Dear South African Law Reports and Criminal Law Reports subscriber
Herewith the cases of interest in the February reports. Also included below are the table of cases and flynotes. The Namibian Law Reports 2011(2) are now available. See below for more details.
JUDGMENTS OF INTEREST IN THE FEBRUARY EDITIONS OF THE SALR AND THE SACR
SOUTH AFRICAN LAW REPORTS
Misconduct by an attorney: removal from the roll
During a disciplinary matter, an attorney is expected to assist, and to put the full facts before the court. Wide denials, evasions and obstructionism had no place in such matters. Continued denials of misconduct indicate a lack of understanding of the conduct in question. Law Society of the Northern Provinces v Sonntag 2012 (1) SA 372 (SCA)
Negligence on our roads: oncoming vehicles
An experienced truck driver was on the road when he noticed that the driver of an oncoming vehicle was fidgeting behind himself and looking backwards. The car was however, still keeping to its lane. The truck driver took no steps to avoid a collision. The car drew into the truck’s blind spot and collided with the truck. Was there room to apportion some negligence on the truck driver? Van As v Road Accident Fund 2012 (1) SA 387 (SCA)
The appointment of the National Director of Public Prosecutions
The appointment of the National Director of Public Prosecutions by the President is an executive act that is subject to judicial scrutiny in accordance with the rule of law. The appointee must, having regard to the importance of the office, be above reproach, independent, and ready to serve without fear, favour or prejudice. In order to ensure that the candidate is such a person, the President must establish that he or she is possessed of the qualities of experience, conscientiousness and integrity. These qualities are jurisdictional facts that must be objectively assessed to exist before an appointment can be made. Democratic Alliance v President of the Republic of South Africa and Others 2012 (1) SA 417 (SCA)
SOUTH AFRICAN CRIMINAL LAW REPORTS
Civil forfeiture while criminal trial pending?
The applicants approached the court contending that civil forfeiture proceedings could not be brought against them while a criminal trial was pending. They alleged that their right to remain silent was being violated because their defence to the forfeiture had to be in the form of an affidavit. Khosana and Others v National Director of Public Prosecutions 2012 (1) SACR 176 (FB).
No corpse, no conviction for murder?
In S v Nkuna 2012 (1) SACR 167 (B) the court reviews the case law on situations where the accused is charged with murder, but the body has never been recovered. The court weighs up the requirement that there must be a satisfactory explanation why the body is missing, and looks at what circumstantial evidence would be sufficient for a conviction.
Parole: prisoners' rights and credits under the old and new Acts
Two important cases on parole which look at sentences imposed before commencement of the Correctional Services Act 111 of 1998: Van Vuren v Minister of Correctional Services and Others 2012 (1) SACR 103 (CC) and Van Wyk v Minister of Correctional Services and Others 2012 (1) SACR 159 (GNP). Issues covered include the interpretation of the transitional provisions, and the allocation of credits.
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Aviation Union of South Africa and Another v South African Airways (Pty) Ltd and Others 2012 (1) SA 321 (CC)
Graham v Park Mews Body Corporate and Another 2012 (1) SA 355 (WCC)
Law Society of the Northern Provinces v Sonntag 2012 (1) SA 372 (SCA)
Scholtz v Scholtz 2012 (1) SA 382 (WCC)
Van As v Road Accident Fund 2012 (1) SA 387 (SCA)
Ntshingila and Others v Minister of Police 2012 (1) SA 392 (WCC)
Alves v LOM Business Solutions (Pty) Ltd and Another 2012 (1) SA 399 (GSJ)
Democratic Alliance v President of the Republic of South Africa and Others 2012 (1) SA 417 (SCA)
Executive Officer, Financial Services Board v Dynamic Wealth Ltd and Others 2012 (1) SA 453 (SCA)
Charlton v Parliament of the Republic of South Africa 2012 (1) SA 472 (SCA)
Van der Merwe v FirstRand Bank Ltd t/a Wesbank and Barloworld Equipment Finance 2012 (1) SA 480 (ECG)
S v Selebi 2012 (1) SA 487 (SCA)
Commissioner, South African Revenue Service v South African Custodial Services (Pty) Ltd 2012 (1) SA 522 (SCA)
F v Minister of Safety and Security and Others 2012 (1) SA 536 (CC)
Rees and Others v Harris and Others 2012 (1) SA 583 (GSJ)
Municipality of Stellenbosch v Shelf-Line 104 (Pty) Ltd 2012 (1) SA 599 (SCA)
Laas v Road Accident Fund 2012 (1) SA 610 (GNP)
Nashua Mobile (Pty) Ltd v GC Pale CC t/a Invasive Plant Solutions 2012 (1) SA 615 (GSJ)
Haigh v Transnet Ltd 2012 (1) SA 623 (NCK)
Potgieter and Another v Potgieter NO and Others 2012 (1) SA 637 (SCA)
NGCOBO CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MOGOENG J, NKABINDE J, VAN DER WESTHUIZEN J, YACOOB J and MTHIYANE AJ
2011 MAY 11; NOVEMBER 24
Labour law—Transfer of contract of employment—Transfer of business as going concern—Protection of employment—‘Generation’ of transaction and whether agreement concerned with outsourcing irrelevant—Only relevant enquiry being whether there was transfer of business as going concern by old employer to new employer—‘Old employer’ and ‘new employer’ not static terms—Provided ‘going concern’ transferred, protection of employment extending to reversion of business to outsourcer, or transfer thereof to new provider—Labour Relations Act 66 of 1995, s 197.
