April 2011

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the April 2011 edition of the Advance Notification Newsletter.

JUDGMENTS OF INTEREST IN THE JULY EDITIONS OF THE SALR AND THE SACR

 

SOUTH AFRICAN LAW REPORTS

Costs orders: an exception to the indemnity principle

Chief Justice Innes wrote in Texas Co (SA) Ltd v Cape Town Municipality 1926 AD 467 at 488 that ‘costs are awarded to a successful party in order to indemnify him for the expense to which he has been put through having been unjustly compelled either to initiate or to defend litigation as the case may be. . . . Speaking generally, only amounts which the suitor has paid, or becomes liable to pay, in connection with the due presentment of his case are recoverable as costs. But there are exceptions.’

In Thusi v Minister of Home Affairs and Another and 71 Other Cases 2011 (2) SA 561 (KZP), Judge Wallis considers whether an exception can be made in the situation where the litigant is indigent and her lawyer acts for no fee, and where the litigant and lawyer agree that if the court makes a costs order in the litigants favour, the lawyer will be entitled to it.

 

International law and the return of children

Where a child is now residing in South Africa and one parent is seeking the return of the child to a foreign country, the Hague Convention on Child Abduction comes into play. Two cases look at how our Constitution and local legislation apply together with this Convention. The facts in these cases are very different, but in both cases the return of the child was refused after the courts considered the interests of the child, and in one case also, the views of the child. Central Authority of the Republic of South Africa v LG 2011 (2) SA 386 (GNP); and Central Authority v MR (LS Intervening) 2011 (2) SA 428 (GNP)

 

Puma lookalikes, counterfeit or not?—Interpretation of the Counterfeit Goods Act 37 of 1997

SOUTH AFRICAN CRIMINAL LAW REPORTS

SCA considers requirement that less invasive means than arrest be used, to bring a suspect before a court

Section 40 of the Criminal Procedure Act 51 of 1977, which regulates arrest by a peace officer without a warrant, requires the presence of four jurisdictional facts for an arrest to be lawful. The Supreme Court of Appeal considers the additional requirement—laid down in Louw v Minister of Safety and Security 2006 (2) SACR 178 (T), and followed in a number of other High Court judgments—that police consider less invasive means than arrest to bring a suspect to court. Minister of Safety and Security v Sekhoto and Others 2011 (1) SACR 315 (SCA)

 

The validity of intercepting and monitoring cellphone communications

The (now repealed) Interception and Monitoring Prohibition Act 127 of 1992 authorised—at the direction of a judge—the interception and monitoring of communications over a 'telecommunications line'. The court considers the merits of accused No 2's contention that the interception and monitoring of cellphone communications was ultra vires the Act, in that the Act predated cellphones, and therefore could not be taken to refer to them.  S v Cwele and Another 2011 (1) SACR 409 (KZP)

 

Protection of minors whose mothers face imprisonment: duties of the sentencing court

In an automatic review of a sentence of 3 years' imprisonment, imposed  on  a female offender with two minor children aged 5 and 7, the reviewing court considers the appropriate steps a sentencing court should take in protecting the interests of dependent minors, when their mother faces a sentence of imprisonment. S v Londe 2011 (1) SACR 368 (ECG)

 

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The Juta Law Reports Team

 

SOUTH AFRICAN LAW REPORTS

TABLE OF CASES

• Law Society of the Northern Provinces and Another v Viljoen 2011 (2) SA 327 (SCA)

• Law Society of the Northern Provinces and Another v Dykes and Others 2011 (2) SA 327 (SCA)

• Prefix Properties (Pty) Ltd and Others v Golden Empire Trading 49 CC and Others 2011 (2) SA 334 (KZP)

• Durban North Turf (Pty) Ltd v Commissioner, South African Revenue Service 2011 (2) SA 347 (KZP)

• AS v CS 2011 (2) SA 360 (WCC)

• Coetzee and Another v Nedbank Ltd 2011 (2) SA 372 (KZD)

• Benefeld v West 2011 (2) SA 379 (GSJ)

• Central Authority of the Republic of South Africa and Another v LG 2011 (2) SA 386 (GNP)

• Wesbank, A Division of FirstRand Ltd v Papier (National Credit Regulator as Amicus Curiae) 2011 (2) SA 395 (WCC)

• Frikkie Pretorius Inc and Another v GG 2011 (2) SA 407 (KZP)

• MSC Depots (Pty) Ltd v WK Construction (Pty) Ltd and Others 2011 (2) SA 417 (ECP)

• Central Authority v MR (LS Intervening) 2011 (2) SA 428 (GNP)

• Law Society of the Northern Provinces v Mahon 2011 (2) SA 441 (SCA)

• S v Acting Regional Magistrate, Boksburg, and Another 2011 (2) SA 455 (GSJ)

• Puma AG Rudolf Dassler Sport v Rampar Trading (Pty) Ltd and Others 2011 (2) SA 463 (SCA)

