March 2011

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the March 2011 edition of the Advance Notification Newsletter.

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

 

SOUTH AFRICAN LAW REPORTS

Administration of estates: use of juristic persons poses hazard

An administrator of estates, who was in control of a large number of files, entered into an agreement with others in which they created a juristic person to manage the files. Disagreements followed, and the administrator appointed by the court lost control of and access to the files. The substantial amounts of money collected and due to creditors had been improperly handled. The court looks at the disturbing facts of the case and sounds a warning on the practice of establishing juristic persons to administer such files. Stander v Erasmus and Others 2011 (2) SA 320 (GNP).

 

Constitutional rights trampled: costs de bonis propriis?

The Constitution places a high premium on the right to human dignity and freedom. Where procedures of arrest and the 48-hour rule are abused, the time has come for police officers to personally pay the costs of the litigation flowing from their unlawful actions. This would avoid the taxpayer having to fund these expenses, and would act as a deterrent to others who would abuse their powers. Prinsloo v Nasionale Vervolgingsgesag en Andere 2011 (2) SA 214 (GNP) and Coetzee v National Commissioner of Police and Others 2011 (2) SA 227 (GNP).

 

Removal of an executor of an estate

In Van Niekerk v Van Niekerk and Another 2011 (2) SA 145 (KZP), the deceased, who had been married at the time of his death to the applicant, had in his will appointed his former wife as the executor of and sole heir to his estate. In that capacity she resisted the claims by the applicant against the estate, and this culminated in the applicant applying for her removal from office under s 54(1)(a)(v) of the Administration of Estates Act 66 of 1965. That section provides that an executor may be removed from her office by the court, ‘if for any other reason [beyond the instances listed] the Court is satisfied that it is undesirable that [s]he should act as executor of the estate concerned’.

SOUTH AFRICAN CRIMINAL LAW REPORTS

The specifying of offences in search and seizure warrants: SCA brings finality

Where there was no material distinction between judgments, the SCA would be remiss if it were not to apply a ruling of the CC, as the more authoritative court, that was intended as an authoritative statement of law—despite such ruling not having formed part of the ratio decidendi of the CC case. Accordingly, the SCA followed the rule laid down in Thint (Pty) Ltd v NDPP (CC): that it is an essential prerequisite for the validity of a warrant issued under s 21 of the Criminal Procedure Act 51 of 1977 that it specifies the offence or offences in relation to which it had been issued. Minister of Safety and Security and Another v Van der Merwe and Others 2011 (1) SACR 211 (SCA).

 

The Fixing of an Act

The law of unintended consequences is an adage or idiomatic warning that an intervention in a complex system always creates unanticipated and often undesirable outcomes. The wording of ss 69(1) and 69(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007offers a perfect example—its wording has the absurd effect that where no investigation or prosecution or other legal proceedings relating to a common-law crime referred to in s 68(1)(b) of the Act had been initiated before the date of commencement of the Act, ie 16 December 2007, no criminal proceedings, investigation or prosecution can be concluded, instituted or continued—despite the fact that the alleged conduct plainly constituted the common-law crime of rape at the time of the commission thereof. The court considers how to cure this defect. S v Acting Regional Magistrate, Boksburg, and Another 2011 (1) SACR 256 (GSJ).

 

Higher than prescribed-minimum sentences

In S v Mbatha 2009 (2) SACR 623 (KZP) it was held that when a sentence higher than a minimum sentence prescribed in the Schedules to the Criminal Law Amendment Act 105 of 1997 was handed down, it constituted a defect in proceedings not to have apprised the defence of the fact that this was contemplated. A full bench of the same division takes a critical view of this earlier judgment and comes to a different conclusion. S v Mthembu 2011 (1) 272 SACR (KZP).

