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November 2012

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.

 ‘The old saying – “if it looks like a duck, quacks like a duck and waddles like a duck then it probably is a duck” certainly applies in this case.’

 Satchwell J in para 34 of Dutch Reformed Church Vergesig and Another v Sooknunan 2012 (6) SA 201 (GSJ) regarding the respondent’s denial of his creation of a certain website.

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

SOUTH AFRICAN LAW REPORTS

Postings on Facebook page lead to litigation

One of the legal implications of the use of social media such as Facebook was that the owner of the website was responsible for regulating access to and censoring postings thereto, and was obliged to remove postings which were shown to be unlawful in content or impact. The owner was in effect the publisher thereof, much as a newspaper took responsibility for the content of its pages. Dutch Reformed Church Vergesig and Another v Sooknunan 2012 (6) SA 201 (GSJ)

Exemption clause at hotel unconstitutional?

A guest signed into a hotel and signed a disclaimer that broadly exempted the hotel from any liability for injury to the guest. The following day a heavy steel gate fell on the guest while he was trying to leave the hotel. Was the disclaimer binding on the guest? Naidoo v Birchwood Hotel 2012 (6) SA 170 (GSJ)

Amending pleadings during trial

The modern tendency of the courts is to grant an amendment where such amendment facilitates the proper ventilation of the disputes. But what of the inconvenience to the other party, the witnesses and the court? And should not the plaintiff quickly obtain his order and return of his cash flow, and the defendant be freed of litigation? Randa v Radopile Projects CC 2012 (6) SA 128 (GSJ)

SOUTH AFRICAN CRIMINAL LAW REPORTS

Drug mule gets 20 years

The accused was a first offender, married, with a young daughter, but had brought over six kilograms of cocaine into the country. The number of lives potentially affected by abuse of the drug outweighed the personal circumstances of the accused. A twenty year sentence was fitting. S v Keyser 2012 (2) SACR 437 (SCA)

Recent possession enough for robbery conviction?

The appellant’s conviction of robbery in the regional court had been based on his possession of the robbed motor vehicle. The appellant was found in possession of the vehicle eight days after the robbery, the vehicle was fitted with false plates, and he gave a false explanation for his possession. The question on appeal was whether the court a quo had correctly invoked the doctrine of recent possession. The court noted that in the present day and age stolen vehicles change hands with amazing speed and disingenuousness. S v Madonsela 2012 (2) SACR 456 (GSJ)

Smashed bottle of whisky: was it theft?

In a liquor store the accused hid a bottle of whisky under his clothing with the intention of stealing it. On being spotted by the security guard he attempted to put the bottle back, but the bottle broke. Was he guilty of theft or attempted theft? S v Mekula 2012 (2) SACR 521 (ECG)

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SOUTH AFRICAN LAW REPORTS

TABLE OF CASES

  • Zeeman v De Wet en Andere NNO 2012 (6) SA 1 (SCA)

  • Judge President Hlophe v Premier, Western Cape 2012 (6) SA 13 (CC)

  • Judge President Hlophe v Freedom Under Law and Others 2012 (6) SA 13 (CC)

  • PL v YL 2012 (6) SA 29 (ECP)

  • LH and Another v LA 2012 (6) SA 41 (ECG)

  • SS v Presiding Officer, Children’s Court, Krugersdorp and Others 2012 (6) SA 45 (GSJ)

  • Voltex (Pty) Ltd v SWP Projects CC and Another 2012 (6) SA 60 (GSJ)

  • Ivanov v North West Gambling Board and Others 2012 (6) SA 67 (SCA)

  • Village Freezer t/a Ashmel Spar v CA Focus CC 2012 (6) SA 80 (ECG)

  • Hentiq 1320 (Pty) Ltd v Mediterranean Shipping Co 2012 (6) SA 88 (SCA)

  • Indwe Aviation (Pty) Ltd v Petroleum Oil and Gas Corporation of South Africa (Pty) Ltd (No 1) 2012 (6) SA 96 (WCC)

  • Indwe Aviation (Pty) Ltd v Petroleum Oil and Gas Corporation of South Africa (Pty) Ltd and Another (No 2) 2012 (6) SA 110 (WCC)