• Mvumvu and Others v Minister for Transport and Another 2011 (2) SA 473 (CC)

• Golden Meats & Seafood Supplies CC v Best Seafood Import CC and Another 2011 (2) SA 491 (KZD)

• Naicker v Moodley 2011 (2) SA 502 (KZD)

• Oriental Products (Pty) Ltd v Pegma 178 Investments Trading CC and Others 2011 (2) SA 508 (SCA)

• Smith v Banjo 2011 (2) SA 518 (KZP)

• Practice Directions 2011 (2) SA 523 (SCA)

• Paradyskloof Golf Estate (Pty) Ltd v Stellenbosch Municipality 2011 (2) SA 525 (SCA)

• BHP Billiton Energy Coal South Africa Ltd v Minister of Mineral Resources and Others 2011 (2) SA 536 (GNP)

• MSC Gina: Mediterranean Shipping Co SA v Cape Town Iron and Steel Works 2011 (2) SA 547 (KZD)

• Mokoena v Commissioner, South African Revenue Service 2011 (2) SA 556 (GSJ)

• Thusi v Minister of Home Affairs and Another and 71 Other Cases 2011 (2) SA 561 (KZP)

• Ndlovu v Minister of Home Affairs and Another 2011 (2) SA 621 (KZD)

• Allpass v Mooikloof Estates (Pty) Ltd t/a Mooikloof Equestrian Centre 2011 (2) SA 638 (LC)

FLYNOTES

LAW SOCIETY OF THE NORTHERN PROVINCES AND ANOTHER v VILJOEN; LAW SOCIETY OF THE NORTHERN PROVINCES AND ANOTHER v DYKES AND OTHERS (SCA)

HEHER JA, BOSIELO JA, SHONGWE JA, R PILLAY AJA and K PILLAY AJA

2010 NOVEMBER 24; DECEMBER 2

Attorney—Misconduct—Application for removal from roll—Fidelity fund certificate—Law society withholding certficate pending application—Acting in terms of law society resolution—Resolution introducing new requirement for obtaining certificate—Once practitioner meeting requirements of Attorneys Act, fidelity fund certificate to be issued—In circumstances law society not entitled to withhold certificate—Attorneys Act 53 of 1979, s 42(3)(a).

 

PREFIX PROPERTIES (PTY) LTD AND OTHERS v GOLDEN EMPIRE TRADING 49 CC AND OTHERS (KZP)

GORVEN J

2010 NOVEMBER 15; DECEMBER 6

Contract—Breach—Remedies—Cancellation—Duty of restitution—Rule founded in equity—May be departed from in interests of equity—Cancellation of contract of sale—Court excusing seller from restitution of purchase price, pending institution of action for damages against purchaser.

 

DURBAN NORTH TURF (PTY) LTD v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE (KZP)

MADONDO J

2010 MAY 10; AUGUST 31

Revenue—Customs and excise—Classification of articles for customs duty—General rule that goods are characterised by their objective characteristics and not by intention with which made or use to which put—Exception where wording of relevant tariff item making purpose and intention relevant—Poligras 2000 used as synthetic hockey pitch classified as sporting equipment under tariff heading 95.06, subheading 9506.99, and not as carpet or textile floor covering under tariff heading 57.03—Customs and Excise Act 91 of 1964, s 47(1) and Schedule 1.

 

AS v CS (WCC)

GAMBLE J

2010 JULY 7; OCTOBER 27

Husband and wife—Divorce—Same-sex marriage or civil partnership—Such capable of dissolution under Act—Divorce Act 70 of 1979, s 3.

Husband and wife—Divorce—Same-sex marriage or civil partnership—Ancillary or pendent lite relief—Such available to partners in same-sex marriage or civil partnership, and including orders for maintenance under Act and relief under rule 43 of Uniform Rules—Divorce Act 70 of 1979, s 7(2).

Husband and wife—Divorce—Same-sex marriage or civil partnership—Word ‘marriage’ in s 3 of Act to include registered foreign same-sex marriages or civil unions/partnerships which are lawful in country in which concluded—Divorce Act 70 of 1979, s 3.

 

COETZEE AND ANOTHER v NEDBANK LTD (KZD)

GORVEN J

2010 SEPTEMBER 17; OCTOBER 12

Credit agreement—Consumer credit agreement—Debt review—Notice to credit providers—Receipt of notice triggering provisions of NCA, barring credit providers from instituting action against consumers—Legislature intending to regulate right of credit providers to enforce their rights under credit agreements in court once debt review process initiated—Clear intention on part of legislature to provide for process that allows for time to achieve objects of NCA, by ensuring that credit provider cannot defeat them by instituting action within certain period after commencement of process—Provision consistent with purpose of NCA—National Credit Act 34 of 2005, s 88(3).

