July 2011

Dear South African Law Reports and Criminal Law Reports subscriber

We’ve briefly described below some of the cases we think may be of interest in the July Reports, and under those descriptions are the table of cases and flynotes of the South African and Criminal Law Reports.

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

SOUTH AFRICAN LAW REPORTS

The effect of s 20(10) of the Promotion of National Unity and Reconciliation Act 34 of 1995 on public discourse

In The Citizen 1978 (Pty) Ltd and Others v McBride (Johnstone and Others, Amici Curiae) 2011 (4) SA 191 (CC), the Constitutional Court considers the effect of s 20(10) of the Promotion of National Unity and Reconciliation Act 34 of 1995, which provides inter alia that where an individual has been convicted of an offence with a political objective and later amnestied, ‘the conviction shall for all purposes . . . be deemed not to have taken place . . . .’ The court considers if s 20(10) renders it untrue to describe a person convicted of murder and later amnestied, as a ‘murderer’.

Exemptions from liability for defects in goods

In Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd 2011 (4) SA 276 (SCA), the appellant supplied spice containing a prohibited substance to the respondent, who was compelled to remove and replace the affected products. The Supreme Court of Appeal considers whether the appellant can rely on the clause in its supply agreement that exempts it from liability for defects in goods supplied, where the goods delivered were different to those bargained for.

The doctrine of precedent considered

In Camps Bay Ratepayers’ and Residents’ Association and Another v Harrison and Another 2011 (4) SA 42 (CC) the Constitutional Court revisits the doctrine of precedent. The court considers the doctrine’s purpose, the danger of evading a binding decision, and the correct manner, if such is appropriate, of challenging a binding decision.

SOUTH AFRICAN CRIMINAL LAW REPORTS

Sentencing options for unlawful possession of semi-automatic firearms

The minimum sentence of 15 years' imprisonment prescribed in terms of s 51(2) of the Criminal Law Amendment Act 105 of 1997 for the unlawful possession of semi-automatic firearms, was recently considered — virtually contemporaneously — by two different divisions of the High Court. In S v Madikane 2011 (2) SACR 11 (ECG), the court considers the relevant case law and concludes that sentences of 15 years' imprisonment were unlikely to be proportional in all but the most serious cases. In S v Baartman 2011 (2) SACR 79 (WCC) the court approaches the issue from a different angle, holding that the said provision was impliedly revoked in respect of offences under the Firearms Control Act 60 of 2000.

The effect of formal admissions recorded in terms of s 220 of the Criminal Procedure Act 51 of 1977

In S v Van der Westhuizen 2011 (2) SACR 26 (SCA) formal admissions were recorded under s 220 of the Criminal Procedure Act 51 of 1977, which had the effect of the appellant admitting his criminal responsibility. Later on, the appellant’s attorney led evidence inconsistent with those admissions. The SCA considers whether an accused, having made formal admissions, can later contradict them, either by way of evidence or in argument.

The duties of the SAPS when dealing with domestic violence complaints

The police are required by the Domestic Violence Act 116 of 1998 and s 2 of the National Instructions on Domestic Violence to advise and assist persons in asserting their rights under the Act. In Minister of Safety and Security v Venter and Others 2011 (2) SACR 67 (SCA) the Supreme Court of Appeal considers an appeal against a High Court damages award against the police, for failing to discharge such duty.

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SOUTH AFRICAN LAW REPORTS

TABLE OF CASES

• Meridian Bay Restaurant (Pty) Ltd and Others v Mitchell NO 2011 (4) SA 1 (SCA)

• Ras and Others NNO v Van der Meulen and Another 2011 (4) SA 17 (SCA)

• PFE International Inc (BVI) and Others v Industrial Development Corporation of South Africa Ltd 2011 (4) SA 24 (KZD)

• Unitrans Automotive (Pty) Ltd v Trustees of the Rally Motors Trust 2011 (4) SA 35 (FB)

• Camps Bay Ratepayers’ and Residents’ Association and Another v Harrison and Another 2011 (4) SA 42 (CC)

• Slip Knot Investments 777 (Pty) Ltd v Du Toit 2011 (4) SA 72 (SCA)

• S v Gardener and Another 2011 (4) SA 79 (SCA)

