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NEWSLETTERS
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November 2018 |
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Dear South African Law Reports and Criminal Law Reports subscriber JUDGMENTS OF INTEREST IN THE NOVEMBER 2018 EDITIONS OF THE SALR AND SACR AS WELL AS THE NAMIBIAN LAW REPORTS 2018(3). |
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SOUTH AFRICAN LAW REPORTSHead of state immunity and the spouse of a head of state In 2017, while in South Africa with her husband, then President Robert Mugabe of Zimbabwe, Dr Grace Mugabe allegedly assaulted a third person. Does customary international law include a rule that a head of state’s spouse is immune from the criminal jurisdiction of another state? Democratic Alliance v Minister of International Relations and Co-Operation and Others 2018 (6) SA 109 (GP) Vicarious liability of the Minister of Safety and Security, for damages of an individual shot by her romantic partner, a policeman While on a break from duty and in uniform, a policeman shoots his romantic partner at her home. In such circumstances, is the Minister of Safety and Security liable to the romantic partner for the damages resulting from her injury? Booysen v Minister of Safety and Security 2018 (6) SA 1 (CC) Judge completing the hearing of a trial but dying before giving judgment. What options are available to the litigants? A judge hears, and completes the hearing of a trial, but dies before giving judgment. May the parties now agree that the trial should not start anew, but that a decision should be made by another judge after his reading all of the material that was available to the deceased judge, and his hearing argument? Mondi Shanduka Newsprint (Pty) Ltd v Murphy 2018 (6) SA 230 (KZD)
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SOUTH AFRICAN CRIMINAL LAW REPORTS Should an accused be compelled to exercise his right to legal representation? After his legal representative withdrew due to ill health on the day of trial, the accused elected to proceed without representation when asked what he wished to do. Short of compelling the accused to engage legal representation, could anything more could be expected of the court. S v Shiburi 2018 (2) SACR 485 (SCA) Prisoner’s rights: blanket ban on use of laptops in cells for study purposes unfair? The prisoners were pursuing tertiary studies in prison and had insufficient opportunity to use communal computer facilities to study. The court considered whether a blanket ban imposed on the use of laptops in their cells constituted unfair discrimination in view of their perfect security records and justifiable need. Pretorius and Others v Minister of Justice and Correctional Services and Others 2018 (2) SACR 501 (GP)
Effect of confiscation order on sentencing in corruption matters
There was no inflexible rule that the effect of a confiscation order should be disregarded when imposing sentence in corruption matters. It would, however, be wrong to place undue emphasis on it. S v Scholtz 2018 (2) SACR 526 (SCA)
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THE NAMIBIAN LAW REPORTS 2018(3) Vicarious liability—standard of care expected of a medical practitioner The respondent accidentally shot himself through the leg, which eventually, after treatment in a state hospital, resulted in the amputation of his leg. The respondent sued the appellant, the Minister of Health and Social Services, for the recovery of damages caused by the negligence of the doctor and/or other medical officers employed by the appellant. The court considers the standard of care expected from general practitioners and whether it is the same for specialist practitioners. Minister of Health and Social Services NO v Kasingo 2018 (3) NR 714 (SC) The constitutionality of the imposition of land tax in terms of the Agricultural (Commercial) Land Reform Act 6 of 1995
The appellant launched numerous constitutional applications in the court a quo in which its main attack was directed against ss 76–80 of the Agricultural (Commercial) Land Reform Act 6 of 1995 (the Act) which provide for the imposition of land tax. The High Court found that the land tax imposed under these sections passed constitutional muster and dismissed the challenges to the regulations and other decisions taken pursuant to them. The Supreme Court held that the approach of the appellant that land tax was unconstitutional for any authority other than the legislature to prescribe or determine any element of a tax was fundamentally misconceived and was in conflict with an ordinary meaning of the term ‘provide for taxation’ which was contained in art 63(2)(b) of the Constitution of Namibia. Kambazembi Guest Farm CC t/a Waterberg Wilderness v Minister of Lands and Resettlement and Others 2018 (3) NR 800 (SC)