 

BENEFELD v WEST (GSJ)

COPPIN J

2010 APRIL 26

Compromise—Effect—Settlement of litigation or envisaged litigation—Substantive contract existing independently of original cause—Not affected by invalidity of original invalid obligation—Terms of compromise itself may, however, be contra bonos mores and void.

Contract—Legality—Contracts contrary to public policy—Whether capable of compromise—Compromise consequent upon breach of invalid engagement to marry—Original agreement of engagement contra bonos moresand void because it contemplated and promoted the dissolution of defendant’s existing marriage—Subsequent settlement (which involved payment to plaintiff for breach of promise) not tainted by such illegality and not itself illegal—Compromise valid and enforceable.

 

CENTRAL AUTHORITY OF THE REPUBLIC OF SOUTH AFRICA AND ANOTHER v LG (GNP)

MOLOPA-SETHOSA J

2009 OCTOBER 14–16; 2010 APRIL 22

Minor—Abduction—International abduction—Application for return of unlawfully removed or retained child—Grave risk of harm condition in art 13(b)of Convention—Best interests of child test applicable—Applicant not having best interests of child at heart—Child’s health improved since being in South Africa—Application for return dismissed—Hague Convention on the Civil Aspects of International Child Abduction (1980), arts 3, 12 and 13.

 

WESBANK, A DIVISION OF FIRSTRAND LTD v PAPIER (NATIONAL CREDIT REGULATOR AS AMICUS CURIAE) (WCC)

TRAVERSO DJP, GRIESEL J and DLODLO J

2010 NOVEMBER 5; 2011 FEBRUARY 1

Credit agreement—Consumer credit agreement—Debt review—Termination—When competent—Whether credit provider may terminate debt review process after review lodged with magistrates’ court for debt rearrangement but order not yet granted—Although literal interpretation of NCA would allow credit provider so to proceed (provided 60 days have passed since application for debt review), this would undermine entire debt review process—Preferable to adopt purposive interpretation that protects consumer against enforcement while proceedings for debt rearrangement pending—Credit providers may not terminate review during this time—National Credit Act 34 of 2005, ss 86(7)(c), 86(10) and 87(1).

 

FRIKKIE PRETORIUS INC AND ANOTHER v GG (KZP)

STEYN J and KOEN J

2010 FEBRUARY 8; APRIL 26

Attorney—Trust account—Deposits—Duty of attorney—Non-client funds—Proceeds from sale of ex-spouses’ jointly owned property—Just wife client of attorney—Since moneys held for benefit of both spouses, attorney owing each spouse duty to deal with his or her half-share of such moneys as instructed—Attorney bound to same standard of care (uberrima fides) in respect of each spouse’s share—May not, absent lawful reason, subtract moneys from husband’s share to pay them out to her client (wife) in respect of overdue maintenance.

 

MSC DEPOTS (PTY) LTD v WK CONSTRUCTION (PTY) LTD AND OTHERS (ECP)

CHETTY J

2009 NOVEMBER 30; DECEMBER 1–4, 8–11; 2010 FEBRUARY 4

Contract—Breach—Repudiation—What constitutes—Alleged repudiation by contractor in context of standard building contract—No substance to employer’s contentions of in support of alleged repudiation by contractor—Agreement merely requiring notice of intended cancellation to be given to employer—Contractor entitled to cancel agreement under certain circumstances—Non-issuing of interim payment certificates by principal agent clearly amounting to breach of agreement, which entitled contractor to cancel contract—Also failure by principal agent to issue a recovery statement—Employer preventing principal agent from exercising its independent judgment regarding performance of its duty—Causing contractor to suffer prejudice, entitling it to cancel agreement.

Engineering and construction law—Building contract—Interpretation—Apparent from standard building contract that, where contractor willing and able to attend to defects manifesting themselves prior to final completion, such contractor could not be in breach of due diligence provision, provided that such defects remedied with due skill, diligence, regularity and expedition—JBCC series 2000, clauses 15.3, 26.0 and 27.1.

Engineering and construction law—Building contract—Liability of contractor for defects and insufficiencies in works and materials—Standard contract enjoining contractor to perform its contractual obligations with ‘due skill, diligence, regularity and expedition to bring the works to, inter alia, final completion’—Plaintiff failing to adduce sufficient evidence to show that defendant breached said provision—JBCC series 2000, clause 15.3.

 

CENTRAL AUTHORITY v MR (LS INTERVENING) (GNP)

FABRICIUS J

2010 OCTOBER 18–22; NOVEMBER 10

Minor—Abduction—International abduction—Application for return of unlawfully removed or retained child—Views of child to be considered—Children’s Act 38 of 2005, ss 275 and 278(3); and Hague Convention on the Civil Aspects of International Child Abduction (1980), art 13.