  • Naidoo and Another v FirstRand Finance Co Ltd and Others 2012 (6) SA 122 (WCC)

  • Randa v Radopile Projects CC 2012 (6) SA 128 (GSJ)

  • Eskom Pension and Provident Fund v Krugel and Another 2012 (6) SA 143 (SCA)

  • Standard Bank of South Africa Ltd v Dawood 2012 (6) SA 151 (WCC)

  • Nedbank Ltd v Jessa and Another 2012 (6) SA 166 (WCC)

  • Naidoo v Birchwood Hotel 2012 (6) SA 170 (GSJ)

  • Roestorf and Another v Johannesburg Municipal Pension Fund and Others 2012 (6) SA 184 (SCA)

  • Dutch Reformed Church Vergesig and Another v Sooknunan 2012 (6) SA 201 (GSJ)

  • National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6) SA 223 (CC)

  • SATAWU and Others v Moloto and Another NNO 2012 (6) SA 249 (CC)

  • Edkins v Registrar of Deeds, Johannesburg and Others 2012 (6) SA 278 (GSJ)

FLYNOTES

ZEEMAN v DE WET EN ANDERE NNO (SCA)

BRAND AR, HEHER AR, SNYDERS AR, MALAN AR en PLASKET WnAR

2012 MAART 6, 23

Servitude—Praedial servitude—Right of aqueduct—Access to servient tenement—Maintenance of servitudinal works—Contractual duty of maintenance imposed on owner of servient tenement—Effect on right of access. 

JUDGE PRESIDENT HLOPHE v PREMIER, WESTERN CAPE;

JUDGE PRESIDENT HLOPHE v FREEDOM UNDER LAW AND OTHERS (CC)

MOGOENG CJ, CAMERON J, FRONEMAN J, KHAMPEPE J, SKWEYIYA J, VAN DER WESTHUIZEN J, YACOOB J and ZONDO AJ

2011 NOVEMBER 29; 2012 MARCH 30

Appeal—To Constitutional Court—Leave to appeal—When granted—Application by judge for leave to appeal against decision of Supreme Court of Appeal setting aside dismissal of complaint laid against him with JSC by Constitutional Court judges—Crux of complaint that judge attempted to improperly influence Constitutional Court decision—Complaining judges present on bench hearing application for leave to appeal—Constitutional Court finding that, in order to balance obligations to provide finality and avoid injustice to applicant, it should refuse leave to appeal.

Judge—Appointment—Acting judge of Constitutional Court—Appointment by President in case of vacancy on bench or absence of judge—‘Absence’ meaning physical absence and not absence resulting from recusal—Judge who recuses himself not ‘absent’, nor does recusal bring about ‘vacancy’—Where court rendered inquorate by recusal of judges, President not entitled to appoint acting judges to restore quoracy—Constitution, s 175(1).

PL v YL (ECP)

ALKEMA J

2011 NOVEMBER 16; DECEMBER 13

Husband and wife—Divorce—Order of court—Incorporating settlement agreement—Where application made for leave to appeal against court’s refusal to make part of settlement agreement relating to division of property order of court—Court not obliged to follow practice rule that, as matter of course, settlement agreements were to be made orders of court—No such practice rule, however firmly established, could remove court’s statutory discretion to make or refuse to make agreement/s relating to maintenance between parties, and/or division of their assets, order of court—Divorce Act 70 of 1979, s 7(1).

Husband and wife—Divorce—Order of court—Incorporating settlement agreement—Court having discretion to make or refuse to make agreement relating to maintenance, and/or division of property, order of court—High court in reported case setting out principles upon which court should exercise such discretion—Court granting leave to appeal on issue whether decision and guidelines contained in reported case correct.

LH AND ANOTHER v LA (ECG)

SMITH J

2012 AUGUST 7, 24

Children—Access—Grandparents—Usually in child’s best interests to maintain close relationship with grandparents—Mother ending contact between her son and his paternal grandparents after death of father—Grandparents entitled to court order allowing them limited access to their grandson, even against wishes of mother.