 

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The Juta Law Reports Team

 

SOUTH AFRICAN LAW REPORTS

TABLE OF CASES

• President of the Republic of South Africa and Others v M & G Media Ltd 2011 (2) SA 1 (SCA)

• Tongaat Paper Co (Pty) Ltd v The Master and Others 2011 (2) SA 17 (KZP)

• Road Accident Fund and Another v Mdeyide 2011 (2) SA 26 (CC)

• Commissioner for the South African Revenue Service v NWK Ltd 2011 (2) SA 67 (SCA)

• Manong and Associates (Pty) Ltd v City of Cape Town and Another 2011 (2) SA 90 (SCA)

• Scoin Trading (Pty) Ltd v Bernstein NO 2011 (2) SA 118 (SCA)

• Els v Weideman and Others 2011 (2) SA 126 (SCA)

• Van Niekerk v Van Niekerk and Another 2011 (2) SA 145 (KZP)

• National Stadium South Africa (Pty) Ltd and Others v FirstRand Bank Ltd 2011 (2) SA 157 (SCA)

• Louw v Nel 2011 (2) SA 172 (SCA)

• Delpech v Holloway and Others 2011 (2) SA 194 (GSJ)

• Moodliar NO and Others v Hendricks NO and Others 2011 (2) SA 199 (WCC)

• Prinsloo v Nasionale Vervolgingsgesag en Andere 2011 (2) SA 214 (GNP)

• Coetzee v National Commissioner of Police and Others 2011 (2) SA 227 (GNP)

• Drahtseilwerk Saar GmbH v International Trade Administration Commission 2011 (2) SA 261 (GNP)

• Desert Star Trading 145 (Pty) Ltd and Another v No 11 Flamboyant Edleen CC and Another 2011 (2) SA 266 (SCA)

• Absa Bank Ltd v Intensive Air (Pty) Ltd and Others 2011 (2) SA 275 (SCA)

• Exdev (Pty) Ltd and Another v Pekudei Investments (Pty) Ltd 2011 (2) SA 282 (SCA)

• Harris and Others v Rees and Others 2011 (2) SA 294 (GSJ)

• Msomi v Biyela and Others 2011 (2) SA 311 (KZD)

• Stander v Erasmus and Others 2011 (2) SA 320 (GNP)

FLYNOTES

PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS v M & G MEDIA LTD (SCA)

NUGENT JA, VAN HEERDEN JA, MAYA JA, CACHALIA JA and BERTELSMANN AJA

2010 NOVEMBER 22; DECEMBER 14

Administrative law—Access to information—Access to information held by public body—Request—Refusal—Application for judicial relief after exhaustion of internal appeal procedure—Such not a review or appeal, but original proceeding—Civil rules of evidence applying to manner in which evidence received and to admissibility—Promotion of Access to Information Act 2 of 2000, ss 78(2) and 81.

Administrative law—Access to information—Access to information held by public body—Request—Refusal—Application for judicial relief after exhaustion of internal appeal procedure—Burden of proof—Public body bearing burden to prove secrecy justified—This an evidential burden to allege sufficient facts to justify refusal—Burden of proof in true sense comes into play if veracity of evidence required to be tested, in which case public body to satisfy court that its evidence probably true—Promotion of Access to Information Act 2 of 2000, s 81(3).

Administrative law—Access to information—Access to information held by public body—Request—Refusal—Application for judicial relief after exhaustion of internal appeal procedure—Court to scrutinise affidavits of public body with particular care, and should not hesitate to allow crossexamination of witnesses who have deposed to affidavits if their veracity called into doubt—Promotion of Access to Information Act 2 of 2000, s 78(2).

Administrative law—Access to information—Access to information held by public body—Request—Refusal—Application for judicial relief after exhaustion of internal appeal procedure—Hearsay—To be expected that officials of public body will often lack direct knowledge of facts and will be reliant on hearsay—Liberal use of s 3 of Law of Evidence Amendment Act 45 of 1988 capable of overcoming difficulties in this regard—Promotion of Access to Information Act 2 of 2000, s 78.

Administrative law—Access to information—Access to information held by public body—Request—Refusal—Application for judicial relief after exhaustion of internal appeal procedure—Disclosure of records to and non-disclosure by court—Courts to be hesitant to becoming party to secrecy—Will be cases where court might properly use these powers, but these powers no substitute for public body laying proper basis for refusing access to record—Promotion of Access to Information Act 2 of 2000, s 80.

