SOUTH AFRICAN LAW REPORTS
Indemnity insurance: the insured’s duty to reinstate and the insurer’s duty to pay
The court was called on to quantify the insurance claim of Mr Watson, whose factory burned down. The policy contained a ‘reinstatement value conditions’ clause under which the insurer undertook to reimburse the insured for the replacement value of the lost property. Payment was subject to the condition that the insured start reinstatement work ‘with reasonable dispatch’. The problem was that the insurer refused to pay . . . See Watson and Another v Renasa Insurance 2019 (3) SA 593 (WCC), in which the court held that the insurer was not entitled to undermine the insured’s reliance on the clause by withholding payment.
Attorneys’ liability for misconduct by partner
The partner entrusted with a firm’s finances stole from the firm’s trust account, without the other partner’s knowledge. Was the second partner guilty of professional misconduct? Only if he was guilty of dereliction of duty, said the court in Law Society, Northern Provinces v Stuart and Others 2019 (3) SA 535 (GP)
SOUTH AFRICAN CRIMINAL LAW REPORTS
What is an appropriate sentence for a father convicted of murdering his son?
A 58-year-old father was convicted of murdering his son and sentenced to 12 years’ imprisonment, 5 years of which were suspended for 5 years. The son had a history of aggressive and violent behaviour towards his family and abused alcohol. The state conceded that the sentencing court had misdirected itself in not properly considering the presentence reports recommending correctional supervision, justifying interference on appeal. Taking into account the numerous mitigating circumstances in the matter, as well as the negative effects of imprisonment on family, the court held that a sentence of correctional supervision would more likely achieve the goal of rehabilitation than any other potential sentencing options. S v Mosikili 2019 (1) SACR 705 (GP)
Unbecoming conduct of magistrate during trial
It appeared from the trial record that the magistrate had insight into documentation forming part of the police docket, including the results of DNA swab analysis, that was not introduced into evidence. The magistrate had also interjected in an unbecoming manner during testimony, including assisting the state case by suggesting explanations for discrepancies in the complainant’s police statement. The court on appeal held that the conviction was highly unsafe in such circumstances and set it aside. S v Ndlovu 2019 (1) SACR 686 (KZP)
Reduction of bail for purpose of paying accused’s legal team
The applicant ceded his bail money to his attorney and senior counsel as surety for their fees. When the team ran out of funds an application was launched for a reduction of his bail to pay them. The court, in reference to ss 58, 60(2B) and 63(1) of Criminal Procedure Act51 of 1977, held that the ceded bail money was not an entitlement that should be refunded to an attorney or counsel but stood as security for the attendance of the accused, and should endure until the finalisation of the matter. S v Brown and Another 2019 (1) SACR 691 (ECP)
SOUTH AFRICAN LAW REPORTS
• Amardien and Others v Registrar of Deeds and Others 2019 (3) SA 341 (CC)
• South African Commercial, Catering and Allied Workers Union and Others v Woolworths (Pty) Ltd 2019 (3) SA 362 (CC)
• Buffalo City Metropolitan Municipality v Nurcha Development Finance (Pty) Ltd and Others 2019 (3) SA 379 (SCA)
• Centriq Insurance Company Ltd v Oosthuizen and Another 2019 (3) SA 387 (SCA)
• Tshwane City v Blair Atholl Homeowners Association 2019 (3) SA 398 (SCA)
• Dark Fibre Africa (Pty) Ltd v City of Cape Town 2019 (3) SA 425 (SCA)
