January 2011

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the January 2011 edition of the Advance Notification Newsletter.

Available for the New Year will be the Namibian Law Reports 2010(1). See below for the table of cases and flynotes.

The Juta law reports team wishes all its subscribers a restful holiday, and a prosperous and peaceful New Year!

 

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

SOUTH AFRICAN LAW REPORTS

Learner attacks teacher with hammer: is the school liable?

The facts in Jacobs v Chairman, Governing Body, Rhodes High School, and Others 2011 (1) SA 160 (WCC) make for disturbing reading. An unhappy learner attacked his teacher with a hammer and seriously injured her. In her claim for damages, liability turned on whether the school's principal and other staff ought to have foreseen that the learner was about to commit violence, and whether they could have prevented the attack.

Government plans v Private interests

The government had made plans to build a deepwater port at Coega, and also proposed to develop the surrounding land into a large industrial complex.The plans, beginning in 2000, earmarked certain private land for expropriation, though to date formalities for expropriation had not been completed. The owners contended that the threat of expropriation had deprived them of their rights to property under the Constitution.  The crux of the issue was whether the threat of expropriation had deprived the owners of the full use of and enjoyment of the property, to the extent that it amounted to deprivation.   Offit Enterprises (Pty) Ltd and Another v Coega Development Corporation (Pty) Ltd and Others 2011 (1) SA 293 (CC)

Insurance policy clauses . . . repudiation on non-disclosure

The insurer had repudiated the insured's claim on the ground that he had not disclosed a conviction for reckless and negligent driving. The court examined the relevant disclosure clauses in the policy and found that the interplay between the clauses resulted in uncertainty. The insurer had failed to expressly stipulate the information required. The court found in favour of the insured and that there had not been non-disclosure. Bruwer v Nova Risk Partners Ltd2011 (1) SA 234 (GSJ)

SOUTH AFRICAN CRIMINAL LAW REPORTS

Humble wage earner escapes imprisonment after 11 years - fine imposed
Eleven years after lodging an appeal against an 18 month sentence, of which six were suspended, the court found that the trial court magistrate had been under a duty to call for such evidence as was necessary to enable her to exercise her sentencing discretion fairly. Insufficient consideration was given to the facts that appellant was a first offender; the firearm had been incapable of immediate unlawful use; the appellant had made a full confession to police; remorse was demonstrated by pleading guilty; and that the firearm was not retained for nefarious use. Instead, the trial court and the High Court focused on the prevalence of violent crimes executed with unlicensed firearms. During 11 years while the appeal was pending the appellant had no further brush with the law. Sentence of imprisonment set aside and a fine of R6000 imposed. S v Samuels2011 (1) SACR 9 (SCA).

When doing the crime, be prepared to do the time - no bail for a person trying to evade trial or tamper with evidence

The passage of time does not diminish the likelihood of a man's flight, nor reduce the chances of interference with evidence. In S v Ali 2011 (1) SACR 34 (ECP) a man charged with kidnapping and murder, and released on bail, was arrested again, this time on charges of corruption, and defeating or obstructing the administration of justice. The charges arose from an alleged attempt to destroy certain evidence relating to the main charges of kidnapping and murder. Delays caused by decisions of the prosecution were not in themselves reason for a finding that an arrested person was entitled to bail. The court found that the magistrate did not err in finding that the man's personal circumstances were outweighed by the possibility that he would evade trial, or tamper with the evidence. His appeal against the refusal of bail was dismissed.

Private prosecution - mere extortion and oppression or a true desire to have justice done?

See Crookes v Sibisi and Others 2011 (1) SACR 23 (KZP) for an interesting read on private prosecution. A man wanted his prosecution to be stayed on the grounds that the private prosecutors were attempting to obtain money from him, and that they did not really want to prosecute him. In this instance there was insufficient basis for finding that the dominant motive of the private prosecutors was one of extortion or oppression, rather than a desire to see justice done. There was no good reason why a private prosecutor could not withdraw on receipt of acceptable compensation. The prosecutor was dominus litis, and should be able to withdraw if he or she wished to do so. The withdrawal of the previous charge and the institution of fresh proceedings were not an abuse of the process of the court.

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The Juta Law Reports Team

 

SOUTH AFRICAN LAW REPORTS

TABLE OF CASES

• Ackermans Ltd v Commissioner, South African Revenue Service 2011 (1) SA 1 (SCA)

• Pep Stores (SA) Ltd v Commissioner, South African Revenue Service 2011 (1) SA 1 (SCA)

• Buffalo Freight Systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd and Another 2011 (1) SA 8 (SCA)

• De Aguiar v Real People Housing (Pty) Ltd 2011 (1) SA 16 (SCA)

• Ferndale Crossroads Share Block (Pty) Ltd and Others v Johannesburg Metropolitan Municipality and Others 2011 (1) SA 24 (SCA)

• Tecmed (Pty) Ltd and Others v Nissho Iwai Corporation and Another 2011 (1) SA 35 (SCA)

• FirstRand Bank Ltd v Gazu 2011 (1) SA 45 (KZP)

• Dass and Others NNO v Lowewest Trading (Pty) Ltd 2011 (1) SA 48 (KZD)

• Chretien and Another v Bell 2011 (1) SA 54 (SCA)

• Boerboonfontein BK v La Grange NO en 'n Ander 2011 (1) SA 58 (WCC)

• Dormell Properties 282 CC v Renasa Insurance Co Ltd and Others NNO 2011 (1) SA 70 (SCA)

• Mutual & Federal Insurance Co Ltd v SMD Telecommunications CC 2011 (1) SA 94 (SCA)

• Saayman v Road Accident Fund 2011 (1) SA 106 (SCA)

• Janse van Rensburg and Another v Koekemoer and Others 2011 (1) SA 118 (GSJ)

• Joint Owners, Erf 5216 Hartenbos v Minister for Local Government, Environmental Affairs and Development Planning, Western Cape, and Another 2011 (1) SA 128 (WCC)

• National Director of Public Prosecutions and Another v Tshavhungwa and Another 2011 (1) SA 141 (SCA)

• Tshavhungwa v National Director of Public Prosecutions and Others 2011(1) SA 141 (SCA)

• Gois t/a Shakespeare's Pub v Van Zyl and Others 2011 (1) SA 148 (LC)

• Jacobs v Chairman, Governing Body, Rhodes High School, and Others 2011 (1) SA 160 (WCC)

• Ex parte Sibisi 2011 (1) SA 192 (KZP)

• FirstRand Bank Ltd v Beyer 2011 (1) SA 196 (GNP)

• Lander v O'Meara and Another 2011 (1) SA 204 (KZD)

• McLaren v Badenhorst and Others 2011 (1) SA 214 (ECG)

• Naidoo v Somai and Others 2011 (1) SA 219 (KZP)

• Ram Transport (Pty) Ltd v Replication Technology Group (Pty) Ltd (In Liquidation) and Another 2011 (1) SA 223 (GSJ)

• Saxum Group (Pty) Ltd v Dalefern Properties (Pty) Ltd and Another 2011(1) SA 230 (GSJ)

• Bruwer v Nova Risk Partners Ltd 2011 (1) SA 234 (GSJ)

• Muller v BOE Bank Ltd and Others 2011 (1) SA 252 (WCC)

• Stuttafords Stores (Pty) Ltd and Others v Salt of the Earth Creations (Pty) Ltd 2011 (1) SA 267 (CC)

• Zokufa v Compuscan (Credit Bureau) 2011 (1) SA 272 (ECM)

• Offit Enterprises (Pty) Ltd and Another v Coega Development Corporation (Pty) Ltd and Others 2011 (1) SA 293 (CC)

• SA Taxi Securitisation (Pty) Ltd v Mbatha and Two Similar Cases 2011 (1) SA 310 (GSJ)

FLYNOTES

ACKERMANS LTD v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE; PEP STORES (SA) LTD v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE (SCA)

NAVSA JA, CLOETE JA, CACHALIA JA, MHLANTLA JA and BOSIELO JA

2010 SEPTEMBER 20; OCTOBER 1

Revenue—Income tax—Deductions—Expenditure incurred in production of income—Actual incurring of liability required—Contingent liabilities sold as part of sale of business—Lesser purchase price accepted as result of value assigned to contingent liabilities—Seller claiming deduction equal to sum of contingent liabilities—Transaction not resulting in discharge of obligation owed by seller to purchaser—Obligation to pay required—Deduction disallowed—Quaere: Whether deduction claimable by purchaser once liabilities no longer contingent—Income Tax Act 58 of 1962, s 11(a).

