LEGAL NOTES VOL 11/2015

Compiled by: Adv M Klein

INDEX[footnoteRef:1] [1: A reminder that these Legal Notes are my summaries of all reported cases as are set out in the Index. In other words where I refer to the June 2015 SACR , you will find summaries of all the cases in that book. It is for private use only. It is only an indication as to what was reported, a tool to help you to see if there is a case that you can use! ]

EDITORIAL

SOUTH AFRICAN LAW REPORTS OCTOBER 2015

SA CRIMINAL LAW REPORTS OCTOBER 2015

All SOUTH AFRICAN LAW REPORTS OCTOBER 2015

EDITORIAL

There is a saying that goes like this: He/she was too clever by half.[footnoteRef:2] Treat yourself by reading Absa Bank v Jansen van Rensburg.The articled clerk had a mandate to push the price at an auction to R35000.00 and he pushed it to R125000.00 and he got it, on behalf of his principal, Absa!! Ha ha! It reminded me of my younger days as liquidatorpushing the price and then the banks got clever: rather make the sale subject to confirmation by the bond holder. But they still do not have an answer for the normal execution salesso somebody must push the price! I too was tasked once to do it, what worried me most was that should the bid fall on me and the agent who asked me to push the price, then backs off. The clerk was lucky that he somehow proved acting as agent! [2: to be too confidentof yourown intelligencein a way that annoysother people: She was too clever by half- always correctingthe teacheror coming back with a smartanswer.]

S.A. LAW REPORTS OCTOBER 2015

PIETERSE v CLICKS GROUP LTD AND ANOTHER 2015 (5) SA 317 (GJ)

Defamation Liability Accusation of suspicion of shoplifting Defence ofreasonable suspicion competent But fault in form of negligence will suffice to attract liability.

Delict Specific forms Injuria Infringement of dignitas Stopping and searching of customer suspected of shoplifting Defence of reasonable suspicion competent But fault in form of negligence will suffice to attract liability.

A customer falsely accused of shoplifting would establish the fault element of an injuria or defamation claim if able to show negligence on the part of the shop owner. The shop owner would escape liability if able to show that there were reasonable grounds for suspecting the customer.

Ms Pieterse was stopped at a tillpoint in a store owned by the Clicks Group. The cashier (the second respondent) said, 'Ma'am, your bag,' and later 'No ma'am I saw you put something in your bag'. Ms Pieterse's handbag was fruitlessly searched. Her claim for damages for defamation and injuria was met by a defence of reasonable suspicion and lack of intent (animus injuriandi).

Held

Ms Pieterse would succeed on the following grounds:

The statements and search amounted to an insult.

Clicks failed to prove the factual basis upon which the cashier could have formed a reasonable suspicion that Ms Pieterse was shoplifting.

The cashier exceeded the bounds of her authority and acted against express company policy.

Clicks could not rely on genuine mistake because Ms Pieterse was not observed putting something into her handbag at the till as alleged.

The cashier was negligent because her conduct was unnecessarily invasive.

R25 000 awarded.

DOUG PARSONS PROPERTY INVESTMENTS (PTY) LTD v ERASMUS DE KLERK INC 2015 (5) SA 344 (GJ)

Value-added tax Duty in dealing with value-added tax collected from purchaser No legal duty on conveyancer to pay it over to South African Revenue Service or to ensure that seller did so.

Conveyancer Rights and duties Duties Duty to exercise reasonable degree of skill and care in transfer of property Negligent to make payment of value-added tax collected from purchaser to director of seller company without authorising resolution Semble: Hands-off approach undesirable; attesting to documents as commissioner of oaths in absenceof deponent potentially fraudulent and dishonourable.

The plaintiff was the purchaser of immovable property, the defendant the conveyancing attorneys instructed by the seller company to attend to transfer. The transaction was treated as attracting value-added tax (VAT) in the mistaken belief that both parties were registered as VAT vendors with theSouth African Revenue Service (Sars). The purchaser paid the VAT amount into the conveyancers' trust account where it remained until after transfer. In the conveyancers' final invoice to the seller the VAT amount was reflected as 'paid to Sars' but payment had in fact not yet been made. Next, the two directors and sole shareholders of the seller requested that the conveyancerpay the purchase price, including the VAT amount, to one of them. The conveyancers agreed to do so upon their written instruction, which they then supplied and signed. This instruction, while purportedly made on behalf of the seller, made no mention of the seller. When it transpired that the seller was not a registered VAT vendor, the purchaser instituted action to recover the incorrectly paid VAT as damages jointly and severally from the conveyancers and the director who received payment thereof. Judgment bydefault was entered against the director but the purchaser's claim against the conveyancer was dismissed.

In this case, the conveyancer's appeal to the full bench, the issue was whether the conveyancers' impugned actions their failure to verify the seller's VAT status, and their payment thereof to an unrelated third party werenegligent for being in breach of the legal duties alleged and pleaded. These were that the conveyancers, before requesting the purchaser to pay VAT, owed them a legal duty to verify information supplied by the seller if it appeared false; and to ensure that once paid into their trust account the VAT amount was paid to Sars, and not dealt with negligently.

Held: There was no basis on which it could have been suspected that the information supplied was false. Therefore, consistent with the pleaded case, there was no legal duty on the respondent to go beyond the information furnished to it (by the seller) to determine its veracity.

The conveyancer did not have to pay VAT on the transaction to Sars. The sellermust declare this in his/her VAT return, and ultimately pay the amount to Sars. There was no duty therefore on the respondent to pay the money toSars or to ensure that such money was eventually paid to Sars by the seller.

A reasonable conveyancer would have ensured that the money was paid only in accordance with a valid instruction from its trust creditor the seller company and not from its individual shareholders or directors. Thatinstruction would have been in the form of a valid company resolution. The conveyancer was negligent in making payment to one of the directors in the absence of an instruction in the form of a valid company resolution from the seller. For delictual liability to arise there must, however, also be a causal nexis between such negligence and the plaintiff's damages. The question was whether the appellant would have suffered damage, in any event, evenin the absence of the respondent's negligence. The answer must be in the affirmative. It was clear from how the directors approached the matter that they had no intention of paying the money earmarked for VAT to Sars but were resolute to have the money paid into the account, requested. The money would therefore have ended up in the director's account, irrespective of whether the conveyancer was negligent or not in paying it out. For these reasons the appellant's appeal failed.

Semble: The conveyancer's hands-off approach leaving the secretary to deal with the transaction almost all by herself was undesirable and may, as in this case, result in dire consequences; and her commissioning of affidavits in deponent's absence was not only against the law, but also potentially fraudulent and dishonourable.

QUICK DRINK CO (PTY) LTD AND ANOTHER v MEDICINES CONTROL COUNCIL AND OTHERS 2015 (5) SA 358 (GP)

Constitutional law Constitution Foundational values Rule of law Law enforcement Selective enforcement Equality challenge Rational connectionto legitimate government objective required Targeted seizure set aside where no rational ground for differential treatment shown.

Medicine Medicines Control Council Powers Seizure of scheduled substance Applicant's consignment of electronic cigarettes containing nicotine seized No others targeted Amounting to selective enforcement of legislation No rational connection of legitimate government purposeshown Unfair Seizure set aside.

State Duties Law enforcement Selective enforcement due to limited resources State must show rational basis for selective or targeted enforcement.

The Medicines Control Council (the MCC) seized a consignment of electronic cigarettes imported by Quick Drink on the ground that they contained nicotine, a scheduled medicine. Quick Drink complained that the seizure was unlawful because it amounted to selective and unconstitutional enforcement of the relevant legislation.*It was common cause that electronic cigarettes were widely available in South Africa; that the seized consignment was Quick Drink's first; that Quick Drink had not begun retail operations; and that the MCC had, out of all the importers, distributors and retailers of electronic cigarettes, targeted only Quick Drink with enforcementaction. In response to a request by Quick Drink to provide grounds for its targeting, the MCC merely argued that it faced capacity constraints that prevented it from going after the others. The court had to answer two questions, namely whether the facts established that the seizure amounted to selective enforcement and, if so, whether the seizure should be set aside for being unlawful or unconstitutional.

Held: While the unequal or inconsistent enforcement of the law did not automatically violate the constitutional right to equality,selectiveenforcement would be constitutional only if it were rational, ie rationally connected to a legitimate government purpose. If the target of the selective enforcement were able toshow that it was a member of a class and that it was being treated differently from the other members, the discrimination would be unfair in the absence of proof of a rational connection between the targeting and some legitimate government purpose. The target would not, however, have to show that the discrimination was on account of some characteristic associated with it.

