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November 2015

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases in the November law reports.

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

JUDGMENTS OF INTEREST IN THE NOVEMBER EDITIONS OF THE SALR, THE SACR AND THE NAMIBIAN LAW REPORTS 2015 (3)

 

SOUTH AFRICAN LAW REPORTS

Loss of support

A child’s duty to support a needy parent, as recognised under African customary law, must be extended to cultures—like Muslim and Hindu—which share African culture’s societal norms regarding parents and the elderly, and impose a similar duty on children to support their parents. Osman v Road Accident Fund 2015 (6) SA 74 (GP)

The thin-skull rule

In a claim against the Road Accident Fund, the claimant’s psychological fragility made her less resistant to chronic pain, which forced into early retirement. The Fund was found to be liable for the resultant loss of earnings. Prinsloo v Road Accident Fund 2015 (6) SA 91 (WCC)

Res ipsa loquitur and medical negligence

A mother and child claimed damages resulting from their treatment at a state hospital. While res ipsa loquitur seldom applied in medical negligence cases, the evidence established a strong prima facie case of grave negligence, while the defence was one of bare denial, justifying the application of the principle. Attorney-and-client costs would be awarded against the defendant as a mark of the court’s disapproval of his uncompassionate and obstructive conduct. Nzimande v MEC for Health, Gauteng 2015 (6) SA 192 (GP)

 

SOUTH AFRICAN CRIMINAL LAW REPORTS

Psychological defence failing

On two counts of murder, the accused raised the defence of temporary pathological incapacity. But his calm actions before and after the murders showed self-control and planning. He was found guilty of both counts of murder. S v Seroba 2015 (2) SACR 429 (GJ)

Customary practice as defence to rape

An aberrant form of the customary practice of ukuthwala that allowed the abduction and rape of a bride, was not protected under our law. Belief in such an aberration could not justify rape. S v Jezile 2015 (2) SACR 452 (WCC)

Diversion for juvenile offenders

A 16-year-old was charged with culpable homicide for driving a motor vehicle without a licence and causing a collision that killed an occupant of another vehicle. For a diversion from the criminal justice system, the preliminary enquiry had to consider (1) the child acknowledging responsibility; and (2) the prosecutor indicating that the matter may be diverted in terms of Child Justice Act 75 of 2008. S v LR 2015 (2) SACR 497 (GP)

 

THE NAMIBIAN LAW REPORTS

Costs award for lay litigant

A lay person was awarded a costs order, limited to disbursements reasonably incurred. He was aggrieved by this and argued that it violated his dignity and discriminated against him because he was not an admitted legal practitioner, and that he was entitled to just and favourable remuneration. Kamwi v Standard Bank Namibia Ltd and Others 2015 (3) NR 678 (HC)

Court’s jurisdiction in church affairs

An order was sought declaring that the second applicant be leader of the church and that respondents be expelled, but this relief was exclusively ecumenical or ecclesiastical in nature, and the court had no jurisdiction to adjudicate on such matters. New African Methodist Episcopal Church in the Republic of Namibia And Another v Kooper and Others 2015 (3) NR 705 (HC)

Counsel from across the border

An accused person was entitled to legal representation of his or her choice, as enshrined in art 12(e) of the Namibian Constitution. The accused was granted a postponement so that his counsel could acquire the necessary immigration papers required to work in Namibia. S v Conradie and Another 2015 (3) NR 863 (HC)

 

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 SOUTH AFRICAN LAW REPORTS
 
 TABLE OF CASES
  • Savage and Others v Sisters of the Holy Cross, Cape Province and Others 2015 (6) SA 1 (WCC)
  • Larret v Coega Development Corporation (Pty) Ltd and Others 2015 (6) SA 16 (ECG)
  • Engen Petroleum Ltd v Goudis Carriers (Pty) Ltd (in Liquidation) 2015 (6) SA 21 (GJ)
  • Bakgatla-Ba-Kgafela Tribal Authority and Others, Bakgatla-Ba-Kgafela Communal Property Association v 2015 (6) SA 32 (CC)
  • Society of Advocates of KwaZulu-Natal v Levin 2015 (6) SA 50 (KZP)
  • Osman v Road Accident Fund 2015 (6) SA 74 (GP)
  • South Atlantic Jazz Festival (Pty) Ltd v Commissioner, South African Revenue Service 2015 (6) SA 78 (WCC)
  • Prinsloo v Road Accident Fund 2015 (6) SA 91 (WCC)
  • Provincial Minister for Local Government etc, Western Cape v Oudtshoorn Municipal Council and Others 2015 (6) SA 115 (CC)
  • Shoprite Checkers (Pty) Ltd v MEC for Economic Development etc, Eastern Cape and Others 2015 (6) SA 125 (CC)
  • Road Accident Fund v Sweatman 2015 (6) SA 186 (SCA)
  • Nzimande v MEC for Health, Gauteng 2015 (6) SA 196 (GP)
  • Aboobaker NO and Others v Serengeti Rise Body Corporate and Another 2015 (6) SA 200 (KZD)
  • Express Model Trading 289 CC v Dolphin Ridge Body Corporate 2015 (6) SA 224 (SCA)
  • Mahano and Others v Road Accident Fund and Another 2015 (6) SA 237 (SCA)
  • Kilburn v Tuning Fork (Pty) Ltd 2015 (6) SA 244 (SCA)
  • MA v State Information Technology Agency (Pty) Ltd 2015 (6) SA 250 (LC)
  • L’Oreal South Africa (Pty) Ltd v Kilpatrick and Another 2015 (6) SA 256 (LC)
  • Lester v Ndlambe Municipality and Another 2015 (6) SA 283 (SCA)
  • SW v SW and Another 2015 (6) SA 300 (ECP)
  • Medox Ltd v Commissioner, South African Revenue Service 2015 (6) SA 310 (SCA)
 
