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February 2011

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the February 2011 edition of the Advance Notification Newsletter.

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

SOUTH AFRICAN LAW REPORTS

 

Can a director use his company as a shield after recklessly incurring debt?

A director incurred debts through his company, when he knew that it could not pay them back, and then caused the company to be wound up, knowing that the creditor could not expect any dividend. The court found that this was a classic example of the situations covered by s 424 of the Companies Act 61 of 1973, and ordered that the director was liable to the creditor. McLuckie v Sullivan 2011 (1) SA 365 (GSJ)

Motor accident victims limited in their compensation

In a challenge to the constitutional validity of certain provisions in the Road Accident Fund Amendment Act 19 of 2005, the applicants attacked the limitations in compensation, alleging that they infringed injured claimants’ human rights. The argument was that these limitations infringed the rights to property, security of person, access to health care and to adequate remedy. The court, however, found that the legislative measures were properly related to the public good, and to the aims of achieving a financially viable and effective platform for delivering social security services. The challenge had to fail. Law Society of South Africa and Others v Minister for Transport and Another 2011 (1) SA 400 (CC)

Citizen claims return of his expropriated house when municipality changes plans

A property owner agreed to the expropriation of his home as part of a project for a public purpose, and was paid compensation. The municipality attempted to carry out their plans for the public open area with recreational facilities, but due to changed circumstances the project had to be shelved. The municipality then decided to use the collection of properties for another purpose, and carried out the rezoning. The previous property owner then claimed the return of the property, on the basis that the expropriation was no longer legally sustainable, seeing that the purpose for which the property had been expropriated had fallen away. To answer this novel question the court takes an in-depth look at our law, and makes a detailed comparison of foreign law. Harvey v Umhlatuze Municipality and Others2011 (1) SA 601 (KZP).

SOUTH AFRICAN CRIMINAL LAW REPORTS

The admissibility of dock-identification evidence

A strike by some 600 striking municipal workers deteriorated into kidnapping and assault on subcontractors. The appellants were fingered as the assailants responsible for the death of one of the subcontractors. Appealing against their convictions—on counts of kidnapping, assault with the intention to do grievous bodily harm and culpable homicide—the appellants questioned the admissibility of the evidence of a witness who, from the dock, identified them as those responsible for the fateful assault. The court considered the admissibility of dock-identification evidence in a judgment which notably also rejected the contention that the legality of a strike qualified as a mitigating factor. S v Ramabokela and Another 2011 (1) SACR 122 (SCA)

The time arrives for de bonis propriis costs orders against government officials behaving badly

The applicant successfully brought a late Sunday evening urgent court application for his release, by way of an interim interdict de libero homine exhibendo. He had been arrested and detained earlier in the day for alleged offences in respect of which the police could have extended bail, but refused to do so. On the return day of the interdict, the court examined the applicable law and ordered the officials involved in the applicant's unlawful arrest and detention to pay the costs of the proceedings in their personal capacities. Coetzee v National Commissioner of Police and Others 2011 (1) SACR 132 (GNP)

To grant or not to grant legal aid. . .

That was the question that faced the Supreme Court of Appeal in the Legal Aid Board's appeaI against an order of the court a quo that the Legal Aid Board provide the accused with two counsel in private practice, at maximum tariff. To do so, ruled the SCA, would be to exercise executive or legislative functions under the guise of judicial review, which was something courts assiduously had to refrain from doing. Legal Aid Board v The State and Others 2011 (1) SACR 166 (SCA).

 

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SOUTH AFRICAN LAW REPORTS

TABLE OF CASES

FLYNOTES

VIKING PONY AFRICA PUMPS (PTY) LTD t/a TRICOM AFRICA v HIDRO-TECH SYSTEMS (PTY) LTD AND ANOTHER (CC)

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

2010 AUGUST 10; NOVEMBER 23

State tender—Tender process—Fraud—Duty of State organ upon detection of fraud—Must act against successful tenderer when detecting that preference obtained on fraudulent basis—Obtaining information giving rise to reasonable suspicion of fraud amounting to detection—Once tenderer plausibly accused, State organ obliged to investigate matter—Preferential Procurement Regulations, 2001, pertaining to Preferential Procurement Policy Framework Act 5 of 2000, reg 15(1).

