Dear South African Law Reports and Criminal Law Reports subscriber
Herewith the cases of interest in the December reports. Also included below are the table of cases and flynotes.
JUDGMENTS OF INTEREST IN THE DECEMBER EDITIONS OF THE SALR AND THE SACR
Reported in the December issue of the SALR is a judgment where the Constitutional Court decided whether the National Assembly could regulate its business in a manner that denied its members the opportunity of introducing a Bill:
‘Ours is a constitutional democracy that is designed to ensure that the voiceless are heard, and that even those of us who would, given a choice, have preferred not to entertain the views of the marginalised or the powerless minorities, listen.’
Mogoeng CJ in para  of Oriani-Ambrosini v Sisulu, Speaker of the National Assembly 2012 (6) SA 588 (CC)
SOUTH AFRICAN LAW REPORTS
Loss of support claim from unmarried partner
In a claim against the Road Accident Fund, the deceased had been living with the claimant, but had not yet married her. The high court held that a mere promise to marry did not attract any legal obligation on the deceased’s part. What the appeal court had to consider was whether the nature of the relationship between the parties gave rise to a reciprocal duty of support which the law had to protect. Paixão and Another v Road Accident Fund 2012 (6) SA 377 (SCA)
Kamp Staaldraad copyright and public interest issues
Consent to injury in rugby games
SOUTH AFRICAN CRIMINAL LAW REPORTS
Growing dagga and the meaning of 'cultivate'
Proceeds of crime placed in a trust
Right to be informed of minimum sentence
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Hassan and Another v Berrange NO 2012 (6) SA 329 (SCA)
S v Vilakazi 2012 (6) SA 353 (SCA)
Paixão and Another v Road Accident Fund 2012 (6) SA 377 (SCA)
Greeff en Andere v Protection 4U h/a Protect International en Andere 2012 (6) SA 392 (GNP)
Roux v Hattingh 2012 (6) SA 428 (SCA)
Print Media SA v Minister of Home Affairs 2012 (6) SA 443 (CC)
MS v KS 2012 (6) SA 482 (KZP)
City of Cape Town v Hendricks and Another 2012 (6) SA 492 (SCA)
Heese obo Peters v Road Accident Fund 2012 (6) SA 496 (WCC)
Basil Read (Pty) Ltd v Nedbank Ltd and Another 2012 (6) SA 514 (GSJ)
Head, Department of Education, Free State Province v Welkom High School and Another 2012 (6) SA 525 (SCA)
Gungudoo and Another v Hannover Reinsurance Group Africa (Pty) Ltd and Another 2012 (6) SA 537 (SCA)
McCarthy Ltd t/a Budget Rent A Car v Sunset Beach Trading 300 CC t/a Harvey World Travel and Another 2012 (6) SA 551 (GNP)
Absa Bank Ltd v Lombard Insurance Co Ltd 2012 (6) SA 569 (SCA)
Seyffert and Another v FirstRand Bank Ltd t/a First National Bank 2012 (6) SA 581 (SCA)
Oriani-Ambrosini v Sisulu, Speaker of the National Assembly 2012 (6) SA 588 (CC)
Nyathi and Others v Cloete NO and Others 2012 (6) SA 631 (GSJ)
Mobile Telephone Networks (Pty) Ltd v SMI Trading CC 2012 (6) SA 638 (SCA)
HASSAN AND ANOTHER v BERRANGE NO (SCA)
2006 MAY 16, 31Insolvency—Act of insolvency—Attempt to remove property—Semble: Property includes both corporeal and incorporeal property—Insolvency Act 24 of 1936, s 8(d).
S v VILAKAZI (SCA)
2008 MAY 5; SEPTEMBER 2, 3
Criminal procedure—Sentence—Prescribed sentences—Minimum sentence—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—No gradation between ten years’ imprisonment ordinarily prescribed for rape, and life imprisonment prescribed if any one of eight aggravating features present—This situation posing real risk of incongruous and disproportionate sentences being imposed—Incumbent upon court to assess whether prescribed sentence indeed proportionate to particular offence—Prescribed sentences not to be assumed a priori to be either proportionate to offence or, indeed, constitutionally permissible—Notion that prescribed sentence to be imposed in ‘typical’ cases, and departed from only in ‘atypical’ ones, without merit.