 

LAW SOCIETY OF THE NORTHERN PROVINCES v MAHON (SCA)

LEWIS JA, CACHALIA JA, LEACH JA, TSHIQI JA and EBRAHIM AJA

2010 NOVEMBER 23; DECEMBER 2

Attorney—Articles of clerkship—Irregular service—Condonation—Court may condone irregular service by candidate attorney only if he or she had entered into valid agreement of articles—Service rendered before conclusion of valid agreement of articles cannot be condoned—Attorneys Act 53 of 1979, s 13(2).

Constitutional law—Constitution—Constitutional principles—Principles of fairness and justice—Fairness and justice inherently malleable concepts and cannot be freestanding requirements against which to test constitutionality of statute, its interpretation or its applicability to facts of particular case.

Constitutional practice—Courts—Precedent and stare decisis—Whether High Court bound by pre-constitutional interpretation of statute by Appellate Division.

 

S v ACTING REGIONAL MAGISTRATE, BOKSBURG, AND ANOTHER (GSJ)

MOKGOATLHENG J and BADENHORST AJ

2010 NOVEMBER 17; DECEMBER 3

Criminal law—Sexual offences—Repeal of common-law sexual offences by Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007—Rape allegedly committed before commencement of Act—Provisions of s 69(1) and (2) having effect that, where no investigation, prosecution or other legal proceedings relating to common-law crime referred to in s 68(1)(b)of Act had been initiated before date of commencement of Act, no criminal proceedings, investigation or prosecution can be instituted, continued or concluded, despite fact that alleged conduct plainly constituted common-law crime of rape—Clear that such state of affairs could never have been contemplated by legislature—Constitution, 1996, ss 12(1), 12(2), 28(1)(d), and Act 32 of 2007, preamble—Severance of offending words in s 69(1) and (2) curing defect, and doing so consistent with Constitution, and not interfering with intention of legislature in terms of Act.

Criminal procedure—Appeal—In what cases—Against order upholding objection to charge—Such order having final effect and appealable.

 

PUMA AG RUDOLF DASSLER SPORT v RAMPAR TRADING (PTY) LTD AND OTHERS (SCA)

HARMS DP, HEHER JA, SNYDERS JA, TSHIQI JA and R PILLAY AJA

2010 NOVEMBER 3, 19

Counterfeit goods—Counterfeiting—What amounts to—Not same as copyright or trademark infringement—More required—Ordinarily meaning to make an imitation of something in order to deceive, or to make a copy of something—Counterfeit Goods Act 37 of 1997, s 1.

Counterfeit goods—Protected goods—What are—Definition including genuine goods that feature registered trademark—Also including notional goods to which owner could have applied trademark—Cloning not required—Counterfeit Goods Act 37 of 1997, s 1.

 

MVUMVU AND OTHERS v MINISTER FOR TRANSPORT AND ANOTHER (CC)

NGCOBO CJ, MOSENEKE DCJ, BRAND AJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MOGOENG J, NKABINDE J and SKWEYIYA J

2010 NOVEMBER 4; 2011 FEBRUARY 17

Motor vehicle accidents—Compensation—Limits—Limit of R25 000 applying to passengers conveyed for reward and other categories—Section 18 of Road Accident Fund Act 56 of 1996—Limit removed by Road Accident Fund Amendment Act 19 of 2005, but still applying to claims arising before 1 August 2008—Limitation discriminating indirectly against poor black people who use public transport—Also unjustifiably discriminating against passengers who fell within the s 18 categories and those who did not—Order of constitutional invalidity with retrospective effect suspended for 18 months to allow Parliament to cure defect—Constitution, s 9(3).

Constitutional law—Legislation—Validity—Road Accident Fund Act 56 of 1996, s 18—Limit of R25 000 applying to passengers conveyed for reward and other categories—Limit removed by Road Accident Fund Amendment Act 19 of 2005, but still applying to claims arising before 1 August 2008—Limitation discriminating indirectly against poor black people who use public transport—Also unjustifiably discriminating against passengers who fell within the s 18 categories and those who did not—Order of constitutional invalidity with retrospective effect suspended for 18 months to allow Parliament to cure defect—Constitution, s 9(3).

 

GOLDEN MEATS & SEAFOOD SUPPLIES CC v BEST SEAFOOD IMPORT CC AND ANOTHER (KZD)

WALLIS J

2010 DECEMBER 3, 9

Shipping—Admiralty law—Maritime claim—Enforcement—Arrest—Onus—Application for setting aside of arrest—Arresting party throughout bearing onus of proving all requisite elements justifying arrest—Then open to party applying for setting aside of arrest to persuade the court that arrest should nevertheless not be granted.

Shipping—Admiralty law—Maritime claim—Enforcement—Arrest—Cargo—Ownership in dispute—Alleged sale to third party—Third party applying for setting aside of arrest—Arresting party to show that debtor still owner of cargo, ie that ownership did not pass to applicant—Facts showing that ownership did not pass to applicant—Application for setting aside of arrest denied.