Words and phrases—‘Detect’—Meaning of in reg 15(1) of Preferential Procurement Regulations, 2001, pertaining to Preferential Procurement Policy Framework Act 5 of 2000.

Words and phrases—‘Act against’—Meaning of in reg 15(1) of Preferential Procurement Regulations, 2001, pertaining to Preferential Procurement Policy Framework Act 5 of 2000.

 

SA METAL MACHINERY CO (PTY) LTD v CITY OF CAPE TOWN (WCC)

BINNS-WARD J

2010 AUGUST 13, 18

Local authority—Contracts by—Sale—Disposal of capital assets—Legality—Whether asset required for provision of minimum basic services to community—Whether alienation of asset having unjustifiably adverse effect on municipality’s financial position—Whether fair market value obtained—Request for quotation procedure (RFQ) effective method of determining fair market value—Local Government: Municipal Finance Management Act 56 of 2003, s 14.

Local authority—Contracts by—Sale—Request for quotation—Validity—Request by municipality for submission of quotes for purchase and removal of certain categories of surplus electrical equipment, both accumulated stockpile and items subsequently becoming available—Whether RFQ assailable on ground that merx unknown or incapable of determination—Nature and quantity of goods readily ascertainable by inspection or enquiry—Element of risk in bidding for goods, supply of which is affected by imponderables, not inherently inequitable—RFQ valid.

 

McLUCKIE v SULLIVAN (GSJ)

BLIEDEN J

2010 AUGUST 23–27; SEPTEMBER 7

Company—Directors and officers—Liability for debts of company—Reckless or fraudulent conduct of business of company—Reckless conduct—What constitutes—Sole director of company causing company to incur debt at time when he knew company would be unable to repay it without his assistance—Then winding up company while attempting to use its formal identity to avoid repaying debt—Behaviour of director amounting to reckless conduct of business of company—Director personally liable for debt incurred—Companies Act 61 of 1973, s 424(1).

 

MERCEDES BENZ FINANCIAL SERVICES SOUTH AFRICA (PTY) LTD v DUNGA (WCC)

BLIGNAULT J

2010 JULY 21; SEPTEMBER 20

Credit agreement—Consumer credit agreement—Debt review—Termination—When competent—Credit provider may only terminate debt review if acting in good faith—National Credit Act 34 of 2005, s 86(10).

Credit agreement—Consumer credit agreement—Debt review—Resumption—Court that may order—Words ‘or High Court’ to be read in after ‘Magistrate’s Court’—National Credit Act 34 of 2005, s 86(11).

 

BETLANE v SHELLY COURT CC (CC)

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

2010 AUGUST 24; NOVEMBER 24

Execution—Application for leave to execute pending appeal—Operation and execution of order suspended pending appeal—Application to execute pending appeal to be made to same court that gave order—Writ issued by appeals registrar of same court unlawful—Uniform Rules of Court, rule 49(11).

 

LAW SOCIETY OF SOUTH AFRICA AND OTHERS v MINISTER FOR TRANSPORT AND ANOTHER (CC)

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

2010 AUGUST 12; NOVEMBER 25

Constitutional law—Legislation—Validity—Road Accident Fund Amendment Act 19 of 2005, s 21—Abolishing road accident victim’s common-law right to claim balance of damages not compensable by Road Accident Fund—Measure reasonable and justifiable in light of urgent need to establish financially viable and equitable compensation regime—Provision valid.

Constitutional law—Legislation—Validity—Road Accident Fund Amendment Act 19 of 2005, s 17(4)(c)—Limiting road accident victim’s claim against RAF for loss of income and/or support—Limitation rational—Not infringing entrenched right—Provision valid.

Constitutional law—Legislation—Validity—Road Accident Fund Amendment Act 19 of 2005, reg 5(1)—Limiting health care services to tariff—Whether constituting unconstitutional limitation of constitutional right of access to health care—Tariff inadequate to extent of having no rational relationship with intended objectives—Provision invalid—Constitution, s 27(1).

