December 2017

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases in the December law reports.

•    Click on the case name to download the original judgment.

JUDGMENTS OF INTEREST IN THE DECEMBER EDITIONS OF THE SALR AND SACR REPORTS

SOUTH AFRICAN LAW REPORTS

Retrospective amendment, without notice, of Income Tax Act—whether contrary to rule of law

The applicants in this matter challenged the legality of an amendment to the Income Tax Act 58 of 1962, on the basis that it operated retrospectively and was introduced, so it was alleged, without adequate notice. The court held that nothing in the Constitution prohibited Parliament from passing retrospective legislation, and there was no overriding duty to give notice of the retrospective amendment. The amendment was reasonable and justifiable. Pienaar Brothers (Pty) Ltd v Commissioner, South African Revenue Service and Another 2017 (6) SA 435 (GP)

PAIA and the right to have access to private funding details of political parties

The failure of the Promotion of Access to Information Act 2 of 2000, the court held, to allow for the disclosure of the private funding particulars of political parties was in breach of the constitutional right to access to information. The Act was therefore declared to be invalid, which declaration was suspended in order to allow Parliament to remedy the defects. My Vote Counts NPC v President of the Republic of South Africa and Others 2017 (6) SA 501 (WCC)

Constitutionality of a provision in a will

Testators in a will bequeathed immovable property to their children subject to a fideicommissum to the effect that, beyond their children, such property could devolve only to male descendants. Was this unconstitutional? The court held that it was unfairly discriminatory. But it was justifiable in terms of the limitations clause, considering the importance of the right of the freedom of testation, and the limited extent of the limitation, being confined to the private sphere and affecting a limited amount of people.  King and Others NNO v De Jager and Others 2017 (6) SA 527 (WCC)

SOUTH AFRICAN CRIMINAL LAW REPORTS

An arrest arising from a violation of a protection order - Is a full and complete investigation required?

Before making an arrest on the basis of an alleged violation of a protection order granted in terms of the Domestic Violence Act 116 of 1998, a full and complete investigation regarding all the allegations in a statement by the complainant was not required in terms of the law; all that was required was that the arrestor exercise discretion rationally within the boundaries of the Act and bring the arrestee to justice. Rautenbach v Minister of Safety and Security 2017 (2) SACR 610 (WCC)

Common purpose—Unlawful possession of firearms

The applicants were part of a group of robbers that committed an armed robbery in which certain of their number shot and killed the deceased. The Constitutional Court confirmed the applicants’ conviction for murder, on the basis of common purpose, as they knew that some of the group were carrying firearms which could be used to kill someone. The CC however set aside the applicants’ conviction on common purpose for unlawful possession of firearms, finding that there was no evidence suggesting that they intended to possess the firearms through the perpetrators. S v Makhubela and Another 2017 (2) SACR 665 (CC)

Conviction for murder where expert evidence could not exclude the possibility of natural death

Here the SCA overturned the accused’s conviction in the High Court for the murder of her husband. It found that the court a quo was precluded from finding the accused guilty of murder in circumstances where the expert evidence did not exclude the reasonable inference of the natural death of the deceased. S v Maqubela 2017 (2) SACR 690 (SCA)

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• South African Diamond Producers Organisation v Minister of Minerals and Energy and Others 2017 (6) SA 331 (CC)
• Advertising Standards Authority v Herbex (Pty) Ltd 2017 (6) SA 354 (SCA)
• Asla Construction (Pty) Ltd v Buffalo City Metropolitan Municipality 2017 (6) SA 360 (SCA)
• Bondev Midrand (Pty) Ltd v Puling and a Similar Case 2017 (6) SA 373 (SCA)
• Mahaeeane and Another v Anglogold Ashanti Ltd 2017 (6) SA 382 (SCA)
• Mbethe v United Manganese of Kalahari (Pty) Ltd 2017 (6) SA 409 (SCA)
• Moosa NO and Others v Harneker and Others 2017 (6) SA 425 (WCC)
• Pienaar Brothers (Pty) Ltd v Commissioner, South African Revenue Service and Another 2017 (6) SA 435 (GP)
• Strutfast (Pty) Ltd v Uys and Another 2017 (6) SA 491 (GJ)
• My Vote Counts NPC v President of the Republic of South Africa and Others 2017 (6) SA 501 (WCC)
• King and Others NNO v De Jager and Others 2017 (6) SA 527 (WCC)
• Minister of Home Affairs and Another v Ahmed and Others 2017 (6) SA 554 (SCA)
• Buildcure CC v Brews and Others NNO 2017 (6) SA 562 (GJ)
• Serengeti Rise Industries (Pty) Ltd and Another v Aboobaker NO and Others 2017 (6) SA 581 (SCA)
• KOS and Others v Minister of Home Affairs and Others 2017 (6) SA 588 (WCC)
• Areva NP Incorporated in France v Eskom Holdings Soc Ltd and Another 2017 (6) SA 621 (CC)
• Snyders NO v Louistef (Pty) Ltd and Another 2017 (6) SA 646 (CC)

