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January 2018

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases in the January 2018 law reports.

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

JUDGMENTS OF INTEREST IN THE JANUARY 2018 EDITIONS OF THE SALR AND SACR REPORTS

 

SOUTH AFRICAN LAW REPORTS

Loan repayable on demand—Does prescription start running from when loan advanced, or from when demand for payment made?

When did prescription start running with regard to a loan repayable on demand? Was it when the loan was advanced, or was it only when demand for payment was made? The Constitutional Court confirmed that prescription started running from when the loan was advanced, unless there was a clear indication to the contrary. Trinity Asset Management (Pty) Ltd v Grindstone Investments 132 (Pty) Ltd 2018 (1) SA 94 (CC)

The responsibility of a municipality for the safety of a child making use of its recreational facilities

This matter addressed the responsibility of a municipality for the safety of a child that was making use of its recreational facilities. Here, a child while sliding down a water slide in a municipality pool was seriously injured. The court found the municipality liable in delict for the child’s damages, its having failed to control access to and supervise the slide.  Van Vuuren v eThekwini Municipality 2018 (1) SA 189 (SCA)

Review of decision to discontinue prosecution of Mr JG Zuma

In consideration in this case in the Supreme Court of Appeal was the much much-publicised decision of the acting National Director of Public Prosecutions, on the purported grounds of political interference, to discontinue the prosecution of Mr JG Zuma (now President) on racketeering, corruption, money-laundering and fraud charges. The court came to the conclusion that this decision was irrational in the circumstances, and set the decision aside. Zuma v Democratic Alliance and Others 2018 (1) SA 200 (SCA)

 

SOUTH AFRICAN CRIMINAL LAW REPORTS

Defence of reasonable chastisement by a parent of a child declared unconstitutional

A father stood accused of assaulting his son. In answer, he argued that his conduct fell within the bounds of ‘reasonable chastisement’ of his child, which amounted to a defence in common-law. The High Court however held that such a defence could no longer apply in our law; it was unconstitutional in that it breached children’s rights to dignity, bodily integrity, to freedom and security of their person. S v YG 2018 (1) SACR 64 (GJ)

Accused charged for contravention of statute where no criminal offence created

A man was charged with offences pertaining to the contravention of provisions of the National Health Act 61 of 2003 which prohibited the unauthorised removal of human tissue from persons without their written consent. The High Court however discharged the accused on these counts; while the predecessor of the Health Act had created criminal offences for such transgressions, the present Act, for whatever reason, had not. And it could not be interpreted such that it had, merely on the belief of the court that a casus omissus had occurred; to do so would be impermissibly venturing into the arena of the legislature. S v Frederiksen 2018 (1) SACR 29 (FB)

Attendance at public gathering for which no prior notice given—requirements for criminal responsibility

The accused were convicted in the magistrates’ court of a contravention of the Regulation of Gatherings Act 205 of 1993 in that they had attended a public gathering for which no prior notice had been given. The accused were successful in their appeal to the High Court: mere attendance at a gathering for which no prior notice given was insufficient for criminal liability in terms of the Act. S v Tsoaeli and Others 2018 (1) SACR 42 (FB)

 


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 SOUTH AFRICAN LAW REPORTS
 TABLE OF CASES
 