 

TONGAAT PAPER CO (PTY) LTD v THE MASTER AND OTHERS (KZP)

SISHI J

2010 MAY 25; SEPTEMBER 15

Company—Winding-up—Liquidation and distribution account—Objections—Person aggrieved—Who is—Legal interest—Does not have to be person who can prove liquidated claim which arose before liquidation—Owner of goods sold by liquidator after date of liquidation and pursuant to liquidation and distribution account having sufficient legal interest to qualify as person aggrieved who may object to account—Fact that such person having no claim against company at date of liquidation irrelevant—Companies Act 61 of 1973, s 407(4)(a).

 

ROAD ACCIDENT FUND AND ANOTHER v MDEYIDE (CC)

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

2010 MAY 11; SEPTEMBER 30

Motor vehicle accidents—Compensation—Claim against Road Accident Fund—Prescription—Provision regulating prescription under RAF Act inconsistent with those of Prescription Act—Latter statute requiring creditor to have ‘knowledge of the identity of the debtor and of the facts from which the debt arises’—Said requirement not applicable to claims under RAF Act—Road Accident Fund Act 56 of 1996, s 23(1), and Prescription Act 68 of 1969, s 12(3).

Constitutional law—Human rights—Right of access to courts—Statutory prescription of claims for compensation against Road Accident Fund—Though limiting constitutional right of access to courts, limitation reasonable and justifiable—Prescription not unconstitutional—Road Accident Fund Act 56 of 1996, s 23(1) read with Constitution, ss 34 and 36.

 

COMMISSIONER FOR THE SOUTH AFRICAN REVENUE SERVICE v NWK LTD (SCA)

HARMS DP, LEWIS JA, CACHALIA JA, SHONGWE JA and BERTELSMANN AJA

2010 NOVEMBER 11; DECEMBER 1

Contract—Consensus—Simulation—Test—Test not simply whether intention to give effect to contract in accordance with its terms—Test should go further and require examination of commercial sense of transaction: of its real substance and purpose.

 

MANONG AND ASSOCIATES (PTY) LTD v CITY OF CAPE TOWN AND ANOTHER (SCA)

NAVSA JA, CLOETE JA, VAN HEERDEN JA, MHLANTLA JA and EBRAHIM AJA

2010 NOVEMBER 15; DECEMBER 1

Equality legislation—Equality courts—Procedure—Formulation of complaint—Proper approach—Act prescribing format requiring succinct statement of complaints—In casu, voluminous exposition formulating complaint being non-compliant with prescribed format and undermining statutory objectives of providing expeditious and easy access to justice—Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, s 20(2).

Equality legislation—Equality courts—Procedure—Complaint of racial discrimination—Onus—Complainant first having to establish prima facie case of discrimination, after which party accused of discrimination having to prove discrimination not taking place as alleged—Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, s 13(1).

Appeal—Against costs order in equality court—Limitation on power of appeal courts to interfere with costs orders, unless courts, vested with discretion, failing to excercise discretion judicially—In casu, court entitled to interfere, Equality Court having misdirected itself in various respects and consequently failing to exercise its discretion judicially—Manner in which litigation conducted and motives behind complaints justifying costs order against complainant.

 

SCOIN TRADING (PTY) LTD v BERNSTEIN NO (SCA)

HARMS DP, SNYDERS JA and K PILLAY AJA

2010 NOVEMBER 19; DECEMBER 1

Interest—A tempore morae—Whether culpable or wrongful conduct on part of debtor required—Claim for interest a tempore morae amounting to claim for contractual damages—Proof of fault or wrongful conduct on part of debtor accordingly not required.

Contract—Performance—Impossibility—Supervening impossibility—Debtor dying when debt due but before debt becoming payable—Personal incapability not rendering payment impossible unless performance itself of personal nature—On debtor’s death, executor assuming obligation to pay debt, including interest if placed in mora.

 

ELS v WEIDEMAN AND OTHERS (SCA)

NUGENT JA, HEHER JA and MAYA JA

2010 NOVEMBER 18, 30

Contempt of court—Disobedience of court order—Breach of interdict—Scope of interdict—Appellant granted order interdicting first respondent (editor) from publishing magazine article in which appellant named as sex abuser—Magazine subsequently publishing truncated version of article in which name of appellant blacked out, together with editorial by first respondent, in which appellant identified as applicant for interdict—Interdict breached by reproduction of substance of article—Intention of first respondent having been to enable readers to identify appellant as abuser from reading of editorial together with truncated article—Mala fides established—First and second respondents guilty of contempt of court.

