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December 2016 

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases in the December law reports.

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

JUDGMENTS OF INTEREST IN THE DECEMBER EDITIONS OF THE SALR AND THE SACR LAW REPORTS

 

SOUTH AFRICAN LAW REPORTS

Foreign witnesses via video link

This judgment deals with the continually developing response of our courts to the marvels of modern technology, specifically, the use of video link to procure the evidence of witnesses based in Paris and Dubai who were not available or willing to attend court in Johannesburg. Uramin (Incorporated In British Columbia) t/a Areva Resources Southern Africa v Perie 2017 (1) SA 236 (GJ)

Demolition of national monuments

While the building sought to be demolished was not worthy of protection, the surrounding area was, due to its large concentration of art deco buildings, which were conservation-worthy, so conditions were issued for the replacement building to be harmonious with its surroundings. Gees v Provincial Minister of Cultural Affairs and Sport, Western Cape and Others 2017 (1) SA 1 (SCA)

Extending rights to a view

Building plans were submitted that, if put into effect, would have obscured the view of other owners, in a group housing development. There were two rows of houses facing the sea, the first row single storey and the second row double storey. Could the concept of ‘harmonious architectural entity’ be extended to create rights to a view? Gerstle and Others v Cape Town City and Others  2017 (1) SA 11 (WCC)

 

SOUTH AFRICAN CRIMINAL LAW REPORTS

Extraterritorial jurisdiction

The offences related to bombings that took place in Nigeria. The accused was a leader of a militant group opposed to the government’s handling of oil exploration in the Niger Delta. He was in Nigeria at the time of the bombings and his acts relating to those offences were committed outside of South Africa, however, it was found that the appellant conspired, planned and instructed people in relation to the execution of a bombing while he was in South Africa. S v Okah 2017 (1) SACR 1 (SCA)

Mothers in jail

In circumstances where the court a quo was dismissive of the interests of the children, whose primary caregivers were being sent to prison, and when there had been no investigation as to the care the children would receive in their absence, the magistrate had misdirected herself, and the sentences imposed accordingly fell to be set aside. S v Maliswane and Another 2017 (1) SACR 26 (ECG)

Drug-induced amnesia

The accused was charged with the murder of his girlfriend, who was found dead with a plastic bag over her head. The accused had no knowledge of the death of the deceased and claimed that this was because of a combination of alcohol and crack cocaine, thus laying the foundation for his defence of lack of criminal capacity. S v Ramdass  2017 (1) SACR 30 (KZD)

 

 

 

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 SOUTH AFRICAN LAW REPORTS
 TABLE OF CASES
 
  • Gees v Provincial Minister of Cultural Affairs and Sport, Western Cape and Others 2017 (1) SA 1 (SCA)
  • Gerstle and Others v Cape Town City and Others 2017 (1) SA 11 (WCC)
  • NYK Isabel 2017 (1) SA 25 (SCA)
  • Northern Endeavour Shipping Pte Ltd v Owners of NYK Isabel and Another 2017 (1) SA 25 (SCA)
  • Thomani and Another v Seboka NO and Others 2017 (1) SA 51 (GP)
  • Busuku v Road Accident Fund 2017 (1) SA 71 (ECM)
  • Absa Bank Ltd v Expectra 423 (Pty) Ltd and Others 2017 (1) SA 81 (WCC)
  • KT v MR 2017 (1) SA 97 (GP)
  • MEC for Health, Gauteng v Lushaba 2017 (1) SA 106 (CC)
  • Commissioner, South African Revenue Service v Marshall NO and Others 2017 (1) SA 114 (SCA)
  • Wile and Another v MEC, Department of Public Works, Gauteng and Others 2017 (1) SA 125 (WCC)
  • Danielson v Human and Another 2017 (1) SA 141 (WCC)
  • Mnyandu v Padayachi 2017 (1) SA 151 (KZP)
  • Blue Nightingale Trading 397 (Pty) Ltd t/a Siyenza Group v Amathole District Municipality 2017 (1) SA 172 (ECG)
  • Standard Bank of South Africa Ltd v Miracle Mile Investments 67 (Pty) Ltd and Another 2017 (1) SA 185 (SCA)
  • W v H 2017 (1) SA 196 (WCC)
  • Barnard NO v Road Accident Fund 2017 (1) SA 245 (ECP)
  • Absa Bank Ltd v Moore and Another 2017 (1) SA 255 (CC)
  • Makhwelo v Minister of Safety and Security 2017 (1) SA 274 (GJ)
  • Baliso v FirstRand Bank Ltd t/a Wesbank 2017 (1) SA 292 (CC)
  • Edwards v FirstRand Bank Ltd t/a Wesbank 2017 (1) SA 316 (SCA)
 