  • Matjhabeng Local Municipality v Eskom Holdings Ltd and Others 2018 (1) SA 1 (CC)
  • Myathaza v Johannesburg Metropolitan Bus Services (Soc) Ltd t/a Metrobus and Others 2018 (1) SA 38 (CC)
  • Mogaila v Coca Cola Fortune (Pty) Ltd 2018 (1) SA 82 (CC)
  • Trinity Asset Management (Pty) Ltd v Grindstone Investments 132 (Pty) Ltd 2018 (1) SA 94 (CC)
  • Financial Services Board v Barthram and Another 2018 (1) SA 139 (SCA)
  • Odinfin (Pty) Ltd v Reynecke 2018 (1) SA 153 (SCA)
  • Pather and Another v Financial Services Board and Others 2018 (1) SA 161 (SCA)
  • Pro Tempo Akademie CC v Van der Merwe 2018 (1) SA 181 (SCA)
  • Van Vuuren v Ethekwini Municipality 2018 (1) SA 189 (SCA)
  • Zuma v Democratic Alliance and Others 2018 (1) SA 200 (SCA)
  • Lombard Insurance Co Ltd v Schoeman and Others 2018 (1) SA 240 (GJ)
  • Parkscape v MTO Forestry (Pty) Ltd and Another 2018 (1) SA 263 (WCC)
  • Stargrow (Pty) Ltd v Ockhuis and Others 2018 (1) SA 298 (LCC)
  • Steenkamp and Another v Central Energy Fund Soc Ltd and Others 2018 (1) SA 311 (WCC)
 
 FLYNOTES
 

MATJHABENG LOCAL MUNICIPALITY v ESKOM HOLDINGS LTD AND OTHERS (CC)

NKABINDE ADCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MHLANTLA J, MOJAPELO AJ, PRETORIUS AJ and ZONDO J
2017 SEPTEMBER 26
[2017] ZACC 35

Contempt of court - Criminal and civil contempt distinguished—Though both punishable as crime, standard of proof depending on whether remedy involving imprisonment—If so, proof beyond reasonable doubt required—For civil remedies short of imprisonment, proof on balance of probabilities sufficient.

Contempt of court - Procedure—Joinder—Need to cite parties in their personal capacities, particularly where committal to prison in offing—Effect of non-joinder. 

Contempt of court - Procedure—Summary procedure—Should be invoked only in exceptional circumstances where there exists pressing need for swift measures to preserve integrity of judicial process—Contemnor to be accorded, as far as possible, fair trial rights.

MYATHAZA v JOHANNESBURG METROPOLITAN BUS SERVICES (SOC) LTD t/a METROBUS AND OTHERS (CC)

NKABINDE ADCJ, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MBHA AJ, MHLANTLA J and ZONDO J
2016 DECEMBER 15
[2016] ZACC 49

Labour law - Arbitration proceedings—Award—Prescription—Whether Prescription Act applying to arbitration awards made under Labour Relations Act 66 of 1995—Whether Prescription Act consistent with Labour Relations Act—Meaning of ‘inconsistent’ in Prescription Act 68 of 1969, s 16(1).

Labour law - Arbitration proceedings—Award—Prescription—Interruption—Whether referral of dismissal dispute to Commission for Conciliation, Mediation and Arbitration interrupting prescription—Whether instituting review of CCMA award interrupting prescription—Prescription Act 68 of 1969, ss 15(1) and 15(6).

Prescription - Extinctive prescription—Debt—What constitutes—Whether arbitration award and/or claim for unfair dismissal under Labour Relations Act 66 of 1995 constituting ‘debt’ for purposes of Prescription Act—Meaning of ‘debt’—Prescription Act 68 of 1969, s 10(1).

MOGAILA v COCA COLA FORTUNE (PTY) LTD (CC)

MOGOENG CJ, NKABINDE ADCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MHLANTLA J, MOJAPELO AJ, PRETORIUS AJ and ZONDO J
2017 MARCH 2
[2017] ZACC 6

Labour law - Arbitration proceedings—Award—Prescription—Whether Prescription Act applying to arbitration awards made under Labour Relations Act 66 of 1995—Whether Prescription Act consistent with Labour Relations Act—Whether award constituting ‘debt’ for purposes of Prescription Act—Whether prescription interrupted by review of award—Prescription Act 68 of 1969, ss 10(1), 15(1), 15(6) and 16(1).