Right to privacy guaranteed under art 13 of the Constitution of Namibia demanding strict interpretation of search and seizure provisions
The state sought to have six search warrants issued by a magistrate in terms of s 22(4) of the Anti-Corruption Act 8 of 2003 admitted into evidence. The search warrants were issued on the mentioned dates directing ‘all authorised officers’ to search the premises identified. The court held that by its ordinary meaning an authorised officer must be identified and mentioned in the warrant to conduct the entry and search, not any or all officers. S v Lameck and Others 2018 (3) NR 902 (HC)
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Please forward any comments or queries to lawreports@juta.co.za. Kind Regards The Juta Law Reports Team Download the PDF version of the Law Reports Advance Notification |
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SOUTH AFRICAN LAW REPORTS
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TABLE OF CASES
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FLYNOTES
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BOOYSEN v MINISTER OF SAFETY AND SECURITY (CC) ZONDO DCJ, CAMERON J, FRONEMAN J, JAFTA J, KATHREE-SETILOANE AJ, KOLLAPEN AJ, MADLANGA J, MHLANTLA J, THERON J and ZONDI AJ Delict - Specific forms—Vicarious liability—Minister’s liability for policeman shooting romantic partner—Policeman on duty, in uniform, dining with partner at her home, thereafter shooting her with service pistol. AON SOUTH AFRICA (PTY) LTD v VAN DEN HEEVER NO AND OTHERS (SCA) NAVSA JA, THERON JA, WALLIS JA, PETSE JA and ZONDI JA Estoppel - Res judicata—Issue estoppel—Requirements—Same party—Identity of interest between plaintiffs in two different actions sufficient to satisfy same-party requirement. MADIBENG LOCAL MUNICIPALITY v PUBLIC INVESTMENT CORPORATION LTD (SCA) PONNAN JA, WALLIS JA, WILLIS JA, PLASKET AJA and MAKGOKA AJA Practice - Trial—Witnesses—Evidence—By affidavit—Correct approach to—Uniform Rules of Court, rule 38(2). AMANDLA GCF CONSTRUCTION CC AND ANOTHER v MUNICIPAL MANAGER, SALDANHA BAY MUNICIPALITY AND OTHERS (WCC) BOQWANA J Local authority - Tenders—Award—Appeal—21-day time limit—Whether official or office bearer of municipality empowered to condone non-compliance with time limits—No general power afforded to municipality (acting through its officials or office bearers) to extend a statutory time period, except if that power conferred on it by particular section of a statute—Section under consideration providing no such power—Local Government: Municipal Systems Act 32 of 2000, s 62(1). BANNISTER’S PRINT (PTY) LTD v D&A CALENDARS CC AND ANOTHER (GJ) MEYER J Set-off - Requirements—Whether debts of same nature, between same persons, and liquidated. BRIGHT IDEA PROJECTS 66 (PTY) LTD v FORMER WAY TRADE AND INVEST (PTY) LTD (KZP) D PILLAY J Minerals and petroleum - Petroleum—Arbitration—Whether eviction proceedings to be stayed, pending outcome of s 12B arbitration of fairness of brand fee—Petroleum Products Act 120 of 1977, s 12B. CILLIERS v LA CONCORDE HOLDINGS LTD AND OTHERS (WCC) PAPIER J Company - Shares and shareholders—Shareholders—Appraisal rights of dissenting shareholders—Disposal of all or greater part of assets of subsidiary—Shareholders in holding company entitled to appraisal rights where disposal would amount to disposal of all or greater part of assets of holding company—Companies Act 71 of 2008, s 115(2)(b), s 164(2)(b). DEMOCRATIC ALLIANCE v MINISTER OF INTERNATIONAL RELATIONS AND CO-OPERATION AND OTHERS (GP) VALLY J International law - Customary international law—Whether including rule that head of state’s spouse immune from criminal jurisdiction. DU PLESSIS NO AND OTHERS v VAN NIEKERK AND OTHERS (FB) DAFFUE J Trust - Trustee—Removal—Clause in trust deed providing that office of trustee vacated if majority of trustees requesting such trustee to resign—Whether decision of majority to request resignation, without any reason provided, sufficient for trustee to lose office—Trust law not allowing removal of trustee on such grounds—Clause, properly interpreted, meant that there had to be good cause for request and that trustee should vacate office only in event of acceptance of request—Even if interpretation incorrect, requirement of ‘good cause’ implied in trust deed, on grounds of public policy and principles of ubuntu, reasonableness and fairness—Failure of trustees to act arbitrio bono viri.