Labour law—Transfer of contract of employment—Transfer of business as going concern—Protection of employment—Remedy—Availability—Dispute justiciable as soon as clear that intended transaction contemplating transfer of business without automatic transfer of employees—Not necessary for transfer of business to have taken place before court proceedings may be instituted—Labour Relations Act 66 of 1995, s 197.
2011 MAY 5; SEPTEMBER 19
Evidence—Admissibility—Arbitrator’s finding—Such inadmissible in later civil proceeding as proof of fact.
HARMS AP, LEWIS JA, MALAN JA, LEACH JA and PLASKET AJA
2011 NOVEMBER 4, 25
Attorney—Misconduct—Appropriate order—Suspension or removal from roll—Obstructionism and insufficient honesty during disciplinary process—Appellant’s disciplinary committee finding attorney guilty of sharing office and fees with a person with whom attorney was not permitted to do so, as well as referring work to, acting with, and knowingly acting for claimants referred by this person—High Court suspending attorney for one year and suspending suspension for three years—Supreme Court of Appeal noting, inter alia, attorney’s insufficient honesty during disciplinary process and ordering that she be struck from roll.
LE GRANGE J
2010 NOVEMBER 11; 2011 FEBRUARY 2
Donation—Validity—Requirements—Statutory requirements—Terms to be reduced to writing—Immovable property donated encumbered by mortgage bond—No reference to mortgage bond in deed of donation—Unclear whether donor intended to donate unencumbered property or whether donee was to assume obligations of donor—Requirement not complied with—General Law Amendment Act 50 of 1956, s 5.
CLOETE JA, VAN HEERDEN JA, BOSIELO JA, SERITI JA and MEER AJA
2011 AUGUST 17; SEPTEMBER 7
Delict—Elements—Negligence—What constitutes—Whether appellant’s conduct prior to the collision constituting potentially dangerous situation—Whether insured driver ought in circumstances to have taken steps to avoid collision—Appellant fidgeting behind himself while driving but not deviating from his lane of travel until immediately before collision—Truck driver not considering appellant’s actions to cause potentially dangerous situation—Nor in circumstances would reasonable man have considered it potentially dangerous—Appellant correctly held to have been solely responsible for collision.
ZONDI J and STEYN J
2011 FEBRUARY 18; MARCH 9
State—Actions by and against—Actions against—Notice—Failure to give notice—Condonation—Jurisdiction of magistrates’ court—Magistrates’ court having jurisdiction to entertain application for condonation of late service of notice of intended proceedings against organ of State—Jurisdiction of specific court depending on existence of related main matter over which court has jurisdiction—Question of whether magistrates’ court having jurisdiction to be determined at time of service of summons—Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002, ss 3(2) and 3(4)(a).
2011 AUGUST 22–25; SEPTEMBER 9
Delict—Elements—Unlawfulness or wrongfulness—Breach of legal duty—Breach by officials in ministry of justice of their statutory duties resulting in false imprisonment of plaintiff—Delay in preparation of record on appeal culminating in unnecessary imprisonment for 15 months—Responsible minister owing duty to appellants in position of plaintiff to ensure that appeal records prepared within reasonable time—Minister’s defence of vis maioror casus fortuitusdismissed—Unlawfulness established.
Delict—Elements—Negligence—Failure in administration of justice resulting in false imprisonment of plaintiff—Delay in preparation of record on appeal resulting in unnecessary imprisonment for 15 months—Reasonable person in position of responsible minister would have foreseen harm to plaintiff—Steps could have been taken to prevent resulting needless incarceration—Negligence established.
Damages—Bodily injuries—Psychological pain and suffering—Aquilian claim for general damages for false imprisonment—Failure in administration of justice resulting in 15 months’ unnecessary imprisonment of plaintiff—Conditions in South African prisons sufficiently well known for plaintiff’s trauma to be foreseeable—Calculation by using ‘daily rate’ inappropriate—Plaintiff awarded R300 000 in general damages.
NAVSA JA, HEHER JA, MHLANTLA JA, MAJIEDT JA and PLASKET AJA
2011 OCTOBER 31; DECEMBER 1
Criminal procedure—Prosecution—Prosecuting authority—National Director of Public Prosecutions—Appointment—Objective of prosecutorial independence paramount—Fitness of candidate (experience, conscientiousness and integrity) to be objectively assessed by President as jurisdictional fact—Where appointment made in absence of proper enquiry into whether legal requirements met, such unconstitutional and subject to annulment by court—Constitution, s 179 read with National Prosecuting Authority Act 32 of 1998, s 9(1)(b).
Constitutional law—Constitution—Foundational values—Rule of law—Judicial control of exercise of public power—Legislative and executive arms of State bound by legal prescripts—Judiciary may scrutinise actions and decisions of Executive branch to assess their legality.
HARMS AP, VAN HEERDEN JA, MALAN JA, WALLIS JA and PETSE AJA
2011 OCTOBER 31; NOVEMBER 15
Financial institution—Placing under curatorship—Whether appropriate—Test—Registrar to show that curatorship in interests of actual or potential investors—Court to consider alternatives to curatorship—Dishonest conduct or lack of capacity on part of management, failure to comply with regulations, or adverse report by inspectors appointed by registrar generally sufficient cause for appointment of curator, even where funds under administration not shown to be at risk—Financial Institutions (Protection of Funds) Act 28 of 2001, s 5(1).
Financial institution—Placing under curatorship—Admissibility of inspectors’ report prepared on behalf of registrar—Registrar in founding affidavit relying exclusively on report and extensive annexures—Latter not included in court papers but incorporated by reference—Such in order provided that annexures properly cross-referenced and made available to court and opposition—Preferable that report be attached to affidavit by leading inspector stating that conclusions therein drawn from facts set out in annexures—Inspection of Financial Institutions Act 80 of 1998, s 3.