• National Director of Public Prosecutions v Gardener and Another 2011 (4) SA 102 (SCA)

• Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others 2011 (4) SA 113 (CC)

• Van Rensburg and Another NNO v Naidoo and Others NNO 2011 (4) SA 149 (SCA)

• Naidoo and Others NNO v Van Rensburg NO and Others 2011 (4) SA 149 (SCA)

• Giant Concerts CC v Minister of Local Government, Housing and Traditional Affairs, KwaZulu-Natal, and Others 2011 (4) SA 164 (KZP)

• The Citizen 1978 (Pty) Ltd and Others v McBride (Johnstone and Others, Amici Curiae) 2011 (4) SA 191 (CC)

• KwaZulu-Natal Agricultural Union v Minister of Co-Operative Governance and Traditional Affairs, and Others 2011 (4) SA 266 (KZP)

• Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd 2011 (4) SA 276 (SCA)

• Mcoyi and Others v Inkatha Freedom Party 2011 (4) SA 298 (KZP)

• Magwaza-Msibi v Inkatha Freedom Party 2011 (4) SA 298 (KZP)

• FirstRand Bank Ltd v Folscher and Another, and Similar Matters 2011 (4) SA 314 (GNP)

FLYNOTES

MERIDIAN BAY RESTAURANT (PTY) LTD AND OTHERS v MITCHELL NO (SCA)

NAVSA JA, PONNAN JA and SHONGWE JA

2011 FEBRUARY 23; MARCH 23

 Sale—Double sale—Doctrine of notice—Ambit—Applicable also where initial dispositive act (first sale) having effect of creating new objects of ownership out of property already subject to prior personal right.

Sale—Double sale—Doctrine of notice—Requirements—Actual knowledge of first purchaser’s personal right to property not required—Sufficient if second purchaser (acquirer) subjectively foresaw possibility of existence of first purchaser’s personal right but proceeded with acquisition of real right regardless of consequences to first purchaser’s personal right. 

Sale—Double sale—Doctrine of notice—Remedy—First purchaser entitled to recover res venditadirectly from second purchaser (acquirer).

 

RAS AND OTHERS NNO v VAN DER MEULEN AND ANOTHER (SCA)

LEWIS JA, SHONGWE JA, LEACH JA, EBRAHIM AJA and K PILLAY AJA

2010 NOVEMBER 9; DECEMBER 1

Trust and trustee—Trustee—Removal from office—Who may apply—Applicant must be beneficiary of trust—Court erroneously finding that applicant had, short of being beneficiary, sufficient interest in trust to entitle her to apply for removal of trustees—On appeal, matter remitted to High Court to determine whether applicant a beneficiary of trust or not.

 

PFE INTERNATIONAL INC (BVI) AND OTHERS v INDUSTRIAL DEVELOPMENT CORPORATION OF SOUTH AFRICA LTD (KZD)

MOTALA AJ

2010 SEPTEMBER 22; NOVEMBER 1

Administrative law—Access to information—Generally—Barring of recourse to PAIA where record sought for purpose of litigation after commencement of proceedings—Bar operating only if access to record ‘provided for in any other law’—Effect—If access indeed provided for by other law, but request for access refused by court, then bar operating and applicant not entitled to invoke PAIA instead—If, however, no other law available to provide applicant with access to record sought at stage when required, then bar not operating and applicant entitled to invoke PAIA—Promotion of Access to Information Act 2 of 2000, s 7(1)(c).

Administrative law—Access to information—Generally—Barring of recourse to PAIA where record sought for purpose of litigation after commencement of proceedings—Bar operating only if access to record ‘provided for in any other law’—Effect—Semble: ‘Provided for’ to be read as meaning that bar applying only if rules of evidence and discovery permit disclosure of record, not where they prevent it—Promotion of Access to Information Act 2 of 2000, s 7(1)(c).

Discovery and inspection—Production of documents—Applicability of PAIA—Party may not utilise PAIA after commencement of proceedings if access to document ‘provided for in any other law’—No rule of court providing for access to records in possession of a third party necessarily required prior to trial—Party may utilise PAIA to obtain documentation in question—Promotion of Access to Information Act 2 of 2000, s 7(1)(c).