Criminal procedure—Sentence—Prescribed sentences—Minimum sentence—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—Rape of girl under the age of 16—Fact that complainant under 16 considered by legislature to warrant imposition of most severe sentence possible—This circumstance, and others set out in Act, indeed aggravating—However, absence of such circumstances also capable of lessening culpability of offender—No suggestion that maximum sentence reserved only for extreme cases—Whether, and to what extent, absence of other aggravating circumstances diminishing offender’s culpability depending upon circumstances of case—In casu no extraneous violence, or threat thereof, and no physical injury other than that inherent in offence—Appellant minimising risk of pregnancy and transmission of disease by using condom—Emotional distress and damage accompanying rape might be extensive even if not manifested overtly—No woman, least of all a child, left unscathed by sexual assault; complainant indeed traumatised—However, evidence revealing nothing more specific than that—Life sentence set aside and sentence of 15 years’ imprisonment imposed.
Criminal procedure—Sentence—Imposition of—Factors to be taken into account—Rape of girl under the age of 16—Once clear that substantial jail term appropriate, questions of whether or not accused married, or employed, or of how many children he had, largely immaterial—However, these questions remaining relevant in assessing whether accused likely to offend again—Fact that appellant having reached age of 30 without any serious brushes with law, and having stable employment and family life, not indicative of inherently lawless character—Sentence of 15 years sufficient to bring home to appellant gravity of offence and to exact sufficient retribution—Making him pay for his crime with remainder of his life grossly disproportionate.
Criminal procedure—Sentence—Imposition of—Factors to be taken into account—At time of sentencing appellant having been incarcerated for just over two years—Unjust if period of imprisonment awaiting trial not brought into account in any subsequent custodial sentence—Accordingly, ordered that sentence to expire two years earlier than would ordinarily have been case.
PAIXAO AND ANOTHER v ROAD ACCIDENT FUND (SCA)
2012 SEPTEMBER 10, 26
Delict—Specific forms—Loss of support—Dependant’s action—Extension—Permanent heterosexual relationships—Common law extended to dependants who established contractual reciprocal duty of support.
GREEFF EN ANDERE v PROTECTION 4U h/a PROTECT INTERNATIONAL EN ANDERE (GNP)
2007 JANUARIE 31–FEBRUARIE 1; MAART 9
Constitutional law—Human rights—Right to dignity—Protection—Application for interdict prohibiting publication of video footage showing Springbok rugby team in humiliating light—Publication would offend against public interest in prestige of team—Publication would also infringe players’ right to privacy—Defence of consent dismissed—Interdict granted.
Intellectual property—Copyright—Work created on commission—‘Commission’ entailing agreement involving obligation to create requested work and corresponding agreement to pay for it—Copyright vesting in commissioner and not author—Copyright Act 98 of 1978, s 21(1)(c).
ROUX v HATTINGH (SCA)
2012 SEPTEMBER 11, 27
Delict—Elements—Unlawfulness or wrongfulness—Introducing measure of control for imposition of liability in novel or borderline situations—Perpetrator’s state of mind (nature of fault) relevant.
Sports and contests—Sports injuries—Delictual liability—Unlawfulness—Perpetrator’s state of mind (nature of fault) relevant—Conduct in contravention of rules of game not automatically resulting in liability for resulting injury—But perpetrator liable where conduct in flagrant contravention of rules and aimed at causing serious injury, or accompanied by full awareness that serious injury may ensue.
Sports and contests—Sports injuries—Delictual liability—Rugby injury—Serious neck injury caused by deliberate implementation of illegal and dangerous manoeuvre during scrumming—Conduct constituting flagrant contravention of rugby rules accompanied by full awareness of seriousness of potential injury—Wrongfulness and hence liability in delict established.