 

BUFFALO FREIGHT SYSTEMS (PTY) LTD v CRESTLEIGH TRADING (PTY) LTD AND ANOTHER (SCA)

HEHER JA, SHONGWE JA, TSHIQI JA, MAJIEDT AJA and SALDULKER AJA

2010 MARCH 12; MAY 24

Practice—Applications and motions—Dispute of fact—Approach of court—Court to be cautious of deciding probabilities in face of conflicts in affidavits—Although judgment on credibility to be left open in absence of direct and obvious contradictions, stronger line sometimes required to avoid injustice—Evidence contrary to all reasonable probabilities or conceded facts, which no reasonable person can believe, going for nothing—Evidence of single witness to undiscredited fact not to be disregarded—Such approach adopted where respondents’ version fanciful and untenable—Applicant’s version to contrary accepted.

 

DE AGUIAR v REAL PEOPLE HOUSING (PTY) LTD (SCA)

MTHIYANE JA, VAN HEERDEN JA, MLAMBO JA, SHONGWE JA and GRIESEL AJA

2010 MAY 4, 24

Appeal—Generally—Receiving further evidence on appeal—Application for leave to adduce further evidence—Requirements—Incumbent on applicant to show court that it was not due to any remissness on his/her part that evidence in question was not adduced at trial—Inadequate presentation of litigant’s case at trial will only in rarest instances be remediable by adduction of further evidence at appeal stage—Classic formulation of basic requirements for adducing further evidence on appeal reiterated.

Ejectment—Claim based on ownership—Defences—Defence based on alleged enrichment lien—Agreement between seller and puchaser (formerly landlord and tenant) providing purchaser would vacate property in event of failure to pay purchase price or furnish bank guarantee—Application for eviction upon breach by purchaser—Allegation of enrichment lien arising from improvements to property effected during currency of lease incompatible with purchaser’s undertaking to vacate property upon breach—Evidence of improvements not entitling purchaser to avoid consequences of undertaking to vacate property or affect application for eviction.

 

FERNDALE CROSSROADS SHARE BLOCK (PTY) LTD AND OTHERS v JOHANNESBURG METROPOLITAN MUNICIPALITY AND OTHERS (SCA)

MPATI P, HEHER JA, CACHALIA JA, BERTELSMANN AJA and EBRAHIM AJA

2010 AUGUST 19; SEPTEMBER 30

Landlord and tenant—Lease—What constitutes—Agreement, though using language typically associated with lease and containing essentialia of lease, containing provisions not normally associated with lease—Argument that lease nominal and that lease portion of agreement of ancillary nature—Intention of parties as expressed in contract trumping their motives—Language used indicating intention to conclude lease, and agreement also treated as lease—No room for contention that agreement not one for lease.

Local authority—Land—Leases—Non-compliance with provisions of local-government ordinance governing letting of municipal property—Effect—Jurisdictional fact necessary for exercise of power to let immovable property absent—In absence of such jurisdictional fact, municipality cannot validly exercise power to property—Such lease invalid ab initio—Local Government Ordinance 17 of 1939 (Gauteng), s 79(18).

 

TECMED (PTY) LTD AND OTHERS v NISSHO IWAI CORPORATION AND ANOTHER (SCA)

HARMS DP, BRAND JA and MALAN JA

2009 NOVEMBER 10, 25

Practice—Parties—Substitution—Rules providing simplified form of substitution, subject to right of affected party to apply for relief—Court still having power to grant substitution of parties on substantive application where rules not applying—In absence of such application, effectiveness of notice under rules depending on whether it was given in situation covered by rules—Where substitution application upheld, substitution will materialise—But where application dismissed, situation cannot be saved by notice under rules—Uniform Rules of Court, rule 15.

Prescription—Extinctive prescription—Interruption—By service on debtor of process whereby creditor claims payment of debt—Plaintiff company and another company merging so that merged company succeeding to all assets, rights and liabilities of plaintiff by operation of law—Amendment of particulars of claim by substitution of new merged company as plaintiff—Whether interruption lapsing—New merged company stepping into shoes of plaintiff and plaintiff in effect remaining same entity—Substitution of new merged company as plaintiff in action not causing interruption to lapse—Prescription Act 68 of 1969, s 15(2).

 

FIRSTRAND BANK LTD v GAZU (KZP)

LOPES J

2010 SEPTEMBER 20, 23

Mortgage—Mortgage bond—Action on—Bond providing for certificate by mortgagee constituting prima facie proof of balance owing and that it is due and payable—No requirement in rules of court or practice directives of KwaZulu-Natal High Court that such certificate necessary to complete cause of action.

Practice—Summons—Service—At defendant’s chosen domicilium citandi et executandi—Summons served by placing it under a rock on vacant plot (mortgaged property) which was such domicilium—Plaintiff had great deal of information concerning defendant, including residential address, telephone numbers and probably e-mail address—Unfair of plaintiff to make no further effort to contact defendant and notify her that it was taking drastic action against her—Default judgment refused.

 

DASS AND OTHERS NNO v LOWEWEST TRADING (PTY) LTD (KZD)

TSHABALALA JP

2009 NOVEMBER 10 2010 JANUARY 18

Practice—Judgments and orders—Summary judgment—Waiver of right to apply for—Plaintiff filing notice of bar after having filed application for summary judgment—Notice of bar an irregular step which could be set aside on application of defendant—Where, however, defendant chooses to file plea in compliance with notice of bar, irregular filing of notice of bar cured thereby—Plaintiff not having waived right to apply for summary judgment—Uniform Rules of Court, rule 30(2)(a).

Practice—Pleadings—Generally—Reliance on written contract—Failure to annex contract—Court may condone non-compliance, in particular, in absence of prejudice to opposing party—Opposing party also entitled to call for any document referred to in pleading—Uniform Rules of Court, rules 18(6), 35(12) and 35(14).

 

CHRETIEN AND ANOTHER v BELL (SCA)

NAVSA JA, NUGENT JA, PONNAN JA, MAYA JA and TSHIQI AJA

2009 NOVEMBER 13, 26

Land—Sale—Contract—Formalities—Statutory requirement that contract to be in writing—Material terms—Purchase price—Time of payment of purchase price not stipulated—Contract providing that parties would agree in writing as to ‘purchase price payment details’, but such agreement not concluded—As time of payment a material term of contract, contract not complying with statutory requirement, even though purchaser had paid purchase price in full, together with all costs necessary to effect transfer into her name—Alienation of Land Act 68 of 1981, s 2(1).

 

BOERBOONFONTEIN BK v LA GRANGE NO EN ’N ANDER (WCC)

LOUW R, SALDANHA R en BINNS-WARD R

2010 MAART 12; APRIL 15

Close corporation—Members—Deceased member—Executor of member’s deceased estate having competence, as ‘representative’ of member, to represent member concerned in all matters in which member could have acted—Therefore entitled to be given notice of any meeting of members, to attend such meeting and to exercise voting rights of deceased member—Executor of estate of deceased member (who had 50 percent interest in corporation) not given notice of meeting of members where it was decided that corporation would apply for eviction of deceased member’s son from corporation’s farm—Application therefore not authorised by corporation and correctly dismissed in court of first instance—Close Corporations Act 69 of 1984, s 29(3)(e).