Quick Drink was able to show that it was treated differently from the otherentities in its class. While the regulation of electronic cigarettes containing nicotine might be a legitimate government purpose, it was difficult to see how the singling out of Quick Drink which had not even begun retail operations would further it. It would have made more sense for the MCC to have used its (allegedly scarce) resources to go after those already involved in the large-scale sale of electronic cigarettes. 'Capacity constraints' was in any event not a sufficient answer when an organ of state suchas the MCC was confronted with a serious allegation of selective and unlawful enforcement. Given the failure of the MCC to provide a rational basis for its targeting of Quick Drink, the seizure would be set aside as unconstitutional pending determination of the final relief.

CROSS-BORDER ROAD TRANSPORT AGENCY v CENTRAL AFRICAN ROAD SERVICES (PTY) LTD AND OTHERS 2015 (5) SA 370 (CC)

Constitutional law Legislation Validity Declaration of invalidity Retrospectivity Suspension period passing without enactment of remedial legislation Order silent on retrospectivity Effect Default position one of invalidity to date of promulgation unless varied by court Not necessary that expressly stated, such could be determined on proper construction of order Constitution, s 172(1)(b)(i).

The Minister of Transport promulgated amendments to regulations,*increasing the permit fees payable to the Cross-Border Road Transport Agency (Agency) by cross-border road-transport operations. Central African Road Services (Road Services) successfully challenged their constitutional validity in the High Court. The order was suspended for six months to correctthe defects. The Minister failed to enact remedial legislation within the period of suspension or apply for an extension. The parties disagreed on the retrospectivity of the order the court was silent on the issue. Road Services went to court a second time seeking orders inter alia compelling the issue of transport permits in terms of the pre-existing regulations and a declarationthat the order of invalidity came into operation on lapse of the suspension period with full retrospective effect to date of promulgation, which were granted. The Agency, after having been refused leave to appeal by the Supreme Court of Appeal, approached the Constitutional Court for leave to appeal (granted). It sought the setting-aside of the order of the second court and its replacement with a declaration that the invalidity only becameeffective prospectively from said lapse of the suspension period. The court was required inter alia to consider the principles governing the operation of orders in such circumstances. In a unanimous decision, the Constitutional Court,

Held that the consequences that ordinarily flowed from a declaration of constitutional invalidity included that the law would be invalid from themoment it was promulgated. That was the default position unless varied under s 172(1)(b)(i) of the Constitution. It was not necessary, however, that the court expressly limit retrospectivity such could be determined on an interpretation of the order with regard to the terms, context and judgment as a whole.

Applying these principles to the instant case the court held that the original orderof invalidity, properly construed, had not varied the default position. The order of the second court was accordingly confirmed. Appeal dismissed.

HYDE CONSTRUCTION CC v DEUCHAR FAMILY TRUST AND ANOTHER 2015 (5) SA 388 (WCC)

Trust Trustee Authority to institute legal proceedings Lack of authority of trustees Distinguished from lack of capacity of trust Ratification.

Deuchar Family Trust had applied to a High Court for the removal of an arbitrator in terms of s 13(2) of the Arbitration Act 42 of 1965. The trust was involved in the arbitration with Hyde Construction CC. The court had granted the relief, as well as leave to Hyde to appeal to the full bench. In issue was whether the trust had been properly before the court as an applicant.(The trust deed required there to be a minimum of three trustees and at the time the proceedings were instituted there were four. However, only two of the trustees had resolved to make the application. Subsequently, in another resolution, all four trustees had ratified the institution of proceedings.)

Held, that unauthorised institution of proceedings on behalf of a trust could beratified by a later decision of all the trustees. Thus the decision here by the two trustees to initiate proceedings had been validly ratified by the full body of trustees. This kind of situation, of a lack of authority on the part of the trustees, was to be distinguished from the situation where a trust lacked capacity to act. Thiswould be the case where the trust deed required there to be a specific number of trustees and where, at the time of the act in question, fewer than that number existed. In such an instance the act purportedly in the name of the trust would be a nullity and not ratifiable.

Also in issue was the statement in the founding affidavit that there were only twotrustees. Hyde contended that an act could only be ratified if the agent professed to perform it for his principal. Here, Hyde contended, the deposing trustee had not professed to act for the unmentioned third and fourth trustees, and accordingly his act could not be ratified.

Held, that, in a contractual context, a principal could only ratify a contractconcluded between his agent and a third party if the agent intended and professed to act on behalf of the principal. But authority in relation to a legal proceeding was different. One was not dealing with a consensual transaction but with a process controlled by the court. Thus, if the application had been instituted in the names of the first and second trusteesnomine officii, and it had later emerged that the third and fourth trustees had not been cited, the court could have permitted their joinder.

As it happened, though, the applicant was cited as the Deuchar Family Trust. (No objection was made to this manner of citation.) Given the character of a trust, its citation by name had to be understood as a reference to thetrustees for the time being. Hence, once the error in the affidavit was exposed, the third and fourth trustees named, and it was confirmed thatAthey had ratified the proceedings, nothing more was needed.

Further in issue was whether the parties had concluded an arbitration agreement incorporating rules excluding the operation of s 13(2) of the Arbitration Act.

Held, that the court was not satisfied of this. However, even assuming the partiesBhad concluded such an agreement, the contract, read with the rules, did not exclude the operation of s 13(2). That said, even if the procedure in the agreement were intended to be exclusive, the court would nevertheless have had a residual jurisdiction in terms of s 3(2) of the Act to determine the dispute. The last issue was whether there had been grounds for the court a quo to conclude that the arbitrator should be removed.

Held, that there had been. Appeal dismissed.

CENTRAL AUTHORITY v TK 2015 (5) SA 408 (GJ)

Children Abduction International abduction Child's habitual residence Determination Hague Convention on the Civil Aspects of International Child Abduction 1980, art 3.

The child in this case was born to Mr and Mrs K in 2006, who at the time lived in South Africa. In 2009 the family moved to the United Kingdom, after which, in 2013, Mrs K left with the child and returned to South Africa. Thereupon Mr K from the United Kingdom instituted the process in the Hague Convention on the Civil Aspects of International Child Abduction, 1980, for return of the child, which culminated in the application by the Central Authority of South Africa in the Gauteng Local Division of theHigh Court for its return.

In issue was how to determine whether a place was a child's habitual residence for purposes of art 3. (Article 3 refers to the 'state in which the child was habitually resident'.)

Held, that, to determine whether a place was a child's habitual residence was a factual inquiry, from the point of view of the child, into whether it had beenthere long enough to acclimatise, to develop a sense of attachment, and to form a belief that it would endure with some permanence.

Here, the child had been in the United Kingdom in the two years before the abduction and this had become its habitual residence. This could be inferred from its school reports. Their writer described the child as havingintegrated well with his peer group; as having several close friends; and as appearing to be well adjusted and enjoying the school environment.

Notwithstanding its conclusion as to the child's residence, the court refused to order the child's return. This was on the basis that it might be exposed to harm or placed in an intolerable situation (art 13(b)). There was evidencein this regard that Mr K had periodically abused the child. Application dismissed.

NATIONAL HEALTH LABORATORY SERVICE v LLOYD-JANSEN VAN VUUREN 2015 (5) SA 426 (SCA)

Labour law Contract of employment Consecutive contracts Whether first contract novated by second First contract stipulating that employee would recompense employer for training either by working for fixed periodor reimbursing employer First contract providing for subsequent employment under second contract Contracts interrelated Obligation to recompense surviving conclusion of second contract.

Novation Proof Intention to novate not presumed Court may have regardto conduct of parties, including evidence relating to their intention.

In January 2006 the appellant, the NHL, employed respondent, LV, a medical practitioner. The contract (the 2006 contract) required LV to complete her studies for the M Med degree within five years. Clause 3.4 provided that if she resigned before two years after completion of her training as a specialistshe would pay the NHL R2 million to reimburse it for the costs incurred in training her. LV commenced her duties as junior registrar on 1 February 2006. She completed her studies and training within the stipulated five-year period. In April 2010 the NHL employed her as a specialist pathologist. The employment contract (the 2010 contract) made no reference to the two-year period mentioned in the 2006 contract and recorded that itconstituted the whole agreement between the parties. Then, in July 2010, LV resigned. She refused to pay the R2 million on the ground that the 2010 contract had novated the 2006 contract and hence terminated her obligations under it. The High Court accepted this argument and dismissed the NHL's claim for R2 million. In an appeal to the SCA

Held The intention to novate was never presumed but had to be inferred from the circumstances of the case. Here it was evident that the two contracts served different purposes: the 2006 contract regulated, among other things, the future employment relationship between the parties, and the 2010 contract simply implemented this facet of it. Hence there was no novation and LV's indebtedness under the 2006 agreement remained standing despite theconclusion of the 2010 contract. Appeal upheld.

JERRIER v OUTSURANCE INSURANCE CO LTD 2015 (5) SA 433 (KZP)

Insurance General legal principles Duty of disclosure Non-disclosure Insurer refusing to pay claim because insured failed to report previous accidents for which he never claimed Whether non-disclosure amounting to breach of terms of policy or material non-disclosure permitting insurer to avoid liability for subsequent claim.