 FLYNOTES
 

GEES v PROVINCIAL MINISTER OF CULTURAL AFFAIRS AND SPORT, WESTERN CAPE AND OTHERS (SCA)

MAYA DP, BOSIELO JA, SERITI JA, FOURIE AJA and DLODLO AJA
2016 SEPTEMBER 15, 29
[2015] ZASCA 136

National monuments - Buildings of historical interest—Alteration or demolition—Building older than 60 years—No formal heritage status—Heritage authority granting demolition permit on condition that new development in harmony with existing building’s (i) town-planning envelope and (ii) façade—Conditions lawfully imposed—National Heritage Resources Act 25 of 1999, s 34(1) and s 48(2).

GERSTLE AND OTHERS v CAPE TOWN CITY AND OTHERS (WCC)

DAVIS J, BAARTMAN J and BOQWANA J
2016 AUGUST 15

Local authority- Buildings—Building plans—Approval—Properties for which plans submitted located in ‘group housing scheme’—Putting plans into effect would obscure view of other owners—Whether plans complying with zoning scheme regulations—‘Group housing’ defined in amended Cape Townships Ordinance 33 of 1934 as inter alia a group of dwellings planned, designed and built as a ‘harmonious architectural entity’—Whether plans negatively affecting ‘harmonious architectural entity’—National Building Regulations and Building Standards Act 103 of 1977, s 7(1)(a); Cape Townships Ordinance 33 of 1934.

MV NYK ISABEL
NORTHERN ENDEAVOUR SHIPPING PTE LTD v OWNERS OF MV NYK ISABEL AND ANOTHER (SCA)

LEACH JA, THERON JA, SERITI JA, WALLIS JA and KATHREE-SETILOANE AJA
2016 MAY 25; JUNE 1
[2016] ZASCA 89

Shipping - Admiralty law—Maritime claim—Enforcement—Arrest—Associated-ship arrest—Guilty ship subject to charterparty—Deemed ownership of charterer—Charterer including slot-charterer—Admiralty Jurisdiction Regulation Act 105 of 1983, s 3(7)(c).

Shipping - Admiralty law—Security—Security for counterclaim—Court having wide discretion to order—But applicant must first establish (i) prima facie existence of counterclaim and (ii) genuine and reasonable need for security—Owner of arrested ship applying for countersecurity in respect of claim reinforced by judgment in foreign court—Both parties peregrini but respondent having subjected itself to jurisdiction of court—Court exercising discretion in favour of owner and ordering arresting party to providecountersecurity for foreign judgment—Admiralty Jurisdiction Regulation Act 105 of 1983, s 5(2)(b) and (c).

THOMANI AND ANOTHER v SEBOKA NO AND OTHERS (GP)

JANSEN J
2016 JULY 12

Mortgage - Mortgage bond—Interpretation—Bank and mortgagor concluding mortgage bond to secure sum owed under home loan—Whether bond securing sum owed by mortgagor to bank under suretyship agreement.

Suretyship - Liability—Whether, while principal debtor company is deregistered, its surety may be sued.

BUSUKU v ROAD ACCIDENT FUND (ECM)

ALKEMA J
2016 MARCH 8; JUNE 9

Motor vehicle accident - Compensation—Claim against Road Accident Fund—Claim form—Sufficiency of information furnished in claim from—Medical report left blank—Tantamount to no medical report having been submitted—Not possible to substitute with hospital notes—Issue of substantial compliance only arising in regard to content of form and not in its absence—Submission of blank medical report on form RAF 1 having no legal effect, resulting in prescription of claim—Road Accident Fund Act 56 of 1996, s 24(1)(a) read with reg 7.

ABSA BANK LTD v EXPECTRA 423 (PTY) LTD AND OTHERS (WCC)

BOZALEK J
2016 APRIL 20; AUGUST 19

Practice - Judgments and orders—Summary judgment—Deferral—Court clarifying and approving principle that summary judgment may not be deferred by delivery of notice to produce documents or tape recordings in terms of rule 35(12) and (14)—Uniform Rules of Court, rule 35(12) and (14).