BRAND JA, VAN HEERDEN JA, MAYA JA, MHLANTLA JA and MEER AJA
2011 AUGUST 23; SEPTEMBER 16
Labour law—Labour Court—Practice—Pleadings—Exception—Though Labour Court Rules not dealing with exceptions, providing that court may adopt any procedure deemed appropriate in circumstances—Established practice that exceptions dealt with in Labour Court and Labour Appeal Court in same manner as in High Court—Labour Court Rules, rule 11(3).
Practice—Pleadings—Exception—Dismissal—Appealability—Dismissal of exception generally not appealable, except where exception goes to jurisdiction—Dismissal of exception not appealable because order not final in effect—Nothing to prevent excipient from raising and arguing same issue at trial.
2010 MAY 27; OCTOBER 7
Practice—Offer of settlement—To be in writing, signed personally by defendant, or signed by defendant’s attorneys if latter authorised thereto in writing—Compliance with requirements not procedural in nature—Required as a matter of law that offer be signed by defendant or his attorney with written authority—Uniform Rules of Court, rule 34(1)–(4).
Practice—Judgments and orders—Rescission—On ground that judgment erroneously granted—Judgment granted on basis of offer of settlement—Offer of settlement not complying with Uniform Rules—Had court which granted judgment been aware of non-compliance with rule, it would not have granted judgment—Judgment set aside—Uniform Rules of Court, rules 34(1) and 42(1)(a).
MTHIYANE DP, SNYDERS JA, BOSIELO JA, LEACH JA and THERON JA
2011 NOVEMBER 1, 2; DECEMBER 2
Criminal law—Corruption—Public officer—Quid pro quo for gratification received—Intention—Presumption in s 24 of PCCA Act not required where abundance of evidence present as to corrupt intention—Prevention and Combating of Corrupt Activities Act 12 of 2004, ss 4(1)(a)and 24.
Criminal law—Corruption—Public officer—Agreement between corruptor and corruptee or quid pro quo from corruptee not required where abuse of position of authority and breach of trust clearly shown by evidence—Prevention and Combating of Corrupt Activities Act 12 of 2004, s 4(1)(a)(ii).
BRAND JA, MAYA JA, CACHALIA JA, MHLANTLA JA and PLASKET AJA
2011 NOVEMBER 7, 30
Revenue—Income tax—Assessment—Finality of assessment—Whether letter from commissioner constituting revised assessment—To be determined in light of wording of letter—Income Tax Act 58 of 1962, s 79A.
Revenue—Income tax—Deductions—Expenditure incurred in production of income—Trading stock—Building contractors—Work in progress—Expenses concerning materials and equipment used in construction—Deduction not applicable where construction subcontracted to separate entity which itself supplied materials—Subcontractor entitled to deduction—Income Tax Act 58 of 1962, s 22(2A).
Revenue—Income tax—Deductions—Expenditure incurred in production of income—Trading stock—Building contractors—Work in progress—Although materials supplied by contractor acceding to property of another, such deemed to be trading stock ‘held and not disposed of’ by contractor—Deeming provision qualifying quoted phrase and not term ‘trading stock’—Effect of provision not to deem expenditure of capital nature to be expenditure of revenue nature—Income Tact Act 58 of 1962, s 22(2A) not overriding s 11(a).
Revenue—Income tax—Deductions—Interest incurred in production of income—Interest and related fees incurred in relation to loans obtained for construction activities—Such deductible—Income Tax Act 58 of 1962, s 11(a) and 11(bA).
MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MOGOENG J, NKABINDE J, SKWEYIYA J, VAN DER WESTHUIZEN J and YACOOB J
2011 AUGUST 4; DECEMBER 15
State—Liability for acts of police—Liability for criminal acts committed by police officer—Duty of State to protect its citizens and corresponding need for public trust in police service suggesting normative basis for such liability—Sufficiently close link between misconduct and perpetrator’s employment as police officer to be established—Officer on standby duty committing rape, facilitated by use of police vehicle—Sufficient link established—Minister vicariously liable.
Delict—Specific forms—Vicarious liability—Liability of employer for delictual acts of employee—Liability of State for criminal acts committed by police officer on standby duty—Rape of 13-year-old girl who was stranded and whom officer had offered lift home in police vehicle—Use of police vehicle establishing sufficient link between rape and perpetrator’s employment as police officer.
SALDULKER J and MAYAT J
2011 AUGUST 11; NOVEMBER 10
Trust and trustee—Trust—Legal personality—Separate identity—Piercing of trust veneer—Whether trust assets effectively those of trustee—Whether trust alter ego of trustee—Where trust not treated as separate entity, and abuse of trust entity established, veneer of trust to be pierced—For necessary inference to be drawn that trust indeed alter ego of trustee, certain primary facts to be proved.
Jurisdiction—Attachment to found or confirm jurisdiction—Requirements—Prima facie cause of action—Onus on applicant seeking such attachment to make out prima facie case against debtor and to satisfy court on balance of probabilities that assets sought to be attached those of debtor.
HEHER JA, SNYDERS JA, SHONGWE JA, MAJIEDT JA and PLASKET AJA
2011 SEPTEMBER 13; NOVEMBER 8
Local authority—Town planning—Town-planning and zoning schemes—Rezoning—Rezoning and subdivision under LUPO—Whether municipality may unilaterally amend such conditions after acceptance by developer—Answer in negative—Consultation required—Land Use and Planning Ordinance 15 of 1985 (WC), ss 16, 25 and 42.
