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March 2015

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases in the March reports.

JUDGMENTS OF INTEREST IN THE MARCH EDITIONS OF THE SALR and THE SACR

SOUTH AFRICAN LAW REPORTS


Limitations on freedom of speech during elections
The prohibition against publishing false information or making false allegations during elections should be interpreted restrictively. Freedom of expression was enhanced rather than diminished by the right to free and fair elections. This prohibition was aimed at false statements relating to practical operation of election not those disseminated to influence voters’ views about opposing parties. Electoral Act 73 of 1998. Democratic Alliance v African National Congress and Another 2015 (2) SA 232 (CC)

Cancellation of contract using electronic signature
A non-variation clause provided for the cancellation and alterations of a contract to be in writing and signed. In issue was whether the typewritten names of the parties at the foot of an email [cancelling the agreement] constituted valid signatures in the circumstances. Electronic Communications and Transactions Act 25 of 2002. Spring Forest Trading CC v Wilberry (Pty) Ltd t/a Ecowash and Another 2015 (2) SA 118 (SCA)

Wrongful life claim for child born with medical condition
This claim was brought on behalf of a child with Down’s syndrome for damages flowing from the doctor’s failure to inform the child’s pregnant mother of the high risk of it being born with this condition. Discussed was whether the common law could be developed to recognise such a claim. H v Fetal Assessment Centre 2015 (2) SA 193 (CC)


SOUTH AFRICAN CRIMINAL LAW REPORTS

Actual loss not necessary for fraud
The accused had committed fraud involving tens of millions of rands, which was way beyond the R500 000 threshold which was the jurisdictional fact that triggered the minimum sentence provisions. The court erred in holding s 51(2)(a) of the Criminal Law Amendment Act 105 of 1997 was not applicable. The unlawful and intentional making of a misrepresentation did not have to cause actual loss for it to constitute fraud. The minimum sentence of 15 years’ imprisonment was imposed on each count, to run concurrently. S v Brown 2015 (1) SACR 211 (SCA)

Courts gone soft on crime?
The accused was in a unique situation where he was relentlessly humiliated and degraded by the deceased in the presence of his girlfriend. The court considered the provocation and intimidation by the deceased as substantial mitigating circumstances warranting a lesser sentence. This sentence was case-specific and should not be construed as setting a precedent of leniency or that courts had gone soft on crime. S v Motloung 2015 (1) SACR 310 (GJ)

Offence need not be ‘committed’ in presence of arresting officer
The test is an objective one and the question to be answered was whether he had direct personal knowledge of sufficient facts at the time of the arrest, on which it could be concluded that the person arrested had prima facie committed an offence in his presence. Arrest was not based on whether the person was guilty of the offence. To hold otherwise would unnecessarily discourage peace officers from arresting offenders who were in the act of committing an offence. Scheepers v Minister of Safety and Security 2015 (1) SACR 284 (ECG)


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 SOUTH AFRICAN LAW REPORTS

 TABLE OF CASES
  • Helen Suzman Foundation v President of the RSA and Others 2015 (2) SA 1 (CC)
  • S v Maarohanye and Another 2015 (2) SA 73 (GJ)
  • Standard Bank of South Africa Ltd v Renico Construction (Pty) Ltd 2015 (2) SA 89 (GJ)
  • Goliath v MEC for Health, Eastern Cape 2015 (2) SA 97 (SCA)
  • Botha v Road Accident Fund 2015 (2) SA 108 (GP)
  • Spring Forest Trading CC v Wilberry (Pty) Ltd t/a Ecowash and Another 2015 (2) SA 118 (SCA)
  • Poswa v President of the Republic of South Africa and Others 2015 (2) SA 127 (GJ)
  • Minister of Education, Western Cape and Another v Beauvallon Secondary School and Others 2015 (2) SA 154 (SCA)
  • Commissioner, South African Revenue Service v Bosch and Another 2015 (2) SA 174 (SCA)
  • H v Fetal Assessment Centre 2015 (2) SA 193 (CC)
  • Democratic Alliance v African National Congress and Another 2015 (2) SA 232 (CC)
  • Fluxmans Incorporated v Lithos Corporation of South Africa (Pty) Ltd and Another (No 1) 2015 (2) SA 295 (GJ)
  • Fluxmans Incorporated v Lithos Corporation of SA (Pty) Ltd and Another (No 2) 2015 (2) SA 322 (GJ)
 FLYNOTES

