January 2019

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases in the January 2019 law reports.

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

JUDGMENTS OF INTEREST IN THE JANUARY 2019 EDITIONS OF THE SALR AND SACR LAW REPORTS.

SOUTH AFRICAN LAW REPORTS

Disqualification from refugee status: political crimes

In Gavrić, a Refugee Status Determination Officer disqualifies Mr Gavrić from eligibility for refugee status (s 4(1)(b) of the Refugees Act 130 of 1998). Mr Gavrić had been convicted of murder by a Serbian court. The case considers whether a s 3 refugee status decision is a prerequisite for a disqualification decision; and directs the approach to determining if a crime is political. Gavrić v Refugee Status Determination Officer and Others 2019 (1) SA 21 (CC)

An order that a third party provide information to a wronged party, to enable it to identify, and institute an action against a wrongdoer

In this case a company, Nampak, was robbed by unknown wrongdoers. Nampak sought an order that cellphone companies provide it with information, to enable it to identify the wrongdoers, and to institute an action against them. The court introduces this relief into South African law. Nampak Glass (Pty) Ltd v Vodacom (Pty) Ltd and Others 2019 (1) SA 257 (GJ)

Legality review: mistakes of fact

The Airports Company applied in this case to review its own award of a tender on the basis that it was flawed by mistakes of fact. The case considers this ground of legality review. Airports Company South Africa v Tswelokgotso Trading Enterprises CC 2019 (1) SA 204 (GJ)

SOUTH AFRICAN CRIMINAL LAW REPORTS

Dagga: private possession, use and cultivation

Prince concerns the constitutionality of statutory provisions criminalising private cultivation, use or possession of dagga. The Constitutional Court confirms, in part, the High Court’s declaration of invalidity, and states the position for the period after its order, pending Parliament’s intervention. Minister of Justice and Constitutional Development and Others v Prince and Others 2019 (1) SACR 14 (CC)

Use of exact words of oath not peremptory

The substance of the oath sworn to by the witness was sufficient to satisfy the requirements of s 162(1) of the Criminal Procedure Act 51 of 1977, despite the omission of the phrase ‘the whole truth’. The use of the exact words was not peremptory. S v Armstrong 2019 (1) SACR 61 (WCC)

Ethical duty on prosecution to convey information to defence

Information was received that attempts had been made to bribe and threaten the presiding judge. The matter was investigated by the Director of Public Prosecutions for two years while the trial continued without the defence being informed thereof, precipitating the recusal of the judge and permanent stay of prosecution. The court found that the prosecution had an ethical duty to convey such information in the circumstances. S v Brooks 2019 (1) SACR 103 (NCK)

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• Ahmed and Others v Minister of Home Affairs and Another 2019 (1) SA 1 (CC)
• Gavrić v Refugee Status Determination Officer and Others 2019 (1) SA 21 (CC)
• Popcru v Sacoswu and Others 2019 (1) SA 73 (CC)
• Commissioner, South African Revenue Service v Executors, Estate Ellerine 2019 (1) SA 111 (SCA)
• De Villiers and Others v GJN Trust and Others 2019 (1) SA 120 (SCA)
• Jiba and Another v General Council of the Bar of South Africa and Another 2019 (1) SA 130 (SCA)
• Minister of Rural Development and Land Reform v Normandien Farms (Pty) Ltd and Others, and Another Appeal 2019 (1) SA 154 (SCA)
• Truworths Ltd v Primark Holdings 2019 (1) SA 179 (SCA)
• Airports Company South Africa v Tswelokgotso Trading Enterprises CC 2019 (1) SA 204 (GJ)
• Democratic Alliance v Matika and Others 2019 (1) SA 214 (NCK)
• Dunn v Road Accident Fund 2019 (1) SA 237 (KZD)
• Fransch v Premier, Gauteng Province and Another 2019 (1) SA 247 (GJ)
• Kassel v Thompson Reuters (Markets) SA 2019 (1) SA 251 (GJ)
• Nampak Glass (Pty) Ltd v Vodacom (Pty) Ltd and Others 2019 (1) SA 257 (GJ)
• Origo International (Pty) Ltd v Smeg South Africa (Pty) Ltd 2019 (1) SA 267 (GJ)
• Pioneer Foods (Pty) Ltd v Minister of Finance and Others 2019 (1) SA 273 (WCC)
• South African Human Rights Commission v Khumalo 2019 (1) SA 289 (GJ)

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

ZONDO DCJ, CACHALIA AJ, DLODLO AJ, FRONEMAN J, GOLIATH AJ, JAFTA J, KHAMPEPE J, MADLANGA J, PETSE AJ and THERON J
2018 OCTOBER 9
[2018] ZACC 39

Immigration - Refugee—Asylum seeker—Whether and where may apply for visas and permanent residence permits—Immigration Act 13 of 2002.

