Dear South African Law Reports and Criminal Law Reports subscriber
Herewith the cases in the December 2020 law reports
JUDGMENTS OF INTEREST IN THE DECEMBER 2020 EDITIONS OF THE SALR and SACR LAW REPORTS 2020.
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SOUTH AFRICAN LAW REPORTS
JSE rivals slug it out: New-era stock exchange licence challenged
On 31 August 2016 two new, ‘alternative’, stock exchanges were licenced: the 4 Africa Exchange and ZARX. They were to compete with each other and, crucially, with the mighty JSE (the venerable Johannesburg Stock Exchange). In formulating their listings requirements, ZAR X and 4AX were able to simplify somen requirements that applied to a main board JSE listing. The JSE and 4 Africa however immediately disputed ZARX’s licencing, arguing that it had been illegitimately awarded. After the failure of an internal process before the Financial Services Appeal Board, 4 Africa applied in the Gauteng Local Division, Johannesburg to set aside the decision to award ZARX its licence. But 4 Africa failed on every point it raised in its application. The Johannesburg Court emphasised that that there had been no irregularity committed by the Registrar of Securities Services in the award of the ZARX licence. See 4 Africa Exchange (Pty) Ltd v Financial Service Conduct Authority and Others 2020 (6) SA 428 (GJ).
Selection for tax audit reviewable?
If you are unlucky enough to be selected for a tax audit, whether on a random or risk assessment basis, you may have the decision reviewed in court, said the Gauteng Local Division, Johannesburg in Carte Blanche Marketing CC and Others v Commissioner, South African Revenue Service 2020 (6) SA 463 (GJ). But the Johannesburg Court emphasised that ripeness and the principle of subsidiarity might derail any such review.
The breakup of a universal partnership between unmarried couples: the Supreme Court of Appeal states the law on parties’ assets
In Khan v Shaik 2020 (6) SA 375 (SCA) the court reiterated that, unlike with a marriage in community of property, in a universal partnership there was no joint ownership of assets. Since contract was at the heart of a universal partnership, a partner did not have a direct (or real) claim to assets of the other partner. The claim in question constituted a ‘debt’ for the purposes of the Prescription Act 68 of 1969 and would therefore prescribe after three years from the termination of the universal partnership.
SOUTH AFRICAN CRIMINAL LAW REPORTS
Single sentence to be imposed on composite charge of housebreaking with intent to rob and robbery with aggravating circumstances
The appellant was convicted in the regional magistrates’ court of housebreaking with intent to rob and robbery with aggravating circumstances. He was sentenced to seven years’ imprisonment in respect of the housebreaking and to a further 15 years’ imprisonment in respect of the robbery, the sentences to run concurrently. On appeal the court held that the court a quo had erred in punishing the two offences separately because the appellant was only convicted on a single, composite charge. In instances where one or both of the charges that made up the composite charge attracted a prescribed minimum sentence, the court held that the minimum sentence which should apply was that which was determined by the offence which the housebreaking facilitated, as it was the principal offence at which the housebreaking was directed. S v Bam 2020 (2) SACR 584 (WCC)
Award of R5 million for unlawful arrest and detention
The plaintiff was visiting a tavern with friends when he was arrested by the police. No reason was given for the arrest and when he resisted, he was shot in the ankle. He spent some time under guard in hospital and in police cells in appalling conditions. He was released after 150 days in prison. The police showed no interest whatsoever in pursuing the prosecution of the plaintiff or communicating with the prosecutor on the plaintiff being granted bail. Describing the conduct of the police and the whole matter as reprehensible, the court awarded him R5 million in damages in his action against the police for unlawful arrest and detention. A claim for damages for assault was settled separately. Msongelwa v Minister of Police 2020 (2) SACR 664 (ECM)