The court a quo rejected Mr Jerrier's insurance claim for damage to his insured motor vehicle on the basis that his failure to inform the insurer of two previous accidents, for which he never claimed, amounted to a material non-disclosure or breach of the terms of the policy, thus absolving the insurer from liability. The previous accidents happened during the currencyof the policy but Mr Jerrier elected not to claim because he believed that the cost of the repairs would be less than his excess payment, and because he did not want to lose his no-claim bonus. The present case concerned his appeal against the decision of the court a quo.

The obligations Mr Jerrier allegedly breached were (1) to inform the insurer 'immediately' of 'any changes to your circumstances that may influencewhether we give you cover'; and (2) to inform the insurer, 'within 30 days' of its occurrence, of 'any incident that may lead to a claim . . . . [including] incidents for which you do not want to claim but which may result in a claim in the future . . . so that we may take steps to limit the effects of any claim which may be made by the other person'.

HeldThe 'changes to your circumstances' the insurer regarded as being material to risk were changes in the insured's personal circumstances rather than a change to the condition of the vehicle. If the insurer considered 'changes to your circumstances' to include the occurrence of every 'incident' it should have said so.

An accident for which the insured does not wish to submit a claim cannot beconstrued on any interpretation to mean a 'change in circumstances' as contemplated in the insurer's policy.

The obligation to report a claim or an incident only arose if the insured wished to enforce the indemnification for loss which the insurer was obliged to honour. A third party who had suffered damages had no contractualrelationship with the insurer. As such, the only party against whom it could claim damages was the appellant. Where the insured elected not to report the matter to the insurer within 30 days, that marked the end of the insurer's liability. In this instance the appellant made a conscious decision to absorb the damages and to repair his own vehicle and that of the otherparty, so as to preserve his no-claim bonus. As long as the appellant understood that he would have no claim against the insurer for those incidents at the time or at any time in the future, there was no obligation on him to bring the matter to the attention of the insurer. The policy was not one which was subject to an annual renewal assessment of risk, and therefore the failure to disclose the two incidents had no bearing on the conditions of cover or the premiums charged. The policy simply did not provide for this ongoing duty to report after commencement of the policy. The court a quo's conclusion conflated the duty to disclose true and correct information at the commencement of the contract with the duty to disclose during the duration of the contract, and therefore could not be sustained. To this end the appeal must be upheld.

The test for whether non-disclosure was material to the assessment of risk was objective, ie whether the reasonable person would have considered that the risk should have been disclosed to the insurer. The failure of the appellant to disclose the two previous incidents did not constitute material non-disclosure. The attraction of the no-claim bonus must not beunderestimated; it was a key feature differentiating the respondent insurer's policy from those of its competitors. It was therefore not surprising that an insured would opt not to claim for damages but elect to self-absorb in order to 'get something out'.

MBD SECURITISATION (PTY) LTD v BOOI 2015 (5) SA 450 (FB)

Magistrates' court Civil proceedings Jurisdiction Consent Validity Even where judgment debtor consents to jurisdiction of court in which not resident or employed, may only do so in respect of institution of proceedingsand not issue of emoluments attachment order Magistrates' Courts Act 32 of 1944, s 45(1) read with s 65J.

Even where a judgment debtor validly consents to the jurisdiction of a particular magistrates' court in terms of s 45(1) of the Magistrates' Courts Act 32 of 1944(the Act), such consent can only be in respect of the institution of proceedings in that court, ie the issuing of summons until judgment is granted or the request for judgment by consent. Section 65J of the Act is clear. It provides that only 'the court of the district in which the employer of the judgment debtor resides, carries on business or is employed, or, if the judgment debtor is employed by the state, in which the judgment debtor isemployed' has jurisdiction to issue an emoluments attachment order.

PHEIFFER v VAN WYK AND OTHERS 2015 (5) SA 464 (SCA)

Lien For improvements Substitution of security for Court having discretion to order substitution on considerations of justice and equity Whethersubstitution of enrichment lien with guarantee furnished by person other than owner of improved property offering adequate security for enrichment claim.

In this appeal against a High Court order which substituted the appellant's improvement lien (enrichment lien) with a guarantee by the prospectivepurchaser of the property concerned, the appellant challenged the adequacy of the substituted security. He submitted that it was not equitable to substitute his security of an improvement lien, which was a real right, with a personal right against the prospective purchaser.

The Supreme Court of Appeal, dismissing the appeal:

Held, that considerations of equity and justice dictated that in the case of a jus retentionisbased on an enrichment lien, the court had the same discretion as it had in the case of a debtor/creditor lien, ie to deprive the lien holderof possession and to substitute such security a discretion the court a quo had correctly exercised.

Held, further, that an enrichment claim could be secured by a guarantee filed by a person other than the owner of the improved property; and the guarantee filed in this case was sufficient because it would cover the judgment debtobtained against the owner, and because the prospective purchaser was an interested party who would enjoy the benefits of the improved property.

SASOL CHEMICAL INDUSTRIES LTD AND ANOTHER v COMPETITION COMMISSION 2015 (5) SA 471 (CAC)

Competition Promotion of competition Prohibited practices Abuse of dominance Excessive pricing Test Economic value Reasonableness Company with history of state support using import-parity pricing Competition Act 89 of 1998, s 8(a).

Competition Competition Tribunal Expert evidence Economic experts to refrain from testifying on legal matters Figures cited without clear and reasoned justification not constituting expert evidence.

Section 8(a)of the Competition Act 89 of 1998 (the Act) provides that adominant firm may not charge an 'excessive price to the detriment of consumers'. Section 1(1) defines 'excessive price' as 'a price for a good or service which(aa)bears no reasonable relation to the economic value of that good or service; and(bb)is higher than the value referred to in subparagraph(aa)'.

This case concerned Sasol's domestic pricing of its polymers, and whether itcontravened s 8(a). The first appellant (SCI), a Sasol subsidiary, used feedstock propylene procured at a low internal transfer price from another subsidiary, Sasol Synfuels, to make purified propylene and polypropylene, which it sold domestically at the import parity price and overseas at a lower export price.

Synfuels was able to sell feedstock propylene cheaply to SCI because it was aby-product of its synthetic fuel production process. The principal dispute between the parties was the proper valuation, for the purposes of establishing a contravention of s 8(a), of SCI's (cheaply procured) feedstock.

The Competition Commission argued that SCI was not passing on its feedstock cost advantage to domestic consumers, and in August 2010 referred acomplaint of excessive pricing to the Competition Tribunal. In upholding the complaint the Tribunal found that, taking into account its cost advantage, SCI had indeed charged prices in excess of economic value between 2004 and 2007, and that those prices bore no reasonable relation to economic value. It fined SCI R534 million and imposed various administrative remedies.

The Tribunal rejected SCI's argument that it should be treated as if it had never received state support and that its actual lower feedstock costs had to be ignored in favour of the feedstock costs that would exist in a hypothetical market populated with notional competitors. The Tribunal held that the history of a dominant firm and how it obtained its dominance were relevant in an excessive-pricing enquiry. To determine the excessiveness of SCI'spricing the Tribunal compared its actual cost of production (including the cost of capital) with its domestic prices.On appeal the Competition Appeal Court defined the key question before it to be whether it could ignore SCI's costs by constructing a price based on the (significantly higher) feedstock costs that would exist in a notional free-market environment.

Held In the context of a s 8(a)enquiryeconomic valuehad to be based on actual costs, that is, the price at which Synfuels sold feedstock to SCI, and not on some hypothetical price, as argued for by SCI. The appropriate calculationsyielded a price-cost mark-up for purified propylene of 12% 14%, while in the case of polypropylene they yielded a mark-up so small that no interference was justified (SCI's polypropylene prices were only 16% more than the cheapest in the world). The next question was whether this mark-up wasreasonable, which entailed a proportionality enquiry and a subjective value judgment. Returns substantially higher than defined economic value were not per se unreasonable, and SCI's mark-up (including a return on capital) of 14% for purified propylenewas reasonable, falling well below the 20% required for judicial interference in this complex area. The Tribunal's emphasis on SCI's history of state support and the fact that its price advantage was not sourced in risk-taking and innovation was, moreover, marred by its incorrect conclusion that innovators and risk-takers were entitled to engage in unreasonable pricing. All things considered, the evidence presented to the Tribunal did not justify the finding that the price of the products bore no reasonable relation toeconomic value. This did not, however, mean that excessive-pricing cases would never succeed in South Africa: while firms had to be given some latitude on pricing so as to avoid turning the courts into price regulators, the outcome might well havebeen different had the commission provided expert evidence rebutting SCI's evidence on its costs of production. Appeal upheld and the complaint referral dismissed.

