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January 2012

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases of interest in the January reports. Also included below are the table of cases and flynotes.

We wish all our readers a peaceful holiday and a prosperous new year. 

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

SOUTH AFRICAN LAW REPORTS

Evidence: the admissibility of statements made at s 417 inquiries in later proceedings

In O’Shea NO v Van Zyl NO and Others 2012 (1) SA 90 (SCA), the liquidators of a company organise an enquiry under s 417 of the Companies Act 61 of 1973, and at it they question O, a trustee of a trust. In response to a question O states that the company made a loan to the trust. The liquidators later apply to sequestrate the trust and their evidence that they are a creditor is O’s statement. In issue on appeal is whether the statement made at the enquiry is admissible at the later sequestration proceedings.

Mineral rights: whether deprivations of unused common-law coal rights are expropriations

In Agri South Africa v Minister of Minerals and Energy 2012 (1) SA 171 (GNP), a company holds coal rights on certain farms, but has no prospecting permit or mining authorisation under the Minerals Act 50 of 1991. In April 2004 the members resolve to wind it up and then in May 2004 the Mineral and Petroleum Resources Development Act 28 of 2002 (the Act) commences. Later that year the liquidators sell the rights to a third party for R750 000. However, the lawyers of both parties later give opinions that the Act has caused the rights to cease to exist and that the sale is void. So the liquidators return the R750 000 and they apply to the Department of Mineral Resources for compensation, based on the claim that the State has expropriated the rights. At this time the plaintiff identifies the claim as suitable for a test case, pays the liquidators R250 000, and they cede the claim to it. The Department rejects the claim and plaintiff begins proceedings. In issue is whether the Act has deprived the company of its coal rights; if so, whether this is an expropriation; and if so, whether the company has a right to compensation.

Trusts: whether it's possible to wind up trusts under the Companies Act 71 of 2008

In Melville v Busane and Another 2012 (1) SA 233 (ECP), an unopposed application for the winding up of a trust under the Companies Act 71 of 2008, the court has to decide whether it is competent for it to do so. Formerly the appropriate remedy had been sequestration, as it had been determined that trusts fell within the definition of a ‘debtor’ in s 2 of the Insolvency Act. Here, the court considers the argument that since the new Companies Act defines ‘juristic person’ to include a trust, trusts can now be placed under liquidation.

SOUTH AFRICAN CRIMINAL LAW REPORTS

Sentencing for theft and attempted theft

The accused had pre-planned the theft of a motor vehicle, and had obtained a specialised instrument for this purpose. His theft was only thwarted by an alarm and the arrival of the police. In such circumstances there should be no real difference in sentencing for theft and attempted theft. S v Nxopo 2012 (1) SACR 13 (ECG)

Inadmissible evidence not always grounds for appeal

Where there are doubts as to the admissibility of evidence, such will not be a live controversy when even without this evidence the balance of the evidence still establishes guilt beyond reasonable doubt. The court should avoid involving itself in abstract, academic or hypothetical questions.  S v Shilakwe 2012 (1) SACR 16 (SCA)

Search warrant: requirements for validity

The appellant had challenged the validity of a search warrant on several grounds. The Supreme Court of Appeal examines the issues of: an over-broad warrant; the accuracy of the description of the premises; where an affidavit referred to in warrant is not annexed to the warrant when handed over on request; and where the police seize goods not covered by the warrant.  Polonyfis v Minister of Police and Others NNO 2012 (1) SACR 57 (SCA)

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SOUTH AFRICAN LAW REPORTS

TABLE OF CASES

FLYNOTES

MKHIZE v UMVOTI MUNICIPALITY AND OTHERS (SCA)

NAVSA JA, LEWIS JA, SNYDERS JA, MALAN JA and MEER AJA

2011 SEPTEMBER 8, 30

Execution—Sale in execution—Immovable property—Judicial oversight— When required—Required in all cases of execution against immovable property with aim of ensuring that constitutional right to adequate housing not violated—Absence of oversight rendering execution procedures invalid only if right to housing in fact compromised—Execution conducted in absence of judicial oversight standing until set aside—Constitution, s 26(1) read with Magistrates’ Courts Act 32 of 1944, s 66(1)(a).


