CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY v BLUE MOONLIGHT PROPERTIES 39 (PTY) LTD AND ANOTHER (SCA)

NAVSA JA, TSHIQI JA, THERON JA, PLASKET AJA and PETSE AJA

2011 FEBRUARY 18; MARCH 30

Local authority—Powers and duties—To shelter persons evicted by private landowners—Municipality’s policy to provide shelter to persons it evicted from unsafe buildings owned by private landowners, but not to persons evicted by private landowners—Policy unconstitutional in excluding latter from shelter.

Constitutional law—Duties of State—Housing—Local authorities—Shelter for persons evicted by private landowners—Municipality’s policy to provide shelter to persons it evicted from unsafe buildings owned by private landowners, but not to provide shelter to persons evicted by private landowners—Policy unconstitutional in excluding latter from shelter.

 

NEDBANK LTD v FRASER AND ANOTHER AND FOUR OTHER CASES (GSJ)

PETER AJ

2011 APRIL 28; MAY 4

Execution—Sale in execution—Mortgaged immovable property—Sale of residential property for recovery of outstanding bond repayments—Judicial oversight—Factors to be considered listed—Procedure to be adopted in summary judgment and default judgment cases—Effect of relevant requirements of NCA—National Credit Act 34 of 2005, s 130(3).

Execution—Sale in execution—Mortgaged immovable property—Sale of residential property for recovery of outstanding bond repayments—Judicial oversight—Judicial oversight required also where person’s home held through vehicle of juristic person.

Execution—Sale in execution—Mortgaged immovable property—Sale of residential property for recovery of outstanding bond repayments—Judicial oversight—Court may not interfere with creditor’s contractual right to claim acceleration in event of default, even if arrears that triggered acceleration relatively insubstantial—Where execution on full outstanding balance justified, but possibility existing that payment of arrears might facilitate reinstatement of underlying agreement, applicable provisions of NCA to be brought to attention of judgment debtor—National Credit Act 34 of 2005, s 129(3) and (4).

Execution—Sale in execution—Mortgaged immovable property—Reinstatement of agreement in default—When permitted—If NCA applicable, debtor entitled to reinstate agreement by paying only overdue arrears, not entire judgment debt—Debtor may by so doing redeem property from execution process—Must do so before transfer of property to purchaser pursuant to sale in execution—National Credit Act 34 of 2005, s 129(3) and (4).

 

PELZER v NEDBANK LTD (GNP)

GOODEY AJ

2010 SEPTEMBER 17

Credit agreement—Consumer credit agreement—Debt review—Lapsing—Neither National Credit Act nor regulations containing provision that debt review procedure lapses because of non-compliance with time periods—Debt review does however lapse on expiry of reasonable time—National Credit Act 34 of 2005, s 86(1).

 

OILWELL (PTY) LTD v PROTEC INTERNATIONAL LTD AND OTHERS (SCA)

HARMS DP, LEWIS JA, PONNAN JA, MALAN JA and THERON JA

2011 MARCH 8, 18

Exchange control—Exchange Control Regulations—‘Capital’—Meaning—Trademark not ‘capital’—Currency and Exchanges Act 9 of 1933, s 9 and reg 10(1)(c).

Exchange control—Exchange Control Regulations—Transaction to export capital—Treasury permission to enter into transaction—Failure to obtain permission not rendering agreement void—Currency and Exchanges Act 9 of 1933, s 9 and reg 10(1)(c).

 

SIZABONKE CIVILS CC t/a PILCON PROJECTS v ZULULAND DISTRICT MUNICIPALITY AND OTHERS (KZP)

GORVEN J

2010 FEBRUARY 26; MARCH 12

State tender—Tender process—Preferential procurement—Validity of regulatory framework—Regulations in conflict with enabling legislation—Regulations purporting to give discretion to organs of State (in allocation of points) not envisaged by enabling legislation—Minister responsible for making of regulations having acted ultra vires empowering Act—Even though such conduct raising constitutional issue, necessary for practical reasons to declare impugned regulations invalid, without resort to constitutional review—Preferential Procurement Policy Framework Act 5 of 2000, s 2, and Preferential Procurement Regulations, 2001, reg 8.

