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December 2013

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases of interest in the December reports.

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

SOUTH AFRICAN LAW REPORTS

Satellite signal radiates over the border

This interesting case looks at whether the requirements for delict had been met when a satellite signal carrying TV channels spilled across the border into a neighbouring country and it was claimed that this caused the local TV station to lose viewers to its own channels. eBotswana (Pty) Ltd v Sentech (Pty) Ltd and Others 2013 (6) SA 327 (GSJ)

Was Facebook posting defamatory?

A couple divorced in acrimonious circumstances and were still engaged in litigation after they had both remarried. It was claimed that certain comments posted on Facebook were defamatory. That there had been no apology was considered, as well as whether the plaintiff had been identified in the posting and the extent of the harm, including that some of the defendant’s friends had added their own snide comments. Isparta v Richter and Another 2013 (6) SA 529 (GNP)

Important judgement on practice: a new cause of action

The original rule that a cause of action should exist at the time of its institution has over time been relaxed by the courts. A plaintiff may—in absence of objection by the defendant—amend its summons to disclose a new cause of action. Zeta Property Holdings (Pty) Ltd v Lefatshe Technologies (Pty) Ltd  2013 (6) SA 630 (GSJ)

SOUTH AFRICAN CRIMINAL LAW REPORTS

Vengeance arson attack gets life sentence

The accused, a mother of two, set fire to the shack in which her former lover and his girlfriend were sleeping, killing the man and maiming the woman. This was not a crime of passion, but a revenge attack that had been planned ahead. No substantial and compelling circumstances were found and life sentence was imposed. S v Mgibelo  2013 (2) SACR 559 (GSJ)

The constitutionality of the sexual offences register

Section 50(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 is invalid and inconsistent with the Constitution, in so far as it does not allow the court to inquire and decide, after affording the accused an opportunity to make representations, whether or not the particulars of the accused should be included in the National Register for Sexual Offenders. S v IJ  2013 (2) SACR 599 (WCC)

Crime spree sentence induces sense of shock

A gang went on a crime spree of robberies, kidnapping, murder and attempted murder, in which they had used blue lights and military uniforms. A cumulative sentence of 50 years was imposed on the accused and the question arose of the severity of the cumulative sentence: whether such sentence induced a sense of shock. S v Mahlatsi   2013 (2) SACR 625 (GNP)

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SOUTH AFRICAN LAW REPORTS

TABLE OF CASES

  • Land and Agricultural Development Bank of SA v Ryton Estates (Pty) Ltd and Others 2013 (6) SA 319 (SCA)

  • eBotswana (Pty) Ltd v Sentech (Pty) Ltd and Others 2013 (6) SA 327 (GSJ)

  • Radon Projects (Pty) Ltd v NV Properties (Pty) Ltd and Another 2013 (6) SA 345 (SCA)

  • South African National Roads Agency Ltd v Toll Collect Consortium 2013 (6) SA 356 (SCA)

  • Mail & Guardian Media Ltd and Others v Chipu NO and Others 2013 (6) SA 367 (CC)

  • Competition Commission v Yara (SA) (Pty) Ltd and Others 2013 (6) SA 404 (SCA)

  • Minister of Home Affairs and Others v Scalabrini Centre and Others 2013 (6) SA 421 (SCA)

  • Phillips v SA Reserve Bank and Others 2013 (6) SA 450 (SCA)

  • African Banking Corporation of Botswana Ltd v Kariba Furniture Manufacturers (Pty) Ltd and Others 2013 (6) SA 471 (GNP)

  • Caesarstone Sdot-Yam Ltd v World of Marble and Granite 2000 CC and Others 2013 (6) SA 499 (SCA)

  • Dexgroup (Pty) Ltd v Trustco Group International (Pty) Ltd and Others 2013 (6) SA 520 (SCA)

  • Isparta v Richter and Another 2013 (6) SA 529 (GNP)

  • Blue Star Holdings (Pty) Ltd v West Coast Oyster Growers CC 2013 (6) SA 540 (WCC)

  • CA Focus CC v Village Freezer t/a Ashmel Spar 2013 (6) SA 549 (SCA)

  • MV Alina II, Transnet Ltd v: MV Alina II 2013 (6) SA 556 (WCC)

  • Old Mutual Life Assurance Co (SA) Ltd v Simtrade 4 CC t/a OBC Chicken and Others 2013 (6) SA 571 (GSJ)

  • Fourie and Another NNO v Edkins 2013 (6) SA 576 (SCA)

  • MEC for Education, Gauteng Province, and Others v Governing Body, Rivonia Primary School and Others 2013 (6) SA 582 (CC)