SS v PRESIDING OFFICER, CHILDREN'S COURT, KRUGERSDORP AND OTHERS (GSJ)

SALDULKER J and POTGIETER AJ

2012 APRIL 19; AUGUST 29

Children—Orphan—Foster care—Foster care order—May be made where child (1) is ‘in need of care and protection’; and (2) ‘without visible means of support’—In looking into means of support, court to focus on child’s personal resources and to determine whether any person has legal duty to support him—List of such persons provided—If child placed in foster care of de facto caregivers who lack duty of support, such persons entitled to foster grants, irrespective of income—Children’s Act 38 of 2005, s 150(1)(a).

VOLTEX (PTY) LTD v SWP PROJECTS CC AND ANOTHER (GSJ)

BHIKHA AJ

2010 AUGUST 11

Credit agreement—Consumer credit agreement—Whether agreement subject to NCA—Agreement of sale—Of goods where payment deferred for a fixed period—Overdue payments attracting interest—Whether ‘incidental credit agreement’—Interest not in terms of agreement but damages for breach—Not falling within such definition and NCA not applying—National Credit Act 34 of 2005, s 1 sv ‘incidental credit agreement’ and s 8.

IVANOV v NORTH WEST GAMBLING BOARD AND OTHERS (SCA)

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

2012 MAY 14, 31

Spoliation—Mandament van spolie—When available—Property seized by police during search in terms of warrant subsequently declared invalid—Seizure transformed into spoliation—Possessor entitled to unqualified restoration of items seized even where possession of items in question unlawful.

VILLAGE FREEZER t/a ASHMEL SPAR v CA FOCUS CC (ECG)

MAKAULA J and GRIFFITHS J

2011 AUGUST 3; 2012 APRIL 19

Prescription—Extinctive prescription—Interruption—By service on debtor of process whereby creditor claims payment of debt—Prescription Act 68 of 1969, s 15(1)—Summons issued after plaintiff close corporation deregistered—Claim otherwise prescribing before corporation reregistered—Reregistration not curing summons and not reviving claim.

HENTIQ 1320 (PTY) LTD v MEDITERRANEAN SHIPPING CO (SCA)

FARLAM JA, NAVSA JA, SNYDERS JA, MALAN JA and PLASKET AJA

2012 FEBRUARY 24; MARCH 30

Damages—Measure of damages—Whether recoverable loss proved by plaintiff—Claim in respect of liability incurred to third party in circumstances where plaintiff morally, but not legally, liable to pay—Absent legal liability to pay third party, absent also proof of recoverable loss.

INDWE AVIATION (PTY) LTD v PETROLEUM OIL AND GAS CORPORATION OF SOUTH AFRICA (PTY) LTD (NO 1) (WCC)

BLIGNAULT J

2010 JULY 21

Administrative law—Administrative action—What constitutes—State-owned company’s communicating its decision to negotiate further agreement to private company concerned—Steps taken by state company prior to conclusion of preliminary agreement constituting administrative action.

Administrative law—Administrative action—Validity—Procedural fairness—Legitimate expectation doctrine—Requirements—Representation underlying expectation having to be clear, unambiguous and devoid of relevant qualification—Where representation being state-owned company’s communication of its decision to negotiate further agreement to private company concerned—Requirement met if standard such as arbitrium boni viri could be applied to conduct of contracting party undertaking obligation to negotiate further agreement.

Contract—Terms—Validity—Invalidity by reason of vagueness—Preliminary agreement to negotiate further agreement—Whether void for vagueness—Not where standard such as arbitrium boni viri could be applied to conduct of contracting party undertaking obligation to negotiate further agreement—Such party obliged to act honestly and reasonably in conducting negotiations and court would be able to determine whether it complied with such standards.

INDWE AVIATION (PTY) LTD v PETROLEUM OIL AND GAS CORPORATION OF SOUTH AFRICA (PTY) LTD AND ANOTHER (NO2) (WCC)

BAARTMAN J

2010 NOVEMBER 22, 23; 2011 JUNE 1

Interdict—Interim interdict—Discretion of court—Whether court having discretion to grant interdict for protection of right, which protection earlier court found applicant not entitled to—Such case distinguishable from where earlier court finding right sought to be protected not existing—Principle, established in case law, that in latter case court not having discretion to grant interdict, therefore not applying where applicant established prima facie right (though open to some doubt) to interim relief—Also, limiting court’s discretion in such circumstances would be at odds with constitutional dispensation, which had not existed when such case law had been decided.

