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November 2014

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases in the November reports, as well as those in the Namibian Law Reports 2014(3).

A law reports promotion is now running, and ends 15 December 2014, while stocks last! Massively reduced prices are on offer, on full and part sets of the South African Law Reports and the South African Criminal Law Reports. To download the brochure click here.

JUDGMENTS OF INTEREST IN THE NOVEMBER EDITIONS OF THE SALR AND THE SACR AND THE NAMIBIAN LAW REPORTS 2014(3)

SOUTH AFRICAN LAW REPORTS


Affirmative action in the Police Service

A white female police officer’s promotion was refused, on the basis that it would be inconsistent with the department’s employment equity plan. The Constitutional Court decides whether or not this amounted to unfair discrimination. South African Police Service v Solidarity obo Barnard  2014 (6) SA 123 (CC)

Financial losses after arrest

A professional hunter was arrested, resulting in him losing a lucrative American contract. The Supreme Court of Appeal looks at the danger of indeterminate liability, and public policy, in the appeal against the High Court’s award of R49 million. Minister of Safety and Security v Scott and Another 2014 (6) SA 1 (SCA)

Serious injury in Road Accident Fund claims

Under the new legislative regime the assessment of whether a claimant’s injuries were serious was an administrative, not judicial, decision. The decision was that of the Fund, and it was not bound by its own expert’s determination that the injury was ‘serious’. Although a joint minute prepared by experts chosen by both sides would in the past have been conclusive in deciding a claimant’s injuries, this was no longer the case. Unless the RAF was satisfied that the injuries were serious, the claimant simply had no claim for general damages. Road Accident Fund v Faria 2014 (6) SA 19 (SCA)


SOUTH AFRICAN CRIMINAL LAW REPORTS

Youth and clean record outweighed by severity of crimes

The accused was young, had  a clean record, and spent time in custody awaiting trial. However, his lack of remorse and that he committed multiple counts of rape and murder, resulted in three life sentences, among others. S v Makhakha 2014 (2) SACR 457 (WCC)

Reasonable suspicion for arrest

There is no fifth jurisdictional fact requiring arrest to be the last resort. The question to be considered is not whether the police officer considered and applied his discretion in establishing reasonable suspicion; but rather whether, objectively, suspicion that a Schedule 1 offence was committed, and whether this suspicion rested on reasonable grounds. Minister of Safety and Security and Another v Linda 2014 (2) SACR 464 (GP)

Planned or premeditated murder

In the minimum sentencing legislation, heavier sentencing is prescribed for murder when it was ‘planned or premeditated’. The court thoroughly examines these words and the impact on the accused in question. S v PM  2014 (2) SACR 481 (GP)

 
NAMIBIAN LAW REPORTS

A multitude of ingenious arguments

During the course of this judgment, covering issues of the duties of legal practitioners and duress in contracts, the court cautions that it is the duty of counsel not to advance a multitude of ingenious arguments in the hope that, out of a number of bad points, the court will be able to fashion a winner. MB de Klerk & Associates v Ggerschweiler and Another 2014 (3) NR 609 (HC)

When do previous convictions not count?

The court has a discretion as to what weight to attached to a previous conviction, ten years or older, and may disregard such previous conviction and treat the accused as first offender. But in appropriate cases it may be regarded as aggravating factor. S v Jackson and Others 2014 (3) NR 637 (HC)

Culpable homicide and the chain of causation

The accused struck the deceased in the face with a glass, severing an artery. The deceased’s initial refusal of medical treatment did not constitute a novus actus interveniens, in circumstances where the accused had inflicted a potentially lethal injury on the deceased. S v Ananias 2014 (3) NR 665 (HC)


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 SOUTH AFRICAN LAW REPORTS

 TABLE OF CASES

  • Minister of Safety and Security v Scott and Another 2014 (6) SA 1 (SCA)
  • Road Accident Fund v Faria 2014 (6) SA 19 (SCA)
  • Ex parte Van den Steen NO and Another (Credit Suisse Group AG and Another Intervening) 2014 (6) SA 29 (GJ)
  • F v Minister of Safety and Security and Another 2014 (6) SA 44 (WCC)
  • Dean of the Law Faculty, University of the North West, and Others v Masisi 2014 (6) SA 61 (SCA)
  • Master Currency (Pty) Ltd v Commissioner, South African Revenue Service 2014 (6) SA 66 (SCA)
  • Pretorius and Another v Transnet Second Defined Benefit Fund and Others 2014 (6) SA 77 (GP)
  • Scholtz and Another v Merryweather and Others 2014 (6) SA 90 (WCC)
  • NB v Maintenance Officer, Butterworth and Others 2014 (6) SA 116 (ECM)
  • South African Police Service v Solidarity obo Barnard 2014 (6) SA 123 (CC)
  • Capstone 556 (Pty) Ltd v Commissioner, South African Revenue Service 2014 (6) SA 195 (WCC)
  • Copper Sunset Trading 220 (Pty) Ltd v Spar Group Ltd and Another 2014 (6) SA 214 (LP)
  • Motala and Another NNO v Moller and Others 2014 (6) SA 223 (GJ)
  • JA v DA 2014 (6) SA 233 (GJ)
  • RP v DP and Others 2014 (6) SA 243 (ECP)
  • Minister of Police v Mboweni and Another 2014 (6) SA 256 (SCA)
  • Minister of Defence and Others v South African National Defence Union and Another 2014 (6) SA 269 (SCA)
  • Moodley v On Digital Media (Pty) Ltd and Others 2014 (6) SA 279 (GJ)
  • Baront Investments (Pty) Ltd v West Dune Properties 296 (Pty) Ltd and Others 2014 (6) SA 286 (KZP)
 FLYNOTES

MINISTER OF SAFETY AND SECURITY v SCOTT AND ANOTHER (SCA)
NAVSA JA, SHONGWE JA, THERON JA, WILLIS JA and LEGODI AJA
2014 MAY 2, 30
[2014] ZASCA 84

Delict - Specific forms—Interference with contractual relationship—Ambit of delict—Sufficiency of negligence—Public policy—Danger of indeterminate liability—Contract with company cancelled when CEO unlawfully arrested on unrelated charge—Liability of police for losses suffered by company—Policy considerations militating against imposition of liability.