Shipping—General maritime law—Carriage of goods by sea—Delivery of cargo—Transfer of ownership—Requirements—Form of delivery required for transfer of ownership depending on terms of underlying contract of sale—Actual physical delivery, as opposed to symbolic delivery by delivery of bill of lading, may, depending on intention of parties, suffice—Carrier will usually, in order to avoid liability, demand surrender of original bill of lading against delivery of goods—Usage irrelevant to transfer of ownership and not affecting pre-existing contractual rights of buyer and seller.

 

NAICKER v MOODLEY (KZD)

SWAIN J

2011 FEBRUARY 9, 14

Negligence—What constitutes—Duty of motorist approaching and entering a robot-controlled intersection with the green light in his favour—Owing no duty to traffic entering the crossing in disobedience to the lights, beyond a duty that if he sees such traffic he ought to take all reasonable steps to avoid a collision.

 

ORIENTAL PRODUCTS (PTY) LTD v PEGMA 178 INVESTMENTS TRADING CC AND OTHERS (SCA)

HARMS DP, LEWIS JA, MAYA JA, SHONGWE JA and R PILLAY AJA

2010 NOVEMBER 12; DECEMBER 1

Estoppel—Estoppel by representation—Elements—Representation—By inaction—Whether representation by inaction established—Failure to correct faulty entry in deeds registry—Claim for immovable property fraudulently transferred and registered in deeds registry—By knowingly leaving deeds register to reflect incorrect position as to ownership, claimant representing to world in general and to person who has subsequently taken transfer of property from transferee that transferee was true owner of property.

Estoppel—Estoppel by representation—Elements—Fault—Negligence—Whether established—Claim for immovable property fraudulently transferred and registered in deeds registry—Claimant aware of value attached to entries in deeds registry and that others can act on assumption that register correct by selling property or effecting improvements thereon—Such calling for urgent action by claimant—Semble: Failure to take urgent action might constitute fault required to estop claimant from vindicating property.

Land—Deeds registry—Faulty entry—Reliance on—Whether it may found defence of estoppel—Although fact of registration no guarantee of right registered, public entitled to assume correctness of register—True owner of property, fraudulently transferred to another person, who knowingly leaves register to reflect incorrect position, representing to world that registry reflecting true state of affairs—Estoppel will operate to protect subsequent purchaser who relied on correctness of register to his detriment.

 

SMITH v BANJO (KZP)

PATEL DJP and NKOSI AJ

2010 NOVEMBER 1, 12

Delict—Locus standi of plaintiff—Effect of subrogation of claim by insurer—Claim in action for damages for patrimonial loss caused in motor vehicle collision subrogated by insurer of vehicle—Involvement of insurer in action irrelevant—Plaintiff’s ownership of damaged vehicle establishing direct interest in diminution of patrimonial value of vehicle—Ownership sufficient to establish plaintiff’s locus standi.

 

PRACTICE DIRECTIONS (SCA)

MPATI P

2011 FEBRUARY 28

Appeal—To Supreme Court of Appeal—Practice direction—Applications for leave to appeal or notices of appeal to be accepted without certified copy of High Court order—Letter from registrar certifying date of order sufficient—Formal application for condonation not required when application for leave to appeal filed within 21 court days instead of 21 ordinary days—Party seeking preferent enrolment to notify registrar immediately by letter for the attention of the President—Documents longer than ten pages to be printed on both sides.

 

PARADYSKLOOF GOLF ESTATE (PTY) LTD v STELLENBOSCH MUNICIPALITY (SCA)

MPATI P, MTHIYANE JA, MALAN JA, SHONGWE JA and GRIESEL AJA

2010 MAY 7; JULY 2

Contract—Discharge—Waiver of rights—What constitutes—Tacit waiver—Delay in enforcement of right—Right to cancel contract—Whether delay amounting to waiver of right depending on reasonableness of delay in circumstances of case—Failure to cancel may or may not, depending on circumstances, indicate that party having elected not to exercise right—Presence of standard non-waiver clause rendering issue of reasonableness of delay irrelevant.

Local authority—Contracts by—Sale—Capital asset—Contractual right to resile from sale—Delay in enforcement of right—Whether amounting to waiver so that municipality bound—Depending on reasonableness of delay in circumstances—Failure by local authority to resile may or may not, depending on circumstances, indicate that local authority having elected to be bound by sale—Presence of standard non-waiver clause rendering issue of reasonableness of delay irrelevant.

Waiver—What constitutes—Delay in enforcing right to cancel contract—Effect of non-waiver clause.

 

BHP BILLITON ENERGY COAL SOUTH AFRICA LTD v MINISTER OF MINERAL RESOURCES AND OTHERS (GNP)

VAN DER BYL AJ

2010 DECEMBER 8 2011 FEBRUARY 15

Practice—Applications and motions—Application proceedings—Commencement—Initiated when lodged or filed with (or issued by) registrar.