2011 SEPTEMBER 14, 29
Motor vehicle accidents—Compensation—Claim against Road Accident Fund—Whether arising out of driving of motor vehicle—Security guard injured driving armoured vehicle at speed over speed bumps while pursued by robbers firing on his vehicle—Sufficient causal relationship established between driving of robbers’ vehicle and injuries sustained by plaintiff—Fund liable—Road Accident Fund Act 56 of 1996, s 17(1).
CJ CLAASSEN J and NGALWANA AJ
2010 NOVEMBER 15, 18
Delict—Specific forms—Pure economic loss—Concurrence of actions—Whether concurrent delictual and contractual claims competent—Cellphone contract—Claim for loss of funds fraudulently transferred from bank account after cellphone SIM card duplicated—Since no right or duty of care to be found outside of cellphone contract, claim in delict not open—Found further that loss to plaintiff too remote from alleged negligent omission of defendant in supplying duplicate SIM card.
2011 NOVEMBER 25; DECEMBER 2
Transport services—Transnet Ltd—Actions against—Notice—Whether Transnet Ltd an organ of State for purposes of Legal Proceedings Act—Answer in negative—Legal Proceedings Against Certain Organs of State Act 40 of 2002, ss 1 and 3; Legal Succession to the South African Transport Services Act 9 of 1989
NAVSA JA, BRAND JA, VAN HEERDEN JA, LEACH JA and MAJIEDT JA
2011 SEPTEMBER 20, 30
Trust and trustee—Trust instrument—Variation—Inter vivos trust—Such trust akin to contract for benefit of third party or stipulatio alteri—Founder and trustee can vary or cancel agreement between them before third party has accepted benefits conferred by trust deed—But once benefits accepted by beneficiary, trust deed can only be varied with beneficiary’s consent—Beneficiaries acquiring rights under trust deed only on acceptance of benefits—In latter case, trust deed varied without beneficiary’s consent invalid.
Trust and trustee—Trust instrument—Variation—Inter vivos trust—Power of court in terms of s 13 of Trust Property Control Act 57 of 1988 to delete or vary any provision in trust instrument which hampers achievement of objects of founder, prejudices interests of beneficiaries or is in conflict with public interest—Court cannot make such order where untenable consequences brought about by application of common-law principles and not by any provision of trust deed.
Judge—Duties and functions—Private-law judgments—Our law not endorsing notion that judges can decide such cases on basis of what they regard as reasonable and fair—That would lead to intolerable legal uncertainty—Reasonable people, including judges, may differ on what is reasonable and fair—Criterion will then no longer be law, but judge.
Van Vuren v Minister of Correctional Services and Others 2012 (1) SACR 103 (CC)
Van Wyk v Minister of Correctional Services and Others 2012 (1) SACR 159 (GNP)
S v Nkuna 2012 (1) SACR 167 (B)
Khosana and Others v National Director of Public Prosecutions 2012 (1) SACR 176 (FB)
S v De Vries and Others 2012 (1) SACR 186 (SCA)
NGCOBO CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MOGOENG J, NKABINDE J, SKWEYIYA J and YACOOB J
2010 MAY 6; SEPTEMBER 30
Prisons—Prisoner—Parole—Life imprisonment—Sentences imposed before commencement of Correctional Services Act 111 of 1998—Effect of transitional provisions of s 136 of Act—Those sentenced to life incarceration after commencement of Act having to serve 25 years’ imprisonment before parole (s 73(6) of Act)—Those sentenced to life incarceration between 1 March 1994 or 3 April 1995 and commencement of Act entitled to be considered for parole after 20 years’ incarceration (s 136(3)(a))—But s 136(1) preserving position of those sentenced to life incarceration before 1 March 1994 or 3 April 1995.
Prisons—Prisoner—Parole—Life imprisonment—Sentences imposed before commencement of Correctional Services Act 111 of 1998—Interpretation of transitional provisions of s 136 of Act—Section 136(3)(a)of Correctional Services Act 111 of 1998 having coherent and sensible meaning alongside s 136(1)—Phrase ‘any person’ in s 136(1) referring to offenders serving determinate and indeterminate sentences, but s 136(3)(a)covering persons serving life sentences only—Section 136(1) preserving parole policy and guidelines that applied at any time before 2004 in respect of offenders then serving sentences of incarceration—In contrast, s 136(3)(a), in creating new mandatory non-parole period in form of new statutory entitlement, not preserving past policies and guidelines and creating statutory entitlement ‘to be considered for day parole or parole’, which s 136(1) did not.
Prisons—Prisoner—Parole—Life imprisonment—Sentences imposed before commencement of Correctional Services Act 111 of 1998—Transitional provisions of s 136 of Act—Where offender sentenced to death in November 1992 but such sentence replaced with sentence of life incarceration in September 2000, antedated to November 1992—Offender thereby afforded privilege of being considered for parole in terms of policy and guidelines applicable in 1992, ie after serving 10 years—Court making order that appropriate committees and boards consider applicant for placement on parole and to make appropriate recommendation to Minister.
2011 APRIL 20; JULY 26
Prisons—Prisoner—Parole—Life imprisonment—Sentences imposed before commencement of Correctional Services Act 111 of 1998—Effect of transitional provisions of s 136(1) of Act—Not having effect of excluding those sentenced to life incarceration from allocation of credits in terms of s 22A of the Correctional Services Act 8 of 1959—Correctional Service Order BVI (1A)(22) removing applicant’s right to having consideration for parole advanced by earning such credits, inconsistent with Constitution, 1996—Applicant and other offenders serving sentences of life incarceration before commencement of new Act entitled to credits earned being taken into account in determining when they qualify for parole.