HELEN SUZMAN FOUNDATION v PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS (CC)
MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, LEEUW AJ, MADLANGA J, NKABINDE J, VAN DER WESTHUIZEN J and ZONDO J
2014 AUGUST 19; NOVEMBER 27

Police
—Directorate for Priority Crime Investigation (Hawks)—Adequacy of structural and operational independence—Constitutional validity of legislative architecture—Certain sections declared unconstitutional—South African Police Service Act 68 of 1995, ch 6A.
State—Duties—Crime—Duty to create independent body to fight corruption and organised crime—Location of anticorruption agency within police service—Adequacy of structural and operational independence—Independence and efficacy of Directorate for Priority Crime Investigation (Hawks) not fatally compromised by its location within SA Police Service.

S v MAAROHANYE AND ANOTHER (GJ)
MLAMBO J, MALULEKE J and PRETORIUS J
2014 JUNE 11; OCTOBER 8

Criminal law—Murder—Mens rea—Dolus eventualis—Effect of intoxication—Subjective foresight—Intoxicated drivers killing pedestrians while racing each other—Appeal against murder conviction based on dolus eventualis—Trial court’s findings as to effect of intoxicating drugs on mental disposition and foresight of accused irreconcilable with dolus eventualis—Appeal upheld.

STANDARD BANK OF SOUTH AFRICA LTD v RENICO CONSTRUCTION (PTY) LTD (GJ)
SUTHERLAND J
2012 AUGUST 3; SEPTEMBER 20

Set-off—General principles—Requirement that both debts be liquidated—Contractual damages not constituting liquidated debt—No set-off possible.
Set-off—Requirements—Requirement that both debts be liquidated—Earlier decisions espousing use of judicial discretion in fact-finding exercise to determine liquidity criticised.

GOLIATH v MEC FOR HEALTH, EASTERN CAPE (SCA)
LE PONNAN JA, LEACH JA, SALDULKER JA, MBHA JA and MATHOPO AJA
2014 NOVEMBER 10, 25
[2014] ZASCA 182

Delict—Elements—Negligence—Proof—Res ipsa loquitur—No more than phrase used to describe proof of facts sufficient to establish prima facie case against defendant—Not entailing shifting of onus—Courts to guard against piecemeal reasoning by first drawing inference of negligence from occurrence and then asking whether it was rebutted by defence—Only one enquiry: Whether plaintiff discharged onus of proving negligence—Semble: Res ipsa loquitur to be jettisoned from legal jargon.
Medicine—Medical practitioner—Negligence—Proof—Res ipsa loquitur no more than phrase used to describe proof of facts sufficient to establish prima facie case against defendant—Swab left in plaintiff after surgical operation—Inference of negligence not rebutted—Plaintiff having discharged her onus—Succeeding on appeal—Semble: Res ipsa loquitur to be jettisoned from legal jargon. 

BOTHA v ROAD ACCIDENT FUND (GP)
A VICTOR J
2013 APRIL 16

Motor vehicle accident—Compensation—Claim against Road Accident Fund—Limits—‘Serious injury’ threshold for general damages—Loss of earning capacity pecuniary in nature and not constituting general damages—Claim for loss of earnings remaining alive even in case of finding of non-serious injury by Fund—Road Accident Fund Act 56 of 1996, s 17(1) and 17(1A).
Damages—Bodily injury—Loss of earning capacity—Nature—Claim pecuniary—Not element of general damages.