 

DORMELL PROPERTIES 282 CC v RENASA INSURANCE CO LTD AND OTHERS NNO (SCA)

MPATI P, CLOETE JA, CACHALIA JA, MHLANTLA JA and BERTELSMANN AJA

2010 SEPTEMBER 13; OCTOBER 1

Contract—Interpretation—Terms as to time—Contract specifying particular expiry date for exercise of right—No need to determine expiry date by method designed to calculate period of days—Likewise unnecessary to apply civil method of computation of time where expiry date dependent upon happening of particular event and not upon effluxion of particular number of days or weeks.

Contract—Interpretation—Terms as to time—Contract specifying particular expiry date for exercise of right or performance of duty—Self-evident that right may be exercised, or obligation performed, on that day—Wrong to non-suit litigant on basis that right or obligation had expired at midnight on previous day.

Contract—Consensus—Rectification—Absence of antecedent agreement proving common intention—Not in itself precluding rectification of written agreement that does not correctly reflect parties’ intention.

Engineering and construction law—Building contract—Construction guarantee—Whether payment of guarantee issued by insurer to employer, to provide cash fund to complete building project in case building contract cancelled because of contractor’s default, can be enforced by employer against insurer after employer has been held in arbitration proceedings against contractor to have repudiated building contract—Contract validly cancelled by contractor—Whether order enforcing guarantee would be academic.

 

MUTUAL & FEDERAL INSURANCE CO LTD v SMD TELECOMMUNICATIONS CC (SCA)

NAVSA JA, CLOETE JA, MHLANTLA JA, SHONGWE JA and TSHIQI JA

2010 AUGUST 19; OCTOBER 1

Insurance—Personal accident policy—Interpretation—Insured covered in event of disability or death caused ‘solely’ and ‘independently of any other cause’ by violent, accidental, external and visible means—Whether disability or death caused by pre-existing infirmities excluded—If parties intending to so exclude pre-existing infirmities, this should be unequivocally stated in policy.

Insurance—Liability of insurer—Liability exclusion clause—Reliance upon by insurer—In action under policy, insurer failing to plead exclusion clause or to rely on it during trial—Insurer not entitled to rely on exception clause on appeal or to seek amendment on appeal—If clause had been pleaded, insured would have had opportunity of rebutting any evidence that occurrence fell within terms of exception clause.

 

SAAYMAN v ROAD ACCIDENT FUND (SCA)

HEHER JA, BOSIELO JA, LEACH JA, MAJIEDT AJA and SERITI AJA

2010 MAY 6; SEPTEMBER 30

Evidence—Admissions—What amounts to admission—Statement against interest having effect of binding party on whose behalf it was made—If effect absent, statement not admission and rules relating to withdrawal of admissions not applying thereto—Prejudice to other party not an issue—Mere concession by counsel in course of addressing court not amounting to unequivocal admission and not intended to be formal admission—Such concession may be withdrawn at any time, particularly where it will not prejudice other party—Such the case where withdrawal made during trial and other party has ample time to call evidence to prove point in issue—In absence of formality, context necessarily decisive of whether admission made.

 

JANSE VAN RENSBURG AND ANOTHER v KOEKEMOER AND OTHERS (GSJ)

CJ CLAASSEN J

2010 SEPTEMBER 22; OCTOBER 11

Servitude—Habitatio—Creation—Servitude of habitatiomay not be created by oral agreement—Right of habitatio, being real right, only enforceable upon registration thereof against title deed of land—Right of habitatioamounting to interest in land, the alienation of which must be in writing as condition for validity—Donation of right of habitatioalso alienation and required to be in writing—Alienation of Land Act 68 of 1981, s 2(1), and General Law Amendment Act 50 of 1956, s 5.

 

JOINT OWNERS, ERF 5216 HARTENBOS v MINISTER FOR LOCAL GOVERNMENT, ENVIRONMENTAL AFFAIRS AND DEVELOPMENT PLANNING, WESTERN CAPE, AND ANOTHER (WCC)

BAARTMAN J

2010 MAY 22, 24; SEPTEMBER 2

Environmental law—Environmental legislation—Enforcement—Environmental authorisation—Whether required—Listed activities—Whether activity having been ‘commenced’ with before its listing and thus exempt from authorisation—Whether activity conducted ‘in furtherance of a listed activity’—Whether reasonably direct connection existing between such activity and listed activity—Activities contravening Conservation Act requirements may not be relied on as activities commenced with prior to listing—National Environmental Management Act 107 of 1998, s 1 read with s 24F(1) and Environment Conservation Act 73 of 1989, ss 21 and 22.

 

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AND ANOTHER v TSHAVHUNGWA AND ANOTHER; TSHAVHUNGWA v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS (SCA)

NUGENT JA, LEWIS JA, MLAMBO JA, MAYA JA and GRIESEL AJA

2009 SEPTEMBER 16; NOVEMBER 2

Public service—Employee—Dismissal—Such not constituting administrative action—Cannot found application for review of decision to dismiss on ground that it infringed employee’s rights to lawful administrative action.

 

GOIS t/a SHAKESPEARE’S PUB v VAN ZYL AND OTHERS (LC)

WAGLAY J

2003 SEPTEMBER 11, 25

Labour law—Commission for Conciliation, Mediation and Arbitration—Arbitration proceedings—Arbitration award by commissioner—Rescission—Commission ruling that it did not have jurisdiction to entertain application for rescission of award by it—Such ruling amounting to performance, or purported performance, of function of Commission—Ruling accordingly open to review by Labour Court—Labour Relations Act 66 of 1995, s 158(1)(g).

Labour law—Commission for Conciliation, Mediation and Arbitration—Arbitration proceedings—Arbitration award by commissioner—Rescission—Jurisdiction—Commission only appropriate forum to which application may be made for rescission of award, whether certified or not—No basis for finding that such application to be made to Labour Court or that writ issued pursuant to award and certification to be set aside before application for rescission will be entertained—Labour Relations Act 66 of 1995, s 144.

Execution—Stay—Application—General principles applicable to such applications set out—Stay only granted where real and substantial justice requires it or where injustice would otherwise result—Court will be guided by factors usually applicable to interim interdicts—Court to be satisfied that applicant has well-grounded apprehension that execution taking place at instance of respondent and that irreparable harm will result if stay not granted—Irreparable harm will result if there is possibility that underlying causa may be removed—Court not concerned with merits of underlying dispute.

 

JACOBS v CHAIRMAN, GOVERNING BODY, RHODES HIGH SCHOOL, AND OTHERS (WCC)

MOOSA J

2009 MAY 11–14, 18–21

2009 JUNE 1–2, 4; AUGUST 3–6, 12–13; OCTOBER 13–15, 19–20

2009 NOVEMBER 16–19, 23–26, 30; DECEMBER 1–3

2010 MARCH 8–11, 15–17; JUNE 7–10; NOVEMBER 4

Delict—Unlawfulness or wrongfulness—Duty of school principal to teacher—Principal has duty to ensure safety of teacher at hands of learner.

 

EX PARTE SIBISI (KZP)

SWAIN J, MNGUNI J and D PILLAY J

2010 AUGUST 10; SEPTEMBER 17

Minor—Guardianship—Jurisdiction—Application for order granting guardianship—Children’s court lacking jurisdiction to hear such application—Application to be made to High Court—Semble: Intervention by legislature may be necessary to clarify jurisdiction of children’s courts and divorce courts to determine guardianship of children—Children’s Act, ss 22(4)(b), 23, 24, 26(1)(b), 28 and 29.

 

FIRSTRAND BANK LTD v BEYER (GNP)

EBERSOHN AJ

2010 SEPTEMBER 21, 29

Practice—Judgments and orders—Summary judgment—Verifying affidavit—Requirement that deponent able to swear positively to facts—Habit of corporate institutions to have employee depose to deficient pro forma verifying affidavit decried—Deponents on behalf of companies and other legal personae to state unequivocally that facts within their personal knowledge, and how they acquired such knowledge, to enable court to assess evidence before it—Uniform Rules of Court, rule 32(2).