NAIDOO AND ANOTHER v FIRSTRAND FINANCE CO LTD AND OTHERS (WCC)

MOOSA J

2010 OCTOBER 14; 2011 FEBRUARY 2

Execution—Sale in execution—Immovable property—Validity—Proper service of warrant of execution—If domicilium address consisting of vacant land, strict compliance with applicable rules of service required—Effecting service on neighbouring property, even when it belongs to same owner, not constituting proper service—Defective service of warrant of execution and notice of attachment rendering any subsequent steps up to and including sale in execution invalid—Magistrates’ Courts Rules 9(3)(d) and 43(2)(a).

RANDA v RADOPILE PROJECTS CC (GSJ)

WILLIS J and BAVA AJ

2012 AUGUST 2, 30

Practice—Pleadings—Amendment—During trial—Court’s discretion—Tendency of courts to grant amendment to facilitate proper ventilation of disputes—Allowed where application not mala fide and where prejudice to other party compensated by costs or postponement—Semble: Granting of amendments where trial at advanced stage causing inconvenience to other party and court due to ensuing postponement and calling or recalling of witnesses—Desirable to conclude litigation to restore creditor’s cash flow, or to free defendant from litigation.

ESKOM PENSION AND PROVIDENT FUND v KRUGEL AND ANOTHER (SCA)

BRAND JA, LEWIS JA, MAYA JA, TSHIQI JA and PETSE AJA

2011 MAY 16, 31

Pension—Benefits—Divorce—Pension interest—Non-member spouse’s share —Whether non-member spouse entitled to benefits allocated in terms of divorce order where member spouse resigned from employment before divorce but deferred his benefit in fund—Member’s interest determined and payable to him upon resignation, ie before divorce—Benefit having accrued and member no longer having pension interest at time of divorce—No benefits due to non-member spouse—Divorce Act 70 of 1979, s 7(7) and s 7(8); Pension Funds Act 24 of 1956, s 37D(4)(a).

STANDARD BANK OF SOUTH AFRICA LTD v DAWOOD (WCC)

GRIESEL J, DLODLO J and LE GRANGE J

2012 APRIL 20; MAY 9

Execution—Sale in execution—Immovable property—Mortgaged immovable property—Sale of residential property for recovery of outstanding bond repayments—Whether simple or combined summons to be used where plaintiff prays for declaration of executability—Permissible to use combined summons but such not to be used in preference to simple summons—Uniform Rules of Court, rule 17(2).

Execution—Sale in execution—Immovable property—Mortgaged immovable property—Sale of residential property for recovery of outstanding bond repayments—Content of summons—Plaintiff need notify defendant of s 26(1) right and of need to place information demonstrating its violation before court; and also that defendant may place ‘relevant circumstances’ within meaning of s 26(3) and rule 46(1) before court—Constitution, ss 26(1) and 26(3); Uniform Rules of Court, rule 46(1).

Execution—Sale in execution—Immovable property—Mortgaged immovable property—Sale of residential property for recovery of outstanding bond repayments—Default judgment—Manner in which ‘relevant circumstances’ to be put before court—Plaintiff to include such in summons—If court requires further information thereon, plaintiff to provide this by affidavit—Constitution, s 26(3); Uniform Rules of Court, rule 46(1).

Practice—Summons—Form—Whether applicable rule directory in requiring claims for debts or liquidated demands to be made in simple summons, and other claims to be made in combined summons—Rule directory—Uniform Rules of Court, rule 17(2).

NEDBANK LTD v JESSA AND ANOTHER (WCC)

BLIGNAULT J

2011 DECEMBER 20

Execution—Sale in execution—Mortgaged immovable property—Sale of residential property for recovery of outstanding bond repayments—Content of summons—Notification to defendant of s 26(1) right and of need to place information demonstrating its violation before court—To this to be added that defendant may place ‘relevant circumstances’ within meaning of s 26(3) and rule 46(1) before court—Constitution, ss 26(1) and 26(3); Uniform Rules of Court, rule 46(1).

Execution—Sale in execution—Mortgaged immovable property—Sale of residential property for recovery of outstanding bond repayments—Content of summons—Plaintiff must allege ‘relevant circumstances’ within meaning of s 26(3) and rule 46(1) in summons—Constitution, ss 26(1) and 26(3); Uniform Rules of Court, rule 46(1).