Contract - Terms—Implied and tacit terms—Implied terms—Specific instances—Clause in trust deed providing that office of trustee vacated if majority of trustees requesting such trustee to resign—Considerations of public policy and principles of ubuntu, reasonableness and fairness—Implied term to effect there had to be good cause for request and that trustee should vacate office only in event of acceptance of request. Contract - Legality—Constitutionality—Importation of constitutional principles into law of contract—Public policy, ubuntu, reasonableness and fairness—Clause in trust deed providing that office of trustee vacated if majority of trustees requesting such trustee to resign—Implied term to effect there had to be good cause for request and that trustee should vacate office only in event of acceptance of request. DIAS v PETROPULOS AND ANOTHER (WCC) BOZALEK J Land - Lateral support—Duty to maintain lateral support between contiguous pieces of land—Scope of—Extending not only to land in its natural state but also to land with buildings on it, provided that such land not so unreasonably loaded by buildings as to place disproportionate or unreasonable burden of lateral support on neighbouring land. Land - Lateral support—Duty to maintain lateral support between contiguous pieces of land—Breach of—What constitutes failure to provide lateral support—No closed list—Not confined to support maintaining area of excavation, irrespective of what further consequences excavation having for stability of contiguous land—In present case, removal of lateral support manifesting as slope mobilisation, causing damage to plaintiff’s property. JOINT MUNICIPAL PENSION FUND v EHLANZENI DISTRICT MUNICIPALITY (GP) DE VOS J, KUBUSHI J and PRINSLOO J Pension - Pension fund—Members—Benefits—Claim—Locus standi—Whether pension fund (Joint Municipal Pension Fund) to which member belonging entitled to claim from employer benefits payable by employer in terms of rules of fund, for purposes of paying member—Binding nature of rules—Statutory obligation to collect contributions and distribute benefits payable to its members—Pension fund having locus standi— Pension Funds Act 24 of 1956, ss 7D and 13. MOLOBI v SOUTH AFRICAN NATIONAL PARKS AND OTHERS (LCC) MOLEFE J Constitutional law - Legislation—Validity—Extension of Security of Tenure Act 62 of 1997, s 1 sv ‘occupier’ para (c)—Persons with monthly income above income threshold excluded from definition of ‘occupier’ and therefore protection of Act—Whether provision amounting to infringements of rights to equal protection and benefit of the law, to not be unfairly discriminated against, and to legally secure tenure—Paragraph (c) of ‘occupier’ not unconstitutional—Constitution, ss 9(1) and (3) and 25(6). MONDI SHANDUKA NEWSPRINT (PTY) LTD v MURPHY (KZD) LOPES J Judge - Death—Before giving judgment in trial—Trial completed—Parties not wanting trial de novo—Proposal that matter be determined on available documents and after legal argument. NUMSA obo NGANEZI AND OTHERS v DUNLOP MIXING AND TECHNICAL SERVICES (PTY) LTD AND OTHERS (LAC) SUTHERLAND JA, COPPIN JA and SAVAGE AJA Labour law - Dismissal—Derivative misconduct—Failure to disclose knowledge of wrongdoing against employer—Failure to identify fellow strikers involved in violent misconduct during strike—Duty to speak triggered by presence during violence—May be proved by indirect evidence or inference—Each of dismissed employees, on probabilities, present during some or all of misconduct—Failed to give evidence or provide explanation—Derivative misconduct established—Dismissals fair. Labour law - Employee—Duty of good faith to employer—Disclosure of knowledge of wrongdoing against employer—Duty to identify employees involved in misconduct—Violence during strike—Duty