SOUTH AFRICAN DIAMOND PRODUCERS ORGANISATION v MINISTER OF MINERALS AND ENERGY AND OTHERS (CC)

MOGOENG CJ, NKABINDE ADCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MHLANTLA J, MOJAPELO AJ, PRETORIUS AJ and ZONDO J
2017 JULY 24
[2017] ZACC 26

Constitutional law - Human rights—Right to property—Deprivation of property—Interference with property rights must be substantial to constitute actionable deprivation—Market regulation not qualifying as such—Property owner having no protectable interest in obtaining specific price for goods, or valuing them according to particular method—Constitution, s 25(1).

Constitutional law - Human rights—Right to property—Deprivation of property—Regulation of trade in unpolished diamonds—Not constituting substantial, actionable interference with dealers’ property rights—Constitution, s 25(1). 

Constitutional law - Human rights—Right to choose trade, occupation or profession freely—Regulation of trade in unpolished diamonds—Not constituting actionable limit on either choice or practice of diamond trade—Constitution, s 22.

Minerals and petroleum - Diamonds—Diamond trade—Regulation—Constitutionality—Prohibition on unlicensed assistance in s 20A of Diamonds Act 56 of 1986—Outlawing tender-house system under which unpolished diamonds would be sold to foreign buyers via unlicensed proxies who ‘assisted’ licensed buyers—Not unconstitutional.

ADVERTISING STANDARDS AUTHORITY v HERBEX (PTY) LTD (SCA)

NAVSA ADP, MATHOPO JA, PLASKET AJA, ROGERS AJA and SCHIPPERS AJA
2017 SEPTEMBER 29
[2017] ZASCA 132

Media - Advertising—Advertising Standards Authority—No jurisdiction over non-members—May not, absent submission to its jurisdiction, require non-members to participate in its processes, issue any instruction, order or ruling against non-member or sanction it—May consider and issue rulings to its members on whether they should publish or withdraw from publication any advertisement, regardless of by whom published.

ASLA CONSTRUCTION (PTY) LTD v BUFFALO CITY METROPOLITAN MUNICIPALITY (SCA)

PONNAN JA, CACHALIA JA, SWAIN JA, DAMBUZA JA and GORVEN AJA
2017 MARCH 24
[2017] ZASCA 23

Administrative law - Administrative action—Review—Application—Delay in application—Condonation—Applicant must provide explanation that covers entire duration of delay—Promotion of Administrative Justice Act 3 of 2000, s 7 and s 9.

Administrative law - Administrative action—Review—Application—Delay in application—Condonation—Substantive application required—Promotion of Administrative Justice Act 3 of 2000, s 7 and s 9.

Administrative law - Administrative action—Review—Application—Delay in application—Condonation—Obligation of court to consider prejudice to those affected by decision—Promotion of Administrative Justice Act 3 of 2000, s 7 and s 9.

Administrative law - Administrative action—Review—Application—Delay in application—Condonation—Impermissible for court to decide merits of review application before considering and determining application for condonation—Promotion of Administrative Justice Act 3 of 2000, s 7 and s 9.

BONDEV MIDRAND (PTY) LTD v PULING AND ANOTHER AND A SIMILAR CASE (SCA)

LEACH JA, TSHIQI JA, SERITI JA, TSOKA AJA and PLOOS VAN AMSTEL AJA
2017 OCTOBER 2
[2017] ZASCA 141

Land - Rights in—Registered title condition entitling transferor to claim retransfer of land if transferee not erecting dwelling within certain period—Nature of rights created—Such condition creating real right to erect dwelling and personal right for retransfer.

MAHAEEANE AND ANOTHER v ANGLOGOLD ASHANTI LTD (SCA)

MAYA AP, FOURIE AJA, GORVEN AJA, MBATHA AJA and MOLEMELA AJA
2017 JUNE 7
[2017] ZASCA 90

Administrative law - Access to information—Access to information held by private body—Request for access after certification of class action for damages—Meaning of ‘documents required’—In context of litigation, documents must be reasonably required to formulate claim—Right of access relied on to claim damages—Records requested not reasonably required to exercise or protect right relied on—Test not met—Promotion of Access to Information Act 2 of 2000, s 50(1).

