Financial institution and FIca: freezing of client’s account prohibited in certain cases
A financial institution like a bank cannot freeze, or restrict a client’s access to, an account because the client did not satisfactorily identify itself or its stakeholders on demand. The Financial Intelligence Centre Act 38 of 2001 (Fica) makes it possible for financial institutions to obtain the relevant documentation or information from other sources, for example the Companies and Intellectual Property Commission (CIPC), the Master of the High Court or the Department of Home Affairs. The view that, under Fica, a financial institution can demand from clients that they provide verification documents is, not justified. Houtbosplaas (Pty) Ltd v Nedbank Ltd 2020 (4) SA 560 (GP)
SA Express: business rescue or liquidate?
Ziegler, an unpaid creditor of SA Express, an ailing state-owned airline, made an urgent application in the Johannesburg High Court, asking it to place the airline in business rescue. The opposition came from the airline itself, which disputed urgency, requesting that the matter be scrapped from the roll. It also said that it would be saved by a government cash injection in 2020/21. The court, accepting Ziegler’s evidence that the airline would become profitable if properly managed and that business rescue would yield a better return for creditors than immediate liquidation, granted Ziegler’s application. The court accordingly made an order placing SA Express under supervision pending the commencement of business rescue proceedings. Ziegler South Africa (Pty) Ltd v South African Express SOC Ltd and Others 2020 (4) SA 626 (GJ)
SOUTH AFRICAN CRIMINAL LAW REPORTS
Non-custodial sentence for elderly participant in large-scale enterprise of fraudulent VAT claims
A large-scale enterprise concerning fraudulent VAT claims was perpetrated by a father and son amounting to R60 million in wrongful refunds over period of more than six years. The father, 68-year-old first offender, who played a lesser role in enterprise, showed remorse and was not in the best of health, was given a non-custodial sentence. The son, however, who did not disclose his full involvement in the enterprise and delayed the trial unnecessarily, was sentenced to an effective term of 15 years’ imprisonment. S v Delport and Others 2020 (2) SACR 179 (FB)
Enquiry into fitness to possess firearm to be held on each occasion convicted and imposition of globular sentences only in exceptional circumstances
The accused was convicted in a magistrates’ court on single counts of theft, malicious damage to property and trespassing in contravention of s 1(1)(a) Trespass Act 6 of 1959. A globular sentence of three years’ imprisonment was imposed but no enquiry was conducted into his fitness to possess a firearm since he had been declared unfit to do so in a previous matter. In remitting the matter for sentencing afresh, the reviewing judge noted that, although the imposition of globular sentences was to be reserved for exceptional circumstances, the mere practice thereof was not a misdirection per se warranting interference. The sentence was, however, a nullity for exceeding the maximum period prescribed by the Trespass Act. Further, there was no provision in the Firearms Control Act 60 of 2000 excusing a court from holding an inquiry into an accused’s fitness to possess a firearm on each occasion convicted, and such should have been done in the instant matter. S v Thobela 2020 (2) SACR 222 (GJ)
Custodial sentence imposed for contravention of Electronic Communications and Transactions Act 25 of 2002
The appellant unlawfully accessed his former employer’s national cellular network, causing data to be destroyed or otherwise rendered ineffective. He was subsequently convicted in the Specialised Commercial Crimes Court of two counts of contravening s 86 of the Electronic Communications and Transactions Act 25 of 2002. Although the trial in the SCCC was still proceeding when the Superior Courts Act 10 of 2013 replaced its predecessor, and leave to appeal was therefore granted in error to the Supreme Court of Appeal, the president of the SCA consented to the matter proceeding as an application for special leave to appeal. This application was nevertheless dismissed, with the SCA emphasising, in respect of the sentences of three years’ imprisonment and a fine, respectively, the severity of the offences and the widespread consequences caused by the invasion of privacy of the clients. S v Salzmann 2020 (2) SACR 200 (SCA)
THE NAMIBIAN LAW REPORTS
Drug offences—whether mens rea an element of this offence
Accused was convicted in a magistrate’s court of the possession of three parcels of cannabis valued at N$150. He pleaded guilty but on questioning claimed that he was unaware that the blanket in which the cannabis was found, contained the prohibited substance. The review court held that it was clear that animus by the accused to possess the cannabis was lacking, and furthermore, that mens rea was indeed an element of the offence. If the accused was unaware of the cannabis hidden in the blanket as he said, he then could not have been convicted on the strength of the other admissions he made when questioned by the court. S v Hanse 2020 (2) NR 499 (HC)
Local authority cutting water supply to a place of business in terms of its credit and debtor control policy