Practice—Judgments and orders—Summary judgment—Verifying affidavit—Whether requisite verification occurring—Requirements restated.

Practice—Judgments and orders—Summary judgment—Non-compliance with court rule governing applications for summary judgment—Condonation—Court having power to condone mere technical non-compliance with rule—But court cannot condone non-compliance with safeguards built into rule for benefit of defendants—Uniform Rules of Court, rule 32(2).

 

LANDER v O’MEARA AND ANOTHER (KZD)

GORVEN J

2009 MAY 13

Costs—Attorneys’ fees—Fees for non-litigious work—Assessment of by law society council or committee thereof—Review of assessment—Such assessment subject to review as if it were a determination by taxing master of High Court—Court to be satisfied that assessment clearly wrong, ie discretion not properly exercised, mind not applied, relevant factors disregarded, irrelevant factors taken into account, law wrongly applied or interpreted, or ruling unreasonable—Attorneys Act 53 of 1979, s 74(5) read with Uniform Rules of Court, rule 48.

 

McLAREN v BADENHORST AND OTHERS (ECG)

CHETTY J and MAKAULA AJ

2010 MAY 21; JUNE 2

Magistrates’ court—Civil proceedings—Jurisdiction—Consent—Validity—Consumer who, in referral of debt review to court in terms of NCA, signs consent to jurisdiction of magistrates’ court, not clothing court for particular district with jurisdiction it does not otherwise have—Magistrates’ Courts Act 32 of 1944, s 28(1)(f)read with National Credit Act 34 of 2005, s 86(8)(b).

Magistrates’ court—Civil proceedings—Jurisdiction—Consent—Validity—All parties to proceedings having to consent to jurisdiction of court—Where only one of parties so consents, consent null and void—Magistrates’ Courts Act 32 of 1944, s 45(1).

 

NAIDOO v SOMAI AND OTHERS (KZP)

LOPES J

2010 SEPTEMBER 20, 23

Practice—Judgments and orders—Default judgment—Rescission—Plaintiff conceding that default judgment to be rescinded—Consequences of default judgment also falling to be set aside—Thus writ of execution, writ of ejectment and attachment of property also to be set aside.

 

RAM TRANSPORT (PTY) LTD v REPLICATION TECHNOLOGY GROUP (PTY) LTD (IN LIQUIDATION) AND ANOTHER (GSJ)

VAN OOSTEN J

2010 JULY 20; SEPTEMBER 1

Company—Winding up—Enquiry into affairs of company—Inspection of records of company—Application for order authorising creditor to inspect records of company being wound up—Court having wide discretion—Application by proven creditor who suspected that affairs of company had been conducted in reckless and fraudulent manner granted—Companies Act 61 of 1973, s 360(1) and s 424.

 

SAXUM GROUP (PTY) LTD v DALEFERN PROPERTIES (PTY) LTD AND ANOTHER (GSJ)

LJ VAN DER MERWE AJ

2009 APRIL 24

Practice—Intermediate proceedings—Security for costs—Application for security in respect of application for rescission of judgment granted by agreement in summary judgment proceedings—Distinction between application for rescission of default judgment and application for rescission of judgment granted by agreement—Latter judgment final in effect—Application for rescission of such judgment not of interlocutory nature—Security for costs can be granted in respect of such application—Uniform Rules of Court, rule 47(1) read with Companies Act 61 of 1973, s 13.

 

BRUWER v NOVA RISK PARTNERS LTD (GSJ)

CJ CLAASSEN J, MASIPA J and COPPEN J

2010 OCTOBER 21, 25

Insurance—Policy—Interpretation—Policy including both general and specific duty to disclose—Principle of expressio unius est exclusio alteriusapplying to exclude disclosure not specifically referred to—Restrictive interpretation required for any provision placing limitation upon clearly expressed obligation to indemnify—Where inclusion of both general and specific duties to disclose creating ambiguity, interpretation favouring insured to be followed—Requesting specific disclosure representing to insured that insurer not interested in information not requested, entitling insured to assume same.

 

MULLER v BOE BANK LTD AND OTHERS (WCC)

BINNS-WARD J

2009 FEBRUARY 4–26; JUNE 2–4; DECEMBER 7–8 2010 MAY 25

Evidence—Documentary evidence—Admissibility—Copy of document—Court may admit such copy if proved to be true copy of original and presiding officer satisfied that undue delay and expense would otherwise result—Not requirement that copy be certified true copy—No prescription of what evidence should constitute proof that copy true copy of original, but it should be proof on balance of probabilities—In casu, affidavit proved to be true copy of original admitted in evidence where original could not be found and deponent had died—Civil Proceedings Evidence Act 25 of 1965, s 34(2).

 

STUTTAFORDS STORES (PTY) LTD AND OTHERS v SALT OF THE EARTH CREATIONS (PTY) LTD (CC)

NGCOBO CJ, BRAND AJ, CAMERON J, FRONEMAN J, KHAMPEPE J, MOGOENG J,

NKABINDE J, SKWEYIYA J and YACOOB J

2010 SEPTEMBER 2

Constitutional practice—Appeal—To Constitutional Court—Leave to appeal—In what cases—Interests of justice—Leave to appeal against decision on particular dispute between parties—Determination of such dispute would have no practical effect on material issues between parties—Not in interests of justice to grant leave—Leave to appeal against judge’s refusal to recuse himself refused, where judge had subsequently retired and would not be hearing any further proceedings between parties.

Practice—Judgments and orders—Judgment—Use of counsel’s heads of argument in judgment—May not be improper to do so—But better that judgment in judge’s own words—Importance of formulating convincing reasons justifying decision—No better discipline for judge than writing or giving such reasons.

 

ZOKUFA v COMPUSCAN (CREDIT BUREAU) (ECM)

ALKEMA J

2009 MAY 5 2010 JULY 1

Interdict—Jurisdiction—High Court—High Court will have jurisdiction if jurisdictional requirements for interdict satisfied by facts originating or present within its territorial area of jurisdiction—All requirements for interdict to be taken into account in enquiry—Requirement of clear right, which is usually breached at place where right vests, not to be disregarded—Supreme Court Act 59 of 1959, s 19(1).

Credit agreement—Consumer credit agreement—Credit bureau information—Right of consumer to be provided with credit report upon request—Violation of right by credit provider—Application for mandamus—Jurisdiction of High Court where credit provider peregrinus of court—Incolaconsumer’s right to receive report violated in area of jurisdiction of court—Court having jurisdiction to entertain application for mandamus directing credit provider to comply with its obligation to issue consumer with credit report—National Credit Act 34 of 2005, s 70(2)(g).

 

OFFIT ENTERPRISES (PTY) LTD AND ANOTHER v COEGA DEVELOPMENT CORPORATION (PTY) LTD AND OTHERS (CC)

NGCOBO CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MOGOENG J, NKABINDE J, SKWEYIYA J, YACOOB J and BRAND AJ

2010 AUGUST 3; NOVEMBER 18

Constitutional law—Human rights—Right to property—Deprivation of property—What constitutes—Conduct causing substantial interference or limitation going beyond normal restrictions on property use or enjoyment—Constitution, s 25(1).

 

SA TAXI SECURITISATION (PTY) LTD v MBATHA AND TWO SIMILAR CASES (GSJ)

LEVENBERG AJ

2010 FEBRUARY 17; MARCH 30

Credit agreement—Consumer credit agreement—Debt enforcement—Summary judgment—Defendant relying on defences in Act—Principles in Breitenbach v Fiat applicable to defendant’s affidavit—National Credit Act 34 of 2005.

Credit agreement—Consumer credit agreement—Debt review—Termination—When competent—Right to give notice to terminate review not reciprocal to obligation to deal in good faith under s 86(5)—National Credit Act 34 of 2005, s 86(10).

Credit agreement—Consumer credit agreement—Suspension—Effect—Where consumer’s obligations under agreement suspended, consumer cannot retain security—National Credit Act 34 of 2005, s 84.