Prisons—Prisoner—Parole—Life imprisonment—Sentences imposed before commencement of Correctional Services Act 111 of 1998—Effect of transitional provisions of s 136(1) of Act—Not having retrospective effect—Not abolishing any rights that offenders serving sentences of life incarceration enjoyed at time of committing offences incarcerated for—Applicant and other offenders serving sentences of life incarceration before commencement of new Act entitled to be considered for parole in terms of policy which applied at date of commission of crimes for which they are serving such sentence/s.
2005 OCTOBER 3; NOVEMBER 17
Murder—Proof of corpus delicti—Degree of proof required where body not recovered—Position where proof that victim missing—To require production or discovery of corpus delicti in all cases unreasonable and unrealistic—Could lead to injustice where discovery of body rendered impossible by act of offender—Proper for court to convict on circumstantial evidence that leaves no ground for reasonable doubt—Absence of body not insurmountable bar to finding accused guilty of murder—Not always a prerequisite that satisfactory explanation be provided as to why body missing—Conviction of murder sustainable on basis that facts so incriminating and so incapable of any reasonable or innocent explanation as to be incompatible with any hypothesis other than finding that accused killed person who has disappeared.
2011 APRIL 21; JUNE 30
Prevention of crime—Proceedings for civil recovery of property under Ch 6 of Prevention of Organised Crime Act 121 of 1998—Preservation of property order in terms of s 39 of POCA—Fact that Ch 5 providing appropriate relief where criminal trial pending not meaning that applicant not entitled to bring civil forfeiture proceedings in terms of Ch 6—On plain reading of Chs 5 and 6, application of Ch 6 not excluded where respondent accused in pending criminal trial.
Prevention of crime—Proceedings for civil recovery of property under Ch 6 of Prevention of Organised Crime Act 121 of 1998—Preservation of property order in terms of s 39 of POCA—Whether use in criminal trial of information gleaned from Ch 6 application rendering trial unfair as contemplated in s 35 of Constitution,1996—Court dealing with criminal trial to consider whether use of any evidence, such as contents of affidavit disclosing basis of defence required by s 39(5) of POCA, would make trial unfair.
NAVSA JA, MHLANTLA JA and LEACH JA
2011 AUGUST 29; SEPTEMBER 28
Appeal—Special entry in terms of s 317(1) of Criminal Procedure Act 51 of 1977—Reiterated that purpose of special entry was recording irregularity affecting trial, but not appearing from record—Attack on ruling made by trial court not qualifying for special entry.
Prevention of crime—Offences—Contraventions of s 2(1) of Prevention of Organised Crime Act 121 of 1998—Authorisation by National Director of Public Prosecutions in terms of s 2(4) of Act for accused to be charged—Details of charges need not be repeated in such authorisation—Only requirement that NDPP authorise that accused be charged with whatever offences under s 2(1) alleged in indictment.
Prevention of crime—Offences—Contraventions of s 2(1) of Prevention of Organised Crime Act 121 of 1998—Authorisation by National Director of Public Prosecutions in terms of s 2(4) of Act for accused to be charged—Accused charged before authorisation obtained—Prosecution becomes lawful when authorisation obtained and handed in before accused asked to plead.
Prevention of crime—Offences—Contraventions of s 2(1) of Prevention of Organised Crime Act 121 of 1998—Racketeering in contravention of s 2(1)(e)—Proof of—State not only having to prove underlying predicate offences, but also accused’s association with an enterprise and participatory link between accused and affairs of enterprise by way of pattern of racketeering activity—Offence under s 2(1) of POCA separate and discrete from underlying predicate offences—Accused can be convicted of both s 2(1)(e)(umbrella) offence as well as underlying predicate offences—Act recognising that past convictions could be taken into account in establishing pattern of racketeering activity—Thus no reason why such pattern cannot be established by proving both umbrella and predicate offences in same trial.
Prevention of crime—Offences—Contraventions of s 2(1) of Prevention of Organised Crime Act 121 of 1998—Whether hearing otherwise inadmissible evidence would render trial unfair as contemplated in s 2(2) of POCA—Framing of a charge-sheet to include both POCA umbrella offence and its underlying predicates not in itself occasioning unfair trial.
Prevention of crime—Offences—Contravention of s 4 of Prevention of Organised Crime Act 121 of 1998—Splitting of charges—Accused receiving stolen cigarettes, well knowing they were stolen—Accused thereby making himself guilty of theft as theft a continuing crime—By using stolen cigarettes as part of his stock in trade as wholesaler, as if they were lawfully acquired, thereby disguising or concealing their source, movement and ownership and enabling robbers of cigarettes to avoid prosecution, accused also making himself guilty of money-laundering in contravention of s 4 of Act—Each involving different actions and different criminal intent—State entitled to prosecute all such offences in single prosecution—Such not an improper splitting of charges nor leading to duplication of convictions.