NAIDOO v BIRCHWOOD HOTEL (GSJ)

HEATON-NICHOLLS J

2011 NOVEMBER 3–7; 2012 APRIL 3

Contract—Terms—Exemption clause—Enforceability—Hotel registration card disclaiming liability for injury caused by negligence of staff—Guest signing card and later injured by falling gate—Public policy precluding enforcement of contractual term if doing so unjust or unfair—Offending against notions of justice and fairness to deny judicial redress for injuries caused by negligent conduct of hotel.

ROESTORF AND ANOTHER v JOHANNESBURG MUNICIPAL PENSION FUND AND OTHERS (SCA)

NAVSA JA, NUGENT JA, HEHER JA, CACHALIA JA and TSHIQI JA

2012 FEBRUARY 20; MARCH 23

Pension—Benefits—Calculation—Member of fund medically boarded for being totally incapacitated—Member still under 60 at time of boarding—Appropriate percentage to be applied as factor in calculation of pension in terms of applicable pension fund rules.

Pension—Disputes—Pension funds adjudicator—Determination of dispute—Time-barring of complaint—Knowledge of complainant—Whether reasonable knowledge to be inferred—Not reasonable to expect beneficiary of pension fund to query determination of benefit or seek expert advice in absence of information available to beneficiary which should lead him to believe that mistake might have been made—Pension Funds Act 24 of 1956, s 30I.

Prescription—Extinctive prescription—Interruption—Express or tacit acknowledgement of liability by debtor—Monthly payment by pension fund of benefits due under its rules constituting tacit acknowledgement of liability and thus interrupting running of prescription against fund—Prescription Act 68 of 1969, s 14.

Court—High court—Jurisdiction—Review of decision of pension funds adjudicator—Whether ambit of high court’s jurisdiction delimited by terms of complaint to adjudicator—Answer in negative—Pension Funds Act 24 of 1956, s 30P.

DUTCH REFORMED CHURCH VERGESIG AND ANOTHER v SOOKNUNAN (GSJ)

SATCHWELL J

2012 MAY 2, 14

Constitutional law—Human rights—Right to freedom of expression—Exclusions—Incitement to cause harm—Aggressive, warlike or militant language used in religious context—Such language not necessarily incitement to cause harm—Instead, may only be part of religious language’s frequently invoked stylised, allegorical and metaphorical expressions.

Delict—Iniuria—Right to privacy—Invasion—Publication of confidential information on website open to public—Website owner making opportunity for publication of content available and, in effect, publisher thereof and responsible for regulating access to and censoring postings with unlawful content or impact—In circumstances of present case, where email addresses of second applicant and his attorney posted on respondent’s Facebook wall without their permission, respondent ordered to remove such posting as constituting unlawful invasion of their rights to privacy.

NATIONAL TREASURY AND OTHERS v OPPOSITION TO URBAN TOLLING ALLIANCE AND OTHERS (CC)

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

2012 AUGUST 15; SEPTEMBER 20

Constitutional law—Separation of powers—Between judiciary and executive—Application for interim interdict prohibiting organ of state from exercising statutory power pending review—Courts to be wary of restraining exercise of executive statutory power—Must carefully assess how and to what extent interdict will disrupt executive or legislative functions, in particular executive decisions regarding allocation of public resources—High court interdict restraining implementation of e-tolling system criticised for failing to make such assessment.

Road—Toll road—Implementation of e-tolling system to fund highway upgrade—Such amounting to government competence involving allocation of public resources—High court order temporarily interdicting implementation of system intruding on executive terrain—Order set aside on appeal.

Constitutional practice—Appeal—Parties—Amicus curiae—Application for admission as in Constitutional Court—Political party—Party seeking to advance political agenda—Inappropriate for it to be admitted as amicus—Should rather seek admission as intervening party.

SATAWU AND OTHERS v MOLOTO AND ANOTHER NNO (CC)

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

2012 MAY 10; SEPTEMBER 21

Labour law—Strike—Notice—Who must give notice—Non-union members joining union members in strike for which union had given employer notice—Non-union members not required to give separate notice—Labour Relations Act 66 of 1995, s 64(1)(b) and Constitution, s 23(2)(c).