to identify culprits—Duty to speak triggered by presence during violence—Presence may be proved by indirect evidence or inference—Dismissal apt sanction for failure to identify perpetrators of violence. ROOS v SAAIMAN NO AND OTHERS (GP) TEFFO J Will - Revocation—Instruction to cancel or destroy—Keeping of outdated will cannot revive it in face of clear written instruction by testator to cancel or destroy it—Wills Act 7 of 1953, s 2A(c). SWART AND ANOTHER v CASH CRUSADERS SOUTHERN AFRICA (PTY) LTD (GP) FABRICIUS J, WANLESS AJ and STRIJDOM AJ Competition - Restraint of trade agreement—Enforcement—Order—Application to execute pending appeal—Irreparable harm—New employer opposing enforcement of restraint—Applicant must allege absence of irreparable harm to new employer—Superior Courts Act 10 of 2013, s 18(1) and (3). Execution - Application to execute pending appeal—Requirements—Applicant must allege absence of irreparable harm to all opposing parties—Leaving one out fatal to application—Superior Courts Act 10 of 2013, s 18(1) and (3). TROLLIP v TAXING MISTRESS, HIGH COURT AND OTHERS (ECG) PLASKET J, SMITH J and LOWE J Costs - Counsel’s fees—Taxation—Wasted costs of first day of postponed trial—Correct approach—Counsel entitled to full day fee as compensation for loss of opportunity, unless briefed and appearing in another matter on same day—Absent any reason to suspect counsel charged improperly, counsel not to be required by taxing officer to show loss of opportunity. WITZENBERG PROPERTIES (PTY) LTD v BOKVELDSKLOOF BOERDERY (PTY) LTD AND ANOTHER (WCC) CLOETE J Water - Groundwater—Abstraction—Interim interdict sought by neighbouring landowner—Standing—Applicant claiming abstraction from boreholes on neighbouring farm draining its dam—Mere connectivity between boreholes and dam not enough to show harm actually committed or reasonably apprehended—No standing—Interdict denied—National Water Act 36 of 1998. Water - National Water Act—Effect—Water law removed from private law to public law domain—National Water Act 36 of 1998. XANTHA PROPERTIES 18 (PTY) LTD v NATIONAL HOME BUILDERS REGISTRATION COUNCIL AND OTHERS (WCC) NUKU J Housing - Consumer protection—Enrolment of home—Whether home builder required, in terms of s 14 of Housing Consumers Protection Measures Act, to enrol construction of ‘home’, where home builder constructing home solely for purposes of leasing or renting out—Purpose of Act being protection of ‘housing consumer’—Tenant in terms of lease with home builder was not ‘housing consumer’—‘Home’ was accordingly limited to homes acquired by housing consumers by means of sale—Enrolment therefore not required—Housing Consumers Protection Measures Act 95 of 1998, s 1 sv ‘home’ and ‘housing consumer’, and s 14(1). |
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SOUTH AFRICAN CRIMINAL LAW REPORTS
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TABLE OF CASES
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FLYNOTES
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S v SHIBURI (SCA) SHONGWE ADP, SALDULKER JA, PILLAY AJA, MAKGOKA AJA and HUGHES AJA Trial - Accused—Legal representation of—Withdrawal of legal representative—On day of trial on grounds of ill health—Accused electing to proceed with trial without representation when asked what wished to do—Short of compelling accused to engage legal representation, nothing more could be expected of court—No irregularity occurring. Plea - Guilty—Questioning in terms of s 112(1)(b) of Criminal Procedure Act 51 of 1977—Not court’s function to evaluate plausibility of answers at that stage, but only whether explanation disclosing possible defence in law to charge—Court should not attempt to extract concessions from accused. PRETORIUS AND OTHERS v MINISTER OF JUSTICE