Discovery and inspection—Production of documents—Documents in possession of third party necessarily required prior to trial—No rule of court providing for access to such documents—Party may invoke PAIA to obtain access—Promotion of Access to Information Act 2 of 2000, s 7(1)(c).

 

UNITRANS AUTOMOTIVE (PTY) LTD v TRUSTEES OF THE RALLY MOTORS TRUST (FB)

FISCHER AJ

2011 MARCH 3, 10

Estoppel—Estoppel by representation—Elements—Representation—Indicia of dominium (scenic apparatus)—Vehicle keys, registration papers and licence disc—Applicant negligently provided middleman with indicia that enabled him to sell vehicle to respondent—Applicant not entitled to relief sought against buyer.

 

CAMPS BAY RATEPAYERS’ AND RESIDENTS’ ASSOCIATION AND ANOTHER v HARRISON AND ANOTHER (CC)

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

2010 AUGUST 5; NOVEMBER 4

Court—Precedent and stare decisis—When applicable—Considerations and advantages underlying doctrine set out—Observance of doctrine mandatory—Doctrine not only binding lower courts, but also binding courts of final jurisdiction to their own decisions, unless satisfied that decision clearly wrong—Stare decisis a manifestation of rule of law, which is a founding value of Constitution.

Court—Precedent and stare decisis—When applicable—Binding authority of precedent limited to ratio decidendiand not extending to obiter dicta—Judges who believe decision of higher court to be plainly wrong cannot simply avoid it—Unwarranted evasion of binding decision undermining doctrine of precedent and might lead to breakdown of rule of law—Proper way for bringing about change of decision believed to be wrong is to courteously and respectfully formulate reasons why decision should be changed, and urge higher court to effect change.

Administrative law—Administrative action—Review—Application—Delay in bringing application—At common law court may mero moturaise issue of inordinate delay in bringing application—No reason why this should not be position under Constitution and under PAJA as well—But court will only raise such delay where it is manifestly inordinate, and only when applicant has been given opportunity to explain delay—Promotion of Administrative Justice Act 3 of 2000, s 7(1).

Administrative law—Administrative action—Review—Application—When to be brought—Must be brought within period of 180 days provided for in PAJA—The 180-day period starts to run when person concerned ‘became aware of the action and the reasons for it’—Word ‘action’ referring to ‘administrative action’, and, according to definition thereof in Act, the ‘decision’ that is challenged in review proceedings—What decision entails depending on evaluation of facts—Promotion of Administrative Justice Act 3 of 2000, s 7(1)(b).

 

SLIP KNOT INVESTMENTS 777 (PTY) LTD v DU TOIT (SCA)

NAVSA JA, NUGENT JA, HEHER JA, CACHALIA JA and MALAN JA

2011 MARCH 7, 28

Principal and surety—Surety—Liability—Fraud or misrepresentation by third party inducing person to sign suretyship, while unaware of nature of document he was signing—Whether surety bound—Lender innocent and unaware of surety’s mistake—Entitled to rely on appearance of liability created by surety’s signature—Defence of justus errorfailing and surety held liable.

 

S v GARDENER AND ANOTHER (SCA)

HEHER JA, CACHALIA JA and SERITI JA

2011 FEBRUARY 18; MARCH 18

Company—Directors and officers—Fraud on company—Non-disclosure—When tantamount to fraud—Company director failing to disclose financial interests relevant to transactions in which company involved—A priori case of fraudulent non-disclosure—Factors to be considered in deciding on intention to defraud.

 

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

HEHER JA, CACHALIA JA and SERITI JA

2011 FEBRUARY 18; MARCH 18

Criminal procedure—Search and seizure—Confiscation order in terms of POCA—Purpose of Act is to confiscate proceeds of unlawful activity, even if this consequence appears harsh—Sentence and confiscation are to be treated separately—Severity of sentence ought not to have bearing on confiscation order—Offender to be deprived of full extent of benefit received from offences—Though offender not having means to meet order, order has effect of civil judgment and State can pursue other avenues to recover the moneys—Prevention of Organised Crime Act 121 of 1998, s 18.