 FLYNOTES
 

SAVAGE AND OTHERS v SISTERS OF THE HOLY CROSS, CAPE PROVINCE AND OTHERS (WCC)

MAHOMED AJ

2015 MAY 7

Land - Transfer—Interdict—Interdict pendente lite—Tenants of church property in historic district seeking interim interdict to bar transfer—Loss of protection afforded by canon law justifying granting of interim relief.

Church - Catholic Church—Church property—Transfer—Protection of tenants—Tenants seeking to bar transfer of church property in historic district pending institution of action—Loss of protection afforded by canon law justifying granting of interim relief.

LARRET v COEGA DEVELOPMENT CORPORATION (PTY) LTD AND OTHERS (ECG)

STRETCH J

2015 MARCH 13

Company - Oppressive conduct—Relief—Ambit—Provision not incorporating power to authorise institution of action by company against third party in absence of proper company resolution to that effect—Companies Act 71 of 2008, s 163(2).

ENGEN PETROLEUM LTD v GOUDIS CARRIERS (PTY) LTD (IN LIQUIDATION) (GJ)

SUTHERLAND J

2014 AUGUST 5; OCTOBER 20

Company - Winding-up—Unlawful alienations and preferences—Void disposition—Whether court may validate disposition made after grant of final winding-up order—Companies Act 61 of 1973, s 341(2).

BAKGATLA-BA-KGAFELA COMMUNAL PROPERTY ASSOCIATION v BAKGATLA-BA-KGAFELA TRIBAL AUTHORITY AND OTHERS (CC)

MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MOLEMELA AJ, NKABINDE J, THERON AJ and TSHIQI AJ

2015 MAY 28; AUGUST 20

Land - Communal property—Provisional communal property association—Loses right to use and occupy land on expiration of provisional registration period but does not cease to exist—Communal Property Association Act 28 of 1996, s 5(4).

SOCIETY OF ADVOCATES OF KWAZULU-NATAL v LEVIN (KZP)

MOODLEY J

2015 JULY 5, 6

Costs - Counsel’s fees—Taxation—Senior counsel—Generally—Reasonableness to be assessed on time-spent basis using existing fee structures—Fees for drafting of heads of argument—Necessary consultation fees.

OSMAN v ROAD ACCIDENT FUND (GP)

ISMAIL J

2015 APRIL 29; JULY 3

Delict - Specific forms—Loss of support—Dependant’s action—Extension—Action by parent for loss of support from deceased child—Duty of child to support needy parent under African customary law—Extending also to other cultures, such as Muslim and Hindu, with similar societal mores in respect of taking care of parents and elderly.

SOUTH ATLANTIC JAZZ FESTIVAL (PTY) LTD v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE (WCC)

HLOPHE JP, BINNS-WARD J and CLOETE J

2015 JANUARY 30; FEBRUARY 6

Revenue - Tax court—Jurisdiction—Whether extending to appeal against Commissioner’s exercise of administrative discretion—Tax Administration Act 28 of 2011, s 117.

Revenue - Value-added tax—Input tax—When deductible—Whether vendor in possession of acceptable documentary proof substantiating entitlement to deduction—Value-Added Tax Act 89 of 1991, s 16(2)(f).

PRINSLOO v ROAD ACCIDENT FUND (WCC)

CLOETE J

2015 MAY 18–21; JUNE 10–11, 15, 18; JULY 29

Motor vehicle accident - Compensation—Claim against Road Accident Fund—Quantum—Loss of future earnings—Pre-existing vulnerability—Thin-skull rule—Claimant’s psychological fragility making her less resistant to chronic pain—Forced into early retirement—RAF liable for resultant loss of earnings.

Motor vehicle accident - Compensation—Claim against Road Accident Fund—Quantum—Loss of future earnings—Consequential benefits—Disability pension—Accruing under contract of employment—Intended as compensation—Not deductible.

Delict - Elements—Causation—Legal causation—Thin-skull rule—Frailty of victim no defence—Victim’s psychological make-up making her less resistant to chronic pain—Forced into early retirement—Road Accident Fund to compensate victim for resultant loss of earnings.