 

COMPANY UNIQUE FINANCE (PTY) LTD AND ANOTHER v JOHANNESBURG NORTHERN METROPOLITAN LOCAL COUNCIL AND ANOTHER (GSJ)

BLIEDEN J

2010 MAY 10; AUGUST 13 CASE No 14581/99

Estoppel—Estoppel by representation—Agency by estoppel—Ostensible authority—Proof—Claimant seeking to estop principal from denying authority of agent on ground of ostensible authority having to show that he or she misled by principal into believing that agent had authority to conclude act in question, that belief reasonable, and that he or she acted on that belief to his or her prejudice—Assurances by agent regarding existence or extent of own authority of no consequence.

Estoppel—Estoppel by representation—Agency by estoppel—Whether defendant estopped from denying authority of agent—Defendant local authority having created façade of regularity and approval of conduct of its officials in their dealings with plaintiffs—Plaintiffs’ reliance thereon justified—Defendant estopped from denying authority of officials—Acts of officials binding on defendant.

Local authority—Officers—Ostensible authority—Local authority having created façade of regularity and approval of conduct of its officials in their dealings with plaintiffs—Plaintiffs’ reliance thereon justified—Acts of officials binding on local authority—Local authority estopped from denying authority of officials.

Penalty—Whether penalty excessive—Onus—Onus on party claiming reduction of penalty to prove penalty disproportionate to prejudice suffered by party relying on penalty—Evidence required to be led by party claiming reduction—Conventional Penalties Act 15 of 1962, s 3.

 

FIRSTRAND BANK LTD v MVELASE (KZP)

D PILLAY J

2010 OCTOBER 13, 26

Credit agreement—Consumer credit agreement—Debt review—Termination—Notice—Section 86(10) notice can terminate s 87 debt review pending in magistrates’ court—National Credit Act 34 of 2005, ss 86(10) and 87.

Credit agreement—Consumer credit agreement—Debt review—Resumption—Whether reference in s 86(11) of Act to ‘magistrates’ court hearing the matter’ and which ‘may order that the debt review resume’ is to magistrates’ court hearing debt review in terms of s 87, or to magistrates’ court or High Court hearing enforcement claim in terms of s 130(4)—Reference is to magistrates’ court hearing debt review—National Credit Act 34 of 2005, s 86(11).

Credit agreement—Consumer credit agreement—Debt review—Jurisdiction—Debt-enforcement court may conduct debt review in limited circumstances in s 130(4) of NCA—National Credit Act 34 of 2005, s 130(4).

 

CROOKES v SIBISI AND OTHERS (KZP)

WALLIS J and BUTHELEZI AJ

2010 APRIL 15; MAY 4

Criminal procedure—The prosecution—Private prosecution—When competent—Abuse of process—Prosecutor’s motives—Role of compensation—Allegation of extortion—Whether justified.

 

S v MARAIS (CC)

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

2010 SEPTEMBER 21

Appeal—Leave to appeal—To Constitutional Court—Whether constitutional issue raised—If so, whether in interests of justice to grant leave—Whether court able to order hearing of further evidence—Applicant contending that trial court misapplying legal rules applicable to criminal trials and leading of evidence, particularly regarding ‘battered woman syndrome’—Pith of applicant’s complaint no more than that trial court wrong on facts—Dissatisfaction with court’s factual findings not itself raising constitutional issue and thus application for leave to appeal must fail—Both High Court and Supreme Court of Appeal, having refused leave to appeal conviction, functus officio—Since no constitutional issue raised, Constitutional Court having no power either to reopen case for further evidence or to remit matter to SCA or High Court.

Appeal—Parties—Amicus curiae—Application for admission as—Where main application falling to be dismissed as not raising constitutional issue, and since application to be admitted as amicus curiae always ancillary and subservient to main application, request to become amicus also failing.

Court—Constitutional Court—Powers—Neither Supreme Court Act 59 of 1959 nor Criminal Procedure Act 51 of 1977 giving Constitutional Court express power, when refusing leave to appeal in criminal case, to undo prior refusal of leave to appeal to another court and to remit matter to another court—In absence of constitutional issue, court not empowered to set aside Supreme Court of Appeal’s refusal of leave to appeal, and grant leave to either full bench of High Court or to SCA.

