June 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 June 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

A doctor’s duty to keep a patient informed and involved in her treatment

In Premier, KwaZulu-Natal v Sonny and Another 2011 (3) SA 424 (SCA), the Supreme Court of Appeal consider a doctor’s duty to inform and involve a patient in her treatment. The facts of the case were that a doctor had failed to inform a pregnant patient of the meaning of an ultrasound scan, which indicated possible Down’s syndrome, or of the importance of the patient returning for a second scan. This, coupled with a nurse’s later misdirection, resulted in the patient not returning for the scan, and not having further tests to diagnose the syndrome within the time allowed to terminate the pregnancy. The child was later born with Down’s syndrome, and the patient and her husband sued for the costs of maintaining their daughter.

 

State liability for the act of a policeman who is off-duty and on ‘standby’

In Minister of Safety and Security v F 2011 (3) SA 487 (SCA), a detective who was off-duty and on ‘standby’ gave a lift to a young girl and raped her. The girl later sued the State for damages, and the Supreme Court of Appeal considers if the State is liable for the acts of a policeman in these circumstances.

 

Review of a municipality’s actions and lapse of zoning rights

In Waenhuiskrans Arniston Ratepayers Association and Another v Verreweide Eiendomsontwikkeling (Edms) Bpk and Others 2011 (3) SA 434 (WCC), a ratepayers association sought to review a municipality’s decision to sell a property to a developer. The court considers inter alia whether the proceedings were instituted within the time prescribed in the Promotion of Administrative Justice Act 3 of 2000, and whether the zoning of the property had lapsed. 

 

Stay of an action to pursue a claim in arbitration

SOUTH AFRICAN CRIMINAL LAW REPORTS

Failure to disclose an interest in a transaction and fraud

Two directors of a company failed to disclose that they had a financial interest in certain transactions of the company, out of which they would make substantial profits. The Supreme Court of Appeal sets out guidelines for determining when non-disclosure amounts to fraud, and also the principles applicable to confiscation of such profits. S v Gardener and Another 2011 (1) SACR 570 (SCA); and National Director of Public Prosecutions v Gardener and Another 2011 (1) SACR 612 (SCA).

 

Magistrate’s expression of disbelief at accused’s plea explanation: the effect

In S v Klaas 2011 (1) SACR 630 (ECG), an accused explained his plea, and the magistrate then made a remark which suggested he did not believe the accused’s explanation. On review, the High Court considers whether the remark is a symptom of bias, and if so, its effect on the trial.

 

Warrants of arrest: requirements for validity

In Minister of Safety and Security v Kruger 2011 (1) SACR 529 (SCA), a policeman, using a warrant, arrested the respondent. The warrant form did not record the respondent’s alleged offence (the space provided on the form was left blank). The Supreme Court of Appeal considers inter alia the effect of this on the validity of the arrest.

 

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SOUTH AFRICAN LAW REPORTS

TABLE OF CASES

• Glenister v President of the Rupublic of South Africa and Others 2011 (3) SA 347 (CC)

• Premier, KwaZulu-Natal v Sonny and Another 2011 (3) SA 424 (SCA)

• Waenhuiskrans Arniston Ratepayers Association and Another v Verreweide Eiendomsontwikkeling (Edms) Bpk and Others 2011 (3) SA 434 (WCC)

• Brangus Ranching (Pty) Ltd v Plaaskem (Pty) Ltd 2011 (3) SA 477 (KZP)

• Minister of Safety and Security v F 2011 (3) SA 487 (SCA)

• African Dawn Property Finance 2 (Pty) Ltd v Dreams Travel and Tours CC and Others 2011 (3) SA 511 (SCA)

• Steyn and Others NNO v Blockpave (Pty) Ltd 2011 (3) SA 528 (FB)

• Acting Chairperson: Judicial Service Commission and Others v Premier of the Western Cape Province 2011 (3) SA 538 (SCA)

• Freedom Under Law v Acting Chairperson: Judicial Service Commission, and Others 2011 (3) SA 549 (SCA)

• Cadac (Pty) Ltd v Weber-Stephen Products Co and Others 2011 (3) SA 570 (SCA)
  

• Nedbank Ltd and Others v National Credit Regulator and Another 2011 (3) SA 581 (SCA)

• Gundwana v Steko Development and Others 2011 (3) SA 608 (CC)