ROAD ACCIDENT FUND v FARIA (SCA)
MAYA JA, SHONGWE JA, WILLIS JA, VAN ZYL AJA and MOCUMIE AJA
2014 MAY 5, 19
[2014] ZASCA 65

Motor vehicle accident - Compensation—Claim against Road Accident Fund—Limits—‘Serious injury’ threshold for general damages—RAF not bound by determination of its own expert that injury ‘serious’—Joint minute prepared by experts from both sides no longer conclusive in deciding seriousness of claimant’s injuries—Road Accident Fund Act 56 of 1996, s 17(1) and 17(1A).

EX PARTE VAN DEN STEEN NO AND ANOTHER (CREDIT SUISSE GROUP AG AND ANOTHER INTERVENING) (GJ)
JRAUTENBACH AJ
2013 FEBRUARY 27

Company - Business rescue—Resolution to begin rescue proceedings—Requirement that resolution be published to every affected person—Substantial compliance sufficient—Achieved if established that all affected persons had full knowledge of notice and its contents—Companies Act 71 of 2008, ss 6(9) and 129(3)(a).
Company—Business rescue—Business rescue practitioner—Appointment—Requirement that appointment be published to every affected person—Substantial compliance sufficient—Achieved if established that all affected persons had full knowledge of notice and its contents—Companies Act 71 of 2008, s 129(4).
Company—Notices—Prescribed manner of delivery—Substantial compliance with prescribed manner of delivery sufficient—Achieved if established that all affected persons had full knowledge of notice and its contents—Companies Act 71 of 2008, s 6(9).

RICHTER v BLOEMPRO CC AND OTHERS (GP)
MTHIYANE DP, MOSHIDI J and WEPENER J
2014 APRIL 25; MAY 6

Company - Business rescue—Liquidation proceedings already initiated—Business rescue and liquidation incompatible—Business rescue application not possible after final liquidation order made unless latter rescinded on appeal—Companies Act 71 of 2008, ss 131(1) and 131(6).
Company—Business rescue—Application for by affected person—Not possible after final liquidation order made unless liquidation order set aside on appeal—Companies Act 71 of 2008, s 131(1).

F v MINISTER OF SAFETY AND SECURITY AND ANOTHER (WCC)
MEER J
2014 APRIL 11

Damages - Rape—Rape and assault of 13-year-old girl by policeman after offering her lift home in police vehicle—Multiple injuries—Chronic posttraumatic stress and depression—Requiring medical treatment and lifelong medication—Award of R500 000 general damages and R1 760 000 for loss of earnings; state to pay for future medical expenses and medication.

DEAN OF THE LAW FACULTY, UNIVERSITY OF THE NORTH WEST, AND OTHERS v MASISI (SCA)
NAVSA JA, MHLANTLA JA, PETSE JA, VAN ZYL AJA and SWAIN AJA
2014 FEBRUARY 20
[2014] ZASCA 2

Education - University—Standards—Credit for courses completed at other university—Complaint in Equality Court concerning university’s refusal to give credit for more than 50% of courses completed at another university—Equality Court setting aside university rules and applicable provisions of Joint Statute of SA Universities without giving minister, other universities, or their collective voice opportunity to participate in proceedings—Order set aside and matter remitted.

MASTER CURRENCY (PTY) LTD v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE (SCA)
MALAN JA, LEACH JA, SOUTHWOOD AJA, SCHOEMAN AJA and VAN DER MERWE AJA
2013 MARCH 1, 20
[2013] ZASCA 17

Revenue - Value-added tax—Zero rating—Services supplied to non-residents—Zero rating not applicable to services supplied to non-residents present in Republic when services rendered—Services supplied to nonresidents by bureaux de change at international airport’s duty-free area therefore not zero-rated—Value-Added Tax Act 89 of 1991, s 11(2)(l)(iii).
Money—Currency—Banknotes—Nature—No longer to be regarded as promissory notes embodying incorporeal right against issuing bank.

PRETORIUS AND ANOTHER v TRANSNET SECOND DEFINED BENEFIT FUND AND OTHERS (GP)
MAKGOBA J
2014 JULY 21, 22

Practice - Class action—Certification—Provision to be interpreted generously and expansively, consistent with constitutional mandate—Transnet pensioners seeking leave to institute class action as representatives of members of pension funds for payment of alleged R80 billion pension deficit—Case pattern-made for class-action proceedings—Certification appropriate and in interests of justice—Constitution, s 38(c).

SCHOLTZ AND ANOTHER v MERRYWEATHER AND OTHERS (WCC)
GAMBLE J
2014 MARCH 20; APRIL 14–15; AUGUST 1

Practice - Judgments and orders—Rescission—Default judgment—Rescission under common law—Requirements—Wilful default.
Champerty—Funding of litigation by non-party—Court’s discretion to make costs order against funder—Non-party father funding son’s bid to rescind judgments—Judgments stemming from delict committed by son.