  • SH v GF and Others 2013 (6) SA 621 (SCA)

  • Zeta Property Holdings (Pty) Ltd v Lefatshe Technologies (Pty) Ltd 2013 (6) SA 630 (GSJ)

FLYNOTES

LAND AND AGRICULTURAL DEVELOPMENT BANK OF SA v RYTON ESTATES (PTY) LTD AND OTHERS (SCA)

BRAND JA, THERON JA, MAJIEDT JA, VAN DER MERWE AJA and MBHA AJA

2013 MAY 20; SEPTEMBER 13

InterestA tempore morae—Interest on unpaid interest—Unless parties agreed otherwise, debtor who is in mora in regard to contractual obligation to pay interest, is liable for payment of mora interest on unpaid interest calculated at prescribed rate.


eBOTSWANA (PTY) LTD v SENTECH (PTY) LTD AND OTHERS (GSJ)

SPILG J

2013 NOVEMBER 12

Delict—Elements—Unlawfulness or wrongfulness—Liability for omission—Failure to securely encrypt satellite signal—Satellite signal carrying SABC’s television channels spilling into Botswana and drawing Botswana viewers from eBotswana’s channels—Loss of viewers equating to loss of revenue for eBotswana—Signal provider failing to securely encrypt signal—Such wrongful. 


RADON PROJECTS (PTY) LTD v NV PROPERTIES (PTY) LTD AND ANOTHER (SCA)

NUGENT JA, LEACH JA, PILLAY JA, ERASMUS AJA and SALDULKER AJA

2013 MAY 14, 31

Engineering and construction—Building contract—Dispute resolution—Adjudication or arbitration—Whether adjudication or arbitration appropriate depending on whether dispute submitted for resolution before or after date of practical completion—Date of genesis of dispute irrelevant—JBCC Principal Building Contract 2004 (4 ed), clause 40.

Engineering and construction—Building contract—Dispute resolution—Arbitration—Jurisdiction of arbitrator—Fact that dispute arose before date of practical completion of works no bar to its resolution by arbitration—Nor is fact that party might have good defence to claim being made—JBCC Principal Building Contract 2004 (4 ed), clause 40.

Arbitration—Arbitrator—Jurisdiction—Challenge to jurisdiction—Duty of arbitrator—Not ipso facto obliged to withdraw from matter—Arbitrators entitled to enquire into scope of their jurisdiction to satisfy themselves that arbitration may continue—Must exercise sound judgment based on view of strength of objection and circumstances of case. 


SOUTH AFRICAN NATIONAL ROADS AGENCY LTD v TOLL COLLECT CONSORTIUM (SCA)

NUGENT JA, BOSIELO JA, WALLIS JA, PETSE JA and SWAIN AJA

2013 SEPTEMBER 12

Government procurement—Procurement process—Evaluation of tenders—Transparency and objectivity standards—What constitutes—No need to disclose basis for evaluation.  


MAIL & GUARDIAN MEDIA LTD AND OTHERS v CHIPU NO AND OTHERS (CC)

MOGOENG CJ, MOSENEKE DCJ, FRONEMAN J, JAFTA J, KHAMPEPE J, NKABINDE J, SKWEYIYA J, ZONDO J, MHLANTLA AJ and BOSIELO AJ

2013 MAY 14; SEPTEMBER 27

Constitutional law—Legislation—Validity—Refugees Act 130 of 1998, s 21(5) —Absolute confidentiality of asylum applications and information contained therein—Provision limiting right to freedom of expression in manner not justifiable in terms of Constitution, s 36—Declaration of invalidity suspended for two years to allow parliament opportunity to rectify defect—Interim order made that, until rectification, Refugee Appeal Board afforded discretion to allow public and media access to its proceedings in appropriate cases—Constitution, ss 16(1)(a) and (b); and s 36(1).  


COMPETITION COMMISSION v YARA (SA) (PTY) LTD AND OTHERS (SCA)

BRAND JA, NUGENT JA, MALAN JA, PETSE JA and SALDULKER JA

2013 AUGUST 19; SEPTEMBER 13

Competition—Competition Commission—Complaint procedures—Initiation of complaint—Requirements—Initiation may be informal and even tacit—Where referral to tribunal embodying new complaints not covered by complaint submitted by complainant—Enquiry being whether new complaints in fact initiated by commission—Competition Act 89 of 1998, s 49B(1) and 49B(2)(b)


MINISTER OF HOME AFFAIRS AND OTHERS v SCALABRINI CENTRE AND OTHERS (SCA)

NUGENT JA, LEWIS JA, THERON JA, WALLIS JA and WILLIS JA

2013 SEPTEMBER 3, 27

Administrative law—Administrative action—What constitutes—Decision to close Refugee Reception Office—Such not administrative action, but rather policy decision—Refugees Act 130 of 1998, s 8(1).