Administrative law—Regulations—Making of—Validity of regulations challenged—Minister making regulations inconsistent with enabling legislation—Acting ultra vires empowering Act—Even though constitutional issue raised, necessary for practical reasons to declare impugned regulations invalid, without resort to constitutional review—Preferential Procurement Policy Framework Act 5 of 2000, s 2, and Preferential Procurement Regulations, 2001, reg 8.

 

PUBLIC PROTECTOR v MAIL & GUARDIAN LTD AND OTHERS (SCA)

NUGENT JA, PONNAN JA, SNYDERS JA, TSHIQI JA and PLASKET AJA

2011 MAY 12; JUNE 1

Constitutional law—Constitution—Chapter 9 institutions—Public Protector—Jurisdiction and duties—Breadth of powers and proactive function of Public Protector stressed—Investigator and not mere adjudicator—Must at minimum conduct investigations with open and enquiring mind—Lackadaisical attitude in conduct of investigation and in drafting of subsequent report criticised—Constitution, s 182, read with Public Protector Act 23 of 1994.

 

ABSA BANK LTD v VAN EEDEN AND OTHERS (GSJ)

WILLIS J

2010 OCTOBER 28 2011 JANUARY 19; MARCH 10, 22

Execution—Sale in execution—Notice—Motor vehicle—Sheriff must give notice to ‘title holder’ and ‘owner’ as defined in National Road Traffic Act 93 of 1996.

PREMIER, WESTERN CAPE AND OTHERS v OVERBERG DISTRICT MUNICIPALITY AND OTHERS (SCA)

HARMS DP, STREICHER JA, BRAND JA, SHONGWE JA and THERON JA

2011 MARCH 1, 18

Provincial government—Ministers and officials—Duties—Constitutional duty to supervise affairs of local governments and to intervene when things go awry—Local government failing to approve annual budget before beginning of financial year—Provincial cabinet must intervene by taking appropriate steps, including dissolving municipal council—Constitution not limiting ‘appropriate steps’ to dissolution of council—Constitution, 1996, s 139(4).

 

SOUTH AFRICAN POLICE SERVICE MEDICAL SCHEME AND ANOTHER v LAMANA AND OTHERS (SCA)

CLOETE JA, PONNAN JA, CACHALIA JA, MALAN JA and MEER AJA

2011 MAY 19, 31

Appeal—Generally—Power of court of appeal—Power to dismiss appeal where judgment or order sought would have no practical effect or result—If facts relevant to exercise of appeal court’s discretion do not appear from record, they should be placed before court by affidavit, by party seeking to rely on them, and in sufficient time to enable other party to deal with them—Supreme Court Act 59 of 1959, s 21A(1).

 

MV PACIFIC YUAN GENG

KP7 INTERNATIONAL SA AND OTHERS v GLORY WEALTH SHIPPING (PTE) LTD (WCC)

SMIT AJ

2009 MAY 4

Shipping—Admiralty law—Maritime claim—Enforcement—Associated ship arrest—Associated-ship arrest regime not permitting arrest of demisechartered ship on ground of deeming provision in s 1(3) of Admiralty Jurisdiction Regulation Act 105 of 1983.

Shipping—Admiralty law—Maritime claim—Enforcement—Against charterer—Presumption of ownership of chartered ship—Demise charterer deemed to be owner of chartered ship for period of charter for purposes of action in rem—Presumed ownership not applicable to issue of association—Admiralty Jurisdiction Regulation Act 105 of 1983, s 1(3) read with s 3(6) and (7).

 

MV CHENEBOURG

LAURITZEN BULKERS A/S v MV CHENEBOURG (SWISS MARINE CORPORATION LTD INTERVENING) AND ANOTHER CASE (KZD)

KRUGER J

2009 OCTOBER 29; NOVEMBER 2, 3, 26

Shipping—Admiralty law—Maritime claim—Enforcement—Arrest in rem—Associated ship arrest—Associated-ship arrest regime not permitting arrest of demise-chartered ship on ground of deeming provision in s 1(3) of Admiralty Jurisdiction Regulation Act 105 of 1983.

Shipping—Admiralty law—Maritime claim—Enforcement—Against charterer —Presumption of ownership of chartered ship—Demise charterer deemed to be owner of chartered ship for period of charter for purposes of action in rem—Presumption only in respect of claims against ship for which charterer personally liable during period of charter—Ship in context meaning guilty ship—Such ship not subject to arrest as associated ship—Presumption not applying to issues of association—Admiralty Jurisdiction Regulation Act 105 of 1983, s 1(3) read with s 3(7)(c).

