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October 2014

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases in the October reports.

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

SOUTH AFRICAN LAW REPORTS

Small defaults on debt rearrangement

Following an error by the payment distribution agency, the bank sought judgment and an order declaring the immovable property executable. The net shortfall owing to the bank was R441. The word ‘defaults’ according to the National Credit Act had to be interpreted to exclude minor, unwitting and excusable defaults, of the nature which occurred here. Nedbank Ltd v Thompson and Another 2014 (5) SA 392 (GJ)

Slippery supermarket floor

After a customer slipped and fell, it was alleged that the cleaner should have dried the supermarket floor before moving on to the next area, during a busy period, being lunchtime of a weekday. Avonmore Supermarket CC v Venter 2014 (5) SA 399 (SCA)

Admission to be an attorney

The applicant sought to review the decision not to register his articles when he was still on parole after a conviction of murder, robbery and the illegal possession of a firearm. Thukwane v Law Society, Northern Provinces 2014 (5) SA 513 (GP)
Another applicant applied to be readmitted as an attorney, after his release on parole. His convictions had been for various counts of fraud. Mtshabe v Law Society of the Cape of Good Hope 2014 (5) SA 376 (ECM)


SOUTH AFRICAN CRIMINAL LAW REPORTS

Sentencing factors

Covered in this judgment are the effect of the period spent in prison awaiting trial, and the non-parole period. The deceased was a prominent member of society who fought corruption, and was murdered for reward. On appeal, the accused’s sentence of 12 years was replaced with one of 20 years. Director of Public Prosecutions, North Gauteng: Pretoria v Gcwala and Others 2014 (2) SACR 337 (SCA)

Aggravating circumstances in robbery

S v Mdaka 2014 (2) SACR 393 (KZP) looks at a case where the accused used a large stone, and whether this was a dangerous weapon, and in deciding, the court used a test that was both objective and subjective.
S v Hlongwane 2014 (2) SACR 397 (GP) examines the expression ‘wielding a firearm’ and how restrictively this should be interpreted, and it was found that something more than mere possession or holding was required.

Money laundering

How does the state prove that moneys were proceeds of crime? The state can either prove that the moneys were derived from conduct of a specific kind, which was unlawful; or by evidence of circumstances in which moneys were handled, that gives rise to an irresistible inference that they could only be derived from crime.  S v Imador 2014 (2) SACR 411 (WCC)


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SOUTH AFRICAN LAW REPORTS

OCTOBER 2014

 TABLE OF CASES
  • Savoi and Others v National Director of Public Prosecutions and Another 2014 (5) SA 317 (CC)
  • Reynolds Presto Products Inc t/a Presto Products Co v PRS Mediterranean Ltd and Another 2014 (5) SA 353 (GP)
  • Commissioner, South African Revenue Service v Mobile Telephone Networks Holdings (Pty) Ltd 2014 (5) SA 366 (SCA)
  • Mtshabe v Law Society of the Cape of Good Hope 2014 (5) SA 376 (ECM)
  • Nedbank Ltd v Thompson and Another 2014 (5) SA 392 (GJ)
  • Avonmore Supermarket CC v Venter 2014 (5) SA 399 (SCA)
  • Hyprop Investments Ltd and Others v NSC Carriers and Forwarding CC and Others 2014 (5) SA 406 (SCA)
  • Bulk Joyance, MV 2014 (5) SA 414 (KZD)
  • Elstead Ltd v MV Bulk Joyance and Others: MV Bulk Joyance 2014 (5) SA 414 (KZD)
  • Ex parte Snooke 2014 (5) SA 426 (FB)
  • GrainCo (Pty) Ltd v Van der Merwe and Others 2014 (5) SA 444 (WCC)
  • Atholl Developments (Pty) Ltd v Valuation Appeal Board, Johannesburg, and Another 2014 (5) SA 485 (GJ)
  • Manok Family Trust v Blue Horison Investments 10 (Pty) Ltd and Others 2014 (5) SA 503 (SCA)
  • Thukwane v Law Society, Northern Provinces 2014 (5) SA 513 (GP)
  • Amdocs SA Joint Enterprise (Pty) Ltd v Kwezi Technologies (Pty) Ltd 2014 (5) SA 532 (GJ)
  • Harerimana v Chairperson, Refugee Appeal Board and Others 2014 (5) SA 550 (WCC)
  • Royal Sechaba Holdings (Pty) Ltd v Coote and Another 2014 (5) SA 562 (SCA)
  • Da Silva v Road Accident Fund and Another 2014 (5) SA 573 (CC)
  • Khumalo and Another v MEC for Education, KwaZulu-Natal 2014 (5) SA 579 (CC)
  • Comair Ltd v Minister for Public Enterprises and Others 2014 (5) SA 608 (GP)
 FLYNOTES