PRINT MEDIA SOUTH AFRICA AND ANOTHER v MINISTER OF HOME AFFAIRS AND ANOTHER (CC)
2012 MARCH 13; SEPTEMBER 28
Constitutional law—Human rights—Right to freedom of expression—Prior restraints on publication—Such constituting serious interference with right, and only permissible in narrow circumstances—Here Act requiring publications containing sexual content to be submitted to board for classification before distribution—Prior classification scheme unjustifiably limiting right—Constitution, s 16; Films and Publications Act 65 of 1996, s 16(2).
MS v KS (KZP)
2012 MARCH 19; APRIL 3
Husband and wife—Divorce—Maintenance for children—Variation of maintenance order—Father seeking reduction in maintenance amount due to reduced salary—Able to save by cutting clothing and entertainment expenses and by temporarily suspending payments on retirement annuity and on family loan—Thus able to sustain maintenance amount—Interests of child paramount—Constitution, s 28(2); Children’s Act 38 of 2005, s 9.
Appeal—Evidence on appeal—Further evidence—Best interests of child—Father seeking reduction of maintenance amount—Mother applying to admit further evidence on appeal, regarding father’s finances—In casu, on particular merits, further evidence allowed in best interests of child—Supreme Court Act 59 of 1959, s 22(a).
CITY OF CAPE TOWN v HENDRICKS AND ANOTHER (SCA)
2012 MAY 10, 31
Administrative law—Administrative action—What constitutes—Notice issuedby city to informal traders concerning enforcement of bylaws—Not administrative action—Promotion of Administrative Justice Act 3 of 2000, s 3.
HEESE obo PETERS v ROAD ACCIDENT FUND (WCC)
2011 MAY–NOVEMBER; DECEMBER 2
Damages—Bodily injuries—Loss of earning capacity—Calculation—Effect of tax evasion—Foreigner permanently incapacitated by injury sustained in South Africa—Guilty of fraudulent tax evasion in native country (Germany)—Constituting continuing offence which enabled survival of business—Had he not been seriously injured claimant would have faced prosecution and lengthy incarceration in Germany—Would have been unable to rebuild business after release—Claimant accordingly having lacked residual earning capacity of any value at time of accident—No loss of earning capacity shown.
BASIL READ (PTY) LTD v NEDBANK LTD AND ANOTHER (GSJ)
2012 APRIL 9, 13
Practice—Applications and motions—Urgent application—Application for reconsideration of order granted in person’s absence—Applicant for urgent order may not supplement its original founding affidavit with additional matter when faced with application for reconsideration—Party seeking reconsideration entitled to reconsideration on original application, without reference to anything else—Uniform Rules of Court, rule 6(12)(c).
Banker—Irrevocable documentary credit—Generally—Interdict against making payment in terms of advance payment guarantee—In absence of fraud, payment of demand on guarantee valid, enforceable and lawful—Applicant for such interdict having to make out case of fraud on part of beneficiary of guarantee.
HEAD, DEPARTMENT OF EDUCATION, FREE STATE PROVINCE v WELKOM HIGH SCHOOL AND ANOTHER (SCA)
2012 SEPTEMBER 18, 28
Education—School—Learners—Pregnancy—School policy—Governing bodies adopting policies that pregnancy would result in learners having to leave school, and based thereon, principals excluding learners—Head of provincial department of education instructing schools to readmit learners—Act not empowering head of department to give such instructions—Policies standing and capable of producing valid legal consequences until set aside by court—South African Schools Act 84 of 1996, s 16(3).
GUNGUDOO AND ANOTHER v HANNOVER REINSURANCE GROUP AFRICA (PTY) LTD AND ANOTHER (SCA)
2012 MAY 8, 30
Insolvency—Compulsory sequestration—Provisional sequestration—Application—Furnishing of copy of petition to employees of debtor and their trade unions—Requirements—Purpose of notice to ensure that where debtor conducts business, notice of sequestration given to all employees of such business and their trade unions, where applicable—Service required only on employees of business (and their trade unions), not all employees of debtor—Insolvency Act 24 of 1936, ss 9(4A)(a), 11(2A) and 11(4).
