MAY 2015

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases in the May law reports, as well as those in the Namibian Law Reports.

JUDGMENTS OF INTEREST IN THE MAY EDITIONS OF THE SALR, SACR AND THE NAMIBIAN LAW REPORTS 2015 (1).

SOUTH AFRICAN LAW REPORTS

Perception or intention?

A contractual repudiation depends on perception, not intention, and a reasonable person would not understand a demand for performance to be an indication of repudiation. B Braun Medical (Pty) Ltd v Ambasaam CC 2015 (3) SA 22 (SCA)

Charge-sheet in disciplinary proceedings

A charge-sheet in a disciplinary proceeding did not need to be drafted with the same formality as a charge in a criminal proceeding, but the facts supporting the charge had to be provided with the same level of particularity. The test was whether enough of the facts underlying the charge had been provided in order to answer it. Coetzee v Financial Planning Institute of South Africa and Others 2015 (3) SA 28 (SCA)

Insurance, non-disclosure and claim repudiation

Two judgments from the Supreme Court of Appeal give useful guidance on the issue of non-disclosure to an insurance company, whether such is material, and whether such non-disclosure affected the insurer’s acceptance of the risk or the ensuing premium charged.
Long-term insurance:
Visser v 1 Life Direct Insurance Ltd 2015 (3) SA 69 (SCA)
Short-term insurance:
Regent Insurance Co Ltd v King’s Property Development (Pty) Ltd t/a King’s Prop 2015 (3) SA 85 (SCA)

SOUTH AFRICAN CRIMINAL LAW REPORTS

Witchcraft no excuse

A trainee sangoma needed genital organs to complete his initiation, so he killed his younger sister and hacked out her private parts with an axe. The full bench on appeal examines other cases where the accused believed in witchcraft, and confirmed his sentence of life imprisonment. S v Mogaramedi 2015 (1) SACR 427 (GP)

Severe sentence adjusted

The accused broke into a home where a mother was sleeping with her son and daughter. The mother fought off his attempts to rape her, so the accused kidnapped her 3-year-old daughter and then raped and killed the child. On appeal, the life sentence for the rape was confirmed, but two of the other sentences were adjusted. S v Madiba 2015 (1) SACR 485 (SCA)

Parole and the prison party

After the prisoner had been released on parole, it emerged that he had been to a party in a cell, where alcohol had been consumed. The festivities had been caught on video, which was released to the media. Past conduct of parolee brought to light subsequent to release could be taken into account. Revocation of his parole was appropriate. Du Preez v Minister of Justice and Correctional Services and Others 2015 (1) SACR 478 (GP)

THE NAMIBIAN LAW REPORTS

Settlement agreement and further proceedings

Once the parties have entered into a settlement agreement, all issues previously in dispute become res judicata as the proceedings come to an end. Government of the Republic of Namibia and Others v Katjizeu and Others  2015 (1) NR 45 (SC)

Judge sues government for alleged unfair trial

A judge came to be prosecuted in the high court on certain charges. He was discharged at the end of the state case, but the state appealed and the Supreme Court ordered that he be tried. He was again acquitted, and sued the government, contending that the judges had committed certain acts which violated his common-law rights as well as his constitutional rights to a fair trial. Teek v President of The Republic of Namibia and Others 2015 (1) NR 58 (SC)

A sweeter than expected retrenchment offer

The employer was restructuring and offered the two employees retrenchment, which they accepted. But the employer discovered that it would also have to pay for enhancements to their pensions, and offered them re-employment, which they refused. The court found that once the offer had been accepted by the employee, a binding agreement came into being and employer then bound by that agreement. Namibia Wildlife Resorts Ltd v Government Institutions Pension Fund and Others 2015 (1) NR 88 (SC)

WE WELCOME YOUR FEEDBACK

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Kind Regards

The Juta Law Reports Team

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• Stratford and Others v Investec Bank Ltd and Others 2015 (3) SA 1 (CC)
• B Braun Medical (Pty) Ltd v Ambasaam CC 2015 (3) SA 22 (SCA)
• Coetzee v Financial Planning Institute of South Africa and Others 2015 (3) SA 28 (SCA)
• Stupel & Berman Inc v Rodel Financial Services (Pty) Ltd 2015 (3) SA 36 (SCA)
• Spenmac (Pty) Ltd v Tatrim CC 2015 (3) SA 46 (SCA)
• Oxacelay and Another v MFV El Shaddai and Others: MFV El Shaddai 2015 (3) SA 55 (KZD)
• GM v KI 2015 (3) SA 62 (GJ)
• Visser v 1 Life Direct Insurance Ltd 2015 (3) SA 69 (SCA)
• Regent Insurance Co Ltd v King’s Property Development (Pty) Ltd t/a King’s Prop 2015 (3) SA 85 (SCA)
• Land and Agricultural Development Bank of South Africa v Phato Farms (Pty) Ltd and Others 2015 (3) SA 100 (GP)
• Hanger v Regal and Another 2015 (3) SA 115 (FB)York Timbers (Pty) Ltd v National Director of Public Prosecutions 2015 (3) SA 122 (GP)
• Omar v Inhouse Venue Technical Management (Pty) Ltd and Others 2015 (3) SA 146 (WCC)
• Makwickana v Ethekwini Municipality and Others 2015 (3) SA 165 (KZD)
• Barnard and Others v Registrar of Medical Schemes 2015 (3) SA 204 (SCA)
• Combined Developers v Arun Holdings and Others 2015 (3) SA 215 (WCC)
• Young Ming Shan CC v Chagan NO and Others 2015 (3) SA 227 (GJ)
• De Montlehu v Mayo NO and Others 2015 (3) SA 253 (GJ)
• Khoza vMEC for Health and Social Development, Gauteng 2015 (3) SA 266 (GJ)
• S v Litako and Others 2015 (3) SA 287 (SCA)
• Shepard v Emmerich 2015 (3) SA 309 (GJ)