• Aveng (Africa) Ltd (formerly Grinaker-LTA Ltd) t/a Grinaker-LTA Building East v Midros Investments (Pty) Ltd 2011 (3) SA 631 (KZD)

• Lan v OR Tambo International Airport Department of Home Affairs Immigration Admissions, and Another 2011 (3) SA 641 (GNP)

• Reynolds and Others NNO v Standard Bank of South Africa Ltd 2011 (3) SA 660 (W)

• Dumbe Transport CC v Alex Carriers 2011 (3) SA 664 (KZP)

FLYNOTES

GLENISTER v PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS (CC)

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

2010 SEPTEMBER 2 2011 MARCH 17

Constitutional law—The State—Duties—Duty to create independent body to fight corruption—Such obligation emanating from Constitution itself and from State’s constitutional obligation to comply with binding international agreements regulating fight against corruption—Legislation creating Directorate for Priority Crime Investigation (and disbanding Directorate of Special Operations) not ensuring adequate independence for DPCI in sense of sufficient insulation from political interference in its structure and functioning—Offending legislation declared invalid—South African Police Services Act 68 of 1995, Ch 6A.

Constitutional law—Legislation—Validity—South African Police Services Act 68 of 1995, Ch 6A—Chapter creating Directorate for Priority Crime Investigation (and disbanding Directorate of Special Operations)—Legislation in question unconstitutional due to its failure to ensure adequate independence for DPCI in sense of sufficient insulation from political interference in its structure and functioning.

 

PREMIER, KWAZULU-NATAL v SONNY AND ANOTHER (SCA)

MPATI P, NAVSA JA and BOSIELO JA

2011 FEBRUARY 15; MARCH 4

Delict—Specific forms—Professional negligence—Doctor—Doctor at public health facility having duty to keep patient fully informed and as involved as possible in treatment.

 

WAENHUISKRANS ARNISTON RATEPAYERS ASSOCIATION AND ANOTHER v VERREWEIDE EIENDOMSONTWIKKELING (EDMS) BPK AND OTHERS (WCC)

DE SWARDT AJ

2009 SEPTEMBER 22, 23, 25; NOVEMBER 19

Local authority—Town planning—Town-planning and zoning schemes—Rezoning—Lapsing of rezoning if property not utilised in terms of rezoning within two years—Intention to use insufficient—Visible manifestation on property required—After two years without such use, rezoning lapsing and cannot then be extended by council—Land Use Planning Ordinance 15 of 1985, s 16(2) (Cape).

Administrative law—Administrative action—Review—Delay in application for review—Effect—Ratepayers association applying for review of municipality’s decision to sell property to developer—Development dormant for long period—Municipality failing to adequately respond to association’s queries—Municipality’s attorneys giving undertaking that transfer would not be effected without notice, yet not giving such notice—Association acting with despatch once alerted by building excavations—Acting within required time—Promotion of Administrative Justice Act 3 of 2000, s 7(1)(b).

 

BRANGUS RANCHING (PTY) LTD v PLAASKEM (PTY) LTD (KZP)

VAN ZYL J, THERON J and NICHOLSON J

2009 AUGUST 3; 2010 SEPTEMBER 28

Practice—Pleadings—Summons—Service—On company—By delivery of copy of document to responsible employee of company at registered office of company—Where return reports service on person apparently in charge of premises at time of delivery, fact that summons served at registered office of company meaning that there had been substantial compliance with requirements of rule—It would not be proper exercise of court’s discretion to grant application for rescission of default judgment—Uniform Rules of Court, rules 4(1)(a)(v) and 42(1)(a).

Practice—Judgments and orders—Default judgment—Rescission—Good cause—Onus on applicant for rescission to establish good cause—Courts having shied away from defining 'good cause’, since by doing so they would limit discretion which rules deliberately made extensive—‘Good cause’ requiring evidence, firstly, that substantial defence exists and, secondly, that applicant has bona fide desire to raise defence if application granted—Uniform Rules of Court, rule 31(2)(b).

 

MINISTER OF SAFETY AND SECURITY v F (SCA)

NUGENT JA, MAYA JA, SNYDERS JA, BOSIELO JA and R PILLAY AJA

2010 NOVEMBER 11; 2011 FEBRUARY 22

Delict—Specific forms—Vicarious liability—Liability of employer for delictual acts of employee—Liability of State for criminal acts committed by police officer while off duty, but on ‘standby’ to resume duty if called upon to do so—Rape of 13-year-old girl who was stranded and whom officer had offered lift home—Officer neither engaged in the affairs of the State nor under a duty imposed by law to protect victim—State not vicariously liable.