MDA v LAW SOCIETY OF THE CAPE OF GOOD HOPE (SCA)

BRAND JA, CACHALIA JA, MALAN JA, MAJIEDT JA and SERITI JA

2011 SEPTEMBER 15, 26

Attorney—Law society—Powers of inspection—Ambit—Inspection for purposes of misconduct enquiry—Power of law society to inspect prescribed documentation and accounting records kept by attorney—Powers widely framed and not limited to documents relating to specific complaint against attorney—Law society may conduct wide-ranging investigation of attorney’s practice—Attorneys Act 53 of 1979, s 70(1) and s 78(5).


SOUTH AFRICAN AIRWAYS (PTY) LTD v COMAIR LTD AND ANOTHER (CAC)

DAVIS JP, PATEL JA and ZONDI AJA

2010 DECEMBER 2; 2011 APRIL 11

Trade and competition—Competition—Unlawful competition—Competition tribunal—Referral to—Double-jeopardy protection—Ambit—Temporal approach adopted—Respondent protected from double jeopardy relating to substantially same or similar conduct taking place in same time period as conduct forming subject-matter of formerly completed proceedings—Competition Act 89 of 1998, s 67(2).

Trade and competition—Competition—Unlawful competition—Prohibited practices—Abuse of dominance—What constitutes—Incentive schemes—Whether amounting to abuse of dominance in form of exclusionary act—Actual or potential anti-competitive effect required—Schemes under which dominant airline increased commissions to travel agents in return for increasing airline’s sales—Amounting to incentives to travel agents to divert passengers to airline from its rivals—Conduct having foreclosure effect in market—Constituting abuse of dominance—Competition Act 89 of 1998, s 8(d)(i).

Trade and competition—Competition—Unlawful competition—Prohibited practices—Abuse of dominance—Proof—Complainant to show anti-competitive effect—Such established by showing actual competitive harm or that practice having potential to substantially foreclose market to competition—Competition Act 89 of 1998, s 8.


MV PASQUALE DELLA GATTA

MV FILIPPO LEMBO

IMPERIAL MARINE CO v DEIULEMAR COMPAGNIA DI NAVIGAZIONE SPA (SCA)

NAVSA JA, BRAND JA, LEWIS JA, LEACH JA and WALLIS JA

2011 AUGUST 18; SEPTEMBER 15

Shipping—Admiralty law—Maritime claim—Enforcement—Security arrest—Claimant to establish prima facie case—Semble: Facts in opposing affidavits that claimant does not contradict should be taken into account—Arrest of ship having serious consequences—Court ought not to shut its eyes to relevant factual material—Both parties entitled to fair hearing—Admiralty Jurisdiction Regulation Act 105 of 1983, s 5(3).

 

O’SHEA NO v VAN ZYL AND OTHERS NNO (SCA)

HEHER JA, MHLANTLA JA, BOSIELO JA, THERON JA and MEER AJA

2011 SEPTEMBER 9, 28

Evidence—Admissibility—Statement from s 417 enquiry into affairs of company at later proceedings—Liquidators of company summoning trustee of trust to enquiry; trustee making statement adverse to trust—Whether statement admissible in later proceeding by liquidators against trust—Answer in negative—Companies Act 61 of 1973, s 417.

 

LOUW v ROAD ACCIDENT FUND (GSJ)

BEKKER AJ

2011 MARCH 1–4; AUGUST 12

Motor vehicle accidents—Road Accident Fund—Rights and duties—Duty if not satisfied with serious-injury assessment contained in RAF4 report—Must either reject report and furnish party with reasons, or direct that party submit to further assessment—Fact that regulations not providing for time period within which RAF must take such steps not meaning that it can avoid paying general damages by failing to respond to RAF4 report—RAF to respond within 60 days of submission of RAF4 report.

