May 2011

Dear South African Law Reports and Criminal Law Reports subscriber

We’ve included in this edition of the Advanced Notification the table of cases and flynotes of the SALR and SACR, as well as of the Namibian Law Reports 2010 (2).

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

 

SOUTH AFRICAN LAW REPORTS

Claims for injury to reputation and dignity: new developments

In Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) 2011 (3) SA 274 (CC), a matter originating in the applicants’ alteration and publication of a photograph of the defendant, in which the High Court had found the applicants to have defamed the respondent (a finding affirmed by the Supreme Court of Appeal), the Constitutional Court considers inter alia whether knowledge of wrongfulness is a part of animus iniuriandi; whether the same conduct can render a defendant liable to more than one actio iniuriarum; and whether a court may order an apology for infringement of a personality right.

 

Constitutionality of the provisional sentence procedure

In Twee Jonge Gezellen (Pty) Ltd and Another v Land and Agricultural Development Bank of South Africa t/a The Land Bank, and Another 2011 (3) SA 1 (CC), the applicant claimed that the provisional sentence procedure limited the right of access to court, and the Constitutional Court considers whether, if this is the case, it can recognise a further instance where provisional sentence can be refused.

 

SLAPP-style litigation met with disapproval

In an apparent local instance of what American lawyers term Strategic Litigation Aimed Against Public Participation (SLAPP), the plaintiff in Wraypex (Pty) Ltd v Barnes and Others 2011 (3) SA 205 (GNP) claimed large amounts from the defendants for defamation, where the merits of the claim were weak, so involving the defendants unnecessarily in heavy expenditure on their defence. The court considers SLAPP and vexatious proceedings, and ultimately awards costs against the plaintiff on the attorney and client scale.

 

Immigration law: holding of refugees at airports

SOUTH AFRICAN CRIMINAL LAW REPORTS

The accused’s plea of guilty and the presiding officer’s questions: the officer’s duty to warn the accused of the right to remain silent

Section 112(1)(b) of Act 51 of 1977 empowers a presiding judge, regional magistrate or magistrate to 'question the accused with reference to the alleged facts of the case in order to ascertain whether he or she admits the allegations in the charges to which he or she pleaded guilty'.  In S v Tshabalala 2011 (1) SACR 497 (GNP) the court considers if it is irregular for a presiding officer not to warn an individual of his right to remain silent, before questioning the individual in terms of the subsection.

 

Sentences for juveniles convicted of race motivated crimes

Taking guidance from the views expressed in S v Acheson 1991 (2) SA 805 (Nm) — decided against the backdrop of the Namibian Constitution — the court in S v Botes 2011 (1) SACR 439 (GNP) cites the need to strengthen the constitutional ethos of South Africa’s nascent democracy, as justification for harsher sentences for racially motivated crimes, regardless of the age of the perpetrator.

 

The police duty to ensure the well-being of individuals in custody

The police duty to ensure the well-being of persons in custody is considered by the Supreme Court of Appeal in Minister of Safety and Security v Craig NNO 2011 (1) SACR 469 (SCA), a spouse’s claim for loss of support. The police had arrested the claimant’s husband at the scene of a car crash and later detained him, and in detention he had died of internal injuries.

 

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SOUTH AFRICAN LAW REPORTS - April 2011

TABLE OF CASES

• Twee Jonge Gezellen (Pty) Ltd and Another v Land and Agricultural Development Bank of South Africa t/a The Land Bank, and Another 2011 (3) SA 1 (CC)

• GF v SH and Others 2011 (3) SA 25 (GNP)

• Abdi and Another v Minister of Home Affairs and Others 2011 (3) SA 37 (SCA)

• Sea Front for All and Another v MEC, Environmental and Development Planning, Western Cape and Others 2011 (3) SA 55 (WCC)

• Absa Bank Ltd v Bernert 2011 (3) SA 74 (SCA)

• Bernert v Absa Bank Ltd 2011 (3) SA 92 (CC)

• FS v JJ and Another 2011 (3) SA 126 (SCA)

• Smith v Van den Heever and Others 2011 (3) SA 140 (SCA)

• South African Airways (Pty) Ltd v Aviation Union of South Africa and Others 2011 (3) SA 148 (SCA)

• Lamonica v Baltic Reefers Management Ltd 2011 (3) SA 164 (WCC)

• Netstar (Pty) Ltd and Others v Competition Commission South Africa and Another 2011 (3) SA 171 (CAC)

• Wraypex (Pty) Ltd v Barnes and Others 2011 (3) SA 205 (GNP)

• Gold Reef City Theme Park (Pty) Ltd v Electronic Media Network Ltd and Another 2011 (3) SA 208 (GSJ)

• Akani Egoli (Pty) Ltd v Electronic Media Network Ltd and Another 2011 (3) SA 208 (GSJ)

• Jyoti Structures Africa (Pty) Ltd v KRB Electrical Engineers/Masana Mavuthani Electrical & Plumbing Services (Pty) Ltd t/a KRB Masana 2011 (3) SA 231 (GSJ)

• Mankayi v AngloGold Ashanti Ltd 2011 (3) SA 237 (CC)

• Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) 2011 (3) SA 274 (CC)

• PCL Trust en Andere v Registrateur van Aktes 2011 (3) SA 342 (FB)

FLYNOTES

TWEE JONGE GEZELLEN (PTY) LTD AND ANOTHER v LAND AND AGRICULTURAL DEVELOPMENT BANK OF SOUTH AFRICA t/a THE LAND BANK, AND ANOTHER (CC)

NGCOBO CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J,

MOGOENG J, NKABINDE J, SKWEYIYA J, YACOOB J and BRAND AJ

2010 NOVEMBER 18 2011 FEBRUARY 22

Provisional sentence—Procedure—Constitutionality—Provisional sentence procedure constituting limitation of right to fair hearing where (a)nature of defence raised not allowing defendant to show balance of success in his or her favour without benefit of oral evidence; (b)defendant unable to satisfy judgment debt; and (c)outside 'special circumstances’, court having no discretion to refuse provisional sentence—Requiring development of common law so that courts would in future have discretion to refuse provisional sentence when defendant showing (1) inability to satisfy judgment debt; (2) even balance of prospects of success in main case on papers; and (3) reasonable prospect that oral evidence may tip balance of prospective success in his favour—Constitution, s 34.

 

GF v SH AND OTHERS (GNP)

KOLLAPEN AJ

2010 DECEMBER 9

Husband and wife—Divorce—Maintenance—Variation, by subsequent oral agreement between parties, of maintenance regime set out in settlement agreement which was made order of court and which contained nonvariation clause—Whether Shifren principle to be relaxed to permit such variation—Variation permissible if in accordance with public policy—Best interests of minor children paramount.

 

ABDI AND ANOTHER v MINISTER OF HOME AFFAIRS AND OTHERS (SCA)

MPATI P, CACHALIA JA, LEACH JA, TSHIQI JA and BERTELSMANN AJA

2010 NOVEMBER 24 2011 FEBRUARY 15

Immigration—Refugee—Asylum seeker—Duties of State in respect of refugees and asylum seekers held in 'inadmissible facility’ at port of entry into South Africa—Such persons having rights under South African law that are justiciable by South African courts—Refusing them entry into South Africa in circumstances in which he or she would be exposed to risk of persecution or physical violence in his or her home country, unconstitutional.

