Prosecutions and Others 2013 (2) SACR 491 (ECG)

  • S v GK 2013 (2) SACR 505 (WCC)

  • S v PCB 2013 (2) SACR 533 (SCA)

  • S v Nkuna 2013 (2) SACR 541 (GNP)

  • Zoeco System Managers CC v Minister of Safety and Security NO and Others 2013 (2) SACR 545 (GNP)

FLYNOTES

TULIP DIAMONDS FZE v MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND OTHERS (CC)

FRONEMAN J, JAFTA J, KHAMPEPE J, MHLANTLA AJ, MOSENEKE DCJ, NKABINDE J, SKWEYIYA J, VAN DER WESTHUIZEN J and ZONDO J

2013 FEBRUARY 26; JUNE 13

Appeal—Concession by party on question of law—Concession withdrawn soon after it was made—Intolerable if court on appeal were to be bound by error of law made and withdrawn in such circumstances.

International co-operation in investigation of crime—Locus standi—What constitutes—Foreign-based company with no presence in South Africa—Request by Belgian examining magistrate for assistance of South African authorities to obtain documents—Applicant company claiming confidential information in documents in possession of local company—Juristic persons not bearers of human dignity and their privacy rights not as intense as those of people—Standing not proven.

International co-operation in investigation of crime—Subpoena issued in terms of s 205 of Criminal Procedure Act 51 of 1977 and s 8(2) of International Co-operation in Criminal Matters Act 75 of 1996—Validity of subpoena not determined by compliance with formalities of s 205, but rather with broad empowering provisions of s 8(2)—Admonishment or oath not required before issue of subpoena.

LAW SOCIETY OF THE CAPE OF GOOD HOPE v ADAMS (WCC)

TRAVERSO DJP and ROGERS J

2013 JUNE 7, 11

Legal practitioners—Offences by—Contravention of s 83(10) read with s 41(1) of the Attorneys Act 53 of 1979—Practising without fidelity fund certificate—Constitutes criminal offence in contravention of s 83(10) of Attorneys Act 53 of 1979.

MAMASE v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS (ECG)

ROBERSON J

2013 FEBRUARY 28; MARCH 27

Prosecution—Permanent stay of prosecution—Application for—On ground that accused not tried within reasonable time—Senior member of government charged with corruption—Applicant suffering some ostracism but still retaining senior though lower position—Trial prejudice not significant and partly self-created—Systemic delays result of reorganisation in prosecuting authority—Charges of serious nature—Although some eight years had elapsed since applicant originally charged had not established right to permanent stay of prosecution.

S v GK (WCC)

GAMBLE J, ROGERS J and MATTHEE AJ

2013 MAY 24; MARCH 15

Rape—Sentence—Life imprisonment—Minimum sentence in terms of Criminal Law Amendment Act 105 of 1997—‘Substantial and compelling circumstances’—Approach to appeal on sentence imposed in terms of Act—Court not restricted to interfering only if material misdirection or if sentence disturbingly inappropriate or induced sense of shock—Nothing in Act that fettered appellate court’s powers to reconsider issue of substantial and compelling circumstances.

S v PB (SCA)

BOSIELO JA, BRAND JA, HEHER JA, MALAN JA and PILLAY JA

2012 SEPTEMBER 18; OCTOBER 1

Rape—Sentence—Life imprisonment—Minimum sentence in terms of Criminal Law Amendment Act 105 of 1997—‘Substantial and compelling circumstances’—Role of precedent discussed—Approach to appeal on sentence imposed in terms of Act different from other cases where minimum sentences imposed that could not be departed from lightly.

S v NKUNA (GNP)

MAKGOKA J and RATSHIBVUMO AJ

2013 APRIL 18; MAY 6

Trial—Presiding officer—Recusal of—Where presiding officer having previously presided over bail application of accused—Accused’s previous convictions disclosed in bail proceedings and magistrate remarking

ZOECO SYSTEM MANAGERS CC v MINISTER OF SAFETY AND SECURITY NO AND OTHERS (GNP)

TEFFO J

2012 OCTOBER 16; DECEMBER 6

Search and seizure—Search warrant—Validity of—Clear from evidence that applicant for warrant did not know what he was to search for and seize—Necessary jurisdictional facts not established.

 

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