Costs—Special order—When to be awarded—Dilatory and obstructive conduct of legal representatives of RAF in road accident claim—Failing to respond to questions put by claimant at pre-trial conference, conceding liability only at trial roll call, and challenging plaintiff’s expert evidence on quantum without tendering countervailing evidence—Also failing to communicate offer of settlement to plaintiff and acting without proper instructions from RAF—Tactics employed by RAF’s legal team slated as improper and reprehensible—Costs de bonis propriis awarded against RAF’s attorneys in respect of unnecessary prolongation of trial.

 

HANNOVER REINSURANCE GROUP AFRICA (PTY) LTD AND ANOTHER v GUNGUDOO AND ANOTHER (GSJ)

TSOKA J

2011 MARCH 22–24; APRIL 21

Insolvency—Compulsory sequestration—Provisional sequestration—Application—Furnishing of copy of petition to employees of debtor—Requirements—Compliance requiring knowledge of, or at least reasonable grounds to suspect, existence of employees—Insolvency Act 24 of 1936, s 9(4A)(a).

Insolvency—Compulsory sequestration—Final sequestration—Court’s discretion—Standard of proof—Onus on sequestrating creditor to show on balance of probabilities that requirements for final sequestration met—Debtor under evidentiary burden to show that application for confirmation of provisional order being resisted on reasonable and bona fide grounds—If debtor successful, provisional order to be discharged and application dismissed.


NAIDOO AND ANOTHER v MATLALA NO AND OTHERS (GNP)

SOUTHWOOD J

2011 AUGUST 24; SEPTEMBER 20

Insolvency—Voluntary surrender—Rescission—Abuse of process—Debtor surrendering estate in order to defeat sale in execution and subsequent transfer of his immovable property—Concealing sale from court and application for surrender from purchaser—Conduct fraudulent—Resulting sequestration order set aside on application by purchaser of property—Insolvency Act 24 of 1936, s 149(2).

Insolvency—Sequestration order—Rescission—Application—Locus standi—Application by purchaser of debtor’s immovable property—Whether applicant having required direct and substantial interest—Property purchased at sale in execution held shortly before sequestration, following voluntary surrender, of debtor’s estate—Applicant not informed of application for surrender—Sequestration would vest dominium of property in insolvent estate—Required interest and locus standi established—Insolvency Act 24 of 1936, s 149(2).

Costs—Attorney and client costs—When to be awarded—Vexatious opposition to litigation and abuse of process—Provisional trustee of insolvent estate (attorney) resisting application for rescission of sequestration order on spurious grounds—Having so acted in furtherance of abuse of sequestration process by insolvent—Ordered to pay costs of application on attorney and client scale.

 

AVUSA PUBLISHING EASTERN CAPE (PTY) LTD v QOBOSHIYANE NO AND OTHERS (ECP)

DUKADA AJ

2011 SEPTEMBER 1; OCTOBER 20

Administrative law—Access to information—Access to information held by public body—Request—Refusal—Whether justified—Onus on public body to show adequate reasons for refusal when viewed in light of ‘culture of justification’—Public-interest override—Public body to show that adverse effect or harm which might arise from disclosure clearly outweighing public interest in disclosure—Time of essence in such matters—Promotion of Access to Information Act 2 of 2000, ss 44(1) and 46.

 

AGRI SOUTH AFRICA v MINISTER OF MINERALS AND ENERGY (GNP)

DU PLESSIS J

2011 MARCH 7–18; APRIL 28

Mines and minerals—Mineral rights—Expropriation—What constitutes—Whether MPRDA depriving owner of unused common-law coal rights of those rights; whether such constituting expropriation; and whether right to compensation accruing—Answer in affirmative—Mineral and Petroleum Resources Development Act 28 of 2002.

 

MTHIMUNYE v RCP MEDIA AND ANOTHER (T)

DU PLESSIS J

2007 FEBRUARY 27; MARCH 6

Defamation—Remedies—Apology—Inadequate apology—Apology not addressing full width of defamation—Plaintiff entitled to damages.

Defamation—Damages—Assessment—Article in newspaper to effect that plaintiff found guilty of sexual harassment of colleague; lecherous; party to injudicious use of taxpayers’ money in his defence; and complicit in failure of employer to take complaint seriously—Defendants publishing apology limited to allegation of sexual harassment—Not going far enough to remedy harm to plaintiff’s reputation—Plaintiff entitled to damages—Award of R35 000 to plaintiff.