Southern Engineering and Another v Council of the Municipality of Windhoek 2011 (2) NR 385 (SC)
Kasuto v Joubert and Another 2011 (2) NR 399 (HC)
S v Kavari 2011 (2) NR 403 (HC)
Mbekele v Standard Bank Namibia Ltd (Vehicle & Asset Finance) 2011 (2) NR 411 (HC)
Gouws v Office of the Prime Minister 2011 (2) NR 428 (LC)
Kleynhans v Chairperson of the Council for the Municipality of Walvis Bay and Others 2011 (2) NR 437 (HC)
S v Onesmus 2011 (2) NR 461 (HC)
S v Amukoto 2011 (2) NR 461 (HC)
S v Mweshipange 2011 (2) NR 461 (HC)
Namib Plains Farming and Tourism CC v Valencia Uranium (Pty) Ltd and Others 2011 (2) NR 469 (SC)
NS v RH 2011 (2) NR 486 (HC)
Namibia Financial Institutions Supervisory Authority v Christian and Another 2011 (2) NR 537 (HC)
Southline Retail Centre CC v BP Namibia (Pty) Ltd 2011 (2) NR 562 (SC)
Veldman and Another v Bester 2011 (2) NR 581 (HC)
S v Nakale 2011 (2) NR 599 (SC)
Le Roux v Minister of Home Affairs and Immigration and Others 2011 (2) NR 606 (HC)
National Housing Enterprises v Beukes and Others 2011 (2) NR 609 (LC)
S v Kanguro 2011 (2) NR 616 (HC)
Konga Clearing Agencies CC v Minister of Finance 2011 (2) NR 623 (HC)
Ongombe Farmers Association v Tjiuro and Others 2011 (2) NR 630 (HC)
Petrus v Roman Catholic Archdiocese 2011 (2) NR 637 (SC)
De Waal v De Waal 2011 (2) NR 645 (HC)
S v Paulus 2011 (2) NR 649 (HC)
Mweb Namibia (Pty) Ltd v Telecom Namibia Ltd and Others 2011 (2) NR 670 (SC)
Bella Vista Investments v Pombili and Another 2011 (2) NR 684 (HC)
Roads Contractor Company v Nambahu and Others 2011 (2) NR 707 (LC)
Trustco Ltd t/a Legal Shield Namibia and Another v Deeds Registries Regulation Board and Others 2011 (2) NR 726 (SC)
Ashipala v Nashilongo and Another 2011 (2) NR 740 (HC)
Rostock CC and Another v Van Biljon 2011 (2) NR 751 (HC)
MARITZ JA, STRYDOM AJA and O’REGAN AJA
2010 JULY 7; 2011 APRIL 4
Landlord and tenant—Lease—Cancellation—Landlord cancelling lease—Tenant subsequently liquidated—First appellant purchasing right and title to premises—Liquidators having no authority to assign rights—First appellant evicted from leased premises—Respondent entitled to evict first appellant—Lease having been validly cancelled.
2011 MARCH 4, 29
Arbitration—Arbitration agreement—Arbitration Act 42 of 1965 requiring written arbitration agreement—Arbitration agreement must set out issues upon which arbitrator must arbitrate—Application to set aside arbitrator’s award, granted—No written agreement setting out issues to be arbitrated upon.
HOFF AJP and GEIER AJ
2010 MAY 17; JUNE 9
Appeal—Power of attorney—Rule 67(1) of the magistrates’ court rules—Rule requires strict compliance—Power of attorney must be filed together with notice of appeal—Power of attorney must clearly indicate mandate of legal practitioner—In present case power of attorney indicating appeal against sentence while notice of appeal indicated appeal against conviction—Appeal struck from the roll.
2010 JULY 6–9; AUGUST 2–3; SEPTEMBER 6–9 2011 JANUARY 25
Contract—Misrepresentation—Plaintiff entering into instalment sale agreement with defendant for purchase of second-hand vehicle—Plaintiff later discovering vehicle a rebuilt model—Court not satisfied defendant proved that this was brought to plaintiff’s attention—Court holding this amounts to misrepresentation—Defendant acting wrongfully in not bringing this fact to plaintiff’s attention—Misrepresentation constituting material aspect of contract—Plaintiff entitled to cancel contract—Court ordering delivery of vehicle back to defendant and repayment of purchase price less 30% for wear and tear on vehicle.
2008 JULY 18; 2011 APRIL 29
Labour law—Absenteeism—Section 24(5)(a)(i) of the Public Service Act 13 of 1995—Section providing that absence without permission for more than 30 days amounting to misconduct—Appellant absent for 34 days—Appellant dismissed from public service—Complaint in district labour court unsuccessful—Court dismissing appeal against this decision.
2009 OCTOBER 12; 2010 APRIL 6–8; 2011 MARCH
Review—Review in terms of rule 53—High Court rules—Unreasonable delay—What constitutes—Rules not prescribing time limit—Question whether delay unreasonable within court’s discretion—Factors such as finality of administrative decisions, avoidance of prejudice and promotion of public interest will be taken into account—Applicant seeking to review municipality’s decision to permit construction of certain buildings—Applicant becoming aware in June 2008 that respondents not intending to cease construction—Applicant launching proceedings in October 2008—Relief of academic value when matter eventually heard in 2010—Applicant not setting out on papers why not seeking urgent relief—Court not satisfied that evidential basis laid for delay—Condonation of delay not justified under the circumstances—Application for review dismissed on ground of unreasonable delay.
DAMASEB JP and LIEBENBERG J
2011 MARCH 30
Criminal procedure—Plea—Plea of guilty in terms of s 112(1)(a)of the Criminal Procedure Act 51 of 1977 as amended by the Criminal Procedure Amendment Act 13 of 2010—Legislature not intending magistrates to impose excessive fines or lengthy custodial sentences—Magistrates cannot invoke s 112(1)(a)for the sake of disposing of cases expeditiously without fully enquiring into the details of the offence.
SHIVUTE CJ, MARITZ JA and STRYDOM AJA
2009 MARCH 17; 2011 MAY 19
Practice—Civil proceedings—Role of judge in civil proceedings—Judge cannot go on frolic of his or her own—Judge can only adjudicate upon issues before court—Judge can only raise new matters with consent of parties—Judge not having power to decide on issues not fully argued before him or her.