On the return day of a spoliation order granted against a local authority for the cutting off of the water supply to the applicant, the respondents contended that the suspension of the supply was lawful in terms of its credit and debtor control policy, a policy which it alleged formed part of the municipal by-laws established in terms of the Local Authorities Act 23 of 1992. The court held that a policy by a public authority was not law: it was not subordinate or subsidiary legislation and was not a regulation within the meaning of s 94 of the Local Authorities Act. The power of a public authority to act had to be traceable to an enabling Act or subordinated or delegated legislation made under such Act. The exercise of public power in the present case was accordingly unlawful and invalid. Theron v Village Council of Stampriet and Another 2020 (2) NR 524 (HC)
The application of the res ipsa loquitur rule in an action for damages arising from a motor vehicle accident
The appellant instituted action in the High Court against the three respondents for damages arising from a motor vehicle collision in which her BMW vehicle, stationary at traffic lights, was hit in its rear by the third respondent’s Mercedes Benz, which had been propelled forward by the impact of the minibus driven by the first respondent, which had collided with the rear of the Mercedes Benz. The court a quo held on an application of the res ipsa loquitur rule that the third respondent, whose Mercedes Benz was stationary behind the BMW of which the brake pedal was pressed, should have changed lanes. The court found that he had been negligent and that his negligence had been the cause of the collision and that he did nothing to prevent the Mercedes Benz from colliding with the rear-end of the BMW. The Supreme Court held that the court a quo misdirected itself in expecting or requiring the third respondent (cross-appellant) to have taken steps in order to avoid the minibus colliding with the rear of his vehicle. The court should accordingly have found that the first respondent had failed to satisfactorily explain his conduct and thus failed to discharge the evidential burden on him created by the presumption of res ipsa loquitur. Dausab v Hedimund and Others 2020 (2) NR 558 (SC)
WE WELCOME YOUR FEEDBACK
Kind Regards
The Juta Law Reports Team
SOUTH AFRICAN LAW REPORTS
AUGUST 2020
TABLE OF CASES
• Centre for Child Law and Others v Media 24 Ltd and Others 2020 (4) SA 319 (CC)
• Magnificent Mile Trading 30 (Pty) Ltd v Celliers NO and Others 2020 (4) SA 375 (CC)
• Normandien Farms (Pty) Ltd v South African Agency for Promotion of Petroleum Exploration and Exploitation SOC Ltd and Another 2020 (4) SA 409 (CC)
• Commissioner, South African Revenue Service v United Manganese of Kalahari (Pty) Ltd 2020 (4) SA 428 (SCA)
• Sandvik Intellectual Property AB v Outokumpu OYJ and Another 2020 (4) SA 441 (SCA)
• South Durban Community Environmental Alliance v MEC for Economic Development, Tourism and Environmental Affairs, Kwa-Zulu-Natal Provincial Government and Another 2020 (4) SA 453 (SCA)
• Telkom SA SOC Ltd v Commissioner, South African Revenue Service 2020 (4) SA 480 (SCA)
• Van Zyl v Road Accident Fund 2020 (4) SA 503 (SCA)
• BAE Estates and Escapes (Pty) Ltd v Trustees, The Legacy Body Corporate and Another 2020 (4) SA 514 (WCC)
• Competition Commission v Wilmar Continental Edible Oils & Fats (Pty) Ltd and Others 2020 (4) SA 527 (KZP)
• Farmers Trust v Competition Commission 2020 (4) SA 541 (GP)
• Hlumisa Technologies and Another v Nedbank Ltd and Others 2020 (4) SA 553 (ECG)
• Houtbosplaas (Pty) Ltd and Another v Nedbank Ltd 2020 (4) SA 560 (GP)
• JW v Williams-Ashman NO and Others 2020 (4) SA 567 (WCC)
• Mbuthuma and Another v Walter Sisulu University and Others 2020 (4) SA 602 (ECM)
• Uitzig Secondary School Governing Body and Another v MEC for Education, Western Cape 2020 (4) SA 618 (WCC)
• Ziegler South Africa (Pty) Ltd v South African Express SOC Ltd and Others 2020 (4) SA 626 (GJ)
FLYNOTES
CENTRE FOR CHILD LAW AND OTHERS v MEDIA 24 LTD AND OTHERS (CC)
MOGOENG CJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, LEDWABA AJ, MADLANGA J, MHLANTLA J, NICHOLLS AJ and THERON J
2019 MAY 7; DECEMBER 4
Criminal procedure—Protection of children—As victims of crime—Protection of anonymity—Section 154(3) of Criminal Procedure Act 51 of 1977 constitutionally invalid to extent that it fails to protect identity of child victims of crime—Section also invalid to extent that its protection of children, either as accused or victims, not extending beyond age of 18.
MAGNIFICENT MILE TRADING 30 (PTY) LTD v CELLIERS NO AND OTHERS (CC)
CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, LEDWABA AJ, MADLANGA J, MHLANTLA J, NICHOLLS AJ and THERON J
2019 OCTOBER 9
Minerals and petroleum—Mining and prospecting rights—Transition to new order under MPRDA—Transmissibility, after death of holder, of right arising from MPRDA—Mineral and Petroleum Resources Development Act 28 of 2002, sch II, item 8.
Administrative law—Administrative action—Invalidity—Consequences—Where invalid grant of prospecting rights under Mineral and Petroleum Resources Development Act 28 of 2002 competing with holder of preexisting old order mineral right—Whether Oudekraal rule applicable, so that invalid grant first having to be set aside before pre-existing old order right could be asserted.