Jurisdiction—High Court—To try proceedings for contempt of order of another High Court—High Court having such jurisdiction.

 

VAN NIEKERK v VAN NIEKERK AND ANOTHER (KZP)

WALLIS J

2010 DECEMBER 3, 17

Administration of estates—Executor—Removal—Grounds—Where purpose and intent of executor is to use office to resist all claims, or all claims from a particular source, irrespective of their merits and without fair-minded consideration thereof—Such strengthened where motive is to secure personal financial benefit in capacity of heir—Administration of Estates Act 66 of 1965, s 54(1)(a)(v).

 

NATIONAL STADIUM SOUTH AFRICA (PTY) LTD AND OTHERS v FIRSTRAND BANK LTD (SCA)

HARMS DP, MAYA JA and BERTELSMANN AJA

2010 NOVEMBER 23; DECEMBER 1 CASE No 670/10

Servitude—Personal servitude—Registrability—Naming rights—To be registable, right in question to restrict right of exercise of ownership of immovable property in some way—Must carve out portion of dominium—Matter of interpretation—Right to name sports stadium—Naming rights not imposing duty on owner of property—Naming right carved out of owner’s full ownership right—Naming right registrable as personal servitude—Deeds Registries Act 47 of 1937, s 63(1).

Servitude—Personal servitude—Termination—Destruction of subject-matter of servitude—Owner of servient tenement deliberately destroying subjectmatter of servitude—To be distinguished from destruction by vis major, particularly where similar structure erected in place of destroyed structure, and new structure also covered by servitude—In such case destruction of subject-matter of servitude not leading to its termination.

 

LOUW AND OTHERS v NEL (SCA)

LEWIS JA, PONNAN JA, MHLANTLA JA, SHONGWE JA and BERTELSMANN AJA

2010 NOVEMBER 18; DECEMBER 1

Company—Shares and shareholders—Shareholders—Oppression—Relief in event of oppressive conduct by company—Criterion for granting of relief that of fairness—Applicant to establish (1) that particular act or omission committed, or that affairs of company conducted in manner alleged, and that such act or omission or conduct of company’s affairs unfairly prejudicial, unjust or inequitable to him or some part of members of company; (2) nature of relief to be granted to end matters complained of; and (3) that just and equitable to grant such relief—Court’s jurisdiction to make order not arising until specified statutory criteria satisfied—Companies Act 61 of 1973, s 252.

 

DELPECH v HOLLOWAY AND OTHERS (GSJ)

SPILG J

2010 AUGUST 20

Lien—Parate executie—Lien simply security for debt—Does not afford right to execute—In any event, where amount of debt bona fide in dispute, holder of security cannot execute upon it without proper process for resolving dispute implemented.

 

MOODLIAR NO AND OTHERS v HENDRICKS NO AND OTHERS (WCC)

DAVIS J

2009 SEPTEMBER 2, 8

Company—Winding-up—Liquidator—Powers—Application by provisional liquidator for certain powers—Opposed—Not for court to determine whether final order would be granted—Question was whether on probabilities, based on the evidence, the powers were necessary for the liquidators to perform their fiduciary mandate—Companies Act 61 of 1973, s 386(5).

 

PRINSLOO v NASIONALE VERVOLGINGSGESAG EN ANDERE (GNP)

DU PLESSIS WnR

2009 NOVEMBER 19, 20 2010 OKTOBER 11

Constitutional law—Human rights—Right to freedom and security of the person—Public constitutionally protected from arbitrary deprivation of freedom—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—Constitution s 12.

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.

Criminal procedure—Arrest—Law relating to arrest—Duty to bring arrested person before court within 48 hours—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 rule is to avoid arrested person being detained over weekend and to avoid person who has not been convicted being detained longer than necessary—Criminal Procedure Act 51 of 1977, s 50(1)(d).