STRATFORD AND OTHERS v INVESTEC BANK LTD AND OTHERS (CC)

MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, LEEUW AJ, MADLANGA J, NKABINDE J, VAN DER WESTHUIZEN J and ZONDO J
2014 SEPTEMBER 2; DECEMBER 19
[2014] ZACC 38

Insolvency - Compulsory sequestration—Provisional sequestration—Application—Furnishing of copy of petition to employees of debtor—Employees including also domestic employees—Petition must be made reasonably accessible to them—Insolvency Act 24 of 1936, s 9(4A).
Insolvency—Compulsory sequestration—Final sequestration—Facta probanda—Advantage to creditors—Reasonable prospect that some pecuniary benefit will result—Concept of ‘advantage’ broad and not to be rigidified—Potentially impeachable transactions making sequestration advantageous to creditors—Insolvency Act 24 of 1936, s 12(1)(c).

B BRAUN MEDICAL (PTY) LTD v AMBASAAM CC (SCA)

PONNAN JA, SHONGWE JA, SWAIN JA, MATHOPO AJA and MEYER AJA
2014 NOVEMBER 19, 28
[2014] ZASCA 199

Contract - Breach—Repudiation—Demand for performance—Not reasonably perceived as indicating repudiation.
Contract—Interpretation—Evidence—Extraneous evidence to be used as conservatively as possible.

COETZEE v FINANCIAL PLANNING INSTITUTE OF SOUTH AFRICA AND OTHERS (SCA)

NAVSA ADP, LEACH JA, SALDULKER JA, SWAIN JA and MOCUMIE AJA
2014 NOVEMBER 12, 28
[2014] ZASCA 205

Disciplinary body - Disciplinary proceedings—Charge—Facts underlying—Test for sufficiency of.

STUPEL & BERMAN INC v RODEL FINANCIAL SERVICES (PTY) LTD (SCA)

BRAND JA, MHLANTLA JA, WILLIS JA, FOURIE AJA and GORVEN AJA
2015 FEBRUARY 17, 27
[2015] ZASCA 1

Conveyancer - Relationship between conveyancer and parties to transaction—Conveyancer undertaking to pay net proceeds of sale of immovable property to third party upon transfer—Seller later instructing conveyancer to withdraw undertaking—Third party claiming payment from conveyancer on basis that undertaking irrevocable—Undertaking given as agent which seller entitled to revoke as principal.

SPENMAC (PTY) LTD v TATRIM CC (SCA)

MTHIYANE DP, LEWIS JA, SHONGWE JA, PETSE JA and MOCUMIE AJA
2014 FEBRUARY 28; APRIL 1
[2014] ZASCA 48

Contract - Consensus—Mistake—Seller’s innocent misrepresentation inducing buyer to make material and reasonable mistake as to nature of merx—‘No representations’ clause—Whether seller may employ.

MFV EL SHADDAI

OXACELAY AND ANOTHER v MFV EL SHADDAI AND OTHERS (KZD)
LOPES J
2014 AUGUST 29; SEPTEMBER 5

Shipping - Admiralty law—Admiralty jurisdiction of high court—Ambit—Matter must have meaningful marine or maritime connection—Admiralty jurisdiction not extending to matter easily dealt with via court’s normal jurisdiction—Court ordering release of arrested ship where underlying cause was loan for fishing venture—Admiralty Jurisdiction Regulation Act 105 of 1983, s 1(1)(ee).

GM v KI (GJ)

FISHER AJ
2014 MAY 20; OCTOBER 6

Children - Parents—Responsibilities and rights—Suspension or termination—Right may not be terminated or suspended while responsibility preserved and vice versa—Permissible duration of suspension—Children’s Act 38 of 2005, s 28(1)(a).
Children —Parents—Biological father—Duty to maintain child—Duty existing independently of whether father holder of parental rights and responsibilities—Children’s Act 38 of 2005, s 21(2).