TRINITY ASSET MANAGEMENT (PTY) LTD v GRINDSTONE INVESTMENTS 132 (PTY) LTD (CC)

MOGOENG CJ, NKABINDE ADCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MHLANTLA J, MOJAPELO AJ, PRETORIUS AJ and ZONDO J
2017 SEPTEMBER 5
[2017] ZACC 32

Prescription - Extinctive prescription—Period of prescription—When it commences—Loan ‘repayable on demand’—Whether debt becoming due when loan advanced, or when demand made—Debt becoming due when loan advanced, unless clear indication to contrary—Prescription Act 68 of 1969, s 12.

Prescription - Extinctive prescription—Period of prescription—When it commences—General rule—Prescription beginning to run when debt arising, unless parties clearly stipulating otherwise—Prescription Act 68 of 1969, s 12.

Company - Winding-up—Application—By creditor—Abuse of process—Rule that court will refuse application as constituting abuse of process where company bona fide disputing debt on reasonable grounds (Badenhorst principle)—Ambit—Whether rule applicable to dispute on legal issues.

FINANCIAL SERVICES BOARD v BARTHRAM AND ANOTHER (SCA)

PONNAN JA, CACHALIA JA, LEACH JA, DAMBUZA AJA and GORVEN AJA
2015 JUNE 1
[2015] ZASCA 96

Financial institution - Financial services providers—Representatives—Debarment—Effect—Financial Advisory and Intermediary Services Act 37 of 2002, s 14(1).

ODINFIN (PTY) LTD v REYNECKE (SCA)

BOSIELO JA, PETSE JA, PLASKET AJA, TSOKA AJA and ROGERS AJA
2017 SEPTEMBER 21
[2017] ZASCA 115

Delict - Elements—Unlawfulness or wrongfulness—Liability for omission—Failure to comply with s 3 of PAJA—Financial services provider giving no notice or hearing to representative before removing him from its register—Promotion of Administrative Justice Act 3 of 2000, s 3; Financial Advisory and Intermediary Services Act 37 of 2002, s 14.

PATHER AND ANOTHER v FINANCIAL SERVICES BOARD AND OTHERS (SCA)

PONNAN JA, CACHALIA JA, TSHIQI JA, LAMONT AJA and ROGERS AJA
2017 SEPTEMBER 28
[2017] ZASCA 125

Financial institution - Enforcement committee—Proceedings—Nature of—Standard of proof—Penalties—Nature of—Securities Services Act 36 of 2004.

PRO TEMPO AKADEMIE CC v VAN DER MERWE (SCA)

NAVSA ADP, WALLIS JA, SALDULKER JA, ZONDI JA and KATHREE-SETILOANE AJA
2016 MARCH 24
[2016] ZASCA 39

Delict - Elements—Unlawfulness or wrongfulness—Erection of steel posts in playground.

VAN VUUREN v ETHEKWINI MUNICIPALITY (SCA)

NAVSA ADP, MAJIEDT JA, MATHOPO JA, PLASKET AJA and TSOKA AJA
2017 SEPTEMBER 27
[2017] ZASCA 124

Delict - Elements—Unlawfulness or wrongfulness—Liability for omission—Failure by municipality to control access to or supervise use of water slide at its pool.

ZUMA v DEMOCRATIC ALLIANCE AND OTHERS (SCA)

NAVSA ADP, CACHALIA JA, BOSIELO JA, LEACH JA and TSHIQI JA
2017 OCTOBER 13
[2017] ZASCA 146

Prosecution - Discontinuance—Decision to discontinue prosecution—Acting National Director of Public Prosecutions reviewing and setting aside own decision to prosecute on ground that political interference with timing of prosecution constituted abuse of prosecuting process—Acting director conceding review based on inapposite provision of Constitution and that decision to discontinue flawed as being irrational—Such concessions correctly made—Additional grounds present for setting aside decision, such as lack of evidence of political interference, that manner in which NPA conducted litigation deserving of judicial censure, deliberate exclusion of prosecuting team, and incorrect application of case law relied on.