 

COETZEE v NATIONAL COMMISSIONER OF POLICE AND OTHERS (GNP)

NORTH GAUTENG HIGH COURT, PRETORIA

DU PLESSIS AJ

2009 NOVEMBER 15, 17 2010 OCTOBER 11

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.

Criminal procedure—Arrest—Legality—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.

Criminal procedure—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.

Criminal procedure—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.

 

DRAHTSEILWERK SAAR GmbH v INTERNATIONAL TRADE ADMINISTRATION COMMISSION AND OTHERS (GNP)

MNGQIBISA-THUSI J

2010 AUGUST 20; NOVEMBER 26

Administrative law—Access to information—Access to information held by public body—Request—Refusal—Grounds—Confidentiality—Access sought in terms of public body’s governing statute—Body declining request on grounds of confidentiality—Governing statute clearly empowering court to grant appropriate order regarding access to requested information—International Trade Administration Act 71 of 2002, s 35(2) and Uniform Rules of Court, rule 53.

Trade and competition—Trade—International trade—Administration—International Trade Administration Commission—Proceedings—Confidentiality—Company seeking review and setting-aside of decision of statutory commission to impose duties on goods—Commission refusing company’s request for access to records of its proceedings on ground of their alleged confidentiality—Request made in terms of commission’s governing statute—Statute clearly empowering court to grant appropriate order regarding access to requested information—International Trade Administration Act 71 of 2002, s 35(2) and Uniform Rules of Court, rule 53.

 

DESERT STAR TRADING 145 (PTY) LTD AND ANOTHER v No 11 FLAMBOYANT EDLEEN CC AND ANOTHER (SCA)

NAVSA JA, CLOETE JA, PONNAN JA, EBRAHIM AJA and K PILLAY AJA

2010 NOVEMBER 10, 29

Close corporation—Liquidation—Application—Locus standi of applicant—Non-member—Must be creditor (including contingent or prospective creditor) of corporation—Applicant relying on loan indebtedness to qualify as creditor—Application opposed on ground that loan void ab initioand constituting reckless credit agreement, and liable to be set aside—Indebtedness disputed on bona fide and reasonable grounds—Winding- up correctly refused—Companies Act 61 of 1973, s 346(1)(b); and National Credit Act 34 of 2005, ss 40(4), 81, 89(1)(d)and 89(5)(a).

 

ABSA BANK LTD v INTENSIVE AIR (PTY) LTD AND OTHERS (SCA)

HARMS DP, CACHALIA JA, SNYDERS JA, SHONGWE JA and BERTELSMANN AJA

2010 NOVEMBER 2; DECEMBER 10

Banker—Relationship between banker and client—Rights of bank in respect of credit balance in client’s account—Bank may, by virtue of debtor-creditor relationship between it and client, appropriate such credit balance for set-off against client’s debts to it—Bank and client may, however, agree that funds in client’s account reserved for, or ‘belonging to’, third party—Bank would in such circumstances be barred from setting them off against client’s indebtedness to it.

 

EXDEV (PTY) LTD AND ANOTHER v PEKUDEI INVESTMENTS (PTY) LTD (SCA)

HEHER JA, CACHALIA JA, LEACH JA, R PILLAY AJA and EBRAHIM AJA

2010 NOVEMBER 16; DECEMBER 1

Land—Sale—Contract—Formalities—Description of res vendita—Whether description sufficient—Agreement fixing size of unit in building, with shape and situation to be determined by seller—Description adequate—Agreement also containing option to purchase further office space—Purchase and option separate, divisible and independent contracts—Alienation of Land Act 68 of 1981, s 2(1).

Judge—Duties and functions—Judgments—Expeditious delivery—Duty to litigants and public at large—Failure to give judgments expeditiously would allow administration of justice to fall into disrepute.

 

HARRIS AND OTHERS v REES AND OTHERS (GSJ)

HORN J

2010 JUNE 25

Practice—Parties—Locus standi—Fugitive from justice—Even if litigant a fugitive, it not following as matter of course that doors of court closed to him—Court hearing application, and, having regard to facts concerning litigant’s flight or absence from its jurisdiction, entitled, in exercise of its inherent jurisdiction, to hear litigant, notwithstanding his absence from court’s jurisdiction.