NORMANDIEN FARMS (PTY) LTD v SOUTH AFRICAN AGENCY FOR PROMOTION OF PETROLEUM EXPLORATION AND EXPLOITATION SOC LTD AND ANOTHER (CC)
KHAMPEPE ADCJ, JAFTA J, MADLANGA J, MAJIEDT J, MHLANTLA J, THERON J, TSHIQI J and VICTOR AJ
2020 MARCH 24
Constitutional practice—Appeal—Leave to appeal—Mootness—Whether, despite issues having become moot since applying for leave to appeal, in interests of justice to grant leave—Factors to be considered restated—Conflicting judgments by different courts, where appeal court’s outcome having binding implications for future matters—In casu, decision sought to be appealed against not having binding effect—Application for leave to appeal dismissed.
Constitutional practice—Costs—Punitive costs order—Against applicant for leave to appeal—Where, knowing that issues had become moot since application made, applicant persisting with application in hope of reaching favourable settlement offer as to costs of previous litigation—Such conduct amounting to abuse of process warranting punitive costs order.
COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE v UNITED MANGANESE OF KALAHARI (PTY) LTD (SCA)
CACHALIA JA, WALLIS JA, MBHA JA, DAMBUZA JA and SCHIPPERS JA
2020 MARCH 25
Minerals and petroleum—Mines—Taxation—Royalty payable by ‘extractor’ on ‘transfer’ of ‘unrefined mineral resource’—Gross sales of unrefined mineral resource—Determination of—Meaning of ‘without regard to any expenditure’ in s 6(3)(b) of Royalty Act—Correctly interpreted, gross sales to be determined without regard to any expenditure incurred in respect of transport, insurance and handling of mineral—Mineral and Petroleum Resources Royalty Act 28 of 2008, s 6(3)(b).
Revenue—Fiscal legislation—Interpretation—Role of context in purposive interpretation explained and confirmed.
SANDVIK INTELLECTUAL PROPERTY AB v OUTOKUMPU OYJ AND ANOTHER (SCA)
NAVSA JA, TSHIQI JA, SWAIN JA, MOLEMELA JA and PLASKET JA
2019 SEPTEMBER 18
Patent—Validity—Lack of inventiveness (obviousness)—Properly qualified expert able to assist court even though he or she was not expert at priority date of patent—Trial court dismissing application for revocation of patent, finding, inter alia, that patent contained inventive step not obvious to person skilled in art—SCA finding that evidence and prior art sufficient to sustain revocation on ground of obviousness—Appeal upheld and patent revoked—Patents Act 57 of 1978, ss 25(1) and (10).
SOUTH DURBAN COMMUNITY ENVIRONMENTAL ALLIANCE v MEC FOR ECONOMIC DEVELOPMENT, TOURISM AND ENVIRONMENTAL AFFAIRS, KWAZULU-NATAL PROVINCIAL GOVERNMENT AND ANOTHER (SCA)
PETSE DP, PONNAN JA, SWAIN JA, MAKGOKA JA and NICHOLLS JA
2020 APRIL 17
Administrative law—Administrative action—Review—After failure of internal appeal—In most cases, both decisions to be challenged—Whether twin challenges required depending on circumstances.
Costs—Public interest litigation—Unsuccessful private litigant seeking environmental protection for poor community—No undue delay—Should not be mulcted in costs—Application of Biowatch principle against private entities—Court’s discretion in terms of National Environmental Management Act 107 of 1998, 32.
Environmental law—Protection of the environment—Unsuccessful challenge to development proposal—Costs.
TELKOM SA SOC LTD v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE (SCA)
CACHALIA JA, SWAIN JA, MBHA JA, MOKGOHLOA JA and KOEN AJA
2020 MARCH 25
Revenue—Income tax—Deductions—Losses on foreign exchange transaction—Proviso to s 24I(10) not self-standing provision for deducting commercial loss unconnected to foreign exchange currency differences—Income Tax Act 58 of 1962, s 24I(10).
Revenue—Fiscal legislation—Interpretation—No general distinction between interpretation of fiscal statutes and other statutes—Application of contra fiscum rule—Continued role in constitutional dispensation of common-law presumption that statute law not unjust, inequitable or unreasonable, and when to apply it.
Statute—Interpretation—Distinction between interpretation of statutes, contracts and other documents—Purposive interpretation unitary but not uniform exercise.
VAN ZYL v ROAD ACCIDENT FUND (SCA)
MAYA P, ZONDI JA, MOKGOHLOA JA, KOEN AJA and EKSTEEN AJA
2020 MARCH 16
Motor vehicle accident—Compensation—Claim against Road Accident Fund—Prescription—Regulated exclusively by Road Accident Fund Act 56 of 1996, s 23—Provisions of Prescription Act 68 of 1969 not applicable—No exception for incapacitated persons.
BAE ESTATES AND ESCAPES (PTY) LTD v TRUSTEES, THE LEGACY BODY CORPORATE AND ANOTHER (WCC)
BOZALEK J
2020 FEBRUARY 4
Administrative law—Review—Administrative action—What constitutes—Decision of body corporate of sectional title scheme—Decision having effect on third parties external to body corporate—Decision having public effect and reviewable as administrative action under Promotion of Administrative Justice Act 3 of 2000.