2010 DECEMBER 8; 2011 APRIL 8, 21
Husband and wife—Custody—Plaintiff and defendant both foreigners—Parties adopting Namibian child—Plaintiff, Indian citizen, whose work visa had expired, intending to relocate to India—Defendant, German citizen, on temporary work visa in Namibia—When deciding on custody, best interests of child paramount—Court having wide powers—Court need not have regard to procedural structures, evidence or parties’ contentions to determine best interests of child—Court will look at relationship between child and parent; compatibility; communication; temperament and character of parent; ability of parent to give child proper guidance, etc—Constitutional development resulting in parenting considered gender neutral—Mother cannot assume that court will award custody in her favour—Court in present case awarding custody to plaintiff—Plaintiff having had interim custody for three years—No reason, after evaluating all the evidence, to change present arrangement.
Adoption—Adoption of Namibian children by foreigners—Authorities needing to take all factors into account—Authorities to consider inter alia risk of relocation of child—Regard also to be had to subsidiarity principle in Convention on Rights of the Child—Namibia as yet not party to Hague Convention dealing with inter-country adoptions—Adoption of Namibian children by foreigners could result in court losing jurisdiction over such children if adoptive parents relocate—Time has come to rectify this situation by putting suitable measures in place to regulate such matters.
2011 MARCH 22, 23; MAY 27
Practice—Withdrawal and dismissal of proceedings—Dismissal of vexatious proceedings—Applicant seeking order in terms of Vexatious Proceedings Act 3 of 1956 and common law—Purpose of act to put stop to groundless and persistent legal proceedings—Power of court to screen (not absolutely bar) persistent legal proceedings—Court must protect victims against harassment and public interest by precluding clogging of court roles by vexatious proceedings—First respondent launching multiplicity of applications against applicant—Applicant wasting considerable time and money in opposing applications—Court granting order against first respondent.
Contempt of court—What constitutes—First respondent admitting to having disregarded several court orders—Court satisfied that first respondent wilful and mala fide—Applicant proving contempt of court beyond reasonable doubt—Paramountcy of rule of law in Constitution requiring parties to adhere to court orders until varied or set aside.
STRYDOM AJA, MTAMBANENGWE AJA and O’REGAN AJA
2010 OCTOBER 15; 2011 JUNE 9
Landlord and tenant—Agreement of lease—Parties entering into agreement of lease for three years—Clause 2 allowing lessee to extend lease for further year—Clause 4.2 providing that lessor could give one month’s written notice of intention to terminate lease—Lessee informing lessor that it wished to extend lease by one year—Lessor obtaining eviction order against lessee in court a quo—On appeal court holding that option to renew lease was irrevocable offer in favour of lessee not lessor—Lessee must exercise option before expiration of lease—Lease would normally continue on same terms and conditions as before—Clause 2 appearing to confer option, ie agreement in which irrevocable offer made by one party to other—Clause 4.2, on other hand, providing for possibility that lessor may in future make offer to lessee on terms to be determined at some future date—Clause 4.2 containing neither irrevocable offer by lessor, nor irrevocable undertaking by lessee to accept any future offer by lessor if lessor decided to make it—Not accurate to refer to clause 4.2 as conferring ‘an option’ upon lessors—High Court incorrect when finding that clause 2 of Schedule to be read subject to clause 4.2 of Memorandum of General Conditions of Lease—Two clauses could not be read together—Clause 4.2 not containing option—Merely containing provision stating that lessor may decide once lease period coming to an end to offer lessee further contract on same or different terms—Not purporting to require lessor to do so, nor to compel lessee to accept such offer, if ever made—Clause 4.2 clearly contemplating different or new lease in future—Not renewal of existing lease—Reasoning of High Court that clause 4.2 a provision regulating ‘option’ referred to in clause 2 of Lease Schedule could not be accepted.
2011 FEBRUARY 8, 17
Practice—Irregular proceedings—Application in terms of High Court rule 30—Such application must comply with rule 6(11)—Such proceedings incidental to pending proceedings—Parties not required to file affidavits unless specific circumstances required such affidavits—Where exchange of affidavits was required, short form (form 2(a)) was required—In present case defendant given sufficient notice with necessary particulars—Present case not requiring filing of affidavits.
Practice—Pleadings—Simple summons for debt or liquidated demand—Such summons to be as near as possible to form 9—Summons must contain sufficient particularity for defendant to know what case he must meet—Such summons should be able to stand on its own feet and not amount to a nullity—Allegations must be sufficient for court to decide whether judgment should/could be given—Simple summons need not give minute detail and comply with rule 18(4) and 18(6).
SHIVUTE CJ, MAINGA JA and STRYDOM AJA
2011 MARCH 28; APRIL 20
Appeal—Application for condonation for late filing of notice of appeal—Court dismissing application for condonation without dealing with merits of appeal—Appeal should be struck from roll—Incorrect in these circumstances to dismiss appeal.
Appeal—Application for condonation for late filing of notice of appeal—Court a quo refusing application for condonation—Court not dealing with merits of appeal—Appellant can appeal to Supreme Court as of right, against refusal of application for condonation.
2011 JUNE 6
Citizenship—Citizenship by birth—Section 26 of Citizenship Act 14 of 1990 not applicable to Namibian citizens by birth in terms of art 4(1)(b)of Constitution.
2011 MAY 5, 13
Constitutional law—Right to fair trial entrenched in art 12 of Constitution—Despite informality of proceedings in district labour court and Labour Court, party entitled to be fully apprised of case it is required to meet—Reference in art 12 to ‘competent court’—Such reference not only to properly constituted court, but also that presiding officer has necessary skill to deal competently with case.
2011 JULY 4, 7
Criminal procedure—Sentence—Accused convicted of murdering her one-year-old son—Accused having diminished responsibility when crime committed—Accused sentenced to 12 years’ imprisonment of which four years conditionally suspended for five years.