LOMBARD INSURANCE CO LTD v SCHOEMAN AND OTHERS (GJ)

MAIER-FRAWLEY AJ
2017 JULY 17, 19

Contract - Specific contracts—Demand guarantee or performance guarantee—Compliance—Strict or substantial—Core issues being what guarantee actually required, and whether factually there was compliance—Question of interpretation—Necessary to construe terms of guarantee in their appropriate contractual setting, regard being had to commercial purpose of relevant provisions, guarantee as a whole, and defining features of demand guarantees.

PARKSCAPE v MTO FORESTRY (PTY) LTD AND ANOTHER (WCC)

GAMBLE J
2017 MARCH

Administrative law - Administrative action—Review—When competent—Action taken in contractual context—Execution of policy—External effect—Right to be heard.

Environmental law - Protection of the environment—Environmental management—National park—Eradication of undesirable species—Felling of exotic trees under commercial contract—Decision of South African National Parks to consent to accelerated felling of plantation on Table Mountain—Constituting reviewable exercise of public power—Public consultation required—National Environmental Management: Protected Areas Act 57 of 2003, s 55.

State - Contracts by—Decision under—Reviewable if constituting exercise of public, as opposed to private, power—Decision of state to permit lessee to proceed with accelerated felling of trees in national park held to constitute reviewable exercise of public power.

STARGROW (PTY) LTD v OCKHUIS AND OTHERS (LCC)

BARNES AJ and MOLEFE J
2017 APRIL 19

Land - Land reform—Statutory protection of tenure—Protected occupation of land—Occupier—Exclusions—Person with income exceeding prescribed amount—Calculation—Whether one had to take into account income of spouse for purposes of determining whether prescribed amount exceeded—Extension of Security of Tenure Act 62 of 1997, s 1 sv ‘occupier’.

STEENKAMP AND ANOTHER v CENTRAL ENERGY FUND SOC LTD AND OTHERS (WCC)

BOZALEK J
2017 SEPTEMBER 22

Minerals and petroleum - Petroleum—PetroSA—Board—Dismissal of directors by holding company (Central Energy Fund)—Constituting administrative act—Reasonable in circumstances.

Company - Directors and officers—Directors—Removal—Appropriate procedure—Removal by shareholders and removal by board in case of ineligibility or disqualification—Companies Act 71 of 2008, s 71(1) and s 71(3) read with s 71(8).

 

 SOUTH AFRICAN CRIMINAL LAW REPORTS
 TABLE OF CASES
  
  • S v Rantlai 2018 (1) SACR 1 (SCA)
  • S v Cacambile 2018 (1) SACR 8 (ECB)
  • S v Haupt 2018 (1) SACR 12 (GP)
  • S v MM 2018 (1) SACR 18 (GP)
  • S v Dos Santos 2018 (1) SACR 20 (GP)
  • S v Frederiksen 2018 (1) SACR 29 (FB)
  • S v Tsoaeli and Others 2018 (1) SACR 42 (FB)
  • S v YG 2018 (1) SACR 64 (GJ)
  • Director of Public Prosecutions, Gauteng Local Division, Johannesburg v Regional Magistrate, Krugersdorp and Another 2018 (1) SACR 93 (GJ)
  • S v Essop 2018 (1) SACR 99 (GP)
  • S v Smous 2018 (1) SACR 108 (NCK)
 
 FLYNOTES
 

S v RANTLAI (SCA)

BOSIELO JA, SERITI JA, SALDULKER JA, PLASKET AJA and TSOKA AJA
2017 AUGUST 17; SEPTEMBER 13
[2017] ZASCA 106

Sentence - Combined sentence—Undesirability of reiterated.

S v CACAMBILE (ECB)

VAN ZYL DJP and STRETCH J
2017 SEPTEMBER 14

Review - Of detention at psychiatric hospital pending decision by judge in chambers—Not subject to review in terms of s 302 of Criminal Procedure Act 51 of 1977.