Sectional title—Body corporate—Decisions of trustees—Review—Decision having effect on third parties external to body corporate—Decision having public effect and reviewable as administrative action under Promotion of Administrative Justice Act 3 of 2000.
COMPETITION COMMISSION v WILMAR CONTINENTAL EDIBLE OILS & FATS (PTY) LTD AND OTHERS (KZP)
MADONDO DJP
2018 JUNE 15
Competition—Competition Commission—Search and seizure—Ex parte order—Reconsideration application—Application for reconsideration of order authorising Competition Commission to conduct raid—Failure by Commission to place material facts before court—Lack of bona fides—Application granted—Competition Act 89 of 1998, s 46; Uniform Rules of Court, rule 6(12)(c).
FARMERS TRUST v COMPETITION COMMISSION (GP)
TOLMAY J
2017 MAY 11
Competition—Competition Commission—Search and seizure—Ex parte order—Reconsideration application—Application for reconsideration of order authorising Competition Commission to conduct raid—Commission to be given latitude to conduct proper investigation—Provided Commission had reasonable grounds, aggrieved party need not be notified of intended raid—Lack of bona fides may be addressed by way of subsequent claim for damages—Application refused—Competition Act 89 of 1998, s 46; Uniform Rules of Court, rule 6(12)(c).
HLUMISA TECHNOLOGIES AND ANOTHER v NEDBANK LTD AND OTHERS (ECG)
LOWE J
2019 DECEMBER 10
Company—Winding-up—Rescission—Application for rescission not automatically suspending operation and execution of final winding-up, which remains in place—Affected party may approach court under rule 45A of Uniform Rules to suspend execution of final winding-up pending finalisation of application for rescission.
Insolvency—Compulsory sequestration—Rescission—Application for rescission not automatically suspending operation and execution of final sequestration order, which remains in place—Affected party may approach court under rule 45A of Uniform Rules to suspend execution of final winding-up order pending finalisation of application for rescission.
HOUTBOSPLAAS (PTY) LTD AND ANOTHER v NEDBANK LTD (GP)
MOTHLE J
2019 DECEMBER 12
Financial institution—Compliance—Fica verification—Existing clients—Financial institution may not demand from existing account-holders that they submit identification documents on pain of restriction of access to their accounts—Information may be obtained from other sources—Requirements in respect of entities representing legal persons—Financial Intelligence Centre Act 38 of 2001, s 21B(4).
JW v WILLIAMS-ASHMAN NO AND OTHERS (WCC)
SHER J
2020 APRIL 28
Will—Revocation—Statutory revocation on divorce—Constitutionality—Wills Act 7 of 1953, s 2B—If person dies within three months of divorce, prior will to operate as if ex-spouse predeceased him or her, unless will expressly providing that ex-spouse should benefit despite divorce—Provision, while effectively disinheriting ex-spouse, serving legitimate social purpose—Not infringing right to property (s 25 of Constitution), right of access to courts (s 34 of Constitution) or public policy—No extraneous evidence of contrary intention on part of testator permitted.
MBUTHUMA AND ANOTHER v WALTER SISULU UNIVERSITY AND OTHERS (ECM)
TONI AJ
2019 OCTOBER 15; NOVEMBER 21
Administrative law—Administrative action—Review—When competent—Action by juristic person that is not organ of state—Decision by university to suspend students pending disciplinary proceedings—University’s power to suspend located in statute—To be challenged under Promotion of Administrative Justice Act 3 of 2000.
Review—Legality or administrative—Applicant for review not having choice as to pathway to review—Legality review appropriate only in context of exercise of public power—Exercise of administrative power to be challenged by way of review under Promotion of Administrative Justice Act 3 of 2000—Distinction between two types of review discussed.
Education—University—Student—Suspension pending disciplinary proceedings—Review—Applicability of PAJA—While not organ of state, university constituting juristic person with disciplinary power sourced in statute—PAJA applicable—Promotion of Administrative Justice Act 3 of 2000.
UITZIG SECONDARY SCHOOL GOVERNING BODY AND ANOTHER v MEC FOR EDUCATION, WESTERN CAPE (WCC)
MASUKU AJ
2019 JANUARY 16
Appeal—Leave to appeal—Application—Effect—Suspension of decision—Also applying to decision dismissing claims or applications—Superior Courts Act 10 of 2013, s 18(1).
ZIEGLER SOUTH AFRICA (PTY) LTD v SOUTH AFRICAN EXPRESS SOC LTD AND OTHERS (GJ)
DIPPENAAR J
2020 FEBRUARY 6
Company—Business rescue—Business rescue or liquidation—Ailing stateowned airline—Applicant submitting evidence that (1) airline would trade profitably if properly managed; (2) liquidation would have disastrous effects on company, economy—Reasonable-prospect threshold met—Business rescue practitioners should be given opportunity to investigate company’s affairs and implement rescue plan—Companies Act 71 of 2008, s 131(4).