Suretyship - Surety—Discharge of—Prejudice to surety—In application for summary judgment against sureties, defence raised that creditor delaying in acting against principal debtor, causing prejudice to sureties—Whether conduct of creditor together with ‘surrounding circumstances’ justifying sureties’ release from suretyships—No reliance placed upon any breach by creditor of any terms of underlying agreements—Sureties arguing that creditor’s conduct so unreasonable that not falling within terms of loan agreement or deed of suretyship—Position unsustainable in law—Impermissibly seeking to create exception to general rule that no general ‘prejudice principle’ existing in our law.

KT v MR (GP)

KOLLAPEN J
2016 AUGUST 10

Marriage - Divorce—Proprietary rights—Forfeiture of patrimonial benefits of marriage—Undue benefit—Parties married in community of property—Where consideration of circumstances leading to breakdown of marriage and presence of substantial misconduct not decisive of whether benefit undue—Consideration of fault-neutral factor such as duration of marriage should be based on considerations of proportionality—The longer the marriage, the more likely that benefit would be due and proportionate—Conversely, the shorter the marriage, the more likely benefit would be undue and disproportionate—Not, however, translating into rigid and mechanical exercise, as court enjoined to make value judgment—Divorce Act 70 of 1979, s 9(1).

MEC FOR HEALTH, GAUTENG v LUSHABA (CC)

MOGOENG CJ, MOSENEKE DCJ, BOSIELO AJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MHLANTLA J, NKABINDE J and ZONDO J
2016 JUNE 23
[2015] ZASCA 16

Court - Judicial authority vesting in courts—Medical negligence case instituted against Gauteng MEC for Health—Court issued rule nisi calling upon MEC to show cause why he should not be held liable for costs de bonis propriis in his personal capacity; alternatively, to indicate those officials in offices of Department and State Attorney who should be held liable—One cannot be judge in own matter—Court not competent to authorise party to litigation before it to exercise judicial authority—Constitution, s 165.

Constitutional law - Human rights—Right of access to courts—Right to fair hearing—In medical negligence case instituted against Gauteng MEC for Health, costs order holding liable in their personal capacities officials in health department and State Attorney’s office—Officials punished without notice and without having been given any opportunity to make representations—Violation of officials’ right to fair hearing—Constitution, s 34.

COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE v MARSHALL NO AND OTHERS (SCA)

NAVSA JA, BOSIELO JA, DAMBUZA JA, VAN DER MERWE JA and MAKGOKA AJA
2016 AUGUST 26; OCTOBER 3
[2016] ZASCA 158

Revenue - Value-added tax—Zero rating—In terms of s 11(2)(n) of VAT Act on payments for services deemed under s 8(5) to have been made by designated entity to public authority or municipality—Section 8(5) only applicable where no link between actual supplies made and payments received—Actual supplies not qualifying for zero rating under s 11(2)(n)—Value-Added Tax Act 89 of 1991, ss 8(5) and 11(2)(n).

WILE AND ANOTHER v MEC, DEPARTMENT OF PUBLIC WORKS, GAUTENG AND OTHERS (WCC)

BOZALEK J
2016 APRIL 21; JUNE 24

Provisional sentence - On foreign judgment—Use of provisional-sentence procedure ruled inappropriate but foreign court’s judgment nevertheless recognised in interests of justice..

Practice - Judgments and orders—Foreign judgment—Recognition—Plaintiff seeking order directing state to give effect to name change resulting from foreign adult-adoption order—Limited relief sought not offending public policy and granted in interests of justice—Court making order recognising foreign judgment and authorising plaintiff to use order in support of name-change application.

DANIELSON v HUMAN AND ANOTHER (WCC)

CLOETE J
2016 MAY 30; AUGUST 1

Practice - Judgments and orders—Foreign judgment—Enforcement—Dispute concerning licensing of battery technology resulting in American civil judgment of treble damages—Whether Act or public policy precluding recognition and enforcement of judgment—Protection of Businesses Act 99 of 1978, ss 1(1) and 1(3).

MNYANDU v PADAYACHI (KZP)

MOODLEY J and PLOOS VAN AMSTEL J
2016 AUGUST 1

Harassment - Nature of—Whether single act may constitute—Protection from Harassment Act 17 of 2011, s 1.

BLUE NIGHTINGALE TRADING 397 (PTY) LTD t/a SIYENZA GROUP v AMATHOLE DISTRICT MUNICIPALITY (ECG)

ALKEMA J
2015 SEPTEMBER 15; NOVEMBER 24

Local authority - Municipality—Procurement—Of services under contract secured by other organ of state—Exemption from compliance with statutory provisions regulating procurement—Only (i) if goods or services procured by municipality same as those required by other organ of state and at same contract price; and (ii) if contract for procurement concluded between municipality and other organ of state—Local Government: Municipal Finance Management Act 56 of 2003, s 110(2), and regulations in terms of s 168, reg 32(1).