 

EVANS v SMITH AND ANOTHER (WCC)

BINNS-WARD J

2011 MAY 5, 19

Credit agreement—Consumer credit agreement—Cost of credit—Where consideration falling outside permitted costs in s 101 of NCA, it is not thereby excluded from ambit of words ‘any fee, charge or interest’ in s 8(4)(f)of NCA—Words ‘any charge, fee or interest’ intended to be of wide import, and to include any consideration payable in respect of any agreement in terms whereof payment of an amount owed is deferred, or in terms of which consideration is charged by grantor for extension of credit to grantee—National Credit Act 34 of 2005, ss 8(4)(f)and 101.

 

BUILDER’S DEPOT CC v TESTA (GSJ)

NICHOLLS J and VAN EEDEN AJ

2011 APRIL 21; MAY 13

Spoliation—Mandament van spolie—When available—Property in possession of bona fide third party—Spoliation order cannot be granted against spoliator who has parted with possession to bona fide possessor—Mandament van spolie not available to original possessor.

Execution—Sale in execution—Immovable property—Property subject to builder’s lien—Property sold in execution in good faith to bona fide third party pursuant to attachment by sheriff—Whether builder may avail himself of mandament van spolie to regain possession of property obtained by exercise of lien—Sale by sheriff not constituting unlawful interference with lien—Lien lapsing and mandament van spolie not available to builder—Position similar where sheriff not acting in good faith—Uniform Rules of Court, rule 46(2) and (3).

Lien—Builder’s lien—Lapse—Whether lien lapsing upon sale of property by sheriff in good faith to third party who lacked knowledge of lien—Lien lapsing and mandament van spolie not available to builder to regain possession of property—Position similar where sheriff not acting in good faith—Uniform Rules of Court, rule 46(2) and (3).

 

ABSA BANK LTD v KERNSIG 17 (PTY) LTD (SCA)

CLOETE JA, CACHALIA JA, SHONGWE JA, MAJIEDT JA and SERITI JA

2011 MAY 4, 31

Company—Shares and shareholders—Shares—Maintenance of share capital—Prohibition of financial assistance by company for purchase of own shares—Enquiry fact-based—Allegation must be pleaded or all facts must be before court to make finding on whether Act was contravened—Companies Act 61 of 1973, s 38.

 

GEROLOMOU CONSTRUCTIONS (PTY) LTD v VAN WYK (GNP)

RD CLAASSEN J and TUCHTEN J

2010 NOVEMBER 15

Contract—Consensus—Undue influence—What constitutes—Threat to breach —An economically more powerful party’s threat to breach contract, used to induce less powerful party to act to its disadvantage in relation to an accrued contractual right, will establish element of unconscionability of defence.

 

COLLETT v FIRSTRAND BANK LTD (SCA)

MPATI P, BRAND JA, MAYA JA, MALAN JA and TSHIQI JA

2011 MAY 4, 27

Credit agreement—Consumer credit agreement—Debt review—Termination—When competent—Whether credit provider may terminate debt review after review referred to magistrates’ court for debt rearrangement—Although such competent, this balanced by obligation of credit provider and consumer to participate in debt review and negotiations in good faith in order to achieve rearrangement—Failure to do so by credit provider may lead to resumption of debt review—National Credit Act 34 of 2005, ss 86(10) and 86(11).

Credit agreement—Consumer credit agreement—Debt review—Termination—Resumption in case of enforcement of agreement by credit provider after notice of termination given—National Credit Act 34 of 2005, s 86(11)—Words ‘or High Court’ to be read in after words ‘Magistrate’s Court’.

 

BERRY AND ANOTHER v SPE SECURITY PATROL EXPERTS AND ANOTHER (GNP)

GOODEY AJ

2010 JULY 27; AUGUST 6

Motor vehicle accidents—Compensation—‘Motor vehicle’—What constitutes—Six-seat golf cart ‘shuttle’ used as people mover in hospital parking lots—‘Motor vehicle’ in terms of Act—Road Accident Fund Act 56 of 1996, s 1.