Practice—Applications and motions—Application proceedings—Service of documents initiating proceedings—Applicant’s attorney entitled to serve review proceedings on attorney of record for respondent in interdict proceedings, where such interdict proceedings incidental to the review proceedings—Uniform Rules, rule 4(1)(aA).

 

MSC GINA

MEDITERRANEAN SHIPPING CO SA v CAPE TOWN IRON AND STEEL WORKS (KZD)

WALLIS J

2011 FEBRUARY 15, 22

Shipping—Admiralty law—Maritime claim—Enforcement—Security arrest—Nature of proceedings—Requirement that applicant identify property in question—Security arrest distinguishable from both admiralty proceedings in rem and admiralty proceedings in personam—More akin to procedure by way of execution—Applicant for security arrest nevertheless required to properly identify property it seeks to have arrested—Court to be satisfied that property exists and is owned by person against whom claim in personam lies, or is vulnerable to action in rem—Admiralty Jurisdiction Regulation Act 105 of 1983, s 5(3).

 

MOKOENA v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE (GSJ)

SPILG J

2010 AUGUST 20, 26, 31

Revenue—Income tax—Recovery—Estimated assessments—Objection to assessment pending—Commissioner may not apply for judgment for assessed income tax where objection to assessment pending—Income Tax Act 58 of 1962, s 78(1) read with s 91(1)(b).

Revenue—Income tax—Recovery—Statement of tax due—Statement to clearly indicate: whether assessment relied upon was an estimate pursuant to s 78(1); if so, qualifications and experience of assessor; and that responsible person satisfied that no impediment to filing of statement—Income Tax Act 58 of 1962, s 91(1)(b).

 

THUSI v MINISTER OF HOME AFFAIRS AND ANOTHER AND 71 OTHER CASES (KZP)

WALLIS J

2010 SEPTEMBER 15, 27 and 29; DECEMBER 23

Administrative law—Administrative action—Review—Grounds—Failure to take decision—Principles governing common-law mandamus of equal application to review under s 6(2)(g)of Act—Promotion of Administrative Justice Act 3 of 2000, s 6(2)(g).

Administrative law—Administrative action—Review—Grounds—Failure to take decision—If right to relief falls away because decision taken, then no longer legal basis for other relief to be granted—Promotion of Administrative Justice Act 3 of 2000, s 6(2)(g).

Costs—Generally—Indemnity principle—Indemnity principle, viz rule that costs awarded to successful party to indemnify her for her expenses in having to initiate or defend litigation, and that only amounts actually paid or liable to be paid to present case recoverable as costs—Exception to strict application of rule where court may grant order of costs to successful party if (a)litigant is indigent and seeking to enforce constitutional rights against an organ of State; (b)legal representative acts for no fee and accepts liability for all disbursements; and (c)litigant agrees that legalrepresentative will be entitled to benefit of any costs order made in her favour.

 

NDLOVU v MINISTER OF HOME AFFAIRS AND ANOTHER (KZD)

WALLIS J

2010 DECEMBER 6, 21

Recusal—On grounds of appearance of bias—What constitutes bias—Judge in public lecture expressing scepticism about contingency fees as means to afford access to justice—Lecture later coming to attention of applicant, whose case had come before judge and in which judgment was pending—Applicant’s lawyers acting gratis, but relying on favourable costs order to secure remuneration—Applicant applying for recusal of judge, contending that reasonable person would apprehend bias on part of judge in addressing question of costs in his case—Judge rejecting applicant’s contention and dismissing application.

 

ALLPASS v MOOIKLOOF ESTATES (PTY) LTD t/a MOOIKLOOF EQUESTRIAN CENTRE (LC)

BHOOLA J

2010 NOVEMBER 29; DECEMBER 2 2011 FEBRUARY 16

Labour law—Dismissal—Fairness—Automatically unfair dismissals—HIV status—Employee appointed for physically demanding job—Employer discovering employee’s HIV status—Dismissed on grounds of dishonesty in interview and that employee severely ill—Employee actually in good health—Dismissal automatically unfair according to LRA—Twelve months’ pay awarded as restitution as well as punitive element—Labour Relations Act 66 of 1995, s 187(1)(f).