Administrative law—Administrative action—What constitutes—Requirement that decision be of an administrative nature—Whether decision is of such nature can be gauged by extent to which it is driven by considerations of executive policy.

Review—Grounds—Rationality—Executive decision—Whether rational relation of decision to purpose of legislative provision—Factual inquiry involving measure of judgment.

Review—Grounds—Rationality—Process preceding decision—SCA endorsing high court’s finding that failure to consult interested parties rendering decision unlawful.  


PHILLIPS v SA RESERVE BANK AND OTHERS (SCA)

MTHIYANE DP, FARLAM JA, MAJIEDT JA, PETSE AJA and NDITA AJA

2012 MARCH 2, 29

Appeal—Appealability—Generally—Classification of order as final or interim not determinative of its appealability—Court to balance need to promptly correct wrong decision against delay and inconvenience resulting from situation where every decision subject to appeal—Relevant factors set out.

Appeal—Appealability—Costs order—Costs occasioned by postponement—Order that party pay costs occasioned by postponement resulting from failure to give notice in compliance with rule 16A of Uniform Rules—Order appealable.

Constitutional practice—Challenge to constitutionality of section of statute—Notice to court—Procedure for meeting requirements of rule 16A of Uniform Rules.  


AFRICAN BANKING CORPORATION OF BOTSWANA LTD v KARIBA FURNITURE MANUFACTURERS (PTY) LTD AND OTHERS (GNP)

KATHREE-SETILOANE J

2013 AUGUST 29

Company—Business rescue—Business rescue plan—Failure to adopt—‘Binding offer’ to purchase voting interest of one or more persons opposing its adoption—Meaning of ‘binding offer’—Not used in contractual sense—Act envisaging set of statutory rights and obligations from which neither party may resile—Such offer binding on both offeror and offeree once made, failure or refusal to accept it being of no consequence—Companies Act 71 of 2008, s 153(1)(b)(ii).

Constitutional law—Human rights—Right to property—What constitutes property—Both right to claim payment from debtor and right to vote at statutory meeting convened for voting on business rescue plan in terms of Companies Act 71 of 2008, s 153(1)(b)(ii), constitute ‘property’ within the meaning of Constitution, s 25(1).

Constitutional law—Legislation—Validity—Companies Act 71 of 2008, s 153(1)(b)(ii)—Deprivation of voting rights by deemed acceptance of ‘binding offer’ to purchase voting interest of one or more persons opposing adoption of business rescue plan—Such deprivation not arbitrary, serving compelling and legitimate government purpose and being accompanied by compensation—Constitutional challenge to s 153(1)(b)(ii) unsuccessful—Constitution, s 25


CAESARSTONE SDOT-YAM LTD v WORLD OF MARBLE AND GRANITE 2000 CC AND OTHERS (SCA)

MTHIYANE AP, MAYA JA, THERON JA, WALLIS JA and VAN DER MERWE AJA

2013 SEPTEMBER 16, 26

Practice—Stay of proceedings—Grounds—Lis alibi pendens—Requirements—Same parties—Not required that same plaintiff sue same defendant in both proceedings.

Practice—Stay of proceedings—Grounds—Lis alibi pendens—Requirements—Same cause of action—Requirement may be relaxed, if circumstances justify this, to requirement that central issue be same in both proceedings.

Practice—Stay of proceedings—Grounds—Lis alibi pendens—Requirements—Same relief—Requirement can be relaxed where circumstances support doing so.

Practice—Stay of proceedings—Grounds—Lis alibi pendens—Court’s discretion to decline stay—Even where requirements of plea met, court retaining discretion to decline to grant stay of proceedings.


DEXGROUP (PTY) LTD v TRUSTCO GROUP INTERNATIONAL (PTY) LTD AND OTHERS (SCA)

PONNAN JA, MALAN JA, MAJIEDT JA, WALLIS JA and PILLAY JA

2013 SEPTEMBER 10, 20

Arbitration—Procedure—Evidence—Arbitrator not obliged to follow rules of evidence—But this subject to terms of arbitration agreement and to proviso that procedure followed be fair and in conformity with requirements of natural justice.


ISPARTA v RICHTER AND ANOTHER (GNP)

HIEMSTRA AJ

2013 AUGUST 30

Defamation—What constitutes—Facebook posting—Plaintiff alleging that disparaging and malicious comments posted by defendants on her Facebook wall—Whether comments reasonably identifying plaintiff as person defamed—Court finding that plaintiff clearly attacked by comments—Comments found to be individually and collectively defamatory.