 

WELKOM HIGH SCHOOL AND ANOTHER v HEAD, DEPARTMENT OF EDUCATION, FREE STATE PROVINCE, AND ANOTHER CASE* (FB)

RAMPAI J

2011 MARCH 24; MAY 12

Education—School—Learners—Pregnancy—School policy—Implementation —Overriding of by provincial department of education—Department not entitled to direct school to ignore pregnancy policy contained in its code of conduct, particularly where such policy based on national policy guidelines—Schools invoking policy to expel pregnant learners—Policy punitively and arbitrarily implemented—Ordered that learners concerned be allowed to return to school.

* The Human Rights Commission and the Centre for Child Law were granted leave to intervene as amici curiae—Eds.

 

COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE v SPRIGG INVESTMENT 117 CC t/a GLOBAL INVESTMENT (SCA)

HARMS DP, MAYA JA, CACHALIA JA, SHONGWE JA and TSHIQI JA

2010 NOVEMBER 5; DECEMBER 1

Revenue—Income tax—Assessment—Taxpayer entitled to request commissioner to furnish ‘adequate reasons’ for assessment—Tax court may then compel commissioner to do so—Test for adequacy of reasons—Commisioner to set out applicable law, basis for factual findings, and reasoning process so as to enable requester to launch challenge—Rules of Tax Court, rules 3 and 26(1).

Revenue—Income tax—Appeal—Against decision of tax court—Application for ‘adequate reasons’ for decision—Many decisions relating to procedural matters not necessarily interlocutory and may, by their nature, be of final effect—Tax court cannot alter its order; it is, therefore, final in that regard—Application for ‘adequate reasons’ is not interlocutory, but concerning other procedural matters, and therefore appealable—Income Tax Act 58 of 1962, s 86A.

Revenue—Income tax—Tax court—Composition—If enquiry involving matter of law only, court may consist of President of court sitting alone, but if enquiry involving both questions of law and fact, to be conducted by full court—Income Tax Act 58 of 1962, s 83(4).

 

MTN SERVICE PROVIDER (PTY) LTD v LA CONSORTIUM & VENDING CC t/a LA ENTERPRISES, AND OTHERS (W)

CJ CLAASSEN J

2007 SEPTEMBER 7, 10

Evidence—Production and admission—Data messages—Computer-generated documents representing data messages—Head of department testifying as to correctness of documents representing data captured by his staff—Certifications of documents by managers of company—Documents admissible and constituting rebuttable proof of facts therein—Electronic Communications and Transactions Act 25 of 2002, s 15.

 

LA CONSORTIUM & VENDING CC t/a LA ENTERPRISES v MTN SERVICE PROVIDER (PTY) LTD (GSJ)

MALAN J, VAN OOSTEN J and MOKGOATLHENG J

2009 JUNE 1; AUGUST 17

Evidence—Production and admission—Data messages—Computer-generated documents representing data messages—Definition of data message wide, such that covering real and hearsay evidence—Data messages still having to pass criteria for admission of hearsay evidence—Law of Evidence Amendment Act 45 of 1988, s 3; and Electronic Communications and Transactions Act 25 of 2002, s 15.

 

FIRSTRAND BANK LTD v EVANS (KZD)

WALLIS J

2011 FEBRUARY 11; MARCH 18

Insolvency—Act of insolvency—Notice to creditor of inability to pay debt—What amounts to—Notification by debtor to creditor that he has applied for debt review—Notice indicating intention to pay debts other than in accordance with existing contractual obligations in consequence of debtrearrangement order—Such constituting notice as intended and amounting to act of insolvency—Insolvency Act 24 of 1936, s 8(g) read with National Credit Act 34 of 2005, s 87.

Insolvency—Compulsory sequestration—Provisional sequestration—Discretion of court—Where conditions for granting of provisional order satisfied, for debtor to show special circumstances warranting exercise of discretion in his favour—Delay in bringing of application and granting of debtrearrangement order under NCA—While former may be significant in cases where situation of debtor changed to extent that inappropriate to grant order, latter constituting powerful reason for court to exercise its discretion in favour of debtor—Insolvency Act 24 of 1936, s 9 read with National Credit Act 34 of 2005, s 88(3).