 

SOUTH AFRICAN CRIMINAL LAW REPORTS

TABLE OF CASES

• S v Ngcamu and Another 2011 (1) SACR 1 (SCA)

• S v Samuels 2011 (1) SACR 9 (SCA)

• Van Gund v Minister of Correctional Services and Others 2011 (1) SACR 16 (GNP)

• Crookes v Sibisi and Others 2011 (1) SACR 23 (KZP)

• S v Ali 2011 (1) SACR 34 (ECP)

• S v Matyityi 2011 (1) SACR 40 (SCA)

• Pretorius v Director of Public Prosecutions and Another 2011 (1) SACR 54 (KZP)

• Minister of Safety and Security and Another v Mhlana 2011 (1) SACR 63 (WCC)

• Aruforse v Minister of Home Affairs and Others 2011 (1) SACR 69 (GSJ)

• S v Terblanche 2011 (1) SACR 77 (ECG)

• S v Dladla 2011 (1) SACR 80 (KZP)

• S v Leve 2011 (1) SACR 87 (ECG)

• Van der Merwe v National Director of Public Prosecutions and Others 2011 (1) SACR 94 (SCA)

FLYNOTES

S v NGCAMU AND ANOTHER (SCA)

MTHIYANE JA, MHLANTLA JA and SALDULKER AJA

2010 MAY 13, 26

Evidence—Assessment of—Identification—Witness identifying robber as former colleague—Appellant denying involvement—No possibility witness mistaken about identity—Witness and appellant having worked together until one week before robbery, occasionally as crew in same vehicle—Appellant admitting they were friends, coming from same area—Incident occurring in broad daylight—Despite exchange of gunfire, witness not feeling threatened, as seated in bulletproof vehicle—View not impeded and able to observe false registration plates fitted to getaway car—No reason why witness not able to identify face of someone well known to him—Events not taking place at such frenetic pace that witness making mistake as to what was happening—Identification reliable.

Murder—Attempted murder—Mens rea—Intention to kill—Accused shooting at driver of bulletproof vehicle—Not mattering that driver in armoured vehicle and not fearing injury or death—Even if accused attempting the impossible, requisite criminal intent present.

 

S v SAMUELS (SCA)

NAVSA JA, PONNAN JA and K PILLAY AJA

2010 SEPTEMBER 14, 22

Sentence—Imposition of—Factors to be taken into account—Prevalence of violent crime—Trial court emphasising prevalence of violent crimes executed with unlicensed firearms—This ignoring crucial evidence that firearm in question lacking cartridge or ammunition—Appellant picking up firearm out of idle curiosity—Link between him and violent crime devoid of foundation—Most unlikely that appellant ever repeating his actions—Not to be punished with imprisonment in order to deter others who, unlike him, might commit violent crimes—Insufficient consideration given to fact that appellant first offender; that firearm incapable of immediate unlawful use; that appellant having made full confession to police; that remorse demonstrated by pleading guilty; and that firearm not retained for any nefarious purpose—Custodial sentence set aside and fine of R6000 imposed.

Sentence—Fine—Deferment of—By directing fine to be paid in instalments court making it possible for even humble wage earner to escape imprisonment—By having to prune his income over fairly protracted period, long-term deterrent effect of punishment enhanced—Fine of R6000 imposed for unlawful possession of firearm, with appellant allowed six months to effect payment.

 

VAN GUND v MINISTER OF CORRECTIONAL SERVICES AND OTHERS (GNP)

TOKOTA AJ

2010 JUNE 10; JULY 14

Sentence—Release on parole—Prisoner applying for review of Parole Board decision—Trite that, while prisoner having right to be considered for parole, he or she not having right to be released on parole—Right to be freed from prison arising only once Parole Board deciding to grant parole—Board entitled to take into account seriousness of offence—No misdirection to consider murder to be serious offence warranting detention for long period—Not for court to substitute Board’s decision to refuse parole simply because it would not have done so—Board clearly having applied its mind to matter—Recommendations of expert witnesses not binding on Board—If Board deciding to enforce will of sentencing courts to keep violent offenders away from society, court should be loath to interfere—Application dismissed.

Sentence—Release on parole—Prisoner applying for review of Parole Board decision—Manner of bringing application—Prisoners invariably bringing such matters on urgent basis, arguing that matters involving liberty urgent—Argument losing sight of fact that, once prisoner lawfully sentenced, his or her right to liberty limited, and having no right to be released until sentence served in full—Accordingly, no reason why prisoners should be treated differently from other litigants—Right to liberty not per se ground constituting urgency.

 

CROOKES v SIBISI AND OTHERS (KZP)

WALLIS J and BUTHELEZI AJ

2010 APRIL 15; MAY 4

Private prosecution—When competent—Abuse of process—Accused applying for stay of prosecution on grounds that private prosecution attempt to obtain money from him, and that private prosecutors not entitled to withdraw, and then reinstitute, charges—Insufficient basis for finding that dominant motive of private prosecutors one of extortion—Mere fact that private prosecutors willing to accept compensation, instead of pursuing charges, not sufficing to show that charges being pursued for improper purpose—Not be inferred from absence of positive provision allowing withdrawal of charges by private prosecutor that such withdrawal prohibited—Absurd to suggest that, if private prosecution turning out to have no prospects of success, same could not be withdrawn, but must simply be left hanging—No good reason why private prosecutor, on receipt of acceptable compensation, could not retire from battle—Prosecutor dominus litisand should be able to withdraw proceedings if he or she wished to—Any abuse of process by repeated institution and withdrawal of private prosecution to be constrained by court.

 

S v ALI (ECP)

GROGAN AJ

2010 MAY 28

Bail—Application for—Factors to be taken into account—Delay in trial occasioned by State’s decision to arraign accused in High Court, rather than magistrates’ court—Whether magistrate’s failure to consider such delay a misdirection—Delays caused by decisions of prosecution not in themselves reason for finding that accused entitled to bail—In casu, passage of time not having diminished likelihood of appellant’s flight or of his making further attempts to interfere with evidence—Appeal against refusal of bail dismissed.

Bail—Application for—Factors to be taken into account—Personal circumstances—Accused’s business suffering and dependants in straitened circumstances—Financial loss inevitable result of incarceration of gainfully employed person—Evidence not showing that appellant’s dependants starving if he not released to fend for them—Magistrate not erring in finding that accused’s personal circumstances outweighed by possibility that he might evade trial or tamper with evidence—Appeal against refusal of bail dismissed.

 

S v MATYITYI (SCA)

NAVSA JA, PONNAN JA and K PILLAY AJA

2010 SEPTEMBER 14, 30

Sentence—Imposition of—Generally—Sentencing policy should be victimcentred—By accommodating victim during sentencing process, court better informed before sentencing about effects of crime—Important that information, pertaining not just to objective gravity of offence, but also to impact of crime on victim, be placed before court—This contributing to right balance and enhancing proportionality, rather than harshness.

Sentence—Prescribed sentences—Minimum sentences—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—‘Substantial and compelling circumstances’—Whether respondent’s age and remorse constituting such circumstances—Chasm between remorse and regret—Whether offender sincerely remorseful, and not simply feeling sorry for himself, factual question not adequately explored by trial court—As to age, person of 20 years or more having to show that he or she immature to extent that immaturity a mitigating factor—At 27, respondent’s age at best neutral factor not serving to reduce moral blameworthiness—Sentence for murder and rape increased on appeal by State to life imprisonment.

Sentence—Prescribed sentences—Minimum sentences—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—Generally—Courts all too frequently deviating from sentences prescribed by legislature for flimsiest of reasons—Courts having duty, despite doubts about efficacy of policy, or aversion to it, to implement those sentences—Constitutional order hardly surviving if courts failing properly to patrol boundaries of their own power by showing due deference to legitimate domains of power of other arms of State—Minimum sentences for certain specified offences to be imposed, unless truly convincing reasons for departing from them—Predictable outcomes, not outcomes based on individual whim, foundational to rule of law lying at heart of constitutional order.