 

AFRICAN DAWN PROPERTY FINANCE 2 (PTY) LTD v DREAMS TRAVEL AND TOURS CC AND OTHERS (SCA)

PONNAN JA, TSHIQI JA and MAJIEDT JA

2011 MARCH 14, 30

Interest—Usury—What constitutes—Common law providing that for transaction to be usurious, it must be tainted with extortion or oppression, or something akin to fraud—Common-law rule passing constitutional muster and still applicable.

 

STEYN AND OTHERS NNO v BLOCKPAVE (PTY) LTD (FB)

RAMPAI J

2010 OCTOBER 21

Trust and trustee—Trustee—Powers—Authority to bind trust—Multiple trustees—Trust acting through trustees and all trustees required to act together on behalf of trust—Trust deed specifying that decision of trust to be taken by majority vote—Three trustees appointed, but meetings often attended by only two trustees, while third trustee unaware of meetings or their agendas—Decisions taken in absence of third trustee and without her knowledge irregular.

Trust and trustee—Trust—Nature—Trust functioning in internal and external spheres—Whereas debate and dissension permitted in internal sphere, trust to present united front to external sphere once resolution passed by majority—Only full complement of trustees, and not majority acting on its own, entitled to pass valid resolutions—Adverse impact on trust of marginalisation of one of trustees.

Trust and trustee—Trust—Legal proceedings by and against—Resolution to authorise institution of legal proceedings taken by majority of trustees in absence, and without knowledge, of marginalised trustee—Resolution invalid—Trust not properly before court—Resignation of marginalised trustee and appointment of substitute once proceedings already commenced not curing incapacity of trust.

 

ACTING CHAIRPERSON: JUDICIAL SERVICE COMMISSION AND OTHERS v PREMIER OF THE WESTERN CAPE PROVINCE (SCA)

HARMS DP, CLOETE JA, LEWIS JA, PONNAN JA and MAJIEDT JA

2011 MARCH 18, 31

Constitutional law—Administration of justice—Judicial Service Commission—Composition—Questions of judicial misconduct—Premier forms part of JSC when complaints against High Court judge of that province are considered—Majority of members means majority of members entitled to be present according to Constitution, and not merely majority of those present and voting—Constitution, s 178.

 

FREEDOM UNDER LAW v ACTING CHAIRPERSON: JUDICIAL SERVICE COMMISSION, AND OTHERS (SCA)

STREICHER JA, BRAND JA, CACHALIA JA, THERON JA and SERITI JA

2011 MARCH 22, 31

Constitutional law—Administration of justice—Judicial Service Commission—Complaint of judicial misconduct—Allegation by Constitutional Court judges that High Court judge attempted to improperly influence a judgment—JSC faced with conflicting versions—Dismissing complaint without formal enquiry and cross-examination—Abdicating constitutional duty to investigate complaint properly—Decision reviewed and set aside.

 

CADAC (PTY) LTD v WEBER-STEPHEN PRODUCTS CO AND OTHERS (SCA)

HARMS DP, NUGENT JA, PONNAN JA, SHONGWE JA and R PILLAY AJA

2010 SEPTEMBER 3, 16

Counterfeit goods—Ambit of Act—Counterfeit Goods Act aimed at trademark and copyright infringements of criminal nature—Not to be abused by rights holders to stifle competition—Disputes about boundaries of copyright and trademark rights to be settled by conventional litgation under applicable Acts—Counterfeit Goods Act 37 of 1997.

Counterfeit goods—Seizure—Wrongful seizure—Claim for compensation—Claimant may by way of motion proceedings seek inquiry into quantum of damages stemming from wrongful seizure—Counterfeit Goods Act 37 of 1997, ss 10(1) and 17(1).

Damages—Pleading—Motion proceedings—Quantification—Application for separate inquiry into quantum competent in motion proceedings.

Prescription—Extinctive prescription—Interruption—By delay in prosecution—No fixed time limit within which claim to be successfully prosecuted—Extinctive prescription limiting time within which proceedings to be instituted, but once instituted their continuance governed by rules of court—Delay in prosecution not leading to extinction of claim by prescription—Prescription Act 68 of 1969, s 15.