Constitutional law—Constitution—Applicability—Aliens—Refugees—Protection of Constitution extending to refugees, including refugees held in 'inadmissible facility’ at port of entry into South Africa.

 

SEA FRONT FOR ALL AND ANOTHER v MEC, ENVIRONMENTAL AND DEVELOPMENT PLANNING, WESTERN CAPE AND OTHERS (WCC)

DESAI J and FOURIE J

2009 DECEMBER 4 2010 FEBRUARY 26; MARCH 26

Environmental law—Identified activities—Authorisation—Application—Alternative activities—Decision-maker obliged to investigate and evaluate alternative proposed activities, including option not to act, and to this end required to consider reports on proposed and alternative courses of action, including option not to act—Environment Conservation Act 73 of 1989, ss 22(1) and (2).

Environmental law—Identified activities—Authorisation—Application—Public open spaces—Decision-maker, confronted with application involving use of public open space, should appreciate importance of decision he is required to take, and of not proceeding in absence of expert report dealing fully with significance of change in land use from zoned open space to other use—Environment Conservation Act 73 of 1989, ss 22(1) and (2).

Environmental law—Identified activities—Authorisation—Application—Independent consultants and specialists—Where independent consultant appoints specialist to carry out duty, requirement of independence applies to both consultant and specialist—Environment Conservation Act 73 of 1989, ss 22(2).

Environmental law—Identified activities—Authorisation—Application—Information—Decision-maker cannot base decision on substantially outdated information—Environment Conservation Act 73 of 1989, ss 22(2).

Environmental law—Review and appeal—Appeal—Nature—Party dealing with appeal in terms of subsections exercises appeal powers in wide sense, and may substitute her own findings of fact and legal conclusions, and rehear matter—Environment Conservation Act 73 of 1989, ss 35(3) and (4).

 

ABSA BANK LTD v BERNERT (SCA)

NUGENT JA, CACHALIA JA, MALAN JA, TSHIQI JA and MAJIEDT AJA

2010 FEBRUARY 18; MARCH 29

Practice—Trial—Separation of trial on issues—Court to apply mind to whether convenient to separate issues—Questions to be determined must be expressed in its order with clarity and precision—Uniform Rules, rule 33(4).

 

BERNERT v ABSA BANK LTD (CC)

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

2010 AUGUST 19; DECEMBER 9

Judge—Duties and functions—Duty not to show bias—Applicant contending that Supreme Court of Appeal judges biased—Judge had shares in respondent bank—Two judges had prior relationship with bank—Manner in which presiding judge conducted proceedings—Alleged that factual findings of SCA unreasonable—Constitutional Court finding that none of grounds of alleged bias sustainable—Appeal dismissed.

FS v JJ AND ANOTHER (SCA)

LEWIS JA, BOSIELO JA, R PILLAY AJA, BERTELSMANN AJA and K PILLAY AJA

2010 NOVEMBER 5, 19

Minor—Custody—Rights and obligations of unmarried father—If mother and father were in permanent life partnership at time of birth of child, father automatically acquired parental rights and duties in respect of child—Children’s Act 38 of 2005, s 21.

Minor—Custody—Litigation—Litigation not to be first resort—Mediation useful way of avoiding legal battles—Legal practitioners to adopt approach conducive to conciliation and problem-solving and to avoid confrontational approach—Children’s Act 38 of 2005, s 6(4).

Jurisdiction—High Court—Disputes about parental rights and responsibilities—Forum shopping and reliance on formalism inappropriate—High Courts should not be faced with litigation requiring them to set aside order made in other jurisdiction—High Court that made the initial order to be approached for variation thereof—Applications dealing with parental responsibilities and rights by interested party to be brought in High Court within whose area of jurisdiction child ordinarily resident—Children’s Act 38 of 2005, s 29.

Judge—Duties and functions—Duty not so show bias—Language and findings of judge in custody hearings showing bias against father—Failing entirely to consider best interests of minor child—Stepping into arena by inviting other party to bring order holding father in contempt of court—Conduct of judge regrettable and findings in respect of custody overruled.

 

SMITH v VAN DEN HEEVER AND OTHERS (SCA)

HARMS DP, NUGENT JA and BOSIELO JA

2011 FEBRUARY 21; MARCH 4

Contract—Reciprocity of obligations—Exceptio non adimpleti contractus—Partial performance by plaintiff—Calculation of damages—Plaintiff that fails to prove full performance on its part may claim lesser amount than provided for in agreement—Such plaintiff to allege and prove lesser amount by showing (a)that other party utilised work to own advantage, even though it fell short of the required contractual standards; (b)cost of remedying defects and supplementing shortfalls; (c)that it would be equitable to award plaintiff some remuneration, even though it breached contract; (d)that circumstances justifying exercise by court of its discretion to award plaintiff a reduced contract price—Unless lesser amount claimed, not for court to speculate what it should be.

Contract—Reciprocity of obligations—Exceptio non adimpleti contractus—When applicable—Partial performance by plaintiff—If contract operating in indivisible cycles, this to be taken into account in assessing extent or sufficiency of plaintiff’s performance, and whether defendant’s exceptio constituting complete defence.

 

SOUTH AFRICAN AIRWAYS (PTY) LTD v AVIATION UNION OF SOUTH AFRICA AND OTHERS (SCA)

MPATI P, LEWIS JA, MHLANTLA JA, SHONGWE JA and EBRAHIM AJA

2010 NOVEMBER 8 2011 JANUARY 11

Labour law—Transfer of contract of employment—Transfer of business as going concern—Second-generation outsourcing transaction—Whether statutory protection of employees against job losses extending to second- generation outsourcing—Relevant provision of LRA protecting only employees affected by transfer of business, (1) as going concern; (2) by old employer to new employer—Positive action on part of old employer required—Accordingly, for employees to be protected in case of reversion of business to outsourcer, or transfer thereof to new provider, clear retransfer (proved by written agreements or conduct) of all assets and obligations of business, including workforce rights and obligations, required—Labour Relations Act 66 of 1995, s 197.

Statute—Interpretation—Purposive interpretation—Scope—Purposive interpretation cannot be used if at odds with ordinary meaning of words used by legislature—Disregard of words used by legislature on basis of general 'fairness’ principle resulting not only in uncertainty, but also infringement of doctrine of separation of powers—Not permissible, in absence of direct challenge to constitutionality of statute, to mount collateral challenge in guise of 'purposive’ reading of statute.