SOUTH AFRICAN CRIMINAL LAW REPORTS
AUGUST 2020
TABLE OF CASES
• Director of Public Prosecutions, Gauteng Division, Pretoria v Buthelezi 2020 (2) SACR 113 (SCA)
• S v Madlala 2020 (2) SACR 120 (GP)
• Van der Walt v Director of Public Prosecutions, Mpumalanga 2020 (2) SACR 132 (MM)
• Mahlangu and Another v Minister of Police 2020 (2) SACR 136 (SCA)
• Standard Bank of SA Ltd v National Director of Public Prosecutions and Others 2020 (2) SACR 169 (WCC)
• S v Delport and Others 2020 (2) SACR 179 (FB)
• S v Salzmann 2020 (2) SACR 200 (SCA)
• S v Thobela 2020 (2) SACR 222 (GJ)
FLYNOTES
DIRECTOR OF PUBLIC PROSECUTIONS, GAUTENG DIVISION, PRETORIA v BUTHELEZI (SCA)
LEACH JA, SALDULKER JA, MOKGOHLOA JA, PLASKET JA and DOLAMO AJA
2019 NOVEMBER 1, 29
Rape—Sentence—Life imprisonment—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—Charge-sheet incorrectly referring to s 51 and sch 2 to Criminal Law (Sentencing) Amendment Act 38 of 2007—Defect mere typographical error—Accused aware of possible imposition of life imprisonment and no prejudice suffered.
Appeal—By Director of Public Prosecutions in terms of s 311(1) of Criminal Procedure Act 51 of 1977—Appeal lay as of right and leave to appeal in terms of s 16(1) of Superior Courts Act 10 of 2013 not required.
S v MADLALA (GP)
VAN VEENENDAL AJ
2019 NOVEMBER 28
Bail—Pending application for leave to appeal to Constitutional Court from refusal of petition by Supreme Court of Appeal—Test for.
Legal practitioners—Duties of—Duties toward client—Duty to avoid running up unnecessary costs—Code of Conduct for Legal Practitioners, clause 3.3.
VAN DER WALT v DIRECTOR OF PUBLIC PROSECUTIONS, MPUMALANGA (MM)
LEGODI JP and BRAUCKMANN AJ
2019 MAY 24, 31
Bail—Pending application for leave to appeal to Supreme Court of Appeal against dismissal of appeal by High Court—Decision on bail application requiring consideration of prospects of success on appeal, which was solely preserve of judges of Supreme Court of Appeal—High Court not having jurisdiction—Superior Courts Act 10 of 2013, ss 16(1)(b) and 17(1)(a)(i).
MAHLANGU AND ANOTHER v MINISTER OF POLICE (SCA)
PETSE DP, CACHALIA JA, VAN DER MERWE JA, KOEN AJA and DOLAMO AJA
2019 NOVEMBER 18; 2020 APRIL 21
Damages—For unlawful arrest and detention—For period after appearance in court—Majority of court holding that, where incarceration based on inadmissible confession, defendant liable for damages up until time when could have made application for bail.
STANDARD BANK OF SA LTD v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS (WCC)
BOZALEK J
2019 NOVEMBER 28; 2020 FEBRUARY 4
Prevention of crime—Restraint order—Variation of—Final order—No provision in Prevention of Organised Crime Act 121 of 1998 for creditor to obtain partial discharge of final order—More careful examination of order should be done before order made.
S v DELPORT AND OTHERS (FB)
MURRAY AJ
2019 JUNE 3; DECEMBER 9
Sentence—White-collar crime—Large-scale enterprise of fraudulent VAT claims perpetrated by father and son amounting to R60 million in fraudulent refunds over period of more than six years—Father, 68-year old first offender who played lesser role in enterprise, showed true remorse and was beset by ill health, given non-custodial sentence—Son, however, not showing remorse, delaying trial unnecessarily and not disclosing full involvement in enterprise, sentenced on each count involving amount of over R500 000 to 15 years’ imprisonment, ordered to run concurrently.
S v SALZMANN (SCA)
LEACH JA, SALDULKER JA, MOLEMELA JA, MOKGOHLOA JA and MBATHA JA
2019 AUGUST 19; NOVEMBER 13
Appeal—To Supreme Court of Appeal—Leave to appeal—Effect of s 16(1)(b) of Superior Courts Act 10 of 2013—Special leave—Provisions of s 52 applicable to trial proceedings pending at commencement of Act—Not applicable to subsequent appeal proceedings in High Court.
Electronic communications and transactions—Offences—Unlawfully accessing computer network without authority and causing data to be modified, altered, destroyed or rendered ineffective—Sentence—Appellant gaining access to former employer’s national cellular network resulting in partial network failure—Serious offences that invaded privacy—Custodial sentence of three years’ imprisonment confirmed on appeal—Electronic Communications and Transactions Act 25 of 2002, ss 86(1) and (5).
S v THOBELA (GJ)
CARELSE J and ISMAIL J
2020 MARCH 12
Sentence—Globular sentence—When to be imposed—To be reserved for exceptional circumstances, but mere practice thereof not misdirection per se warranting interference—Such sentence, however, not competent where globular sentence exceeding court’s jurisdiction in respect of one of offences.