GAVRIĆ v REFUGEE STATUS DETERMINATION OFFICER AND OTHERS (CC)

MOGOENG CJ, DLODLO AJ, FRONEMAN J, GOLIATH AJ, JAFTA J, KHAMPEPE J, MADLANGA J, PETSE AJ and
THERON J
2018 SEPTEMBER 28
[2018] ZACC 38

Immigration - Refugee—Qualification as—Exclusion—Whether refugee status decision precondition for exclusion decision—Internal remedy after exclusion—Determination of whether crime political—Refugees Act 130 of 1998, s 4(1)(b).

POPCRU v SACOSWU AND OTHERS (CC)

ZONDO DCJ, CACHALIA AJ, DLODLO AJ, FRONEMAN J, GOLIATH AJ, JAFTA J, KHAMPEPE J, MADLANGA J and
PETSE AJ
2018 AUGUST 23
[2018] ZACC 24

Labour law - Collective bargaining—Minority union—Existence of threshold agreement between employer and majority union not precluding collective agreement conferring organisational rights on below-threshold minority union—Contrary view would deny minority union’s constitutional right to engage in collective bargaining—Labour Relations Act 66 of 1995, s 18, s 20.

COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE v EXECUTORS, ESTATE ELLERINE (SCA)

NAVSA JA, WALLIS JA, MBHA JA, DAVIS AJA and HUGHES AJA
2018 MARCH 28
[2018] ZASCA 39

Company - Shares and shareholders—Shareholders—Variation of rights—What constitutes—Decrease in value of ordinary shares when preference shares converted to ordinary shares—Not constituting variation of rights.

Revenue - Capital gains tax—Deemed disposal of asset—Disposal to and from deceased estate—Valuation of preference shares for purposes of determining capital gain—Whether rights attaching to preference shares entitling holder thereof to convert them to ordinary shares—Whether such rights to be taken into account to determine its market value—Income Tax Act 58 of 1962, sch 8 paras 31(3) and 40(1).

DE VILLIERS AND OTHERS v GJN TRUST AND OTHERS (SCA)

SHONGWE ADP, SERITI JA, VAN DER MERWE JA, ROGERS AJA and SCHIPPERS AJA
2018 MAY 31
[2018] ZASCA 80

Company - Dissolution—Application for order declaring dissolution void—Notice of application—Order granted in absence of appellants—Appellants seeking rescission of order under rule 42(1)(a) on grounds erroneously made because notice not given to them—Ambit of s 420 of old Companies Act, and effect and purpose of order avoiding dissolution of company, considered—Rescission refused, given appellants’ lack of locus standi in that they were not affected by s 420 order—Companies Act 61 of 1973, s 420.

Company - Dissolution—Application for order declaring dissolution void—Nature of discretion granted to court—Court provided with discretion to avoid dissolution of company in any circumstances where interests of justice warranting such cause—Discretion was wide, and defied precise definition—Companies Act 61 of 1973, s 420.

Company - Dissolution—Application for order declaring dissolution void—Purpose and effect of order granted avoiding dissolution of company—Companies Act 61 of 1973, s 420.

JIBA AND ANOTHER v GENERAL COUNCIL OF THE BAR OF SOUTH AFRICA AND ANOTHER (SCA)

SHONGWE ADP, LEACH JA, SERITI JA, VAN DER MERWE JA and MOCUMIE JA
2018 JULY 10
[2018] ZASCA 103

Advocate - Misconduct—Removal from roll—Appeal by advocates struck from roll—Complaints, inter alia, of provision of incomplete records, late filing of affidavits, and attempts to mislead court—Cross-appeal by General Council of Bar against adverse costs order.

MINISTER OF RURAL DEVELOPMENT AND LAND REFORM v NORMANDIEN FARMS (PTY) LTD AND OTHERS, AND ANOTHER APPEAL (SCA)

LEACH JA, SALDULKER JA, SWAIN JA, LAMONT AJA and ROGERS AJA
2017 NOVEMBER 29
[2017] ZASCA 163

Environmental law - Conservation of agricultural resources—Prevention of erosion—Overgrazing—By livestock belonging to labour tenant—Labour tenant subject to statutory prohibition on overgrazing—Removal of livestock not constituting ‘eviction’ of labour tenant—State not obliged to provide tenants with alternative grazing land for displaced livestock—Conservation of Agricultural Resources Act 43 of 1983; Land Reform: Provision of Land and Assistance Act 126 of 1993, s 10(1).