NB v MAINTENANCE OFFICER, BUTTERWORTH AND OTHERS (ECM)
STRETCH J
2014 APRIL 17; MAY 28

Maintenance - Children—Failure by executor of deceased estate to pay maintenance—Maintenance officer refusing to investigate claim—Provision not applicable to investigation of claims against deceased estates—Master requested to investigate complaint—Maintenance Act 99 of 1998, s 6(1)(a).

SOUTH AFRICAN POLICE SERVICE v SOLIDARITY obo BARNARD (CC)
MOSENEKE ACJ, SKWEYIYA ADCJ, CAMERON J, DAMBUZA AJ, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MAJIEDT AJ, VAN DER WESTHUIZEN J and ZONDO J
2014 MARCH 20; SEPTEMBER 2
[2014] ZACC 23

Constitutional law - Human rights—Right to equality—Right not to be unfairly discriminated against—Restitutionary measures—Affirmative action—Constitutionality—Measures and implementation—Court’s right to test—Impact on human dignity.
Labour law—Employment equity—Affirmative action—Constitutionality—Measures and implementation—Refusal by police to promote white female officer on basis that it would be inconsistent with their employment equity plan—Not amounting to unfair discrimination.

CAPSTONE 556 (PTY) LTD v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE (WCC)
GRIESEL J, YEKISO J and BAARTMAN J
2014 AUGUST 1, 26

Revenue - Capital gains tax—Base cost of asset—Expenditure incurred—Borrowing costs—Meaning—Overall costs expended by taxpayer in acquiring asset with borrowed money—Income Tax Act 58 of 1962 sch 8 para 20(2)(a).
Revenue—Income tax—Income or capital accrual—Determination of intention with which asset held and disposed of—Inferences to be made from objective facts—Period between acquiring and selling asset to be considered in broader context of evidence as whole—In present case such broader context overwhelmingly indicating intention to hold shares as capital asset.
Revenue—Income tax—Income or capital accrual—Determination of intention with which asset held and disposed of—Inferences to be made from objective facts—Significance of period between acquiring and selling asset much reduced where decision to sell triggered by novus actus interveniens.

COPPER SUNSET TRADING 220 (PTY) LTD v SPAR GROUP LTD AND ANOTHER (LP)
MAKGOBA J
2014 APRIL 30; MAY 9

Company - Business rescue—Business rescue plan—Vote—Rejection—Application to set aside result as ‘inappropriate’—Unreasonable and irrational rejection set aside as inappropriate—Companies Act 71 of 2008, s 153(1)(a)(ii) read with s 153(7).

MOTALA AND ANOTHER NNO v MOLLER AND OTHERS (GJ)
GS MYBURGH AJ
2014

Insolvency - Effect—On property of solvent spouse—Sequestration of individual causing solvent spouse’s estate to vest in trustee—After vesting solvent spouse transferring immovable property to third party—Whether s 21(1) rendering transfer void or voidable—Whether trustee can choose to proceed under s 21(1) rather than s 25(4)—Insolvency Act 24 of 1936, ss 21(1) and 25(4).

JA v DA (GJ)
SUTHERLAND J
2013 MAY 8; JUNE 4

Marriage - Divorce—Proprietary rights—Accrual system—Marriage—Proof of accrual—When content and value of respective estates to be assessed—Operative moment date order of divorce granted—Matrimonial Property Act 88 of 1984, s 3(1).

RP v DP AND OTHERS (ECP)
ALKEMA J
2014 MARCH 13; JULY 22

Marriage - Divorce—Proprietary rights—Accrual system—Assets held in trust—Trust a sham—Husband in de facto control of assets and using them to acquire personal wealth—Whether assets to be included in accrual—Discretion of court—Where trust effectively alter ego of one of parties, assets to be included in accrual—Court not exercising discretion under Act but power under common law—Matrimonial Property Act 88 of 1984, ss 3 and 4.

MINISTER OF POLICE v MBOWENI AND ANOTHER (SCA)
MPATI P, BOSIELO JA, WALLIS JA, MBHA JA and SCHOEMAN AJA
2014 AUGUST 25; SEPTEMBER 5
[2014] ZASCA 107

Constitutional law - Constitutional damages—Award—Infringement of child’s right to parental care—Claim on behalf of daughters of man dying as result of conduct of police—Whether constitutional damages appropriate—Approach to constitutional damages discussed.
Children—Rights—Parental care—Nature of discussed.
Practice—Stated case—Requirements—Adequate statement of facts—Uniform Rules of Court, rule 33.

MINISTER OF DEFENCE AND OTHERS v SOUTH AFRICAN NATIONAL DEFENCE UNION AND ANOTHER (SCA)
BRAND JA, MAYA JA, WALLIS JA, SALDULKER JA and SCHOEMAN AJA
2014 AUGUST 19, 28
[2014] ZASCA 102

Labour law - Disciplinary proceedings—Requirements—Inform of charge with sufficient clarity—Grant adequate time to respond.
Defence force—Members—Dismissal—Whether regulations must exist in order to exercise power to terminate service—Defence Act 42 of 2002, s 59(2).

MOODLEY v ON DIGITAL MEDIA (PTY) LTD AND OTHERS (GJ)
MEYER J
2014 JUNE 25–26; JULY 11

Company - Business rescue—Moratorium on legal proceedings against company—Not applying to proceedings relating to development, adoption or implementation of business rescue plan—Companies Act 71 of 2008, s 133(1).