PROVINCIAL MINISTER FOR LOCAL GOVERNMENT etc, WESTERN CAPE v OUDTSHOORN MUNICIPAL COUNCIL AND OTHERS (CC)

MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MOLEMELA AJ, NKABINDE J, THERON AJ and TSHIQI AJ

2015 MAY 21; AUGUST 18
[2015] ZACC 24

Constitutional law - Legislation—Validity—Local Government: Municipal Structures Act 117 of 1998, s 30(4)—Casting vote by speaker where council deadlocked—Provision unconstitutional and invalid to extent allowing speaker casting vote in matters listed in s 160(2) of Constitution—Reading-in of ‘other than a matter mentioned in s 160(2) of the Constitution’ after ‘question’ curing invalidity—Declaration effective prospectively—Constitution, s 160(3)(b) read with s 160(2).

SHOPRITE CHECKERS (PTY) LTD v MEC FOR ECONOMIC DEVELOPMENT etc, EASTERN CAPE AND OTHERS (CC)

MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAPPIE AJ, KHAMPEPE J, MADLANGA J, MOLEMELA AJ, NKABINDE J, THERON AJ and TSHIQI AJ

2015 MARCH 12; JUNE 30
[2015] ZACC 23

Constitutional law - Human rights—Right to property—What constitutes property—Grocer’s wine licences—Constitution, s 25(1); Liquor Act 27 of 1989.

Constitutional law - Human rights—Right to property—Deprivation of property—What constitutes—Act terminating grocer’s wine licences—Deprivation not arbitrary—Constitution, s 25(1); Liquor Act 27 of 1989; Eastern Cape Liquor Act 10 of 2003, ss 71(2) and 71(5).

ROAD ACCIDENT FUND v SWEATMAN (SCA)

LEWIS JA, MAYA JA, ZONDI JA, DAMBUZA AJA and MAYAT AJA

2015 MARCH 15, 20
[2015] ZASCA 22

Motor vehicle accident - Compensation—Claim against Road Accident Fund—Limits—Limit in respect of loss of income or support—Calculation—Section not altering conventional method of calculating those losses—Limit applying to case remains same for each year after accident—Road Accident Fund Act 56 of 1996, s 17(4)(c).

NZIMANDE v MEC FOR HEALTH, GAUTENG (GP)

BERTELSMANN J

2015 SEPTEMBER

Medicine - Medical practitioner—Negligence—Proof—Res ipsa loquitur—Application of doctrine where prima facie case of grave negligence made out against personnel at government hospital and defence one of bare denial.

Evidence - Witness—Calling—Failure to call—Intervention by court—Plaintiff’s legal representative failing to call expert witness to testify to potential consequences of medical negligence—Claim endangered—Court intervening in interests of justice to prevent its derailment—Expert report procured.

ABOOBAKER NO AND OTHERS v SERENGETI RISE BODY CORPORATE AND ANOTHER (KZD)

STEYN J

2015 MAY 14; JUNE 29

Local authority - Buildings—Demolition—Of portion of building based on deviation plan, approval of which set aside on review—Such portion illegally constructed—Court bound by doctrine of legality to order its demolition.

Local authority - Town planning—Town-planning and zoning schemes—Rezoning—Review of approval—Setting aside of rezoning on review—Effect on deviation plan approved pursuant to rezoning—Whether demolition appropriate remedy.

EXPRESS MODEL TRADING 289 CC v DOLPHIN RIDGE BODY CORPORATE (SCA)

PONNAN JA, LEACH JA, PETSE JA, SALDULKER JA and MOCUMIE AJA

2014 MARCH 4, 26
[2014] ZASCA 17e

Company - Winding-up—Creditors—Locus standi—Whether lost—After grant of provisional winding-up order, third party paying rental arrears that were basis for winding-up.

Close corporation - Liquidation—Application—Locus standi of applicant—Whether lost—After grant of provisional winding-up order, third party paying rental arrears that were basis for winding-up.

MAHANO AND OTHERS v ROAD ACCIDENT FUND AND ANOTHER (SCA)

LEWIS JA, SHONGWE JA, WILLIS JA, GORVEN AJA and MEYER AJA

2015 MARCH 9, 20
[2015] ZASCA 23

Motor vehicle accident - Compensation—Claim against Road Accident Fund—Injury—Assessment whether ‘serious’—Whether minister had to publish guidelines before American Medical Association’s Guides could be used in assessment—Road Accident Fund Regulations, 2008, reg 3(1)(b)(iv).

KILBURN v TUNING FORK (PTY) LTD (SCA)

CACHALIA JA, MHLANTLA JA, SALDULKER JA, GORVEN AJA and MEYER AJA

2015 FEBRUARY 23; MARCH 27
[2015] ZASCA 53

Suretyship - Deed of suretyship—Interpretation—Conflict between heading and body.

MA v STATE INFORMATION TECHNOLOGY AGENCY (PTY) LTD (LC)

GUSH J

2014 NOVEMBER 19, 20; 2015 MARCH 26

Labour law - Unfair discrimination—Gender, sex, family responsibility and sexual orientation—Maternity leave—Male employee in civil union refused paid maternity leave following birth of child through surrogacy—Amounting to unfair discrimination—Basic Conditions of Employment Act 75 of 1997, s 25; Employment Equity Act 55 of 1998, s 6(1).

