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Contents 1. S.A. Law Reports – July 2004 2. Industrial Law Reports - March 2004 3. All S.A. Law Reports – June 2004 4. S.A. Criminal Law Reports – February 2004 5. S.A. Criminal Law Reports – March 2004 6. S.A. Criminal Law Reports – April 2004 SUBJECT INDEX |Recusal |On grounds of appearance of bias | |Practice |Trial – Postponement | |Prison |Prisoner – Parole | |Maintenance |Duty of support – By parents of child | |Plant breeders’ rights |‘Breeder’ – Who is | |Magistrate’s Court Rules |Respondent failing to file notice of intention to oppose but appearing via counsel at hearing | | |of matter | |Nuisance |Abatement of – Application for final interdict | |Labour law |Sexual harassment | |Default judgment |Application for rescission of default judgment | |Legal Representation |Labour Court proceedings | |Sexual harassment |Vicarious Liability | |Insurance |Liability refuted – Prescription | |Interdict |Against demolition of building | |Marriage |Breach of promise to marry | |Director of Public Prosecutions |Investigating – Investigating Director | |Evidence |Ascertainment of bodily features | |Trial |Presiding officer | |Sentence |Imposition of | |Sentence |Prescribed sentences | |Drug offences |Dagga | |General principles of liability |Mens rea | |Constitutional Court |Appeal to | |Evidence |Privilege – Legal professional privilege | |Evidence |What constitutes – Plea explanation | |Legal Practitioners |Duties of | |Prescribed minimum sentence |Minimum sentences | THE SOUTH AFRICAN LAW REPORTS JULY 2004 (4) TAKE AND SAVE TRADING CC AND OTHERS v STANDARD BANK OF SA LTD 2004 (4) SA15CA Recusal – On grounds of appearance of bias – What constitutes bias – Deadly legal point made by Court During argument cannot give rise to apprehension of bias to reasonable, objective and informed litigant in possession of correct facts. Practice – Trial – Postponement – When granted – ‘Trick’ of some practitioners when shoe pinches, of withdrawing from case, or of clients terminating mandate, to force court to grant postponement – Duty of judicial officer to court system, their colleagues, public and parties to ensure such abuse curbed by refusing postponement in suitable cases – Mere withdrawal by practitioner or mere termination of mandate not entitling party to postponement as of right. STANFIELD v MINISTER 2004 (4) SA 43 CPD Prison – Prisoner – Parole – Eligibility of prisoner for placement on – Medical grounds – Court associating itself with statement by Judge heading Judicial Inspectorate of Prisons that release of terminally ill prisoners should be given more, if not priority, attention – Even worst of convicted criminals entitled to humane and dignified death. HUISAMEN A J 2004 (4) SA 81 SECLD Maintenance – Duty of support – By parents of child – Upon marriage of daughter, duty of support failing, in first instance, upon daughter’s husband and only reverting to parents if husband unable or under no legal obligation, post divorce, to discharge such duty (in casu, in terms of s 7(2) of Divorce Act 70 of 1979). WELTEVREDE NURSERY v KEITH KIRSTEN’S (PTY) LTD AND ANOTHER 2004 (4) SA 110 SCA Plant breeders’ rights – ‘Breeder’ – Who is – Must have ‘discovered or developed’ variety – Person cannot normally be considered ‘discoverer’ of plant if someone else provided particulars of its existence to that person – In addition, merely multiplying and testing plant not amount to ‘development’ – Plant Breeders ‘Rights Act 15 of 1976, s 1 sv ‘breeder’. BELIZCA INVESTMENTS CC v UCKG PROPERTIES 2004 (4) SA 197 TkHC Magistrate’s Court Rules - Respondent failing to file notice of intention to oppose but appearing via counsel at hearing of matter – Court determining matter without hearing evidence – Rule 55 (21) of Magistrate’s Courts. The respondent, acting in terms of Rule 62 (2) of the Magistrate’s Court Rules, applied for the dismissal of the appellant’s claim for want of compliance with a notice under Rule 62(1)(c) calling upon it to furnish security for the respondent’s costs of the action. The appellant failed to file a notice of opposition to such application. The appellant was, however, represented at the hearing of the application and postponement was sought on its behalf. The magistrate dismissed the appellant’s claim on the basis that it had not been opposed and made no entry on the record to the effect that a postponement had been sought. The appellant appealed against the dismissal of its claim on the basis that, in terms of Rule 35 (2)(a) the dismissal had not been competent in the absence of the respondent’s placing evidence before the court upon which it might have been justified. Held, that the application before the magistrate had been opposed because both parties were