 

LAMONICA v BALTIC REEFERS MANAGEMENT LTD (WCC)

BLIGNAULT J

2009 OCTOBER 19; NOVEMBER 5

Company—Foreign liquidation—Recognition of foreign liquidator—Application—Court having absolute discretion based on comity and convenience—Applicant need not show that any claim valid, only that pursued bona fide in furtherance of his duties—Must also be able to show that appointed as liquidator in country

 

NETSTAR (PTY) LTD AND OTHERS v COMPETITION COMMISSION SOUTH AFRICA AND ANOTHER (CAC)

DAVIS JP, DAMBUZA JA and WALLIS AJA

2010 NOVEMBER 29, 30 2011 FEBRUARY 15

Trade and competition—Competition—Unlawful competition—Prohibited practices—Restrictive horizontal practice—What constitutes—Distinction between restrictive (i) 'agreement’ and (ii) 'concerted practice’ discussed—Nature of enquiry into restrictive horizontal practice set out—Leading vehicle tracking firms having set up association with accreditation criteria for membership—Whether amounting to restrictive horizontal practice substantially preventing or lessening competition by limiting entry to newcomers to industry—If so, whether required causal link between interference with competition and conduct complained of established—Competition Act 89 of 1998, s 4(1)(a).

 

WRAYPEX (PTY) LTD v BARNES AND OTHERS (GNP)

SAPIRE AJ

2011 FEBRUARY 11

Costs—Special order—When to be awarded—Vexatious litigation—Corresponding closely with features of SLAPP (Strategic Litigation Aimed against Public Participation)—Litigation economically purposeless—Merits weak—Defendants unnecessarily involved in heavy expenditure in defending cases—Costs order on attorney and client scale.

 

GOLD REEF CITY THEME PARK (PTY) LTD v ELECTRONIC MEDIA NETWORK LTD AND ANOTHER; AKANI EGOLI (PTY) LTD v ELECTRONIC MEDIA NETWORK LTD AND ANOTHER (GSJ)

NICHOLLS J

2010 AUGUST 24–SEPTEMBER 17; SEPTEMBER 28, 29

Defamation—Who may sue or be sued—Trading corporation—Trading corporation entitled to sue under actio injuriarumfor general damages resulting from defamation—Semble: Claim for loss of profit to be restricted to claim under lex Aquilia.

Defamation—Defences—Justification—Media defendants—Defence of reasonable publication—Test—Adherence to principles of responsible journalism—Fairness and balance required—Practical and flexible approach to be adopted in assessing whether all responsible steps taken before publication—Court to consider meaning sought to be conveyed and whether journalists in question could reasonably have believed that this was how ordinary viewer or reader would have understood it.

Delict—Specific forms—Pure economic loss—Loss of profit—Defamation of trading corporation—Semble: Claim for loss of profit resulting from damage to reputation of trading corporation (ie claim for patrimonial damages) to be limited to claim under lex Aquilia—Allowing such claim under actio injuriarumwould, by burdening defendant with presumptions of unlawfulness and intention, constitute unjustifiable limitation to right of freedom of speech.

 

JYOTI STRUCTURES AFRICA (PTY) LTD v KRB ELECTRICAL ENGINEERS/MASANA MAVUTHANI ELECTRICAL AND PLUMBING SERVICES (PTY) LTD t/a KRB MASANA (GSJ)

ANDRÉ GAUTSCHI AJ

2010 FEBRUARY 10, 19

Appeal—Costs—Security for costs—Failure to provide security on filing record of appeal—Respondent notifying appellant of irregular proceedings in terms of rule 30—Appellant then providing security—Respondent contending that amount insufficient—Rule 30 application to set aside irregular proceedings not the remedy once an amount paid—Registrar to be approached regarding disputed amount—Uniform Rules of Court, rules 30 and 49(13).

 

MANKAYI v ANGLOGOLD ASHANTI LTD (CC)

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

2010 AUGUST 17 2011 MARCH 3

Labour law—Employee—Common-law claim for damages for negligence against employer—Damages resulting from disease contracted during employment in mine—Whether employee’s claim extinguished by statute—Section 35(1) of Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) to be read in context of other provisions of COIDA—'Employee’ referred to in section, whose common-law claim expunged, limited to 'employee’ who had claim for compensation under COIDA in respect of occupational diseases mentioned in COIDA—It is this 'employee’ who is barred from instituting claim for recovery of damages against employer for occupational diseases resulting in disablement or death—Expungement not extending to 'employee’ who is not entitled to claim compensation in respect of 'occupational diseases’ under COIDA—Corollary is that s 35(1) does not cover 'employee’ who qualifies for compensation in respect of 'compensatable diseases’ under Occupational Diseases in Mines and Works Act 78 of 1973—Exclusion of liability in

s 35(1) therefore limited to 'employees’ who are entitled to compensation in respect of 'occupational diseases’ under COIDA—Compensation for Occupational Injuries and Diseases Act 130 of 1993, s 35(1), read with Occupational Diseases in Mines and Works Act 78 of 1973.

 

LE ROUX AND OTHERS v DEY (FREEDOM OF EXPRESSION INSTITUTE AND RESTORATIVE JUSTICE CENTRE AS AMICI CURIAE) (CC)

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

2010 AUGUST 26 2011 MARCH 8

Damages—Injuria—Defamation—Issue of damages in defamation case raising constitutional issue.

Defamation—Action—Duplication—Same conduct should not render defendant liable to more than one actio iniuriarum.

Defamation—Elements—Defamatory statement or image—Probable impairment of right to reputation required before statement or image may be considered defamatory.

Defamation—Animus injuriandi—Knowledge of wrongfulness—Unnecessary to enquire whether law still requiring this as part of animus injuriandi.

Defamation—Remedies—Apology—Court may order.

Delict—Specific forms—Injuria—Infringement of dignitas—Claim entailing constitutional issues.

Delict—Specific forms—Injuria—Infringement of dignitas—Elements—Wrongfulness—Actionable injury cannot be based solely on ground of differentiation that Constitution has ruled does not provide basis for offence—Injury in such case need be located in further overlay or imputation.

 

PCL TRUST EN ANDERE v REGISTRATEUR VAN AKTES (FB)

JORDAAN R

2010 NOVEMBER 4

Sectional title—Extension of schemes—Deviation from extension plans—Developer not required to approach court to approve deviations—Sectional Titles Act 95 of 1986, s 25.

 

SOUTH AFRICAN CRIMINAL LAW REPORTS - April 2011

TABLE OF CASES

• National Director of Public Prosecutions v Abrina 6822 Ltd and Others 2011 (1) SACR 419 (KZP)

• S v Hanekom 2011 (1) SACR 430 (WCC)

• S v Botes 2011 (1) SACR 439 (GNP)

• S v PB 2011 (1) SACR 448 (SCA)

• S v Ngabase and Another 2011 (1) SACR 456 (ECG)

• Minister of Safety and Security and Others v Craig and Others NNO 2011 (1) SACR 469 (SCA)

• S v Khoza 2011 (1) SACR 482 (GSJ)

• S v Bhadu 2011 (1) SACR 487 (ECG)

• S v Jacobs 2011 (1) SACR 490 (ECP)

• S v Tshabalala 2011 (1) SACR 497 (GNP)

• S v Jacobs 2011 (1) SACR 505 (ECG)

• S v MM 2011 (1) SACR 510 (GNP)

• S v JS 2011 (1) SACR 510 (GNP)

• S v JV 2011 (1) SACR 510 (GNP)

FLYNOTES

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v ABRINA 6822 LTD AND OTHERS (KZP)

WALLIS J

2010 NOVEMBER 5, 30

Prevention of crime—Preservation of property order—Application for—Requirements—Not requirement of s 38(2) of Prevention of Organised Crime Act 121 of 1998 that person in possession of property should have been perpetrator of unlawful activity whereby property was received by him/her—Sufficient that such person in possession of property in respect of which reasonable grounds exist for believing property proceeds of unlawful activities.