• Elan Boulevard (Pty) Ltd v Fnyn Investments (Pty) Ltd and Others 2019 (3) SA 441 (SCA)
• Four Wheel Drive Accessory Distributors CC v Rattan NO 2019 (3) SA 451 (SCA)
• St Clair Moor and Another v Tongaat-Hulett Pension Fund and Others 2019 (3) SA 465 (SCA)
• Evergreen Property Investments (Pty) Ltd v Messerschmidt 2019 (3) SA 481 (GP)
• Ex parte Goosen and Others 2019 (3) SA 489 (GJ)
• Larrett v Coega Development Corporation (Pty) Ltd and Others 2019 (3) SA 510 (ECG)
• Moloto Community v Minister of Rural Development and Land Reform and Others 2019 (3) SA 523 (LCC)
• Law Society, Northern Provinces v Stuart and Others 2019 (3) SA 535 (GP)
• Mtomba v Minister of Defence and Others 2019 (3) SA 548 (GP)
• Nelson Mandela Bay Metro v Erastyle and Others 2019 (3) SA 559 (ECP)
• NK v KM 2019 (3) SA 571 (GJ)
• Trio Engineered Products Inc v Pilot Crushtec International (Pty) Ltd 2019 (3) SA 580 (GJ)
• Watson and Another v Renasa Insurance Co Ltd 2019 (3) SA 593 (WCC)
• Aquila Steel (South Africa) (Pty) Ltd v Minister of Mineral Resources and Others 2019 (3) SA 621 (CC)
AMARDIEN AND OTHERS v REGISTRAR OF DEEDS AND OTHERS (CC)
MOGOENG CJ, BASSON AJ, CAMERON J, DLODLO AJ, FRONEMAN J, GOLIATH AJ, KHAMPEPE J, MHLANTLA J, PETSE AJ and THERON J
Land—Sale—Contract—Instalment sale agreement in respect of land—Compulsory registration of contract by seller in deeds registry—Late registration—Effect on purchaser’s obligations—Notice of registration required before seller may take steps to enforce agreement—Notices under s 19 of ALA and s 129 of NCA must specify arrears—Alienation of Land Act 68 of 1981, ss 19, 20(1) and 26(1)(b); National Credit Act 34 of 2005, s 129(1)(a).
Credit agreement—Consumer credit agreement—Debt enforcement—Preliminary procedures—Notice of default—Drawing default to attention of consumer—Creditor must specify arrears—National Credit Act 34 of 2005, s 129(1)(a).
SOUTH AFRICAN COMMERCIAL, CATERING AND ALLIED WORKERS UNION AND OTHERS v WOOLWORTHS (PTY) LTD (CC)
ZONDO DCJ, CACHALIA AJ, DLODLO AJ, FRONEMAN J, GOLIATH AJ, JAFTA J, KHAMPEPE J,
MADLANGA J, PETSE AJ and THERON J
Labour law—Dismissal—Dismissal for operational requirements—Reasonableness—Employer, citing need for flexibility, dismissing workers for refusing to convert from full-time to flexi-time employment—Need however fulfilled when workers accepted flexi-time during negotiations—Employer’s failure to properly consider alternatives rendering dismissals substantially unfair—Reinstatement ordered—Labour Relations Act 66 of 1995, s 189A(19) (deleted 2015).
Labour law—Dismissal—Unfair dismissal—Reinstatement—Exceptions to remedy—‘Not reasonably practicable’—Meaning—Employer must prove compelling operational burden—Labour Relations Act 66 of 1995, s 193(2)(c).
BUFFALO CITY METROPOLITAN MUNICIPALITY v NURCHA DEVELOPMENT FINANCE (PTY) LTD AND OTHERS (SCA)
LEWIS JA, SERITI JA, MAKGOKA JA, MOKGOHLOA AJA and NICHOLLS AJA
Contract—Formation—Tacit contract—Proof—Test—Consideration of different formulations of test—‘No other reasonable inference’ test—‘Balance of probabilities’ test—No reason why onus of proof should be more burdensome for party alleging tacit contract than in other civil matters—Party alleging tacit contract must prove unequivocal conduct giving rise to an inference of consensus on balance of probabilities.
CENTRIQ INSURANCE COMPANY LTD v OOSTHUIZEN AND ANOTHER (SCA)
CACHALIA JA, MBHA JA, MATHOPO JA, DLODLO AJA and ROGERS AJA
Insurance—Policy—Interpretation—Professional indemnity policy—Liability exclusion clause—Principles governing interpretation of.
TSHWANE CITY v BLAIR ATHOLL HOMEOWNERS ASSOCIATION (SCA)
NAVSA ADP, SWAIN JA, DAMBUZA JA, MOKGOHLOA AJA and MOTHLE AJA
Contract—Interpretation—Evidence—Approach to—Parol evidence—Evidence on negotiations.