VISSER v 1 LIFE DIRECT INSURANCE LTD (SCA)

CACHALIA JA, WILLIS JA, SWAIN JA and FOURIE AJA
2014 NOVEMBER 21, 28
[2014] ZASCA 193

Insurance term - Long-term insurance—Life insurance—Policy—Proposal and declaration—Duty of disclosure—Materiality of misrepresentation or nondisclosure of pre-existing medical condition—Only arising as issue once insurer discharged onus of proving alleged pre-existing medical condition—Long-term Insurance Act 52 of 1998, s 59(1).

REGENT INSURANCE CO LTD v KING’S PROPERTY DEVELOPMENT (PTY) LTD t/a KING’S PROP (SCA)

LEWIS JA, WALLIS JA, PILLAY JA, FOURIE AJA and MEYER AJA
2014 NOVEMBER 3, 21
[2014] ZASCA 176

Insurance - Extinctive prescription—Period of prescription—Debt secured by general notarial bond—Not constituting ‘mortgage bond’ to which 30-year prescription period applying but ‘notarial contract’ to which 6-year prescription period applying—Prescription Act 68 of 1969, ss 11(a)(i) and 11(c).
Mortgage—Notarial bond—General notarial bond—Extinctive prescription—Period of prescription—General notarial bond constituting ‘notarial contract’ to which 6-year prescription period applying—Prescription Act 68 of 1969, ss 11(a)(i) and 11(c).

LAND AND AGRICULTURAL DEVELOPMENT BANK OF SOUTH AFRICA v PHATO FARMS (PTY) LTD AND OTHERS (GP)

MOLOPA-SETHOSA J
2014 AUGUST 13

Prescription - Extinctive prescription—Period of prescription—Debt secured by general notarial bond—Not constituting ‘mortgage bond’ to which 30-year prescription period applying but ‘notarial contract’ to which 6-year prescription period applying—Prescription Act 68 of 1969, ss 11(a)(i) and 11(c).
Mortgage—Notarial bond—General notarial bond—Extinctive prescription—Period of prescription—General notarial bond constituting ‘notarial contract’ to which 6-year prescription period applying—Prescription Act 68 of 1969, ss 11(a)(i) and 11(c).

HANGER v REGAL AND ANOTHER (FB)

MURRAY JA
2014 DECEMBER 5, 11

Animals - Wild animal—Liability of owner for damage by wild animal kept in captivity—Himalayan bear kept in cage, on owners’ farm, surrounded by jackal-proof wire fence—Bear biting plaintiff’s hand causing injuries after pulling her arm through fence—Plaintiff allowing fingers to protrude through fence, enabling bear’s action—Safety measures taken reasonable in circumstances—Owners not liable for plaintiff’s damages.

YORK TIMBERS (PTY) LTD v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS (GP)

PRINSLOO J and MOSEAMO AJ
2014 MARCH 25

Criminal law - Statutory offences—Prevention of organised crime—Confiscation order—Benefits of crime—Sawmill company convicted of grading road on own property before obtaining environmental authorisation—Company’s motives altruistic and intended to reduce environmental impact—No benefit to company proven as intended by POCA—Order set aside—Prevention of Organised Crime Act 121 of 1998, s 18.

OMAR v INHOUSE VENUE TECHNICAL MANAGEMENT (PTY) LTD AND OTHERS (WCC)

GAMBLE J
2014 AUGUST 26; NOVEMBER 11; 2015 FEBRUARY 6

Company - Oppressive conduct—What constitutes—Adverse offer for shareholding—Companies Act 71 of 2008, s 163.
Company—Directors and officers—Director—Personal financial interests—Non-disclosure—Consequences—Companies Act 71 of 2008, ss 75(5) and 75(7).

MAKWICKANA v ETHEKWINI MUNICIPALITY AND OTHERS (KZD)

D PILLAY J
2014 NOVEMBER 26; 2015 FEBRUARY 17

Local authority - Powers and duties—To regulate informal trading—Impounding of street trader’s stock for failing to produce permit—Constitutionality—Remedy.
Trade and industry—Trade—Informal trading—Regulation—Constitutionality—Impounding of street trader’s stock for failing to produce permit—Remedy.

BARNARD AND OTHERS v REGISTRAR OF MEDICAL SCHEMES (SCA)

MPATI P, LEWIS JA, PILLAY JA, SCHOEMAN AJA and FOURIE AJA
2014 AUGUST 20; SEPTEMBER 16
[2014] ZASCA 111

Medicine - Medical aid—Medical aid scheme—Placing under curatorship—Whether appropriate—Test—Medical Schemes Act 131 of 1998, s 56; Financial Institutions (Protection of Funds) Act 28 of 2001, ss 5(1) and 5(2).

COMBINED DEVELOPERS v ARUN HOLDINGS AND OTHERS (WCC)

DAVIS J
2013 AUGUST 5

Contract - Legality—Contracts contrary to public policy—Specific instances—Acceleration clause in loan agreement—Not per se contrary to public policy, but draconian and unfair implementation would be—Court refusing to allow applicant to use trivial default to trigger acceleration clause in order to gain commercial advantage over respondent.

