Dear South African Law Reports and Criminal Law Reports subscriber
Herewith the cases in the September reports. Also available this month is Burrell’s Intellectual Property Law Reports 2013, see the table of cases below.
JUDGMENTS OF INTEREST IN THE SEPTEMBER EDITIONS OF THE SALR AND THE SACR
SOUTH AFRICAN LAW REPORTS
The Grahamstown Division has jurisdiction over the entire Eastern Cape Province. The local seats (Bhisho, Mthatha and Port Elizabeth) have concurrent jurisdiction over their respective areas. Litigants may choose to proceed in Grahamstown rather than the local seat, but the judge may order that the matter be removed to the local seat on grounds of convenience. Thembani Wholesalers (Pty) Ltd v September and Another 2014 (5) SA 51 (ECG)
Possession of a vehicle carrying a tampered-with engine number
The premise that possession of a tampered-with vehicle would always be unlawful was wrong because it was possible to have a ‘lawful cause’ for the possession of such a vehicle. In casu applicant’s possession of the vehicle pursuant to its return in terms of a court order would be only unlawful if it were established that he did not have lawful cause to possess it, but since an enquiry into the facts surrounding the applicant’s possession could not be held in spoliation proceedings, the police first had to restore possession. Ngqukumba v Minister of Safety and Security and Others 2014 (5) SA 112 (CC)
Interpretation of a contract
If a contract required a close working relationship between the parties, commercial reality would suggest an intention not to be bound in perpetuity. In such cases a tacit term allowing for termination on reasonable notice would be imported in the interests of commercial efficacy. Plaaskem (Pty) Ltd v Nippon Africa Chemicals (Pty) Ltd 2014 (5) SA 287 (SCA)
SOUTH AFRICAN CRIMINAL LAW REPORTS
Duties of prosecutors
It needed to be stressed that the duty of prosecutors was not to secure a conviction at all costs, or to defend convictions once obtained, but to see that so far as possible justice was done. S v Macrae and Another 2014 (2) SACR 215 (SCA)
Prospects of rehabilitation for parole
The court had to deal with two conflicting reports of two psychiatrists on whether 20 years after prisoner’s incarceration, he still suffered from antisocial personality disorder and that his prospects of rehabilitation were nil. Van Vuren v Minister of Correctional Services 2014 (2) SACR 227 (GP)
Murder by driving a taxi?
A driver of a taxi, in central city peak hour traffic, mounted the pavement and killed a pedestrian. Any right-minded person would have foreseen the possibility of death, and the driver possessed the requisite subjective intent for murder. However, on the evidence of the case, the driver had taken a risk which he thought would not materialise, and the second element of dolus eventualis was not established. S v Ndlanzi 2014 (2) SACR 256 (SCA)
Child and Youth Care Centres
Two judgments from the Eastern Cape tackle the placement of juvenile offenders and children in need of care, particularly into a newly-built Child and Youth Care Centre in Bisho. Jonker v Manager, Gali Thembani/JJ Serfontein School And Others 2014 (2) SACR 269 (ECG) and S v Goliath 2014 (2) SACR 290 (ECG)
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|SOUTH AFRICAN LAW REPORTS|
|TABLE OF CASES|
Company - Winding-up—Grounds—Just and equitable to do so—Solvent company—No fixed category of circumstances in which solvent company may be wound up on just and equitable ground—Breakdown in relationship between shareholders rendering company dysfunctional—Just and equitable to wind up—Companies Act 71 of 2008, s 81(1)(d)(iii).
Appeal - Appealability—Postponement of proceedings pending re-enrolment—Applications for default judgments postponed to afford plaintiff opportunity to take further steps deemed necessary by court under s 129(1) of NCA before matters could be re-enrolled—Order not appealable—National Credit Act 34 of 2005, s 129(1).
Prescription - Acquisitive prescription—Praedial servitudes—Nec precario—Adverse use required—Owner must have right to prevent use before acquisitive prescription can run—Claimant had permission to use road—Owner had no right to interfere—No adverse use—No acquisition of right of way by prescription—Prescription Act 68 of 1969, s 6.
Election law - Electoral irregularities—Complaints—Publishing false statements or allegations with intention to influence conduct or outcome of election—Fair comment as defence—Not sustainable where statement not recognisable as commentary and facts commented on not true—Electoral Act 73 of 1998, s 89(2)(c) and sch 2, item 9(1)(b)(ii).
Court - High court—Jurisdiction—Eastern Cape—As main seat of Eastern Cape Division, Grahamstown court having jurisdiction over entire Eastern Cape Province—Local seats (Bhisho, Mthatha and Port Elizabeth) having concurrent jurisdiction over their respective areas—Litigants may choose to proceed in Grahamstown rather than local seat but judge may order that matter be removed to local seat on grounds of convenience.
Public service - Employee—Dismissal—Discharge—Deemed discharge on ground that employee had assumed other employment without permission while still in service of employer—Employee securing alternative employment while suspended on allegations of misconduct—Not ‘absenting himself from official duties without permission’—No deemed discharge—Public Service Act, Proc 103 of 1994, s 17(5)(a).
Administrative law - Administrative action—What constitutes—Dismissal of members of Armscor board—Such is executive action—Promotion of Administrative Justice Act 3 of 2000; Armaments Corporation of South Africa Limited Act 51 of 2003, s 8(c).
Spoliation - Mandament van spolie—When available—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).
Local authority - Rates—Imposition—Differential rates—Levying of different rates for different categories of property—Commercial, industrial and business properties may be assessed at higher rate than residential properties, provided principle of legality adhered to—Municipality entitled to levy business rates 3,8 times as high as residential rates—Local Government: Municipal Property Rates Act 6 of 2004, s 19(1)(b).