STANDARD BANK OF SOUTH AFRICA LTD v MIRACLE MILE INVESTMENTS 67 (PTY) LTD AND ANOTHER (SCA)

LEACH JA, SALDULKER JA, SWAIN JA, MBHA JA and BAARTMAN AJA
2016 MAY 13; JUNE 1
[2016] ZASCA 91

Prescription - Extinctive prescription—Commencement—Amount claimable under acceleration clause—Loan, to be repaid in instalments, and containing provision that full amount could be claimed on fulfilment of certain conditions, including default on an instalment, and notice of election to claim full amount—Whether prescription on full amount started to run on default, or election—Prescription Act 68 of 1969, s 12(1).

W v H (WCC)

WEINKOVE AJ
2016 AUGUST 5

Contract - Legality—Contracts contrary to public policy—Specific instances—Clause in antenuptial contract constituting unilateral waiver by wife of right to claim maintenance should marriage be dissolved, regardless of conduct of parties—Clause offending against core constitutional values upon which public policy grounded.

Marriage - Divorce—Maintenance—Unilateral waiver prior to time of divorce—Legality—Clause in antenuptial contract constituting unilateral waiver by wife of right to claim maintenance should marriage be dissolved, regardless of conduct of parties—Clause contrary to public policy.

URAMIN (INCORPORATED IN BRITISH COLUMBIA) t/a AREVA RESOURCES SOUTHERN AFRICA v PERIE (GJ)

SATCHWELL J
2013 DECEMBER 11

Evidence - Witness—Giving of evidence via video link—Procedure for.

BARNARD NO v ROAD ACCIDENT FUND (ECP)

GOOSEN J
2016 OCTOBER 17, 25

Motor vehicle accident - Compensation—Claim against Road Accident Fund—Undertaking in terms of s 17(4)(a) of RAF Act—‘Rendering of service or supplying of goods’—Whether restricted to health-related services—Court considering purpose behind section, as well as manner in which it, as well as predecessors, had been interpreted—Wording of section wide enough to cover non-health-related services or goods, such as services of domestic assistant and/or costs of curator bonis appointed to administer estate of claimant—Road Accident Fund Act 56 of 1996, ss 17(4)(a) and 17(4B)(a).

ABSA BANK LTD v MOORE AND ANOTHER (CC)

NKABINDE ADCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MBHA AJ, MHLANTLA J and MUSI AJ
2016 AUGUST 2; OCTOBER 21
[2016] ZACC 34

Debtor and creditor - Discharge of debt—Payment by third party acting in furtherance of fraudulent scheme—Payment effective to discharge debt even if made in fraud of creditor and with funds provided by it.

Land - Transfer—Fraud inducing transfer—Ambit of maxim ‘fraud unravels all’—Effect on cancellation of mortgage bond—Whether bank entitled to reinstatement of bond—Court will not write new contract for parties.

Mortgage - Mortgage bond—Cancellation—Mortgagee bank cancelling bond after mortgage debt paid by third party in furtherance of fraudulent scheme—Whether bank entitled to reinstatement of bond.

Payment - What constitutes—Payment by third party may discharge debt even if payment made in furtherance of fraudulent scheme.

MAKHWELO v MINISTER OF SAFETY AND SECURITY GJ)

SPILG J
2015 FEBRUARY 3

State - Actions by or against—Actions against—Notice—To be served within six months of debt sued on becoming due—Unlawful arrest and detention—When debt due—Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002, s 3(2).

BALISO v FIRSTRAND BANK LTD t/a WESBANK (CC)

MOGOENG CJ, MOSENEKE DCJ, BOSIELO AJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MHLANTLA J, NKABINDE J and ZONDO J
2016 MARCH 8; AUGUST 4
[2016] ZACC 23

Credit agreement - Consumer credit agreement—Debt enforcement—Preliminary procedures—Instalment agreement—Surrender of goods—Notices credit provider required to send to consumer—Notice of estimated value of goods surrendered under instalment sale agreement—Method of delivery—Majority acknowledging merits of requiring registered mail but not deciding issue; minority deciding registered mail required—National Credit Act 34 of 2005, s 127(2).

Credit agreement - Consumer credit agreement—Debt enforcement—Preliminary procedures—Instalment agreement—Surrender of goods—Notices credit provider required to send consumer—Notice of estimated value of goods surrendered under instalment sale agreement—Proof of delivery—Probable receipt by reasonable consumer required—In opposed matters this determined by way of evidence at trial—National
Credit Act 34 of 2005, ss 127(2), 130(3)(a).