 

McMILLAN NO v POTT AND OTHERS (WCC)

BINNS-WARD AJ

2009 MAY 27–28; JUNE 18; JULY 28

Company—Shares and shareholders—Shareholders—Oppression—What constitutes—Not sufficient that relationship between parties having broken down irretrievably—No right of unilateral withdrawal when trust and confidence between shareholders no longer existing—But different if breakdown in relations causes majority to exclude minority shareholder from management of company, or otherwise to cause him prejudice as shareholder—Useful test is to ask whether exercise of power or rights by majority would involve breach of agreement or understanding between parties—Companies Act 61 of 1973, s 252.

Company—Shares and shareholders—Shareholders—Oppression—What constitutes—Removal of director by majority—Effect of fault on part of removed member—Oppression in casu not lying in justifiable exclusion of affected member, but in effect thereof on such member who had become member on understanding that he would have actively participative role amounting to employment—Issue of fault generally not negating right to relief from oppression in such circumstances—Semble: Fault on part of excluded member may in exceptional circumstances be so gross that member’s exclusion without offer of redemption of capital not oppressive—Companies Act 61 of 1973, s 252.

Company—Shares and shareholders—Shareholders—Oppression—Relief—Application—Who may apply—Sole trustee of trust with 30 percent shareholding in company—M, in terms of understanding between joint venturers in acquisition of shares of company, appointed managing director of company and in executive control of company—Consequent on disputes between M and other joint venturers, M removed as managing director of company—Exclusion of M from business as relevant to trust’s position qua member of company as it would have been had M been member in personal capacity—M entitled to apply for relief—Companies Act 61 of 1973, s 252.

Company—Shares and shareholders—Shareholders—Oppression—Relief—Court making order providing for compulsory purchase of shares of affected member by majority shareholder—‘Fair value’ of shares—No reason in principle why acquiring party should obtain excluded party’s shares at discount to pro rated value of all issued shares in company—Such the practice of English courts and such practice commending itself to South African practice—Companies Act 61 of 1973, s 252.

 

JW v SW (GNP)

MAKGOKA J

2010 JUNE 2; OCTOBER 28

Husband and wife—Divorce—Proprietary rights—Forfeiture of patrimonial benefits of marriage—Patrimonial benefit—What constitutes—Quaere: Whether spouse can be ordered to forfeit asset he/she brought into joint estate—Since spouse can only benefit from asset brought into joint estate by other spouse, spouse cannot be ordered to forfeit his/ her own asset brought into joint estate—Divorce Act 70 of 1979, s 9(1).

Husband and wife—Divorce—Proprietary rights—Pension benefits—Nonmember spouse’s share—Parties married in community of property—Nonmember spouse claiming half of member spouse’s share of pension benefits—Court having discretion whether to allow claim, in exercising of which may consider fairness—In casu, not allowing non-member spouse’s share being fair and just—Divorce Act 70 of 1979, s 7(8)(a)(i).

 

COCHRANE v CITY OF JOHANNESBURG (GSJ)

HORN J, MAYAT J and BAVA AJ

2010 AUGUST 18

State—Actions by and against—Actions against—Notice—Failure to give notice—Proper response by State—Not to proceed under rule 30 (irregular proceedings), but rather either to object to notice before institution of action or to deliver special plea after action instituted—In latter case proper ventilation of issues relating to condonation can take place—Institution of Legal Proceedings against certain Organs of State Act 40 of 2002.

 

NDIMENI v MEEG BANK LTD (BANK OF TRANSKEI) (SCA)

MPATI P, LEWIS JA, HEHER JA, SNYDERS JA and TSHIQI JA

2010 NOVEMBER 1; DECEMBER 1

Recusal—On grounds of appearance of bias—What constitutes—Acting judge having executed mortgage bonds for litigant, and litigant listing acting judge’s firm as one to which such instructions to be given—Reasonable apprehension of bias found.

 

WINLITE ALUMINIUM WINDOWS & DOORS (PTY) LTD v PYRAMID FREIGHT (PTY) LTD t/a UTI (SCA)

HARMS DP, NAVSA JA, HEHER JA, SNYDERS JA and BERTELSMANN AJA

2010 NOVEMBER 23, 29

Tender—Costs—Cost incurred subsequent to offer of settlement—Discretion of court—Whether trial court exercised proper discretion in concluding that plaintiff not justified in proceeding with trial when tender more than capital awarded, but less than sum of capital and accrued interest at date of tender—Uniform Rules of Court, rule 34(12).