The Tribunal's duty to exercise discipline over its proceedings included ensuring that economic experts gave evidence on economic questions and left points of legal interpretation to the Tribunal and the court. Figures cited withoutany clear and reasoned justification did not constitute expert evidence.

ABSA BANK LTD v JANSEN VAN RENSBURG AND OTHERS 2015 (5) SA 521 (GJ)

Contract Consensus Mistake Cannot be relied on to escape contract if due to own fault.

Agency and representation Liability of principal for acts of agent Principal instructing agent to bid up to R35 000 Agent in panic biddingR125 000 and concluding sale Whether principal bound.

Absa Bank Ltd instructed an attorney to bid up to R35 000 for a property at a sale in execution. The attorney's clerk attended, 'panicked', and bid and bought for R125 000. Absa applied to set aside the sale, asserting the clerk acted outside the authority and could not bind it.

Held, that Absa had represented its agent had unlimited authority and was thus bound. Moreover, Absa could not rely on the agent's mistake to escape the contract. A mistake could not be relied on if it were based on one's own fault.

Application dismissed.

BUSINESS PARTNERS LTD v WORLD FOCUS 754 CC 2015 (5) SA 525 (KZD)

Company Winding-up Application Application an abuse of procedure Section providing that company may prove its damages, if court allows Which court may allow Companies Act 61 of 1973, s 347(1A).

Business Partners Ltd obtained interim and final winding-up orders againstWorld Focus 754 CC in the KwaZulu-Natal Local Division of the High Court. On appeal, the full court set aside the orders and declared that the winding-up had been an abuse of process.Invoking s 347(1A) of the Companies Act 61 of 1973, World Focus applied to be allowed to prove the damages it had suffered as a result of the winding-up application.

Section 347(1A) provides:

'(1A) Whenever the court is satisfied that an application for the winding-up of a company is an abuse of the court's procedure or is malicious or vexatious, the court may allow the company forthwith to prove any damages which it may have sustained by reason of the application and award it such compensation as the court may deem fit.'

Business Partners, relying on the word 'forthwith', asserted that only the court hearing the winding-up application could apply s 347(1A).

Held, that this was not the case.

Held, further, that World Focus should commence its action by way of simplesummons. Claim referred to trial.

FORTUIN v ROAD ACCIDENT FUND 2015 (5) SA 532 (GP)

Delict Specific forms Loss of support Foster child Whether child may claim for loss of support as result of death of foster parent.

In this matter a foster mother, acting on behalf of her foster child, sued for the child's loss of support as a result of the death of the foster father. In issue was whether the claim was competent.

Held, that it was.

MINISTER OF RURAL DEVELOPMENT AND LAND REFORM v TSUPUTSE AND OTHERS 2015 (5) SA 537 (KZD)

Court High Court Jurisdiction Matatiele magisterial district KwaZulu-Natal Division and Local Division have concurrent jurisdiction over.

The KwaZulu-Natal Local Division, Durban, and the KwaZulu-Natal Division,Pietermaritzburg, have concurrent jurisdiction over the Matatiele magisterial district, which is in the Eastern Cape.

FAIRHAVEN COUNTRY ESTATE (PTY) LTD v HARRIS AND ANOTHER 2015 (5) SA 540 (WCC)

Competition Unlawful competition Passing-off Domain names Whether registrant claiming exclusive use of name linked to intellectual property of another guilty of delict of passing-off.

Intellectual property Domain names Exclusive right to use Infringement Registrant not enjoying exclusive use merely by virtue of registration Whether non-registrant enjoying exclusive use of domain name.

This case concerned the ownership of and the right to use internet domain names. The first respondent (SH), an estate agent, registered the domain names 'fairhavenestate.co.za' (the active domain) and 'Fairhaven.co.za' in order to improve his chances of obtaining a sole mandate to market and sell properties in a failed development known as Fairhaven. The applicant(FCE), a property-development company, later acquired Fairhaven. SH became involved through his interest in a company which was set up as a special-purpose vehicle with a sole mandate to market and sell unimproved plots in the development renamed 'Fairhaven Country Estate' and subsequently registered further domains in his name including the word 'Fairhaven'. The active domain was used as FCE's website address from theoutset of selling and marketing under the sole mandate. All FCE's marketing and email communications were conducted through it, and FCE continuedAto so use the active domain after the sole mandate was terminated. Then, some six months after termination of sole mandate, FCE was informed by their marketing agent and website administrator (the second respondent) that they had been requested by SH to redirect the Fairhavenestate.co.za domain to SH since it was registered in his name.

Only then did FCE become aware of SH's registration of the domain names,Bprompting this application for final interdictory relief based on the fact that SH would, by claiming the domain names for his exclusive use, commit the delict of passing-off. FCE asked that SH be interdicted from instructing the second respondent to, or in any way attempting to, redirect or transfer any of the domain names referring to 'Fairhaven', specifically to an estateagency that SH was connected with, or generally to any party other than FCE, and for an order compelling him to transfer registration of the domain names to FCE. SH's answer was that he, as registrant of a domain, was the 'owner' and enjoyed the rights of exclusive use thereof, and that FCE's rights in and to its goodwill and intellectual property could not trump his proprietary right in the domain names; and that FCE did not own the name'Fairhaven' or otherwise enjoy any exclusive use or protection thereof in the form of copyright or a registered trademark.

The court encapsulated the issues as to whether FCE had an exclusive right to use the active domain or any of the other domain names containing the word 'Fairhaven'; and if so, whether the first respondent's use or intended usethereof may result in passing off.

Held

It was irrelevant that the domain names were registered in the name of SH or that he registered it before FCE came into existence. The mere registration of a domain name linked to property belonging to someone else could result inhaving an exclusive right to the use of that domain name. The registration of the domain names was directly linked to the name of the estate property belonging to another party not inextricably to SH. The only connection between him and the domain names was the fact that he was the person responsible for the registration thereof. Prior to its association with FCE, from his perspective, the domain names held no value. It was only after theFCE mandate that value became attached to the domain names. Such value attached to FCE, in that the domain names formed part and parcel of its get-up and promotional material, developed over a period of three years. FCE clearly established an inextricable link between the domain names and its name. A further reason why registration of the domain names in SH's name was irrelevant was that by not making FCE aware of the factthat he owned the domain names and that they were for his exclusive use, but instead permitting FCE to use the active domain name for its benefit, he had abandoned any right to the exclusive use of the domain names.

As for SH's contention that FCE did not own the name 'Fairhaven' or otherwiseenjoyed any exclusive use or protection thereof in the form of copyright or a registered trademark, it was well established in law that the owner of an unregistered trademark was entitled to enforce it with a passing-off action if the requirements for passing off were met. It also had to be noted, and there was support for the view, that the adoption of a domain name may amount to passing off.

FCE had established the requirements for final relief: a clear right to the protection of its goodwill and reputation of which the name Fairhaven formed part; that the harm it sought to prevent was reasonably apprehended; and that it had no adequate remedy other than to avail itself of the assistance of this court to protect itself against SH.

SALOOJEE AND ANOTHER v KHAMMISSA AND OTHERS NNO 2015 (5) SA 554 (GJ)

Company Winding-up Enquiry into affairs of company Whether documents, compelled to be produced at enquiry under s 417(3), protected from admission in later criminal proceedings by s 417(2)(c) Companies Act 61 of 1973, ss 417(2)(c) and 417(3).

Ms Saloojee applied to set aside a summons to attend an enquiry under s 417 of the Companies Act 61 of 1973. This on the basis that: the summons required her to produce documents; documents were not subject to the s 417(2)(c)use restriction; they might be used against her in criminal proceedings; and thus the summons threatened her right to not incriminate herself.

In issue was whether s 417(2)(c)applied to documents a person was required to produce under s 417(3).

Section 417(2)(c)provides:

'Any incriminating answer or information directly obtained, or incriminating evidence directly derived from, an examination in terms of this section shall not be admissible as evidence in criminal proceedings in acourt of law against the person concerned . . . .'

Held, that s 417(2)(c)did not apply to documents produced under s 417(3).AThis because documents produced under s 417(3) were not 'evidence directly derived from an examination in terms of this section [417(2)(c)]'. However, answers about documents produced would be subject to s 417(2)(c). As for Salojee's self-incrimination objection, it could only be raised against the documents in any criminal proceedings. Application dismissed.

INDUSTRIAL HEALTH RESOURCE GROUP AND OTHERS v MINISTER OF LABOUR AND OTHERS 2015 (5) SA 566 (GP)

Labour Occupational injuries Workplace incident Report of inquiry into incident Access Interested parties entitled to access on request Occupational Health and Safety Act 85 of 1993, s 32; Promotion of Access to Information Act 2 of 2000, s 46.