 

PONELAT v SCHREPFER (SCA)

HEHER JA, MAYA JA, MALAN JA, MAJIEDT JA and MEER AJA

2011 AUGUST 31; SEPTEMBER 29

Partnership—Universal partnership—Generally—Can exist if necessary requirements for its existence present, regardless whether parties married, engaged or cohabiting.

 

CHIEF EXECUTIVE OFFICER, SOUTH AFRICAN SOCIAL SECURITY AGENCY, AND OTHERS v CASH PAYMASTER SERVICES (PTY) LTD (SCA)

HARMS DP, PONNAN JA, SNYDERS JA, TSHIQI JA and BERTELSMANN AJA

2010 NOVEMBER 16; 2011 MARCH 11

Government procurement—Procurement process—Departure from—Validity—Applicable treasury regulations prescribing written reasons for departure from competitive bidding process—Non-compliance not fatal—Public Finance Management Act 1 of 1999, regs ito s 76, reg 16A6.4.

 

MAJOLA v NITRO SECURITISATION 1 (PTY) LTD (SCA)

BRAND JA, PONNAN JA, BOSIELO JA, PETSE AJA and PLASKET AJA

2011 SEPTEMBER 19, 30

Appeal—Failure to appear by appellant—Discretion of court—Though default position being dismissal of appeal, court may also order striking from roll or postponement—Factors to be taken into account including facts and circumstances surrounding appellant’s absence, position of respondent and appellant’s prospects of success.

Appeal—Leave to appeal—Refusal—When appropriate—Appeal against grant of summary judgment—Court hearing application for summary judgment should be slow to defeat purpose of summary judgment procedure by granting leave to appeal, where satisfied that defendant has no bona fide defence.

 

MELVILLE v BUSANE AND ANOTHER (ECP)

SCHOEMAN J

2011 JULY 26; AUGUST 18

Trust and trustee—Trust—Insolvency—Whether competent to liquidate trust in terms of new Companies Act—Answer in negative—Companies Act 71 of 2008, s 1 sv ‘company’, read with Sch 5 item 9.

 

PICK ’N PAY RETAILERS (PTY) LTD AND OTHERS v EAYRS AND OTHERS NNO (SCA)

BRAND JA, MALAN JA, LEACH JA, SERITI JA and WALLIS JA

2011 SEPTEMBER 6, 26

Sale—Shares—Right of pre-emption—Exercise—After conclusion of sale of shares agreement, seller offering shares to holder of right of pre-emption—Holder contractually required to exercise right within 30 days—Holder not exercising right but concluding agreement with seller extending time for exercise of right of pre-emption—On strict application of maxim qui prior est tempore potior est jure, rights of purchaser under sale of shares agreement to be preferred.

Company—Shares and shareholders—Shares—Sale and transfer—After conclusion of sale of shares agreement, seller offering shares to holder of right of pre-emption—Holder contractually required to exercise right within 30 days—Holder not exercising right but concluding agreement with seller extending time for exercise of right of pre-emption—On strict application of maxim qui prior est tempore potior est jure, rights of purchaser under sale of shares agreement to be preferred.

 

EXPLOITATIE- EN BELEGGINGSMAATSCHAPPIJ ARGONAUTEN 11 BV AND ANOTHER v HONIG (SCA)

MTHIYANE JA, VAN HEERDEN JA, BOSIELO JA, LEACH JA and MEER AJA

2011 SEPTEMBER 13, 30

Practice—Intermediate proceedings—Security for costs—Application for additional security—When application to be made—Application can be made at any stage of proceedings—But unreasonable delay may be decisive in exercise of court’s discretion—Wrong to allege that party may not apply for security for costs at late stage of proceedings—Uniform Rules of Court, rule 47.

Practice—Intermediate proceedings—Security for costs—Respondent’s financial status—If relevant to question of security, respondent to make sufficient disclosure of its assets and liabilities to enable court to make proper assessment thereof in exercise of its discretion—In case of private company, this done by disclosure of current balance sheet.