 

RIBEIRO AND ANOTHER v SLIP KNOT INVESTMENTS 777 (PTY) LTD (SCA)

MPATI P, CACHALIA JA, TSHIQI JA, R PILLAY AJA and K PILLAY AJA

2010 NOVEMBER 18; DECEMBER 2

Credit agreement—Consumer credit agreement—What constitutes—Whether agreement guaranteeing obligations of sureties under cancelled agreement constituting credit guarantee to which NCA not applicable or credit agreement to which NCA applying—National Credit Act 34 of 2005, s 8(5) read with s 4(2)(c).

 

MINISTER OF TRADE AND INDUSTRY AND ANOTHER v EL ENTERPRISES AND ANOTHER (SCA)

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

2010 NOVEMBER 3, 29

Counterfeit goods—Search and seizure—Without warrant—Application for order of confirmation of search and seizure—Requirements—Not formal application on notice of motion—Confirmation to be sought and given in chambers, on oath or affirmation—Notice to respondent not required—Counterfeit Goods Act 37 of 1997, s 5(4)(a).

 

AB VENTURES LTD v SIEMENS LTD (GNP)

FABRICIUS AJ

2009 NOVEMBER 23 2010 JANUARY 29

Delict—Pure economic loss—Supply of products—Duty of care—Defendant supplying mining equipment under contract with joint venture—Plaintiff construction contractor incurring losses under separate contract with mining company—Plaintiff alleging defendant liable for losses due to defendant’s negligence in supply of equipment—Defendant not delictually liable to plaintiff—Policy considerations such that defendant’s conduct in circumstances not wrongful.

Delict—Liability—Product liability—Whether subsisting—Claim for pure economic loss—Defendant supplying mining equipment under contract with joint venture—Plaintiff construction contractor incurring losses under separate contract with mining company—Plaintiff alleging defendant liable for losses due to defendant’s negligence in supply of equipment—Defendant not delictually liable to plaintiff—Policy considerations such that defendant’s conduct in circumstances not wrongful.

 

HARVEY v UMHLATUZE MUNICIPALITY AND OTHERS (KZP)

YN MOODLEY AJ

2010 DECEMBER 3

Constitutional law—Human rights—Right to property—Expropriation—Purpose—Change in purpose of use of property after expropriation—Property initially expropriated for public purpose, which purpose later proving unfeasible—Municipality then rezoning property for another purpose—Former owner not entitled to reclaim property where municipality responding to changed circumstances and acting in good faith, as well as complying with statutory duties—Constitution, ss 25 and 33.

Expropriation—Purpose—Change in purpose of use of property after expropriation—Property initially expropriated for public purpose, which purpose later proving unfeasible—Municipality then rezoning property for another purpose—Former owner not entitled to reclaim property where municipality responding to changed circumstances and acting in good faith, as well as complying with statutory duties—Constitution, ss 25 and 33.

 

SOUTH AFRICAN CRIMINAL LAW REPORTS

TABLE OF CASES

FLYNOTES

FALK AND ANOTHER v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS (SCA)

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

2010 SEPTEMBER 9, 23

International co-operation in investigation of crime—International Cooperation in Criminal Matters Act 75 of 1996 (ICCMA)—Registration of foreign restraint order—Applicability of provisions of Prevention of Organised Crime Act 121 of 1998 (POCA)—Section 26(10)(b)of POCA not applying to foreign restraint orders—South African courts lacking jurisdiction to rescind order of foreign court—If defendant wishing to undo effect of registered foreign restraint order, remedy lying not in POCA, but in s 26 of ICCMA—Latter definitive of grounds upon which registration of foreign restraint order could be set aside.

Prevention of crime—Restraint order in terms of Prevention of Organised Crime Act 121 of 1998—Rescission of in terms of s 26(10)(b)read with s 17(b)—No basis for argument that ‘court convicting the defendant’ in s 17(b)meaning only court of first instance—If appeal by NDPP against refusal of confiscation order upheld, convicting court’s order would be set aside and replaced with order deemed appropriate by appeal court—On appellants’ argument, if NDPP were to appeal, protection afforded by restraint order would be lost, no matter how good prospects of success on appeal—This absurdity and not law.