EDKINS v REGISTRAR OF DEEDS, JOHANNESBURG AND OTHERS (GSJ)

MOSHIDI J

2011 OCTOBER 20; 2012 MARCH 9

Insolvency—Voluntary surrender—Execution—Prohibition against sale in execution of property in respect of which notice of surrender published—Not impeding transfer of immovable property sold in execution prior to publication of notice to surrender—Insolvency Act 24 of 1936, s 5(1).

Insolvency—Trustee—Property passing to trustee—Where immovable property sold in execution prior to publication of notice to surrender and not yet transferred—Such property not passing to trustee and execution purchaser entitled to take transfer thereof—Insolvency Act 24 of 1936, s 20(1)(a).

Land—Deeds registry—Registrar of Deeds—Registrar of Deeds’ Conference Resolutions—Semble: Only representing registrar’s view and interpretation of legal position—Intended to serve as practical guidelines—Cannot supersede court’s function and discretion.

CITY OF JOHANNESBURG v CHANGING TIDES 74 (PTY) LTD AND OTHERS (SCA)

MTHIYANE DP, LEWIS JA, TSHIQI JA, WALLIS JA and PETSE JA

2012 AUGUST 21; SEPTEMBER 14

Land—Unlawful occupation—Eviction—Statutory eviction—Relationship between inquiry into whether to evict and enquiry as to eviction date—Court first to inquire whether it is just and equitable to evict, and if it is, into just and equitable date of eviction and conditions to attach to order—When first and second inquiries complete, court to make single order—Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, ss 4(7) and 4(8).

Land—Unlawful occupation—Eviction—Statutory eviction—Role of court—Court to take more active role than usual to ensure it has enough information to make decision—Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, ss 4(7) and 4(8).

Land—Unlawful occupation—Eviction—Statutory eviction—Onus—Applicant for eviction order bears onus to satisfy court that it is just and equitable to so order—Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, s 4(7).

Land—Unlawful occupation—Eviction—Statutory eviction—Joinder of local authority—Applicant to join local authority where eviction order might trigger authority’s constitutional obligations to provide housing or emergency accommodation—Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.

Land—Unlawful occupation—Eviction—Statutory eviction—Local authority’s procedural obligations—Where applicant has joined authority and it may be obligated to provide emergency accommodation, local authority to file report with court on its housing policy and facts of case—Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.

SOUTH AFRICAN CRIMINAL LAW REPORTS

TABLE OF CASES

  • S v Keyser 2012 (2) SACR 437 (SCA)

  • Fritz v Minister of Safety and Security 2012 (2) SACR 451 (ECG)

  • S v Madonsela 2012 (2) SACR 456 (GSJ)

  • S v Daniels and Another 2012 (2) SACR 459 (SCA)

  • S v Gani NO 2012 (2) SACR 468 (GSJ)

  • S v Ngomane 2012 (2) SACR 474 (GNP)

  • S v ET 2012 (2) SACR 478 (WCC)

  • Ntontela v Minister of Correctional Services and Others 2012 (2) SACR 487 (GSJ)

  • S v DV and Others 2012 (2) SACR 492 (GNP)

  • S v BM 2012 (2) SACR 507 (FB)

  • S v CT 2012 (2) SACR 517 (GNP)

  • S v Mekula 2012 (2) SACR 521 (ECG)

  • S v Nkuna 2012 (2) SACR 526 (GSJ)

  • S v MK 2012 (2) SACR 533 (GSJ)

  • S v Mosia 2012 (2) SACR 537 (FB)

FLYNOTES

S v KEYSER (SCA)

HEHER JA, SNYDERS JA, WALLIS JA, McLAREN AJA and SOUTHWOOD AJA

2012 MAY 9, 25

Drug offences—Cocaine—Dealing in contravention of s 5(b) of Drugs and Drug Trafficking Act 140 of 1992—Accused bringing cocaine into country on aeroplane—Accused first offender married, with a young daughter, had brought 6,5 kg (with a street value of over R2 million) cocaine into country—Most important consideration was number of lives potentially affected by abuse of the drug—Outweighs personal circumstances and justifies long incarceration—Sentence of 20 years’ imprisonment confirmed on appeal.