Defamation—Damages—Assessment—Facebook posting—Disparaging and malicious comments posted on plaintiff’s Facebook wall—Combined effect of comments on reputation of plaintiff considered—No apology or retraction by defendants—Award of R40 000 appropriate in circumstances.


BLUE STAR HOLDINGS (PTY) LTD v WEST COAST OYSTER GROWERS CC (WCC)

GAMBLE J

2013 JULY 30; AUGUST 1, 8, 23

Company—Business rescue—Application—When made—Such made when lodged with registrar for issuing—Companies Act 71 of 2008, s 131(6).  


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

CACHALIA JA, LEACH JA, MAJIEDT JA, PETSE JA and WILLIS JA

2013 SEPTEMBER 16, 27

Close corporation—Deregistration—Restoration to register—Effect—Summons issued while corporation was deregistered is valid—Close Corporations Act 69 of 1984, s 26(7).


MV ALINA II TRANSNET LTD v MV ALINA II (WCC)

GOLIATH J

2013 MAY 21; SEPTEMBER 5

Arbitration—Confidentiality—Whether arbitral materials subject to disclosure—Arbitration proceedings private but not necessarily confidential—Application for disclosure of materials in foreign arbitration arising from same incident—Respondent electing to make partial disclosure—Failing to show that full disclosure would result in prejudice—Interests of justice overriding private claim to confidentiality—Full disclosure ordered.


OLD MUTUAL LIFE ASSURANCE CO (SA) LTD v SIMTRADE 4 CC t/a OBC CHICKEN AND OTHERS (GSJ)

POTGIETER AJ

2012 DECEMBER 14

Practice—Judgments and orders—Summary judgment—Verifying affidavit—Requirement that deponent able to swear positively to facts—Employee of property manager acting for applicant deposing to affidavit—Deponent to set out details of how she acquired personal knowledge of facts. 


FOURIE AND ANOTHER NNO v EDKINS (SCA)

MTHIYANE AP, MAYA JA, SHOWGWE JA, TSHIQI JA and ZONDI AJA

2013 AUGUST 19; SEPTEMBER 19

Insolvency—Voluntary surrender—Execution—Prohibition against sale in execution of property in respect of which notice of surrender published—Court would validate transfer of property only in special circumstances and if in interest of body of creditors—Insolvency Act 24 of 1936, ss 4(1), 20(1)(c) and 20(2)(a).


MEC FOR EDUCATION, GAUTENG PROVINCE, AND OTHERS v GOVERNING BODY, RIVONIA PRIMARY SCHOOL AND OTHERS (CC)

MOSENEKE DCJ, FRONEMAN J, JAFTA J, KHAMPEPE J, NKABINDE J, SKWEYIYA J, ZONDO J, MHLANTLA AJ and BOSIELO AJ

2013 MAY 9; OCTOBER 3

Education—School—Public school—Learners—Determination of capacity of school—Provincial head of department (HOD) may override governing body’s admission policy—Decision to do so administrative action and therefore to be reasonable and procedurally fair—Also, in keeping with constitutional and statutory obligation on all role players to cooperate in resolving school-based disputes, HOD must engage with governing body in making such decision—Constitution, s 29(1); South African Schools Act 84 of 1996, s 5(5). 


SH v GF AND OTHERS (SCA)

MTHIYANE AP, THERON JA, PETSE JA, VAN DER MERWE AJA and ZONDI AJA

2013 SEPTEMBER 10, 30

Marriage—Divorce—Maintenance—Contempt of court arising out of failure to pay maintenance in terms of agreement of settlement—Oral variation of agreement of settlement not established and in any event unenforceable as result of non-variation clause—No reason to interfere with exercise of discretion of court a quo in respect of sanction.


ZETA PROPERTY HOLDINGS (PTY) LTD v LEFATSHE TECHNOLOGIES (PTY) LTD (GSJ)

MUNDELL AJ

2013 JULY 31

Practice—Pleadings—Amendment—Summons—Introduction of new cause of action where original summons lacked one—Rule that cause of action should exist at time of its institution having been relaxed over time—Summons may, in absence of objection by defendant, be amended to disclose new cause of action.