Prevention of crime—Preservation of property order—Property subject to order—Property that 'is the proceeds of unlawful activities’—Prevention of Organised Crime Act 121 of 1998, s 38(2)(b)—Court not concerned with state of mind of owner of property, but with whether property constitutes proceeds of unlawful activities as defined—Phrase to be interpreted independently of guilt or innocence of owner of property.

Prevention of crime—Preservation of property order—Property subject to order—Property that 'is the proceeds of unlawful activities’—Order not confined to cases where unlawful activities constitute organised crime, money-laundering, gang activities or other offences created in Prevention of Organised Crime Act 121 of 1998—Sections 38(2) and 50(1) of Act—Those sections may be invoked where property in question constitutes proceeds of common-law offences.

 

S v HANEKOM (WCC)

LE GRANGE J and SANER AJ

2010 SEPTEMBER 3; OCTOBER 6

Evidence—Adequacy of proof—Cautionary rule—Children—Complainant both single witness and child witness—Court to be alive to danger of relying on evidence of only one witness—Evidence of child potentially unreliable and untrustworthy—Certain guidelines of assistance in applying cautionary rules: need for caution, and reasons therefor, should be articulated in judgment; evidence to be clear and substantially satisfactory in all material respects; although corroboration not prerequisite, in appropriate circumstances court should seek it before convicting accused; failing corroboration, court to look for some feature in evidence giving hallmark of trustworthiness, sufficient to reduce risk of wrong reliance on evidence.

Evidence—Adequacy of proof—Cautionary rule—Children—Cautionary rules 'red flag’, warning court to bear number of factors in mind when evaluating evidence: evasiveness on part of witness; lapse of significant period of time between incident and trial; possibility of witness having grudge against accused, or motive falsely to implicate him; and fact that child might have difficulty separating reality from fantasy—These factors present in casu—Conversely, evidence of appellant not shaken in any way in cross-examination—Appellant honest and direct, not evasive or untruthful, and evidence appearing entirely probable—No adverse credibility findings made against him by trial court—With cautionary rules in mind, conclusion inevitable that complainant’s evidence lacking degree of trustworthiness which would allow State to overcome burden of proof—Accordingly, appellant’s guilt not proved beyond reasonable doubt.

 

S v BOTES (GNP)

MAVUNDLA J, VAN DER BYL AJ and MAUMELA AJ

2010 NOVEMBER 29; DECEMBER 3

Sentence—Imposition of—Factors to be taken into account—Racially motivated crime—Such crimes offending against ethos, aspirations of people and South Africa’s nascent democracy—Dangers of racially motivated crimes—Racist bigotry not to be tolerated, regardless of age of perpetrator, also in respect of youth—Need to deepen and strengthen ethos of Constitution—Duty on courts to impose harsher sentences in respect of racially motivated crimes.

Juvenile offenders—Sentence—Factors to be taken into account—Racially motivated crime—Appellant 17 years old at time of commission of offence—Racially motivated crimes offending against ethos and aspirations of people and South Africa’s nascent democracy—Dangers of racially motivated crimes—Racist bigotry not to be tolerated, regardless of age of perpetrator, also in respect of youth—Need to deepen and strengthen ethos of Constitution—Duty on courts to impose harsher sentences in respect of racially motivated crimes—Sentence of 15 years’ imprisonment not shockingly inappropriate—Sentence confirmed on appeal.

 

S v PB (SCA)

PONNAN JA, MHLANTLA JA and TSHIQI JA

2010 NOVEMBER 22; DECEMBER 1

Sentence—Prescribed sentences—Minimum sentences—Imposition of in terms of s 51(1) of Criminal Law Amendment Act 105 of 1997—'Substantial and compelling circumstances’—Proper approach to such determination reiterated—Courts warned against falling into trap of finding 'flimsy reasons’ and '(s)peculative hypotheses favourable to the offender’, in favour of imposing lesser sentence than prescribed minimum.

 

S v NGABASE AND ANOTHER (ECG)

CHETTY J and CONJWA AJ

2010 NOVEMBER 10, 25

Sentence—Several offences—Separate counts may be taken together for purpose of sentence only in exceptional circumstances—Globular sentence for number of offences presenting problems on appeal—Difficult to determine how trial court assessed seriousness of each offence and what moved trial court to impose sentence it did.

Trial—Record—Judgment—Reasons for—Duty of presiding officer to provide reasons for judgment—Trial court not providing reasons, resulting in court of appeal being unable to determine basis upon which convictions founded.

 

MINISTER OF SAFETY AND SECURITY AND OTHERS v CRAIG AND OTHERS NNO (SCA)

NAVSA JA, BRAND JA, PONNAN JA, MLAMBO JA and MHLANTLA JA

2009 AUGUST 27; SEPTEMBER 17

Appeal—Generally—Approach on appeal—Credibility findings of trial court—Courts of appeal, while slow to disturb credibility findings based on personal impressions made by demeanour of witnesses, having greater liberty in doing so where findings based on inferences, other facts and probabilities—In such cases, having benefit of full record, courts of appeal may often be better placed in drawing inferences than trial court.

Police—Duties and powers of—Towards persons in their custody after arrest—Reiterated that police have duty to see to well-being of such persons—Police standing orders placing obligation on police to obtain necessary medical assistance for detainees where they appear to be in distress and are injured or ill—Courts to be vigilant in ensuring that police comply with such obligation.

 

S v KHOZA (GSJ)

CJ CLAASSEN J and MOKGOATLHENG J

2010 OCTOBER 20

Sentence—Compensatory order—Section 300 of Criminal Procedure Act 51 of 1977—Order under s 300 appropriate only where accused having sufficient assets to compensate complainant in full or to large extent—Where accused able to pay only in instalments, more appropriate and practical to impose sentence suspended on condition of periodical payments—In casu, more should have been done to establish whether accused could comply with order and whether it satisfied complainant—Proceedings not in accordance with justice—Sentence set aside and matter referred back to trial court for sentencing afresh.

 

S v BHADU (ECG)

JONES J and PILLAY J

2009 NOVEMBER 18; DECEMBER 3

Sentence—Imposition of—Factors to be taken into consideration—Period accused in custody awaiting trial—Such to be considered in determining term of imprisonment—Improper for presiding officer to adopt approach that accused having only himself to blame for being in custody by not pleading guilty—Allowance made for period in custody awaiting trial by increasing suspended portion of sentence of imprisonment.

 

S v JACOBS (ECP)

ROBERSON AJ

2009 NOVEMBER 27 2010 JANUARY 14

Bail—Application for—Accused granted bail unable to pay any sum of money—Where granting of bail in interest of justice, whether court having discretion to deny impecunious accused bail—Criminal Procedure Act 51 of 1977, s 60(2B)(b)(i)—Proper interpretation of—Subsection not saying court having to release impecunious accused on bail conditions other than payment of money, but that court may 'consider’ that option—Court retaining discretion to consider factors other than accused’s inability to pay sum of money, in determining conditions upon which accused may be released.