legally represented. There existed a practice in terms of which a party who had failed to file a notice of intention to oppose an application was nonetheless afforded an opportunity to present its defence, albeit with an appropriate order as to costs. Rule 55 of the Magistrate’s Courts Rules, which dealt with applications on notice, did not in any event require the filing of a notice of intention to oppose. Held, accordingly, that the magistrate’s judgment had to be set aside and the appeal be upheld. WRIGHT AND ANOTHER v COCKIN AND OTHERS 2004 (4) SA 207 ECD Nuisance – Abatement of – Application for final interdict – Four of applicants’ cattle being infected by viral disease associated with blue wildebeest – Blue wildebeest being carriers of viral disease – Non-endemic game, blue wildebeest, brought onto neighbouring farm by respondents – Damages suffered by applicants not trivial – Applicants facing continuous and ongoing damage to their cattle industry – Spreading of disease limited if cattle and wildebeest separated by distance – Unreasonable that applicants having to avoid risk of infection to their cattle caused by introduction of non-endemic game into area by abandoning stock farming within 1 000 metres from their common boundary with respondents’ property – Respondents ordered to remove wildebeest beyond 1 000 metres from applicants’ boundary. GROBLER v NASPERS BPK EN ‘N ANDER 2004 (4) SA 220 KPA Labour law – Sexual harassment – Vicarious liability of employer for damages caused by. The plaintiff was employed by the first defendant from October 1996 to August 1999 as a secretary for the production manager, one V, and for the trainee manager in the production planning department, one S (the second defendant), S was subsequently dismissed after a disciplinary hearing where he was found guilty of various complaints of sexual harassment. The plaintiff alleged that S had sexually harassed her from about January to July 1999 to such a degree that she, during August 1999 and after the disciplinary hearing, had suffered an emotional breakdown and was, at the time of the hearing, still unfit to return to work. As a result of these circumstances, the plaintiff instituted action against both the first defendant and S. Held, that the basic question was whether the unlawful act was sufficiently connected to the conduct authorized by the employer to justify the imposition of vicarious liability. In general the existence of a significant relationship between the creation or increase in the risk of the commission of the unlawful act and resultant wrong indicated a sufficient relationship for imposition of vicarious liability. Relevant factors were the opportunity presented to the harasser to abuse his authority, the ambit of his authority, and the vulnerability of a potential victim to the abuse thereof. Held, accordingly, that it was the circumstances fair to hold the first defendant vicariously liable for the sexual harassment of the plaintiff. “Opsommend dus, word eerste en tweede verweerder gesamentlik en afsonderlik beveel om aan eiseres te betaal. Die bedrag van R150 000 as algemene skade. Die bedrag van R23 128 ten opsigte van mediese uitgawes reeds aangegaan. Die bedrag van R47 348 as verlies van inkomste in die verlede.” INDUSTRIAL LAW REPORTS VOL 25, MARCH 2004 Ndhlela v Transnet Ltd [LC] - Default judgment. Application for rescission of default judgment – Labour Court proceedings – Principles applicable to rescission of default judgment – Common law and rule 16A of Labour Court Rules – Requirements to be satisfied. Ndhlela v Transnet Ltd [LC] ……Labour Court proceedings – Principles applicable to rescission of default judgment – Matter proceeding agsence of respondent where respondent mistakenly believing that matter removed from roll – Removal from roll initiated by misrepresentation by respondent’s attorney to registrar that parties agreeing to remove matter from roll – Respondent not acting wilfully and not to be visited with consequences of misrepresentation by attorney – Default judgment rescinded. Ndhlela v Transnet [LC] Legal Representation Labour Court proceedings – Serious and deplorable misrepresentation by attorney – Respondent’s attorney misrepresentation to registrar and court that parties agreeing to remove matter from roll – No such agreement – Such conduct reckless and subversive of vital element of integrity required of all legal practitioners in their dealings, in particular, with court.. Grobler v Naspers Bpk & ‘n ander [C] – Sexual harassment VICARIOUS LIABILITY Employer’s liability for sexual harassment by employee – Basis of liability in common-law jurisdictions – American and Canadian courts hold employer vicariously liable merely because of supervisory position held by employee – Australian, New Zealand and United Kingdom courts hold employer liable where employment relationship creates of increases risk of harassment and harassment takes place within that relationship. THE ALL SOUTH AFRICAN LAW REPORTS 2004 VOLUME 2 JUNE NO 1 Metcash Trading Ltd v Credit Guarantee Insurance Corporation of Africa Ltd [2004] 2 All SA 484 (SCA) Insurance Liability refuted – Prescription – Claim had not been lodged timeously as required by operating conditions of the policy. Provincial Heritage Resources Authority for the Eastern Cape v Gordon [2004] 2 All SA 554 (E) Interdict Against demolition of building protected under section 34(1) of National Heritage Resources Act 25 of 1999 – Whether de facto condition of building rendered interdictory relief nugatory. Lloyd v Mitchell [2004] 2 All SA 542 (C) Marriage – Breach of promise to marry – Where one party to agreement already married – Whether agreement contra bonos mores – Whether breach actionable – Changing mores of society. The plaintiff had instituted an action for damages arising from an alleged breach of promise to marry. At the time the agreement had been concluded, the plaintiff had been aware that the defendant was already married. The defendant therefore raised an exception that the plaintiff particulars of claim were bad in law and that the averments therein did not disclose a cause of action. In the particulars of claim the plaintiff sought damages for harm allegedly arising from the defendant’s breach of promise as well as alleged conduct of the defendant when repudiating the alleged agreement. The defendant excepted on the basis that on the plaintiff’s own version she had known that the defendant was married and an agreement to divorce and marry someone else was contra bonos mores and therefore void. The conduct of the defendant in repudiating the alleged agreement was part and parcel of the repudiation, and since the repudiation was not unlawful, the conduct in relation thereto could not be unlawful. Exception upheld. S.A. CRIMINAL LAW REPORTS FEBRUARY 2004 (1) SHAIK v MINISTER OF JUSTSICE AND CONSTITUTIONAL DEVELOPMENT AND OTHERS Director of Public Prosecutions Investigating – Investigating Director – Inquiries by – Investigation in terms of s 28 of National Prosecuting Authority Act 32 of 1998 – Words ‘any person’ in s28 (6)(a) not including accused person charged with offence that is subject of s 28 summons and investigation. The application had been summonsed to appear before an examination in terms of s 28 of the National Prosecuting Authority Act 32 of 1998. He applied to a High Court for an order inter alia setting aside the summons and declaring s 28(6) of the Act to be unconstitutional. The High Court found, inter alia that, on a proper construction, the words ‘any person’ as used in s 29(6)(a), did not include an accused person and that accordingly that subsection did not infringe the rights of an accused person. It found, however, that the subsection infringed the right ‘to remain silent’, but considered such limitation to be justified. The application thereupon applied for leave to appeal against the findings of the High Court. Subsequently, the applicant was arrested on charges related to the aspects on which he was to have been examined in terms of the summons. Held, that the wrong provision in the Act had been targeted for constitutional attack. The potential ambit of s 28 had been misunderstood, with the attendant consequences referred to above. The dispute was not a live one between the parties. Under all those circumstances, it was not in the interests of justice to grant leave to appeal in which the thrust of the constitutional attack was not in substance against s 28(b) but against s 28(8) and (10). MINISTER OF SAFETY AND SECURITY AND ANOTHER v XABA 2004 (1) SACR 149 D Evidence – Ascertainment of bodily features of accused – Provisions of s 37 of Criminal Procedure Act 51 of 1977 – Section 37 not permitting forced surgical removal of object from body of person either by policy official (s 37(1)(c)) or by medical practitioner requested thereto by police official (s 37 (2)(a)). S v ORRIE AND ANOTHER 2004 (1) SACR 162 C Evidence – Ascertainment of bodily features of accused – Blood sample. The taking of blood samples for DNA testing for the purposes of a criminal investigation is a reasonable and necessary step to ensure that justice is done and is reasonable and necessary in balancing the interest of justice against those of individual dignity. S v STOFFELS AND 11 SIMILAR CASES 2004 (1) SACR 176 C Trial – Presiding officer – Unavailability of to continue with trial – Magistrate indicated on criminal charges and indicating no intention to preside in court again – Such amounting to recusal and such recusal constituting absolute