BARONT INVESTMENTS (PTY) LTD v WEST DUNE PROPERTIES 296 (PTY) LTD AND OTHERS (KZP)
JAPPIE DJP, SISHI J and SEEGOBIN J
2013 AUGUST 5; 2014 JANUARY 30

Servitude - Personal servitude—Enforcement—Against successor in title of grantor—Where oral agreement allegedly conferring road servitude over grantor’s land—Oral agreement not validly creating servitude capable of being enforced—Such servitude constituting ‘interest in land’ which must be alienated in writing—Alienation of Land Act 68 of 1981, s 2(1).
Servitude—Public servitude—What constitutes—Temporary road servitude over privately held land in favour of local authority–Such not public but personal servitude between landowner and local authority. Practice—Judgments and orders—Order—Ambit of relief.

 SOUTH AFRICAN CRIMINAL LAW REPORTS
 TABLE OF CASES

 

  • S v Litako and Others 2014 (2) SACR 431 (SCA)
  • S v Modisenyane 2014 (2) SACR 453 (GP)
  • S v Makhakha 2014 (2) SACR 457 (WCC)
  • Minister of Safety and Security and Another v Linda 2014 (2) SACR 464 (GP)
  • S v PM 2014 (2) SACR 481 (GP)
  • S v Essop 2014 (2) SACR 495 (KZP)
  • S v Nkosi 2014 (2) SACR 525 (GP)
  • S v Van Staden and Others 2014 (2) SACR 533 (WCC)

 FLYNOTES

S v LITAKO AND OTHERS (SCA)
NAVSA JA, PONNAN JA, LEACH JA, PETSE JA and SWAIN AJA
2014 MARCH 7; APRIL 16
[2014] ZASCA 54

Evidence - Admissibility—Hearsay evidence—Admissibility of in terms of s 3 of Law of Evidence Amendment Act 45 of 1988—Extra-curial confession or admission of one accused inadmissible against other accused.

S v MODISENYANE (GP)
JORDAAN J and BAM J
2013 OCTOBER 22

Trial - Record—Mechanical recording of record defective—Impossible to reconstruct—Matter sent on review and accused having probably already been released or due for parole—Impossible to tell whether unrepresented accused’s rights had been properly explained to him—No point in ordering retrial in circumstances—Proceedings set aside.

S v MAKHAKHA (WCC)
BOQWANA AJ
2013 JUNE 14

Sentence - Prescribed sentences—Minimum sentence—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—Severity of crimes committed—Accused convicted of multiple counts of rape and murder committed on vulnerable young women whom he attacked and dragged into bushes—Showing no remorse—Despite relative youthfulness, clean record and length of time in custody awaiting trial, no substantial and compelling circumstances why prescribed minimum sentences should not be imposed.

MINISTER OF SAFETY AND SECURITY AND ANOTHER v LINDA (GP)
MURPHY J, KUBUSHI J and KHUMALO AJ
2013 JUNE 12; AUGUST 28

Arrest - Legality of—Arrest without warrant—Criminal Procedure Act 51 of 1977, s 40(1)(b)—No fifth jurisdictional fact requiring arrest to be last resort—Question to be considered not whether police officer considered and applied his discretion in establishing reasonable suspicion but rather whether, objectively, suspicion that sch 1 offence committed and whether suspicion rested on reasonable grounds.

S v PM (GP)
THULARE AJ
2014 MARCH 28
[2014] ZAGPPHC 169

Murder - Premeditated or planned murder—What constitutes—Two different concepts representing two different ideas—Word ‘or’ between ‘planned’ and ‘premeditated’ in part I of sch 2 introduces second of two alternative concepts—Use of word ‘or’ indicates legislature did not favour composite description of circumstances to meet test.

S v ESSOP (KZP)
GORVEN J, STEYN J and MARKS AJ
2014 MARCH 7; MAY 23

Indictment and charge - Defective charge—Amendment of on appeal in terms of s 86(1) of Criminal Procedure Act 51 of 1977—State aware of defect in charge-sheet when accused applied for discharge at end of state’s case but electing not to apply for amendment at that stage, but applying on appeal—Amendment would prejudice accused as he no longer had opportunity to lead evidence to rebut assertion that state wished to introduce—Application for amendment refused.
Fraud—Elements of—Prejudice—Where charge-sheet defective for want of allegation that accused’s conduct caused prejudice and whether prejudice could be inferred—Charge defective—Mere inference that accused’s conduct caused prejudice not sufficient since that inference would violate accused person’s constitutional rights in terms of s 35(3)(a) of Constitution.

S v NKOSI (GP)
POTTERILL J and PIETERSE AJ
2014 MAY 19, 22

Rape - Attempted rape—Contravention of s 3 of Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007—What constitutes—Evidence proving sexual assault in contravention of s 5 of Act, competent verdict on charge of contravention of s 3.
Sexual offences—Sexual assault—Contravention of s 5 of Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007—Sentence—Aggravating circumstances present in sexual assault of vulnerable woman in presence of her 6-year-old child—Sentence of five years’ imprisonment imposed.

S v VAN STADEN AND OTHERS (WCC)
TRAVERSO DJP, FOURIE J and BAARTMAN J
2014 MARCH 7, 11

Appeal - In what cases—From decision of judge in pre-trial conference refusing request to have indictment translated—Such decision merely interlocutory ruling and not appealable.
 