L’OREAL SOUTH AFRICA (PTY) LTD v KILPATRICK AND ANOTHER (LC)

SNYMAN AJ

2014 SEPTEMBER 23, 25

Labour law - Labour Court—General principles and rules—Importation of provisions and rules governing other jurisdictions—Selective importation permissible to fill lacunae in processes of Labour Court and Labour Appeal Court—Labour courts may selectively import provisions from Superior Courts Act 10 of 2013.

Labour law - Labour Court—Appeal—Appeal process—Interim enforcement of order—No appeal against order for interim enforcement—Superior Courts Act 10 of 2013, s 18(4) not applicable to Labour Court appeals.

Labour law - Labour Court—Execution—Application for leave to execute pending appeal—Appeal against interdict enforcing restraint of trade—Irreparable harm—Suspension would defeat restraint and render interdict nugatory—Court directing that interdict remain executable—Uniform Rules of Court, rule 49(11).

LESTER v NDLAMBE MUNICIPALITY AND ANOTHER (SCA)

JUDGES

2013 MAY 15; AUGUST 22
[2013] ZASCA 95

Local authority - Buildings—Demolition—Of building erected without approved building plans—Whether court vested with discretion not to order demolition—National Building Regulations and Building Standards Act 103 of 1977, s 21.

SW v SW AND ANOTHER (ECP)

GOOSEN J

2015 JULY 30; AUGUST 13

Marriage - Divorce—Jurisdiction—High Court—Where divorce action pending before regional court, parties cannot invoke jurisdiction of High Court to secure relief in terms of Uniform Rule 43—Court can, however, exercise inherent jurisdiction where interests of minor child require urgent protection—Such discretion not lightly exercised to avoid jurisdictional conflict and multiplicity of actions—Uniform Rules of Court, rule 43.

MEDOX LTD v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE (SCA)

BRAND JA, CACHALIA JA, BOSIELO JA, WILLIS JA and FOURIE AJA

2015 MAY 15, 27
[2015] ZASCA 74

Revenue - Income tax—Assessment—Finality of assessment—Absent objection, assessment becoming final and conclusive—Commissioner precluded from reopening assessments after three years—Income Tax Act 58 of 1962, ss 81(2)(b) and 81(5).

 

 SOUTH AFRICAN CRIMINAL LAW REPORTS
 TABLE OF CASES
  • S v Seroba 2015 (2) SACR 429 (GJ)
  • S v Jezile 2015 (2) SACR 452 (WCC)
  • S v ZW 2015 (2) SACR 483 (ECG)
  • S v LR 2015 (2) SACR 497 (GP)
  • S v Gcam-Gcam 2015 (2) SACR 501 (SCA)
  • S v Mgcwabe 2015 (2) SACR 517 (ECG)
  • S v Jwara and Others 2015 (2) SACR 525 (SCA)
 
 FLYNOTES
 

S v SEROBA (GJ)

DOSIO AJ

2015 JULY 6, 13

General principles of liability - Criminal capacity—Temporary pathological incapacity—Proof of—Psychiatric evidence—Assessment of—Court to analyse logical reasoning—Conflict between evidence for state and evidence for accused—Court preferring evidence of state in circumstances where it had difficulty with defence psychiatrist’s diagnosis that accused was probably psychotic when he committed crimes a number of years earlier.

S v JEZILE (WCC)

YEKISO J, SALDANHA J and CLOETE J

2014 AUGUST 22; OCTOBER 24; DECEMBER 5; 2015 MARCH 23

Rape - Defences—Customary practice of ukuthwala—Practices associated with aberrant form of ukuthwala that sanctions abduction and rape not protected under our law—Belief in such cannot justify rape.

General principles of liability - Defences—Justification—Customary practice—Ukuthwala—Practices associated with aberrant form of ukuthwala that sanctions abduction and rape not recognised or protected under our law.

S v ZW (ECG)

NEPGEN J and STRETCH J

2014 AUGUST 27; DECEMBER 18

Indictment and charge - Charge—Putting of charge to accused—Provisions of Criminal Procedure Act peremptory—Prosecutor must put charge to accused, not his legal representative—Criminal Procedure Act 51 of 1977, s 105.

Indictment and charge - Defective charge—Amendment of—Resort to be had to provisions of Criminal Procedure Act as soon as it becomes clear charge defective—Complainant raped repeatedly over period of six years but appellant only charged with two counts of rape—But for irregularities in charge-sheet, accused could have been sentenced to life imprisonment—Prosecutor should have realised at outset chargesheet defective—Criminal Procedure Act 51 of 1977, s 86.

S v LR (GP)

MSIMEKI J and PHATUDI J

2014 DECEMBER 2

Juvenile offenders - Sentence—Diversion—Requirements of s 52(1)(e) of Child Justice Act 75 of 2008—Court’s acceptance of child’s acknowledgement of guilt, without taking into account that prosecutor had not agreed to diversion, vitiating order of diversion.