 

SOUTH AFRICAN CRIMINAL LAW REPORTS

TABLE OF CASES

• Minister of Safety and Security v Sekhoto and Another 2011 (1) SACR 315 (SCA)

• National Director of Public Prosecutions v Naidoo and Others 2011 (1) SACR 336 (SCA)

• S v Molawa 2011 (1) SACR 350 (GSJ)

• S v Mpengesi 2011 (1) SACR 350 (GSJ)

• S v Steyn 2011 (1) SACR 364 (WCC)

• S v Shaw 2011 (1) SACR 368 (ECG)

• S v Londe 2011 (1) SACR 368 (ECG)

• Theobald v Minister of Safety and Security and Others 2011 (1) SACR 379 (GSJ)

• S v Cwele and Another 2011 (1) SACR 409 (KZP)

FLYNOTES

MINISTER OF SAFETY AND SECURITY v SEKHOTO AND ANOTHER (SCA)

HARMS DP, NUGENT JA, LEWIS JA, BOSIELO JA and K PILLAY AJA

2010 NOVEMBER 2, 19

Arrest—Without warrant—Legality of—Criminal Procedure Act 51 of 1977, s 40(1)(b)—Once required jurisdictional facts present, discretion arising as to whether or not to arrest—Standard for exercise of such discretion not perfection, or even optimum, judged from vantage of hindsight—As long as choice made falling within range of rationality, standard not breached.

Arrest—Without warrant—Legality of—Criminal Procedure Act 51 of 1977, s 40(1)(b)—Power to arrest to be exercised only for purpose of bringing suspect to justice—Arrest but one step in process—Authority to detain suspect after first appearance within discretion of court—Enquiry to be made by peace officer not how best to bring suspect to trial, but only whether case one in which that decision ought properly to be made by court—Rationality of arrestor’s decision on that question depending upon particular facts of case—Clear that in serious crimes, such as those listed in Schedule 1, arrestor could seldom be criticised for arresting suspect in order to bring him or her before court.

Arrest—Law relating to arrest—‘Fifth jurisdictional fact’ laid down in Louw v Minister of Safety and Security2006 (2) SACR 178 (T): that police obliged to consider less invasive means of bringing suspect before court—Nothing in s 40(1)(b)of Criminal Procedure Act 51 of 1977 that could lead to conclusion that its wording containing hidden ‘fifth jurisdictional fact’—Since legislation overriding common law, meaning of statute could not be changed by developing common law—None of High Courts applying ‘fifth jurisdictional fact’ having considered whether or not s 40(1)(b)unconstitutional and, if so, whether reading in ‘fifth jurisdictional fact’ saving it from unconstitutionality—Arrest under circumstances set out in s 40(1)(b)not amounting to deprivation of freedom which arbitrary or without just cause—Lawful arrest not capable of being arbitrary—Decision in Louw v Minister of Safety and Security2006 (2) SACR 178 (T) criticised.

Fundamental rights—Generally—Onus—Party alleging infringement of constitutional right bearing onus of establishing it—Party attacking exercise of discretion, where necessary jurisdictional facts present, bearing onus of proof—This so whether or not right to freedom compromised—Not tenable to expect defendant to deal with claim in which no averment made, save general one that arrest unreasonable.

 

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v NAIDOO AND OTHERS (SCA)

MPATI P, CLOETE JA, PONNAN JA, BOSIELO JA and TSHIQI JA

2010 AUGUST 25; NOVEMBER 25

Prevention of crime—Restraint order in terms of s 26 of Prevention of Organised Crime Act 121 of 1998—Whether legal expenses of defendant payable from property subject to restraint order, but held by another person or entity—In terms of s 26(2)(a), restraint order made against person holding property that was subject of restraint order—Plain meaning of s 26(2)(b)was that restraint order could make provision for legal expenses of person against whom the restraint order made, but not for legal expenses of third party against whom restraint order also made at same time—Thus, restraint order against first respondent could make provision for his legal expenses, but orders against co-respondents could not.

Trial—Record—Judgment—Judge failing to provide full reasons for judgment—Losing party wishing to appeal—Judge’s failure after 15 months to decide whether or not he believed that another court might reach different conclusion regrettable—Statement of reasons giving assurance to parties that court having given due consideration to matter—Ensuring public confidence in administration of justice—While giving only brief reasons sometimes unavoidable, this practice to be utilised sparingly.

 

S v MOLAWA; S v MPENGESI (GSJ)

MOSHIDI J and PANDYA AJ

2010 MAY 25, 31

Trial—Record—Judgment—Magistrate failing to give reasons for either conviction or sentence—Magistrate having duty to provide full reasons for judgment at conclusion of trial, not only when requested by reviewing judge—Failure to furnish reasons at end of trial severely hampering review function—Reviewing court disadvantaged in applying test as to whether proceedings in accordance with justice—Court also not able to have regard to factual and credibility findings made by trial court.

Trial—Semble: Although courts and judicial officers and their decisions neither ‘organs of state’ nor ‘administrative action’, respectively, under Promotion of Administrative Justice Act 3 of 2000, sensible for courts to adopt rationale for furnishing reasons as prescribed for administrative action under PAJA—Criminal justice system, particularly review process, only benefiting therefrom.

 

S v STEYN (WCC)

LOUW J, MOOSA J and STEYN J

2010 JULY 28; AUGUST 19

Sentence—Prescribed sentences—Minimum sentences—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—Charge-sheet not reflecting applicability of Act—Question of prescribed sentence raised only after conviction—This omission prejudicial and constituting substantial and compelling reason why prescribed sentence ought not to have been imposed—Court of appeal therefore entitled to impose sentence afresh—Sentence of life imprisonment for rape set aside and substituted with sentence of 16 years’ imprisonment.