Practice—Trial—Separation of issues—Approach to be adopted—Uniform Rules of Court, rule 33(4).
DARK FIBRE AFRICA (PTY) LTD v CITY OF CAPE TOWN (SCA)
LEWIS JA, CACHALIA JA, SERITI JA, MOLEMELA JA and ROGERS AJA
Telecommunication—Fibre optic network—Construction—City imposing requirements on—Lawfulness thereof—Electronic Communications Act 36 of 2005, s 22.
ELAN BOULEVARD (PTY) LTD v FNYN INVESTMENTS (PTY) LTD AND OTHERS (SCA)
PONNAN JA, DAMBUZA JA, MOCUMIE JA, SCHIPPERS JA and MOTHLE AJA
Practice—Judgments and orders—Foreign judgment—Recognition—Requirement of finality—Interpretation of order.
FOUR WHEEL DRIVE ACCESSORY DISTRIBUTORS CC v RATTAN NO (SCA)
LEWIS JA, ZONDI JA, MOLEMELA JA, SCHIPPERS JA and MOKGOHLOA AJA
Contract—Enforcement—Public policy—Claim for cost of repair of vehicle based in lease—High Court’s findings in respect of public policy, good faith and applicability of Act erroneous—But High Court correctly finding no locus standi—Consumer Protection Act 68 of 2008.
ST CLAIR MOOR AND ANOTHER v TONGAAT-HULETT PENSION FUND AND OTHERS (SCA)
LEWIS JA, MAJIEDT JA, MBHA JA, DAMBUZA JA and SCHIPPERS AJA
Pension—Pension fund—Defined benefit pension fund—Actuarial surplus—Apportionment of future surplus—Amended rules allocating ‘excess assets’ to participating employer’s employer surplus account—Whether constituting allocation of actuarial surplus—Pension Fund Act 24 of 1956, s 15C(1).
EVERGREEN PROPERTY INVESTMENTS (PTY) LTD v MESSERSCHMIDT (GP)
JANSE VAN NIEUWENHUIZEN J and BHOOLA AJ
Housing—Consumer protection—Community schemes ombud—Adjudicator—Jurisdiction—Dispute concerning payment of rates—Community Schemes Ombud Service Act 9 of 2011.
EX PARTE GOOSEN AND OTHERS (GJ)
SUTHERLAND J, MODIBA J and MILLAR AJ
Advocate—Admission—Requirements—Legal Practice Act—Admission of those who immediately before coming into operation of LPA entitled to be admitted as advocate under Admission of Advocates Act 74 of 1964—Such applicants exempted from meeting new admission criteria under LPA—No cut-off date for invoking right to be so exempted—Legal Practice Act 28 of 2014, s 115.
Attorney—Admission and enrolment—Requirements—Legal Practice Act—Admission of those who immediately before coming into operation of LPA entitled to be admitted as attorney under Attorneys Act 53 of 1979—Such applicants exempted from meeting new admission criteria under LPA—No cut-off date for invoking right to be exempted—Legal Practice Act 28 of 2014, s 115.
LARRETT v COEGA DEVELOPMENT CORPORATION (PTY) LTD AND OTHERS (ECG)
Company—Proceedings by and against—Derivative action—Leave—To continue proceedings on behalf of company—Leave will only be granted in respect of proceedings properly authorised at inception—Companies Act 71 of 2008,
MOLOTO COMMUNITY v MINISTER OF RURAL DEVELOPMENT AND LAND REFORM AND OTHERS (LCC)
Land—Land reform—Land Claims Court—Jurisdiction—Power to determine or approve compensation upon expropriation—Effect on such power of Valuer-General’s valuation under Property Valuation Act—Restitution of Land Rights Act 22 of 1994, s 22(1)(b); Property Valuation Act 17 of 2014, s 12(1)(a).