 THE NAMIBIAN LAW REPORTS

2014

TABLE OF CASES

 

  • MB De Klerk & Associates v Eggerschweiler and Another 2014 (3) NR 609 (HC)
  • RH v NS 2014 (3) NR 628 (HC)
  • S v Mwanyekele 2014 (3) NR 632 (HC)
  • S v Jackson and Others 2014 (3) NR 637 (HC)
  • Maletzky v Gaseb and Another 2014 (3) NR 645 (HC)
  • S v Dausab 2014 (3) NR 652 (HC)
  • Markus v Telecom Namibia Ltd 2014 (3) NR 658 (HC)
  • S v Ananias 2014 (3) NR 665 (HC)
  • AP v PP 2014 (3) NR 671 (HC)
  • PDS Holdings (BVI) Ltd v Zaire 2014 (3) NR 676 (HC)
  • Namibia Development Corporation v Universal Wood Industries and Others 2014 (3) NR 681 (HC)
  • S v Malumo and Others (In re Ndala) 2014 (3) NR 690 (HC)
  • S v Kido 2014 (3) NR 697 (HC)
  • HP v FP 2014 (3) NR 701 (HC)
  • S v Aribeb 2014 (3) NR 709 (HC)
  • ZS v ES 2014 (3) NR 713 (HC)
  • S v Sankwasa 2014 (3) NR 751
  • S v Malumo and Others (In re Kamwi) 2014 (3) NR 771 (HC)
  • Strauss v Namibia Institute of Mining & Technology, Arandis Campus and Others 2014 (3) NR 782 (LC)
  • Dr Matti Kimberg Practice v Mwafufya-Shikongo NO and Others 2014 (3) NR 799 (LC)
  • HV v SV (1) 2014 (3) NR 808 (HC)
  • S v Roux 2014 (3) NR 816 (HC)
  • S v Pieters 2014 (3) NR 825 (HC)
  • S v Katema 2014 (3) NR 831 (HC)
  • S v Eiseb 2014 (3) NR 834 (SC)
  • HV v SV (2) 2014 (3) NR 842 (HC)
  • Hollard Insurance Company of Namibia Ltd v De Neyschen t/a Gecko Guest House 2014 (3) NR 860 (HC)
     
FLYNOTES

MB DE KLERK & ASSOCIATES v EGGERSCHWEILER AND ANOTHER (HC)
DAMASEB JP
2013 JUNE 25, 26; JULY 5; OCTOBER 16
[2013] NAHCMD 285

Practice - Pleadings—Issues—Defining of issues—Duty of parties and legal advisers to define issues by chronological, brief and consistent pleadings—Pleadings not to be inconsistent—Likewise duty of counsel not to advance multitude of ingenious arguments in hope that out of number of bad points court will be able to fashion a winner—Following correct procedure works well in nearly all cases.
Contract—Duress (metus)—Requirements—Improper influence must have been direct cause of entering into transaction—Pressure to be directed to contracting party, his/her family or property—Duress must relate to imminent injury to party or family or property—Must also be proved that pressure exerted unlawfully or contra bonos mores—Fear caused by pressure ought to be justified in sense of being grievous enough to cause fear in steadfast person—In assessing what fear serious enough, court to have regard to age, gender and standing of person—Such determination one for investigation and discretion of judge—Duress not satisfied if exerted in circumstances where party has option of adopting alternative course of action for dealing with situation—Nor can there be duress where party exerting pressure acts lawfully within his rights—Legal practitioner threatening to withdraw from case as client not having paid fees—Threat of withdrawal and retention of client’s file not unlawful and not amounting to duress.
Legal practitioner—Rights and duties—Legal practitioner entitled to cease to act for party who does not pay his fees—Practitioner also having lien over client’s file in his possession—Threat of withdrawal and retention of file in such circumstances not unlawful and not amounting to duress.
Costs—Taxation—Client entitled to have legal practitioner’s account taxed before payment—Courts having discretion to order that account be taxed—Taxing master to determine whether costs incurred or increased through over-caution, negligence or mistake or by way of special fee—Taxing master duty to tax not ousted by agreement between attorney and client—Instrument acknowledging indebtedness for costs by company directors who would not otherwise be liable therefore not denying directors right to have bill taxed and for legal practitioner to justify how amount acknowledged made up.

RH v NS (HC)
SMUTS J
2014 FEBRUARY 5, 21
[2014] NAHCMD 63

Marriage - Divorce—Divorce order—Interim access rights to minor child granted—Subsequent application for order confirming interim access rights, amendment of divorce order and order declaring respondent in contempt of divorce order—Application served on attorney representing respondent in divorce proceedings—Application not interlocutory in substance and thus not covered by rule 4(1)(b) of High Court Rules—Application to be served on respondent and not on previous attorney—Service invalid—Application struck from roll.

S v MWANYEKELE (HC)
HOFF J and SHIVUTE J
2013 JUNE 28; SEPTEMBER 27; OCTOBER 25
[2013] NAHCMD 301

Criminal procedure - Evidence—Witness—Single witness—Failure by state to call other witnesses who have been identified and are available—Such justifying inference that in state counsel’s opinion their evidence might have given rise to contradictions which could adversely affect credibility of single witness.
Criminal law—Murder—Attempted murder—Intention—Court finding that accused acted negligently—Such finding excluding element of dolus (intention)—Accused should then be found not guilty—To find such accused guilty of attempted murder would amount to misdirection in law.
Criminal law—General principles of liability—Defences—Self-defence—Whether act of defence more harmful than necessary—Much depending on varying circumstances in determining this question—Court should adopt robust approach—Question not whether there were other methods which might have been successful in averting attack but whether method adopted can be justified in circumstances.