Insolvency—Compulsory sequestration—Final sequestration—Discretion of court—Disputed claim—Whether debtor disputing claim on reasonable and bona fide grounds—Debtor’s explanation of how debt arose implausible—Applicant having shown that debtor engaged in elaborate subterfuge to create impression that transaction giving rise to debt legitimate—In view of this, debtor not disputing debt on bona fide and reasonable grounds—Court a quo having correctly ordered final sequestration.
McCARTHY LTD t/a BUDGET RENT A CAR v SUNSET BEACH TRADING 300 CC t/a HARVEY WORLD TRAVEL AND ANOTHER (GNP)
2011 OCTOBER 3–5, 19
Delict—Elements—Unlawfulness or wrongfulness—Liability for omission—Test—Reasonable person test inappropriate—Proper test being whether legal convictions of community demand that omission be regarded as unlawful—Just result ought to prevail over application of any test delivering result contrary to community’s notion of justice.
Delict—Elements—Unlawfulness or wrongfulness—Liability for omission—Pure economic loss claimed—Travel agent issuing car rental vouchers to ‘customers’ who then stole cars from rental company—Alleged failure by travel agent to take reasonable steps to ensure that customers genuine—Legal convictions of community would assume adequate security checks by rental company before it released cars—Would not require that travel agent be held liable for any omission—Liability not established.
Delict—Pleading—Term ‘duty of care’ to be avoided—If delict constituting cause of action, then pleader should plead why act or omission wrongful and in which respect defendant negligent.
ABSA BANK LTD v LOMBARD INSURANCE CO LTD (SCA)
2012 SEPTEMBER 13, 28
Enrichment—Condictio ob turpem vel iniustam causam—Defences—Suum recipit—Creditor may raise as defence that he received what he was owed and so was not enriched.
Debtor and creditor—Discharge of debt—Debt extinguishing agreement—Such invalid where both parties aware stolen money to be used to discharge debt—But such valid where creditor in good faith and unaware funds stolen.
SEYFFERT AND ANOTHER v FIRSTRAND BANK LTD t/a FIRST NATIONAL BANK (SCA)
2012 MAY 21, 30
Credit agreement—Consumer credit agreement—Over-indebtedness—Judicial relief—Declaration of over-indebtedness and referral to debt counsellor—Court should be slow to exercise discretion under s 85 where matter has been dealt with by debt counsellor, or debt review has justifiably been terminated, and where no material change in circumstances has been demonstrated—National Credit Act 34 of 2005, ss 85, 86(10) and 87.
ORIANI-AMBROSINI v SISULU, SPEAKER OF THE NATIONAL ASSEMBLY (CC)
2012 AUGUST 7; OCTOBER 9
Constitutional law—Parliament—Act of Parliament—Passage of Bill through Parliament—Introduction of Bill by member of National Assembly—Rules of Assembly requiring member to secure permission before introducing Bill—Such Rules unconstitutional—Constitution, ss 55(1)(b), 57 and 73(2).
NYATHI AND OTHERS v CLOETE NO AND OTHERS (GSJ)
2012 AUGUST 30; SEPTEMBER 7
Company—Winding-up—Enquiry into affairs of company—Examination—Whether by oral or written interrogation—Written interrogatories appropriate where information sought is formal in nature, and also, in certain circumstances, as precursor to oral examination—Oral examination appropriate where liquidation prima facie caused by mismanagement, fraud or theft—Companies Act 61 of 1973, s 417(2)(a).
MOBILE TELEPHONE NETWORKS (PTY) LTD v SMI TRADING CC (SCA)
2012 SEPTEMBER 7, 28
Posts and telecommunications—Telecommunications—Mobile cellular telecommunication services—Electronic communications network service licensee—Right of entry upon and construction of lines across land and waterways—Consent of landowner not required—Authorised actions, however, constituting administrative action requiring it to be lawful, reasonable and procedurally fair—Also constituting exercise of public power, requiring it not to be arbitrary—Semble: While no requirement to pay compensation for deprivation of property, compensation, or offering it, may well take action complained of out of realm of arbitrariness—Electronic Communications Act 36 of 2005, ss 22(1) and 22(2).