YOUNG MING SHAN CC v CHAGAN NO AND OTHERS (GJ)

COPPIN J
2014 DECEMBER 1; 2015 FEBRUARY 2

Administrative law - Administrative action—What constitutes—Ruling of rental housing tribunal—Rental Housing Act 50 of 1999, s 13(4).
Electricity—Supply—Service charges—Whether landlord permitted to charge tenants its own electrical service charge in addition to municipality’s electrical service and consumption charges—Unfair Practices Regulations, 2001 (Gauteng), reg 13.

DE MONTLEHU v MAYO NO AND OTHERS (GJ)

KATHREE-SETILOANE J
2014 MARCH 3; APRIL 30

Company - Winding-up—Claim against company in liquidation—Proof—Late proof—Statutory framework—Whether Insolvency Act 24 of 1936, s 44(1), or Companies Act 61 of 1973, s 366(2), applying to late proof of claim.

KHOZA v MEC FOR HEALTH AND SOCIAL DEVELOPMENT, GAUTENG (GJ)

SPILG J
2014 APRIL 28; MAY 2–20; 2015 FEBRUARY 6

Medicine - Medical practitioner—Negligence—Proof—Secondary evidence of contents of lost or destroyed hospital records—Prima facie inadmissible in absence of acceptable explanation as to why original records not preserved—Semble: Such failure may also result in application of res ipsa loquitur doctrine in appropriate cases, or in adverse inferences being drawn—Law of Evidence Amendment Act 45 of 1988, s 3; National Health Act 61 of 2003, ss 13 and 17.

S v LITAKO AND OTHERS (SCA)

NAVSA JA, PONNAN JA, LEACH JA, PETSE JA and SWAIN AJA
2014 MARCH 7; APRIL 16
[2014] ZASCA 54

Criminal procedure - Evidence—Admissibility—Extra-curial statement by accused—Inadmissible against co-accused, whether classified as confession or admission—Law of Evidence Amendment Act 45 of 1988, s 3(1) not applicable.

SHEPARD v EMMERICH (GJ)

VAN OOSTEN J, VICTOR J and DAMALIS AJ
2014 JUNE 11, 13

Practice - Pleadings—Summons—Service—Validity—Contractually chosen domicilium citandi et executandi—Where specific method of effecting service contractually agreed, that method to be strictly complied with.

• S v Mogaramedi 2015 (1) SACR 427 (GP)
• S v Ditlhakanyane and Others 2015 (1) SACR 437 (GJ)
• S v Matshoba and Others 2015 (1) SACR 448 (ECP)
• Schoeman and Others v National Director of Public Prosecutions and Another 2015 (1) SACR 451 (WCC)
• Du Preez v Minister of Justice and Correctional Services and Others 2015 (1) SACR 478 (GP)
• S v Madiba 2015 (1) SACR 485 (SCA)
• S v TS 2015 (1) SACR 489 (WCC)
• S v Mqabhi 2015 (1) SACR 508 (GJ)
• S v Skhosana and 21 Other Cases 2015 (1) SACR 526 (GJ)

S v MOGARAMEDI (GP)

KOLLAPEN J, DOSIO AJ and THOBANE AJ
2014 AUGUST 15
[2014] ZAGPPHC 594

Murder - Sentence—Imposition of—Factors to be taken into account—Murder committed in order to obtain human body parts for ritual purposes—To regard such killings as substantial and compelling circumstances would send out wrong message to community—Prevalence of such cases in South Africa high and continuation of such killings would create more instability in communities where such practices were rife—No compelling and substantial circumstances found to exist.

S v DITLHAKANYANE AND OTHERS (GJ)

MOKGOATLHENG J
2014 JULY 14; AUGUST 4
[2014] ZAGPJHC 10

Correctional services - Remand detainee—Further detention of beyond period of two years—Application in terms of s 49G(3) of Correctional Services Act 111 of 1998—Adjudication of application for release—Purpose of s 49G was to strike balance between accused’s constitutional right to liberty and interests of justice—Insufficient for applicants to blandly state that respondent’s case was weak or that, thus far, state had not laid incriminating evidence against them.

S v MATSHOBA AND OTHERS (ECP)

HARTLE J
2014 MARCH 26, 27

Correctional services - Remand detainee—Further detention of beyond period of two years—Enquiry under s 49G of Correctional Services Act 111 of 1998—Enquiry not in form of bail hearing as envisaged by s 60 of Criminal Procedure Act 51 of 1977.

SCHOEMAN AND OTHERS v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AND ANOTHER (WCC)

BUTLER AJ
2014 MAY 5; JUNE 23; JULY 23
[2014] ZAWCHC 111

Prevention of crime - Restraint order in terms of Prevention of Organised Crime Act 121 of 1998—Rescission of in terms of common law—Jurisdiction of court—Applicant for rescission not limited to statutory grounds for rescission provided for by POCA, and also entitled to bring application on common-law grounds such as fraud.