S v JACKSON AND OTHERS (HC)
SHIVUTE J
2013 OCTOBER 1, 17
[2013] NAHCMD 288

Criminal procedure - Sentence—Previous convictions—Previous conviction 10 years or more old—Court, at common law, having unfettered but judicial discretion to disregard such previous conviction—Court to determine what weight, if any, to be attached to such previous conviction—Court, in exercising its discretion, may disregard such previous conviction and treat accused as first offender—But common law not suggesting that such previous conviction must in all cases be disregarded—In appropriate cases it may be regarded as aggravating factor.
Criminal procedure—Sentence—Concurrent sentences—Two crimes arising from same incident—No crime should be completely ignored by taking both counts together for purpose of sentencing—But court should be alive to principle of double jeopardy that accused should not be punished twice for same offence—Solution is to order part of sentence to run concurrently.

MALETZKY v GASEB AND ANOTHER (HC)
VAN NIEKERK J
2010 SEPTEMBER 28; 2013 OCTOBER 21
[2013] NAHCMD 296

Practice - Summons—Irregularity—Summons signed by plaintiff as ‘Legal Practitioner for Plaintiff’—Plaintiff not admitted legal practitioner—Plaintiff not properly explaining how summons came to be issued in that form nor applying for condonation or for leave to amend—Summons held to be irregular—Application in terms of rule 30 of High Court Rules for setting aside of summons granted—Legal Practitioners Act 15 of 1995, s 21(1)(b).

S v DAUSAB (HC)
SIBOLEKA J
2013 OCTOBER 8–11, 17–18, 21–23; 2014 JANUARY 15
[2014] NAHCMD 2

Criminal procedure - Evidence—Admissions and confessions—Admissibility of—Accused having right to legal representation at stage when arrested—Duty of police officer to inform accused of such right—Failure to inform of such right rendering statement inadmissible.

MARKUS v TELECOM NAMIBIA LTD (HC)
UEITELE J
2013 NOVEMBER 11,13; 2014 FEBRUARY 26
[2014] NAHCMD 51

Practice - Judicial case management—Orders made in case management—Finality of—Order made that matter had been settled—Parties subsequently approaching court and informing court that order erroneously made and requesting court to decide whether matter had been settled or not—Original order of court not a final order and court not precluded from determining whether matter settled or not.

S v ANANIAS (HC)
PARKER AJ and UNENGU AJ
2014 MARCH 10
[2014] NAHCMD 82

Criminal law - Culpable homicide—Cause of death—Novus actus interveniens—What constitutes—Deceased’s initial refusal of medical treatment—Refusal not constituting novus actus interveniens in circumstances where accused had inflicted a potentially lethal injury on deceased.
Criminal procedure—Plea—Plea of not guilty—Explanation of plea in terms of s 115 of Criminal Procedure Act 51 of 1977—Accused pleading he acted in self-defence—Presiding officer not entitled to regard plea explanation as evidential material in application for discharge of accused.

AP v PP (HC)
PARKER AJ
2014 FEBRUARY 18; MARCH 13
[2014] NAHCMD 84

Marriage - Divorce—Proprietary rights—Sale of immovable property—Plaintiff wanting for sentimental reasons to keep house in family and offering to buy out spouse’s share rather than sell property to stranger—Defendant not justifying position that property should be sold to stranger—Property awarded to plaintiff on basis of his offer.
Marriage—Maintenance—Spousal maintenance—When ordered—Husband paying for all tuition and medical expenses for children and wife earning substantial income—Wife not proving that she was in need of maintenance—Unfair and unreasonable for court to award maintenance to wife.

PDS HOLDINGS (BVI) LTD v ZAIRE (HC)
PARKER AJ
2013 NOVEMBER 11 2014; FEBRUARY 14; MARCH 13
[2014] NAHCMD 83

Contract - Cancellation—Demand—What constitutes—To extent a demand is required, summons constitutes demand—Article 80(2) of Constitution not rendering that principle inoperative.

NAMIBIA DEVELOPMENT CORPORATION v UNIVERSAL WOOD INDUSTRIES AND OTHERS (HC)
VAN NIEKERK J
2010 MARCH 1 2014; FEBRUARY 14
[2014] NAHCMD 48

Practice - Pleadings—Exception—Waiver of right in event of non-fulfilment of suspensive condition—Particulars of claim not alleging that plaintiff had full knowledge of right it waived and that it had communicated abandonment of right to defendants—Pleading excipiable.

S v MALUMO AND OTHERS (IN RE NDALA) (HC)
HOFF J
2013 SEPTEMBER 18, 19
[2013] NAHCMD 262

Criminal procedure - Appeal—Reservation of question of law—Application for in terms of s 319 of Criminal Procedure Act 51 of 1977—Requirements—Court required to state question to be reserved, and to do so accurately—Court to direct that question of law be specially entered in record and then transmitted to registrar of Supreme Court—Must be certainty concerning facts on which question of law dependent and such facts to be set out fully in record as part of question of law reserved—Not function of court reserving question of law to decide on merits of question raised—Such decision would be irregular and ultra vires s 319—Question of law may be raised only at conclusion of trial and not during course of trial—Application for reservation of question of law to be brought as soon as possible and within reasonable time after trial.