SPRING FOREST TRADING CC v WILBERRY (PTY) LTD t/a ECOWASH AND ANOTHER (SCA)
LEWIS JA, CACHALIA JA, BOSIELO JA, SWAIN JA and MOCUMIE AJA
2014 NOVEMBER 10, 21
[2014] ZASCA 178

Contract—Formalities—Cancellation and variation—Non-variation clause providing for cancellation and alterations to be in writing and signed—Typewritten names of parties at foot of data messages (email) cancelling agreement—Whether constituting valid signatures—Electronic Communications and Transactions Act 25 of 2002, ss 1 and 13(3).
Electronic communications and transactions—Data messages—Signature—Advanced electronic signature—When required—Meaning of ‘(w)here . . . required by law’ in s 13(1) of ECTA—Not extending to signature requirement imposed by agreement between parties—In such cases, s 13(3) applying—Electronic Communications and Transactions Act 25 of 2002, ss 13(1) and (3).
Electronic communications and transactions—Data messages—Signature—Electronic signature—Typewritten names of parties at foot of data message (email) constituting valid ‘electronic signature’ as defined and contemplated in ECTA—Electronic Communications and Transactions Act 25 of 2002, ss 1 and 13(3).

POSWA v PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS (GJ)
CJ CLAASSEN J, KGOMO J and MAYAT J
2014 SEPTEMBER 15, 26

Constitutional law—Administration of justice—Judicial Service Commission—Complaint of judicial misconduct—Lodging and consideration—New procedures prescribed in amended JSC Act—Whether applying retrospectively to complaints lodged under old rules—Judicial Service Commission Act 9 of 1994, s 14 and ss 16 and 17.
Constitutional law—Administration of justice—Judicial Service Commission—Complaint of judicial misconduct—Lodging and consideration—New procedures prescribed in amended JSC Act—Requirement that complaints be lodged by affidavit or affirmed statement—Whether noncompliance leading to summary dismissal of impeachable complaints—Judicial Service Commission Act 9 of 1994, ss 14(3)(b) and 15(2)(b).



MINISTER OF EDUCATION, WESTERN CAPE AND ANOTHER v BEAUVALLON SECONDARY SCHOOL AND OTHERS (SCA)
MAY BRAND JA, MAYA JA, LEACH JA, WILLIS JA and MATHOPO AJA
2014 NOVEMBER 17; DECEMBER 9
[2014] ZASCA 218

Education—School—Public school—Closure—Process—MEC’s duty to give reasons for closure—Nature of duty—South African Schools Act 84 of 1996, s 33(2).

COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE v BOSCH AND ANOTHER (SCA)
BRAND JA, SHONGWE JA, WALLIS JA, PILLAY JA and DAMBUZA AJA
2014 NOVEMBER 6, 12
[2014] ZASCA 171

Revenue—Income tax—Income—Gains made by exercising right to acquire marketable security—Calculation of—Deferred-delivery scheme—Option to purchase shares at market value as at date of exercising option but payable against future delivery—Whether gain occurring upon exercising option or upon payment and delivery—Conditionality of purchase and sale agreements entered into pursuant to option being exercised— Income Tax Act 58 of 1962, s 8A(1)(a).
Revenue—Income tax—Scheme for avoidance of—Simulation—Test—Question of genuineness of transaction—Transaction not simulated if genuine—Nothing impermissible about taxpayer (genuinely) arranging affairs so as to minimise tax liability in.

H v FETAL ASSESSMENT CENTRE (CC)
MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, LEEUW AJ, MADLANGA J, NKABINDE J and VAN DER WESTHUIZEN J
2014 AUGUST 28; DECEMBER 11
[2014] ZACC 34

Delict—Specific forms—Wrongful life—Child’s claim against doctor for its damages flowing from doctor’s failure to inform child’s pregnant mother of high risk of it being born with medical condition—Common law could potentially be developed to recognise claim. 