Arms and ammunition—Declaration of unfitness to possess firearm in terms of s 103(1) and (2) of Firearms Control Act 60 of 2000—Enquiry into fitness to possess firearm in terms of s 103(2)—When necessary—Enquiry to be held, even if accused previously declared unfit to possess firearm.
THE NAMIBIAN LAW REPORTS
2020 (2)
TABLE OF CASES
• Minister of Home Affairs and Immigration and Others v Holtmann and Others 2020 (2) NR 303 (SC)
• Minister of Finance and Another v TCIMS Industrial (Namibia) Pty Ltd and Another 2020 (2) NR 319 (SC)
• Bampton v Magistrates’ Commission and Another 2020 (2) NR 328 (HC)
• China State Engineering Construction Corporation v Namibia Airports Co Ltd 2020 (2) NR 343 (SC)
• Minister of Trade and Industry and Others v Matador Enterprises (Pty) Ltd and Others and a Similar Matter 2020 (2) NR 362 (SC)
• Prosecutor-General v Ombudsman and Another 2020 (2) NR 408 (HC)
• Minister of Safety and Security and Others v Chunga 2020 (2) NR 421 (SC)
• Mahupelo v Minister of Safety and Security and Others 2020 (2) NR 433 (HC)
• Kandando v Medical and Dental Council of Namibia and Another 2020 (2) NR 450 (SC)
• Permanent Secretary in the Ministry of Finance and Others v OLGN Finance CC 2020 (2) NR 465 (SC)
• S v Pienaar 2020 (2) NR 488 (HC)
• S v Hanse 2020 (2) NR 499 (HC)
• Employees of Swakopmund Uranium v Swakop Uranium 2020 (2) NR 503 (HC)
• Teachers Union of Namibia v Namibia National Teachers Union and Others 2020 (2) NR 516 (SC)
• Theron v Village Council of Stampriet and Another 2020 (2) NR 524 (HC)
• St John’s Apostolic Faith Mission Church v Business and Intellectual Property Authority and Another 2020 (2) NR 528 (HC)
• Unistrat Property Development Five Seven Two Seven (Pty) Ltd v Chairperson of the Council for the Municipality of Windhoek and Others 2020 (2) NR 541 (HC)
• Bank Windhoek Ltd v Gariseb and Another 2020 (2) NR 552 (HC)
• Dausab v Hedimund and Others 2020 (2) NR 558 (SC)
• S v Nowaseb 2020 (2) NR 564 (HC)
• Ohorongo Cement (Pty) Ltd v Jack’s Trading CC and Others and a Similar Matter 2020 (2) NR 571 (SC)
• Fischer v Seelenbinder and Another 2020 (2) NR 596 (SC)
FLYNOTES
MINISTER OF HOME AFFAIRS AND IMMIGRATION AND OTHERS v HOLTMANN AND OTHERS (SC)
DAMASEB DCJ, MAINGA JA and NKABINDE AJA
2019 OCTOBER 7; 2020 MARCH 19
Immigration—Permanent residence—Acquisition of—Requirements—Lawful residence in country—Subjective intent to settle in Namibia not, by itself, lawful basis for immigrant’s presence in country—Contrary approach left no freedom of action on part of sovereign state of Namibia and removed from it internationally recognised discretion to choose conditions under which immigrants settled in country—Immigration Control Act 7 of 1993, ss 1, 11, 22, 22(1)(d), 22(2)(b), 24, 26(3), 27, 28, 29.
MINISTER OF FINANCE AND ANOTHER v TCIMS INDUSTRIAL (NAMIBIA) PTY LTD AND ANOTHER (SC)
SHIVUTE CJ, DAMASEB DCJ and SMUTS JA
2020 MARCH 18, 31
Revenue—Income tax—Meaning of ‘manufacture’ in s 5A of Income Tax Act 24 of 1981—Application for registration as manufacturer—Applicant required to meet all requirements of s 5A(3)(a) and (b) of Act.
BAMPTON v MAGISTRATES’ COMMISSION AND ANOTHER (HC)
ANGULA DJP
2019 OCTOBER 25; 2020 MAY 6
Magistrate—Misconduct—Magistrates’ Commission—Dismissal—Appeal against—Magistrate paying bail for accused who appeared before her on following day when she postponed matter—Such amounting to offence of misconduct in terms of reg 28(1) of Regulations in terms of Magistrates Act 3 of 2003 in her paying bail and further offence in that she presided over matter in which she had interest.
CHINA STATE ENGINEERING CONSTRUCTION CORPORATION v NAMIBIA AIRPORTS CO LTD (SC)
DAMASEB DCJ, HOFF JA and FRANK AJA
2020 MARCH 6; MAY 7
Review—Delay in instituting review proceedings—Whether delay was unreasonable—Self-review of decision tainted by irregularities in government procurement procedures—Initial period of delay reasonable but review launched a year later—Irregular manner in which award of tender made justifying condonation for delay in bringing proceedings.