Juvenile offenders - Diversion of—From criminal justice system—Requirements of—Preliminary enquiry to consider diversion: (1) child acknowledging responsibility; and (2) prosecutor indicating matter may be diverted in terms of Child Justice Act 75 of 2008—Magistrate erred and acted irregularly—Provisions of s 52(1) of Act were not complied with—Reviewed and set aside.

S v GCAM-GCAM (SCA)

CACHALIA JA, SHONGWE JA and GORVEN AJA

2015 MARCH 2, 25
[2015] ZASCA 42

Evidence - Confession—Admissibility of—Approach of court to assessment of confessions made by suspects in police custody—Courts need to be especially vigilant—In addition courts need to be sceptical when suspect repudiates confession at first opportunity.

General principles of liability - Common purpose—Common purpose arising from agreement—Requirements—Explicitly abandoned plan to rob first paypoint—Appellant not aware of and played no role in decision to rob second paypoint—Could not have foreseen robbery of second paypoint and loss of lives during course of robbery.

S v MGCWABE (ECG)

NEPGEN J and ALKEMA J

Evidence - Witnesses—Competence and compellability of—Of spouse or former spouse of accused—Accused’s wife testifying that she had not been told that she could elect not to testify and had agreed to testify because she was already at court—Witness should be informed of rights before testifying and this should be placed on record—Fact that relationship between spouses ‘severely damaged’ not a ground justifying wife being called as prosecution witness without being informed of rights—Conviction set aside.

S v JWARA AND OTHERS (SCA)

BRAND JA, PONNAN JA, WILLIS JA, DAMBUZA AJA and GORVEN AJA

2015 MARCH 12, 25
[2015] ZASCA 33

Evidence - Admissibility—Evidence of cellphone communications monitored and intercepted in terms of Interception and Monitoring Prohibition Act 127 of 1992, s 2(2)—Whether fact that Act predating and therefore not referring to cellphone communications meaning that judge’s direction authorising interception and monitoring of cellphone communications invalid for being ultra vires Act.

Evidence - Admissibility—Evidence of cellphone communications monitored and intercepted in terms of Interception and Monitoring Prohibition Act 127 of 1992, s 2(2)—Circumstances in which evidence still admissible, even though application for direction did not strictly comply with formalities—Procedure followed as closely as possible and evidence could not be obtained in any other manner as accused were police officials and endemic corruption therein—Evidence admissible.

 

 THE NAMIBIAN LAW REPORTS
 TABLE OF CASES
  • Mbambus v Motor Vehicle Accident Fund 2015 (3) NR 605 (SC)
  • Municipal Council of Windhoek v Telecom Namibia Ltd 2015 (3) NR 629 (SC)
  • Village Hotel (Pty) Ltd v Chairperson of the Council for the Municipality of Swakopmund and Others 2015 (3) NR 643 (SC)
  • Paschke v Frans 2015 (3) NR 668 (SC)
  • Kamwi v Standard Bank Namibia Ltd and Others 2015 (3) NR 678 (HC)
  • Mingeli v Oshakati Premier Electric (Pty) Ltd 2015 (3) NR 688 (HC)
  • Mukata v Appolus 2015 (3) NR 695 (HC)
  • International University of Management v Torbitt and Others 2015 (3) NR 698 (LC)
  • New African Methodist Episcopal Church in the Republic of Namibia and Another v Kooper and Others 2015 (3) NR 705 (HC)
  • Inspector General of the Namibian Police and Another v Dausab-Tjiueza 2015 (3) NR 720 (HC)
  • Total Namibia (Pty) Ltd v OBM Engineering and Petroleum Distributors CC 2015 (3) NR 733 (SC)
  • Telecom Namibia Ltd v Communications Regulatory Authority of Namibia and Others 2015 (3) NR 747 (HC)
  • S v Unengu 2015 (3) NR 777 (HC)
  • S v Moussa 2015 (3) NR 800 (HC)
  • Fernandes v Minister of Home Affairs and Immigration and Another 2015 (3) NR 805 (HC)
  • Futeni Collection (Pty) Ltd v De Duine (Pty) Ltd 2015 (3) NR 829 (HC)
  • National Cold Storage, A Division of Matador Enterprise (Pty) Ltd v Namibia Poultry Industries (Pty) Ltd 2015 (3) NR 844 (HC)
  • Namibia Custom Smelters (Pty) Ltd v Mupetami and Another 2015 (3) NR 859 (LC)
  • S v Conradie and Another 2015 (3) NR 863 (HC)
  • Methealth Namibia Administrators (Pty) Ltd v Matuzee and Others 2015 (3) NR 870 (LC)
  • Prosecutor-General v Uuyuni 2015 (3) NR 886 (SC)
 
 FLYNOTES
 

MBAMBUS v MOTOR VEHICLE ACCIDENT FUND (SC)

DAMASEB AJA, ZIYAMBI AJA and GARWE AJA

2014 JULY 4; 2015 FEBRUARY 11

Motor vehicle accident - Motor Vehicle Accident Fund—Claims against—Fund a statutory body—Compromise of dependants’ claims resulting from unlawful conduct of deceased driver—Compromise ultra vires Fund’s powers—Settlement null and void—Motor Vehicle Accident Fund Act 4 of 2001, s 10.