Prevention of crime—Restraint order in terms of Prevention of Organised Crime Act 121 of 1998—Rescission of in terms of s 26(10)(b)read with s 17(b)—Foreign restraint order registered in South African court in terms of s 24 of International Co-operation in Criminal Matters Act 75 of 1996—South African law requiring restraint order to be rescinded when convicting court not making confiscation order—Whether same applying when foreign restraint order registered in South African court—Interests of justice not necessarily requiring rescission of foreign restraint order where foreign convicting court not making confiscation order.

 

S v NDUNA (SCA)

LEWIS JA, BOSIELO JA and EBRAHIM AJA

2010 SEPTEMBER 13, 30

Evidence—Admissibility—Similar fact evidence—Of modus operandi of robbers—Such evidence admissible to prove that accused person perpetrator, but not to prove commission of crime itself—Absurd to exclude evidence of modus operandi merely because appellant charged with more than one count of robbery—Ultimate test being relevance—In casu, evidence relating to modus operandi, supported by fingerprint evidence, relevant and admissible—Cumulative effect of evidence of similar conduct weighing heavily against appellant.

 

S v RAMABOKELA AND ANOTHER (GNP)

BAM AJ and VAN DER BYL AJ

2010 SEPTEMBER 15

Evidence—Of identification—Dock identification—Value of—While dock identification not carrying same weight as evidence emanating from proper identification parade, not to be equated to answer to leading question—Dock identification to be evaluated in same manner as all evidence regarding identification: with caution—Weight to be attached to such evidence depending on circumstances of individual case, and on evaluation of totality of evidence, with usual cautionary rule having been applied.

Sentence—Imposition of—Factors to be taken into account—Appellants convicted of kidnapping, assault and culpable homicide during course of strike—Whether mitigating factor that strike was legal—Public order central concern to community and to State—No citizen to be subjected to disorder and violence when other citizens decide to strike—Whether strike legitimate or unlawful in this respect irrelevant—Fact that strike legal not mitigating factor—Appeal against sentence dismissed.

 

COETZEE v NATIONAL COMMISSIONER OF POLICE AND OTHERS (GNP)

DU PLESSIS AJ

2009 NOVEMBER 15, 17 2010 OCTOBER 11

Arrest—Legality of—Constitutional rights, in particular, right to freedom, not to be compromised by infringement thereof by government officials, in particular, police—Courts should jealously guard those rights—Those who act in violation of those rights should face whole force of legal system to bring them to book and to restrain them.

Arrest—Law relating to arrest—Purpose of to secure attendance of accused at court—If preferable method of securing such attendance is through summons, that method to be employed—But risk of accused absconding or committing further crime to be considered—Arrest without reasonable basis therefor should not occur indiscriminately, no matter how severe alleged offence is—Person to be arrested still presumed innocent person whose right to freedom, dignity and right to fair treatment should be upheld.

Arrest—Unlawful arrest—Application for release brought by way of interdict de libero homine exhibendo—Such interdict still part of South African law—On facts, court holding on return day that order for release correctly made.

Costs—Costs de bonis propriis—When to be ordered—Government officials—Can be ordered against government official where his actions unlawful and caused litigation and costs in respect thereof—Taxpayer should not be made to bear costs for unlawful, indiscriminate and illegal actions committed by government officials—Time has come to consider costs de bonis propriisagainst public officials acting in bad faith and causing unnecessary legal costs and litigation—Likewise for government officials who act in breach of constitutional imperatives contained in ss 38, 195(1), 237 and Bill of Rights in Ch 2 of Constitution of the Republic of South Africa, 1996—Such orders may constitute ‘appropriate relief’ as contemplated in s 38 of Constitution and may act as deterrent against public officials acting unlawfully and in bad faith.

 

LEGAL AID BOARD v THE STATE AND OTHERS (SCA)

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

2010 AUGUST 16; SEPTEMBER 22

Appeal—Powers of court on appeal—Supreme Court of Appeal not necessarily bound by grounds of appeal on which leave granted—Where ground of appeal, which not covered by terms of leave granted, nevertheless having sufficient merit to warrant consideration, court allowing such ground to be argued—Appellant’s formal application for condonation and for leave to appeal on wider grounds satisfactorily addressing any prejudice to other parties—Question appellant now sought to raise basic to adjudication of appeal—Appellant allowed to argue ground which not covered by leave granted by court a quo.