DEMOCRATIC ALLIANCE v AFRICAN NATIONAL CONGRESS AND ANOTHER (CC)
MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, LEEUW AJ, MADLANGA J, NKABINDE J, VAN DER WESTHUIZEN J and ZONDO J
2014 SEPTEMBER 11; 2015 JANUARY 19
[2015] ZACC 1

Constitutional law—Human rights—Freedom of expression—Limitations—Prohibition against publishing false information or making false allegations during election—To be interpreted restrictively—Freedom of expression enhancing, not diminishing, right to free and fair elections—Semble: Prohibition aimed at false statements relating to practical operation of election, not at those disseminated to influence voters’ views about opposing parties—Electoral Act 73 of 1998, s 89(2)(c) and item 9(1)(b)(ii) of sch 2.
Election law—Electoral irregularities—Complaints—Publishing false information or making false allegations during election—Meaning of ‘false information’ and ‘false allegations’ in Electoral Act 73 of 1998, s 89(2)(c) and item 9(1)(b)(ii) of sch 2—Including only false factual statements, not commentary—Whether impugned statement constituting factual statement or commentary.
Election law—Electoral disputes—Courts—Supreme Court of Appeal—Jurisdiction—Appeals from Electoral Court—SCA having same jurisdiction as Constitutional Court—Competent to hear appeal where electoral disputes, or complaints about alleged infringements of electoral code of conduct, raising constitutional issues—Electoral Act 73 of 1998, s 96(1) read with Constitution, s 168(3).

FLUXMANS INCORPORATED v LITHOS CORPORATION OF SOUTH AFRICA (PTY) LTD AND ANOTHER (No 1) (GJ)
SUTHERLAND J
2014 JUNE 11–22; AUGUST 2

Costs—Counsel’s fees—Collapse fees—Nature—Reasonableness—How determined—Deference to be accorded to Bar Council on question of reasonableness—Council to be approached in first instance on task of assessing fees, not court.

FLUXMANS INCORPORATED v LITHOS CORPORATION OF SOUTH AFRICA (PTY) LTD AND ANOTHER (No 2) (GJ)
VICTOR J
2014 JULY 24, 25

Practice—Parties—Joinder—Advocates—Application by client to join advocates in action by attorneys against client for unpaid fees, including advocates’ fees—Advocates paid in full and waiving right to claim against attorneys—No basis in law for joinder in face of clear and unequivocal waiver—Uniform Rules of Court, rule 10(3).

 SOUTH AFRICAN CRIMINAL LAW REPORTS
 TABLE OF CASES

 

  • S v Brown 2015 (1) SACR 211 (SCA)
  • National Commissioner of Police v Southern African Human Rights Litigation Centre and Another 2015 (1) SACR 255 (CC)
  • Scheepers v Minister of Safety and Security 2015 (1) SACR 284 (ECG)
  • S v Mooketsi and Another 2015 (1) SACR 295 (NCK)
  • S v Mthetwa and Others 2015 (1) SACR 302 (GP)
  • S v Motloung 2015 (1) SACR 310 (GJ)
 FLYNOTES

S v BROWN (SCA)
NAVSA ADP, BRAND JA, PONNAN JA, THERON JA and ZONDI JA
2014 NOVEMBER 5; DECEMBER 1
[2014] ZASCA 217

Fraud—Sentence—White-collar crime—Accused misrepresenting to investor that its funds were safely and securely invested while knowing otherwise, and purchasing asset management company by misrepresenting that he had resources to buy, whereas he used its own funds to finance acquisition—Assets of more than R100 million involved—Not necessary that misrepresentation did not cause actual loss for it to constitute fraud—Minimum sentence of 15 years’ imprisonment in terms of s 51(2)(a) of Criminal Law Amendment Act 105 of 1997 applicable and appropriate.
Fraud—Sentence—White-collar crime—Courts to guard against creating impression that there were two streams of justice: one for rich and one for poor.
Plea—Plea of guilty—Alteration of to plea of not guilty—Questioning in terms of s 112(1)(b) of Criminal Procedure Act 51 of 1977—Court obliged to consider whether plea should be accepted with particular regard to effect of evidence led up until that stage—Section 112(1)(b) applicable when state accepts plea after evidence has been led.
Trial—Presiding officer—Conduct of—Intervention in prosecution’s case—In case involving serious abuse of trust money judge displaying attitude that accused’s conduct not reprehensible—Judge’s conduct during trial deserving of censure.