Credit agreement—Consumer credit agreement—Debt review—Debt review and sequestration—Application for sequestration not enforcement of credit agreement—Fact that consumer under debt review not immunising him against sequestration proceedings—Existence of debt-rearrangement order not affecting situation.

 

AB VENTURES LTD v SIEMENS LTD (SCA)

NUGENT JA, CLOETE JA, PONNAN JA, SNYDERS JA and BOSIELO JA

2011 MARCH 10, 31

Delict—Specific forms—Pure economic loss—Negligence of associated contractor in large joint-venture project—Contractual relationship regulating parties’ exposure to loss—Plaintiff capable of having avoided the loss contractually—Policy considerations militating against imposition of general regime of reasonableness—No call for extension of Aquilian liability to such situations.

 

KOOTBODIEN AND ANOTHER v MITCHELL’S PLAIN ELECTRICAL PLUMBING AND BUILDING CC AND OTHERS (WCC)

ZONDI J

2010 SEPTEMBER 16

Land—Sale—Contract—Conditions—Suspensive condition—Waiver—Contract conditional upon purchaser obtaining first mortgage bond over property—Condition purely for benefit of purchaser who is entitled to waive it before date of fulfilment—If approval of mortgage loan not obtained, either party may resile from contract by giving notice to other party—Although such condition may be to benefit of seller, in that he has interest in knowing that purchaser able to raise loan within stipulated period, it does not change fact that suspensive condition purely for benefit of purchaser.

Land—Sale—Rights of third parties—Sale of land subject of litigation—Res litigiosa doctrine—Second sale of land—Rights of first purchaser must prevail and are enforceable against second purchaser, irrespective of whether second purchaser acted in good or bad faith—Fact that property res litigiosanot constituting bar to its transfer—First purchaser can, notwithstanding transfer of land, continue to assert his rights and vindicate those rights in due course—Bona fides of second purchaser irrelevant in determining first purchaser’s rights.

 

AIRPORTS COMPANY SOUTH AFRICA LTD v ISO LEISURE OR TAMBO (PTY) LTD AND ANOTHER* (GSJ)

VALLY AJ

2010 DECEMBER 6

Administrative law—Administrative action—What constitutes—Decision by Airports Company to award tender—Public company listed as ‘major public entity’—Owned by government—Ultimately dealing with public funds—Number of factors to be considered—Public Finance Management Act 1 of 1999, Schedule 2, and Promotion of Administrative Justice Act 3 of 2000.

* The parties in the review application were as follows:

ISO Leisure OR Tambo (Pty) Ltd—Applicant

Airports Company South Africa Ltd—First Respondent

City Lodge Hotels Ltd—Second Respondent

Minister of Transport—Third Respondent.

KERKHOFF v MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND OTHERS (GNP)

SOUTHWOOD J and HIEMSTRA J

2010 FEBRUARY 1, 10

Contempt of court—What constitutes—Failure to comply with order of court—Standard of proof—Applicant having to prove, beyond reasonable doubt, respondent’s wilful or mala fide non-compliance with court order made against him or her, and that respondent had knowledge thereof either through service or notice—Once applicant having proved order, respondent’s knowledge thereof and non-compliance therewith, evidentiary burden shifting to respondent to show, beyond reasonable doubt, that non-compliance not wilful or mala fide—Effect of shifting evidentiary burden being that, where respondent failing to establish reasonable doubt as to whether non-compliance having been either wilful or mala fide, contempt will have been established beyond reasonable doubt—In casurespondents unable to comply with court order since those in possession of documents ordered to be discovered refusing to hand them over—Noncompliance with court order accordingly not wilful or mala fide, and applicant, for that reason, failing to establish contempt.

Indictment and charge—Further particulars—Request for documents—Applicant seeking discovery of contents of police docket, asserting that raw data and confidential notes of expert witness constituting part of docket—Whether applicant having demonstrated right to access to documents—Prosecution furnishing contents of docket, but not having access to expert’s data and notes—Given that matter opposed application for final relief, applicant bound by respondents’ allegation that such data and notes not forming part of docket—Furthermore, applicant relying on s 32 of Constitution of Republic of South Africa, 1996, when appropriate avenue being Promotion of Access to Information Act 2 of 2000—Applicant accordingly having failed to demonstrate right of access to documents.