After a formal inquiry was held in terms of s 32 of the Occupational Health and Safety Act 85 of 1993 (OHSA) into a workplace fire at Paarl Print facility leaving 13 dead and others injured the presiding inspector submitted his report, compiled in terms of s 32(9), to the Director of Public Prosecutions as required under ss 32(10). Despite having filed a Promotion of Access to Information Act 2 of 2000 (PAIA) request, the applicants family members, trade unions and a public-interest organisation, who had actively participated in the inquiry were denied access to the report by the Department of Labour. They then approached the court seeking a declaration that entitled them, on request, to a copy of the report, or, alternatively, under PAIA. They also sought an order directing the Minister of Labour (first respondent) to provide such access. The respondents deniedthat the s 32(10) required disclosure to any other of those mentioned in the provision, including interested parties listed in s 32(5)(c), on the ground it would violate constitutional principles of co-operative governance. The applicability of PAIA was also disputed as a 'general statute' and thus not able to override the specific provisions of OHsA. In issue was whether the applicants, and similarly situated interested parties, were entitled to a copyof the report as of right.

Ultimately the court held that, interpreted purposively, OHSA entitled persons inthe position of the applicants to access s 32 reports. It rejected respondents' interpretation of s 32 (in particular ss 32(10)) as undermining the constitutional values of transparency, openness and accountability, in depriving interested parties of their right to information held by the state ; the rightto human dignity of families and next of kin of those workers killed, in not being able to achieve closure ; and infringing the right of workers to fair labour practice, by hampering the ability to ensure health and safety in the workplace. It also rejected arguments regarding the non-applicability of PAIA, holding that s 46 made access to the inspector's report mandatory in the circumstances.

Accordingly the court declared that persons referred to in s 32(5)(c)of OHSA were entitled to a copy of the ss 32(9) report in any s 32 enquiry, on request; the policy of refusing access to such reports in all cases by the Department of Labour unlawful and invalid; and ordered the Minister of Labour to provide access to the relevant s 32 report as requested.

COUNCIL FOR MEDICAL SCHEMES AND ANOTHER v BONITAS MEDICAL FUND 2015 (5) SA 577 (GP)

Medicine Medical aid Medical aid scheme Inspection order Appealability Not constituting 'decision' for purposes of s 49(1) and accordingly not appealable Medical Schemes Act 131 of 1998, s 44(4)(a) read with s 49(1).

The decision of the Registrar to order an inspection into the affairs of amedical scheme in terms of s 44(4)(a) of the Medical Schemes Act 131 of 1998 does not constitute a 'decision' for the purposes of s 49(1) of the Act and is accordingly not appealable.

MOGALE CITY v FIDELITY SECURITY SERVICES (PTY) LTD AND OTHERS 2015 (5) SA 590 (SCA)

Government procurement Procurement process Irregularities Multiple flaws Just and equitable remedy Invalidity suspended pending re-evaluation of bids where municipality would otherwise be deprived ofessential service Court sounding warning to errant officials.

A High Court in March 2013 ordered the setting-aside, on review, of the appellant municipality's award of a security-services tender to the second respondent, Mafoko Security Services. The tender was awarded in March 2012And Mafoko had been performing the contract since then. The High Court invalidated the contract and ordered the municipality to re-evaluate the bid within a period of four weeks.

The review application was initially brought by Red Ant Security Services, but Red Ant, having negotiated a compromise with Mafoko, withdrew from the proceedings. This prompted Fidelity which, together with Red Ant, wasthe highest-scoring bidder to launch what it called a counter-applicationfor an order setting aside the municipality's decision to award the tender to Mafoko, which had scored poorly. It appeared that the municipality had rejected Fidelity's bid on the ground that the name of one of its directors appeared on a government blacklist. Fidelity, which had initially beenunaware of this, replaced the director in question six months before the award of the tender. Fidelity argued that its exclusion was unlawful and invalidated the entire process.

Held

The High Court correctly set aside the award. The litany of errors committed by the municipality, which included

the revision of Mafoko's poor functionality score to keep it in the running;

the splitting of the contract contrary to the advertised basis of the tender;

the failure to consider Fidelity's bid, despite its removal of the blacklisted director; and

allowing Red Ant to continue as bidder at a time when it was sponsoring a major function for the municipality at which municipal officials werepresented with gifts

was, moreover, such that it had to be reminded that of the risk that a court would take the re-evaluation process out of its hands and hold the officials responsible personally liable for the costs concerned. The High Court's invalidation of the contract between the municipality and Mafoko would be suspended for a period of three weeks to ensure that the municipality wasInot left without security services.

PHEKO AND OTHERS v EKURHULENI CITY 2015 (5) SA 600 (CC)

Attorney Costs Costs de bonis propriis When to be awarded Failing to notify registrar of change of address Obliged to do so by Constitutional Court Rules and Uniform Rules of Court Not doing so grossly negligent Punitive costs order awarded to mark court's displeasure Constitutional Court Rules, rule 1(8); Uniform Rules of Court, rules 4, 4A and 16.

Contempt of court Disobedience of court order Attorney failing to communicate court order to client Whether attorney in contempt Requisites for contempt restated Service of order on attorney not established.

Contempt of court Disobedience of court order By organ of state Municipality not complying with court order Requisites for contempt restated Service of order on municipality's attorney not established.

Local authority Powers and duties To comply with court orders Joinder of specific parties ordered Semble: Executive mayor and municipal manager responsible for implementing court orders by virtue of their leadership roles.

InPhekoa crucial part of the relief granted by the Constitutional Court to the applicants who had their homes demolished pursuant to their unlawfulrelocation at the instance of the Ekurhuleni Metropolitan Municipality was to place an obligation on both parties to submit reports to the court for it to supervise progress made towards securing adequate housing for them. This case initially only concerned contempt proceedings set down against the Municipality for failing to comply with a court order (the order)directing it to file a second such progress report by a certain deadline. Further issues were, however, introduced when (before the hearing) the amicus curiae sought to have the Municipality's executive mayor (mayor) and its manager (the municipal manager) joined in the proceedings; and by the Municipality's explanation (during the hearing) that it was not made aware of the order and directions by its attorneys of record. Accordingly,after the hearing, further directions were issued (1) calling upon the attorneys to show cause why they should not be held in contempt for failing to make the Municipality aware of the order and directions, and also why they should not be ordered, jointly and severally with the Municipality, to pay the costs of the applicants and the Municipalityde bonis propriis; (2) calling upon the mayor and municipal manager to show cause why they should not be joined in the contempt proceedings, and to indicate if there were any other responsible office bearers who should also be joined; and (3) calling on the Member of the Executive Council, Gauteng Department ofHuman Settlements (the MEC), based on his obligations under the Housing Act 107 of 1997, to show cause why he should not also be joined in the contempt proceedings.

Held

As to whether the Municipality and/or its attorney was in contempt

While there could be no doubt that the Municipality had not complied with the court's directions and orders, the averments regarding the Municipality's non-receipt of the directions and order were not refuted, and accordingly service of the order upon the Municipality an essential element to a finding of contempt was wanting. In the circumstances, an inference of wilfulness and mala fides could not be drawn and, as a result, one cannotsafely conclude that the Municipality was in contempt of the order. It followed that the Municipality had shown good cause why it should not be held in contempt.

The attorney's undisputed evidence that he did not inform the Municipality ofthe directions and order because he did not receive them, since they were transmitted to a fax number that was no longer linked to his changed email address dispelled any notion of wilfulness and mala fides on his part. While the existence of the order and non-compliance had been established, the requisite of service had not. It followed that no inference of wilfulness and mala fides could be drawn, and contempt on the part of the attorneyhad not been established.

As to whether the attorney should pay the costs of the contempt proceedingsde bonis propriis

While the evidence may not have established wilfulness or mala fides, it did establish gross disregard for his professional responsibilities. At the very least, the attorney had an obligation to notify the registrar of this court andhis clients of any change of address. This was plainly not done. This failure to notify the registrar constituted gross negligence on his part. Accordingly he must be ordered to pay the costs from his own pocket, to mark the court's displeasure at his gross negligence, particularly as an officer of the court.

As to whether the mayor, municipal manager and the MEC should bejoined in these contempt proceedings

Given that contempt of this court's order on the part of the municipality had not been established, no purpose would be served by joining the mayor, municipal manager and MEC in these contempt proceedings. However, by virtue of their constitutional and statutory responsibilities, the joinder of themayor and municipal manager, in respect of this court's continuing supervision of the implementation of the orders inPheko, would be appropriate. The MEC's statutory obligations in relation to the provision of housing and his role in the implementation of the supervisory orders inPhekomean that he should also be joined as a party having substantial interest. Semble

It was precisely because of the leadership entrusted to the mayor and the municipal manager that they had a duty to undertake responsibility for implementing court orders. Disclaiming such responsibility on the basis they were not responsible for the 'day to day administrative functions' of the municipality was therefore highly inappropriate.