 

PRETORIUS v DIRECTOR OF PUBLIC PROSECUTIONS AND ANOTHER (KZP)

MSIMANG JP and GYANDA J

2010 AUGUST 12

Trial—Irregularity in—What constitutes—Counsel advising guilty plea—Application for setting-aside of conviction on basis that plea not freely and voluntarily made—Applicant properly and competently counselled about possibility of jail sentence if pleading not guilty to all charges—Accepting counsel’s advice voluntarily and intelligently—No irregularity in counsel’s conduct—Even if applicant having had initial reservations about pleading guilty, later acquiescing in that course of conduct—Accordingly, no irregularity having been committed.

 

MINISTER OF SAFETY AND SECURITY AND ANOTHER v MHLANA (WCC)

MEER J and KOEN AJ

2010 FEBRUARY 19

Arrest—Legality of—Arrest without warrant—Requirements of s 40(1)(a)of Criminal Procedure Act 51 of 1977—Observance of behaviour, appearing prima facie criminal, sufficient for reliance on s 40(1)(a)—Not necessary that crime in fact committed, or that arrested person be later charged and convicted of suspected offence—Arresting officer observing what he considered riotous behaviour and assault, and fact, that respondent’s behaviour possibly not complying with requirements for charge of riotous behaviour, not depriving him of reliance on s 40(1)(a).

 

ARUFORSE v MINISTER OF HOME AFFAIRS AND OTHERS (GSJ)

MEYER J

2010 JANUARY 20, 22, 25

Arrest—Legality of—Arrest without warrant—Of illegal foreigners—Immigration Act 13 of 2002, s 34(1)—Section only permitting initial period of detention without warrant not exceeding 30 days—Extension of initial period by magistrates’ court permitted for 90 calendar days only—Section not permitting further extension of detention once magistrate has extended initial period of detention.

 

S v TERBLANCHE (ECG)

CHETTY J, ALKEMA J and BESHE J

2010 AUGUST 16, 18

Murder—Accessory after the fact—Sentence—Important to examine nature of assistance rendered to perpetrator—Assistance substantial and directed at preventing apprehension of perpetrator—Despite numerous previous convictions, and lack of remorse, eight-year sentence excessive—Reduced to five years’ imprisonment on appeal.

 

S v DLADLA (KZP)

K PILLAY J and MADONDO J

2010 MAY 25

Evidence—Witnesses—Competence of—Mentally disordered persons—Complainant inmate of mental institution for five years, suffering from schizophrenia and mental illness—Whether witness suffering from mental illness or defect to be determined with aid of psychiatric evidence—However, magistrate holding complainant to be in ‘lucid interval’, without hearing any expert medical evidence—Without such evidence not certain that complainant not afflicted with mental illness—Not correct to assume from behaviour in court that complainant in sane interval—Magistrate’s decision amounting to serious irregularity—Conviction set aside.

 

S v LEVE (ECG)

JONES J, LIEBENBERG J and VAN ZYL J

2009 AUGUST 31; SEPTEMBER 10

Appeal—Generally—Trial court’s evaluation of evidence—Presumption that trial court’s findings of fact are correct—Presumption also applicable in cases involving application of cautionary rule relating to child witnesses and/or single witnesses—If trial court does not misdirect itself on facts or law on application of cautionary rule, but demonstrably subjects evidence to careful scrutiny, court of appeal will not readily depart from its conclusions.

 

VAN DER MERWE v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS (SCA)

HARMS DP, NUGENT JA, SHONGWE JA, TSHIQI JA and BERTELSMANN AJA

2010 AUGUST 20; SEPTEMBER 30

Fundamental rights—Right to a fair trial—Investigators ‘acting outside of legislative and operational mandate’—Application for such conduct to be declared invalid in terms of s 172(1) of Constitution of the Republic of South Africa, 1996—Not constitutional issue needing to be decided in interests of justice—Court, faced with unmeritorious forensic finesse, clothed in constitutional garb, and designed to delay or avoid pleading in criminal trial, or to pre-empt consideration of admissibility question by trial court, having duty to refuse order that would encourage preliminary litigation—Court not obliged to entertain constitutional claim in vacuum—Declaratory relief not simply there for asking—Since appellant asking for declaration in vacuo, court below correct to dismiss claim.

NAMIBIAN LAW REPORTS

TABLE OF CASES

• Waterberg Big Game Hunting Lodge Otjahewita (Pty) Ltd v Minister of Environment and Tourism 2010 (1) NR 1 (SC)

• S v Malumo and Others 2010 (1) NR 35 (HC)

• Republican Party of Namibia and Another v Electoral Commission of Namibia and Others 2010 (1) NR 73 (HC)

• Ndjavera v Du Plessis 2010 (1) NR 122 (SC)

• Peace Trust v Beukes 2010 (1) NR 134 (LC)

• Prosecutor-General v Lameck and Others 2010 (1) NR 156 (HC)

• S v Auala 2010 (1) NR 175 (SC)

• Onesmus v Minister of Labour and Another 2010 (1) NR 187 (HC)

• Kaese v Schacht and Another 2010 (1) NR 199 (SC)

• Matador Enterprises (Pty) Ltd t/a National Cold Storage v Chairman of the Namibian Agronomic Board 2010 (1) NR 212 (HC)

• Alexander v Minister of Home Affairs and Others 2010 (1) NR 226 (HC)

• Old Mutual Life Assurance Company (Namibia) Ltd v Symington 2010 (1) NR 239 (SC)

• La Rochelle (Pty) Ltd and Others v Nathaniel-Koch and Others 2010 (1) NR 260 (HC)

• S v Visagie 2010 (1) NR 271 (HC)

• S v Narib 2010 (1) NR 273 (HC)

• S v Nyambali 2010 (1) NR 273 (HC)

• EG v MG and Another 2010 (1) NR 276 (HC)

• Brenner v Doëseb 2010 (1) NR 279 (HC)

• Ondjava Construction CC and Others v Haw Retailers t/a Ark Trading 2010 (1) NR 286 (SC)

• Oberholster v Wolfaardt and Others 2010 (1) NR 293 (HC)

• S v Nkeuene 2010 (1) NR 301 (HC)

• Samicor Diamond Mining Ltd v Hercules 2010 (1) NR 304 (HC)

• Grobler v Commercial Bank of Namibia Ltd 2010 (1) NR 313 (SC)

• Labour Supply Chain Namibia (Pty) Ltd v Awaseb 2010 (1) NR 322 (HC)

• Alexander v Minister of Justice and Others 2010 (1) NR 328 (SC)

• July v Motor Vehicle Accident Fund 2010 (1) NR 368 (HC)

 

FLYNOTES

WATERBERG BIG GAME HUNTING LODGE OTJAHEWITA (PTY) LTD v MINISTER OF ENVIRONMENT AND TOURISM (SC)

SHIVUTE CJ, O’LINN AJA and CHOMBA AJA

2005 JUNE 17; NOVEMBER 23

Administrative law—Fair administrative justice in terms of art 18 of Namibian Constitution—Appellant applying for permit to import mountain reedbuck—Official in respondent ministry refusing permit—Official alleging that Nature Conservation Ordinance not entitling appellant to permit as of right, nor to reasons for decision—Court holding that appellant having reasonable expectation to fair administrative justice—While administrative officials need not give reasons for every decision, fair administrative justice requiring reasons where decision-maker relies on facts unknown and adverse to applicant—Decision refusing permit set aside.

Administrative law—Fair administrative justice—Court setting aside decision refusing permit to import mountain reedbuck—Question whether court should order Minister to grant permit—Papers before court indicating that Minister not consulted regarding application—Nature Conservation Amendment Act vesting power to make such decision in Minister—Matter of technical nature and court ill-equipped to make such decision—Court accordingly referring matter back to Minister for decision to grant or refuse permit after due consideration.