Bail—Application for—Factors to be taken into account—Courts entitled to take judicial notice of fact that country’s prisons grossly overcrowded—Overcrowding potentially violating accused’s dignity and threatening his physical health and safety—These vitally important factors, especially where accused remaining in custody only because of inability to pay bail—No person, having been granted bail, should have to remain in custody due to inability to pay—Section 60(2B) of Criminal Procedure Act 51 of 1977 reminding judicial officers to consider properly amount of bail to be set, as well as other conditions of release, just as effective for administration of justice as payment of money.

 

S v TSHABALALA (GNP)

MAVUNDLA J and TOLMAY J

2010 DECEMBER 8

Plea—Plea of guilty—Questioning in terms of s 112(1)(b)of Criminal Procedure Act 51 of 1977—Right of accused to remain silent and not to be compelled to give incriminating evidence as entrenched in s 35(3) of Constitution—Necessary for accused who intends to plead guilty to be informed by presiding officer of right to remain silent before he is questioned in terms of s 112(1)(b)—Such enabling accused to make informed decision—Failure to so inform accused of right to remain silent irregularity—Whether trial therefore unfair to be decided on case-by-case basis.

 

S v JACOBS (ECG)

DAWOOD J and SMITH J

2010 AUGUST 4; OCTOBER 12

Sentence—Prescribed sentences—Minimum sentences—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—Unrepresented accused—Magistrate not explaining sentencing provisions relating to repeat offenders—Incumbent on magistrate to explain provisions of Act as applying to first, second and third offenders, if same not appearing on charge-sheet—Given such explanation, appellant possibly making different decisions regarding plea and/or choice of legal representation—Failure to inform appellant of potential sentences constituting substantial and compelling factor warranting departure from prescribed minimum sentence—15-year sentence thus vitiated by irregularity—Set aside and replaced with sentence of 10 years’ imprisonment.

 

S v MM; S v JS; S v JV (GNP)

SOUTHWOOD J, MAKGOKA J and KOLLAPEN AJ

2010 NOVEMBER 8; DECEMBER 8, 10

Sentence—Prescribed sentences—Minimum sentences—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—Importance of avoiding disproportionate sentences reiterated and emphasised—Necessary to apply 'determinative test’ laid down in authorities for determining whether prescribed sentence may be departed from—Meaning of 'determinative test’ restated—Thus where court satisfied that lesser sentence than prescribed sentence is called for in particular case, it is bound to impose that lesser sentence.

 

NAMIBIAN LAW REPORTS - 2010 (2)

TABLE OF CASES

• Trustco Group International Ltd and Others v Shikongo 2010 (2) NR 377 (SC)

• Kalipi Ngelenge t/a Rundu Construction v Anton E van Schalkwyk t/a Rundu Welding & Construction 2010 (2) NR 406 (HC)

• S v Hengari 2010 (2) NR 412 (HC)

• Municipal Council of the Municipality of Windhoek v Esau 2010 (2) NR 414 (LC)

• NS v PS 2010 (2) NR 418 (HC)

• S v HN 2010 (2) NR 429 (HC)

• Onesmus v Permanent Secretary: Finance and Others 2010 (2) NR 460 (HC)

• International Underwater Sampling Ltd and Another v MEP Systems (Pty) Ltd 2010 (2) NR 468 (HC)

• S v Litombo 2010 (2) NR 473 (HC)

• Shoprite Namibia (Pty) Ltd v Paulo and Another 2010 (2) NR 475 (LC)

• Rally for Democracy and Progress and Others v Electoral Commission of Namibia and Others 2010 (2) NR 487 (SC)

• S v Paulus and Another 2010 (2) NR 534 (HC)

• Government of Namibia and Others v Africa Personnel Services (Pty) Ltd 2010 (2) NR 537 (HC)

• Van Rensburg v Sefofane Air Charters (Pty) Ltd and Another 2010 (2) NR 554 (LC)

• S v Mushishi 2010 (2) NR 559 (HC)

• Trustco Insurance Ltd t/a Legal Shield Namibia and Another v Deeds Registries Regulation Board and Others 2010 (2) NR 565 (HC)

• RH v NS 2010 (2) NR 584 (HC)

• S v Malumo and Others 2010 (2) NR 595 (SC)

• S v Mika 2010 (2) NR 611 (HC)

• Pinks Family Outfitters (Pty) Ltd t/a Woolworths v Hendricks 2010 (2) NR 616 (LC)

• Worku v Equity Aviation (Pty) Ltd 2010 (2) NR 621 (SC)

• S v Andima 2010 (2) NR 639 (HC)

• Gabriel v Minister of Safety and Security 2010 (2) NR 648 (HC)

• LS v MB and Another 2010 (2) NR 655 (HC)

• Medical Association of Namibia Ltd and Another v Minister of Health and Social Services and Others 2010 (2) NR 660 (HC)

• Fischer Seelenbinder Associates CC v Steelforce CC 2010 (2) NR 684 (HC)

• S v Undari 2010 (2) NR 695 (HC)

• Namibia Development Corporation v Aussenkehr Farms (Pty) Ltd 2010 (2) NR 703 (HC)

• Knouwds NO (in his capacity as Provisional Liquidator of Avid Investment Corporation (Pty) Ltd) v Josea and Another 2010 (2) NR 754 (SC)

• DK v DK 2010 (2) NR 761 (HC)

   

FLYNOTES

TRUSTCO GROUP INTERNATIONAL LTD AND OTHERS v SHIKONGO (SC)

CHOMBA AJA, LANGA AJA and O’REGAN AJA

2010 APRIL 15; JULY 7

Constitutional law—Freedom of speech and expression guaranteed by art 21 of Namibian Constitution—Such freedom central to vibrant democracy—Media had duty to hold public officials accountable and inform citizens—However, such power should be wielded in responsible manner—Limitation of freedom in art 21(2) important in law of defamation—Such limitation protecting media and not placing human dignity at risk.

Defamation—Mass media—Defendant that could show that publication reasonable and in public interest not publishing defamatory statement—Strict liability no longer part of our law—Statement defamatory if those responsible for publication acted negligently.

Defamation—Media—Defences—Defence of reasonable publication—Law requiring responsible journalism—Requirement striking balance between freedom of expression and human dignity—Courts should not place unreasonable standards on journalists—However, accurate reporting important.

Defamation—What constitutes—Article in tabloid newspaper alleging that respondent involved in underhand land deal—Respondent mayor of Windhoek—Deal likened to 'Broederbond’ cartel—Court finding on appeal that article defamatory—Journalist not doing enough to verify facts—Article alleging that respondent placed his interests above those of citizens—Court upholding trial court decision that respondent entitled to damages for defamation.

 

KALIPI NGELENGE t/a RUNDU CONSTRUCTION v ANTON E VAN SCHALKWYK t/a RUNDU WELDING & CONSTRUCTION (HC)

DAMASEB JP

2010 FEBRUARY 2, 5

Contract—Breach of contract—Damages—Plaintiff must allege and prove nature and method of calculation—Damages cannot be presumed just because there was breach of contract.