Land - Agricultural land—Conservation—Prevention of erosion—Overgrazing—By livestock belonging to labour tenant—Labour tenant subject to statutory prohibition on overgrazing—Removal of livestock not constituting ‘eviction’ of labour tenant—State not obliged to provide tenants with alternative grazing land for displaced livestock—Conservation of Agricultural Resources Act 43 of 1983; Land Reform: Provision of Land and Assistance Act 126 of 1993, s 10(1).

Land - Land reform—Labour tenant—Overgrazing of land—Remedies of owner—Removal of livestock—Duty of state to relocate—Removal of livestock not constituting ‘eviction’ of labour tenant—State not obliged to provide tenants with alternative grazing land for displaced livestock—Conservation of Agricultural Resources Act 43 of 1983; Land Reform: Provision of Land and Assistance Act 126 of 1993, s 10(1).

Words and phrases - ‘Eviction’—Meaning of in Land Reform (Labour Tenants) Act 3 of 1996—Deprivation of right of occupation of land resulting from purported termination or repudiation of that right.

TRUWORTHS LTD v PRIMARK HOLDINGS (SCA)

MAYA P, WALLIS JA, WILLIS JA, DAMBUZA JA and VAN DER MERWE JA
2018 SEPTEMBER 5
[2018] ZASCA 108

Intellectual property - Trademark—Infringement—Well-known mark—Protection of well-known mark—Requirements for proof that mark is a wellknown mark—Trade Marks Act 194 of 1993, ss 27(5) and 35(1).

Intellectual property - Trademark—Infringement—Well-known mark—Protection of well-known mark—Unnecessary to establish that mark well known in entire Republic; mark protected if well known in any ‘relevant sector’—Identification of relevant sector—Relevant sector of SA public constituted by those who were potentially likely to be attracted by mark’s reputation to do business with proprietor of mark—Proper identification of relevant group involved a factual enquiry that was specific to particular mark and goods or services to which it related—Trade Marks Act 194 of 1993, ss 27(5) and 35(1A).

AIRPORTS COMPANY SOUTH AFRICA v TSWELOKGOTSO TRADING ENTERPRISES CC (GJ)

UNTERHALTER J
2018 JUNE 22

Review - Grounds—Legality—Mistake of fact—Requirements.

DEMOCRATIC ALLIANCE v MATIKA AND OTHERS (NCK)

TLALETSI JP and OLIVIER ADJ
2018 AUGUST 29

Local authority - Municipal councils—Meetings—Only speaker entitled to call meeting—Local Government: Municipal Structures Act 117 of 1998, s 29(1).

Local authority - Municipal councils—Meetings—Where called to consider resolution for removal of mayor—Notice requirements—Aimed at achieving democratic right of members of municipal council to participate in proceedings, as secured in s 160(8) of Constitution—Local Government: Municipal Structures Act 117 of 1998, s 58; Constitution, s 160(8).

Local authority - Municipal councils—Meetings—Whether speaker retaining discretion whether to call meeting, when called to do so by municipal council—Local Government: Municipal Structures Act 117 of 1998, s 29(1).

DUNN v ROAD ACCIDENT FUND (KZD)

MBATHA J
2018 SEPTEMBER 19

Motor vehicle accident - Compensation—Claim against Road Accident Fund—Consent order—Interest on judgment debt—Order providing that payment would be deferred for four months—No express provision for interest—Interest running from date of default—Where payment deferred, s 17(3)(a) of Road Accident Fund Act 56 of 1996 not applying in absence of specific clause providing for its operation.

Interest - A tempore morae—When commencing—Claim against Road Accident Fund—Consent judgment granted for payment on deferred date—No express provision for interest—Interest running from date of default—Where payment deferred, s 17(3)(a) of Road Accident Fund Act 56 of 1996 not applying in absence of specific clause providing for its operation.

FRANSCH v PREMIER, GAUTENG PROVINCE AND ANOTHER (GJ)

ADAMS J
2018 JUNE 8

Practice - Pre-trial conference—Preliminary list of questions—Applicant not content with respondent’s answers and seeking interlocutory order to compel—Applicant must show reasonable grounds for stated inference that supplied answers untruthful—Uniform Rules of Court, rule 37(4).