Practice - Stated case—Requirements—Court could only decide issues of law based on agreed facts—High Court Rule 33.

MUNICIPAL COUNCIL OF WINDHOEK v TELECOM NAMIBIA LTD (SC)

SHIVUTE CJ, DAMASEB DCJ and MAINGA JA

2014 OCTOBER 23; 2015 MARCH 2

Statute - Interpretation—Purpose—Posts and Telecommunications Act 19 of 1992, s 24—Facilitating important telecommunication services for public benefit—Section 24 unqualified by legislature—Sufficiently clear in its terms and purpose without reading implied words into statute.

Constitutional law - Legislation—Validity of s 24 of Posts and Telecommunications Act 19 of 1992—Justifiable limitation of use of land reserved for public use consistent with art 22—Actions pursuant to s 24 not dispossessing or extinguishing rights to property.

Prescription - Extinctive prescription—Running of—Local authority—Fifteen year prescription period for debts due to state—Local authority constituting ‘the State’—Prescription Act 68 of 1969, s 11(b).

VILLAGE HOTEL (PTY) LTD v CHAIRPERSON OF THE COUNCIL FOR THE MUNICIPALITY OF SWAKOPMUND AND OTHERS (SC)

SHIVUTE CJ, CHOMBA AJA and MTAMBANENGWE AJA

2013 OCTOBER 21; 2015 MARCH 18

Administrative law - Administrative action—Local authority—Reconsideration of wrongful grant of relaxation of building height—Evidence points to ratification of unauthorised height relaxation and not to de novo consideration—Nullity not capable of ratification.

Constitutional law - Fundamental rights—Administrative justice—Management committee of municipality—Failure to answer legitimate questions during proceedings—Fundamentally unfair hearing—Violation of arts 12 and 18 of Constitution.

Practice—Parties - Locus standi—Landowner has locus standi to challenge neighbour’s conduct in violation of Town Planning Scheme.

PASCHKE v FRANS (SC)

SHIVUTE CJ, CHOMBA AJA and O’REGAN AJA

2013 NOVEMBER 5; 2015 APRIL 30

Enrichment - Unjust enrichment—Date for determining quantum of enrichment—Value determined at close of pleadings, stage when litis contestatio reached.

Practice - Stated case—Requirements—Legal question posed neither finally determining aspect of litigation, nor making significant contribution accelerating trial—Not appropriate matter for stated case under High Court Rule 33(1).

KAMWI v STANDARD BANK NAMIBIA LTD AND OTHERS (HC)

VAN NIEKERK J

2012 APRIL 10; 2015 JANUARY 30
[2015] NAHCMD 8

Practice - Judgments and orders—Variation of order—Application by lay person for amendment or variation of cost order—No ambiguity in word ‘disbursement’ in court order—Application on basis of rule 44(1)(b) misplaced—High Court Rules, rule 44(1)(b).

Costs - Award of costs in favour of lay litigant—Costs not argued before making award—Applicant aggrieved by cost order—Entitled to be heard.

MINGELI v OSHAKATI PREMIER ELECTRIC (PTY) LTD (HC)

MASUKU AJ

2015 FEBRUARY 18; MARCH 6
[2015] NAHCMD 45

Practice - Trial—Removal of to another division—When permitted—Practice Directive 47—It would be harsh in extreme, inconvenient and unreasonable in circumstances, to order trial to proceed in main division where all other factors pointed to northern division being most suitable, reasonable and convenient forum in circumstances.

MUKATA v APPOLUS (HC)

PARKER AJ

2015 FEBRUARY 16; MARCH 12
[2015] NAHCMD 54

Practice - Applications and motions––Summary judgment application—Interlocutory application—Compliance with High Court Rules, rules 32(9) and (10) peremptory for all interlocutory applications.

INTERNATIONAL UNIVERSITY OF MANAGEMENT v TORBITT AND OTHERS (LC)

PARKER AJ

2014 JANUARY 30; FEBRUARY 20
[2014] NALCMD 6

Labour law - Labour Act 11 of 2007, s 86(18)—Interpretation of—Ordinary meaning of ‘must’—Peremptory term—Arbitrator obliged to issue award within 30 days of conclusion of arbitration—Disobedience of prescribed time limit—Award declared null and void.

Practice - Applications and motions—Declaratory order—Jurisdictional facts—Interested person with vested right present or future entitled to seek declaratory order—High Court Act 16 of 1990, s 16(d).

NEW AFRICAN METHODIST EPISCOPAL CHURCH IN THE REPUBLIC OF NAMIBIA AND ANOTHER v KOOPER AND OTHERS (HC)

MASUKU AJ

2015 MARCH 12; APRIL 29
[2015] NAHCMD 105

Court - Jurisdiction—High court—Relief sought clearly exclusively ecumenical or ecclesiastical in nature—Seeking orders that second applicant be declared leader of church and that respondents be declared as expelled from church—Court has no jurisdiction to adjudicate on such matters.

Company - Proceedings by and against—Authority—Express authority for particular application must be apparent in resolution—Authority to institute proceeding on behalf of company and authority of person acting on behalf of company challenged—Doubt about status of person acting on behalf of company and whether proceedings properly authorised.