Contract—Formation of—Consensus—Tacit relocation—Proof of—Party cannot rely on tacit relocation where reliance unsubstantiated by pleadings or evidence.

 

S v HENGARI (HC)

MAINGA J and VAN NIEKERK J

2010 APRIL 1

Criminal law—Attempted rape—Sentence—Combating of Rape Act 8 of 2000 not providing for attempted rape—Section 18(1) of Riotous Assemblies Act 17 of 1956 applicable—Consequently, s 3 of Act 8 of 2000 will apply when sentencing an accused for attempted rape.

 

MUNICIPAL COUNCIL OF THE MUNICIPALITY OF WINDHOEK v ESAU (LC)

HOFF J

2010 MARCH 5, 12

Appeal—Prosecution of appeal—Labour Court rules requiring prosecution of appeal within 90 days after appeal noted—Failure to prosecute appeal timeously resulting in appeal deemed to have lapsed.

 

NS v PS (HC)

DAMASEB JP

2010 MARCH 9, 10, 11, 26

Husband and wife—Custody of minor children—Desirable that custody of relatively young children should be awarded to mother—However, rule not inflexible—In present case, custody awarded to father—Father showing that he better able to take care of minor children—Awarding custody to mother may have involved relocating children, which would be very disruptive to them.

Husband and wife—Rehabilitative maintenance—Award dependent on ability of guilty party to pay and innocent party to support herself—Court in present case awarding rehabilitative maintenance of N$500 per month for 24 months from date of order.

 

S v HN (HC)

LIEBENBERG J

2010 FEBRUARY 9, 10, 12, 15–19; MARCH 8–10, 12, 16, 24

Criminal procedure—Evidence—Evidence of single witness—Sufficiency of—Accused can be convicted on evidence of single witness—Though court must exercise caution, common sense should prevail—Evidence ofsingle witness need not be perfect in every respect—Court must be satisfied that truth was told.

Criminal procedure—Evidence—Circumstantial evidence—Inferences to be drawn from circumstantial evidence—Inference must be consistent with proved facts—Inference must exclude any other inference—Law not requiring court to act upon absolute certainty—When dealing with circumstantial evidence, court must consider cumulative effect of all the evidence.

Criminal procedure—Evidence—Assessment of—Witnesses—The accused—Untruthfulness of accused—False evidence by accused not meaning that accused is guilty—Circumstances of each case must be considered in the light of other evidence—General principles for dealing with false statements by accused, set out.

 

ONESMUS v PERMANENT SECRETARY: FINANCE AND OTHERS (HC)

HEATHCOTE AJ

2009 JANUARY 2010 OCTOBER 22

Administrative law—Audi alteram partem—Applicant, a public servant, transferred to another department—No reasons given for transfer—Applicant not given opportunity to make representations—Court setting transfer aside on review—Respondents had not complied with art 18 of Constitution, nor with the audi alteram partem principle.

 

INTERNATIONAL UNDERWATER SAMPLING LTD AND ANOTHER v MEP SYSTEMS (PTY) LTD (HC)

PARKER J

2009 DECEMBER 15 2010 JANUARY 12

Shipping—Admiralty action in rem—Respondent issuing summons in rem for goods sold and delivered—Applicants seeking to set summons aside—Court dismissing application on ground that respondent sold and delivered 'necessaries’—Word not defined in Admiralty legislation—Word 'necessaries’ must be given ordinary meaning—Goods supplied were for functioning of vessel and thus constituted 'necessaries’.

 

S v LITOMBO (HC)

HOFF J and VAN NIEKERK J

2010 FEBRUARY 12

Criminal procedure—Forfeiture—Purpose of s 35(1)(a) of Criminal Procedure Act 51 of 1977—Section deals with articles used as resource or means in commission of offence—Section does not apply to article which is exhibit or subject matter of offence.

 

SHOPRITE NAMIBIA (PTY) LTD v PAULO AND ANOTHER (LC)

HOFF J

2010 MARCH 19, 26

Practice—Applications and motions—Artificial persons—Court must be satisfied that deponents in proceedings on behalf of artificial persons, have requisite authority—Party entitled to rectify procedural defect if resolution not in order.

Practice—Applications and motions—Urgent applications—Applicant applying to suspend operation of arbitrator’s award pending appeal—Such applications by their very nature urgent—Court satisfied in present case that applicant launched application as soon as possible.

Practice—Applications and motions—Order suspending operation of arbitrator’s award pending appeal—Prerequisites for interim interdict applicable in interdict pendente lite: clear right; balance of convenience and irreparable harm; no other remedy—Applicant must also satisfy court of prospects of success—Court satisfied in present case that applicant had good prospects of success—Operation of arbitrator’s award accordingly suspended, pending appeal.

 

RALLY FOR DEMOCRACY AND PROGRESS AND OTHERS v ELECTORAL COMMISSION OF NAMIBIA AND OTHERS (SC)

SHIVUTE CJ, MARITZ JA, CHOMBA AJA, MTAMBANENGWE AJA and LANGA AJA

2010 SEPTEMBER 6; MAY 31

Election law—Elections—Application to challenge validity of election in terms of Electoral Act 24 of 1992—Section 110(1) requiring lodging of application with registrar within 30 days—Appellants lodging application within prescribed time but after normal office hours of registrar as laid down in rule 3 of the High Court Rules—Court a quo upholding respondents’ point in limine that application not filed timeously and striking application from the roll—Rule 3 of High Court rules providing that registrar can accept papers after normal office hours in exceptional circumstances—Rule 3 and s 110 must be read together in determining whether application filed timeously—Rule 3 not precluding, but conditionally allowing, presentation of application after normal office hours—Purpose of rules to create expeditious and uniform administration of justice.

Court—Rules of court—Appellants filing election application within 30 days as provided in s 110(1) of Electoral Act—Application filed after registrar’s normal office hours—Rule 3 providing that registrar 'may’ accept papers after normal office hours in exceptional circumstances—Registrar in present case accepting such application after normal office hours—Word 'may’ clearly indicating that registrar has discretion—If registrar refuses to accept documents outside office hours, party can approach court for direction—In present case, registrar’s stamp indicating that she considered there to be exceptional circumstances—Registrar’s action giving rise to rebuttable presumption of regularity—Registrar exercising administrative function—Presumption is to the effect that administrative actions presumed to be regular until challenged and set aside by court.

Court—Rules of court—Registrar accepting election application after normal office hours—Registrar’s decision clearly involving a 'detail of required procedure in the routine of a litigation’—Registrar acting under rules and conducting herself as public officer—Litigants entitled to continue further prosecution of application in fulfilling other requirements—Court satisfied that exceptional circumstances existing in present case—Election applications needed to be dealt with expeditiously—Papers clearly indicating that application prepared under difficult circumstances—Registrar accordingly entitled to accept application after normal office hours—Such acceptance not prejudicing respondents in any way—Court on appeal setting aside order of court a quo striking application from roll—Appeal upheld.