AND CORRECTIONAL SERVICES AND OTHERS (GP) SWANEPOEL AJ Prisoner - Rights—Use of laptop computer in cell—Applicants pursuing tertiary studies in prison and having insufficient opportunity to use communal computer facilities to study—Correctional Services authorities imposing blanket ban on use of laptop computers in cells—Failing to consider applicants as individuals with perfect security records and justifiable need for use of such laptops—Constituting unfair discrimination and relevant order granted in favour of applicants. NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v FIVE STAR IMPORT & EXPORT (PTY) LTD (WCC) LE GRANGE J Search and seizure - Seizure—Return in terms of s 31(1)(a) of Criminal Procedure Act 51 of 1977 of article to owner—Proof of requirements of section—Two-stage inquiry—In casu, large sum of local currency seized in highly suspicious circumstances at airport—Applicant’s explanation preposterous and police having reasonable grounds for believing intended for use in commission of offence—Money forfeited to state. S v SCHOLTZ AND OTHERS (SCA) LEACH JA, MATHOPO JA, VAN DER MERWE JA, MOCUMIE JA and MOTHLE AJA Corruption - Sentence—Factors to be taken into account—Effect of confiscation order on sentence to be imposed—Not inflexible rule that such order be disregarded—In casu, confiscation order in excess of R60 million—Despite court’s sympathy for accused’s personal circumstances, no convincing reasons why statutory minimum sentence not to be imposed. Corruption - What constitutes—Nature of statutory offence and effect of repeal of Corruption Act 94 of 1992 by Prevention and Combating of Corrupt Activities Act 12 of 2004—Ambit of offence narrower under latter Act—Fight against corruption requiring legislative attention to definition of offence. S v SM (SCA) NAVSA JA, MAJIEDT JA, DAMBUZA JA, MOCUMIE JA and HUGHES AJA Evidence - Witness—Oath—Administering of—Mental state of witness subjected to some doubt—Court failing to hold inquiry in terms of s 164 of Criminal Procedure Act 51 of 1977—Such failure fatal—Proceedings set aside. S v MN (GP) TEFFO J and BASSON J Trial - Mental state of accused—Enquiry in terms of s 77 of Criminal Procedure Act 51 of 1977—Court made aware of possible mental disturbance of accused and relying on memorandum bearing official stamp of hospital indicating that not suffering from any such disturbance—Document not indicating whether psychiatric hospital or by whom accused examined—Provisions of s 77(1) peremptory and irregularity occurring vitiating trial. S v MHLOLA (WCC) CLOETE J and ENGERS AJ Admission of guilt - Setting of by prosecutor—Amount exceeding determination made for district—Notice ultra vires provisions of s 57(5)(a) of Criminal Procedure Act 51 of 1977 and irregular—Magistrate correct in setting aside payment of fines. S v MT (CC) MOGOENG CJ, CACHALIA AJ, DLODLO AJ, FRONEMAN J, GOLIATH AJ, JAFTA J, KHAMPEPE J, MADLANGA J, PETSE 2018 MAY 10; SEPTEMBER 3 Appeal - Leave to appeal—To Constitutional Court—Whether constitutional issue raised—Application of prescribed minimum-sentence legislation—Failure to inform accused of such—Effect of such failure—Challenge to court’s decision that wrong on facts not constitutional issue. Appeal - Leave to appeal—To Constitutional Court—Whether constitutional issue raised—Application of prescribed minimum-sentence legislation—Failure to inform accused of such—Question whether such failure infringed accused’s right to fair trial constituting constitutional issue—Whether accused’s right infringed in particular case not substantiated. |
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THE NAMIBIAN LAW REPORTS 2018(3)
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TABLE OF CASES
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