LAW SOCIETY, NORTHERN PROVINCES v STUART AND OTHERS (GP)
Attorney—Misconduct—Partner misconduct—Attorney cannot be found guilty of professional misconduct solely on basis of partner’s having engaged in professional misconduct—But can be found guilty of misconduct in own right should they be found guilty of dereliction of duty, in sense of having failed to take measures that reasonable attorney would have taken in circumstances to detect partner’s misconduct and prevent occurrence of harm.
MTOMBA v MINISTER OF DEFENCE AND OTHERS (GP)
Defence force—Member—Service—Termination—Whether administrative action—Promotion of Administrative Justice Act 3 of 2000; Defence Act 42 of 2002, s 59(2)(e).
NELSON MANDELA BAY METRO v ERASTYLE AND OTHERS (ECP)
Administrative law—Administrative action—Review—State seeking review of conduct of own officials on basis of legality—Proceedings may be instituted by way of action—Court dismissing special plea that state obliged to use rule 53 of Uniform Rules and file record.
State—Actions by and against—Actions by—Against own officials—State seeking review of conduct of own officials on basis of legality—Proceedings may be instituted by way of action—Court dismissing special plea that state obliged to use rule 53 of Uniform Rules and file record.
Practice—Trial—Separation of trial on issues—When to be granted—Principles restated—Uniform Rules of Court, rule 33(4).
Practice—Trial—Separation of trial on issues—When to be granted—Application by plaintiff in divorce action for separation of decree of divorce from forfeiture—Refused as inconvenient to defendant spouse, because, once decree of divorce granted, her pending claim for maintenance pendente lite would fall away—Uniform Rules of Court, rules 33(4) and 43.
Marriage—Divorce—Maintenance—Spouse—Maintenance pendente lite—Application—Where, in divorce action, decree of divorce separated from other issues—Whether application for maintenance pendent lite could survive granting of decree of divorce—Conflicting decisions discussed—Court concluding that application for interim maintenance would not survive decree of divorce—Uniform Rules of Court, rules 33(4) and 43.
TRIO ENGINEERED PRODUCTS INC v PILOT CRUSHTEC INTERNATIONAL (PTY) LTD (GJ)
Contract—Termination—Contract of perpetual duration—No presumption that terminable on reasonable notice.
Contract—Breach—Remedies—Concurrent liability in delict—Existence of contractual relationship between parties generally precluding imposition of duties in delict—But concurrent contractual and delictual liability possible where duty in delict arising independently of contract and reconcilable or concurrent with contractual obligations—Parties to contract should not be lightly burdened with delictual liability to outsider harmed by breach.
Delict—Liability—Concurrent liability in delict and contract—Existence of contractual relationship between parties generally precluding imposition of duties in delict—But concurrent contractual and delictual liability possible where duty in delict arising independently of contract and reconcilable or concurrent with contractual obligations.
WATSON AND ANOTHER v RENASA INSURANCE CO LTD (WCC)
Insurance—Policy—Interpretation—Replacement-value clause entitling insured to replacement value of lost property—Clause subject to condition that insured should commence work on reinstatement with ‘reasonable dispatch’—Insurer may not undermine insured’s reliance on clause by withholding payment, thereby inhibiting insured’s ability to reinstate.
AQUILA STEEL (SOUTH AFRICA) (PTY) LTD v MINISTER OF MINERAL RESOURCES AND OTHERS (CC)
BASSON AJ, CAMERON J, DLODLO AJ, FRONEMAN J, GOLIATH AJ, KHAMPEPE J, MHLANTLA J, PETSE AJ and THERON J
Minerals and petroleum—Mining and prospecting rights—Applications—Acceptance—Applications not complying with requirements must be returned—Award of prospecting rights based on defective application unlawful—Mineral and Petroleum Resources Development Act 28 of 2002, s 16(3).
Minerals and petroleum—Mining and prospecting rights—Transition to new order under MPRDA—Duration of old-order rights-holder’s preferent right to apply for prospecting and mining rights—Such right lasting only for limited period it was granted for—Other applicants may apply after such period but their applications may not be processed before old-order rights-holders’—Mineral and Petroleum Resources Development Act 28 of 2002, sch II, item 8.