Practice—Intermediate proceedings—Security for costs—Respondent a peregrinus—Fact that applicant might have to proceed abroad if he obtains costs order against peregrinus, with associated uncertainty, inconvenience and that it would be substantially more expensive to do so, is one of fundamental reasons why peregrinusshould provide security.

Practice—Intermediate proceedings—Security for costs—Respondent having bleak prospects of success in main proceedings and distinct possibility of being ordered to pay applicant’s costs therein—Such constituting factor making it all the more important for applicant to be secured.

 

EVERFRESH MARKET VIRGINIA (PTY) LTD v SHOPRITE CHECKERS (PTY) LTD (CC)

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

2011 MAY 10; NOVEMBER 17

Constitutional law—Common law—Development—Common-law principles of contract—Whether principles of good-faith and ubuntu to be imported into law of contract—Semble: Generally desirable that law of contract be developed by infusion of such principles—Case for doing so in particular situation to be properly pleaded.

 

DE LANGE AND ANOTHER v ESKOM HOLDINGS LTD AND OTHERS (GSJ)

KGOMO J

2011 APRIL 11; JULY 29

Administrative law—Access to information—Request for access—Grounds for refusal—Mandatory protection of commercial or confidential information of third party—Public-interest override—Public body bearing burden of proving that secrecy justified—Must allege sufficient facts to justify refusal of access—However, once public-interest override triggered, disclosure to follow—Promotion of Access to Information Act 2 of 2000, s 46.

Electricity—Pricing—Confidentiality—Long-term bulk-purchase agreement between Eskom and major customer—Whether Eskom may refuse request for disclosure of pricing formula employed on ground of confidentiality—Whether public-interest override applying—Seen against background of electricity-supply interruptions, persistent tariff increases, and vast amount of electricity consumed by customer, public-interest override applicable—Eskom ordered to furnish requested records—Promotion of Access to Information Act 2 of 2000, s 46.

 

RESNEKOV v COHEN (WCC)

GRIESEL J

2011 AUGUST 23, 24

Servitude—Praedial or personal—No praedial servitude without dominant tenement—In cases of uncertainty, presumption in favour of personal servitude.

Servitude—Personal servitude—Conversion into perpetual right inuring to beneficiary’s successors—Whether possible by agreement—No direct authority for proposition that parties may by agreement convert personal servitude into perpetual right, while ample authority existing for general principle that right conferred by personal servitude inescapably attached to beneficiary and may not be alienated or transferred to heirs—Court declining invitation to develop law to allow conversion of personal servitude into alienable right.

 

SOUTH AFRICAN CRIMINAL LAW REPORTS

TABLE OF CASES

FLYNOTES

S v KRIEL (SCA)

CLOETE JA, CACHALIA JA and MEER AJA

2011 MAY 26; JUNE 1

Appeal—Leave to appeal—In what cases—Against High Court’s refusal of petition for leave to appeal against sentence imposed by regional court—Where full bench of High Court concerned granting leave to appeal directly to Supreme Court of Appeal—Such order wrong—Sentence imposed in regional court may only be appealed against in SCA when appeal against such sentence had failed in High Court.

Traffic offences—Driving under influence of liquor—Contravention of s 65(1)(a)of National Road Traffic Act 93 of 1996—Sentence—Imposition of—Duplication of punishment—Where accused convicted of driving under influence of liquor and of culpable homicide, having caused collision while driving in such condition—When considering appropriate sentence for driving under influence of liquor, in order to avoid duplication of punishment, it had to be ignored that two people died in such collision.

 

S v KHOLOANE (FB)

RAMPAI J and FISCHER AJ

2011 FEBRUARY 10

Plea—Plea of guilty—Summary conviction after plea of guilty in terms of s 112(1)(a)of Criminal Procedure Act 51 of 1977—Questioning of undefended and unsophisticated accused, as if case fell under s 112(1)(b), criticised—Judicial questioning in terms of s 112(1)(a)should be limited to where proposed sentence would not exceed statutory limit set out therein—Section 112(1)(b)not to be used as corrective procedure for sentences not falling within scope of s 112(1)(a)—Configuration of two procedures undesirable, blurring distinction between them.