2011 JUNE 20, 23
Principal and agent—Locus standi of agent—Agent has no locus standi to institute proceedings in his own name—Agent must have authority from principal to do so.
2011 JUNE 27; JULY 6
Police—Actions against—One month notice period in terms of s 39 of Police Act 19 of 1990—Meaning of ‘civil proceedings’ as used in s 39—Applicant being granted interdictory relief against inter alia, third respondent Minister—Interdictory relief not falling under ‘civil proceedings’—Such interpretation would render section unconstitutional—Inclusion of urgent interdictory relief under ‘civil proceedings’ would deny litigant immediate access to court as of right.
MAINGA JA, LANGA AJA and O’REGAN AJA
2011 APRIL 7; JUNE 9
Church—Excommunication of priests—Court has no jurisdiction to adjudicate on such matter—Matter of excommunication is prerogative of church.
Appeal—Application for condonation for late filing of notice of appeal—Appellant showing flagrant disregard for court rules—Even though appellant had prospects of success on part of order, court would not condone late lodging of appeal.
2011 JULY 28
Practice—Judicial case management—Compliance of parties and legal practitioners with rule 37 of High Court rules—Court would impose sanctions contemplated in rule 37(16) where parties failed to comply—System cannot work efficiently if practitioners and parties fail to comply.
SHIVUTE J and GEIER AJ
2011 JANUARY 31; MAY 19
Criminal law—Statutory offences—Offence created by s 35(1) of the Anti-Corruption Act 8 of 2003—Section not creating strict liability, ie punishing innocent violations of section—Mens rea an element of crime—Form of mens rea was dolus—Mens rea in form of culpa only in exceptional circumstances—Offence created by s 35(1) requiring mens rea in form of dolus.
SHIVUTE CJ, STRYDOM AJA and CHOMBA AJA
2008 OCTOBER 21; 2011 AUGUST 22
Constitutional law—Fundamental rights—Equality before the law guaranteed by art 10(1) of Namibian Constitution—Right of equality before the law not absolute—Section 2(2) of the Post and Telecommunications Act 19 of 1992 requiring that no person other than Telecom can provide telecommunication services without licence—Telecom required by Act to provide countrywide communication services—Telecom created as organ of State—Purpose of Act to redress past imbalances—Telecom cannot choose area of operation—Appellant as private company out to make profit could choose such operational area—Appellant and Telecom not equal—Article 10(1) accordingly not found to have been violated by s 2(2).
Constitutional law—Fundamental rights—Right to practise any business or profession in art 21(1)(j) of Constitution—Fact that appellant requiring licence for telecommunication services not precluding it from practising business or profession—Appellant not proving that could not do business as a result—Enactment of Telecom Act amounting to affirmative action policy in terms of art 23 of Constitution.
Constitutional law—Fundamental rights—Freedom of speech and expression in terms of art 21(1)(a) of Constitution—Requirement that appellant must have licence to provide telecommunication services not amounting to violation of art 21(1)(a)—Appellant still able to provide such services—Fact that appellant required to pay licence fees not limiting right to freedom of speech and expression.
2011 JUNE 21; AUGUST 10
Land—Possession of land—First respondent making improvements to applicant’s land which first respondent had occupied—First respondent bona fide possessor until applicant proving legal title—First respondent entitled to compensation for period of lawful occupation—First respondent, however, not entitled to right of retention.
2011 JULY 8; AUGUST 12
Labour law—Labour arbitration tribunal—Aim of labour tribunal hearings not to require strict procedure of court of law, but rather to make it more flexible—Arbitrator empowered to determine procedure to be followed, how evidence must be presented and where onus rests—Arbitrator must be independent, neutral and impartial.
SHIVUTE CJ, LANGA AJA and O’REGAN AJA
2011 APRIL 4; JULY 15
Practice—Parties—Locus standi—Citizens in constitutional State entitled to come to Court where there is legal uncertainty—First appellant entering into agreement with second appellant to provide conveyancing services at hourly rate—Appellants seeking order declaring conveyancing tariffs infringement of arts 21(1)(j)and art 18 of Constitution—First appellant entitled to approach Court.
Constitutional law—Right to practise business or profession in terms of art 21(1)(j)—Appellants challenging conveyancing tariffs—Regulation of practice of profession not necessarily infringement of art 21(1)(j)—Regulation should be rational—However, such regulation should not be so invasive as to constitute barrier to practising profession—Court satisfied that purpose of conveyancing tariffs is to create certainty to purchasing and mortgaging of property—Tariffs accordingly not infringing art 21(1)(j).
Constitutional law—Fair administrative justice in terms of art 18—Enquiry regarding reasonableness is contextual—Factors to be considered: nature of administrative conduct, identity of decision-maker, range of factors relevant to decision and nature of any competing interests involved—At core of concept of reasonableness was most reasonable course among many—Judges not to impose course of conduct they would have chosen—Judges must decide whether course selected by decision-maker was one of the courses within range of reasonable courses available—Appellants not proving that laying down of conveyancing tariffs constituting infringement of art 18.
2011 MARCH 1, 2; JULY 21, 28
Contract—Specific performance—Plaintiff purchasing immovable property from first defendant—First defendant raising defence of impossibility of performance—Property registered in name of second defendant—First defendant not proving why transfer could not be passed to her and then to plaintiff—Court ordering first defendant to arrange for transfer from second defendant to first defendant and then to plaintiff.
2011 JUNE 14; AUGUST 5
Words and phrases—Res litigiosa—Concept of res litigiosa part of Namibian law—Court setting out and discussing general principles applicable to concept of res litigiosa.
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