SA CRIMINAL LAW REPORTS OCTOBER 2015

S v MHLONGO;S v NKOSI 2015 (2) SACR 323 (CC)

Evidence Admissibility Hearsay evidence Admissibility of in terms of s 3 of Law of Evidence Amendment Act 45 of 1988 Admissibility asagainst accused of extra-curial statement by co-accused Differentiation between accused implicated by confessions and those implicated by admissions could not be lawfully sustained Such differentiation not designed to achieve any legitimate purpose and was irrational distinction which violated s 9(1) of Constitution and could not be saved by limitations clause since not reasonable and justifiable in open anddemocratic society Common-law position that extra-curial confessions and admissions by accused were inadmissible against co-accused to be restored.

Two applicants in applications for leave to appeal against their convictions and sentences were tried in a High Court on a number of counts, includingmurder and robbery with aggravating circumstances. They were convicted on some of the counts and sentenced to terms of imprisonment which included sentences of life imprisonment. Their convictions were substantially based on the extra-curial statements of their co-accused, whose evidence was accepted by the court after a trial-within-a-trial held to determine the admissibility of those statements. Their appeal to the fullcourt was unsuccessful, the court holding that the extra-curial statements relied on to convict the applicants became 'automatically admissible' as those accused confirmed portions of the statements in their oral testimony. The court also ruled that the statement of one of the co-accused was admissible in the interests of justice as provided for in s 3(1)(c)of the Law of Evidence Amendment Act 45 of 1988 (the Evidence Amendment Act). In the present application it was contended on behalf of the two applicantsthat the Constitution did not permit the admission of an extra-curial statement by an accused against a co-accused as it infringed an accused's fundamental rights protected in the Bill of Rights. It was contended that the relaxation of the common-law rule that an extra-curial statement by an accused was inadmissible against a co-accused, in the case ofS v Ndhlovu and Others 2002 (2) SACR 325 (SCA)(2002 (6) SA 305; [2002] 3 All SA 760;[2002] ZASCA 70), was wrongly decided.

Held, that the reasoning inS v Ndhlovucould not be supported for a number of reasons: (1) it did not deal with the common-law rule against allowing admissions to be tendered against a co-accused and the court appeared to assume that the hearsay aspect of the evidence was its major pitfall and could be rescued by s 3 of the Evidence Amendment Act; (2) the court didnot deal with the provisions of s 3(2) of the Evidence Amendment Act; (3) the court did not seem to have regard to the provisions of s 219A of the CPA which expressly allowed an admission to be admitted only against its maker and was silent regarding other persons; and (4) the court seemed not to have had regard to whether the Evidence Amendment Act had altered the common law.

Held, further, that the differentiation between accused implicated by confessionsand those implicated by admissions could not be lawfully sustained. The differentiation was not designed to achieve any legitimate purpose and was an irrational distinction which violated s 9(1). It could not be saved by the limitations clause contained in s 36 of the Constitution since this restriction of the right to equality before the law was not reasonable and justifiable in an open and democratic society based on human dignity, equalityand freedom.

Held, further, that the interpretation adopted inS v Ndhlovucreated a differentiation that unjustifiably limited the s 9(1) right of accused implicated by such statements, and that the common-law position prior to that decision, namely that extra-curial confessions and admissions by an accused were inadmissible against co-accused, had to be restored. Appeals upheld.

S v MOLAUDZI 2015 (2) SACR 341 (CC)

Appeal To Constitutional Court Res judicata Multiple appeals Relaxation of doctrine Second appeal on newly introduced constitutional ground Court to balance rule of law and legal certainty against necessity to vindicate constitutional rights of unrepresented and vulnerableparty Circumstances have to be wholly exceptional to justify departure from res judicata doctrine No effective alternative remedy Second appeal entertained.

The applicant was convicted in a High Court of a number of offences and wassentenced to imprisonment. In the present matter he sought leave to appeal against the convictions and sentences which were confirmed on appeal by the full court. In 2013, and without legal representation, the applicant applied for leave to appeal to the Constitutional Court based largely on the contention that the court a quo had incorrectly applied the principles inS v Ndhlovu and Others 2002 (2) SACR 325 (SCA)(2002 (6) SA 305; [2002] 3 All SA 760; [2002] ZASCA 70).

The Constitutional Courtdismissed the application, holding that it did not raise a proper constitutional issue for it to entertain and that there were no reasonable prospects of success. Two of his co-accused in the High Court trial also applied for leave to appeal and raised constitutional arguments regarding the evidence admitted against them, in particular the constitutional validity of the admissibility of extra-curial statements of an accused against a co-accused.The Constitutional Court granted leave to appeal and overturned their convictions, after which they were released from prison. In terms of directions issued by the Constitutional Court the applicant then brought the present proceedings for leave to appeal, raising the same arguments as his co-accused in their successful constitutional challenge. The sole issue requiring the attention of the Constitutional Court was whether the previous final order of the Constitutional Court dismissing the previousapplication for leave to appeal brought by the applicant rendered the matter res judicata.

Held, that, even though a constitutional challenge was not raised and decided in the earlier application, the present application ought to be considered res judicata since the merits of the applicant's appeal were considered and ruled on by the Constitutional Court.

Held, further, that although the general thrust of international jurisprudence was that res judicata was usually recognised in one way or another as necessary for legal certainty and the proper administration of justice, many jurisdictions recognised that this could not be absolute since the perpetuation of an error was no virtue, but to correct it was a compulsion of judicial conscience.

Held, further, that in the present matter the interests of justice required the court to balance the rule of law and legal certainty in the finality of criminal convictions, as well as the effect on the administration of justice, if parties were allowed to approach the court on multiple occasions on the same matter, against the necessity to vindicate the constitutional rights of an unrepresented, vulnerable party in the case where a similarly situatedaccused had been granted relief. As in the present case, the circumstances had to be wholly exceptional to justify a departure from the res judicata doctrine. The interests of justice were the general standard and the vital question was whether there were truly exceptional circumstances.

Held, further, that the present case demonstrated exceptional circumstances thatcried out for flexibility on the part of the Constitutional Court in fashioning a remedy, where there was no effective alternative, to protect the rights of a person such as the applicant in the present case. Leave to appeal was accordingly granted and the convictions and sentences were set aside.

S v SD 2015 (2) SACR 363 (SCA)

Murder Sentence Imposition of Factors to be taken into account Young offender convicted on two counts of murder of adoptive parents and theft Substance dependence problem mitigating factor Youthfulness and influence of drugs However, cannot fail to recognise severity of offences Sentencing judge committed no misdirections Well-considered balance of all interests involved Interference on appeal unwarranted.

The appellant was 17 years and 8 months old when he killed his adoptive parentsby brutally assaulting them. He was intoxicated at the time and had spent the day drinking and smoking crack cocaine. After he had hit them on the head with a cricket bat, he called a friend and asked him to help with disposal of the bodies. The friend did not want to assist him unless his parents were definitely dead, so the appellant then stabbed his parents approximately 20 times in the chest. The appellant also slit his father's throat and they dumped the bodies in the veld. The High Court convictedthe appellant of two counts of murder and sentenced him to 12 years' imprisonment on each of the counts and to two years' imprisonment in respect of theft, but ordered that the sentences were to run concurrently. On appeal the appellant contended that the sentence was shockingly inappropriate.

Held, that, when one looks at the offences and the interests of society, the courtcould come to only one conclusion, namely that the offences were so severe that incarceration could not be avoided. The cruel and savage way in which the appellant had killed two people who were kind to him, who sustained him from birth, who had tried to deal with his drug addiction, and who treated him as their own child, filled one with revulsion. Any sentence which failed to recognise the severity of the crimes could lead to societylosing its confidence in the criminal justice system. Especially in a society where violence had become prevalent and endemic, one could simply not afford that risk.

Held, further, that it was clearly a mitigating factor that the appellant had a substance dependence problem and that at the crucial time he was under the influence of narcotic drugs. The diagnosis by some of the appellant'sexperts who tended to blame it all on the influence of drugs, and their recommendation that the appellant should be committed for treatment, had to be considered from their perspective. Their purpose was to diagnose, to heal and to rehabilitate their patients and, as a rule, they did not have to consider the perspectives which the courts were obliged to keep in view. The courts' functioning was quite different and, apart from rehabilitation,they needed to have regard to other interests, such as prevention and rehabilitation. To focus exclusively on the wellbeing of the accused was likely to result in a distorted and warped sentence.

Held, further, that the sentencing judge had committed no misdirections and, once direct imprisonment was recognised as the only appropriate sentence

S v JACOBS 2015 (2) SACR 370 (WCC)

Sentence Prescribed sentences Minimum sentence Imposition of in terms of Criminal Law Amendment Act 105 of 1997 Previous convictions Falling away of where older than 10 years Court constrained to give effect to literal interpretation of para 271A(b) of Criminal Procedure Act 51 of 1977 Attempted rape conviction falls away with such interpretation.