supervening impossibility which nullifies proceedings – Matters could commence de novo before another magistrate without order of High Court. THE SOUTH AFRICAN CRIMINAL LAW REPORTS MARCH 2004 (1) S v Barnard Sentence – Imposition of – Factors to be taken into account – Facts arising after sentence imposed – Accused repaying money stolen after sentencing and after appeal to Provincial Division dismissed – Timing of payment determined by accused – No explanation why payment occurring only after unsuccessful appeal and why it was not made at any other time – In absence of misdirections by Court a quo and if Court of appeal not at large to consider question of sentence afresh, taking repayment into account not justified – It would encourage others to manipulate their dealings in effort to influence outcome of appeals – However, in view of fact that number of material misdirections found in casu Court at large to impose appropriate sentence – In that sense accused’s position before Court similar to convicted accused awaiting sentence. S v WASSERMAN 2004 (1) SACR 251 TPD Sentence – Prescribed sentences – Minimum sentences – Imposition of in terms of Criminal Law Amendment Act 105 of 1997 – ‘Substantial and compelling circumstances’ – Addiction to gambling is mitigating factor and will certainly impact upon sentencing considerations – Pathological gambling disorder must qualify as ‘substantial and compelling circumstance.’ S v MAHLANGU 2004 (1) SACR 281 TPD Drug offences – Dagga. The accused was convicted on a plea of guilty to dealing in 2,308kg of dagga. A sentence of R6 000 or two years’ imprisonment was set aside, as he was a 21-year-old offender, and replaced with a sentence of R3 000 or 18 months’ imprisonment, of which R1 500 or 12 months were conditionally suspended for five years. S v MKANSI 2004 (1) SACR 281 TPD General principles of liability – Mens rea – Aberratio ictus – Accused striking out at F but B standing up between them and receiving blow – Accused charged only with assault on b – Common cause that only intention was to hit F – No evidence that accused foresaw that B would come between him and F – Cannot be convicted on basis of abberatio ictus. THE SOUTH AFRICAN CRIMINAL LAW REPORTS 2004 (1) APRIL S v Basson 2004 (1) SACR 285 CC Court – constitutional Court – Appeal to – In which cases – State seeking special leave to appeal to Court against decision of Supreme Court of Appeal, while also seeking to appeal directly from decision of High Court – Undesirable for litigant to be given two bites at appeal process. S v du Toit en Andere 2004 (1) SACR 341 T Evidence – Privilege – Legal professional privilege – Violation of – Remedies – Stay of prosecution – Privileged document seized by police, knowing it was privileged – Undertaking given by prosecution that document would not be used during trial – Question whether accused can have fair trial can be determined only ex post facto – Would be premature, and in fact irresponsible, to make any decision on application at start of trial – Judgment postponed to end of case, after all witnesses testified and all evidence before Court – Decision can then be made about credibility of witnesses and whether there has been any prejudice to accused because document came to be in possession of police and prosecution. S v de Ruiter 2004 (1) SACR 332 W Evidence - What constitutes – Plea explanation and admissions placed before court in plea phase – Such not constituting ‘evidence’. S v Mofokeng 2004 (1) SACR 349 W Legal Practitioners – Duties of – Counsel mandated to argue appeal – Counsel, in head of argument, conceding conviction and sentence correct – In absence of any indication that appellant had withdrawn appeal or instructed counsel to concede correctness of two essential findings of court below, counsel breached duty of loyalty – Counsel obliged to withdraw from case if he felt he couldn’t advance appellant’s case on appeal – Appellant could then appear at hearing of appeal or seek other legal representation – To allow matter to proceed in absence of appellant or legal representative who put forward submissions on his behalf would render hearing on appeal a nonsense – Should counsel have persisted along lines of his heads of argument, he would have compounded breach of loyalty to appellant – Should he argue opposite, he would probably find deaf judicial ear – Appeal tainted to such extent that appellant would probably not receive fair hearing through lips of his advocate. S v Mugeri 2004 (1) SACR 371 T Prescribed minimum sentence – Minimum sentences – Imposition of in terms of Criminal Law Amendment Act 105 of 1997. Where regional court convicts accused of offence in Part I of Schedule 2 of Act, it must stop proceedings and refer matter to High Court for sentencing.