 

S v MALUMO AND OTHERS (HC)

HOFF J

2009 APRIL 4–6, 20–24, 27–29; MAY 18–20, 26–28;

JUNE 1–4, 8–11, 15–18, 22, 25, 29–30; JULY 1, 6–9, 14–16, 20, 21;

SEPTEMBER 14–17, 21, 24, 28–30; OCTOBER 1, 5–8, 26;

NOVEMBER 3, 23, 30; 2010 MARCH 1

Criminal procedure—Evidence—Confessions and admissions—Admissibility—Duties of magistrate when recording confessions and admissions—Magistrate not merely a recording agent—Magistrate must be satisfied that statement made freely and voluntarily—Where accused indicates assault or injuries magistrate must make further enquiries.

Criminal procedure—Evidence—Confessions and admissions—Admissibility—Duties of magistrate when recording statements—Explaining right tolegal representation—Such explanation should include alerting accused to right to apply for legal aid—Lack of such explanation rendering statements inadmissible.

 

REPUBLICAN PARTY OF NAMIBIA AND ANOTHER v ELECTORAL COMMISSION OF NAMIBIA AND OTHERS (HC)

DAMASEB JP, MARITZ J and MTAMBANENGWE AJ

2005 MARCH 3, 4, 7; APRIL 26

Election law—General election—Applicants alleging various irregularities in conduct of election—One such complaint being that serial numbers printed on counterfoil and not on ballot paper—Counterfoil complementary to ballot paper—Counterfoil retained by election officer—Such counterfoil containing voter registration number and serial number—Serial number on ballot paper could lead to tracing which voters voted for which political parties—Such practice negating secrecy of ballot—Secrecy of ballot pivotal to free election—Printing of serial number on counterfoil accordingly not contrary to Electoral Act and not irregular.

Election law—General election—Applicants alleging certain irregularities in conduct of election—Onus of proof—Applicant must adduce sufficient evidence to prove irregularities on balance of probabilities—Applicant also to prove that impact on election so substantial that it affected result of election—Once applicant has discharged onus respondent must prove that election conducted in accordance with law and that mistakes did not affect legality of election.

Election law—General election—Tendered votes—Presiding officers failing to send votes to constituency where voter registered—Importance of constituency-based election—However, all votes eventually counted and seats allocated to political parties—This irregularity not impacting on result of election.

Election law—General election—Thousands of votes not accounted for under signature of responsible officer and thousands of votes not verified by responsible accounting officer—Since many votes affected, uncertainty whether all votes counted—Important in a democracy that election characterised by transparency and accountability—Without these characteristics, door would be open for fraud and manipulation—First respondent not adducing sufficient evidence that irregularity did not have impact on result—However, since election was expensive but necessary, it would not be declared null and void—Court ordering recount of all votes.

 

NDJAVERA v DU PLESSIS (SC)

O’LINN AJA, CHOMBA AJA and MANYARARA AJA

2002 JUNE 25 2003 JANUARY 24

Contract—Defences—Exceptio non adimpleti contractus—When available—Parties entering into written agreement—Defendant acknowledging indebtedness to plaintiff for liquidated amount—Plaintiff, in turn, undertaking to deliver certain goods and services—Such not liquidated amount—Agreement bilateral but not reciprocal—Exceptioaccordingly not available to defendant.

 

PEACE TRUST v BEUKES (LC)

DAMASEB P

2008 JANUARY 25 2010 FEBRUARY 22

Labour law—Unfair dismissal—What constitutes—Appellant making two attempts to hold disciplinary hearing—At both hearings respondent’s representative frustrating process by raising technicalities—Respondent subsequently writing to appellant’s donors making false accusations against appellant—Appellant having no choice but to dismiss respondent—Dismissal not unfair on ground of unfair procedure.

Labour law—Unfair dismissal—What constitutes—Appellant dismissing respondent after abortive attempts to hold disciplinary hearing—Even if procedure may have been unfair, court on appeal satisfied that relations between appellant and respondent had broken down—Such breakdown could be laid at door of respondent—Appellant accordingly dismissing respondent for valid and fair reason.

 

PROSECUTOR-GENERAL v LAMECK AND OTHERS (HC)

DAMASEB JP and PARKER J

2009 SEPTEMBER 15 2010 JANUARY 22

Practice—Applications and motions—Ex parte applications—Disclosure—Party approaching court on ex parte basis must make full disclosure and must act bona fide.

 

S v AUALA (SC)

MARITZ JA, STRYDOM AJA and MTAMBANENGWE AJA

2009 NOVEMBER 3 2010 APRIL 27

Criminal procedure—Evidence—Rule and practice to put defence case to State witnesses to ensure that trials conducted fairly—Witnesses would have opportunity to answer questions—Corroborating evidence could be called if necessary—Failure to challenge evidence in cross-examination could have dire consequences—This could be construed as attempt by defence to create forensic ambush for prosecution.

Criminal procedure—Evidence—Failure by accused to give evidence—Accused not obliged to give evidence in his defence—However, guilt of accused could still be proved if weight of evidence against him was sufficient.

 

ONESMUS v MINISTER OF LABOUR AND ANOTHER (HC)

MARITZ J

2004 JUNE 4; JULY 7 2008 JULY 7

Court—Jurisdiction—Applicant, CEO of Social Security Commission, approaching High Court after being temporarily removed from office—Applicant relying on art 18 of Constitution, which guarantees fair administrative justice—First respondent raising point in limine that High Court lacking jurisdiction in terms of s 18 of Labour Act 6 of 1992—High Court established by art 80(2) of Constitution—High Court vested with inherent jurisdiction—Such jurisdiction including interpretation of Constitution—Act of Parliament cannot divest High Court of jurisdiction—Only constitutional amendment can do that.

Court—Jurisdiction—Question whether Labour Court having jurisdiction to adjudicate upon applicant’s case—Labour Court created by Labour Act 6 of 1992—Labour Court not having inherent jurisdiction—Labour Court, though presided over by judge, nevertheless a lower court—Labour Act cannot diminish or limit jurisdiction of High Court—Point in limine accordingly dismissed.

 

KAESE v SCHACHT AND ANOTHER (SC)

SHIVUTE CJ, MARITZ JA and CHOMBA AJA

2009 NOVEMBER 2 2010 APRIL 9

Company—Directors—Duty of—Section 286 of Act 61 of 1973 requiring directors to present annual financial statements to annual general meeting—First respondent sole director and conducting business of second respondent—Financial statements not presented for several years—Appellant, 50% shareholder, instituting action seeking rendering and debatement of accounts—Cause of action based on derivative action—Appellant entitled to institute such action.

Company—Directors—Duty of—Appellant alleging that annual financial statements not presented for several years—Trial court granting absolution at close of appellant’s case on basis that not sufficient prima facie evidence for action—On appeal court holding that legal basis clearly a derivative action—Fact that financial statements not presented for several years, sufficient basis for derivative action—Appellant presenting prima facie case—Appeal upheld—Order of absolution set aside.

 

MATADOR ENTERPRISES (PTY) LTD t/a NATIONAL COLD STORAGE v CHAIRMAN OF THE NAMIBIAN AGRONOMIC BOARD (HC)

MARITZ J

2000 APRIL 28 2003 APRIL 3

Practice—Applications and motions—Conduct of litigation—Established practice that issues and conflicts should be clearly defined—Applicants to lay basis of case in founding affidavit—Applicant in present case raising fresh material in replying affidavit—Principle not permitting such conduct not immutable—However, presiding judge should exercise such discretion sparingly—Raising of fresh material should not be permitted where respondent would be severely prejudiced or disturbing unfairness would result.

 

ALEXANDER v MINISTER OF HOME AFFAIRS AND OTHERS (HC)

LIEBENBERG J

2010 FEBRUARY 2, 3

Evidence—Production of documents—Respondent referring to legal advice in answering affidavit—Respondents refusing to produce document on grounds of legal professional privilege—Applicant relying on waiver—General principles regarding waiver set out.