EDWARDS v FIRSTRAND BANK LTD t/a WESBANK (SCA)

CACHALIA JA, SHONGWE JA, TSHIQI JA, SERITI JA and MAKGOKA AJA
2016 SEPTEMBER 1, 30
[2016] ZASCA 144

Credit agreement - Consumer credit agreement—Debt enforcement—Preliminary procedures—Instalment agreement—Surrender of goods—Notices credit provider required to send to consumer—Notice requirements only applicable where surrender voluntary, not if consumer in default, or instalment agreement cancelled or goods attached—National Credit Act 34 of 2005, ss 127(2), 127(5) and 131.

Credit agreement - Consumer credit agreement—Debt enforcement—Preliminary procedures—Instalment agreement—Surrender of goods—Notices credit provider required to send to consumer—Method of delivery—May be advisable to send by registered mail but not required—Adequate proof of delivery—What constitutes—National Credit Act 34 of 2005, ss 127(2), 127(5).

 

 SOUTH AFRICAN CRIMINAL LAW REPORTS
 TABLE OF CASES
 
  • S v Mhlongo 2016 (2) SACR 611 (SCA)
  • S v Lourens 2016 (2) SACR 624 (WCC)
  • S v Sheldon-Lakey 2016 (2) SACR 632 (NWM)
  • S v Nteta and Others 2016 (2) SACR 641 (WCC)
  • S v Matshaba 2016 (2) SACR 651 (NWM)
  • Dlamini v Minister of Safety and Security 2016 (2) SACR 655 (GJ)
  • Nogwebele v Minister of Police and Another 2016 (2) SACR 662 (WCC)
  • Mogale and Others v Minister of Safety and Security and Others 2016 (2) SACR 682 (GP)
  • S v Jimmale and Another 2016 (2) SACR 691 (CC)
  • S v Porritt and Another 2016 (2) SACR 700 (GJ)
  • S v De Jager and Others 2016 (2) SACR 716 (ECG)
  • S v Tafeni 2016 (2) SACR 720 (WCC)

 

 FLYNOTES
 

S v MHLONGO (SCA)

BOSIELO JA, SWAIN JA, ZONDI JA, MOCUMIE JA and DLODLO AJA
2016 AUGUST 24; OCTOBER 3
[2016] ZASCA 152

Sentence - Imprisonment—Term of—Non-parole period—Section 276B of Criminal Procedure Act 51 of 1977—Imposition of—Accused to be given notice of court’s intention to invoke provision and had to be heard before such period imposed—Court obliged to give reasons for order.

Rape - Sentence—Evidence to be led by state on sentence—Essential that state acquires victim-impact statement.

S v LOURENS (WCC)

HENNEY J and SAVAGE J
2016 MAY 13

Traffic offences - Driving under influence of liquor—Contravention of s 65(1) of National Road Traffic Act 93 of 1996—Sentence—Suspension of driver’s licence—Circumstances to be taken into account—Include personal circumstances of accused and interests of community.

S v SHELDON-LAKEY (NWM)

KGOELE J and GURA J
2016 MAY 20; JULY 14

Sexual offences - Sexual intercourse with boy child under age of 16 years—Contravention of s 15(1) of Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007—Sentence—Thirty-nine-year-old married woman in educator–learner relationship with boy whom she was supposed to be counselling—Sexual intercourse occurring on more than one occasion—Sentence of four years’ imprisonment confirmed on appeal.

S v NTETA AND OTHERS (WCC)

HENNEY J
2016 MAY 30; JULY 22

Child - Sentence—Generally—When accused to be treated as child for purposes of Child Justice Act 75 of 2008—Required to have been under age of 18 at time of commission of offence as well as at time of arrest.

S v MATSHABA (NWM)

GUTTA J and DJAJE AJ
2016 AUGUST 19; SEPTEMBER 1

Evidence - Expert evidence—DNA analysis—Presentation of such evidence—Chain of handling of samples from collection to analysis to be properly presented.

DLAMINI v MINISTER OF SAFETY AND SECURITY (GJ)

VAN OOSTEN J, ISMAIL J and MONAMA J
2016 JUNE 1

Arrest - Without warrant—Legality of—Arresting officer in possession of sworn statement made by complainant to colleague in domestic-violence matter—Complainant confirmed allegations to him and identified husband—Allegation of assault partly borne out by fact that complainant limping—Arresting officer not required to conduct further investigation at couple’s home in order to verify allegations before arresting.