DU PREEZ v MINISTER OF JUSTICE AND CORRECTIONAL SERVICES AND OTHERS (GP)

MAVUNDLA J
2014 SEPTEMBER 5, 18
[2014] ZAGPPHC 801

Prisons - Prisoner—Parole—Breach of parole conditions—Revocation of—For conduct that preceded prisoner’s release, only came to light after release on parole—National commissioner having wide discretion in terms of Correctional Services Act 111 of 1998 in whether to revoke or not—Past conduct of parolee brought to light subsequent to release could be taken into account—Participation of prisoner in party in cell where alcohol consumed by prisoner and captured on video recorder and subsequently released to media very serious and requiring serious censure—Revocation appropriate.

S v MADIBA (SCA)

PONNAN JA, SWAIN AJA and MATHOPO AJA
2014 MARCH 5, 20
[2014] ZASCA 13

Sentence - Imposition of—Factors to be taken into account—Cumulative effect of sentences imposed on more than one count—Court sentencing accused to life imprisonment on one count and to total of 60 years’ imprisonment on three other counts but stating that sentence was effective sentence of 70 years’ imprisonment—That irregularity entitling court to intervene on appeal—Sentence on two of other counts reduced.

S v TS (WCC)

SALDANHA J and ROGERS J
2014 OCTOBER 29
[2014] ZAWCHC 160

Juvenile offenders - Criminal capacity—Mens rea—Culpa—Much to be said for view that subjective frailties of child found proper place in assessment of criminal capacity—If child had criminal capacity (ie it could be held accountable as adult would), negligence was tested objectively with reference to standard of reasonable person.
General principles of liability—Criminal capacity—Juvenile offender—Mens rea—Culpa—If in cases involving children, negligence judged by standard of reasonable child of same age, inevitable that threshold enquiry into delictual or criminal capacity would also have to be adapted—If child were only to be judged by standards of reasonable child of same age, criminal capacity would logically have to be directed at question whether child in question had same cognitive and conative capacities as reasonable child of same age.

S v MQABHI (GJ)

SPILG J and VALLY J
2014 SEPTEMBER 17

Sentence - Prescribed sentence—Minimum sentences—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—‘Substantial and compelling circumstances’—Period spent in custody awaiting trial—A factor in determining presence of substantial and compelling circumstances—Factor not to be isolated but to be weighed with other circumstances—No mechanical formula applicable.
Sentence—Prescribed sentence—Minimum sentences—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—When period of imprisonment commences—Semble: Inability to determine that such sentence should commence on date earlier than when sentence was handed down creates hardship for accused who has been detained for lengthy period, was sentenced to life imprisonment and in terms of s 73(6)(b)(iv) of the Correctional Services Act 111 of 1998, only became eligible for parole after serving minimum sentence of 25 years—This inability could also affect constitutionally safeguarded rights.

S v SKHOSANA AND 21 OTHER CASES (GJ)

SATCHWELL J and VICTOR J
2014 SEPTEMBER 18

Trial - Presiding officer—Unavailability of to continue with trial—Resumption of where magistrate had become disabled—Magistrate in nearfatal accident, leaving him unable to preside again—Disability of magistrate renders earlier proceedings nullity and trial to commence de novo—Legislation silent on whether nullity to be declared by high court on pre-conviction matters—Nullity principle ex lege sets trial aside—Case to be resumed before other magistrate de novo without need for order to this effect from other court.

• Medical Association of Namibia Ltd and Another v Minister of Health and Social Services and Others 2015 (1) NR 1 (HC)
• Shaama v Roux 2015 (1) NR 24 (LC)
• Bobo v Ohorongo Cement (Pty) Ltd 2015 (1) NR 40 (LC)
• Government of the Republic of Namibia and Others v Katjizeu and Others 2015 (1) NR 45 (SC)
• Teek v President of the Republic of Namibia and Others 2015 (1) NR 58 (SC)
• Hugo v Council of Municipality of Grootfontein 2015 (1) NR 73 (SC)
• Namibia Wildlife Resorts Ltd v Government Institutions Pension Fund and Others 2015 (1) NR 88 (SC)
• Namibia Estate Agents Board v Like and Another NO 2015 (1) NR 112 (LC)
• Le Roux v Minister of Justice and Others 2015 (1) NR 131 (HC)
• S v Shipanga and Another 2015 (1) NR 141 (SC)
• Government of the Republic of Namibia v LM and Others 2015 (1) NR 175 (SC)
• Woker Freight Services (Pty) Ltd v Commissioner for Customs and Excise and Others 2015 (1) NR 206 (HC)
• Nguvauva v Minister of Regional and Local Government and Housing and Rural Development and Others 2015 (1) NR 220 (HC)
• Schütz v Pirker and Another 2015 (1) NR 231 (HC)
• Nedbank Namibia Ltd v Tile and Sanitary Ware CC and Others 2015 (1) NR 240 (HC)
• Municipal Council of Windhoek v Claudia Properties CC and Another 2015 (1) NR 248 (HC)
• South African Poultry Association and Others v Ministry of Trade and Industry and Others 2015 (1) NR 260 (HC)
• Primedia Outdoor Namibia (Pty) Ltd v Kauluma 2015 (1) NR 283 (LC)
• Municipal Council of Gobabis v Smith t/a Bertie Smith Contractor Services 2015 (1) NR 299 (HC)