 

OLD MUTUAL LIFE ASSURANCE COMPANY (NAMIBIA) LTD v SYMINGTON (SC)

STRYDOM AJA, MTAMBANENGWE AJA and DAMASEB AJA

2009 NOVEMBER 13 2010 APRIL 27

Labour law—Remuneration—Incentive bonus scheme—Respondent earning bonus for 2003—Respondent resigning in March 2004—Clause 11 of Generic Incentive Scheme Rules providing that bonus not payable if employee resigned in bonus month—Such clause not contrary to public policy—However, clause 11 contrary to s 37(b)of Labour Act 6 of 1992—Remuneration including all money due to employee, including bonuses—Section 37(b)prohibiting employer from depriving employee of remuneration—Respondent entitled to payment of bonus—Appellant could not invoke clause 11—Trial court correct in granting judgment in favour of respondent—Appeal dismissed with costs.

 

LA ROCHELLE (PTY) LTD AND OTHERS v NATHANIEL-KOCH AND OTHERS (HC)

PARKER J

2009 OCTOBER 27; NOVEMBER 18

Trust and trustees—Trustee—Power to act—One trustee cannot act independently on behalf of a trust—Deed of trust providing that decisions on behalf of trust can only be taken at properly constituted meeting or resolution signed by all trustees—Requirements in present case not fulfilled—Trust accordingly having no locus standi.

 

S v VISAGIE (HC)

HOFF J and LIEBENBERG J

2010 JANUARY 28

Criminal procedure—Sentence—For crimen injuria and assault with intent to do grevious bodily harm—Undesirable to take convictions together when imposing sentence—Harshness of sentence can be ameliorated by ordering the running together of sentences.

 

S v NYAMBALI, S v NARIB (HC)

DAMASEB JP and HOFF J

2010 JANUARY 27

Criminal procedure—Trial—Mental state of accused—South African amendment to s 77(6) of Criminal Procedure Act 51 of 1977 not applicable in Namibia.

Criminal procedure—Review—Powers of court—Order in terms of s 77(6) of Criminal Procedure Act 51 of 1977 neither conviction nor acquittal—Order accordingly not subject to review in terms of s 304 of Act 51 of 1977.

 

EG v MG AND ANOTHER (HC)

VAN NIEKERK J

2009 FEBRUARY 2 2010 FEBRUARY 1

Husband and wife—Divorce—Malicious desertion—Proot of—Plaintiff suing first defendant for divorce on grounds of malicious desertion—Damages claimed against second defendant for alleged adulterous relationship with first defendant—Plaintiff not pleading adultery on part of first defendant but giving evidence to that effect—Discrepancy between pleadings and evidence raising question mark—Second defendant absolved from the instance, since adultery not proved on a balance of probabilities.

 

BRENNER v DOËSEB (HC)

SWANEPOEL AJ

2009 NOVEMBER 12 2010 JANUARY 18

Practice—Pleadings—Declaration—Sufficiency of—Plaintiff’s declaration should reflect case that defendant was required to meet—Where vast discrepancies exist between evidence and pleadings, amendments should be sought.

 

ONDJAVA CONSTRUCTION CC AND OTHERS v HAW RETAILERS t/a ARK TRADING (SC)

MARITZ JA, CHOMBA AJA and LANGA AJA

2010 MARCH 5, 8

Appeal—Prosecution of—Proper prosecution of—Non-compliance with rules governing appeals—Appeal lapses where rules not complied with—Appeal can only be reinstated when litigant has sought, and has been granted, condonation.

 

OBERHOLSTER v WOLFAARDT AND OTHERS (HC)

DAMASEB JP

2010 MARCH 18, 31

Spoliation—Mandament van spolie—When available—Dispute between members of close corporation—Applicant, having 10% member interest in close corporation and running business to derive income—Relationship between applicant and respondents breaking down—Respondents dismissing applicant from employment—Subsequently, respondents changing locks and remote control codes of business premises—Applicant granted spoliation order—Applicant not ordinary employee but member—Respondents should deal with breakdown in personal relationships in terms of Close Corporations Act 26 of 1988—Respondents taking law into their own hands by denying applicant access to premises.

 

S v NKEUENE (HC)

DAMASEB JP and SWANEPOEL J

2010 MARCH 12

Criminal procedure—Trial—Plea—Plea of guilty—Corporate body—Criminal Procedure Act 51 of 1977, s 332—Section providing that court can only accept plea on behalf of corporate body where person pleading has been specifically authorised by corporate body to do so—Magistrate had incorrectly assumed that authority of accused to plead on behalf of corporate body had been implied—Conviction and sentence set aside and matter remitted for proper application of s 332(2)(a)of Act.

 

SAMICOR DIAMOND MINING LTD v HERCULES (HC)

HEATHCOTE AJ

2009 OCTOBER 30

Practice—Service—What constitutes—In terms of s 89 read with s 129 of Labour Act 11 of 2007—Arbitrator’s award coming to notice of articled clerk employed by applicant’s legal practitioners—This not constituting service as contemplated by Labour Act.

Practice—Judgments and orders—Application to stay execution of arbitrator’s award in terms of Labour Act 11 of 2007, pending appeal—Factors to be taken into account by court, set out—Court granted order.

 

GROBLER v COMMERCIAL BANK OF NAMIBIA LTD (SC)

STRYDOM CJ, O’LINN AJA and CHOMBA AJA

2002 OCTOBER 11 2003 JANUARY 24

Banker—Merger or amalgamation with another bank in terms of s 30 of Banks Act 23 of 1965—Consequences of such merger—Appellant entering into home loan agreement with NBC—Agreement providing inter alia that failure to pay instalment could result in property being declared executable—Respondent merging with NBC—Respondent accruing real rights from NBC and substituting NBC—Endorsement in deeds registry not necessary—Appeal against ruling by court a quo in favour of respondent accordingly dismissed.

 

LABOUR SUPPLY CHAIN NAMIBIA (PTY) LTD v AWASEB (HC)

PARKER J

2009 DECEMBER 15 2010 JANUARY 26

Interdict—Interim interdict—In what cases—Prerequisites for interdict: clear or prima facie right, danger of irreparable harm, balance of convenience favouring applicant, no alternative remedy—Prerequisites applicable where respondent, former employee, using confidential information from applicant to detriment of applicant—Prerequisites also applicable to cases of unlawful competition.

 

ALEXANDER v MINISTER OF JUSTICE AND OTHERS (SC)

MARITZ JA, STRYDOM AJA and DAMASEB AJA

2009 OCTOBER 6 2010 APRIL 9

Extradition—Section 11(8) of Extradition Act 11 of 1996—Magistrate having remanded appellant’s case and granted bail—Minister subsequently authorising extradition enquiry—Appellant contending that only magistrate could conduct enquiry—Court holding that s 11(8) gave magistrate limited power, ie to remand case—Use of indefinite article in s 10(1) of Act signifying that Minister can appoint any magistrate—Such appointment not limited by territory—Appellant’s contention accordingly not upheld.

Constitutional law—Constitutional challenge to s 21 of Extradition Act—Section providing that person to be extradited not entitled to bail once committed pending Minister’s decision whether to extradite—Court a quo holding that since appellant not yet committed, constitutional challenge not ripe for hearing—On appeal, court holding that since appellant’s liberty threatened and extradition proceedings set in motion, appellant entitled to launch constitutional challenge—Appellant need not wait for his committal before launching constitutional challenge—Constitutional challenge accordingly ripe for hearing.

Constitutional law—Constitutionality of s 21 of Extradition Act—Article 7 of Constitution guaranteeing right to liberty—Blanket prohibition of bail in s 21 of Extradition Act infringing right to liberty—Section not passing proportionality test—While right to bail not absolute, decision whether to grant bail should rest with court—Long time lapse before decision to extradite becomes final could result in person being kept in custody indefinitely—Court striking down s 21 as unconstitutional.

 

JULY v MOTOR VEHICLE ACCIDENT FUND (HC)

PARKER J

2009 NOVEMBER 2, 25