Constitutional law—Legislation—Validity—Electronic Communications Act 36 of 2005, s 22—Authorised actions constituting administrative action, requiring lawfulness, reasonableness and procedural fairness to be validly exercised—Section therefore insulated against constitutional invalidity on grounds of allowing arbitrary deprivation of property.
S v Muller and Another 2012 (2) SACR 545 (SCA)
S v Mbatha 2012 (2) SACR 551 (KZP)
S v Molefe 2012 (2) SACR 574 (GNP)
S v Dube 2012 (2) SACR 579 (ECG)
S v Duma 2012 (2) SACR 585 (KZP)
National Director of Public Prosecutions v Cunningham and Others 2012 (2) SACR 591 (WCC)
S v Furlong 2012 (2) SACR 620 (SCA)
S v Peu 2012 (2) SACR 625 (GNP)
S v Thenga 2012 (2) SACR 628 (NCK)
S v Rowles 2012 (2) SACR 644 (ECG)
S v MULLER AND ANOTHER (SCA)
2011 AUGUST 26; SEPTEMBER 27
Sentence—Imprisonment—Duration of—Lengthy period of imprisonment—Sentence of 30 years’ imprisonment for three counts of robbery that were not of most serious type—Imprisonment for 30 years reserved for particularly heinous offences—Sentence reduced to 18 years’ imprisonment.
S v MBATHA (KZP)
2011 NOVEMBER 18; 2012 FEBRUARY 23
Drug offences—Dagga—Dealing in contravention of s 5(b) of Drugs and Drug Trafficking Act 140 of 1992—Proof of—Inferential proof—Two separate quantities of dagga, dagga seed, cleaned and maintained and fully grown dagga tree found on accused’s premises—Accused pleading guilty to possession of dagga, but not guilty to main count of dealing in dagga and not testifying during ensuing trial—Accused correctly convicted of dealing in dagga, as his act of cultivation fell foursquare within the definition of ‘deal in’ in s 1(1) of Act.
S v MOLEFE (GNP)
2012 APRIL 3
Child—Concealment of birth—Contravention of s 113(1) of General Law Amendment Act 46 of 1935—Prosecution to be authorised in writing by Director of Public Prosecutions in terms of s 113(3) of Act—Verbal permission not sufficient.
Child—Concealment of birth—Contravention of s 113(1) of General Law Amendment Act 46 of 1935—Essence of offence ‘disposal’ or ‘attempted disposal’ of body of child—What constitutes ‘disposal’ for purposes of Act—Body to be disposed of must be put or placed in some place where it is intended by party placing or putting it there that it should remain—Accused placing body in bucket at her house not disposal for purposes of Act.
Child—Concealment of birth—Contravention of s 113(1) of General Law Amendment Act 46 of 1935—What constitutes ‘child’ for purposes of Act—Foetus must have arrived at that stage of maturity at time of birth that it might have been born living child—No evidence regarding duration of pregnancy nor of viability of child—Conviction set aside.
S v DUBE (ECG)
2011 MAY 11, 27
Sentence—Cumulative effect of sentences—Accused sentenced for various firearm offences, robbery, kidnapping and discharging firearm—All offences taking place during course of one robbery—Discharging of firearm merely indication of frustration—All other convictions taken as one for purpose of sentence—No reason why that conviction should not also have been taken together with others—Effective sentence of 20 years’ imprisonment imposed.
S v DUMA (KZP)
2011 AUGUST 16
Court—Jurisdiction—District courts—Magistrate submitted matter to regional court, thinking that district court did not have necessary penal jurisdiction—Magistrate relying on s 114 or 116 of Criminal Procedure Act 51 of 1977 (CPA)—Regional magistrate found in both instances sentences prescribed in both statutes within jurisdiction of magistrates’ court—Reliance on these provisions accordingly misplaced—Matter ought not to have been referred for sentence—Order set aside and matter remitted to magistrate’s court for sentencing—Referral for sentencing procedural, thus presiding officer making referral not functus officio.