 

NEDBANK LTD AND OTHERS v NATIONAL CREDIT REGULATOR AND ANOTHER (SCA)

MPATI P, NAVSA JA, BRAND JA, MAYA JA and MALAN JA

2011 FEBRUARY 21; MARCH 28

Credit agreement—Consumer credit agreement—Debt review—Application—Consumer may not apply for review of agreement if credit provider has ‘proceeded to take . . . steps . . . in section 129’ to enforce it—Where credit provider gives notice under s 129(1)(a), provider has ‘proceeded to take . . . steps’—National Credit Act 34 of 2005, ss 86(2) and 129(1)(a).

Credit agreement—Consumer credit agreement—Debt review—Procedure—If debt counsellor concludes consumer is over-indebted, counsellor must issue proposal to magistrates’ court—Court must then conduct hearing, and may make any of orders In s 87(1)—National Credit Act 34 of 2005, ss 86(7)(c)and 87(1).

Credit agreement—Consumer credit agreement—Debt review—Referral to magistrates’ court—Debt counsellor’s referral is application within meaning of Magistrates’ Courts Act and Rules and to be treated as such—National Credit Act 34 of 2005, ss 86(7)(c)and 86(8)(b).

Credit agreement—Consumer credit agreement—Cost of credit—Once amounts (b)–(g) accruing during default, whether paid or not, equal in aggregate unpaid balance of principal debt at time default occurs, no further charges may be levied—National Credit Act 34 of 2005, ss 101(1)(b)–(g).

Credit agreement—Consumer credit agreement—Interest—In duplum rule—Section in effect abolishing rule for agreements within ambit of Act—National Credit Act 34 of 2005, s 103(5).

 

GUNDWANA v STEKO DEVELOPMENT AND OTHERS (CC)

MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MOGOENG J, NKABINDE J, VAN DER WESTHUIZEN J, YACOOB J and MTHIYANE AJ

2011 FEBRUARY 10; APRIL 11

Execution—Sale in execution—Mortgaged immovable property—Sale of residential property for recovery of outstanding bond repayments—Constitutionality of procedure—Rules and practice which allow registrar to declare mortgaged property specially executable after default judgment on money debt being unconstitutional for lack of judicial oversight—Bondholders who wish to execute on mortgage bond to approach court to show why sale of home justifiable—Constitution, s 26 read with Uniform Rules of Court, rules 31(5)(b)and 45(1).

 

AVENG (AFRICA) LTD (formerly GRINAKER-LTA LTD) t/a GRINAKER-LTA BUILDING EAST v MIDROS INVESTMENTS (PTY) LTD (KZD)

WALLIS J

2011 FEBRUARY 11; MARCH 8

Arbitration—Stay of action—Agreement to refer dispute to arbitration—Party that instituted action seeking stay of proceedings to pursue claim by way of arbitration—Commencing litigation not entailing abandonment of right to arbitration under agreement—Party that commenced litigation free to abandon litigation and proceed to arbitration, but not entitled to seek stay of litigation whilst it pursues its claim by way of arbitration—Commencing of litigation breach of party’s obligations under arbitration clause—Untenable that party in breach of arbitration agreement claiming to enforce such agreement.

 

LAN v OR TAMBO INTERNATIONAL AIRPORT DEPARTMENT OF HOME AFFAIRS IMMIGRATION ADMISSIONS, AND ANOTHER (GNP)

R DU PLESSIS AJ

2009 NOVEMBER 20, 21, 29 2010 OCTOBER 11

Contempt of court—Disobedience of court order—What constitutes—Person acting in contempt of court order for period of time, and thereafter complying with order after much force and persuasion—Offence of contempt of court committed in respect of period before order complied with—Once requirements of offence established for that period, and no valid defence raised, positive finding of contempt of court should be made—Contempt of court proceedings directed not only at perpetrator, but also at protection of courts, their order and integrity of court system.

 

REYNOLDS AND OTHERS NNO v STANDARD BANK OF SOUTH AFRICA LTD (W)

BLIEDEN J

2008 SEPTEMBER 1, 10

Insolvency—Insolvent—Unlawful alienations and preferences—Proceedings for setting-aside of—Proceedings by creditor in name of liquidators of company in liquidation—Discovery of documents by plaintiffs—Discovery can only be made by liquidators as plaintiffs, and not by creditor—Insolvency Act 24 of 1936, s 32(1)(b)and Uniform Rules, rule 35(1).