Sentence for murder and attempted murder of fellow police officials in plain clothes
The appellants inter alia shot and killed a fellow police official in plain clothes, and wounded another, during a police action. The appellants had no reason to believe that deceased had committed an offence and were therefore not entitled to the protection of s 49(2) of Criminal Procedure Act 51 of 1977. They were unaware, however, that the victims were fellow police officials, and their sentencing therefore fell within the ambit of s 51(2) of the Criminal Law Amendment Act 105 of 1997, read with part II of sch 2, in terms whereof the prescribed minimum sentence was 15 years’ imprisonment. Compelling and substantial circumstances justified a lesser sentence of 13 years’ imprisonment. S v Mathekga and Another 2020 (2) SACR 559 (SCA)
The Juta Law Reports Team
SOUTH AFRICAN LAW REPORTS
TABLE OF CASES
• Economic Freedom Fighters v Gordhan and Others 2020 (6) SA 325 (CC)
• Breetzke and Others NNO v Alexander and Others 2020 (6) SA 360 (SCA)
• Khan v Shaik 2020 (6) SA 375 (SCA)
• Moodliar and Others v Recycling and Economic Development Initiative of South Africa NPC and Others 2020 (6) SA 386 (SCA)
• Signature Real Estate (Pty) Ltd v Charles Edwards Properties and Others 2020 (6) SA 397 (SCA)
• Mkuyana v Road Accident Fund 2020 (6) SA 405 (ECG)
• 4 Africa Exchange (Pty) Ltd v Financial Sector Conduct Authority and Others 2020 (6) SA 428 (GJ)
• Carte Blanche Marketing CC and Others v Commissioner, South African Revenue Service 2020 (6) SA 463 (GJ)
• CG v AG and Another 2020 (6) SA 487 (ECP)
• Eclipse Systems and Another v He & She Investments (Pty) Ltd and A Related Matter 2020 (6) SA 497 (WCC)
• Fair-Trade Independent Tobacco Association v President, RSA and Another 2020 (6) SA 513 (GP)
• FirstRand Bank Ltd and Others v Mostert and Others 2020 (6) SA 543 (ML)
• Fourie v Geyer 2020 (6) SA 569 (NWM)
• Mfwethu Investments CC v Citiq Meter Solutions (Pty) Ltd 2020 (6) SA 578 (WCC)
• Minister of Police and Others v Silvermoon Investments 145 CC and Others 2020 (6) SA 586 (KZD)
• Msiza v Motau SC (NO) and Another 2020 (6) SA 604 (GP)
• Tumileng Trading CC v National Security and Fire (Pty) Ltd 2020 (6) SA 624 (WCC)
FLYNOTES
ECONOMIC FREEDOM FIGHTERS v GORDHAN AND OTHERS (CC)
KHAMPEPE ADCJ, JAFTA J, MADLANGA J, MAJIEDT J, MATHOPO AJ, MHLANTLA J, THERON J, TSHIQI J and VICTOR AJ
2020 MAY 29
Public Protector—Interdicts—Whether stricter test for grant of interim interdict against Public Protector.
BREETZKE AND OTHERS NNO v ALEXANDER AND OTHERS (SCA)
WALLIS JA, MBHA JA, MOCUMIE JA, MOLEMELA JA and DLODLO JA
2020 SEPTEMBER 2
Delict—Specific forms—Pure economic loss—Third party facilitating trustee’s breach of fiduciary duty to trust—Claim against third party for loss resulting from breach—Whether allegation of knowing participation in trustee’s breach of duty was allegation of wrongfulness.
KHAN v SHAIK (SCA)
CACHALIA JA, SALDULKER JA, NICHOLLS JA, MATOJANE AJA and SUTHERLAND AJA
2020 SEPTEMBER 21
Partnership—Universal partnership—Between unmarried cohabitants—Nature of partners’ rights—Claim for division of fruits—Nature and prescription—Prescription Act 68 of 1969, s 11(d).
Partnership—Universal partnership—Between unmarried cohabitants—Termination of—When occurring.
MOODLIAR AND OTHERS v RECYCLING AND ECONOMIC DEVELOPMENT INITIATIVE OF SOUTH AFRICA NPC AND OTHERS (SCA)
NAVSA JA, MBHA JA, PLASKET JA, WEINER AJA and UNTERHALTER AJA
2020 SEPTEMBER 15
Company—Winding-up—Liquidator—Remuneration—Retention of estimated remuneration where provisional liquidation order discharged—Not permitted.
SIGNATURE REAL ESTATE (PTY) LTD v CHARLES EDWARDS PROPERTIES AND OTHERS (SCA)
NAVSA JA, CACHALIA JA, DAMBUZA JA, MAKGOKA JA and SCHIPPERS JA
2020 JUNE 10
Estate agent—Commission—Entitlement—Estate agent misdescribed in fidelity fund certificate—Misdescription result of fault committed by Estate Agents Board—Whether agent precluded from claiming commission—Whether purpose of governing Act served—Estate Agents Affairs Act 112 of 1976, s 34A.
Estate agent—Fidelity fund certificate—Commission—Estate agent misdescribed in certificate—Misdescription result of fault committed by Estate Agents Board—Whether agent precluded from claiming commission—Whether purpose of governing Act served—Estate Agents Affairs Act 112 of 1976, s 34A.