Sentence Prescribed sentences Minimum sentence Imposition of in terms of Criminal Law Amendment Act 105 of 1997 Meaning of term 'first offender' in s 51(2)(b) No necessity to change plain, literal wording of term by allowing accused to be considered second offender where first offence common-law offence and second a statutoryoffence.

The appellant, a 49-year-old man, was convicted in a regional court of contravening s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 by having sexual intercourse with the complainant without her consent. He was convicted and sentenced to15 years' imprisonment. He appealed against both the conviction and sentence. The court on appeal dismissed the appeal against the conviction and then considered the effect of the appellant's previous convictions in relation to the minimum sentencing legislation. The issue arose as the appellant had a number of previous convictions: (1) In March 1980 he wasconvicted of rape and sentenced to corporal punishment; (2) in May 1983 he was convicted of housebreaking and attempted rape and sentenced to corporal punishment for both convictions; (3) in June 1985 he was convicted of attempted theft and sentenced to six months' imprisonment; and (4) in May 1989 he was convicted of attempted rape and sentenced to eight years' imprisonment. The regional magistrate regarded the March 1980conviction as the appellant's first offence of rape and his conviction in the present case as a second offence of rape, and applied s 51(2)(b)(ii) of the Criminal Law Amendment Act 105 of 1997 and sentenced the appellant to 15 years' imprisonment. The court examined the effect of s 271A of the Criminal Procedure Act 51 of 1977 (CPA) and whether it meant that some of the appellant's convictions would fall away as previous convictions because they were more than 10 years old.

HHeld, that the 1980 conviction of rape, though older than 10 years, stood because the offence did not fall within the ambit of s 271A(b)of the CPA, namely 'any other offence than that referred to in Schedule 1'. The appellant had, in any event, during the 10-year period been convicted of a sch 1 offence, namely attempted rape. The 1983 conviction of attempted rape also stood because he was convicted of attempted rape in 1989.

Held, further, that the question whether appellant's 1989 conviction of attempted rape would fall away was, however, more problematic, and depended upon a proper interpretation of the 2009 version of para(b)of s 271A of the CPA, in which the introductory words were changed to 'any offence' and the words 'exceeding six months' replaced by 'not exceeding six months'. Thisradically enlarged the ambit of s 271A(b)to include virtually all offences.

Since the court was constrained to give effect to a literal interpretation ofs 271A(b), the appellant's 1989 conviction of attempted rape fell away upon the commencement of the 2009 version of s 271A of the CPA on 6 May 2009. Attempted rape was an offence in respect of which a sentence of less than six years' imprisonment might, depending upon the circumstances, be imposed and the appellant had not been convicted of any offence after 1989. If the court were wrong in its interpretation of s 271A(b)of the CPA, the same resultBwould be achieved, as it was in any event of the view that the appellant's 1989 conviction of attempted rape lost its force through the passage of time.

Held, further, as to the interpretation of the term 'a first offender' in s 51(2)(b)of Act 105 of 1997, that the test for implying a provision into a statute was strict and there was no necessity to change the plain, literal wording of theterm to allow for the appellant to be considered a second offender, in that he had been convicted in 1980 of rape, a common-law offence, whereas his present conviction was for a contravention of a statutory offence.

Held, further, that the appellant's previous convictions should not have played arole in his sentencing and the regional magistrate ought to have treated him as a de facto first offender, and on that basis there were additional substantial and compelling circumstances justifying a lesser sentence than 10 years' imprisonment, and in the circumstances a sentence of eight years' imprisonment should have been imposed. The appeal was upheld in respect of sentence.

S v MAHLAMUZA AND ANOTHER 2015 (2) SACR 385 (SCA)

Murder Attempted murder Committed in connection with robbery Whether accused guilty of two separate crimes Such finding permissible where violence committed against victim exceeded limits required for robbery and accused had intention to kill and not merely intention toincapacitate victim Where none of injuries sustained were potentially fatal or even severe and separate intention to kill not proven, conviction of attempted murder in addition to conviction of robbery with aggravating circumstances not permissible.

The appellants were part of a group who arrived at the farm of the complainants on the pretext of being interested in buying furniture made by the elderly male complainant. Instead they robbed the couple. One of the robbers fired a shot at the elderly man but it missed him. The two appellants also assaulted the elderly woman and pushed her to her workroom where she was tied up. Her husband was kicked in the ribs and also tied up. The police arrived on the scene, a shoot-out ensued and one of the robbers was killed.The two appellants and one co-accused were tried in a regional court and were convicted of robbery with aggravating circumstances (count 1) and the attempted murder of the complainants (counts 2 and 3). They were found to have acted with a common purpose in committing the offences and first appellant was also convicted of attempting to murder one of the police officers. The court sentenced the first appellant to an effective period of48 years' imprisonment, made up of a sentence of 20 years' imprisonment on count 1; 10 years' imprisonment on count 2; 8 years' imprisonment on count three and 10 years' imprisonment on the count of attempted murder of the police officer. The second appellant was sentenced to an effective period of 33 years' imprisonment, made up of 15 years' imprisonment on count 1; 10 years' imprisonment on count 2; and 8 years' imprisonment oncount 3. None of the sentences were ordered to run concurrently. The appellants appealed to the High Court against their convictions and sentences. The court dismissed their appeal but granted them leave to appeal against the convictions on counts 2 and 3 and the sentences imposed on counts 1, 2 and 3. The appellants contended on appeal that on the proven facts the conviction on separate counts of attempted murder relating to the complainants was not justified.

DHeld, that where attempted murder was committed in connection with a robbery, the state was entitled, according to the circumstances, to charge the accused with robbery and with attempted murder. The court was entitled to find the accused guilty on the two separate offences, provided that the robber used excessive violence that exceeded the limits and bounds of robbery and it was proved beyond reasonable doubt that the accused also had the intention tokill and not merely to use force aimed at temporarily incapacitating the victim.

Held, further, that findings of the trial court and the High Court that the acts of violence committed against the complainants during the robbery exceeded the limits or bounds of the robbery were not sustained on the facts. Apartfrom hitting the elderly man with the butt of a revolver at the early stages of the robbery, the injuries sustained by the couple were inflicted without the use of dangerous instruments or weapons. None of the injuries sustained were shown to be potentially fatal or even severe. On the contrary, the evidence established that they sustained only relatively minor injuries.

Held, further, that the evidence also did not prove that the appellants had theintention to kill the complainants, establishing only that the violence used against them was perpetrated with the intent of depriving them of their belongings.

Held, further, that all the acts of violence formed part of the robbery, and that the ineluctable inference was that the killing of the elderly couple was not desired, or its possibility foreseen. It followed that the convictions on thecharges of attempted murder relating to the complainants (counts 2 and 3) and the sentences on those counts had to be set aside.

S v PE 2015 (2) SACR 392 (GP)

Juvenile offenders Offences by Absconding from child and youth care centre Child and youth care centre not 'correctional centre' and no statutory offence provided for escaping from such centre Conviction of contravention of s 117(1)(a) of Correctional Services Act 111 of 1998 for absconding from centre replaced on review with conviction ofcommon-law offence of escaping from custody.

The legislature could not have intended that juvenile offenders would no longer be criminally accountable for escaping from custody. Thus where, as in the present case, the accused had been convicted in a magistrates' court of contravening s 117(1)(a)of the Correctional Services Act 111 of 1998, inthat he had escaped from a child and youth care centre, the court held that a child and youth care centre was not a 'correctional centre' as intended by s 1 of the Correctional Services Act and that there was no other statutory provision criminalising the absconding from a child and youth care centre, and the conviction was replaced on review in terms of s 270 of the Criminal Procedure Act 51 of 1977 with a conviction of the common-law offence of escaping from custody.

S v UMEH 2015 (2) SACR 395 (WCC)

Indictment and charge Duplication of convictions Appellant convicted on two counts of dealing in drugs Whether duplication of convictions,where drugs came from same source Accused arrested in parking lot of mall where found in possession of drugs Subsequent search of his home revealed more Although drugs in both cases having same source, activities in first count separate and distinct from those relating to drugs found at his home and were also not single, continuous event that constituted one offence Evidence on one count not same as on other No duplication.