NOGWEBELE v MINISTER OF POLICE AND ANOTHER (WCC)

HENNEY J
2016 FEBRUARY 23; MAY 12

Arrest - Procedure after arrest—Further detention after court appearance—Whether further detention amounting to malicious prosecution where matter withdrawn because child rape victim was insufficiently mature to testify—This not amounting to withdrawal on merits or acquittal—Eminently reasonable procedure adopted by prosecution in circumstances—Not amounting to malicious prosecution.

MOGALE AND OTHERS v MINISTER OF SAFETY AND SECURITY AND OTHERS (GP)

BERTELSMANN J, MOTHLE J and PRELLER J
2015 SEPTEMBER 18

Search and seizure - Search warrant—Warrants in terms of s 21 of Criminal Procedure Act 51 of 1977—Application for—Supporting affidavit—Attestation of—Commissioners of oaths to satisfy themselves of identity of deponent and that person who signs as deponent actually swears to affidavit—Deponents must therefore sign affidavit in commissioner’s presence—Failure to fulfil such requirement may lead to potential abuse—Justices of the Peace and Commissioners of Oaths Act 16 of 1963, ss 2–5 and 7.

Search and seizure - Search warrant—Validity of—Warrants in terms of s 21 of Criminal Procedure Act 51 of 1977—Affidavit in support of application for search warrant signed by deponent before it was presented to commissioner of oaths—Commissioner therefore not witnessing signing of affidavit—Defect could not be condoned, as there had been no substantial compliance with statutory formalities—Warrants invalid and set aside—Criminal Procedure Act 51 of 1977, s 21; Justices of the Peace and Commissioners of Oaths Act 16 of 1963, ss 2–5 and 7.

S v JIMMALE AND ANOTHER (CC)

MOGOENG CJ, MOSENEKE DCJ, BOSIELO AJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MHLANTLA J, NKABINDE J and ZONDO J
2016 AUGUST 30
[2016] ZACC 27

Sentence - Imprisonment—Non-parole period—Section 276B of Criminal Procedure Act 51 of 1977—Imposition of—Not to be resorted to lightly and not without inviting oral argument—Relevant factors justifying order to be properly proved.

S v PORRITT AND ANOTHER (GJ)

SPILG J
2016 JULY 7, 28

Trial - Centralisation—Application for—On grounds that discomfort and expenditure of lengthy trial at centre far from accused’s home would infringe fair-trial rights—Accused not satisfying court that their inability to prepare property for trial would amount to infringement of their rights—Application dismissed.

S v DE JAGER AND OTHERS (ECG)

SANDI J and BESHE J
2014 AUGUST 13; 2016 SEPTEMBER 27

Culpable homicide - Negligence—What constitutes—Child dying when brick wall collapsed after crowd stormed out of pavilion when accused threw bottles—Reasonable man would not have foreseen that death would result as consequence of bottle-throwing.

S v TAFENI (WCC)

BINNS-WARD J and RILEY AJ
2015 OCTOBER 16

Sentence - Prescribed minimum sentences—Criminal Law Amendment Act 105 of 1997—Substantial and compelling circumstances—Power of appellate court to interfere with finding by trial court on existence of such circumstances—Position analogous to discretion of court to grant interdictory relief—Court not restricted from interfering only if able to identify material misdirection or failure of exercise of discretion.

 