 

BENGWENYAMA MINERALS (PTY) LTD AND OTHERS v GENORAH RESOURCES (PTY) LTD AND OTHERS (CC)

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

2010 SEPTEMBER 7; NOVEMBER 30

Mines and minerals—Prospecting rights—Application for prospecting right—Statutory duty of applicant to consult with landowner—To act in good faith—To supply landowner with sufficient information of intended activities to enable it to implement procedural remedies should application go against it—Minimum ambit of information to be provided by applicant set out—Where land owned by community entitled to preferent prospecting rights, additional steps to be complied with—Such set out—Mineral and Petroleum Resources Development Act 24 of 2008, s 16(4)(b).

Mines and minerals—Prospecting rights—Award—Appeal—Internal appeal—Anyone whose rights or legitimate expectations materially and adversely affected by award of prospecting right may appeal in  prescribed manner to director-general, in case of administrative decision by regional manager or officer; or to Minister, in case of administrative decision by director-general or designated agent—Mineral and Petroleum Resources Development Act 24 of 2008, s 96.

Administrative law—Administrative action—Review—Discretion of court—Whether court may decline to set aside invalid administrative act—Any such remedy grounded in justice and equity—To follow upon finding of invalidity and to be justified in circumstances of case—Rule of law never to be relinquished.

 

VAN RENSBURG AND ANOTHER NNO v NAIDOO AND OTHERS NNO;
NAIDOO AND OTHERS NNO v VAN RENSBURG NO AND OTHERS (SCA)

NAVSA JA, HEHER JA, VAN HEERDEN JA, MHLANTLA JA and SALDULKER AJA

2010 MAY 3, 26

Land—Defeasible interests—Restrictive conditions of title inserted in title deeds of all owners of erven in township as to user of erven—Rights of owners of erven not trumped by policies and zoning regulations of municipality having jurisdiction—Such conditions enure for benefit of all other erven in township, unless contrary indications present—Conditions inserted for public benefit and, generally, to preserve character of township—Rights of owners of erven cannot be removed by repository of power without their being heard or provided with opportunity to object.

Court—High Court—Powers—To declare final order made by court of equal jurisdiction to be of no force and effect—Court having no power to declare, in final terms, a final order, made by court of equal jurisdiction, to be of no force and effect where it is not sitting as court of appeal or review.

Court—Judgment—Interpretation—Court’s intention to be ascertained primarily from language of judgment or order—Usual rules of interpretation to be applied—Judgment, order and court’s reasons to be read as a whole to ascertain its intention.

 

GIANT CONCERTS CC v MINISTER OF LOCAL GOVERNMENT, HOUSING AND TRADITIONAL AFFAIRS, KWAZULU-NATAL, AND OTHERS (KZP)

MNGUNI J

2009 JUNE 11 2010 SEPTEMBER 23

Local authority—Public assets—Disposal—Objections—Locus standi of objector—Ordinance not prescribing that only persons with direct and substantial interest may lodge objection—Key purpose of ordinance is to give opportunity to public to have say about such disposal—Once right to object conferred and decision adverse to objector given, objector entitled to approach court for appropriate relief—Local Authorities Ordinance 25 of 1974, s 233(8).

Local authority—Public assets—Disposal—Ordinance envisaging two-stage process—First, a decision by municipality—Thereafter, further step required, namely approval by Premier of province—Process of disposal only complete once approval by Premier given—Local Authorities Ordinance 25 of 1974, ss 233(8), 234 and 235.

Local authority—Public assets—Disposal—Advertisement of local authority’s intention to sell immovable property—Advertisement communicated to members of public on same day as contract of sale signed—Section of ordinance not contemplating such situation, as it would be destructive of underlying purpose of section, of considering objections with open mind—Such action vitiating decision of local authority to sell property—Local Authorities Ordinance 25 of 1974, ss 233(8) and 234(1).

Local authority—Public assets—Disposal—Requirement that ‘a copy of the terms and conditions in both official languages of any sale . . . shall be kept at the town office and be available for inspection by the public during office hours’—Failure to comply with section by making available copy in one language only fatal to validity of sale—Provisions of section peremptory—Constitution, 1996, Schedule 6, items 2, 3(1)(f)and Local Authorities Ordinance 25 of 1974, ss 233(8) and 234(3).