 

MSOMI v BIYELA AND OTHERS (KZD)

CELE AJ

2010 AUGUST 24; NOVEMBER 5

Execution—Sale in execution—Immovable property—Liability of judgment debtor for arrear service charges paid by purchaser—Conditions of sale providing that purchaser liable for all arrear rates, electricity and water charges owed by judgment debtor—Judgment debtor may be liable to purchaser for debt arising out of payment of outstanding charges.

 

STANDER v ERASMUS AND OTHERS (GNP)

LEDWABA J

2010 DECEMBER 15

Magistrates’ court—Civil proceedings—Administration order—Administrator—Appointment—Practice, of establishing juristic persons to administer files, of concern—Interests of debtors and creditors of paramount importance—These interests compromised if payments received by persons not appointed by court—Magistrates’ Courts Act 32 of 1944, s 74E.

 

SOUTH AFRICAN CRIMINAL LAW REPORTS

TABLE OF CASES

• Minister of Safety and Security and Another v Van der Merwe and Others 2011 (1) SACR 211 (SCA)

• S v Bhengu 2011 (1) SACR 224 (KZP)

• Groenewald v Minister of Correctional Services and Others 2011 (1) SACR 231 (GNP)

• S v Van de Venter 2011 (1) SACR 238 (SCA)

• S v Dayile 2011 (1) SACR 245 (ECG)

• S v Mzandi 2011 (1) SACR 253 (WCC)

• S v Acting Regional Magistrate, Boksburg, and Another 2011 (1) SACR 256 (GSJ)

• S v Maake 2011 (1) SACR 263 (SCA)

• S v Mthembu 2011 (1) SACR 272 (KZP)

• S v MN 2011 (1) SACR 286 (ECG)

• National Director of Public Prosecutions v Mansoor and Another 2011 (1) SACR 292 (ECP)

• Mudaly v Gwala and Others 2011 (1) SACR 302 (KZD)

• Sello v Grobler and Others 2011 (1) SACR 310 (SCA)

FLYNOTES

MINISTER OF SAFETY AND SECURITY AND ANOTHER v VAN DER MERWE AND OTHERS (SCA)

HARMS DP, NUGENT JA, SHONGWE JA, TSHIQI JA and BERTELSMANN AJA

2010 AUGUST 20; SEPTEMBER 7

Search and seizure—Search warrant—Validity of—Warrants issued in terms of s 21 of Criminal Procedure Act 51 of 1977—Appeal against settingaside of three warrants—Cross-appeal against refusal to set aside fourth warrant—Court to determine whether information before officer who issued warrant sufficiently disclosing reasonable suspicion that offence committed; and whether warrant authorising no more than what strictly permitted by statute in terms of which warrant issued—If warrant vague, not possible to demonstrate that it went no further than what statute permitted—However, even if warrant clear in its terms, if acts it permitted going beyond what statute authorising, warrant overbroad and thus invalid.

Search and seizure—Search warrant—Validity of—Warrants issued in terms of s 21 of Criminal Procedure Act 51 of 1977—Intelligibility of warrant—For warrant to be intelligible it must not be vague or overbroad, and must specify offences in connection with which warrant issued—In this respect no distinction between warrant issued under Criminal Procedure Act and one issued under any other statute—Three out of four warrants in casu having failed to specify offences, therefore invalid—Fourth warrant neither vague nor overbroad, and specifying offences with sufficient clarity, therefore valid.

 

S v BHENGU (KZP)

LOPES J and GCABA AJ

2010 SEPTEMBER 7, 16

Housebreaking—Housebreaking with intent to steal and theft—Insufficient evidence to show that appellant and co-accused actually carrying out housebreaking—No evidence of displacement—Appearing that they entered through door left open by complainant—Accordingly, housebreaking conviction altered on appeal to one of ‘attempted housebreaking with intent to steal’—Sentence unchanged.

Sentence—Imposition of—Factors to be taken into account—Appellant having spent 18 months in custody awaiting trial—Effective sentence of 15 years’ imprisonment for attempted housebreaking with intent to steal and attempted murder confirmed, but period of 18 months ordered to be deducted in calculation of expiry date of sentence.