Review—Powers of court—Where accused summarily convicted in magistrates’ court in terms of s 112(1)(a)of Criminal Procedure Act 51 of 1977 but fines imposed in excess of that provided for therein, viz R1500—Wrong for court on review to adjust sentence ex post facto without considering lawfulness of conviction—Section 112(1)(a)procedure may only be used if presiding officer formed opinion that offence charged was minor crime, that accused would have option of paying fine to stay out of prison and that fine would not exceed statutory limit of R1500.

 

S v NXOPO (ECG)

EBRAHIM J and GRIFFITHS J

2011 JANUARY 26; FEBRUARY 10

Theft—Attempted theft—Sentence—Imposition of—Where accused convicted of attempted theft of motor vehicle—Differentiation between sentences for attempted theft and actual theft not justified where, in circumstances, no real distinction between attempted and actual theft—In present case, where theft had been preplanned and its completion prevented only by complainant setting off alarm and arrival of police on scene, no such distinction—Appeal against sentence dismissed.

 

S v SHILAKWE (SCA)

BRAND JA, PONNAN JA and SHONGWE JA

2011 MAY 25; JUNE 1

Appeal—Generally—Grounds of appeal—Where evidence admitted against accused may have been inadmissible—Such not existing or live controversy when, without possibly inadmissible evidence, balance of evidence still establishing guilt of accused beyond reasonable doubt—Court should avoid involving itself in abstract, academic or hypothetical questions which are not necessary to decide for determination of appeal—Appeal dismissed.

 

S v BRUINDERS (WCC)

ZONDI J and SHER AJ

2010 SEPTEMBER 17; 2011 JUNE 15

Trial—Irregularity in—Reasonable apprehension of bias—Where presiding officer previously presided over bail application of accused—Nature of bail proceedings such that court may become privy to information which could subconsciously prejudice accused in mind of court—Public’s perception of such possibility giving rise to reasonable apprehension of bias—In such circumstances, presiding officers should ordinarily recuse themselves to avoid proceedings later being challenged on basis of reasonable apprehension of bias—In casu, presiding magistrate, having previously presided over bail application of appellant, aware, inter alia, of his previous convictions during subsequent trial—Reasonable, objective and informed observer would, in such circumstances, reasonably have apprehended that magistrate not bringing impartial mind to bear upon appellant’s case—Appeal upheld and conviction set aside.

 

POLONYFIS v MINISTER OF POLICE AND OTHERS NNO (SCA)

BRAND JA, MAYA JA, CACHALIA JA, SHONGWE JA and PETSE AJA

2011 FEBRUARY 24; MARCH 18

Search and seizure—Search warrant—Validity of—Warrant issued in terms of s 20 of Criminal Procedure Act 51 of 1977—Whether warrant invalid for being overbroad where magistrate not specifying on warrant which of three subsections of s 20 applicable—If all three subsections applicable, ie concerned in commission of offence; and affording proof thereof; and reasonably believed intended for use in further offences, then correct to issue warrant on strength of all three subsections—Present matter, where all items seized bore some relationship to illegal gambling activities, such instance—Warrant validly issued.

Search and seizure—Search warrant—Validity of—Warrant issued in terms of s 20 of Criminal Procedure Act 51 of 1977—Accuracy of description of ‘premises identified in warrant’, s 21(2) of CPA—Absolute perfection not required in description of premises where search and seizure to take place—Technically wrong address not invalidating warrant if it otherwise described premises with sufficient particularity so that police could ascertain and identify place to be searched.

Search and seizure—Search warrant—Validity of—Warrant issued in terms of s 20 of Criminal Procedure Act 51 of 1977—Handing over of warrant to person, at his or her demand, in charge of premises to be searched, s 21(4) of CPA—Where affidavit referred to in warrant not annexed to warrant when so handed over—Such failure not rendering search unlawful where, as in present case, person in charge of premises could have demanded affidavit at any stage but not doing so.