S v KIDO (HC)
SHIVUTE J
2013 SEPTEMBER 2, 3, 10
[2013] NAHCMD 253

Criminal procedure - Sentence—Concurrent sentences—Accused convicted of murder and theft and of assault with intent to do grievous bodily harm and assault by threat—Latter offences committed some three hours after murder and theft offences and evidencing separate intentions—Not appropriate to order that sentences for later offences should run concurrently with sentences for earlier offences.

HP v FP (HC)
UEITELE J
2013 MAY 21; SEPTEMBER 25
[2013] NAHCMD 266

Practice - Judgments and orders—Settlement agreement made order of court—Parties entitled to amend or vary terms of such agreement, after it has been made order of court, without formally having to apply for amendment or variation to be made order of court.
Practice—Pleadings—Amendment—General principles reiterated and set out.

S v ARIBEB (HC)
DAMASEB JP and HOFF J
2013 OCTOBER 4
[2013] NAHCMD 273

Criminal procedure - Presiding officer—Recusal of—Mero motu recusal of magistrate—May be done only in certain circumstances—Duty to recuse him/herself arising when appearing judicial officer has interest in case or where there is reasonable ground for believing that likelihood of bias on part of judicial officer exists—But magistrate must afford state and defence opportunity to address court on the question.
Criminal procedure—Record—Part-heard case—Record going astray—Court of review not empowered to order re-trial de novo—Record to be administratively compiled afresh by magistrate or clerk of the court—At resumption of trial thereafter, magistrate entitled to recall any witness to give evidence thereon and to lay reconstructed record before witness to enquire whether it tallies with evidence he/she originally gave at trial—Witness subject to cross-examination by defence thereon—Court thereafter to resume its normal course.

ZS v ES (HC)
VAN NIEKERK J
2012 APRIL 23; 2013 AUGUST 30; SEPTEMBER 13, 16
[2013] NAHCMD 257

Marriage - Divorce—Conflict of laws—Domicile—Matrimonial matter—Division of joint estate—Whether provisions of s 7(3)(a) of Divorce Act 70 of 1979 (RSA) applicable where parties married in South Africa where they were both domiciled—Community of property, profit and loss excluded as well as accrual system—No-fault principle in divorce actions as opposed to tighter system in Namibia not sufficient ground for ignoring normal rule that proprietary consequences of marriage regulated by husband’s domicile and no  injustice and inconvenience caused—Section 6 of Matrimonial Causes Jurisdiction Act 22 of 1939 not to be interpreted in a way that it amended the common law choice of law rules.

S v SANKWASA (HC)
UEITELE J and UNENGU AJ
2013 FEBRUARY 22; AUGUST 23
[2013] NAHCMD 249

Criminal procedure - Evidence—Admissions and confessions—Statements made by suspect to police officer—Admissibility—Accused employed at diamond mine and required in terms of employment contract to exit mine through x-ray scanning facility—At time when he passed through scanning facility he was not a suspect and only became a suspect when police official arrived and saw image of an object concealed on his body—Accused voluntarily surrendering parcel concealed in his nether regions and not being asked to make any incriminating statement or do any pointing out but merely asked if he wanted to remove anything—No duty on police at that stage to explain his rights in terms of Constitution.

S v MALUMO AND OTHERS (IN RE KAMWI) (HC)
HOFF J
2013 OCTOBER 7, 9, 14, 16
[2013] NAHCMD 286

Criminal procedure - Trial—Proceedings in absence of accused—Provisions of s 160(1) of Criminal Procedure Act 51 of 1977 as to examination of witnesses by accused when present in court again—Such applicable even where accused had misbehaved in court and had absented themselves from proceedings—Section 160 clear and unambiguous—To deny such accused opportunity to cross-examine witnesses who testified in their absence would amount to gross irregularity which might vitiate proceedings against them.
Criminal procedure—Trial—Proceedings in absence of accused—Provisions of s 160(1) of Criminal Procedure Act 51 of 1977 as to examination of witnesses by accused when present in court again—Section 160(1) cannot be interpreted to mean that accused may examine all witnesses who testified in his absence—Court having duty to discourage and curtail irrelevant cross-examination—Accused may examine only those witnesses who implicated them in commission of offence or from whom favourable evidence may be elicited—Necessary to identify witnesses who testified in absence of accused and who would be giving relevant testimony.
Criminal procedure—Evidence—Witness—Cross-examination—Purpose and importance of set out—Purpose is to test veracity of evidence of witness and to elicit favourable evidence—Important tool to discover truth—Also vital component of fair trial guaranteed by art 12 of Namibian Constitution—Grossly irregular not to allow cross-examination of witnesses.

STRAUSS v NAMIBIA INSTITUTE OF MINING & TECHNOLOGY, ARANDIS CAMPUS AND OTHERS (LC)
UEITELE J
2013 MARCH 19; NOVEMBER 6
[2013] NALCMD 38

Labour law - Arbitration—Review—On ground of gross irregularity by arbitrator in conduct of arbitration—Labour Act 11 of 2007, s 89(5)(a)(ii)—Arbitration having to be postponed—Applicant and arbitrator agreeing that applicant would telephone arbitrator at later date in order to arrange date for arbitration hearing—On making such telephone call, applicant informed by arbitrator that her case dismissed due to her absence and her representative’s absence at earlier date—Such conduct by arbitrator amounting to gross irregularity by arbitrator resulting in applicant’s case not having been fully and fairly determined as contemplated in s 89(5)(a)(ii) of Act—Decision of arbitrator set aside.