SAVOI AND OTHERS v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AND ANOTHER (CC)
MOSENEKE ACJ, SKWEYIYA ADCJ, CAMERON J, DAMBUZA AJ, FRONEMAN J, JAFTA J, MADLANGA J, MHLANTLA AJ, NKABINDE J and ZONDO J
2013 NOVEMBER 11; 2014 MARCH 20
[2014] ZACC 5

Constitutional law - Human rights—Protection—Standing to enforce—Abstract challenge to constitutionality of legislation—Though not negating standing, applicant to show that challenged provision prima facie unconstitutional.
Constitutional law - Legislation—Validity—Prevention of Organised Crime Act 121 of 1998, s 2(1)—Definitions of ‘pattern of racketeering activity’ and ‘enterprise’ not unconstitutional—Nor phrase ‘ought reasonably to have known’.
Criminal law - Statutory offences—Organised crime—Racketeering—Ambit of offence—Concept of ‘pattern of racketeering activity’ aimed at ongoing and varied nature of organised crime, not at individual underlying offences—Definition of offence of racketeering not void for vagueness—Prevention of Organised Crime Act 121 of 1998, s 2(1).
Criminal law - Statutory offences—Organised crime—Racketeering—Mens rea—Negligence—Negligence standard appropriate to offence of racketeering—Phrase ‘ought reasonably to have known’ not void for vagueness or unconstitutional—Prevention of Organised Crime Act 121 of 1998, s 2(1).

REYNOLDS PRESTO PRODUCTS INC t/a PRESTO PRODUCTS CO v PRS MEDITERRANEAN LTD AND ANOTHER (GP)
MURPHY J
2014 FEBRUARY 25

Intellectual property - Trademark—Removal from register—Grounds—Unethical conduct—Mark appropriated through sharp practice—Bona fides of claim to proprietorship tainted—Mark removed—Trade Marks Act 194 of 1993, s 21(1).

COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE v MOBILE TELEPHONE NETWORKS HOLDINGS (PTY) LTD (SCA)
PONNAN JA, SHONGWE JA, WALLIS JA, VAN ZYL AJA and LEGODI AJA
2014 FEBRUARY 18; MARCH 7
[2014] ZASCA 4

Revenue - Income tax—Deductions—Audit fees—Apportionment of where incurred with dual purpose of which only one qualifying as deduction—Basis for apportionment—Guidelines set out—Apportionment to be fair and reasonable in circumstances of each case—Income Tax Act 58 of 1962, s 11(a) read with ss 23(f) and (g).

MTSHABE v LAW SOCIETY OF THE CAPE OF GOOD HOPE (ECM)
GOOSEN J and GRIFFITHS J
2014 MARCH 13; APRIL 17

Attorney - Admission and enrolment—Readmission—Applicant attorney struck from roll after imposition of direct imprisonment on various counts of fraud—Seeking readmission after release on parole—Contrary to public policy to readmit person in such position—Application refused—Attorneys Act 53 of 1979, s 15(3)(a).