 

THE CITIZEN 1978 (PTY) LTD AND OTHERS v McBRIDE (JOHNSTONE AND OTHERS, AMICI CURIAE) (CC)

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

2010 SEPTEMBER 30; 2011 APRIL 8

Defamation—What constitutes—Newspaper describing individual who had been convicted of murder and later amnestied as a ‘murderer’—Reconciliation Act addressing legal consequences of conviction only, and not having linguistic effect, or governing discourse arising from conviction—Act not rendering it untrue that respondent committed murder, and not prohibiting frank public discussion of his act as ‘murder’—Promotion of National Unity and Reconciliation Act 34 of 1995, s 20(10).

 

KWAZULU-NATAL AGRICULTURAL UNION v MINISTER OF CO-OPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS, AND OTHERS (KZP)

PLOOS VAN AMSTEL J

2011 APRIL 15; MAY 16

Local authority—Municipality—Rates—Constitutionally impermissible rates—Limitation by minister—Semble: Minister cannot impose blanket limitation on every municipality in province—Current rate in that municipality must be causing specified prejudice—Alleged prejudice caused by rates to be considered in light of rebates—Local Government: Municipal Property Rates Act 6 of 2004, s 16(2) and Constitution, s 229(2)(a).

 

FREDDY HIRSCH GROUP (PTY) LTD v CHICKENLAND (PTY) LTD (SCA)

HARMS DP, PONNAN JA, MAYA JA, SHONGWE JA and TSHIQI JA

2011 FEBRUARY 14; MARCH 17

Contract—Terms—Exemption clause—Effect—Supplier of product exempted from liability for defect in goods supplied—Supplier delivering foodstuff containing banned substance, contrary to bargain between parties—Not amounting to defect in res vendita delivered but delivery of entirely different res than one contracted for—Non-performance rather than failed performance—Exemption clause not availing supplier.

Contract—Terms—Exemption clause—Enforceability—All representations, warranties or terms (whether statutory or common-law) as to quality or fitness of foodstuffs delivered by supplier excluded—Clause contrary to public policy and unenforceable.

Delict—Specific forms—Product liability—Whether subsisting—Distribution of contaminated foodstuff—Manufacturer negligently supplying foodstuff containing illegal colourant to client, thereby causing distributor, who had no contract with manufacturer, pure economic loss—Public policy requiring that manufacturer be held liable for such loss—Relevant considerations for imposing liability being (1) distributor’s lack of contractual remedy; (2) existence of single identifiable plaintiff; (3) that imposition of liability inflicting no burden not already imposed by law and good practice; and (4) that distributor innocent victim of manufacturer’s illegal conduct.

 

MCOYI AND OTHERS v INKATHA FREEDOM PARTY; MAGWAZA-MSIBI v INKATHA FREEDOM PARTY (KZP)

PATEL DJP

2010 NOVEMBER 12; 2011 JANUARY 17

Voluntary association—Political party—Expulsion of member—Whether court having jurisdiction to interfere—Member not normally having proprietary interest in party—Member standing to lose right to associate with fellow party members or eligibility to hold office—Whether these were rights court could enforce by means of injunction.

 

FIRSTRAND BANK LTD v FOLSCHER AND ANOTHER, AND SIMILAR MATTERS (GNP)

BERTELSMANN J, MAKGOBA J and TUCHTEN J

2011 MAY 24

Execution—Sale in execution—Mortgaged immovable property—Sale of residential property for recovery of outstanding bond repayments—Judicial oversight—Factors to be considered listed—Manner in which information placed before court—Informing the debtor—Content of default notice—Constitution, s 26; National Credit Act 34 of 2005, s 129; and Uniform Rules of Court, rule 46(1)(a)(ii).

 

SOUTH AFRICAN CRIMINAL LAW REPORTS

TABLE OF CASES

• S v Xaba 2011 (2) SACR 1 (KZP)

• S v Dumba 2011 (2) SACR 5 (NCK)

• S v Madikane 2011 (2) SACR 11 (ECG)

• S v Beyi 2011 (2) SACR 23 (ECG)

• S v Van Der Westhuizen 2011 (2) SACR 26 (SCA)

• Minister of Safety and Security v Venter and Others 2011 (2) SACR 67 (SCA)

• S v Baartman 2011 (2) SACR 79 (WCC)

• MS v S (Centre for Child Law as Amicus Curiae) 2011 (2) SACR 88 (CC)

FLYNOTES

S v XABA (KZP)

BALTON J, LOPES J and D PILLAY J

2011 JANUARY 24; FEBRUARY 2

Sentence—Prescribed sentences—Minimum sentences—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—Accused legally represented—Still necessary for presiding officer to draw accused’s attention to applicability of minimum-sentencing provisions of Act where they are not contained in indictment—Simple matter for those provisions to be contained in indictment.