MKUYANA v ROAD ACCIDENT FUND (ECG)
VAN ZYL DJP, BLOEM J and RAWJEE AJ
2020 JULY 2
Attorney—Fees—Contingency fees—Contingency fee agreement—To be concluded at sufficiently early stage of proceedings to reasonably enable compliance with Act—Invalid where, as in present case, entered into after summons issued and few months before trial.
Attorney—Fees—Contingency fees—Statutory limitation—Normal fee—Factors in determining reasonableness of—Validity of normal fees when stated as calculated at hourly rate—Contingency Fees Act 66 of 1997, s 1 sv ‘normal fees’ and s 2(1)(b).
4 AFRICA EXCHANGE (PTY) LTD v FINANCIAL SECTOR CONDUCT AUTHORITY AND OTHERS (GJ)
MOLEFE J
2020 FEBRUARY 28
Stock exchange—Exchange licence—Award—Validity—Application to review Registrar’s decision to award exchange licence—No merit in any of review grounds raised by applicant—Application for administrative review dismissed—Financial Markets Act 19 of 2012, s 7(4), s 8(1), s 9(1) and s 17.
CARTE BLANCHE MARKETING CC AND OTHERS v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE (GJ)
OPPERMAN J
2020 AUGUST 31
Revenue—Tax administration—Audit—Selection for—Whether legality review of decision to select taxpayers for audits competent—Ripeness and principle of subsidiarity posing obstacles to such review—Tax Administration Act 28 of 2011, s 40.
CG v AG AND ANOTHER (ECP)
ROBERSON J
2020 MAY 5
Marriage—Divorce—Proprietary rights—Community of property—Division of common property—Actio communi dividundo—Applicant seeking termination of joint ownership of immovable property—Interpretation of settlement agreement made order of court—Exercise of discretion arbitrio boni viri in respect of sale of immovable property—Appropriate order.
ECLIPSE SYSTEMS AND ANOTHER v HE & SHE INVESTMENTS (PTY) LTD AND A RELATED MATTER (WCC)
LE GRANGE J, ROGERS J and SHER J
2020 SEPTEMBER
Practice—Judgments and orders—Summary judgment—Defendant’s duties of disclosure and to set out bona fide defence—Determinative question being whether defendant’s version so inherently and seriously unconvincing that it can be rejected out of hand—Sufficient particularity—Plaintiff’s particulars disclosing prima facie availability for defendant of defence of prescription—Matter referred to trial.
Company—Directors and officers—Attribution of knowledge to company—Claim against directors by company for compensation for loss caused by illegal conduct of directors—English decision, that attribution of directors’ or agents’ guilty acts or knowledge to company inappropriate in certain circumstances, approved.
FAIR-TRADE INDEPENDENT TOBACCO ASSOCIATION v PRESIDENT, RSA AND ANOTHER (GP)
MLAMBO JP, MOLEFE J and BASSON J
2020 JUNE 26
State—Duties—Disaster management—Covid-19 lockdown—Ban on sale of tobacco products—Validity of regulations challenged—Rationality—Test—Whether link existed between purpose (checking spread of disease) and ban—Whether public consultation process required—Whether tobacco products ‘essential goods’ in terms of regulations—Disaster Management Act 57 of 2002, s 27.
FIRSTRAND BANK LTD AND OTHERS v MOSTERT AND OTHERS (ML)
BRAUCKMANN AJ
2020 JULY 30
Credit agreement—Consumer credit agreement—Litigation—Jurisdiction—Concurrent jurisdiction of High Court and magistrates’ courts—Whether plaintiff/applicant litigant may elect where to proceed—To promote access to justice, matters arising within ambit of NCA should be instituted in magistrates’ court having jurisdiction—National Credit Act 34 of 2005, s 172(2), read with Magistrates’ Courts Act 32 of 1944, s 29(1)(e); Constitution, ss 9 and 34.
FOURIE v GEYER (NWM)
PETERSEN AJ
2019 AUGUST 22
Credit agreement—Consumer credit agreement—Whether agreement subject to NCA—Acknowledgment of debt—Friends of long standing—Prior loans—Some business dealings—Formal document—National Credit Act 34 of 2005, ss 4(2)(b) and 8(4)(f).
MFWETHU INVESTMENTS CC v CITIQ METER SOLUTIONS (PTY) LTD (WCC)
ROGERS J
2020 MAY 11
Court—High Court—Jurisdiction—Companies—Whether 2008 Companies Act abolishing possibility of residence at both principal place of business and registered office—Companies Act 71 of 2008, s 23(3)(b).