SOUTH AFRICAN CRIMINAL LAW REPORTS
• S v Moyo 2019 (1) SACR 605 (SCA)
• S v Ndudula 2019 (1) SACR 609 (ECG)
• S v Jacobs and Others 2019 (1) SACR 623 (CC)
• S v Sangweni 2019 (1) SACR 672 (KZP)
• S v Carneiro 2019 (1) SACR 675 (SCA)
• S v Ndlovu 2019 (1) SACR 686 (KZP)
• S v Brown and Another 2019 (1) SACR 691 (ECP)
• S v Ceylon and Another 2019 (1) SACR 698 (GJ)
• S v Mosikili 2019 (1) SACR 705 (GP)
CACHALIA JA, WALLIS JA, MAKGOKA JA, CARELSE AJA and MATOJANE AJA
Appeal—Leave to appeal—From magistrates’ court to High Court—Petition in terms of s 309C of Criminal Procedure Act 51 of 1977—Nature of—Such in effect appeal against refusal of leave to appeal by magistrates’ court in terms of s 309B of Act and accordingly appealable to Supreme Court of Appeal, with special leave of SCA—Order appealed against refusal of leave and not merits of matter.
Prosecution—Prosecutor—Powers and duties of—Duty to seek justice and not blindly pursue prosecution—Expected to disclose both prejudicial and beneficial information to accused—Prosecution in casu only calling police witness after close of defence case, who produced ballistic evidence leading to acquittal of accused.
Evidence—Expert evidence—Gunshot residue—Risks associated with and probative value discussed.
S v JACOBS AND OTHERS (CC)
ZONDO DCJ, CACHALIA AJ, DLODLO AJ, FRONEMAN J, GOLIATH AJ, JAFTA J, KHAMPEPE J, MADLANGA J, PETSE AJ and THERON J
2018 MARCH 1; 2019 FEBRUARY 14
Appeal—Leave to appeal—To Constitutional Court—Whether constitutional issue raised—Application of doctrine of common purpose—Question whether raised constitutional issue considered but not decided because court composed of even numbers and no majority decision emerging.
GYANDA J and PLOOS VAN AMSTEL J
Evidence—Witness—Oath—Admonition to speak truth—Insufficient for magistrate merely to enquire whether child witness knew difference between telling lies and telling truth—Evidence inadmissible.
LEWIS ADP, WALLIS JA, MATHOPO JA, DAVIS AJA and ROGERS AJA
Appeal—Delay in finalisation of—Inordinate delay—Total of 13 years between conviction and finalising of appeal—Delay might well have vitiated appellant’s right to fair trial and appeal.
SEEGOBIN J, VAHED J and BEZUIDENHOUT J
Trial—Presiding officer—Conduct of—Magistrate appearing to have insight into contents of police docket not introduced into evidence—Magistrate also interjecting in unbecoming manner during testimony—Conviction highly unsafe and set aside.
S v BROWN AND ANOTHER (ECP)
2018 NOVEMBER 16; DECEMBER 6, 14
Bail—Reduction of—For purpose of paying accused’s legal team—Not permissible in terms of ss 58, 60(2B) and 63(1) of Criminal Procedure Act 51 of 1977.
S v CEYLON AND ANOTHER (GJ)
Rape—Sentence—Life imprisonment—Minimum sentence in terms of Criminal Law Amendment Act 105 of 1997—Substantial and compelling circumstances—Youthfulness—Appellants brutally and callously raping complainant numerous times over extended period and leaving her for dead—Despite their being 18 and 19 years old at time of offence, sentence of life imprisonment appropriate. Sentence—Factors to be taken into account—Youth of offender—Requirement of pre-sentencing report—Report not required where all facts relevant to sentencing before court—In casu such facts obtained from accused’s testimony—Sentence of life imprisonment imposed on 18- and 19-year-old accused at time of offence upheld on appeal.
Murder—Sentence—Correctional supervision—Accused convicted of murdering son—Deceased had history of aggressive and violent behaviour towards family and abused alcohol—Sentencing court ignored presentence report and report by Correctional Services recommending correctional supervision—Misdirection justifying interference on appeal—Numerous mitigating circumstances, as well as negative effects of imprisonment on family, making correctional supervision appropriate sentence.