NEDBANK LTD v THOMPSON AND ANOTHER (GJ)
A GAUTSCHI AJ
2014 JANUARY 28; APRIL 23
[2014] ZAGPJHC 88

Credit agreement - Consumer credit agreement—Debt rearrangement—Default on by consumer—To be interpreted as excluding minor, unwitting and excusable defaults—National Credit Act 34 of 2005, ss 2(1), 3 and 88(3)(b)(ii).
Credit agreement - Consumer credit agreement—Debt rearrangement—Default on by consumer—Resulting from errors by payment-distribution agency in making payment to credit provider—Unless payment distribution agency appointed as consumer’s agent, resulting incorrect payment not constituting default by consumer as contemplated in National Credit Act 34 of 2005, s 88(3)(b)(ii).
Credit agreement - Consumer credit agreement—Debt review—Role of payment distribution agency—Administrative appointment by debt counsellor over which consumer having no control—National Payment Systems Act not creating relationship of agency between consumer and payment distribution agency—National Payment Systems Act 78 of 1998, s 7.

AVONMORE SUPERMARKET CC v VENTER (SCA)
PONNAN JA, MHLANTLA JA, PETSE JA, WILLIS JA and VAN ZYL AJA
2014 MARCH 6, 31
[2014] ZASCA 42

Delict - Elements—Negligence—What constitutes—Failure to dry supermarket floor after routine cleaning.

HYPROP INVESTMENTS LTD AND OTHERS v NSC CARRIERS AND FORWARDING CC AND OTHERS (SCA)
LEWIS JA, THERON JA, WILLIS JA, VAN DER MERWE AJA and MEYER AJA
2013 NOVEMBER 13, 27
[2013] ZASCA 169

Estoppel - Res judicata—Issue estoppel—Operation—Plea not permitted where it would bind litigant to inappropriate findings of prior court.

MV BULK JOYANCE
ELSTEAD LTD v MV BULK JOYANCE AND OTHERS (KZD)
LOPES J
2013 SEPTEMBER 25; DECEMBER 10

Shipping - Admiralty law—Maritime claim—Enforcement—Action in rem—Arrest—Associated ship arrest—Whether ship ‘associated ship’—Common control—Proof—Ambit of enquiry—Consequences of incorrect finding—Admiralty Jurisdiction Regulation Act 105 of 1983, s 3(7)(a)(iii).
Shipping - Admiralty law—Admiralty practice—Evidence—Hearsay—Statements and allegations in trade journals and on websites constituting admissible evidence on control of associated ship—But weight to be attached thereto in discretion of court—Admiralty Jurisdiction Regulation Act 105 of 1983, s 6(3).

EX PARTE SNOOKE (FB)
DAFFUE J
2014 APRIL 24; JUNE 27
[2014] ZAFSHC 96

Insolvency - Rehabilitation—Creditors—Proof of claims—Late proof of claims—Where creditor not given opportunity to make informed decision whether or not to prove claim, appropriate to postpone application for rehabilitation pending special meeting for late proof of claims—Insolvency Act 24 of 1936, ss 44(1) and 124(3).
Insolvency - Rehabilitation—Security—Requirement that it be furnished three weeks prior to application for rehabilitation—Where brought sooner, non-compliance may be cured by postponing application to allow period to run out—Insolvency Act 24 of 1936, s 125.
Insolvency - Costs—Voluntary surrender or sequestration order to be understood as limiting attorney’s fees and expenses to those stated in application—Trustee may not consent to taxation of attorney’s bill of costs if costs to be taxed exceeding costs stated in application.
Insolvency - Trustee—Trustee’s report—Requirements—To place reasonable creditor in position to make informed decision on whether or not to prove claim.
Insolvency - Trustee—Rights and obligations—May not consent to taxation of attorney’s bill of costs if costs to be taxed exceeding alleged costs relied upon in application for voluntary surrender or sequestration.

GRAINCO (PTY) LTD v VAN DER MERWE AND OTHERS (WCC)
ROGERS J
2014 JUNE 18; JULY 11

Sale - Business—Business and goodwill sold—Implied prohibition on canvassing customers—Scope—Effect of express restraint on competition on implied prohibition.
Contract - Terms—Implied and tacit terms—Implied term—Contract for sale of business with goodwill—Implied prohibition on canvassing customers—Scope—Effect on implied prohibition of express restraint on competition.