 

GROENEWALD v MINISTER OF CORRECTIONAL SERVICES AND OTHERS (GNP)

DU PLESSIS AJ

2010 JANUARY 15

Sentence—Release on parole—Prisoner applying for review of parole board decision—‘Policy directive’ from Commissioner of Correctional Services instructing parole boards not to grant certain categories of offender parole until having served designated minimum of sentences—No statutory basis for Commissioner’s attempt to limit discretion of parole board—Policy directive contrary to legal provisions applicable to parole for offenders before 1 October 2004, and accordingly ultra viresand of no force and effect.

Sentence—Release on parole—Prisoner applying for review of parole board decision—Prisoner satisfying statutory requirements for parole, but certain reports not available—Parole board of view that prisoner needing to serve further year due to nature of offence—Prisoner not having had fair hearing—Attempt to postpone parole hearing clear and flagrant infringement of right to freedom, right not to be detained unnecessarily, and right to fair administrative action—Court having no faith in possibility that respondents would place required reports before board, thus enabling fair hearing—Referral back to parole board simply prolonging unfair treatment of applicant and constituting further infringement of rights—Court ordering prisoner’s release on parole.

Sentence—Release on parole—Prisoner applying for review of parole board decision—Despite proper service, no appearance for respondents—No explanation for absence of necessary reports before parole board—Semble: Attitude of respondents deplorable, reprehensible and completely unacceptable—Situation exacerbated by respondents’ lack of respect towards court and its procedures by court not being afforded decency of appearance before it to explain respondents’ approach—Utter disregard by respondents and State Attorney for procedures set out in statutory provisions regarding rights of prisoners, and for court’s authority, status and powers.

 

S v VAN DE VENTER (SCA)

PONNAN JA, CACHALIA JA and LEACH JA

2010 NOVEMBER 12, 29

Sentence—Imposition of—Factors to be taken into account—28-year sentence for murder—Trial court ignoring psychiatric evidence of diminished moral responsibility—Sad, lonely and depressed youngster, product of broken home, having attempted suicide three times, lacking friends or meaningful relationships—Sentence overemphasising public interest and general deterrence—Overlooking personal deterrence, rehabilitation and reformation—Duty on trial court to call for such evidence as necessary to enable it to exercise proper sentencing discretion—On appeal, sentence reduced to 18 years’ imprisonment.

 

S v DAYILE (ECG)

EBRAHIM J and MAKAULA J

2010 MARCH 31; AUGUST 19

Sentence—Prescribed sentences—Minimum sentences—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—Rape of 7 year-old girl by boy of 17—Trial court imposing 25-year sentence—Trial court not according sufficient weight to appellant’s age—No evidence regarding extent of psychological harm—No grave physical harm—Appropriate sentence 15 years’ imprisonment, five conditionally suspended.

 

S v MZANDI (WCC)

LE GRANGE R en KLOPPER WnR

2010 AUGUSTUS 27

Housebreaking—Housebreaking with intent to steal and theft—What constitutes—Goods gathered together by thief, but nothing removed from premises—No act depriving owner of his control over items—Only attempted theft having occurred—On review, conviction altered, from housebreaking with intent to steal and theft, to housebreaking with intent to steal and attempted theft.

 

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

MOKGOATLHENG J and BADENHORST AJ

2010 NOVEMBER 17; DECEMBER 3

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

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

 

S v MAAKE (SCA)

NAVSA JA, MLAMBO JA, CACHALIA JA, MALAN JA and TSHIQI JA

2010 FEBRUARY 26; MARCH 31

Sentence—Prescribed sentences—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—Imposition of maximum allowable sentence—No indication on record of magistrate’s intention to impose maximum sentence—Accused’s legal representative therefore unable to make submissions in this regard—As necessary in relation to maximum sentences as to minimum sentences, that court identify on record factors taking case out of ordinary—Otherwise, open to presiding officers to impose their views on sentence in disregard of legislation’s purpose of reasonably consistent and standardised approach to sentence.

Trial—Record—Judgment—Reasons for—Not only salutary practice, but obligatory, for judicial officers to provide reasons to substantiate their conclusions—Court of appeal having interest in knowing why judicial officer making given order—In interests of open and proper administration of justice, and important for maintenance of public confidence, that courts state publicly reasons for their decisions.