Sentence—Prescribed sentences—Minimum sentences—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—Juvenile offender—Amendment of s 51 of Act by s 1 of Criminal Law (Sentencing) Amendment Act 38 of 2007, whereby minimum-sentencing provisions of Act made applicable to juveniles aged 16 or 17 years, declared unconstitutional by Constitutional Court as being in violation of s 28(1)(g)of Constitution—Imposition of such minimum sentence constituting misdirection, justifying court of appeal setting it aside.

 

S v DUMBA (NCK)

KGOMO JP

2010 NOVEMBER 9, 17

Murder—Sentence—Prescribed sentence of life imprisonment in terms of s 51(1) of Criminal Law Amendment Act 105 of 1997—Substantial and compelling circumstances justifying lesser sentence in terms of s 51(3)—Case borderline crime of passion—Accused of relatively advanced age (between 60 and 62)—Accused unsophisticated, uneducated and had led hard life—He was good human material and had been good family man—He was first offender and unlikely to commit another violent offence—Substantial and compelling circumstances found to exist—Sentence of eight years’ imprisonment, of which three years conditionally suspended, imposed.

 

S v MADIKANE (ECG)

PICKERING J and PLASKET J

2010 OCTOBER 27; NOVEMBER 10

Sentence—Prescribed sentences—Minimum sentences—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—‘Substantial and compelling circumstances’—Where imposition of prescribed sentence would be disproportionate to crime, criminal and legitimate needs of society, that on its own constituting substantial and compelling circumstance justifying lesser sentence—Value of human dignity lying at heart of requirement that sentence must be proportionate to offence.

Arms and ammunition—Unlawful possession of firearm in contravention of s 3 of Firearms Control Act 60 of 2000—Sentence—Firearm semi-automatic pistol—Minimum sentence of 15 years’ imprisonment prescribed by s 51(2) of Criminal Law Amendment Act 105 of 1997—Case law on appropriate sentences reviewed—Even if allowance made for impact of Criminal Law Amendment Act on sentences for possession of semiautomatic pistols, sentence of 15 years’ imprisonment unlikely to be proportional in all but most serious of cases.

 

S v BEYI (ECG)

EBRAHIM J and GRIFFITHS J

2011 JANUARY 26; FEBRUARY 10

Sentence—Imposition of—Factors to be taken into account—Mature first offender—Fact that offender mature and first offender double-edged sword as mitigating factor—Such offender cannot claim that he was immature or that peer pressure factor—Where such offender breadwinner, he should have known that he was placing wellbeing of his family in jeopardy by resorting to crime.

 

S v VAN DER WESTHUIZEN (SCA)

CLOETE JA, SNYDERS JA and THERON JA

2011 FEBRUARY 23; MARCH 28

Criminal procedure—Fundamental rights—Right to fair trial—Impartiality of prosecutor—Requirement in s 32 of National Prosecuting Authority Act 32 of 1998, that prosecutor must act impartially, discussed with reference to international codes and guidelines of prosecutorial conduct and those framed in terms of s 22(6) of NPAAct —In such codes and guidelines, duty to act impartially used in sense of avoiding discrimination as part of general duty to act without fear, favour or prejudice, not in sense of not acting adversarially—Local and international case law on role of prosecutor considered—Prosecutor’s function in adversarial system essentially to discredit defence’s evidence for purpose of obtaining conviction—Where accused represented, calling evidence destructive of State’s case not function of prosecutor—Deciding which witnesses to call prosecutor’s discretion—In casu, therefore, no substance in appellant’s argument of not having received fair trial because State called some witnesses, but not others.

Criminal procedure—Fundamental rights—Right to fair trial—Plea and sentence agreements—Whether accused can waive prohibition on disclosure of plea-bargain negotiations contained in s 105A(10) of Criminal Procedure Act 51 of 1977—In casu, plea-bargain negotiations abandoned, but medico-legal reports relating to accused handed to prosecution and sent to expert witnesses for State—Proviso to s 105A(10) having effect that accused may waive protection afforded by section—A fortiori the accused may therefore have agreed to use of such documents.