MINISTER OF TRADE AND INDUSTRY AND OTHERS v MATADOR ENTERPRISES (PTY) LTD AND OTHERS AND A SIMILAR MATTER (SC)
SHIVUTE CJ, MAINGA JA and HOFF JA
2016 OCTOBER 27; 2020 MARCH 19
Administrative law—Audi alteram partem—When applicable—Determination of when relevant decision made—Decision to restrict quantities of imported dairy products—Minister required to consult before decision taken—Minister seeking only ‘in-principle approval’ from cabinet—Minister however viewing cabinet directive as final decision but that decision taken before consultation completed—Decision taken without all information necessary irrational and correctly set aside.
PROSECUTOR-GENERAL v OMBUDSMAN AND ANOTHER (HC)
ANGULA DJP and MASUKU J
2019 AUGUST 13; 2020 MARCH 26
Criminal procedure—Accused—Legal representation—By Ombudsman—In matter alleging violation of constitutional right—Accused however not having filed application in terms of art 25(2) of Constitution and Ombudsman therefore could not come to his assistance.
Criminal procedure—Accused—Legal representation—By Ombudsman—In matter alleging violation of constitutional right—Ombudsman prohibited by Ombudsman Act 7 of 1990 from enquiring into decision in civil or criminal case by court of law and restricted by art 91 of Constitution.
MINISTER OF SAFETY AND SECURITY AND OTHERS v CHUNGA (SC)
SHIVUTE CJ, MOKGORO AJA and NKABINDE AJA
2019 OCTOBER 1; 2020 MAY 7
Delict—Malicious prosecution—Continuing malicious prosecution—Requirements for proof of—That prosecution instituted without reasonable and probable cause—Distinction between civil and criminal standards of proof important—Information before prosecutorial team not merely evidence given in court during trial but also information contained in witness statements.
MAHUPELO v MINISTER OF SAFETY AND SECURITY AND OTHERS (HC)
NDAUENDAPO J
2019 SEPTEMBER 9–11; 2020 MAY 6
Delict—Maicious prosecution—Continuing malicious prosecution—Constitutional damages—Proof of—Plaintiff held in custody for 13 years pending and during trial—Plaintiff having failed to assert rights to apply for bail; make application for order that unreasonable delay in finalising his trial infringed his constitutional right to fair trial under art 12 of Constitution; and had failed to apply to have trial separated as provided for by s 157 of Criminal Procedure Act 51 of 1977—From proper reading of art 25(3) and (4) of Constitution, only when infringement of rights and freedoms were unlawful could court award monetary compensation—Infringements not unlawful in circumstances and requirements of art 25(3) and (4) not met.
KANDANDO v MEDICAL AND DENTAL COUNCIL OF NAMIBIA AND ANOTHER (SC)
DAMASEB DCJ, MAINGA JA and FRANK AJA
2020 MARCH 31; MAY 7
Appeal—To Supreme Court—Prosecution of—Time limits—Flagrant breaches of rules—Whether condonation ought to be granted—Applicant not coming close to compliance with rules—Court nonetheless considering prospects of success—Supreme Court Rules, rules 7(1), 14(2), 14(3)(a), 14(3)(b).
PERMANENT SECRETARY IN THE MINISTRY OF FINANCE AND OTHERS v OLGN FINANCE CC (SC)
MARITZ JA, CHOMBA AJA and GIBSON AJA
2006 OCTOBER 4; 2020 MAY 7
Administrative law—Administrative action—What constitutes—Revocation by Ministry of Finance of registration as microlender and payroll debit order facility—Such constituting administrative actions.
Review—Generally—Effect of opportunistic conduct by applicant—Such conduct severable in instant case from issue of whether application for review brought within reasonable time.
S v PIENAAR (HC)
LIEBENBERG J and SIBEYA AJ
2020 JANUARY 20; MAY 11
Criminal procedure—Evidence—Identification—Dock identification—To be treated with caution but sufficient safeguards where witnesses had ample opportunity to observe accused during commission of offences and were able to point out distinguishing features.
Criminal procedure—Sentence—Generally—Accused acknowledging offences during plea in mitigation but recanting in appeal—Effect of.
S v HANSE (HC)
LIEBENBERG J and SIBEYA AJ
2020 MARCH 20
Criminal law—Drug offences—Dagga—Possession of in contravention of s 2(b) of Abuse of Dependence-Producing Substances and Rehabilitation Centres Act 41 of 1971—Proof of—Mens rea element of offence.
EMPLOYEES OF SWAKOPMUND URANIUM v SWAKOP URANIUM (HC)
PRINSLOO J
2020 FEBRUARY 26; MAY 5
Court—Jurisdiction—Labour Court—Concurrent jurisdiction of High Court—Effect of 12-month bar in Labour Act 11 of 2007, s 86(2)(b).
Court—Jurisdiction—Labour Court—Forum shopping—What constitutes—Concurrent jurisdiction of High Court—Effect of 12-month bar in Labour Act 11 of 2007, s 86(2)(b).
Prescription—Extinctive prescription—Labour claims—Forum shopping—Effect of 12-month bar in Labour Act 11 of 2007, s 86(2)(b).