 

DUMBE TRANSPORT CC v ALEX CARRIERS (KZP)

WALLIS J

2010 OCTOBER 20–22, 29

Delict—Reduction and apportionment of damages—Joint wrongdoers—Apportionment of damages—Costs—Issues of liability and quantum separated—Issue of liability determined on 75:25 basis in favour of plaintiff—Trial on issue of liability fought on which version of collision should be accepted—Plaintiff’s version accepted—Before trial plaintiff tendering in terms of rule 34(1) apportionment of 75:25 in favour of plaintiff and also that defendant should pay 75% of plaintiff’s costs and defendant pay 25% of defendant’s costs—Effect of tender disproportionate even to apportionment of responsibility made—Plaintiff not obliged to accept tender—Plaintiff entitled to costs of suit.

 

SOUTH AFRICAN CRIMINAL LAW REPORTS

TABLE OF CASES

• Minister of Safety and Security v Kruger 2011 (1) SACR 529 (SCA)

• S v Dyantyi 2011 (1) SACR 540 (ECG)

• S v Mkhize 2011 (1) SACR 554 (KZD)

• S v Gardener 2011 (1) SACR 570 (SCA)

• Reynolds v Minister of Safety and Security 2011 (2) SACR 594 (WCC)

• National Director of Public Prosecutions v Gardener 2011 (1) SACR 612 (SCA)

• S v Block 2011 (1) SACR 622 (NCK)

• S v Klaas 2011 (1) SACR 630 (ECG)

FLYNOTES

MINISTER OF SAFETY AND SECURITY v KRUGER (SCA)

NUGENT JA, CACHALIA JA and SHONGWE JA

2011 FEBRUARY 16; MARCH 8

Arrest—Arrest on warrant—Validity of warrant—Warrant not stating offences in respect of which it was issued—Implicit in s 39(2) and s 43(2) of Criminal Procedure Act 51 of 1977 that warrant should reflect offence in respect of which it was issued—Warrant failing to do so materially defective and invalid—Immaterial that offences apparent from another source, even if readily at hand.

Arrest—Arrest on warrant—Warrant invalid—Police officer executing warrant not knowing that warrant invalid—Section 55(1) of South African Police Service Act 68 of 1995 exempting such police officer from liability in respect of such act—Section not rendering unlawful act lawful—State as employer of police officer remaining vicariously liable for consequences of unlawful act.

Arrest—Arrest on warrant—Execution of warrant—To be executed with due regard to dignity and privacy of person being arrested—Police censured for turning arrest into showpiece by permitting, or inviting, television cameraman to invade premises of person being arrested, in order to witness arrest.

 

S v DYANTYI (ECG)

PETSE ADJP, VAN ZYL J and SANDI J

2010 NOVEMBER 22; DECEMBER 6

Sentence—Prescribed sentences—Minimum sentences—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—Substantial and compelling circumstances justifying lesser sentence than prescribed minimum—Point of departure prescribed minimum—In deciding whether substantial and compelling circumstances exist, all factors traditionally considered to be taken into account, including mitigating and aggravating factors—If court concluding that minimum sentence so disproportionate that it would result in injustice, it would be entitled to impose lesser sentence; but specified sentences not to be departed from lightly or for flimsy reasons.

Rape—Sentence—Aggravating factors—Seriousness of rape aggravated by fact accused took advantage of victim who was mentally retarded and thus vulnerable member of community.

Rape—Sentence—Determination of proper sentence—Crimes such as rape and abuse of women and children viewed by public with revulsion—This factor to be taken into account by courts—Sentences imposed should reflect such revulsion at commission of such crimes—Courts not thereby abdicating their sentencing discretion and allowing themselves to be swayed by public opinion; rather, it is to say that public interest dictates that society’s concerns and disapproval of certain crimes should be reflected in sentences imposed for offences striking at heart of values and ethos of Constitution.

Sentence—Imposition of—Factors to be taken into account—Rehabilitation—Prospect of—Rehabilitation requiring convicted person to express contrition, accept gravity of his/her criminal act and commit to return to path of rectitude—Without contrition, hope of rehabilitation illusory and an unrealistic expectation.

 

S v MKHIZE (KZD)

GOVINDASAMY AJ

2010 SEPTEMBER 13

Evidence—Confession—Admissibility of—Confession obtained from accused during his unlawful detention by police—Detention unlawful for want of compliance with s 35(1)(d)of Constititution, 1996, and/or s 50(1) of Criminal Procedure Act 51 of 1977—Such confession inadmissible as being in violation of accused’s fundamental right to fair trial—Judicial officer having no discretion to admit such confession.