SOUTH AFRICAN CRIMINAL LAW REPORTS

TABLE OF CASES

  • S v Mgibelo 2013 (2) SACR 559 (GSJ)

  • Minister of Correctional Services and Another v Johnson NO and Others 2013 (2) SACR 565 (GNP)

  • National Director of Public Prosecutions v Cunningham and Others 2013 (2) SACR 580 (WCC)

  • S v Ramone 2013 (2) SACR 596 (FB)

  • S v IJ 2013 (2) SACR 599 (WCC)

  • S v Mahlatsi 2013 (2) SACR 625 (GNP)

  • Mashilo and Another v Prinsloo 2013 (2) SACR 648 (SCA)

  • S v Malan 2013 (2) SACR 655 (WCC)

  • S v Dials 2013 (2) SACR 665 (GNP)

FLYNOTES

S v MGIBELO (GSJ)

MUDAU AJ

2013 MAY 14–17, 20–21, 23, 27, 29, 31; JUNE 6, 13, 20

Sentence—Prescribed sentences—Minimum sentence—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—‘Substantial and compelling circumstances’—Crime of passion—What constitutes—Accused planned over period of 16 hours to deliberately set fire to shack where deceased (her former lover) and his girlfriend were sleeping—Not crime of passion—No substantial and compelling circumstances present.

 

MINISTER OF CORRECTIONAL SERVICES AND ANOTHER v JOHNSON NO AND OTHERS (GNP)

MAKGOBA J, FABRICIUS J and HUGHES AJ

2013 MAY 29; JUNE 12

Sentence—Correctional supervision—Conversion of imprisonment into correctional supervision in terms of s 276A(3) of Criminal Procedure Act 51 of 1977—Calculation of period to date of release—To be calculated with reference to provisions of s 73(4) of Correctional Services Act 111 of 1998 as at date of conversion of sentence.


NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v CUNNINGHAM AND OTHERS (WCC)

HENNEY J

2013 MARCH 27

Prevention of crime—Restraint order in terms of Prevention of Organised Crime Act 121 of 1998—Over which assets—‘Affected gift’—What constitutes—Property that had been transferred as result of settlement agreement, which formed part of proceeds of crime within meaning of POCA, not insulated from restraint in terms of POCA—Whether recipient of such property or payment received it innocently was not relevant for purposes of POCA.


S v RAMONE (FB)

KRUGER J and MOLOI J

2013 JUNE 27

Drug offences—Dagga—Dealing in contravention of s 5(b) of Drugs and Drug Trafficking Act 140 of 1992—Sentence—Imprisonment without option of fine must be imposed in terms of s 17(e)—Court can suspend that imprisonment, but not give alternative of fine to that imprisonment.


S v IJ (WCC)

FOURIE J, STEYN J and HENNEY J

2013 AUGUST 21

Sexual offences—Sexual offences register established in terms of s 42 of Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007—Particulars of sexual offenders to be entered into register in terms of s 50—Constitutionality of—Section 50(2) invalid and inconsistent with Constitution, in so far as it does not allow court to inquire and decide, after affording accused opportunity to make representations, whether or not particulars of accused should be included in register. 


S v MAHLATSI (GNP)

DE VOS J, LAMPRECHT AJ and PHATUDI AJ

2013 JULY 26

Sentence—Imprisonment—Duration of—Lengthy period of imprisonment—Effective period of 50 years’ imprisonment—Courts should not impose sentences that exceed life imprisonment or 50 years’ imprisonment.


MASHILO AND ANOTHER v PRINSLOO (SCA)

MPATI P, NAVSA JA, NUGENT JA, TSHIQI JA and THERON JA

2012 AUGUST 17; SEPTEMBER 28

Arrest—Detention in terms of s 50 of Criminal Procedure Act 51 of 1977—Whether lawful—Period for which accused may be held—Interpretation of s 50(1)(d)(i)—Extension of period after 48 hours to overcome logistic difficulties and must be viewed with reference to s 35(1) of Constitution.


S v MALAN (WCC)

NDITA J and SCHIPPERS J

2013 FEBRUARY 1; APRIL 30

Fraud—Elements of—Misrepresentation—Failure to pay VAT on transactions where vendor not registered for VAT and, at time when month-to-month contract commenced, there was no expectation that income would exceed VAT threshold—No fraudulent misrepresentation or mens rea proved.

Theft—What constitutes—Withholding of VAT on transactions where vendor not registered for VAT and, at time when month-to-month contract commenced, there was no expectation that income would exceed VAT threshold—No mens rea proved.


S v DIALS (GNP)

STRIJDOM AJ and DOSIO AJ

2013 MAY 28

Housebreaking with intent to steal and theft—Sentence—Lengthy term of imprisonment—Accused, with one previous conviction for theft, convicted of three counts and sentenced to 12 years’ imprisonment—Sentence not inducing sense of shock and confirmed.

 

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