Trial - Mental state of accused—Order in terms of s 47 of Mental Health Act 17 of 2002—Reviewability under s 302 of Criminal Procedure Act 51 of 1977.

Trial - Mental state of accused—Order in terms of s 47 of Mental Health Act 17 of 2002—Lawyers encouraged to use term ‘psychiatric hospital’ or ‘institution’ for ‘mental hospital’.

S v HAUPT (GP)

BAQWA J and HAWYES AJ
2017 JULY 31

Evidence - Witnesses—Children—As complainants in sexual offences—Required to respond to and answer all questions—In light of inadequate responses, it could not be said that evidence clear and reliable in all material respects.

S v MM (GP)

TUCHTEN J and NAIR AJ
2017 OCTOBER 13

Plea - Plea of guilty—Written statement in terms of s 112(2) of Criminal Procedure Act 51 of 1977—Court establishing after conviction that not all necessary elements of liability admitted—Powers of trial court—Court entitled to proceed in terms of s 113(1) of Act and not necessary to have matter reviewed by High Court.

S v DOS SANTOS (GP)

RABIE J and JACOBS AJ
2017 SEPTEMBER 7

Human trafficking - Sentence—Imprisonment—Life imprisonment—Woman part of criminal enterprise trafficking young women to South Africa for sexual purposes—Sentence upheld on appeal.

S v FREDERIKSEN (FB)

DAFFUE J
2017 SEPTEMBER 14

Health offences - Human tissue—Unauthorised removal of—Statutory offences that existed under former Human Tissue Act 65 of 1983 repealed by and not included in National Health Act 61 of 2003.

General principles of liability - Conspiracy—Jurisdiction—Conspiracy in South Africa to murder victim in another country—Court in South Africa having jurisdiction.

S v TSOAELI AND OTHERS (FB)

MOLEMELA JP, MOLOI ADJP and LEKALE J
2016 AUGUST 8; NOVEMBER 17

Gatherings and demonstrations - Public gathering—Attendance at—Mere attendance at gathering for which no prior notice given insufficient for criminal liability in terms of s 12(1)(e) of Regulation of Gatherings Act 205 of 1993.

S v YG (GJ)

FRANCIS J and KEIGHTLEY J
2017 AUGUST 21; OCTOBER 19

Assault - Common assault—Defences—Parent’s right of moderate chastisement of child—Constitutionality of—Defence infringing ss 9, 10 and 12 of Constitution

Constitutional practice - Courts—Power to consider and determine constitutional issue—Whether matter moot—Declaration of invalidity of defence of moderate chastisement by parent to charge of assault on child—Would always be prospective in nature and therefore always moot in that particular case—Court determining issue on grounds of public interest.

DIRECTOR OF PUBLIC PROSECUTIONS, GAUTENG LOCAL DIVISION, JOHANNESBURG v REGIONAL MAGISTRATE, KRUGERSDORP AND ANOTHER (GJ)

MAKUME J and WEPENER J
2017 MAY 11, 17

Review - Of discharge of accused at end of prosecution’s case—Evidence against accused sufficient for him to be put on his defence—Discharge constituting gross irregularity and set aside.

S v ESSOP (GP)

MAAKANE AJ
2017 SEPTEMBER 29

Bail- Application for—Pending appeal against sentence—Prospects of success—Magistrate misdirecting himself as to nature of offences—Bail granted.

S v SMOUS (NCK)

TLALETSI AJP, WILLIAMS J and NDLOKOVANE AJ
2017 AUGUST 7; SEPTEMBER 15

Murder - Sentence—Imprisonment—Murder of former girlfriend—Prevalence of violence in country—Prescribed minimum sentence of 15 years’ imprisonment insufficient in circumstances—Sentence of 18 years’ imprisonment imposed.

 

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