Administrative law - Access to information—Barring of recourse to PAIA where record sought for purpose of litigation after commencement of proceedings—Proceedings commenced by certification application—Promotion of Access to Information Act 2 of 2000.

Practice - Class action—Commencement—Certification application signalling commencement of class action—Promotion of Access to Information Act 2 of 2000, s 7(1).

MBETHE v UNITED MANGANESE OF KALAHARI (PTY) LTD (SCA)

NAVSA JA, THERON JA, SWAIN JA, GORVEN AJA and MBATHA AJA
2017 MAY 30
[2017] ZASCA 67

Company - Proceedings by and against—Derivative action—Leave—Requirements—Good faith—Ulterior purpose, while relevant, not constituting independent component of good faith—Companies Act 71 of 2008,
s 165(5)(b).

Company - Proceedings by and against—Derivative action—Leave—Onus and discretion of court—Applicant must establish requirements on balance of probabilities—But court retaining residual discretion to refuse relief—Companies Act 71 of 2008, s 165(5)(b).

MOOSA NO AND OTHERS v HARNEKER AND OTHERS (WCC)

LE GRANGE J
2017 SEPTEMBER 14

Constitutional law - Legislation—Validity—Wills Act 7 of 1953, s 2C(1)—Providing that if descendant of testator renounces benefit of will, surviving spouse obtaining benefit—Term ‘surviving spouse’ not including spouses in monogamous and polygynous Muslim marriages solemnised according to Islamic law—To such extent, section unconstitutional—Words to be read in such that ‘surviving spouse’ including ‘every husband and wife of de facto monogamous and polygynous Muslim marriages solemnised under the religion of Islam’.

PIENAAR BROTHERS (PTY) LTD v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE AND ANOTHER (GP)

FABRICIUS J
2017 MAY 29

Constitutional law - Legislation—Validity—Retrospective amendment of fiscal legislation—Whether, if enacted without adequate notice, offending rule of law and/or constituting arbitrary deprivation of property—No overriding duty to give notice of retrospective amendment, nor to give notice stating precisely what intended legislation would entail—Standards for constitutional review of statutes decisive in determining validity of retrospective legislation—Legality to be assessed on case-by-case basis—No arbitrary deprivation of property where sufficient reason for retrospective amendment—Constitution, ss (1)(c), 25(1) and 36.

STRUTFAST (PTY) LTD v UYS AND ANOTHER (GJ)

ROME AJ
2017 JULY 5

Insolvency - Compulsory sequestration—Application—Sequestration of two or more individuals in single application—Impermissible, except where parties married in community of property or where complete identity of interests existing.

Court - Precedent and stare decisis—Court bound by prior decision of its own unless ‘clearly wrong’—Test—Precise test unavailable—But certain that clearly wrong judgment would pertain to type of case where error so profound that it amounted to judicial blunder or resulted in manifest and unsustainable absurdity or injustice.

MY VOTE COUNTS NPC v PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS (WCC)

MEER J
2017 SEPTEMBER 27

Constitutional law - Human rights—Right of access to information—Details of private funding of political parties—Disclosure required for exercise and protection of right to vote—Constitution, s 32(1), read with ss 1(d), 7(2) and 19.

Constitutional law - Legislation—Validity—Promotion of Access to Information Act 2 of 2000—Constitution requiring disclosure of details of private funding of political parties—PAIA unconstitutional and invalid insofar as it did not allow for disclosure of private funding details of political parties—Constitution, s 32(1), read with ss 1(d), 7(2) and 19.

KING AND OTHERS NNO v DE JAGER AND OTHERS (WCC)

BOZALEK J
2017 AUGUST 10

Will - Fideicommissum—Provision confining beneficiaries of subject property to male descendants—Whether justifiable limit to right to equality of female descendants—Whether contrary to public policy—Constitution, s 9.

MINISTER OF HOME AFFAIRS AND ANOTHER v AHMED AND OTHERS (SCA)

PONNAN JA, LEACH JA, MAJIEDT JA, PLASKET AJA and SCHIPPERS AJA
2017 SEPTEMBER 26
[2017] ZASCA 123

Immigration - Refugee—Asylum seeker—Whether asylum seekers validly applied for visas under Immigration Act while in South Africa—Immigration Act 13 of 2002, s 10(2).