DR MATTI KIMBERG PRACTICE v MWAFUFYA-SHIKONGO NO AND OTHERS (LC)
HOFF J
2013 SEPTEMBER 6, 27; OCTOBER 4
[2013] NALCMD 32

Practice - Applications and motions—Urgency—Application for leave to dispense with forms and service and compliance with time limits prescribed in rules of court—Court may in its discretion decline to grant such relief where applicant has created urgency either mala fide or through own culpable remissness or inaction—Where neglect or remissness of legal or other representative the cause of urgency, court may hold that litigant may not in circumstances hide behind conduct of representatives.

HV v SV (1) (HC)
DAMASEB JP
2013 OCTOBER 2, 11
[2013] NAHCMD 281

Marriage - Divorce—Restitution order granted—Onus on deserter defendant, not deserted plaintiff, to show that offer to return is genuine—Must be bona fide offer obliging deserted spouse to receive deserter back—Not reasonable to expect deserted spouse to welcome deserter back unless deserter demonstrates that that which drove deserted spouse away has passed and that normal married life has thereby become feasible—Change of heart and commitment to reform by deserter are essential elements of bona fides of offer to return.

S v ROUX (HC)
VAN NIEKERK J
2006 FEBRUARY 27; AUGUST 2; SEPTEMBER 13
2013 NOVEMBER 5
[2013] NAHCMD 319

Criminal procedure - Forfeiture—Banknotes given to complainants by accused with aim of persuading them not to report him to authorities—Such done with intention of defeating or obstructing course of justice—Banknotes clearly concerned in commission of offence of attempting to defeat or obstruct course of justice within meaning of s 20(a) of Criminal Procedure Act 51 of 1977—Banknotes also affording evidence of commission of offence—Complainants, as parties to illegal transaction, not legally entitled to claim back such banknotes—Banknotes forfeited to state in terms of s 34(1)(c) of Criminal Procedure Act.
Criminal procedure—Forfeiture—Items purchased by complainants with money given to them by accused with aim of persuading them not to report him to authorities—Money given to complainants with intention of defeating or obstructing course of justice—Anything purchased with proceeds of crime cannot be forfeited under Criminal Procedure Act 51 of 1977—Such items to be returned to complainants.

S v PIETERS (HC)
HOFF J and GEIER J
2013 OCTOBER 4
[2013] NAHCMD 272

Criminal procedure - Plea—Guilty—Questioning in terms of s 112(1)(b) of Criminal Procedure Act 51 of 1977—Unhelpful to ask whether accused admits being negligent without indication that he understood meaning of negligence—Presiding officer should appreciate that single ‘yes’ to question ‘do you agree or disagree’ takes matter no further.
Criminal procedure—Plea—Guilty—Questioning in terms of s 112(1)(b) of Criminal Procedure Act 51 of 1977—Change of plea to one of not guilty in terms of s 113—Once questioning of accused discloses a defence to charge presiding officer should change plea to one of not guilty.

S v KATEMA (HC)
HOFF J and MILLER AJ
2013 OCTOBER 18
[2013] NAHCMD 293

Firearms - Machine gun—Possession of in contravention of s 29(1)(a) of the Arms and Ammunition Act 7 of 1996—Sentence—Accused sentenced to minimum sentence of ten years’ imprisonment as prescribed by statute—But such minimum sentence struck down by court as unconstitutional—Charge-sheet used containing reference to such minimum sentence—Semble: Prosecutor-General requested to ascertain whether such chargesheet used generally and, if so, to take remedial measures.

S v EISEB (SC)
SHIVUTE CJ, MAINGA JA and DAMASEB AJA
2014 APRIL 15; JULY 21
[2014] NASC 12

Criminal procedure - Evidence—Affidavits and certificates in terms of s 212(4)(a) and 212(8)(a) of Criminal Procedure Act 51 of 1977—Requirements for—Legislature having relaxed strict evidential rules by means of s 212(7A)(a).

HV v SV (2) (HC)
DAMASEB JP
2013 JUNE 3–6, 24
[2013] NAHCMD 176

Marriage - Divorce—Grounds for—Semble: Requirement of fault, in particular that a spouse who had been deserted and wanted to end marriage had to accept deserter back if offer to return was genuine, arguably in conflict with right to dignity enshrined in art 8 of Constitution of Namibia—Divorce law of Namibia archaic and demonstrably in need of reform.

HOLLARD INSURANCE COMPANY OF NAMIBIA LTD v DE NEYSCHEN t/a GECKO GUEST HOUSE (HC)
GEIER J
2013 NOVEMBER 12
[2013] NAHCMD 325

Costs - Party and party—Attorney’s fees—For taking instructions to institute or defend proceedings—Not permissible to assimilate fee for taking instructions under item A1 into a time charge allowed for necessary consultations under item A2.
Costs—Party and party—Attorney’s fees—For reporting to client—Particularly in case management attendances important that legal practitioners informed their clients—To be determined whether costs reasonably incurred in relation to claim.
Costs—Party and party—Attorney’s fees—Filing notice—Practice of utilising unnecessary filing notices deprecated.
Costs—Party and party—Attorney’s fees—For heads of argument—Required by exigency of modern practice and development of case management system.
Costs—Party and party—Attorney’s fees—For drawing bill of costs—Employment of costs consultant—Such fees and disbursements should not come at expense of unsuccessful litigant.
Costs—Taxation—Review of taxation—Costs of review—Applicant denied costs where it was not substantially successful and where papers were disorganised.

 

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