MEDICAL ASSOCIATION OF NAMIBIA LTD AND ANOTHER v MINISTER OF HEALTH AND SOCIAL SERVICES AND OTHERS (HC)

UEITELE J
2012 DECEMBER 6; 2013 NOVEMBER 27
[2013] NAHCMD 362

Constitutional law - Fundamental rights—Dignity—Licensing scheme for dispensing and sale of medicines introduced by s 31(3) of Medicines and Related Substances Control Act 13 of 2003—Scheme not infringing right to dignity of medical practitioners—Constitution of Namibia, art 8(1).
Constitutional law—Fundamental rights—Practise any profession, or carry on any occupation, trade or business—Article 21(1)(j) of Constitution—Licensing scheme for dispensing and sale of medicines introduced by s 31(3) of Medicines and Related Substances Control Act 13 of 2003—Scheme not violating medical practitioner’s right to practise his/her profession—Not so invasive of right to practise medical profession that it constituted material barrier to practise of profession.
Constitutional law—Fundamental rights—Property—Licensing scheme for dispensing and sale of medicines introduced by s 31(3) of Medicines and Related Substances Control Act 13 of 2003—Scheme not infringing any property rights of medical practitioners as contemplated in art 16 of Constitution of Namibia.
Constitutional law—Fundamental rights—Fair trial—Determination of rights and obligation by court or tribunal—Constitution of Namibia, art 12(1)(a)—Licensing scheme for dispensing and sale of medicines introduced by s 31(3) of Medicines and Related Substances Control Act 13 of 2003—Scheme not infringing right of medical practitioners to have their civil rights and obligations determined by competent court or tribunal—Medicines Regulatory Council empowered to determine applications for licences a tribunal as envisaged by art 12(1)(a).

SHAAMA v ROUX (LC)

VAN NIEKERK J
2012 FEBRUARY 17; 2014 SEPTEMBER 30
[2014] NALCMD 39

Labour law - Appeal—From decision of arbitrator—Whether appeal or review procedure appropriate—Whether question of law involved—Procedural irregularity appearing from record and no need for evidence by way of affidavit required—Appeal procedure appropriate.
Labour law—Arbitration—Arbitrator’s duties—Arbitrator merely explaining to party that he could make opening statement without explaining necessity of giving evidence himself amounting to irregularity—Further irregularity committed by not permitting party to cross-examine opposing party—Award set aside.

BOBO v OHORONGO CEMENT (PTY) LTD  (LC)

SMUTS J
2014 MAY 30; JUNE 13
[2014] NAHCMD 26

Labour law - Appeal—Leave to appeal—When required—Refusal of condonation by Labour Court for non-compliance with rules in appeal to it from award of arbitrator—Leave to appeal required in terms of s 18(2)(c) of High Court Act 16 of 1990.

GOVERNMENT OF THE REPUBLIC OF NAMIBIA AND OTHERS v KATJIZEU AND OTHERS (SC)

SHIVUTA CJ, MAINGA and HOFF AJA
2014 JUNE 19; OCTOBER 29
[2014] NASC 17

Court - Jurisdiction—Settlement agreement—Effect of—Once the parties have entered into a settlement agreement, all issues previously in dispute become res judicata as the proceedings come to an end.

TEEK v PRESIDENT OF THE REPUBLIC OF NAMIBIA AND OTHERS (SC)

NGCOBO AJA, ZIYAMBI AJA and GARWE AJA
2014 APRIL 7; OCTOBER 27
[2014] NASC 16

Judge - Actions against—Claim arising out of conduct of case and alleged defamatory statements during case—Articles 78 and 81 of Constitution as well as s 17 of Supreme Court Act 15 of 1990 did not, either individually or cumulatively, preclude high court from considering such delictual claim—Those provisions aimed at preventing appeal or review of judgment of Supreme Court with aim of setting it aside.
Court—Jurisdiction—High court—Articles 78 and 81 of Constitution as well as s 17 of Supreme Court Act 15 of 1990 did not, either individually or cumulatively, preclude high court from considering such delictual claim—Those provisions aimed at preventing appeal or review of judgment of Supreme Court with aim of setting it aside.
Constitutional practice—Courts—Supreme Court —Undesirable for Supreme Court to sit as court of first and last instance on important constitutional questions without benefit of high court’s views on those questions.

HUGO v COUNCIL OF MUNICIPALITY OF GROOTFONTEIN (SC)

SHIVUTE CJ, MAINGA JA and DAMASEB AJA
2014 JULY 2; OCTOBER 27
[2014] NASC 15

Labour law - Conditions of employment—Retirement—Retirement age—Unilateral change of retirement age—Employee having commenced work on initial contract of employment providing for retirement age of 65—Employment subsequently governed by fixed term contract renewed from time to time—That contract providing for compulsory membership of employer’s pension fund subject to rules of that fund—Employer’s fund having compulsory retirement age of 60 years—Employee’s assent to employment contract giving employer right to unilaterally change retirement age of employee to 60 years.