Review—Special review in terms of s 304A of Criminal Procedure Act 51 of 1977—Trial court before sentence doubting that it has necessary penal jurisdiction—Magistrate relying on s 114 or 116 of Criminal Procedure Act 51 of 1977 (CPA)—Regional magistrate found in both instances sentences prescribed in both statutes within jurisdiction of magistrates’ court—Reliance on these provisions accordingly misplaced—Matter ought not to have been referred for sentence—Order set aside and matter remitted to magistrates’ court for sentencing—Referral for sentencing procedural, thus presiding officer making referral not functus officio.
NATIONAL DIRECTOR OF PUBLIC PROSECUITIONS v CUNNINGHAM AND OTHERS (WCC)
2012 FEBRUARY 13, 14; JUNE 12
Prevention of crime—Restraint order in terms of Prevention of Organised Crime Act 121 of 1998—Use of trust to launder proceeds of fraud where beneficiaries are trustee’s family—No functional separation of ownership and enjoyment between trustee and beneficiary.
Prevention of crime—Restraint order in terms of Prevention of Organised Crime Act 121 of 1998—Over which assets—Proceeds of crime placed in hands of innocent or unsuspecting third party with distinct and separate legal personality (eg trust)—Proceeds not out of reach of authorities for purpose of restraint order.
S v FURLONG (SCA)
2011 MAY 24; JUNE 1
Possession of stolen property—Contravention of s 36 of General Law Amendment Act 62 of 1955—Sentence—Trial court equating offence to one of robbery and/or theft and imposing sentence appropriate in case of theft of motor vehicle—Constituting material misdirection linked with trial court’s decision on appropriate sentence—Improper to sentence accused by taking into account circumstances of theft of goods.
S v PEU (GNP)
2011 MARCH 9
Sentence—Prescribed sentence—Minimum sentences—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—Charge-sheet—Accused should be informed clearly that minimum sentence may be imposed and will be sought, and may face life sentence.
Rape—Sentence—Life imprisonment—Minimum sentence in terms of Criminal Law Amendment Act 105 of 1997—‘Substantial and compelling circumstances’—Rape of 8-year-old girl—Appellant having spent 22 months in custody—No evidence that child traumatised or would suffer permanent problem—Life sentence reduced to 15 years’ imprisonment.
S v THENGA (NCK)
2012 JUNE 11, 18
Contempt of court—What constitutes—Failure to attend court as witness at enquiry in terms of s 342A of Criminal Procedure Act 51 of 1977—Director of Public Prosecutions requesting, through public prosecutor, to be excused, as she had prior commitment—Improper for witness to communicate directly with presiding officer—Magistrate’s regimented approach in convicting DPP problematic, as other professionals regularly excused—Pragmatic approach required.
S v ROWLES (ECG)
2011 SEPTEMBER 28; 2012 MAY 16
Appeal—Application for hearing of further evidence—Before fresh evidence will be received in criminal appeal circumstances must be exceptional—Inadequate presentation of defence case at trial will only in rarest instances be remediable by adduction of further evidence at appeal stage—In addition, there must be reasonably sufficient explanation why evidence not led at trial, prima facie likelihood of truth of evidence, and evidence must be materially relevant to outcome of trial—Appellant convicted of rape alleging that his case incompetently presented at trial and that complainant had perjured herself at trial by testifying that he had raped her when such intercourse had been consensual—Allegation of incompetent presentation of appellant’s case not supported by record, nor clear in what respects complainant alleged to have perjured herself—Appellant failing to disclose identity of witness who would allegedly testify that complainant had had no injuries morning after incident and to explain extensive bruising suffered by complainant—Appellant failing to make out satisfactory case to adduce further evidence on appeal.
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