 

S v SHAW (ECG)

PICKERING J

2010 OCTOBER 1

Murder—Sentence—For murder of two minor children by father—Imposition of—Factors to be taken into account—Accused entirely self-centred and manipulative—Having threatened ex-wife and children—Belated expressions of regret and remorse not genuine—Failing to express remorse until after conviction—Accused hanging his two children in order to punish his wife for resisting his control—Difficult to imagine more callous, coldblooded and despicable deed—Children experiencing bewildered terror when supposedly loving father and protector hanging them from doorways of their home—Despite lack of premeditation, only appropriate sentence life imprisonment on each count.

 

S v LONDE (ECG)

KROON J and ROBERSON J

2010 JUNE 9

Sentence—Imposition of—Factors to be taken into account—Interests of children—Accused mother of two children aged 5 and 7—No investigation into welfare of children if accused imprisoned—Essential to obtain presentence and correctional supervision reports—Sentence of 36 months’ imprisonment set aside and matter remitted to court a quo to obtain reports and consider sentence afresh.

 

THEOBALD v MINISTER OF SAFETY AND SECURITY AND OTHERS (GSJ)

WISE AJ

2007 MARCH 29 2008 OCTOBER 19

Arrest—What constitutes—Manner of effecting arrest—Person intended to be arrested readily accompanying police and getting into police van—Such strongly supportive of inference that he submitted to being taken into police custody—Criminal Procedure Act 51 of 1977, s 39(1), complied with—No obligation on police officer in such circumstances to have touched arrested person’s body.

Arrest—Arrest on warrant—Copy of warrant—Only upon demand is arresting officer bound to hand copy of warrant to arrested person—Criminal Procedure Act 51 of 1977, s 39(2)—Such ‘demand’ jurisdictional fact and essential prerequisite to duty to hand copy of warrant to arrested person—In absence of demand or request that arrested person be shown warrant, police not acting unlawfully if warrant not shown to arrested person.

Arrest—Arrest on warrant—Whether peace officer obliged to arrest person named in warrant—Provisions of ss 43 and 44 of Criminal Procedure Act 51 of 1977 not peremptory in sense of making arrest obligatory—Use of word ‘may’ in s 44 indicating that it authorises and permits arrest to be effected, but does not expressly or impliedly oblige peace officer to do so—Section 44 not intending to preclude peace officer from exercising discretion not to effect arrest in terms of warrant, should circumstances so

require.

Arrest—Law relating to arrest—Whether arrest necessary to secure arrested person’s attendance at court—Constitutional duty on peace officer to consider whether it is necessary to arrest suspect to secure his attendance at court—Arrest, effected when less invasive means, such as summons, would suffice to secure suspect’s attendance, would be unlawful—Fact arrest effected pursuant to warrant of arrest not making any difference in this regard—Where arresting officer fails to give consideration to question whether there is reasonable suspicion, or whether arrest necessary to secure suspect’s attendance at court, arrest will be arbitrary and/or without just cause and therefore illegal.

 

S v CWELE AND ANOTHER (KZP)

KOEN J

2010 OCTOBER 21 2011 FEBRUARY 11

Evidence—Admissibility—Evidence of cellphone communications monitored and intercepted in terms of Interception and Monitoring Prohibition Act 127 of 1992, s 2(2)—Whether fact that Act predating and therefore not referring to cellphone communications meaning that judge’s direction authorising interception and monitoring of cellphone communications invalid for being ultra vires Act—Wording of Act, not whether monitoring device in existence at enactment thereof, conclusive in establishing legislature’s intention—Interpretation and application of s 2(2) discussed—No scope for interpreting Act in favorem libertatis, there being no potential prejudice arising for accused from offences in terms of Act itself; intercepted evidence at best being potential evidence in unrelated offences—Act authorising monitoring and interception of communications with technology coming into existence subsequent to its enactment—In casu judge’s direction authorising interception and monitoring of cellphone communications valid, and evidence obtained pursuant thereto admissible.

Fundamental rights—Right to fair trial—Right to privacy and dignity, Constitution of Republic of South Africa, 1996—Whether admitting evidence of transcripts of cellphone communications, monitored and intercepted pursuant to judge’s direction in terms of Interception and Monitoring Prohibition Act 127 of 1992, s 2(2), infringing on accused’s rights to privacy and dignity, and denying right to fair trial—Rights to privacy and dignity, being subject to limitation, having to yield to Act’s objective of combating serious crime—In absence of constitutional attack on relevant provisions of Act, it being incongruous to exclude evidence lawfully obtained and permitted in terms of Act on some other basis—Evidence ruled admissible.