NAMIBIA WILDLIFE RESORTS LTD v GOVERNMENT INSTITUTIONS PENSION FUND AND OTHERS (SC)

MAINGA JA, MTAMBANENGWE AJA and HOFF AJA
2014 JUNE 27; OCTOBER 28
[2014] NASC 18

Labour law - Retrenchment—What constitutes—Employee offered retrenchment package and accepted it—Employer changing its mind when it realised the cost implications and then offered employee re-employment—Employee rejecting offer—Once offer accepted by the employee, a binding agreement came into being and employer then bound by that agreement.

NAMIBIA ESTATE AGENTS BOARD v LIKE AND ANOTHER NO (LC)

GEIER J
2013 OCTOBER 4, 30
[2013] NALCMD 36

Estoppel - Res judicata—When applicable—Arbitration award under Labour Act 11 of 2007 set aside on appeal by Labour Court—No order made referring back to arbitration by another arbitrator—Party in later review application seeking order for referral back to arbitration—Order in appeal setting aside arbitration award rendering issue of referral back res judicata—Once award set aside on appeal, nothing left to set aside or refer back—Merits of review having become moot—Order for referral back declined.
Labour law—Arbitration—Review—Costs—Arbitration award under Labour Act 11 of 2007 set aside on appeal by Labour Court—Court finding award tainted by bias and malice on part of arbitrator—In application for review of award, aggrieved parties seeking award of costs de bonis propriis on attorney and client scale against arbitrator—Arbitrator opposing such order and filing affidavit in support of opposition—By so doing, arbitrator losing protection against civil liability afforded by s 134 of Labour Act 11 of 2007 by bringing herself within ambit of s 118 of Act—Bias and malice of arbitrator also removing shield of immunity conferred by s 134 of Act—Order granted that arbitrator pay costs of aggrieved parties de bonis propriis on attorney and client scale.

LE ROUX v MINISTER OF JUSTICE AND OTHERS (HC)

VAN NIEKERK J
2010 MARCH 23; 2014 FEBRUARY 20
[2014] NAHCMD 60

Magistrate - Extinc    Misconduct—Dismissal—Review—Competency of—Appeal procedure provided for in s 21(4) of Magistrates Act 3 of 2003 is appeal in ordinary sense—Such procedure not mandatory to exclusion of review procedure.
Magistrate—Misconduct—Investigation of misconduct in terms of s 26 of Magistrates Act 3 of 2003—Presiding officer conducting investigation may make finding without having transcribed record of proceedings—Not necessary to provide reasons for finding at time they are made—But written reasons to be provided in terms of s 26(12) of Act to Magistrates Commission within seven days after conclusion of investigation.
Magistrate—Misconduct—Dismissal—Letter of dismissal by Minister of Justice—Letter to be printed on letterhead of minister—Erroneous printing of letter on letterhead of Magistrates Commission not vitiating dismissal where clear that minister followed recommendation of Magistrates Commission and had signed letter of dismissal—Minister obliged to follow recommendation of commission and having no discretion not to dismiss magistrate—Magistrates Act 3 of 2003, ss 21(3)(a).

S v SHIPANGA AND ANOTHER (SC)

SHIVUTE CJ, MARITZ JA and MAINGA JA
2012 OCTOBER 31; 2014 OCTOBER 31
[2014] NASC 22

Criminal procedure - Evidence—Identification—Identification parade—Failure to hold identification parade—Witness making dock identification—Sufficiency of—Sufficient additional circumstantial evidence supporting identification.
Criminal procedure—Evidence—Admissions and confessions—Confession—Admissibility of—Confession not admissible only where repeated under oath.
Criminal law — Murder—Sentence—Particularly callous and premeditated murder of foreign tourist committed out of avarice and greed by robbing tourists—Sentence of 30 years’ imprisonment appropriate sentence.

GOVERNMENT OF THE REPUBLIC OF NAMIBIA v LM AND OTHERS (SC)

SHIVUTE CJ, MARITZ JA and MAINGA JA
2014 MARCH 17; NOVEMBER 3
[2014] NASC 19

Medicine - Consent to treatment—Plaintiffs (respondents), all HIV positive, all sterilised during Caesarean section—Plaintiffs claiming unlawful sterilisation—Signed consent form that had been signed while women at height of labour not amounting to informed consent in circumstances—Claim for damages upheld.
Medicine—Consent to treatment—Plaintiffs (respondents), all HIV positive, all sterilised during Caesarean section—Plaintiffs claiming unlawful sterilisation—Plaintiffs not having given informed consent—Semble: Attitude of medical practitioners smacked of medical paternalism—There could be no place in this day and age for medical paternalism when it came to the important decision whether or not to undergo sterilisation.