ATHOLL DEVELOPMENTS (PTY) LTD v VALUATION APPEAL BOARD, JOHANNESBURG, AND ANOTHER (GJ)
VALLY J
2013 OCTOBER 21; 2014 JANUARY 31

Local authority - Rates—Valuations—Property subject to registered lease—Local authority may levy rates by focusing on (1) value of immovable property plus improvements or (2) value of lease—No room for argument that lease, by encumbering property, reducing its rateable value.
Local authority - Rates—Valuations—Valuation appeal board—Powers—On appeal against decision of valuer—May consider valuation de novo—Not restricted to approach adopted by valuer or decision by municipality to assign value to class of property—Local Government: Municipal Rates Act 6 of 2004, s 57(a).

MANOK FAMILY TRUST v BLUE HORISON INVESTMENTS 10 (PTY) LTD AND OTHERS (SCA)
MPATI P, MAYA JA, BOSIELO JA, LEACH JA and MOCUMIE AJA
2014 MARCH 6; JUNE 13
[2014] ZASCA 92

Land - Land reform—Restitution—Claim for restitution of right in land—Regional commissioner reopening investigation after rejecting land claim because criteria for acceptance not met—Not empowered by Act to do so—Initial decision therefore final and commissioner thereafter functus officio—Restitution of Land Rights Act 22 of 1994, s 11(4).

THUKWANE v LAW SOCIETY, NORTHERN PROVINCES (GP)
G RABIE J, MAKGOBA J and KUBUSHI J
2013 JANUARY 30; AUGUST 23

Attorney - Articles of clerkship—Registration—Fitness—Law Society’s discretion—Standard to be applied—Law Society to consider fitness of applicant on usual grounds—Person convicted of murder and robbery inherently unfit—Law Society’s refusal to register articles in order—Attorneys Act 53 of 1979, s 4(b).

AMDOCS SA JOINT ENTERPRISE (PTY) LTD v KWEZI TECHNOLOGIES (PTY) LTD (GJ)
GS MYBURGH AJ
2014 APRIL 15

Companies - Proceedings by and against—Derivative action—Shareholder’s demand that company proceed—When court may set aside demand—Companies Act 71 of 2008, s 165(3).

HARERIMANA v CHAIRPERSON, REFUGEE APPEAL BOARD AND OTHERS (WCC)
DAVIS J
2013 DECEMBER 11
[2013] ZAWCHC 209

Administrative law - Administrative action—Review—Discretion of court—Remedies—Substitution—Whether present case exceptional one in which court may substitute administrator’s decision with its own—Administrator opposing review of its decision—Opposition creating appearance of bias—Unfair to remit matter to it—Promotion of Administrative Justice Act 3 of 2000, s 8(1)(c)(ii).
Immigration - Refugee—Refugee Appeal Board—Review—Board opposing review of its decision—Board’s opposition creating appearance of bias—Consequently unfair to remit matter to it—Court substituting its own decision for that of Board—Refugees Act 130 of 1998.

ROYAL SECHABA HOLDINGS (PTY) LTD v COOTE AND ANOTHER (SCA)
LEWIS JA, BOSIELO JA, THERON JA, WILLIS JA and LEGODI AJA
2014 MAY 15, 30
[2014] ZASCA 85

Estoppel - Res judicata—Issue estoppel—Requirements—Same party—Requirement may be dispensed with in appropriate circumstances.

DA SILVA v ROAD ACCIDENT FUND AND ANOTHER (CC)
MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MAJIEDT AJ, VAN DER WESTHUIZEN J and ZONDO J
2014 JUNE 19
[2014] ZACC 21

Motor-vehicle accident - Compensation—Claim against Road Accident Fund—Exclusions—Exclusion of claim where passenger member of driver’s household or owing duty of support—Since repealed but still applying to claims arising before effective date—Constitutionality—As spouses and children most likely to be excluded from Act’s protection differentiation amounting to unfair discrimination on basis of marital status and age—High court order invalidating provision confirmed—Pending claims to be subject to transitional provisions—Road Accident Fund Act 56 of 1996 (prior to amendment), s 19(b)(ii).