S v ZONDI (KZP)

PATEL AJP and PLOOS VAN AMSTEL J

2011 SEPTEMBER 30

Review—Of decision under s 77(6) of Criminal Procedure Act 51 of 1977—Where magistrate makes order in terms of s 77(6) such case should not be sent for review to high court.

FRITZ v MINISTER OF SAFETY AND SECURITY (ECG)

MAKAULA J and CHETTY J

2010 MAY 21; SEPTEMBER 16

Arrest—Arrest without warrant—Criminal Procedure Act 51 of 1977, s 40(1)(a)—For offence which does not exist—Arrest cannot be justified by s 40(1)(a).

S v MADONSELA (GSJ)

VAN OOSTEN J and MUDAU AJ

2012 APRIL 19

Evidence—Presumptions—Doctrine of recent possession—Nature of goods to be considered—Stolen vehicles—These days stolen vehicles changing hands with amazing speed and disingenuousness—Robbed vehicle found with false plates in accused’s possession eight days after robbery—Accused’s explanation unsatisfactory—Absence of other incriminating evidence—Doctrine of recent possession not applying—On appeal robbery conviction altered to one under s 36 of General Law Amendment Act 62 of 1955.

S v DANIELS AND ANOTHER (SCA)

HEHER JA, SNYDERS JA, WALLIS JA, McLAREN AJA and SOUTHWOOD AJA

2012 MAY 9, 25

Trial—Irregularity in—Effect of—Constitutional irregularities—Court only able to set aside decision on appeal where failure of justice occurred—Mere reference in charge-sheet to unconstitutional reverse onus provisions not tainting trial where state placed no reliance on provisions.

S v GANI NO (GSJ)

VICTOR J and MAHALELO AJ

2011 OCTOBER 14

Juvenile offenders—Diversion of—From criminal justice system—Court failing to consider diversion where age of accused established only after conviction—Matter remitted to magistrate for compliance with provisions of Child Justice Act 75 of 2008.

S v NGOMANE (GNP)

MAVUNDLA J and KOLLAPEN AJ

2012 SEPTEMBER 3

Rape—Sentence—Life imprisonment—Minimum sentence in terms of Criminal Law Amendment Act 105 of 1997—Necessary that magistrate canvas nature and extent of victim’s injuries.

S v ET (WCC)

NC ERASMUS J and GANGEN AJ

2012 APRIL 20; JUNE 15

Rape—Sentence—Life imprisonment—Minimum sentence in terms of Criminal Law Amendment Act 105 of 1997—‘Substantial and compelling circumstances’—Period spent in prison awaiting trial—Period of 14 months insignificant where prescribed minimum sentence life imprisonment.

Rape—Sentence—Life imprisonment—Minimum sentence in terms of Criminal Law Amendment Act 105 of 1997—‘Substantial and compelling circumstances’—Age of complainant—Complainant eight months away from 16th birthday—Given trauma of any rape, this not substantial and compelling circumstance.

NTONTELLA v MINISTER OF CORRECTIONAL SERVICES AND OTHERS (GSJ)

SATCHWELL J

2012 FEBRUARY 2

Prisons—Prisoner—Parole—Breach of parole conditions—Arrest of prisoner and revocation of parole—Failure to bring prisoner before court within 48 hours of arrest, where he was dealt with by Parole Board immediately, not rendering arrest unlawful—Revocation of parole not punishment, but withdrawal of privilege.

S v DV AND OTHERS (GNP)

LEGODI J

2011 NOVEMBER 17

Bail—Application for—Onus—On accused—Section 60(11)(a) of Criminal Procedure Act 51 of 1977—Accused to satisfy court of ‘exceptional circumstances’ permitting release—Factors set out in s 60(4) not to be disregarded in determining existence or otherwise of exceptional circumstances for purposes of s 60(11)(a).

Bail—Application for—Onus—On accused—Section 60(11)(a) of Criminal Procedure Act 51 of 1977—Accused to satisfy court of ‘exceptional circumstances’ permitting release—Trial of nine accused on sexual offences likely to last long time—Strength of state case subject to some doubt—Bail granted on appeal.