Practice - Applications and motions—Dispute of fact—Court has discretion where factual disputes could not be resolved in application proceedings to refer issues to oral evidence—Clearly foreseeable disputes of fact arose—Application dismissed.

Practice - Applications and motions—Declaratory order—Such order a discretionary remedy—Order sought to declare second applicant leader of church—Constitution of church did not make provision for appointment of ‘leader’—No legal basis existing for order sought.

INSPECTOR GENERAL OF THE NAMIBIAN POLICE AND ANOTHER v DAUSAB-TJIUEZA (HC)

UEITELE J

2015 JANUARY 29; FEBRUARY 17
[2015] NAHCMD 25

Review - In terms of rule 65—Review of decision of inferior court, tribunal, administrative body or administrative official—Irregular proceeding—Record of proceedings and reasons for decision under review necessary—Review should have been brought under High Court rule 76.

TOTAL NAMIBIA (PTY) LTD v OBM ENGINEERING AND PETROLEUM DISTRIBUTORS CC (SC)

SHIVUTE CJ, CHOMBA AJA and O’REGAN AJA

2014 OCTOBER 17; 2015 APRIL 3

Contract - Interpretation—Proper approach to interpretation of contracts—Context in which document drafted always relevant to construction—Unitary exercise—Taking into account text and context as well as knowledge of contracting parties at conclusion of contract—Construction of contract matter of law and not of fact—Interpretation of contracts matter forcourt and not witnesses.

Contract - Mistake—Unilateral mistake—Agreement made order of court—Order may be set aside if original agreement vitiated by mistake—Appellant could not rely on unilateral mistake—Meaning appellant sought to attach to agreement inconsistent with language of agreement.

Practice - Judgments and orders—Rescission—Irregular proceedings adopted to obtain order—Order sought and granted in error in absence of party affected thereby—Not necessary to show good cause for rescission of judgment in terms of High Court Rule 103(1)(a).

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

PARKER AJ

2015 FEBRUARY 19; MARCH 19
[2015] NAHCMD 66

Practice - Discovery and inspection—Application to compel discovery—In terms of High Court Rule 70(3)—Rule 70(3) making rule 28 applicable to discovery in motion proceedings—Rule only applicable in exceptional circumstances—Documents must in addition be relevant and proportionate to needs of case.

STANDARD BANK NAMIBIA LTD AND OTHERS v MALETZKY AND OTHERS (SC)

SHIVUTE CJ, MAINGA JA and O’REGAN AJA

2015 MARCH 15; JUNE 24

Practice - Service—Purpose of—Notice of nature and contents of process—Irregular service—Effect depending on nature of proceedings and extent of irregularity—Defective service could be nullity or condonable in absence of prejudice.

Practice - Parties—Joinder—Misjoinder of parties—Case of each party to proceedings turning on own facts—Not substantially same questions of law or fact—Improper joinder—High Court Rules 10(1) and 10(3).

Practice - Parties—Joinder—Non-joinder of necessary parties—Prejudice—Notice of motion and founding affidavits set aside—Entirely irregular.

Practice - Applications and motions—Affidavits—Purpose of founding affidavits to identify key facts to enable respondent to know case to be met—Material defects in founding affidavits of lay litigants—Court to act fairly to all litigants—Non-compliance with rule 6(1) of High Court Rules in material respects—Notice of motion and founding affidavits set aside.

Costs - Constitutional litigation—Proper approach—Departure from ordinary costs rule when litigants conduct litigation in reasonably proper manner—Litigants pursued relief in materially flawed manner against wide range of respondents—Ordered to pay costs.

S v UNENGU (HC)

LIEBENBERG J

2015 JANUARY 22–23, 26–30; FEBRUARY 12, 24
[2015] NAHCMD 33

Criminal procedure - Evidence—Witness—Single witness—Rape and assault—Evidence of single witness need not be perfect in every respect—Court must be satisfied that truth was told.

Criminal procedure - Evidence—Witness—Credibility—Self-contradictions—Discrepancy between witness statement and witness evidence–Affecting credibility only when discrepancy material—Not be evaluated in isolation—Regard must also be had to rest of witness’s evidence, considered against totality of evidence presented.

Criminal procedure - Evidence—Assessment of—Failure to call witness—Failure by state did not per se justify any adverse inference against the state case—Justification to do so would depend on circumstances of case—Remained open to defence to call witness once state decided not to do so.

S v MOUSSA (HC)

PARKER AJ

2014 DECEMBER 12; 2015 FEBRUARY 11
[2015] NAHCMD 21

Criminal procedure - Bail—Appeal against magistrate’s refusal to grant bail—Factors taken into account on appeal—Long period of detention between bail applications constituting ‘new fact’ after previous bail application—Bail granted subject to conditions.

Constitutional law - Fundamental rights—Fair trial—Trial to take place within reasonable time—Seven years since accused arrested and charged—Unconscionably long delay—Violating appellant’s rights guaranteed by art 12(1) of Constitution.