 BOTSWANA LAW REPORTS 2013 (1)
 TABLE OF CASES
   
  • AT & T Monnakgotla Transport (Pty) Ltd and Another v Ositang [2013] 1 BLR 319 (CA)
  • African Banking Corporation Botswana (Pty) Ltd v Jobtrans and Plant Hire (Pty) Ltd and Others [2013] 1 BLR 421 (HC)
  • Attorney-General v Botswana Landboards and Local Authorities Workers' Union and Others [2013] 1 BLR 432 (CA)
  • BIFM Capital Investment Fund One (Pty) Ltd v Botswana Building Society [2013] 1 BLR 130 (CA)
  • Babapatsi Nataya Outdoor (Pty) Ltd v Gaborone City Council and Another [2013] 1 BLR 557 (HC)
  • Baliki v Botswana Power Corporation [2013] 1 BLR 87 (HC)
  • Bareeleng v Bareeleng and Others [2013] 1 BLR 31 (HC)
  • Bolele v Botswana Council of Non-Governmental Organisations [2013] 1 BLR 196 (CA)
  • Botshelo v Gopane [2013] 1 BLR 26 (HC)
  • Botswana Landboards and Local Authorities Workers' Union and Others v Director of Public Service Management and Another [2013] 1 BLR 373 (CA)
  • Botswana Postal Services and Others v Bosekeng [2013] 1 BLR 402 (HC)
  • Botswana Railways Amalgamated Workers' Union v Botswana Railways [2013] 1 BLR 59 (IC)
  • Brand Leadership Group (Pty) Ltd v University of Botswana [2013] 1 BLR 80 (HC)
  • Central District Council v Motlhabane [2013] 1 BLR 187 (CA)
  • Citizen Entrepeneurial Development Agency v Moumakwa [2013] 1 BLR 325 (CA)
  • Conferred (Proprietary) Limited v Botswana Building Society and Others [2013] 1 BLR 481 (HC)
  • Coyne v Ministry of Lands and Housing and Another [2013] 1 BLR 579 (IC)
  • Crocick Development (Pty) Ltd v Pak Galaxy Enterprises (Pty) Ltd [2013] 1 BLR 36 (HC)
  • Debswana Diamond Company (Pty) Ltd v Kgosidiile and Another [2013] 1 BLR 759 (HC)
  • Debswana Diamond Mining Company v Toto [2013] 1 BLR 167 (CA)
  • Directorate of Public Prosecutions and Another v Universal Builders (Botswana) (Pty) Ltd and Other [2013] 1 BLR 54 (CA)
  • Enviro Homes (Pty) Ltd t/a ADM v Citizen Entrepreneurial Development Agency (CEDA) [2013] 1 BLR 622 (HC)
  • Export Credit Insurance and Guarantee Company (Botswana) (Pty) Ltd v Dawson and Frazer Mechanical Contractors (Pty) Ltd and Another [2013] 1 BLR 520 (HC)
  • GDC (Pty) Ltd v Engliton [2013] 1 BLR 632 (CA)
  • Gaborone Academy of Law v Attorney-General [2013] 1 BLR 539 (HC)
  • Gaborone City Council v Continental Outdoor Media Botswana (Pty) Ltd [2013] 1 BLR 192 (CA)
  • Gaegopolwe v Attorney-General and Others [2013] 1 BLR 717 (HC)
  • Gaopotlake v Moolman Botswana [2013] 1 BLR 781 (IC)
  • Geche v The State [2013] 1 BLR 356 (HC)
  • Gorosang v The State [2013] 1 BLR 91 (CA)
  • Herbest and Another v Lobatse Town Council [2013] 1 BLR 763 (HC)
  • Hirschfeldt v Moipolai and Another [2013] 1 BLR 362 (HC)
  • Kejafela v Mine-Tech [2013] 1 BLR 71 (IC)
  • Kesiilwe v Attorney-General and Another [2013] 1 BLR 551 (HC)
  • Kgafela and Others v The State [2013] 1 BLR 1 (HC)
  • Kgalagadi Land Board and Others v Moseletsane Syndicate [2013] 1 BLR 743 (HC)
  • Kgosi v Botswana Housing Corporation and Another [2013] 1 BLR 43 (HC)
  • Kooepile v Kooepile and Another [2013] 1 BLR 249 (HC)
  • Law Society of Botswana v Mutoriti [2013] 1 BLR 337 (CA)
  • Leitshamo v Botswana Railways [2013] 1 BLR 642 (IC)
  • Lesole v The State [2013] 1 BLR 112 (CA)
  • Letsholo v Kwena Rocla (Pty) Ltd and Another [2013] 1 BLR 266 (HC)
  • Lodges of Botswana (Pty) Ltd v Tawana Land Board and Another [2013] 1 BLR 144 (CA)
  • Mabua v Lesole [2013] 1 BLR 428 (HC)
  • Mabutho v Mulale [2013] 1 BLR 659 (CA)
  • Magamole v Capital Bank Limited [2013] 1 BLR 713 (HC)