BUILDCURE CC v BREWS AND OTHERS NNO (GJ)

MOSHIDI J, NICHOLLS J and SUTHERLAND J
2017 JUNE 20

Arbitration - Award—Delivery—Whether parties may vary statutory procedure for—Meaning of—Remittal to arbitrator to resolve dispute as to date of delivery—Arbitration Act 42 of 1965, s 25.

SERENGETI RISE INDUSTRIES (PTY) LTD AND ANOTHER v ABOOBAKER NO AND OTHERS (SCA)

SHONGWE ADP, PONNAN JA, DAMBUZA JA, COPPIN AJA and SCHIPPERS AJA
2017 JUNE 2
[2017] ZASCA 79

Local authority - Buildings—Demolition—Order—Validity—Where court finding that rezoning and subsequent building plan approvals unlawful and, without setting approval decisions aside, ordering demolition of parts of building exceeding original municipal zoning—Order vitiated by failure to set approval decisions aside, its lack of clarity and certainty in failing to specify portion(s) of the building to be demolished, and by court’s failure to exercise its discretion in determining just and equitable remedy.

KOS AND OTHERS v MINISTER OF HOME AFFAIRS AND OTHERS (WCC)

BINNS-WARD J
2017 SEPTEMBER 6

Births and deaths - Birth—Birth register—Alteration of sex description—Marital status—Impact—Whether persons married under Marriage Act 25 of 1961 who subsequently underwent sex/gender change prohibited by current legislative framework from securing alteration of sex description on birth register—Interpretation of applicable legislation—Persons who had obtained sex/gender change entitled to determination of their application for alteration of sex description, irrespective whether person’s marriage or civil partnership (if any) solemnised under Marriage Act or Civil Union Act—Alteration of Sex Description and Sex Status Act 49 of 2003, s 2(1); Marriage Act 25 of 1961; Civil Union Act 17 of 2006.

AREVA NP INCORPORATED IN FRANCE v ESKOM HOLDINGS SOC LTD AND ANOTHER (CC)

MOGOENG CJ, MOSENEKE DCJ, BOSIELO AJ, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MHLANTLA J, NKABINDE J and ZONDO J
2016 DECEMBER 21
[2016] ZACC 51

Government procurement - Procurement process—Award—Review—Locus standi—Party that did not submit bid in its own right but as agent for other company in same group instituting review to challenge award—Party lacking locus standi to institute review proceedings.

Electricity - Supply—Eskom—Challenge to award of tender to replace Koeberg nuclear power station steam generators—Court finding that party seeking review acting as agent for losing bidder and therefore lacking locus standi to challenge award.

Constitutional law - Human rights—Enforcement—Own-interest litigation—Issue of locus standi usually dispositive of own-interest litigant’s claim—If litigant fails to show locus standi, court should enter into merits only in exceptional case or where public interest demands it—Constitution, s 38(a).

SNYDERS NO v LOUISTEF (PTY) LTD AND ANOTHER (CC)

MOGOENG CJ, NKABINDE ADCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MHLANTLA J, MOJAPELO AJ, PRETORIUS AJ and ZONDO J
2017 AUGUST 3
[2017] ZACC 28

Minerals and petroleum - Petroleum—Fuelling station—Site licence—Nature of—Petroleum Products Act 120 of 1977, s 2D.

• National Director of Public Prosecutions v Kalmar Industries SA (Pty) Ltd 2017 (2) SACR 593 (SCA)
• Director of Public Prosecutions, Gauteng Division, Pretoria v Heunis 2017 (2) SACR 603 (SCA)
• Rautenbach v Minister of Safety and Security 2017 (2) SACR 610 (WCC)
• S v Els 2017 (2) SACR 622 (SCA)
• S v Khanye and Another 2017 (2) SACR 630 (CC)
• National Director of Public Prosecutions v Ivanov and Another 2017 (2) SACR 639 (WCC)
• S v Makhubela and Another 2017 (2) SACR 665 (CC)
• S v Ncombo 2017 (2) SACR 683 (ECG)
• S v Maqubela 2017 (2) SACR 690 (SCA)
• Van Heerden and Another v National Director of Public Prosecutions and Others 2017 (2) SACR 696 (SCA)

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v KALMAR INDUSTRIES SA (PTY) LTD (SCA)

NAVSA ADP, LEACH JA, MAJIEDT JA, PLOOS VAN AMSTEL AJA and SCHIPPERS AJA
2017 AUGUST 17; SEPTEMBER 27
[2017] ZASCA 142

Prevention of crime - Restraint order in terms of Prevention of Organised Crime Act 121 of 1998—Over which assets—Not applicable to property which was subject of bona fide civil dispute.