KHUMALO AND ANOTHER v MEC FOR EDUCATION, KWAZULU-NATAL (CC)
MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, MADLANGA J, MHLANTLA AJ, NKABINDE J, SKWEYIYA J, VAN DER WESTHUIZEN J and ZONDO J
2013 AUGUST 8; DECEMBER 13
[2013] ZACC 49

Constitutional law - Duties of state—Efficient and accountable public administration—Functionaries obliged to investigate alleged irregularities in exercise of public power and correct any unlawfulness ‘diligently and without delay’—Constitution, ss 195(1)(f), 195(1)(g) and 237; Public Service Act, Proc 103 of 1994, s 5(7)(a).
Review - Grounds—Legality—Delay in applying—Effect—Discretion of court to refuse application brought after undue delay—Such discretion to be exercised mindful of constitutional obligation of functionaries to challenge unlawful exercise of public power—Court should therefore be slow to refuse application by reason of delay in applying—Constitution, ss 195(1)(f) and 195(1)(g).
Review - Grounds—Legality—Delay in applying—Effect—Discretion of court to refuse application brought after undue delay—What constitutes undue delay—Factual enquiry in which all relevant circumstances considered—Where, as in present case, delay significant and reason for delay unexplained, delay unreasonable and undue.
Review - Grounds—Legality—Delay in applying—Effect—Discretion of court to allow application in spite of undue delay—Factors to be considered—Potential prejudice to parties affected by overlooking undue delay—Mitigated by court being able to make ‘just and equitable’ order instead of setting aside unlawful decision—Constitution, s 172(1)(b).
Review - Grounds—Legality—Delay in applying—Effect—Discretion of court to entertain application in spite of undue delay—Factors to be considered—Nature of claim—Condoning delay not warranted where, as in present case, delay constraining court’s ability to determine lawfulness of challenge.

COMAIR LTD v MINISTER FOR PUBLIC ENTERPRISES AND OTHERS (GP)
JORDAAN J
2013 NOVEMBER 15; DECEMBER 6

Review
- Procedure—Record on review—Production—Duty of disclosure—Extent of record—Claim of confidentiality—All documents considered by decision-maker, as well as its deliberations, part of record and to be disclosed unless privileged—Confidentiality not conferring privilege—Uniform Rules of Court, rule 53(1)(b).

 


SOUTH AFRICAN CRIMINAL LAW REPORTS

OCTOBER 2014

 TABLE OF CASES
  • Ngqukumba v Minister of Safety and Security and Others 2014 (2) SACR 325 (CC)
  • Director of Public Prosecutions, North Gauteng: Pretoria v Gcwala and Others 2014 (2) SACR 337 (SCA)
  • Van Heerden v Minister van Veiligheid en Sekuriteit en ’n Ander 2014 (2) SACR 346 (NCK)
  • S v Mdaka 2014 (2) SACR 393 (KZP) 
  • S v Hlongwane 2014 (2) SACR 397 (GP)
  • S v Imador 2014 (2) SACR 411 (WCC)
  • S v Kirsch 2014 (2) SACR 419 (WCC)
  • S v Magano 2014 (2) SACR 423 (GP)
 FLYNOTES


NGQUKUMBA v MINISTER OF SAFETY AND SECURITY AND OTHERS (CC)
MOSENEKE ACJ, SKWEYIYA ADCJ, CAMERON J, DAMBUZA AJ, FRONEMAN J, JAFTA J, MADLANGA J, MHLANTLA AJ, NKABINDE J and ZONDO J
2013 NOVEMBER 14; 2014 MAY 15
[2014] ZACC 14

Traffic offences - Possession, without lawful cause, of vehicle bearing falsified or mutilated engine or chassis number—Possible to possess such vehicle with ‘lawful cause’—Vehicle unlawfully seized by police to be returned before enquiry into lawfulness of possession may be held—So ordered—National Road Traffic Act 93 of 1996, ss 68(6)(b) and 89(1).
Search and seizure - Unlawful seizure—Return of—Police unlawfully seizing motor vehicle with falsified or mutilated engine or chassis number—Possible to possess such vehicle with ‘lawful cause’—Order for return of vehicle pending enquiry into facts surrounding possession competent—National Road Traffic Act 93 of 1996, ss 68(6)(b) and 89(1).