Fundamental rights—Right to fair trial—Confession—Confession obtained from accused during his unlawful detention by police—Detention unlawful for want of compliance with s 35(1)(d)of Constititution, 1996, and/or s 50(1) of Criminal Procedure Act 51 of 1977—Such confession inadmissible as being in violation of accused’s fundamental right to fair trial—Judicial officer having no discretion to admit such confession.

 

S v GARDENER AND ANOTHER (SCA)

HEHER JA, CACHALIA JA and SERITI JA

2011 FEBRUARY 18; MARCH 18

Fraud—Elements of—Prejudice—Intention to prejudice—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.

Sentence—Suspension of—When appropriate—Deterrent effect—Lengthy direct imprisonment itself is deterrent to recidivism, and additional period of suspension serving no purpose—Especially so when person convicted is of mature years, or circumstances of crime are peculiar or unlikely to be repeated.

 

REYNOLDS AND ANOTHER v MINISTER OF SAFETY AND SECURITY (WCC)

BOZALEK J

2010 NOVEMBER 15–18, 22; 2011 FEBRUARY 8

Arrest—Legality of—Arrest without warrant—Criminal Procedure Act 51 of 1977, s 40(1)—Arrest made in situation of domestic violence—Jurisdictional facts for lawful arrest set out—Arrestor must be peace officer and have entertained suspicion—Suspicion must be that arrestee committed act of domestic violence as contemplated in s 1 of Domestic Violence Act 116 of 1998—Act must be offence in which violence an element—Suspicion must rest on reasonable grounds—If such jurisdictional facts proved, question arises whether arrestor properly exercised discretion to arrest, that is, whether discretion was exercised in good faith, rationally and not arbitrarily.

Arrest—Legality of—Arrest without a warrant—Criminal Procedure Act 51 of 1977, s 40(1)—Arrest made in situation of domestic violence—Whether arresting officer properly exercised discretion to arrest—Domestic-violence situation fraught with difficult decisions to be made by arresting officer—Not function of arresting officer to arrest party to domestic dispute because such party not falling in with solution to proprietary dispute, which arresting officer feels would be best—Such arrest made for ulterior purpose, is not bona fide and is in fraudem legis—Arrest therefore unlawful.

 

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

HEHER JA, CACHALIA JA and SERITI JA

2011 FEBRUARY 18; MARCH 18

Search and seizure—Confiscation order in terms of Prevention of Organised Crime Act 121 of 1998—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—POCA, s 18.

 

S v BLOCK (NCK)

MAJIEDT J and OLIVIER J

2010 NOVEMBER 5, 12

Review—In what cases—Where result of criminal proceedings in inferior court attacked, appeal appropriate recourse; where method of proceedings assailed, review proper remedy—Gross misdirection on facts and/or law may constitute ground of appeal, but not of review—In such instance, s 24(1) of Supreme Court Act 59 of 1959 not assisting applicant.

Review—Powers of court—Such powers considerably extended by Constitution, 1996, resulting in greater flexibility in application of s 24 of Supreme Court Act 59 of 1959—Ultimately, what must be determined is fairness of proceedings.

Bail—Application for—Postponement of—Review of order postponing bail application—Review sought in terms of s 24(1)(c)of Supreme Court Act 59 of 1959—In casu, ground of review that magistrate had grossly misdirected himself on facts and/or law—Such constituting ground of appeal, not of review—Section 24(1) not assisting applicant for review.

Bail—Application for—‘Interests of justice’—Criterion of ‘interests of justice’ in s 35(1)(f)of Constitution, 1996, and s 50(6)(d)(v) of Criminal Procedure Act 51 of 1977—Both trial-related and extraneous factors to be taken into account—Weighing up accused of interests of liberty against factors suggesting bail be refused in interests of society—Such criterion contrasted with ‘exceptional circumstances’ criterion required by s 60(11)(a)of CPA, which more stringent test than ‘interests of justice’.

 

S v KLAAS (ECG)

ROBERSON J and SIBEKO AJ

2010 MARCH 5

Fundamental rights—Right to fair trial—Bias of judicial officer—Magistrate making remark after accused’s plea explanation, indicating disbelief in accused’s defence—Such indicating that magistrate had already made up his mind that accused’s version would be rejected and accused found guilty—Proceedings sham and nullity—Accused not having had fair trial—Irrelevant that trial thereafter apparently conducted fairly—Conviction set aside.