Sentence Prescribed sentences Minimum sentence Imposition of in terms of Criminal Law Amendment Act 105 of 1997 Drug offences Value of drugs Mere opinion of police official as to value insufficient In order for minimum sentencing provisions to be applied proper evidence had to be meticulously placed before court.The police, acting on information, accosted the appellant in the parking lot of a shopping mall and found him in possession of 49,23 g of methamphetamine. The appellant was then requested to accompany the police to his home where they found almost 2 kg of crack cocaine; 1485,90 g of methamphetamine made up in individual packets; a jewellery scale and vacuum sealer (drug paraphernalia used to weigh and package drugs); anda substance known as phenacytin, used in the production of crack cocaine. He was charged and convicted of contraventions of s 5(b)of the Drugs and Drug Trafficking Act 140 of 1992 (dealing in cocaine and methamphetamine). He was convicted on both counts. The provisions of s 51(2) of the Criminal Law Amendment Act 105 of 1997, with regard to the imposition of minimum sentences, were invoked and he was sentenced to 15 years'imprisonment on each count. The court ordered that five years of the sentence on the first count were to run concurrently with the sentence on the second count, entailing an effective 25 years' imprisonment. It was contended on behalf of the appellant on appeal against the convictions and sentences imposed that there had been a duplication of charges, as the drugs in both instances had come from the same source and the appellant had a single intention to deal in drugs, irrespective of where and how thedrugs had been found.

Held, that the evidence established clearly that the appellant was a person who dealt in drugs. The drugs found in the appellant's possession in the parking lot had been transported from his home with the intention to deliver them to someone else for the purpose of dealing. Those activities were separate and distinct from those relating to the drugs found at his premises. Inrespect of the latter, the appellant not only possessed drugs for distributing but he was also involved in their manufacture, preparation, weighing, packaging and sale to users and other dealers. The activities in respect of the two offences were also not a single, continuous event constituting one offence. It could, moreover, hardly be said that the evidence to prove the offence of dealing on the first count also proved the offence of dealing on theother count.

Held, further, that the only evidence to prove that the value of the drugs involved was over the threshold, for the purposes of applying the minimum sentences prescribed in the Criminal Law Amendment Act 105 of 1997, was that of a lieutenant colonel in the narcotics bureau who merely gave his opinion on the value of the drugs. This evidence fell far short of what was expected bya court in determining the value of drugs, with a view to deciding whether the minimum sentence would be applicable. Such evidence had to be meticulously placed before court during the presentation of the state's case.

Held, further, that in the absence of sufficient evidence to prove the value of the drugs, the magistrate had misdirected himself when he imposed theprescribed sentence of 15 years' imprisonment on that count. The court accordingly altered the sentence on the first count to one of 7 years' imprisonment and ordered that the sentence on that count run concurrently with the sentence of 15 years' imprisonment imposed on the second count.

DERBY-LEWIS v MINISTER OF JUSTICE AND CORRECTIONAL SERVICES AND OTHERS 2015 (2) SACR 412 (GP)

Prisoner Parole Release on Medical grounds Recommended by Medical Parole Advisory Board Minister refusing release Minister taking into consideration representations from other respondents withoutdisclosing to applicant Also taking into consideration factor at variance with evidence before him Decision set aside on review and court ordering release subject to parole board determining conditions.

The applicant, who had since 1995 been serving a sentence of life imprisonmentimposed for murder, applied to be released on medical parole as he was terminally ill with lung cancer. The Medical Parole Advisory Board (MPAB) considered the application in terms of s 79(5) of the Correctional Services Act 111 of 1998 and, after encountering a difference of opinion between the independent specialists, concluded that the applicant's cancer could be placed at least at stage IIIB with a probable but inconclusive spread to theleft adrenal gland. The MPAB recommended to the first respondent that the applicant be placed on medical parole on the strength of that conclusion. Despite this recommendation, the first respondent decided not to approve the recommendation for the placement of the applicant on medical parole. The applicant contended, in his application for the review of the first respondent's refusal to release him, that he had complied with all thejurisdictional requirements as set out in s 79 and he further submitted that there was no further requirement in that section pertaining to any of the aspects raised by the other respondents about apologies, vertical affiliations and alleged incomplete disclosure of facts.

Held, that it was clear from the first respondent's reasons for his decision, particularly relating to the issue of remorse, that he had taken into account the third and fourth respondents' representations without being in possessionof the applicant's response to those representations.

Held, further, that first respondent's decision was in contravention of s 6(2)(e)(iii) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), because, in dealing with remorse, he failed to take into considerationthe evidence presented by the Department of Correctional Services recording several instances in which applicant expressed remorse. The reasons given by the first respondent were clearly at variance with that evidence.

Held, further, that a line of communication and exchange of documents had been established between the first, third and fourth respondents, to the exclusionof the applicant, and it became patently clear that the respondents had fallen foul of the provisions of s 6(2)(b)of PAJA, which required service on the applicant of the representations and any other documents in first respondent's possession. Failure to do so constituted a serious irregularity.

Held, accordingly, that the applicant had made out a case for placement onmedical parole. The conditions under which he was to be released would be determined by the first respondent and the parole board.

ALL SA OCTOBER 2015 PART ONE

Absa Bank Limited v Keet [2015] 4 All SA 1 (SCA)

Civil procedure Appeal Whether moot Despite mootness, where appeal raises discrete legal issue of public importance, court may exercise discretion in favour of hearing it.

Civil procedure Vindicatory action Prescription Vindicatory action not a debt as contemplated by the Prescription Act68 of 1969, and does not prescribe after three years.

Words and phrases debt Prescription Act68 of 1969 A debt is that which is owed or due; anything which one person is under obligation to pay or render to another and whatever is due debitum from any obligation.

In terms of an instalment sale agreement, the respondent had purchased a tractor from a third party. The sellers right, title and interest in and to the agreement was ceded to the appellant, after which the respondent took delivery of the tractor. An express term of the agreement was that ownership of the vehicle would not pass to the respondent until all amounts owing under the agreement had been paid in full. Furthermore, if the respondent failed to comply with any provisions of the agreement, the appellant would be entitled to the return and possession of the vehicle.

On the basis that the respondent was in breach of the agreement in that he had defaulted in paying the instalments due and that the appellant had cancelled the agreement, the appellant instituted action in the High Court.

Apart from pleading over on the merits of the appellants claims, the respondent raised a special plea alleging that the appellants claim for payment of arrears had become prescribed under the Prescription Act68 of 1969. He alleged that the agreement on which the appellant sued would have come to an end on 1 November 2007, which was the date on which he contended the amount alleged to be outstanding became due and payable. He contended that in terms ofsection 11of the Prescription Act, any claim for arrears against the respondent pursuant to the agreement prescribed on 31 October 2010. For that reason, he contended that it was not open to the appellant to cancel the agreement and recover possession of the vehicle. The issue for determination was thus whether the appellants claim for repossession of the vehicle had become prescribed.

The courta quoupheld the special plea with costs. It did so on the basis of its finding thatStaegemann v Langenhoven and others[2011] JOL 27629(2011(5)SA648) (WCC), in which it was held that a vindicatory claim being a claim to ownership in a thing and not a claim for payment of a debt, does not prescribe after three years, was wrongly decided.

The parties reached a settlement shortly before the hearing so that the respondent was not represented. In view of the nature of the issues involved, the present court asked the Free State Bar Council to appoint anamicus curiae. At the hearing of the appeal, the court requested the appellant and theamicus curiaeto address it on two preliminary points. The first was whether prescription of the vindicatory claim had been pertinently raised in the pleadings, and the second was whether the subsequent settlement of the matter by the parties and the withdrawal by the respondent of his opposition to the appeal had not rendered the appeal moot by virtue of the provisions ofsection 16(2)(a)(i)of the Superior Courts Act10 of 2013. With regard to the first point, the parties agreed that nothing turned on it as the issue was fully ventilated when the special plea was argued in the courta quo. As to the second point, the appellant urged on this Court to hear the appeal notwithstanding its mootness on the ground that it raised a discrete legal issue of public importance.

Held As a general principle, courts should not decide issues that are of solely academic interest. Notwithstanding its mootness, the court was of the view that this appeal was a proper matter for the court to exercise its discretion in favour of hearing. The issue of the legal nature of a vindicatory claim and whether it gives rise to a debt that is subject to extinctive prescription has been decided differently by different divisions of the High Court. The appeal undoubtedly raised a discrete legal issue of public importance. Moreover, the issue was not a factual dispute between the parties, but rather a matter of law that would affect many litigants beyond the confines of this case.

Turning to the merits of the case, the Court addressed the question of whether the appellants claim for the repossession of its vehicle was a debt, which for the purposes of the Prescription Act prescribed after three years.

Referring to case law, the Court established that a debt is that which is owed or due; anything which one person is under obligation to pay or render to another and whatever is due debitum from any obligation.

After an analysis of relevant case law, the Court found merit in the argument that a vindicatory claim, because it is a claim based on ownership of a thing, cannot be described as a debt as envisaged by the Prescription Act. The High Court inStaegemannwas correct to say that the solution to the problem of the prescription is to be found in the basic distinction in our law between a real right (jus in re) and a personal right (jus in personam). Real rights are primarily concerned with the relationship between a person and a thing and personal rights are concerned with a relationship between two persons. The person who is entitled t