TEACHERS UNION OF NAMIBIA v NAMIBIA NATIONAL TEACHERS UNION AND OTHERS (SC)
SHIVUTE CJ, SMUTS JA and HOFF JA
2020 MARCH 24; MAY 7
Contempt of court—Compliance with court orders—Proof of contempt—Matter decided on affidavits—Respondents’ version not clearly untenable or so far-fetched that it could be rejected on papers alone—Contempt not proved.
THERON v VILLAGE COUNCIL OF STAMPRIET AND ANOTHER (HC)
PARKER AJ
2020 MARCH 10; APRIL 2
Spoliation—Mandament van spolie—When available—Cutting off of water supply—Local authority relying on provisions of credit and debtor control policy purportedly made under s 36 of Local Authorities Act 23 of 1992—Action taken not traceable to any law and policy by public authority not law—Applicant entitled to spoliation order.
Costs—Scale of costs—Punitive award—When made—Applicant obtaining spoliation order restoring water supply by local authority but had unlawfully and unreasonably refused to settle utility bills but had rather settled them with water corporation—Applicant not entitled to punitive costs order.
ST JOHN’S APOSTOLIC FAITH MISSION CHURCH v BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY AND ANOTHER (HC)
MASUKU J
2019 AUGUST 19; 2020 MAY 7
Company—Formation and constitution—Name—‘Undesirable’ name—What constitutes—Substantial similarity—Churches having almost identical name with merely addition of word ‘Church’ at end of name—Companies Act 28 of 2004, ss 50, 51(1), 52(1)(a).
Practice—Applications and motions—Interlocutory application—Striking out—Procedural requirements of rule 32(9) and (10) of High Court Rules—Where parties had breached requirements and party accused of breach had achieved substantial compliance, no room for application of rule 32(9) and (10).
UNISTRAT PROPERTY DEVELOPMENT FIVE SEVEN TWO SEVEN (PTY) LTD v CHAIRPERSON OF THE COUNCIL FOR THE MUNICIPALITY OF WINDHOEK AND OTHERS (HC)
ANGULA DJP
2019 OCTOBER 22; 2020 MAY 6
Practice—Parties—Locus standi—Joint venture—JV was unincorporated entity at time of awarding of contract to it—Neither applicant nor members of JV complying with statutory requirements of s 42 of Companies Act 28 of 2004—Members of JV contracting with respondent in their own right and no nexus between applicant and members of JV—JV not common law promotor of contract for benefit of third party—Applicant lacking locus standi to challenge cancellation of award.
BANK WINDHOEK LTD v GARISEB AND ANOTHER (HC)
ANGULA DJP
2019 OCTOBER 23; 2020 MAY 13
Execution—Sale in execution—Immovable property—Application for order declaring property executable—Court’s discretion—No likelihood that respondents would be able to repay debt in light of default over lengthy period—Property declared executable—High Court Rules, rule 108(1)(b).
DAUSAB v HEDIMUND AND OTHERS (SC)
DAMASEB DCJ, MAINGA JA and ANGULA AJA
2019 NOVEMBER 8; 2020 MAY 7
Motor vehicle accident—Negligence—Proof—Res ipsa loquitur—Application of in rear end motor vehicle collision.
S v NOWASEB (HC)
SHIVUTE J and LIEBENBERG J
2019 NOVEMBER 4; 2020 MARCH 6
Criminal procedure—Accused—Legal representation—Accused convicted and sentenced for rape—Court proceeded with trial in absence of accused’s legal representative and despite protestations that accused could not continue without contents of police docket—Least that court could have done would be to order that docket be made available to accused and matter be postponed for final postponement—Serious misdirection vitiating trial.
OHORONGO CEMENT (PTY) LTD v JACK’S TRADING CC AND OTHERS AND A SIMILAR MATTER (SC)
SHIVUTE CJ, MARITZ JA and MAINGA JA
2013 JULY 9; 2020 MAY 20
Practice—Parties—Joinder—When joinder required—Party necessary and interested party—Application for joinder made before settlement agreement—Necessary for High Court to have heard and determined application to intervene before settlement agreement made order of court.
Court—Supreme Court—Referral to by Attorney-General in terms of art 79(2) of Constitution—Matter referred in terms of settlement agreement to which Attorney-General had not been party—Not given that Supreme Court would accept such referral—Fact that matter raised constitutional questions not on its own warranting Supreme Court to hear matter.
Revenue—Customs and excise—Commissioner—Powers of—Commissioner not empowered to grant blanket deferment for indefinite period in terms of s 41(2) of Customs and Excise Act 20 of 1998.
Revenue—Customs and excise—New duty or increase in rate of duty payable—Powers of Minister of
FISCHER v SEELENBINDER AND ANOTHER (SC)
SHIVUTE CJ, FRANK AJA and NKABINDE AJA
2020 MARCH 12; JUNE 8
Spoliation—Mandament van spolie—When available—Even if applicant exercised only precarious right of possession, still entitled to bring mandament van spolie.
Spoliation—Mandament van spolie—When available—Question whether applicant continued to possess premises not dependent on right to possess he thought he had, but on whether he exercised necessary direct physical control over premises.
Costs—Attorney and client costs—Spoliation proceedings—Punitive costs not ‘traditionally’ ordered.