DIRECTOR OF PUBLIC PROSECUTIONS, GAUTENG DIVISION, PRETORIA v HEUNIS (SCA)

BOSIELO JA, SERITI JA, MOLEMELA AJA, TSOKA AJA and GORVEN AJA
2017 AUGUST 29; SEPTEMBER 29
[2017] ZASCA 136

Evidence - Accused—Statement in terms of s 115 of Criminal Procedure Act 51 of 1977—Weight to be attached to—Accused failing to testify and expert evidence conclusively showing that his defence in s 115 statement false—Guilt of accused proven beyond reasonable doubt.

RAUTENBACH v MINISTER OF SAFETY AND SECURITY (WCC)

LE GRANGE J
2017 AUGUST 11

Domestic violence - Protection order—Breach of—Arrest in terms of s 8(4) of Domestic Violence Act 116 of 1998—Lawfulness of—Belief of arresting officer that complainant in imminent danger—Full and complete investigation not required into all allegations in complainant’s statement—Arresting officer required only to exercise discretion rationally within boundaries of Act.

S v ELS (SCA)

BOSIELO JA, SERITI JA, SALDULKER JA, PLASKET AJA and TSOKA AJA
2017 AUGUST 17; SEPTEMBER 22
[2017] ZASCA 117

Conservation - Rhino horn—Unlawful purchase, possession and conveying of—Sentence—Trial court misdirected itself in approaching matter as if appellant was poacher—Rhino horn had been lawfully obtained by owner without animals being killed—Sentence reduced on appeal.

S v KHANYE AND ANOTHER (CC)

MOGOENG CJ, NKABINDE ADCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MHLANTLA J, MOJAPELO AJ, PRETORIUS AJ and ZONDO J.
2017 MARCH 22; AUGUST 10
[2017] ZACC 29

Evidence - Admissibility—Hearsay evidence—Admissibility of in terms of s 3 of Law of Evidence Amendment Act 45 of 1988—Admissibility as against accused of extra-curial statements by co-accused—Such statements inadmissible.

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v IVANOV AND ANOTHER (WCC)

CLOETE J
2017 JUNE 6, 7; AUGUST 25

Prevention of crime - Forfeiture order—Application for in terms of s 50 of Prevention of Organised Crime Act 121 of 1998—Which property liable to civil forfeiture—Proceeds of crime—Immovable property bought with proceeds of bracelet brought into country without owner declaring such—Bracelet being personal effects of owner, not requiring to be declared and no offence committed under s 15(1)(a) of Customs Act 91 of 1964.

S v MAKHUBELA AND ANOTHER (CC)

MOGOENG CJ, NKABINDE ADCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MHLANTLA J, MOJAPELO AJ, PRETORIUS AJ and ZONDO J
2017 SEPTEMBER 29
[2017] ZACC 36

Arms and ammunition - Unlawful possession of firearms and ammunition—Joint possession—By individual members of group of robbers, of firearms held by other members of group—No evidence from which it could be inferred that accused intended to possess firearms through perpetrators who had firearms in their possession, or that intended to hold firearms on behalf of co-accused—Convictions set aside.

S v NCOMBO (ECG)

EKSTEEN J and BLOEM J
2017 AUGUST 23, 28

Rape - Sentence—Factors to be taken into account—Number of times that accused raped complainant—Where accused discussed complainant reporting him to police after first act of penetration and thereafter penetrated her again—Discussion causing sufficient interruption in conduct to constitute two separate acts of rape.

S v MAQUBELA (SCA)

PONNAN JA, LEACH JA, TSHIQI JA, SWAIN JA and PLOOS VAN AMSTEL AJA
2017 AUGUST 15; SEPTEMBER 29
[2017] ZASCA 137

Murder - Actus reus—Proof of—Expert evidence could not exclude reasonable inference of natural death—Conviction of murder precluded in such circumstances.

Murder - Causation—Proof of—Distinction between scientific measure of proof and judicial measure thereof considered where expert evidence not excluding reasonable inference of natural death.

VAN HEERDEN AND ANOTHER v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS (SCA)

NAVSA ADP, BOSIELO JA, LAMONT AJA, MOLEMELA AJA and FOURIE AJA
2017 AUGUST 15; SEPTEMBER 11
[2017] ZASCA 105

Trial - Stay of prosecution—On ground that constitutional rights of accused infringed—Lengthy delay of prosecution and dishonest conduct by prosecution—Permanent stay granted.

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