 

S v PAULUS AND ANOTHER (HC)

LIEBENBERG J and TOMMASI J

2010 AUGUST 2

Criminal procedure—Trial—Addressing court at close of State and defence case in terms of s 175 of Criminal Procedure Act 51 of 1977—Depriving accused of opportunity to address court amounting to gross irregularity—However, conviction only to be set aside where court satisfied that accused severely prejudiced where deprived of such opportunity.

 

GOVERNMENT OF NAMIBIA AND OTHERS v AFRICA PERSONNEL SERVICES (PTY) LTD (HC)

HEATHCOTE AJ

2009 OCTOBER 16; NOVEMBER 11, 13

Judgments and orders—Variation of order—Whether court that made order can vary order—Inherent jurisdiction allowing court to do so but only in exceptional circumstances—Court cannot lay down hard and fast rule, but order can be varied where order of procedural or incidental nature and where factors originally taken into account, have disappeared because of new facts arising—Existence of new facts not prerequisite for varying order—However, cases where no new facts came into existence would seldom arise.

 

VAN RENSBURG v SEFOFANE AIR CHARTERS (PTY) LTD AND ANOTHER (LC)

GEIER AJ

2010 JULY 8

Labour Court—Jurisdiction—Applicant seeking urgent order that he be permitted legal representation at disciplinary hearing—Such hearing not yet commenced—Disciplinary code providing for right of appeal—Court not prepared to interfere at such early stage—Generally, courts will only intervene in such circumstances where grave injustice might result—In present case, possibility of grave injustice mere speculation—Application struck from roll with costs.

 

S v MUSHISHI (HC)

LIEBENBERG J

2010 JUNE 22, 24

Criminal procedure—Sentence—Factors taken into account—Accused convicted of murdering his wife—Crimes of violence against women and children far too prevalent in our society—Courts must send harsh message that such conduct will not be tolerated.

Criminal procedure—Sentence—Medical condition of accused—Accused’s medical condition and availability of medical treatment forming part of accused’s personal circumstances—Court satisfied that accused in present case would have adequate access to medical treatment—Court accordingly not precluded from passing custodial sentence.

 

TRUSTCO INSURANCE LTD t/a LEGAL SHIELD NAMIBIA AND ANOTHER v DEEDS REGISTRIES REGULATION BOARD AND OTHERS (HC)

PARKER J and NDAUENDAPO J

2010 MARCH 23, JUNE 4

Constitutional law—Locus standi—First applicant short–term insurer entering into agreement with second applicant, firm of conveyancers—Agreement providing that second applicant would perform conveyancing for first applicant’s members at hourly rate—Regulations under Deeds Registries Act 47 of 1937 prescribing fees based on value of immovable property—Applicants seeking to set aside regulations as violating art 21(1)(j) of the Constitution—Court holding that first applicant not precluded from practising profession or carrying on business, since first applicant not a conveyancer—First applicant accordingly having no locus standi—Application of first applicant dismissed with costs.

Constitutional law—Right to carry on business or profession under art 21(1)(j)—Whether regulations under Deeds Registries Act 47 of 1937 violating rights under this article—Contention that subart (j) containing 'corollary’ to 'compete on price’—No justification provision which not stated in sub-article—No indication in sub-article that such 'corollary’ intended.

Constitutional law—Fair administrative justice in terms of art 18 of Constitution—Whether regulations under Deeds Registries Act 47 of 1937 constituting unfair administrative act—Regulations held to fulfil requirements of fair administrative act, viz to have proper foundation; no dishonest motive and effect of regulations neither harsh nor unfair—Regulations accordingly not unfair administrative act.

 

RH v NS (HC)

MULLER J

2010 JUNE 22; JULY 16

Husband and wife—Relief pendente lite in terms of rule 43—Purpose of rule to provide interim relief—Court in main trial not bound by findings in rule 43 applications—Applicant husband seeking interim custody, maintenance and contribution towards costs—Minor child living with respondent mother—Applicant living in adulterous relationship—Not in best interests of child to be removed—Trial a mere five months hence—Applicant earning sufficient income—Application dismissed with costs.

 

S v MALUMO AND OTHERS (SC)

MARITZ JA, STRYDOM AJA and MTAMBANENGWE AJA.

2010 JUNE 8; SEPTEMBER 14

Review—Review jurisdiction of Supreme Court—In what cases—Review referring to conduct rather than result of trial—In present case, where court a quo ruled certain statements by accused inadmissible, no suggestion of irregularities in conduct of case—Exercise of review jurisdiction accordingly not competent in present case.

Appeal—Leave to appeal—In what cases—Interlocutory matters—Court a quo ruling certain statements by accused inadmissible after trial-within-atrial—Court a quo refusing leave to appeal—State filing petition for leave to appeal—Section 316 read with s 316A of Criminal Procedure Act 51 of 1977, applicable legislation—Court not readily entertaining piecemeal appeals—Ruling on admissibility of statements interlocutory—Court a quo can change ruling of admissibility at end of trial—Court finding no exceptional circumstances for granting leave to appeal at this stage of the proceedings—Petition for leave to appeal accordingly dismissed.

 

S v MIKA (HC)

LIEBENBERG J and TOMMASI J

2010 JULY 28

Criminal procedure—The accused—Report on mental state of accused in terms of s 79 of Act 51 of 1977—Court should follow guidelines and requirements set out in s 78.

Criminal procedure—The accused—Report in terms of s 79 of Act 51 of 1977—Where accused unrepresented, not sufficient simply to furnish accused with copy of report—Court should make every effort to explain report to accused, especially where report needs to be interpreted into his own language.

 

PINKS FAMILY OUTFITTERS (PTY) LTD t/a WOOLWORTHS v HENDRICKS (LC)

SWANEPOEL J

2009 JULY 24; 2010 JUNE 29

Labour law—General principles—Fairness and reasonableness form integral part of employment relationship—Court must take interests of both employer and employee into account when making awards.

Labour law—Damages—Award of damages constituting exercise of discretion—Such discretion to be exercised judicially—Such discretion a matter of argument and not of evidence—Court on appeal varying award of damages—Court not satisfied that trial court exercised discretion judicially—Court on appeal accordingly at liberty to interfere with decision.

 

WORKU v EQUITY AVIATION (PTY) LTD (SC)

SHIVUTE CJ, CHOMBA AJA and SILUNGWE AJA

2007 NOVEMBER 5 2009 JULY 7

Legal practitioner—Rights and duties—Authority of legal practitioner—Legal practitioner and client relationship similar to that of principal and agent—Authority to appear on behalf of litigant implies authority to settle case—Counsel should always act bona fide and in client’s interest.

Legal practitioner—Rights and duties—Authority of legal practitioner—Legal practitioner and client relationship—Legal practitioner entering into settlement negotiations on behalf of client—Legal practitioner has duty accurately to convey terms of settlement to client—Where client not satisfied, counsel obliged to continue settlement negotiations—Counsel should make sure that has clear mandate from client to agree to settlement—Counsel must satisfy himself that acting in accordance with client’s instructions.

 

S v ANDIMA (HC)

MULLER J and SWANEPOEL J

2010 JUNE 7, 25

Appeal—Application for condonation for late filing of notice of appeal—Court will take cumulative circumstances into account—Court will balance explanation for late filing with prospects of success—In present case, court granting condonation, since prospects of success very good even though not satisfied with explanation for delay.