WOKER FREIGHT SERVICES (PTY) LTD v COMMISSIONER FOR CUSTOMS AND EXCISE AND OTHERS (HC)

UEITELE J
2013 MARCH 25, 26; 2014 FEBRUARY 12
[2014] NAHCMD 38

Revenue - Customs and excise—Customs duty—Liability for—Applicant, a clearing agent, agreeing that its multi-purpose general bond, executed in favour of Namibian government in terms of s 73 of Customs and Excise Act 20 of 1998, could be used to assist importer of goods to clear consignment of goods imported into Namibia for further export into Angola—Goods never exported from Namibia but as result of fraudulent conduct of official of Ministry of Finance remaining in Namibia—Such use of applicant’s multi-purpose general bond creating valid accessory surety obligation for applicant—Applicant liable as surety under multi-purpose general bond for payment of duties on consignment of goods.

NGUVAUVA v MINISTER OF REGIONAL AND LOCAL GOVERNMENT AND HOUSING AND RURAL DEVELOPMENT AND OTHERS (HC)

PARKER AJ
2014 JULY 14; OCTOBER 2
[2014] NAHCMD 290

Administrative law - Oppressiv Administrative action—Duty to act—Power of minister to designate chief in terms of s 5(2) of Traditional Authorities Act 25 of 2000—Once minister satisfied that applicant has met requirements in paras (i) to (vi) of s 5(1) of Act he has no further discretion and is obliged to appoint applicant as chief—In case where one applicant had died and there was only one other applicant who met all requirements, minister obliged to appoint that applicant as chief.

SCHÜTZ v PIRKER AND ANOTHER (HC)

UEITELE J
2014 OCTOBER 30; NOVEMBER 12
[2014] NAHCMD 341

Practice - Applications and motions—Condonation—Late filing of heads of argument—Such application not requiring formal notice of motion.
Costs—Security—Furnishing of—When ordered—Peregrinus instituting action against Namibian citizen—Proof of assets in Namibia—Assets that peregrinus claimed to have were subject of main application and court not informed of value thereof—Security ordered.

NEDBANK NAMIBIA LTD v TILE AND SANITARY WARE CC AND OTHERS (HC)

MILLER AJ
2014 AUGUST 21; SEPTEMBER 25
[2014] NAHCMD 279

Practice - Judicial case management—Delay in seeking amendment of pleadings—Such applications at advanced stage of proceedings frustrated overriding principle of judicial case management—Managing judge should be slow to allow any late interlocutory proceedings which might delay final determination of case.

MUNICIPAL COUNCIL OF WINDHOEK v CLAUDIA PROPERTIES CC AND ANOTHER (HC)

NDAUENDAPO J
2011 JANUARY 31–FEBRUARY 4; 2014 NOVEMBER 14
[2014] NAHCMD 344

Practice - Applications and motions—Fresh material—Applicant placing reliance in heads of argument on legislation not mentioned in founding affidavit—No bar to placing reliance on legal arguments provided that they were from the facts alleged.

SOUTH AFRICAN POULTRY ASSOCIATION AND OTHERS v MINISTRY OF TRADE AND INDUSTRY AND OTHERS (HC)

DAMASEB JP
2014 SEPTEMBER 29; NOVEMBER 7
[2014] NAHCMD 331

Practice - Applications and motions—Discovery and inspection in motion proceedings—Discovery only allowed in motion proceedings in exceptional circumstances.
Practice—Discovery and inspection—Access to discovered documents and information—Party seeking order that opponent, a competitor in same market or industry, not have access to discovered documents and information and access restricted only to such party’s legal practitioner—Such gagging order could have undesirable consequences for credibility of justice system—Such order would only be rarely granted.
Practice—Discovery and inspection—Discovery—International treaties alleged by party to prohibit administrative action that caused such party financial harm—Opposing party entitled to discovery of such documents evidencing existence of treaties.

PRIMEDIA OUTDOOR NAMIBIA (PTY) LTD v KAULUMA (LC)

VAN NIEKERK J
2012 SEPTEMBER 28; 2014 OCTOBER 17
[2014] NALCMD 41

Labour court - Rules of court—Procedure on noting of appeal—Appeal from a decision of arbitrator—Labour Court Rules and Conciliation and Arbitration Rules to be read together when determining procedure to be followed on noting appeal—Procedure somewhat confusing and consideration could be given to creating greater harmony between different sets of rules—Noting of appeal from arbitrator’s award to be done in terms of Conciliation and Arbitration Rules.
Labour court—Rules of court—Notice of appeal—Delivery of—Meaning of ‘delivery’—In Labour Court Rules meaning to serve copies on all parties and file original with registrar.
Labour court—Appeal—Condonation and re-instatement—When available—Application for condonation to be brought as soon as party becomes aware of failure to comply with rules—Implications and consequences of timing of application was matter to be dealt with on facts of each particular case.

MUNICIPAL COUNCIL OF GOBABIS v SMITH t/a BERTIE SMITH CONTRACTOR SERVICES (HC)

PARKER AJ
2014 OCTOBER 28; NOVEMBER 27
[2014] NAHCMD 361

Practice - Applications and motions—Notice of opposition—To counter-application—Party required to set out question of law to be determined—Failure to do so rendering notice defective.
Administrative law—Administrative bodies—Duty to act—Failure to act where administrative body under duty to act entitles person affected by failure to a mandamus.