KASSEL v THOMPSON REUTERS (MARKETS) SA (GJ)

UNTERHALTER J
2018 JUNE 12

Defamation - Liability—Listing of foreign national as ‘politically exposed person’ (PEP)—Constituting warning that person, due to high office, exposed to increased risk of corruption and that business dealings with them warranting high scrutiny—Part of measures for combating of moneylaundering and terrorist financing initiated by Financial Action Task Force, an intergovernmental body to which South Africa belongs—Listing not implying corruption, only exposure to risk due to high office—Continued listing after exit from office not defamatory.

NAMPAK GLASS (PTY) LTD v VODACOM (PTY) LTD AND OTHERS (GJ)

UNTERHALTER J
2018 JANUARY 31

Practice - Judgment and orders—Orders—To provide information necessary to identify wrongdoer.

ORIGO INTERNATIONAL (PTY) LTD v SMEG SOUTH AFRICA (PTY) LTD (GJ)

VAN OOSTEN J
2018 JUNE 25

Contract - Breach—Remedies—Cancellation—Tender of payment—Effect—Whether tender of payment amounting to performance in terms of contract—Entitlement to cancel where tender proving to be amount owed.

Tender - Of payment—Contractual setting—Effect—Whether tender of payment amounting to performance in terms of contract—Entitlement to cancel where tender proving to be amount owed.

PIONEER FOODS (PTY) LTD v MINISTER OF FINANCE AND OTHERS (WCC)

SHER AJ
2017 SEPTEMBER 29

Revenue - Customs and excise—Import duty—Power of Minister of Finance to make amendments to level of import duties reflected in parts 1 and 2 of sch 1 of Customs and Excise Act 91 of 1964, pursuant to request to do so from Minister of Trade and Industry—Nature of power of Minister of Finance—Whether administrative function, or whether wide and discretionary executive power which, if exercised, in effect legislative in nature—Customs and Excise Act 91 of 1964, s 48(1)(b).

Administrative law - Administrative action—What constitutes—Amendment, by notice in Government Gazette, of import duties in order to give effect to request of Minister of Trade and Industry—Not mechanical, administrative power; rather wide and discretionary executive power which, if exercised, in effect legislative in nature—Customs and Excise Act 91 of 1964, s 48(1)(b).

SOUTH AFRICAN HUMAN RIGHTS COMMISSION v KHUMALO (GJ)

SUTHERLAND J
2018 OCTOBER 5 

Equality legislation - Hate speech—Incitement of harm required—Objective test for hate speech—Scope of envisaged ‘harm’—Constitution, s 16(2)(c); Promotion of Equality and Prevention of Unfair Discrimination
Act 4 of 2000, s 10(1)(a)–(c).

• S v Kekana 2019 (1) SACR 1 (SCA)
• Minister of Justice and Constitutional Development and Others v Prince and Others 2019 (1) SACR 14 (CC)
• S v Armstrong 2019 (1) SACR 61 (WCC)
• S v Moses 2019 (1) SACR 75 (WCC)
• S v Simba and Similar Matters 2019 (1) SACR 90 (WCC)
• S v James 2019 (1) SACR 95 (ECB)
• S v Brooks and Others 2019 (1) SACR 103 (NCK)

S v KEKANA (SCA)

SHONGWE ADP, MAJIEDT JA, VAN DER MERWE JA, MOLEMELA JA and MAKGOKA JA
2018 SEPTEMBER 18; OCTOBER 31
[2018] ZASCA 148

Murder - Plea—Plea of guilty—Sentence—Statement in terms of s 112(2) of Criminal Procedure Act 51 of 1977—Plea purporting to be one of guilty to murder in terms of s 51(2) of Criminal Law Amendment Act 105 of 1997—Act not creating new offences and such plea could not, without more, bind court to impose lesser sentence.

Murder - Indictment—Prescribed sentences in terms of s 51 of Criminal Law Amendment Act 105 of 1997—Act not creating new offences and applicable only to sentencing—No such charge as murder under s 51(1) or murder under s 51(2).

Murder - Sentence—Prescribed sentence of life imprisonment in terms of s 51(1) of Criminal Law Amendment Act 105 of 1997—Plea of guilty to murder ‘in terms of s 51(2)’—Acceptance of such plea by state could not, without more, bind court to impose lesser sentence.