DIRECTOR OF PUBLIC PROSECUTIONS, NORTH GAUTENG: PRETORIA v GCWALA AND OTHERS (SCA)
LEWIS JA, SHONGWE JA and SALDULKER JA
2014 MARCH 19, 31
[2014] ZASCA 44

Sentence - Imposition of—Factors to be taken into account—Period spent in prison awaiting trial—Quantification of—Court should consider in all cases whether period of imprisonment proposed was proportionate to crime committed, taking into account for that purpose period spent in custody—Doubling of period, especially given length of time spent in custody, could not be justified.
Sentence - Imprisonment—Term of—Non-parole period—Should only be imposed where there were exceptional circumstances—None present in instant case.
Murder - Sentence—Imposition of—Factors to be taken into account—Committed for reward—Deceased prominent member of community who fought corruption in area where it was rife—Accused having spent four years in prison awaiting trial—Sentence of effective 12 years’ imprisonment inappropriate and replaced with sentence of 20 years’ imprisonment.

VAN HEERDEN v MINISTER VAN VEILIGHEID EN SEKURITEIT EN ’N ANDER (NCK)
NOORD-KAAP HOË HOF, KIMBERLEY
OLIVIER R
2011 AUGUSTUS 22; SEPTEMBER 20

Prosecuting authority - Prosecutor—Liability of—Exemption from where acts in good faith—Attitude and intention with which deed committed important in determining question whether acted in good faith—Could be no question of good faith where there was animus iniuriandi—National Prosecuting Authority Act 32 of 1998, s 42.

S v MDAKA (KZP)
STEYN J and HENRIQUES J
2014 MAY 8

Robbery - Aggravating circumstances—What constitutes—Dangerous weapon—Test for is both objective and subjective—Accused using large stone which complainants believed was firearm—Correctly convicted of robbery with aggravating circumstances.

S v HLONGWANE (GP)
MASIPA J and SPILG J
2013 OCTOBER 28; 2014 MAY 28

Robbery - Aggravating circumstances—What constitutes—Expression ‘wielding a firearm’ in definition of ‘aggravating circumstances’ in s 1 of Criminal Procedure Act 51 of 1977 not attempt by legislature to interfere with established scope of other subprovisions—Word ‘wielding’ not to be interpreted to exclude every other action involving weapon from amounting to threat for purposes of subpara (iii) of definition or be interpreted restrictively within confines of subparagraph—‘Wielding’, however, to be interpreted restrictively within paragraph as whole—Something more than mere possession or holding required.

S v IMADOR (WCC)
BLIGNAULT J and NYMAN AJ
2013 DECEMBER 9, 19

Prevention of crime - Offences—Contraventions of s 4 of Prevention of Organised Crime Act 121 of 1998—Money-laundering—Proof that moneys were proceeds of crime—State can either prove moneys derived from conduct of specific kind which was unlawful or by evidence of circumstances in which moneys were handled that gave rise to irresistible inference that they could only be derived from crime.
Prevention of crime - Prevention of Organised Crime Act 121 of 1998—Contravention of s 4—Money-laundering—Sentence—Appellant persuading bank teller to use his personal account to launder money for large reward—Bank teller sentenced to three years’ imprisonment—Trial court incorrectly ignoring principle of consistency and sentenced appellant to five years’ imprisonment—Sentence reduced on appeal.

S v KIRSCH (WCC)
YEKISO J and CLOETE J
2014 FEBRUARY 19

Review - In what cases—Recusal of presiding officer—Discovered after evidence led that state witness was friend of presiding officer—High court entitled to exercise its inherent jurisdiction to review matter and set aside proceedings—Constitution, s 173.

S v MAGANO (GP)
RABIE J, MSIMEKI J and PHATUDI J
2013 FEBRUARY 26

Sentence - Life imprisonment—Imposition of—Passing of imprisonment requires presence of sufficient information to enable court to produce informed and balanced sentence—Failure to request pre-sentencing report or to give counsel sufficient opportunity to address court on mitigation was misdirection.

 

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