Search and seizure—Search warrant—Validity of—Warrant issued in terms of s 20 of Criminal Procedure Act 51 of 1977—Police seizing goods not covered by warrant—Although some goods seized not covered by warrant, this did not mean that because execution of warrant went beyond its strict terms that entire search was tainted—Appropriate remedy court order that items seized but not mentioned in warrant be returned.

 

S v MATU (ECB)

EBRAHIM J and HARTLE J

2011 MARCH 24

Trial—Mental state of accused—Enquiry in terms of s 77 of Criminal Procedure Act 51 of 1977—Right of accused to fair trial—Right to legal representation—Where enquiry in terms of s 77 of CPA having taken place in absence of legal representation—Imperative that accused be legally represented in such enquiry—Consequences to accused if order under s 77(6) made severe—Section 77(1A) recognising possible infringement of accused’s fundamental rights in such proceedings and providing for services of legal practitioner through Legal Aid—Without legal representation accused might be prejudiced in exercising election, conferred by s 77(2) of Act, whether or not to challenge findings made in terms of s 79 thereof.

Trial—Mental state of accused—Enquiry in terms of s 77 of Criminal Procedure Act 51 of 1977—Provisions of s 77 discussed in detail—Court suggesting and setting out guidelines as to conduct of enquiries under s 77 of Act once findings in terms of s 79 were available.

 

S v TRUYENS (SCA)

CLOETE JA, CACHALIA JA and MEER AJA

2011 MAY 26; JUNE 1

Sentence—Correctional supervision—Imprisonment from which accused may be released and placed under correctional supervision at discretion of Commissioner of Correctional Services, s 276(1)(i) of Criminal Procedure Act 51 of 1977—When appropriate—Where appellant, in order to raise money for medical expenses of his three terminally ill children, stealing 48 head of cattle from his employer in contravention of s 11 of Stock Theft Act 57 of 1959—Whether High Court’s interference on appeal, by increasing regional court’s sentence of four years’ imprisonment in terms of s 276(1)(i), justified—Once trial court concluded, as in present case, that only appropriate sentence was custodial sentence not exceeding five years, then it was compelled, on clear authority of case law issuing from Supreme Court of Appeal, to consider s 276(1)(i) as sentencing option—Trial court’s sentence not shockingly inappropriate—Correctional supervision not to be regarded as ‘softer option’—Trial court’s sentence reinstated.

 

S v NKOSI (GNP)

MAKGOKA J and MNGQIBISA-THUSI J

2010 JUNE 1; OCTOBER 21

Theft—What constitutes—Mere assumption of control over property not sufficient to constitute theft—Owner of property required to have been effectively excluded from his property—In absence thereof, accused’s acts amounting only to acts of execution and constituted attempted theft only—Court to be cautious about applying shoplifting principle when determination to be made between completed theft and attempted theft.

Sentence—Imposition of—Factors to be taken into account—Prevalence of offence and interests of community—Still need to maintain healthy and proper balance between interests of society, nature of offence and offender—Aggravating sentences to combat increasing prevalence of particular offence must not to lead to inevitable negation of accused’s personal circumstances.

 

S v COMBRINK (SCA)

BRAND JA, PONNAN JA and SHONGWE JA

2011 MAY 25; JUNE 23

Murder—Mens rea—Intention to kill—Dolus eventualis—Where appellant firing two shots at unidentified person walking over farmland after person had not responded to his calls, second shot striking and killing such person—Evidence of witness to effect that first shot landing very close to deceased accepted—Appellant, who was good marksman, by aiming second shot in same place as first, must have subjectively foreseen possibility that bullet might ricochet off object and strike such person—Regardless of such foreseeable possibility, appellant went on to shoot—Appellant guilty of murder, form of intention being dolus eventualis.

Sentence—Imposition of—Factors to be taken into account—Cases which appear to have racial or discriminatory connotations—Public ire with sentences that appear to favour particular group in society requiring judicial sensitivity—Public interest was not in discrimination between white and black but rather between people who perceived each other, with prejudice, as being different or inferior to them—In order to properly combat hate crimes, decision makers in criminal justice system should be attuned to fact that effects went far beyond victims, serving to traumatise whole communities and damaging South African society.

 

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