Murder - Sentence—Prescribed sentence of life imprisonment in terms of s 51(1) of Criminal Law Amendment Act 105 of 1997—Father having killed each of his four children by slitting their throats, one whilst wife was forced to listen over phone—Whatever accused’s personal mitigating circumstances, such outweighed by aggravating circumstances, and life imprisonment only appropriate sentence on each count.

MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND OTHERS v PRINCE AND OTHERS (CC)

ZONDO ACJ, CAMERON J, FRONEMAN J, JAFTA J, KATHREE-SETILOANE AJ, KOLLAPEN AJ, MADLANGA J, MHLANTLA J, THERON J and ZONDI AJ
2018 SEPTEMBER 18
[2018] ZACC 30

Drugs - Dagga—Possession or cultivation for personal consumption by adult in private—Statutory prohibition of such conduct constituting unjustified limitation of right to privacy—Impugned provisions declared unconstitutional and invalid to extent criminalising use or possession in private or cultivation in private place of cannabis by adult for own personal consumption in private—Constitution, ss 14 and 36(1); Drugs and Drug Trafficking Act 140 of 1992, ss 4(b) and 5(b) read with part III of sch 2 and in s 1 sv ‘deal in’; Medicines and Related Substances Control Act 101 of 1965, s 22A(9)(a)(i) read with sch 7.

S v ARMSTRONG (WCC)

ALLIE J and MacWILLIAM AJ
2018 SEPTEMBER 7, 17

Evidence - Witness—Oath—Administering of—Omission of words ‘the whole truth’ insufficient on own to render evidence of witnesses unreliable—Criminal Procedure Act 51 of 1977, s 162(1).

S v MOSES (WCC)

BOZALEK J and BINNS-WARD J
2018 JUNE 14

Indictment and charge - Charge—Putting of charge to accused—Compliance with provisions of s 105 of Criminal Procedure Act 51 of 1977—Section should ordinarily be complied with according to its tenor—Substantial compliance, however, where legally represented accused tenders statement in terms of s 112(2).

Plea - Guilty—Alteration of to one of not guilty—Court required to enquire into circumstances before altering plea in terms of s 113 of Criminal Procedure Act 51 of 1977.

Plea - Guilty—Alteration of to one of not guilty—Procedure after alteration of plea—Trial to continue before same presiding officer in terms of s 113 of Criminal Procedure Act 51 of 1977—Where, however, presiding officer felt constrained to recuse themself, fact of previous convictions to be sealed in record placed before substituted presiding officer.

S v SIMBA AND SIMILAR MATTERS (WCC)

CLOETE J and ENGERS AJ
2018 AUGUST 17

Admission of guilt - Review—Fine determined by prosecutor where there were district limits set by magistrate of number of items involved in offence—Where number exceeding limit, admission-of-guilt fine manifestly not in accordance with determination—Conviction and sentence set aside.

Admission of guilt - Review—Fine determined by prosecutor—Magistrate retaining discretion given by s 57(7) of Criminal Procedure Act 51 of 1977 to find that admission-of-guilt fine not in accordance with justice even where fine set within district limits.

Admission of guilt - Environmental offences—Rock lobster—Possession of undersized rock lobster—Accused in possession of 454 undersized rock lobster—Prosecutor setting admission-of-guilt fine of R9000 (ie R20 per lobster) where fine for district as determined by magistrate was R500 per lobster—Admission-of-guilt fine set aside by magistrate in exercise of discretion under s 57(7) of Criminal Procedure Act 51 of 1977.

S v JAMES (ECB)

VAN ZYL DJP and HARTLE J
2018 SEPTEMBER 7

Contempt of court - Contempt in facie curiae—General rule that departure from rules of natural justice only justified in exceptional circumstances and accused to be apprised of how and why behaviour offending and punishable

S v BROOKS AND OTHERS (NCK)

DAFFUE J
2018 AUGUST 28, 29; SEPTEMBER 10

Prosecution - Conduct of—Duty to convey information to defence—Information that attempts had been made to bribe and threaten presiding judge—Matter investigated by Director of Public Prosecutions for two years while trial continuing without defence being informed thereof—Ethical duty on prosecution to convey such information.

Prosecution - Permanent stay of prosecution—Application for—Trialrelated prejudice—Application for permanent stay after judge presiding in lengthy trial recused herself—State having blown up case to appear more serious—State case based on trap where star witness was paid R1 million without having testified—Applicants having suffered extreme hardship since their arrest four years previously—Permanent stay granted.

Evidence - Witness—Payment to state witness—State case based on trap authorised by Director of Public Prosecutions—Payment of large sum to witness even before he testified deprecated.

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