MINISTER OF POLICE AND OTHERS v SILVERMOON INVESTMENTS 145 CC AND OTHERS (KZD)
CHETTY J
2020 APRIL 24
Defamation—Who may sue or be sued—Government departments—Whether departments of national government may interdict prospective defamation.
MSIZA v MOTAU SC (NO) AND ANOTHER (GP)
TLHAPI J
2020 AUGUST 11
Administrative law—Administrative function—Principles of natural justice—Audi alteram partem rule—When applicable—Adverse finding against individual by investigator exercising public power, without giving individual investigated opportunity to be heard—Whether audi alteram partem rule to be observed by investigator at investigation stage.
TUMILENG TRADING CC v NATIONAL SECURITY AND FIRE (PTY) LTD (WCC)
BINNS-WARD J
2020 APRIL 30
Practice—Judgments and orders—Summary judgment—Applications—Effect of amended rule 32—Opposing affidavit—Must deal with argumentative matters raised in founding affidavit with sufficient particularity to enable court to determine whether bona fide defence established—Uniform Rule 32(3).
SOUTH AFRICAN CRIMINAL LAW REPORTS
TABLE OF CASES
• S v Mathekga and Another 2020 (2) SACR 559 (SCA)
• S v Bam 2020 (2) SACR 584 (WCC)
• S v Ramabele and Others 2020 (2) SACR 604 (CC)
• S v Lottering 2020 (2) SACR 629 (WCC)
• S v Roche-Kelly 2020 (2) SACR 649 (WCC)
• Msongelwa v Minister of Police 2020 (2) SACR 664 (ECM)
S v MATHEKGA AND ANOTHER (SC)
CACHALIA JA, MOCUMIE JA, MAKGOKA JA, MOKGOHLOA JA and DLODLO JA
2020 JUNE 30
Murder—Sentence—Life imprisonment—Killing by policemen of fellow police official in plain clothes—Appellants having no reason to believe that deceased had committed offence and not entitled to protection of s 49(2) of Criminal Procedure Act 51 of 1977—Not aware, however, that was law-enforcement officer—In such circumstances s 51(1) of Act 105 of 1997, read with part I of sch 2, not applicable to appellants, but falling within ambit of s 51(2), read with part II of sch 2, in terms whereof prescribed minimum sentence was 15 years’ imprisonment—Compelling and substantial circumstances justifying lesser sentence of 13 years’ imprisonment.
S v BAM (WCC)
BOZALEK J and SHER J
2020 JULY 20
Housebreaking—Housebreaking with intent to rob and robbery with aggravating circumstances—Sentence—Criminal Law Amendment Act 105 of 1997—Composite offences—Where one or both offences attract prescribed minimum sentence.
Housebreaking—Housebreaking with intent to rob and robbery with aggravating circumstances—Sentence—Sentence not to be imposed as if separate offences.
S v RAMABELE AND OTHERS (CC)
MOGOENG CJ, FRONEMAN J, JAFTA J, KHAMPEPE J, MAJIEDT J, MHLANTLA J, TSHIQI J and VICTOR AJ
2020 SEPTEMBER 16
Trial—Delay—Unreasonable delay—Application of provisions of s 342A(3)(d) of Criminal Procedure Act 51 of 1977—Requirements for.
S v LOTTERING (WCC)
BINNS-WARD J and HOCKEY AJ
2020 AUGUST 31
Appeal—Application for hearing of further evidence—Application made to trial court—Requirements for—Interests of finality in litigation weighty consideration—Criminal Procedure Act 51 of 1977, s 309B(5)(b).
S v ROCHE-KELLY (WCC)
NDITA J and MANGCU-LOCKWOOD AJ
2019 NOVEMBER 22, 28
Extradition—Application for—Requirements—Certificate in terms of s 10(2) of Extradition Act 67 of 1962—No format for certificate prescribed—Deposition in terms of s 9(3) may be by way of hearsay.
Extradition—Application for—Requirements—Certificate in terms of s 10(2) of Extradition Act 67 of 1962—No format for certificate prescribed—Statement of offences required by art 12.2(b) of European Convention on Extradition admissible, despite having no apparent author or identification; not being signed at end; not initialled; not given under oath; not referred to in accompanying affidavit; and not linked to rest of documents.
MSONGELWA v MINISTER OF POLICE (ECM)
TOKOTA J
2020 MARCH 9–10, 17
Damages—Measure of—For unlawful arrest and detention—Reprehensible conduct of police in not pursuing prosecution of plaintiff who was held in custody for 158 days—Damages of R5 million awarded.
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