Administrative law - Administrative action—Review—Domestic remedies—Duty to exhaust domestic remedies before instituting legal action—Duty absolute except where court grants exemption—Cannot be waived by administrative functionary.
Company - Oppressive conduct—What constitutes—Directors’ decision taken in terms of company constitution and meeting standard of conduct in s 76 which prejudices shareholder—Exceptional circumstances required for decision to cause ‘unfair’ prejudice within meaning of s 163—Companies Act 71 of 2008, ss 76 and 163.
Immigration - Asylum seeker—Application for asylum—Application rejected and appeal made—Appeal disposed of on basis that asylum seeker failing to appear—Asylum seeker in fact attending hearing but case not reached—Decision to dispose of appeal void—Asylum seeker retaining status and entitlement to asylum-seeker permit—Refugees Act 130 of 1998, ss 21–22 and 24.
Administration of estates - Executor—Rights, powers and duties—Cession—Executor may cede rights of estate to third parties.
Revenue - Income tax—Assessment—Validity—Revised assessment not rendered invalid by error in fixing due date—Income Tax Act 58 of 1962, s 1.
Revenue - Assessment to tax—Additional assessment—Taxpayer’s rights—Taxpayer entitled to additional assessments being raised in administratively fair manner—This only achieved when based on proper grounds for believing additional value-added tax or income tax owing.
Local authority - Finance—Budgets—Approval—Where public participation in adoption of budget inadequate—Legality—Constitutional and statutory framework dealing with budget approval examined—Nature and extent of obligations on municipalities to ensure public participation in process considered—Applicable principles in assessing compliance with such obligations set out—Court concluding municipality falling short of requirements—Not in interests of justice to undo budget process—Court instead ordering compliance with public-participation obligations in preparation and tabling of future budgets.
Contract - Duration—Unspecified duration—Whether contract terminable on reasonable notice—Matter of construction, having regard to express terms of contract and surrounding circumstances—Unlikely that parties would intend to be bound in perpetuity where contract requiring them to form and maintain close working relationship—Tacit term allowing for termination on reasonable notice would be imported.
Estoppel - Res judicata—Issue estoppel—Operation—Plea may not be upheld where it will cause unfairness.
Cession - Cession of claim after litis contestatio—Not possible while order for security for costs against cedent still enforceable.
Company - Business rescue—Liquidation proceedings already initiated—Such suspended by business rescue application—Scope of suspensive provision—Action by liquidator for recovery of debts owed by director of company covered—Costs incurred by liquidator after business rescue application to stand over pending its finalisation—Companies Act 71 of 2008, s 131(6).
|SOUTH AFRICAN CRIMINAL LAW REPORTS|
|TABLE OF CASES|
Prosecuting authority - Prosecutor—Conduct of—It needed to be stressed that duty of prosecutors was not to secure conviction at all costs or to defend convictions once obtained but duty was to see that so far as possible justice was done.
Prisoner - Parole—Release on—Requirements for release—Decision of Minister of Correctional Services—Reviewability of—Conflicting reports of two psychiatrists on whether 20 years after prisoner’s incarceration, he still suffered from antisocial personality disorder and that his prospects of rehabilitation were nil—Minister required joint report from two psychiatrists and order to this effect granted.
Appeal - Leave to appeal—From dismissal of petition to high court—Condonation for late filing of appeal—When granted—Incomplete and unsatisfactory explanation of reasons for delay—Application for condonation refused.
Sentence - Habitual criminal—Declaration as in terms of s 286 of Criminal Procedure Act 51 of 1977—When declaration should be made—Only after all facts carefully scrutinised—Crimes must have been committed out of habit and of such nature society required protection from offender for at least seven years—Court still retained discretion not to declare habitual criminal—Long list of previous convictions did not automatically result in declaration—Necessary to give careful attention to nature of actual crime for which accused convicted.
Trial - Irregularity in—What constitutes—Appellant contending on appeal that his advocate had not carried out his instructions properly and had put incorrect version of defence to witnesses—If proved, it would have been case of serious misconduct by attorney and advocate—In absence of any supporting evidence and in circumstances of case where appellant had allowed strategy until end of state’s case, must have consented to it—No irregularity having occurred.
Children - Child and youth care centre—Transfer of child in need of care—Consultation and ratification of such transfer required in terms of ss 171(1) and (4) of Children’s Act 38 of 2005, respectively—Children’s Act 38 of 2005, s 171(1) and (4).
Juvenile offenders - Sentence—Committal to child and youth care centre—Centre in question becoming dysfunctional after committal of accused—Court that sentenced accused functus officio and alternative sentence to be imposed after setting-aside of original sentence on review—Child Justice Act 75 of 2008, s 76(1).
Murder - Sentence—Provisions of s 51(2)(a) of Criminal Law Amendment Act 105 of 1997 applicable—Accused shooting his partner who had shortly before terminated their relationship—Number of mitigating circumstances present and accused of good character, asset to his community and candidate for rehabilitation—Substantial and compelling circumstances present justifying a lesser sentence than 15 years’ imprisonment—Ten years’ imprisonment imposed.
Evidence - Assessment of—Differences between versions of state witnesses—Contradictions per se did not necessarily lead to rejection of witness’s evidence—Essential that proper weight be given to them and bearing on other evidence—Discrepancy between evidence of doctor and complainant on events that had happened few years prior to doctor giving evidence—Cognisance to be taken of fact that doctors operate in busy conditions.
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