 

S v BOEKHOUD (SCA)

NAVSA JA, HEHER JA, CACHALIA JA, BOSIELO JA and PETSE AJA

2011 MARCH 1, 30

Appeal—Reservation of question of law in terms of s 319 of Criminal Procedure Act 51 of 1977—Question having to be framed in way accurately expressing legal point—Certainty required regarding facts to which question relating or on which legal point hinging—Factual certainty inextricably linked with intelligibility and precision with which indictment, summary of substantial facts, and further particulars framed—In casu, State’s concession, that some charges against accused needed to be revisited or abandoned, fatal to State’s case; there having been no finality or clarity in respect of charges.

 

S v MDANTILE (FB)

HANCKE J and RAMPAI J

2011 MARCH 17

Review—Special review in terms of s 304(4) of Criminal Procedure Act 51 of 1977—Procedure for special review cases coming to High Court from magistrates’ court laid down in s 304(2)(a) of CPA—Subsection requiring that High Court order be embodied in formal judgment, signed by another concurring judge, and delivered in open court. In casu, acting judge to whom review allocated giving order in memorandum form, not in open court, and not signed by concurring judge—Such order, not complying with procedural requirements, can be considered pro non scripto where not yet having been acted on by trial magistrate.

Fraud—Proof of—Accused bribing security official to gain entrance to station platform and thence onto train—Accused, not having purchased train ticket, unable to produce ticket to ticket examiner—Mere fact that there was insufficient evidence of oral statement whereby misrepresentation made, not meaning accused wrongly charged with fraud—Accused’s conduct representing to world that he had valid ticket, knowing that such representation false—Accused’s conduct amounting to false representation—Such conduct intended to induce Transnet to convey accused at its expense and to its detriment—Misrepresentation and prejudice established.

 

S v ROMER (SCA)

LEWIS JA, BOSIELO JA and PETSE AJA

2011 FEBRUARY 25; MARCH 30

Appeal—Application in terms of s 22(a)of Supreme Court Act 59 of 1959 for leave to place further evidence before court of appeal in appeal against sentence—Application refused where evidence controversial and not capable of being properly tested in appeal court, and where evidence relevant only to conviction—No basis for admissibilty of such further evidence.

Murder—Sentence—Diminished criminal responsibility—Respondent shooting three people in separate incidents, killing one and seriously injuring other two—Sentence of 10 years’ imprisonment conditionally suspended for five years and further three years’ correctional supervision imposed—No misdirections by trial court—Sentence not disturbingly inappropriate—Deterrence of respondent or others not overriding consideration in view of concatenation of highly unusual circumstances which were not likely to recur—State’s appeal against leniency of sentence dismissed.

 

S v MAHLANGU AND ANOTHER (SCA)

STREICHER JA, SHONGWE JA and PETSE AJA

2011 MARCH 18; APRIL 1

Corruption—Contravention of s 1(1)(b)(i) of Corruption Act 94 of 1992—Police officers demanding money from complainant to withdraw case of homicide they were investigating against him—Such amounting to demand of money to bring about ‘termination of the investigation’—As such, it constituted act ‘in relation to’ duty with which police officers charged—Statutory requirements for contravention of s 1(1)(b)(i) of Act proved.

Corruption—Sentence—Contravention of s 1(1)(b)(i) of Corruption Act 94 of 1992—Police officers demanding money from complainant to withdraw case of homicide they were investigating against him—Corruption serious offence, especially when committed by police officers—Loud outcry from society against corruption—Sentence of six years’ imprisonment, of which two years conditionally suspended, appropriate.

Evidence—Witnesses—Credibility—Single witness and trap—Cautionary rules—Trial magistrate not pertinently using words ‘cautionary rule’ and ‘evidence of a trap’ in judgment—Nevertheless clear from judgment that magistrate had cautioned himself to consider evidence in its totality, all probabilities and improbabilities and credibility of witnesses—Magistrate having made judiciously considered judgment—Appeal dismissed.

Evidence—Witnesses—Credibility—Single witness—Cautionary rules—Evidence of single witness having to be substantially satisfactory in every material respect or corroborated in order for court to base finding on it—Corroboration could also be found  n improbability of appellant’s version.