FERNANDES v MINISTER OF HOME AFFAIRS AND IMMIGRATION AND ANOTHER (HC)

VAN NIEKERK J

2011 OCTOBER 20; 2015 MARCH 16
[2015] NAHCMD 59

Administrative law - Administrative action—Review of—Administrative body bound by reasons for decision given to applicant for refusal of permit.

Administrative law - Administrative action—Review of—Administrative body relying on notorious facts—Facts must be generally well known to reasonably informed person including to court and applicant—Where such knowledge not known applicant must be apprised of such knowledge—Applicant must be given opportunity to controvert evidence.

Administrative law - Administrative bodies—Fair administrative justice in terms of art 18 of Namibian Constitution—Applicant applying for and granted five consecutive temporary work permits—Sixth application refused—Audi alteram partem rule should be observed when decisionmaker privy to relevant information of which applicant ignorant and when circumstances were such as creating a reasonable expectation of succeeding.

FUTENI COLLECTION (PTY) LTD v DE DUINE (PTY) LTD (HC)

MASUKU AJ

2015 FEBRUARY 4; MAY 27
[2015] NAHCMD 119

Practice - Judgments and orders—Default judgment—Order declaring property executable—Nulla bona return and application to court required to declare mortgaged property executable prior to issue of writ—New application required—Personal service of form 24 notice of application to have property declared executable—Onus on judgment debtor or third party residing in property to apprise court of status of property—Whether property primary home or leased as a home—Judgment debtor to advance reasons why property should not be declared executable—Reasons could be provided in writing or with leave of court through oral submissions—High Court Rules, rule 108(1)–(2).

Contract - Rectification—Essential allegations in claim for rectification—A written agreement; written document incorrectly reflecting parties’ intention; both parties intended to conclude written agreement; mistake in drafting; actual wording of agreement as rectified—Action not defended—Substantial compliance where actual wording as rectified appearing in prayers only.

NATIONAL COLD STORAGE, A DIVISION OF MATADOR ENTERPRISE (PTY) LTD v NAMIBIA POULTRY INDUSTRIES (PTY) LTD (HC)

UEITELE J

2014 NOVEMBER 12; 2015 MARCH 3
[2014] NAHCMD 40

Contract - Formation—Consensus—Firm unequivocal offer made—Silence and repeated conduct consistent with offer—Tacit agreement through acquiescence.

Contract - Specific performance—Discretion of court—Alternative remedy damages—Court should avoid becoming supine and spineless in dealing with offending contract breaker, by giving him benefit of paying damages—No grounds advanced by respondent against exercise of discretion in favour of applicant.

NAMIBIA CUSTOM SMELTERS (PTY) LTD v MUPETAMI AND ANOTHER (LC)

PARKER AJ

2015 MARCH 13; APRIL 16
[2015] NALCMD 7

Labour law - Dismissal—Fairness of—Dismissal within discretion of employer—Discretion not absolute—Dismissal must be fair punishment in circumstances—Employee guilty of dishonesty and breach of rules—Serious misconduct—Continuation of employment insupportable—Valid and fair reason for dismissal—Labour Court Act 11 of 2007, s 33(1)(a).

S v CONRADIE AND ANOTHER (HC)

MASUKU AJ

2015 APRIL 16, 27
[2015] NAHCMD 101

Criminal procedure - Trial—Postponement—Application on ground that South African counsel awaiting visa—Court recognising accused entitlement to legal representative of choice in terms of art 12(e) of Namibian Constitution.

Criminal procedure - Trial—Postponement—Applicant for postponement seeking indulgence—Court to be satisfied postponement in interest of justice—Principles applicable to postponements in civil proceedings also applicable to criminal cases.

METHEALTH NAMIBIA ADMINISTRATORS (PTY) LTD v MATUZEE AND OTHERS (LC)

UEITELE J

2015 MARCH 6, 18; APRIL 10
[2015] NALCMD 5

Arbitration - Award—Appeal against—Right restricted to questions of law—Court required to determine as question of law whether evidence such that no reasonable arbitrator could make such finding or whether evidence could not reasonably support finding—Labour Act 11 of 2007, s 89(1)(a).

Labour law - Labour dispute—Unfair labour practice—Referral of dispute to Labour Commissioner—Failure to sign referral form LC 21 or attach statement—Employer participating in conciliation and arbitration proceedings—Not rendering proceedings a nullity—Rules Relating to Conduct of Conciliation and Arbitration before Labour Commissioner, rule 5.

PROSECUTOR-GENERAL v UUYUNI (SC)

MAINGA JA, CHOMBA AJA and HOFF AJA

2014 OCTOBER 21; 2015 JULY 2

Criminal procedure - Search and seizure—Preservation of property order—Application in terms of s 51 of Prevention of Organised Crime Act 29 of 2004—Application brought ex parte and in camera—Provisions of s 98 not applicable to ex parte applications—First stage of procedure of s 51 ex parte and in camera—Not in violation of art 12(1) of Constitution or s 13 of High Court Act 16 of 1990—Second stage in terms of s 52(3)—Opportunity to oppose forfeiture of preserved property.

 

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