 

S v MTHEMBU (KZP)

SWAIN J, GORVEN J and JAPPIE J

2010 JULY 15; SEPTEMBER 17

Sentence—Prescribed sentences—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—Imposition of sentence higher than prescribed minimum—Legislature intending to limit courts’ discretion only in one direction, namely imposition of sentences below prescribed minimum—Courts’ discretion in other direction not limited—No need for presiding officer to identify specific circumstances that impelled him or her to impose sentence greater than prescribed minimum—Fact that trial judge not informing defence that higher sentence than minimum being contemplated not constituting defect in proceedings.

 

S v MN (ECG)

JONES J, EBRAHIM J and MAKAULA AJ

2010 MARCH 10; MAY 3

Sentence—Prescribed sentences—Minimum sentence—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—Rape of minor—10-yearold girl—While all rape cases serious, some more serious than others—Different degrees of seriousness requiring different sentences—Recent decisions considered—Present case not falling into category of rape cases warranting ultimate sentence—Sentence of life imprisonment set aside and 15-year sentence imposed.

Rape—Sentence—Rape of minor—10-year-old girl—No weapon used, and victim suffering no serious physical injury other than that produced by act of rape—No evidence of serious emotional trauma—Appellant capable of rehabilitation—Mature family man of 47, clean record, making contribution to community—Life imprisonment disproportionate to seriousness of crime—Sentence of 15 years’ imprisonment bringing home to appellant gravity of offence; deterring others; meeting society’s legitimate interests; and encouraging rehabilitation.

 

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v MANSOOR AND ANOTHER (ECP)

DAMBUZA J

2010 MARCH 18; JULY 6

Search and seizure—Restraint order in terms of Prevention of Organised Crime Act 121 of 1998—Application for—Consideration of—Duty on applicant to present coherent, persuasive case that there was evidence on which court might convict defendants and on which that court might also grant confiscation order—When various allegations and admissions considered, together with lack of basic detail in relation to certain counts, not possible to make informed assessment as to whether court convicting defendants might also make confiscation order—Furthermore, difficult to determine on which counts defendants could be convicted—Evidence in respect of most charges inconclusive—In respect of numerous other charges, relevant documentary evidence could not be found—Even limited evidence that required to be placed before court in application for restraint must at least make out relatively clear and consistent case—Evidence in casunot satisfying this requirement—Application dismissed—POCA, ss 25 and 26.

Search and seizure—Restraint order in terms of Prevention of Organised Crime Act 121 of 1998—Application for—Consideration of—Only two counts (out of 610 charged) in respect of which relatively clear evidence implicating defendants—However, not clear that proper case made out that defendants having benefited from these two instances—In any event, amount involved only minute fraction of sum of over R3 million for which applicant seeking restraint order—Accordingly, applicant having failed to make out proper case that evidence available on which court, faced with application for confiscation, would be reasonably persuaded to grant same—Application dismissed—POCA, ss 25 and 26.

 

MUDALY v GWALA AND OTHERS (KZD)

D PILLAY J

2010 JULY 23; AUGUST 17

Search and seizure—Search warrant—Validity of—Applicant challenging warrants on basis of risk of prosecution—Whether applicant having standing—Divergent precedents reviewed—Applicant not establishing link to items seized or premises searched—Asserting no right, other than risk of prosecution—Opportunity to challenge admissibility of evidence seized if sought to be used against him at trial—Accordingly, applicant not having standing to challenge validity of warrants.

 

SELLO v GROBLER AND OTHERS (SCA)

MPATI P, LEWIS JA, PONNAN JA, CACHALIA JA and K PILLAY AJA

2010 AUGUST 20; OCTOBER 1

Search and seizure—Seizure without search warrant in terms of s 22 of Criminal Procedure Act 51 of 1977—Police advancing no grounds for believing that application for warrant would defeat object of search—In addition, members of Medicines Regulatory Affairs Inspectorate not having authority to conduct searches—Accordingly, search and seizure unlawful—However, applicant not entitled to return of items he was not lawfully entitled to possess.