 

S v MAKHAYE (KZD)

SEEGOBIN J and BALTON J

2011 FEBRUARY 14; MARCH 3

Sentence—Imposition of—Factors to be taken into account—Previous convictions—Over-emphasis of previous conviction constituting misdirection—Appellant, convicted of car theft, having one 10-year-old conviction for vaguely similar offence—Trial court incorrect in finding that previous sentence not having had deterrent effect—Appellant gainfully employed and supporting large extended family—Five-year sentence set aside and replaced with sentence of five years’ imprisonment, one suspended, subject to provisions of s 276(1)(i) of Criminal Procedure Act 51 of 1977.

 

S v FYNN (KZP)

NDLOVU J and MOKGOHLOA J

2011 FEBRUARY 10

Admission of guilt—Accused paying admission of guilt fine on written notice in terms of s 57(1)(b) of Criminal Procedure Act 51 of 1977—Written notice not disclosing offence with which accused charged—Deemed conviction in terms of s 57(6) of Act cannot stand and should be set aside.

 

S v MITCHELL (ECP)

CHETTY J and SCHOEMAN J

2010 DECEMBER 2

Contempt of court—Contravention of s 108 of Magistrates’ Courts Act 32 of 1944—Appeal or review—Appellate/reviewing tribunal should be slow to interfere with measures lower court considered necessary to protect itself from conduct disrupting or interfering with proper functioning of court—Effectiveness of contempt proceedings might be diminished if matter referred for investigation by Director of Public Prosecutions.

Contempt of court—Contravention of s 108 of Magistrates’ Courts Act 32 of 1944—Statement by magistrate in terms of s 108(2) of Act—Incumbent on magistrate to make such statement and to submit it to reviewing judge without delay—Copy to be furnished to accused—Purpose of copy to accused is to confirm that facts stated are correct and to give accused opportunity to express his/her remorse—Expression of remorse might impact on sentence imposed and give accused opportunity to mend his ways.

 

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v VAN DER MERWE AND ANOTHER (WCC)

ERASMUS J, DLODLO J and BINNS-WARD J

2011 JANUARY 28; FEBRUARY 24

Prevention of crime—Forfeiture order—Application for in terms of s 48 of Prevention of Organised Crime Act 121 of 1998—Person having interest in property which is subject of forfeiture application having right in terms of s 48(4)(a)to oppose making of order—Or such person may apply in terms of s 48(4)(b)for order under s 52 excluding such interest from operation of order (known as ‘innocent owner defence’)—Person seeking exclusionary order under s 52 to satisfy court on balance of probabilities of existence of requirements set out in either s 52(2) or s 52(2A), as case may be—Section 52 burdening person raising ‘innocent owner defence’ with ‘reverse onus’—Only at this stage of proceedings, when exclusionary order sought, that owner or affected interest holder’s innocence or culpability arises—Onus on such person to establish his/her innocence or lack of culpability.

Prevention of crime—Forfeiture order—Forfeiture order in terms of s 48 of Prevention of Organised Crime Act 121 of 1998—Appeal against—High Court’s power to make forfeiture order in terms of s 48(1) read with s 50 of Act discretionary one in broad sense of concept—Court on appeal less constrained in interfering with order than in case where court of first instance’s discretion strict or narrow one—Appeal court may substitute its own view for that of court below if its view of merits impels different outcome to case, but will as appellate court only do so if it concludes decision of court of first instance was wrong.

Prevention of crime—Forfeiture order—Application for in terms of s 48 of Prevention of Organised Crime Act 121 of 1998—Wide discretionary nature of High Court’s power—Decision whether to grant or refuse order made upon weighing-up of any number of relevant disparate considerations arising from facts of given case—Court to determine therefrom whether forfeiture is rationally and proportionately appropriate manner of achieving ends of Act—This case, even when affected party not seeking exclusion order in terms of s 52 of Act—Very availability of application for exclusion also factor relevant in proportionality enquiry—Effect of forfeiture on respondent, as part of proportionality enquiry, bearing different character from that which arises in context of ‘innocent owner defence’ under s 52—Innocence or culpability of respondent playing no role in proportionality enquiry—Relevant consideration in proportionality enquiry being whether forfeiture would be disproportionate measure to achieving legislation’s ends—Such case when personally punitive effect of forfeiture would materially outweigh measure of achievement of broader societal purposes at which civil forfeiture directed.