Criminal procedure—Fundamental rights—Right to fair trial—Unjustifiable curtailment of cross-examination of State witness—Application for special entry on record in terms of s 317(1) of Criminal Procedure Act 51 of 1977—Court can avoid making special entry by recalling witness for further cross-examination.

Criminal procedure—Evidence—Formal admissions recorded under Criminal Procedure Act 51 of 1977, s 220—Effect of—In absence of explanation consistent with bona fides as to why accused made statement and why wishing to resile from it, such admissions stand—No contradiction thereof allowed, neither by leading evidence nor advancing arguments to that effect.

Criminal procedure—Sentence—Factors to be taken into account—Diminished criminal responsibility—Deterrence and retribution not receding into background as purposes of sentencing, unless substantial diminished responsibility present.

 

MINISTER OF SAFETY AND SECURITY v VENTER AND OTHERS (SCA)

MPATI P, CACHALIA JA and MAJIEDT JA

2011 FEBRUARY 23; MARCH 29

Police—Duties of—Police required by Domestic Violence Act 116 of 1998, s 2 and by National Instructions on Domestic Violence to advise and assist persons in asserting their rights under Act—Also duty on State, in terms of s 12(1) of 1996 Constitution, to protect rights of everyone to be free from private or domestic violence—Extensive protection available under Act rendered meaningless if those responsible for enforcing it, namely SAPS members, were not assisting as required under Act and Instructions.

Damages—Action for damages—Against police—For failing to discharge their statutory duty (under Domestic Violence Act 116 of 1998, s 2 and National Instructions on Domestic Violence) to advise and assist persons in asserting their rights under Act—Police negligent in not advising complainants of procedure for obtaining protection order restraining person threatening domestic violence from entering their premises—Factual causation established where such failure critical cause why remedy in Act not pursued—No policy considerations for finding against legal causation having been established—Whether respondents were contributorily negligent—Not pursuing common-law remedy of interdicting person threatening violence constituted contributory negligence on respondents’ part.

 

S v BAARTMAN (WCC)

DAVIS J and DONEN AJ

2010 OCTOBER 15; NOVEMBER 5

Arms and ammunition—Unlawful possession of firearm in contravention of s 3 of Firearms Control Act 60 of 2000—Sentence—Where firearm semi-automatic pistol—Whether provisions of s 51(2), read with Part II of Schedule 2, of Criminal Law Amendment Act 105 of 1997 applicable—Comprehensive regime of firearms control created by Firearms Control Act, including provision for prescribed maximum penalty for every violation created in that Act—Mandatory minimum-penalty provision in Criminal Law Amendment Act irreconcilable with identical 15 years’ imprisonment that may be imposed as maximum under Firearms Control Act—Regulation of semi-automatic firearms under latter Act cannot be harmonised with provisions of s 51(2)(a)(i) of Criminal Law Amendment Act—Phrase ‘(n)otwithstanding any other law’, introducing s 51(2) of Amendment Act, could not have been intended to override any future law providing regulatory and sentencing provisions such as those in Firearms Control Act—Provisions of s 51(2), read with Part II of Schedule 2, of Criminal Law Amendment Act impliedly revoked in respect of offences under Firearms Control Act.

 

MS v S (CENTRE FOR CHILD LAW AS AMICUS CURIAE) (CC)

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

2010 NOVEMBER 9; 2011 MARCH 29

Sentence—Imposition of—Factors to be taken into account—Where convicted person primary caregiver of minor children—Decision in S v M (Centre for Child Law as Amicus Curiae) 2007 (2) SACR 539 (CC) having reasserted central role of best interests of young children as independent sentencing consideration in such cases—But that decision not to be applied in cases lying beyond its ambit—Where convicted person (mother) not sole caregiver and not totally responsible for children’s care, and co-resident father willing to care for children during mother’s incarceration, noncustodial sentence not necessary to ensure their nurturing—Court confirming sentence of five years’ imprisonment with conditional correctional supervision in terms of s 276(1)(i) of Criminal Procedure Act 51 of 1977 upon mother’s conviction of fraud.