Court—Powers of—Separation of powers—Between judiciary and executive—Court ordering Legal Aid Board to provide accused with two counsel in private practice, to be remunerated at maximum tariff—Whether such order exceeding court’s powers—Courts to refrain assiduously from exercising executive or legislative functions under guise of judicial review—For other arms of government to ensure adequate provision made for legal representation at State expense—Court a quo plainly lacking power to make such order—Order set aside.

Fundamental rights—Right to legal representation at State expense—Section 35(3)(g)of Constitution of the Republic of South Africa, 1996—In determining whether accused entitled to legal representation at State expense court to ask two questions: first, whether substantial injustice ensuing if accused tried without representation; and, if so, second, whether accused able to afford costs of representation—In casu, given complexity of matter and volume of evidence, accused clearly requiring representation—However, neither accused appearing indigent—Their answers to court’s questions regarding their means deliberately evasive and cagey—Failure to supply information peculiarly within their knowledge redounding to their discredit—Given paucity of reliable information, court a quo having erred in finding accused ‘indigent’ as defined in Legal Aid Act 22 of 1969.

Legal aid—Whether accused entitled to legal representation at State expense—Enquiry by court in terms of s 3B of Legal Aid Act 22 of 1969—Wholly inappropriate for court to saddle accused with onus of establishing need for representation and then to decide matter on basis of whether such onus discharged—However, accused not free to adopt supine attitude, particularly where information peculiarly within their knowledge—If court left unable to complete enquiry, it must perforce decline to direct that accused be provided with representation at State expense—In carrying out enquiry court having power to subpoena witnesses and documents, and to cause witnesses to be cross-examined.

 

DIRECTOR OF PUBLIC PROSECUTIONS, TRANSKEI v DUBO (ECM)

PAKADE J and CAWE AJ

2010 MARCH 19; APRIL 1

Appeal—Against sentence—By Director of Public Prosecutions in terms of s 310A of Criminal Procedure Act 51 of 1977—Appellant having to show that difference, between sentence imposed by trial court, and sentence which appeal court would have imposed, of such nature and degree as to mean that trial court exercising sentencing discretion unreasonably—Magistrate miscalculating respondent’s age—Conclusion that, since respondent 16 years old, wholly suspended sentence was appropriate, therefore misdirection vitiating proper exercise of trial court’s discretion—No indication on record that trial court taking into consideration gravity of offence and interests of society—Seriousness of offence, including fact that victim only 14 years old, and protection of society, should have been considered, together with any mitigating factors—Matter remitted to trial court for structuring of sentence that would best suit needs and interests of offender, promote his rehabilitation, and encourage his reintegration into his family and community.

Appeal—Against sentence—By Director of Public Prosecutions in terms of s 310A of Criminal Procedure Act 51 of 1977—DPP appealing against wholly suspended sentence for rape, even though prosecutor in trial court having supported sentence—Clear that prosecutor not having applied his mind to question—Failing to guide trial court properly—In any event, trial court should have applied its own mind to triad of sentencing.

 

PRINSLOO v NASIONALE VERVOLGINGSGESAG EN ANDERE (GNP)

DU PLESSIS WnR

2009 NOVEMBER 19, 20 2010 OKTOBER 11

Arrest—Law relating to arrest—Duty to bring arrested person before court within 48 hours—Criminal Procedure Act 51 of 1977, s 50(1)(d)—Expiry of 48-hour period outside normal court hours—Arrested person then to be brought before court during and not later than end of first court day after his arrest—Object of s 50(1)(d)is to avoid arrested person being detained over weekend and to avoid person who has not been convicted being detained longer than necessary.

Fundamental rights—Right to freedom and security of the person—Public protected from arbitrary deprivation of freedom without any cause by s 12 of Constitution, 1996—Cannot permit that this right is dealt with lightly and mindlessly—Person cannot be detained without trial unless it is constitutionally justified in terms of constitutionally valid legislation—Bail a mechanism that is intended to minimalise infringement of right to freedom of person who has not been convicted.

Costs—Costs de bonis propriis—Can be ordered against member of South African Police Service where he has acted entirely beyond his powers and has acted mala fide, intentionally, unreasonably and improperly.

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