Criminal procedure—Evidence—Adequacy of proof—Appellant convicted of murder—State not proving identity of deceased—No evidence that postmortem conducted on person allegedly stabbed by appellant—Appellant also not admitting identity of deceased in terms of s 220 of Criminal Procedure Act 51 of 1977—State accordingly not discharging onus of proof beyond reasonable doubt—Conviction and sentence accordingly set aside.

 

GABRIEL v MINISTER OF SAFETY AND SECURITY (HC)

MULLER J

2010 JULY 9; JUNE 8 2010

Criminal procedure—Wrongful arrest—What constitutes—Unlawful arrest and detention—Plaintiff unlawfully arrested and detained—Plaintiff’s further detention subsequently ordered by magistrate—Fact that arrest and initial detention unlawful irrelevant—Subsequent detention ordered by magistrate accordingly not unlawful.

 

LS v MB AND ANOTHER (HC)

HEATHCOTE AJ

2009 OCTOBER 29

Minor—Court’s role as upper guardian—First respondent bringing ex parte application in magistrates’ court in terms of Combating of Domestic Violence Act 4 of 2003—Application dealing with interests of minor child—High Court, as upper guardian of minors, having jurisdiction to deal with matter, even though return day pending in magistrates’ court.

Practice—Applications and motions—Applications in terms of Combating of Domestic Violence Act 4 of 2003—Ex parte relief—Parties not entitled to ex parte applications in magistrates’ court as of right—Magistrate must satisfy herself that applicant entitled to ex parte relief.

 

MEDICAL ASSOCIATION OF NAMIBIA LTD AND ANOTHER v MINISTER OF HEALTH AND SOCIAL SERVICES AND OTHERS (HC)

GEIER AJ

2010 JUNE 28; MAY 17

Statute—Regulations made in terms of statute—Medicines and Related Substances Control Act 13 of 2003 coming into operation on 25 July 2008—Regulations in terms of s 44 of Act published in Government Gazette on 9 November 2004—Regulations and Act coming into operation simultaneously—Regulations null and void—Section 44 of the Medicines Act of 2003 not in force when regulations made—Council appointed under 1965 Act not appointed in accordance with statutory provisions—Compliance with s 44 of 2003 Act impossible as Act not yet in force—Minister could also not put regulations and Act into operation simultaneously—Act only becoming law when commencing operation—Minister acting ultra vires—Regulations set aside in toto.

Administrative law—Review—Right to administrative justice in terms of art 18 of Constitution—Review of administrative decisions—Medical practitioners wishing to dispense medicine requiring licence in terms of Medicines Act 2003—Licence must be applied for within three month after commencement of Act in form prescribed by regulations—Invalid regulations constituting violation of art 18—Court entitled to deal with constitutional issue in terms of art 25 of Constitution—Court ordering, in addition to setting aside regulations, that three month period for application for licences to commence once valid regulations published.

 

FISCHER SEELENBINDER ASSOCIATES CC v STEELFORCE CC (HC)

VAN NIEKERK J

2010 AUGUST 9; JUNE 22

Engineering and construction law—Civil engineering contract—Breach—What constitutes—Plaintiff and defendant entering into agreement that plaintiff would carry out engineering work—During trial transpired that person,whocarried out engineering work not registered engineer—Defendant seeking to amend plea to the effect that agreement void—Defendant relying on s 16 of Engineering Professions Act 18 of 1986—Section creating offences where person pretends or holds himself out to be engineer—Nothing in section to indicate that legislature intended agreement to be void—Legislature merely providing for punishment for breach of section—Application to amend plea accordingly dismissed with costs.

 

S v UNDARI (HC)

LIEBENBERG J and TOMMASI J

2010 AUGUST 12; JULY 30

Criminal procedure—Sentence—Prescribed sentences—Minimum sentences in terms of Stock Theft Act 12 of 1990—Crucial that value of stock stolen should be determined—Value of stock impacts on sentence—Such value should be determined in magistrates’ court in order to decide whether accused should be transferred to regional court for sentence.

 

NAMIBIA DEVELOPMENT CORPORATION v AUSSENKEHR FARMS (PTY) LTD (HC)

HEATHCOTE AJ

2009 NOVEMBER 6; SEPTEMBER 29

Court—High court—Jurisdiction—Inherent jurisdiction of High Court—What constitutes—Court possessing reservoir of power to be employed where law not catering for given situation—Court to balance scales of justice in administration of justice—Once court determining that it has jurisdiction, court must exercise discretion—Such discretion to be exercised judicially—Discretion not based on intuition but on existing law—Court also to take account of stare decisis principle.

Practice—Irregular proceedings—Application in terms of rule 30 of the High Court—Party cannot simply ignore irregular proceeding—Application must be made to set irregular step aside—Court has discretion to set aside irregular proceeding—Prerequisite for setting such proceeding aside—Party applying in terms of rule 30 must show that has suffered prejudice.

Practice—Applications and motions—Abuse of procedure—Meritless abuse—What constitutes—Such abuse taking place where procedures permitted by the rules of court to facilitate the better administration of justice were used for purposes extraneous to this object—Court must exercise discretion in regard to meritless abuse, sparingly—Case must be beyond repair to qualify for meritless abuse—Court will only set aside proceeding on grounds of meritless abuse, where defect cannot be cured by amendment or trial process itself.

Practice—Applications and motions—Abuse of procedure—Dilatory abuse—Not only question whether unreasonable time has lapsed—Defendant must show that plaintiff intended to abuse it and court, albeit by dolus eventualis—Court will also take into account prejudice suffered by other party—Court will exercise discretion sparingly in cases of alleged dilatory abuse—Fact that defendant could have used 'compel’ procedure, eg rule 26, not playing role in exercise of discretion—Court will set proceeding aside where defendant suffers severe prejudice and no longer possible for defendant to have fair trial.

Practice—Pleadings—Striking out—Application to strike out certain paragraphs in replying affidavit—Test not merely whether allegations constituting new evidence, but whether such evidence should have been contained in founding affidavit—Law not expecting applicant to place all possible evidence in founding affidavit—Court will take into account prejudice to respondent—Court will allow new evidence in replying affidavit where such evidence serves as response to answering affidavit—However, applicant cannot introduce evidence in replying affidavit which constitutes new grounds for relief—Fact that respondent can apply to file supplementary affidavit, not factor in favour of applicant—Ultimately, court must be satisfied that both parties will have fair hearing.

 

KNOUWDS NO (IN HIS CAPACITY AS PROVISIONAL LIQUIDATOR OF AVID INVESTMENT CORPORATION (PTY) LTD) v JOSEA AND ANOTHER (SC)

SHIVUTE CJ, STRYDOM AJA and MTAMBANENGWE AJA

2010 SEPTEMBER 14; MARCH 10

Appeal—In what cases—Court a quo discharging provisional sequestration order on grounds of non-service on respondents—Such decision neither final nor definitive of rights of parties—Sequestration order discharged on procedural grounds—Such decision not a 'judgment or order’ and not appealable as of right—Appeal struck off the roll with costs.

 

DK v DK (HC)

UEITELE AJ

2010 AUGUST 19; MAY 18