NATIONAL COMMISSIONER OF POLICE v SOUTHERN AFRICAN HUMAN RIGHTS LITIGATION CENTRE AND ANOTHER (CC)
MOGOENG CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MAJIEDT AJ, VAN DER WESTHUIZEN J and ZONDO J
2014 MAY 19; OCTOBER 30
[2014] ZACC 30

Police—Duties of—Duty to investigate—International criminal law—Crime against humanity of torture allegedly committed outside of South Africa by and against foreign nationals—Whether suspects need be in South Africa for South African police to investigate—Whether South African police have duty to investigate—Limits on investigation—Constitution, s 205(3); South African Police Service Act 68 of 1995, s 17D(1)(a); Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002, s 4(1).

SCHEEPERS v MINISTER OF SAFETY AND SECURITY (ECG)
VAN ZYL ADJP and MJALI J
2013 OCTOBER 25; NOVEMBER 27

Arrest—Legality of—Arrest without a warrant—Criminal Procedure Act 51 of 1977, s 40(1)(b)—Requirements for—That offence be ‘committed’ in presence of arresting officer—Not necessary that crime in fact be committed or that arrested person be later charged and convicted of suspected offence—Test objective one—To place higher standard on peace officer would unnecessarily discourage peace officers from arresting offenders who were in act of committing offence.

S v MOOKETSI AND ANOTHER (NCK)
WILLIAMS J and OLIVIER J
2014 FEBRUARY 3, 7

Theft—Sentence—Prescribed minimum sentence—Theft of more than R500 000—Accused, security guards, taking money destined for automatic teller machines and hiding it, pretending they were robbed—Accused struck with remorse overnight and confessing and handing over money next day—Substantial and compelling circumstances justifying lesser sentence—Sentence replaced with one of seven years’ imprisonment, four years of which suspended.

S MTHETWA AND OTHERS (GJ)
MAKGOKA J and MOLOPA-SETHOSA J
2014 OCTOBER 14; NOVEMBER 5

Sentence—Imprisonment—Cumulative effect of—Order that sentences should run concurrently—When appropriate—Offences inextricably linked in terms of locality, time, protagonists and intent—Sentences imposed for housebreaking with intent to rob and robbery committed within 30 minutes of each other ordered to run concurrently.
Sentence—Imposition of—Factors to be taken into account—Personal circumstances of accused—One thing to recite personal circumstances of accused and another to fuse those into consideration of sentence—Trial court had paid lip service to this component of sentencing and nowhere had magistrate considered poor socio-economic backgrounds of appellants in his judgment on sentence—Sentence reduced on appeal.

S v MOTLOUNG (GJ)
SPILG J
2014 JUNE 6, 13

Arms and ammunition—Unlawful possession of firearm in contravention of s 3 of Firearms Control Act 60 of 2000—Sentence—Firearm semiautomatic pistol—Whether provisions of s 51(2), read with part II of sch 2 to Criminal Law Amendment Act 105 of 1997, applicable—Provisions of CLAA impliedly revoked in respect of offences under Firearms Control Act.
Murder—Sentence—Prescribed sentence in terms of s 51(2) of Criminal Law Amendment Act 105 of 1997—Substantial and compelling circumstances justifying lesser sentence in terms of s 51(3)—Accused a young man who was provoked, humiliated and intimidated by deceased who wanted to take his girlfriend away—Substantial mitigatory circumstances justifying sentence of 14 years’ imprisonment of which six years were suspended.
Sentence—Concurrence of sentences—When competent—Competent for court, in imposing sentence of imprisonment, to order in terms of s 280(2) of Criminal Procedure Act 51 of 1977 that such sentence run concurrently with sentence already serving and in respect of which he had been released on parole at time when current offence committed.
 

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