S v BM (FB)

EBRAHIM J and CHESIWE AJ

2012 FEBRUARY 20; APRIL 1

Fundamental rights—Rights of children—Child witnesses and victims in criminal trials—Proviso to s 164(1) of Criminal Procedure Act 51 of 1977, read with Constitution, s 28(2)—Admonition to speak truth—Section 164(1) not requiring knowledge of abstract concepts of truth and falsehood, but that child will speak truth—Investigation conducted in terms of s 164 by trial magistrate sufficient to establish that child complainant and child witness understood what it meant to speak truth.

Evidence—Witnesses—Children—When complainants and witnesses in sexual-offence cases—Admonition to speak truth in terms of s 164(1) of Criminal Procedure Act 51 of 1977—Section not requiring knowledge of abstract concepts of truth and falsehood, but that child will speak truth.

S v CT (GNP)

ISMAIL J and KHUMALO AJ

2012 FEBRUARY 24

Fundamental rights—Right to a fair trial—Failure of 9-year-old child complainant in rape case to testify through an intermediary as provided for in s 170A of Criminal Procedure Act 51 of 1977—Trial court to consider whether child should testify without aid of intermediary—Child testifying by means of CCTV in terms of s 158 of Act using interpreter—Such failure on its own not rendering trial unfair—No prejudice to accused—Review dismissed.

Evidence—Witnesses—Children—When complainants in sexual offence cases—Appointment of intermediary in terms of s 170A(1) of Criminal Procedure Act 51 of 1977—Trial court failing to consider appointment of, and to appoint, intermediary through which 9-year-old rape complainant could testify—Such failure on its own not rendering trial unfair.

S v MEKULA (ECG)

EKSTEEN J and GOOSEN J

2012 MAY 16

Theft—Attempted theft—What constitutes—Accused in liquor store concealing bottle of whisky under clothes—Being spotted by security guard and breaking bottle in attempt to put it back—Accused would have been unable to leave premises with bottle—Owner, through security guard, still exercising effective control over bottle—On review, conviction of theft substituted with attempted theft.

Review—Delay in submission of record of proceedings—Clerk of lower court to forward record of proceedings to registrar of high court within one week of determination of case—Where delay in forwarding record exceeding prescribed time limit, record to be accompanied by proper explanation for reasons for delay—Criminal Procedure Act 51 of 1977, s 303.

S v NKUNA (GSJ)

FRANCIS J and COPPIN J

2012 MAY 18

Drug offences—Dagga—Enquiry in terms of s 255 of Criminal Procedure Act 51 of 1977—Neither s 255 nor s 21(1) of Prevention and Treatment of Drug Dependency Act 20 of 1992 restricted to young people, or those who are addicts rather than recreational users.

S v MK (GSJ)

VAN OOSTEN J and MAYAT J

2012 MAY 31

Juvenile offenders—Sentence—Diversion in terms of s 52(1) of Child Justice Act 75 of 2008—Can be done at any stage of trial.

Juvenile offenders—Sentence—Imprisonment last resort—Possibility of diversion to be considered.

Juvenile offenders—Sentence—Rape—Sentence of five years’ imprisonment, on 16-year-old who was in dire need of guidance, correction, rehabilitation and reintegration into community, strikingly inappropriate.

S v MOSIA (FB)

RAMPAI AJP, DAFFUE J and PHALATSI AJ

2012 MARCH 19; APRIL 19

Rape—Sentence—Life imprisonment—Minimum sentence in terms of Criminal Law Amendment Act 105 of 1997—‘Substantial and compelling circumstances’—Cases of rape may be so serious that, despite favourable personal circumstances of appellant and impact of sentence on appellant, they justify imposition of life imprisonment and finding of absence of ‘substantial and compelling circumstances’—Sentence of life imprisonment confirmed on appeal.

Sentence—Life imprisonment—Mitigating factors—Personal circumstances of accused—Joint rape perpetrated by appellant and his brother—Complainant viciously assaulted prior to rape and incident having serious adverse effects on quality of her life—Gravity of rape incident and callous disregard for victim’s bodily integrity and emotional feelings not to be outweighed by circumstances of appellant, favourable though they were, and adverse impact of sentence imposed on him—Sentence of life imprisonment confirmed.

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