  • Makhaya v Gofetile and Another [2013] 1 BLR 69 (HC)
  • Makuku v Director of Public Prosecutions [2013] 1 BLR 20 (HC)
  • Malikongwa v Guaranteed Loans Insurance Fund and Others [2013] 1 BLR 563 (HC)
  • Manyengengwa and Another v Rhino Security [2013] 1 BLR 599 (IC)
  • Marokane and Others v Kereng [2013] 1 BLR 314 (CA)
  • Martey v Attorney-General and Others [2013] 1 BLR 773 (HC)
  • Masunga v Attorney-General of Botswana and Another [2013] 1 BLR 670 (CA)
  • Matlapeng v Screen Print/The Frame Gallery [2013] 1 BLR 368 (IC)
  • Mayanja v Mayanja [2013] 1 BLR 49 (HC)
  • Mmereki v The State [2013] 1 BLR 618 (CA)
  • Moalosi and Six Others v Thrust Bore Botswana (Pty) Ltd [2013] 1 BLR 500 (IC)
  • Mojadibodu v Maoto and Seven Others [2013] 1 BLR 702 (HC)
  • Mokgethisi v The State [2013] 1 BLR 605 (HC)
  • Molebatsi v The State [2013] 1 BLR 231 (CA)
  • Molefe v Attorney-General [2013] 1 BLR 353 (HC)
  • Moruisi v The State [2013] 1 BLR 340 (CA)
  • Morupisi v Morupisi [2013] 1 BLR 514 (HC)
  • Moseki v The State [2013] 1 BLR 117 (CA)
  • Motsumi and Others v Botswana Defence Force and Another [2013] 1 BLR 588 (HC)
  • Mukokomani v Selibe Phikwe Town Council and Another [2013] 1 BLR 153 (CA)
  • Nare v The State [2013] 1 BLR 584 (HC)
  • Nkhori v Sebi [2013] 1 BLR 285 (HC)
  • North West District Council v Vlug and Another [2013] 1 BLR 311 (HC)
  • Ntime v Cresta Marakanelo (Pty) Ltd [2013] 1 BLR 748 (HC)
  • Ntshole (nee Rampete) v Ntshole and Another [2013] 1 BLR 753 (HC)
  • Odumetse v The State [2013] 1 BLR 299 (HC)
  • P A (Pty) Ltd v Phakalane Property Development and Others [2013] 1 BLR 209 (CA)
  • P A (Pty) Ltd v Phakalane Property Development and Others [2013] 1 BLR 47 (CA)
  • Palmer and Sons Transport (Pty) Ltd and Another v Tiphe Transport Holdings (Pty) Ltd and Others [2013] 1 BLR 221 (CA)
  • Pandor v Botswana Police and Others [2013] 1 BLR 469 (HC)
  • Phakalane Estates (Pty) Ltd v Mankanku and Others [2013] 1 BLR 398 (HC)
  • Pheto v Cashbuild Botswana (Pty) Ltd [2013] 1 BLR 724 (IC)
  • Ramolatlhwa v Ramolatlhwa [2013] 1 BLR 14 (HC)
  • Ramosu v Mesotlho and Another [2013] 1 BLR 201 (CA)
  • Rantshime v Daily Needs Supermarket [2013] 1 BLR 241 (IC)
  • Rapekenene v Attorney-General [2013] 1 BLR 507 (HC)
  • Ratsiripe v Khumomatlhare and Others [2013] 1 BLR 289 (IC)
  • Runicta Engineering (Pty) Ltd v Garrick Operations (Pty) Ltd [2013] 1 BLR 568 (HC)
  • Sainsbury v Nunga Conservation Group Botswana (Pty) Ltd and Another [2013] 1 BLR 179 (CA)
  • Samuel v The State [2013] 1 BLR 102 (CA)
  • Sefhako v Filotto Falco Security [2013] 1 BLR 769 (IC)
  • Segadimo v Attorney-General [2013] 1 BLR 706 (HC)
  • Sibanda and Others v Chobe Chilwero [2013] 1 BLR 251 (IC)
  • State v Gaborekwe [2013] 1 BLR 406 (HC)
  • State v Segereise [2013] 1 BLR 39 (HC)
  • Tati Motors (Pty) Ltd t/a 9 Miles Service Station v BP Botswana (Pty) Ltd; In Re Tati Motors (Pty) Ltd t/a 9 Miles Service Station v BP Botswana (Pty) Ltd [2013] 1 BLR 493 (HC)
  • Thito v Mon Group (Pty) Ltd and Another [2013] 1 BLR 235 (HC)
  • Thokamolemo v The State [2013] 1 BLR 678 (CA)
  • Thompson v Law Society of Botswana [2013] 1 BLR 328 (CA)
  • Tlhakodisele v Motsomi [2013] 1 BLR 414 (HC)
  • Trojan Security Services (Pty) Ltd v C Coombs (Pty) Ltd t/a Richmark Poultry [2013] 1 BLR 216 (CA)
  • Tshimologo v Segobai [2013] 1 BLR 696 (HC)
  • Watson v Vibration Auto Clinic [2013] 1 BLR 543 (IC)
  • Were v The State [2013] 1 BLR 344 (HC)

 

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