INDEX1

SOUTH AFRICAN LAW REPORTS NOVEMBER 2014

SOUTH AFRICAN CRIMINAL LAW REPORTS NOVEMBER 2014

All SOUTH AFRICAN LAW REPORTS NOVEMBER 2014

EDITORIAL

EDITORIAL

NBCSA Head office is relocating!

FAQ:

1) When are we relocating: 01December 20142) New telephone number 031 535 7108 & fax number: 08651747893) New postal address:   P.O. Box 25386, Gateway, 43214) New street address:   1st Floor, 21 Aurora Drive, Umhlanga Ridge, 43015) What benefits for our members: When booking a meeting room members will have internet access, professional administrative support available from the centre team.6) Will members have access to boardrooms:   Yes7) Branches: Johannesburg:  Midrand, Fourways, Parktown, Sandton, Eastgate, Sunninghill, Rivonia Village, Rosebank, Pretoria:  Centurion, Brooklyn, Menlyn, Durban:  Umhlanga, Kingsmead (1 March), Westville, Port Elizabeth: Greenacres, Cape Town: Convention Towers, Century City, Mowbray, Tyger Valley, Stellenbosch, and abroad.8) How can we use the mail forwarding services: (In other words you can have documents couriered from one branch to another and a client may even drop it off for you at any branch):  Contact Melanie9) From which date will the services be available:  1December 201410) If a member wants to make a booking, what reference to be used: Contact Melanie

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 2012 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!

LEGAL NOTES VOL 12/2014

Compiled by: Adv Matthew Klein

11) How will the member pay:  Credit card on departure.12) How much costs for each item:  Depends from centre to centre, basic for small room R120 per hour. Ask Melanie.

OTHER BENEFITS

1) THE PROVINCES CAN NOW SET UP THEIR OWN VIRTUAL OFFICES2) The cost is R1700.003) 5 days per month free access for consultations4) Each province gets its own telephone number which will be answered by the

receptionist WITH THE NAME OF THE ASSOCIATION5) The receptionist will contact the person for whom a message is left6) The receptionist will also contact the person for whom a document is left7) A province can even leave a “receipt acknowledged” stamp with the

receptionist , to acknowledge receipt of letters/documents 8) Now those who work from home (as per myself) can have an office address

and in my case, coming from Gauteng, I will have it at Brooklyn Bridge Office Park, next to the Brooklyn Advocates Chambers. How nice!

 So which province will be the first to do this?

Or will the NBCSA fund this?

We are not the “National Bar Council of South Africa” for nothing! This council must give more autonomy to its branches.

So what powers do the branches want?

Should the branches not take over the pupillage program? (As is currently the case with our rivals, the General Bar Council of South Africa where the provinces do the exams etc.)

So let’s hear from the Exco!

OFFICES ARE CLOSING FOR RECESS

Our offices will be closed from 12 December 2014 (last day) and will re-open on 12 January 2015.

MAY I USE THIS OPPORTUNITY TO WISH YOU ALL A HAPPY FESTIVE SEASON….

AND REMEMBER DO NOT CELLPHONE AND DRIVE!

MATTHEW

SOUTH AFRICAN LAW REPORTS NOVEMBER 2014

MINISTER OF SAFETY AND SECURITY v SCOTT AND ANOTHER 2014 (6) SA 1 (SCA) Delict — Specific forms — Interference with contractual relationship — Ambit of delict — Sufficiency of negligence — Public policy — Danger of indeterminate liability — Contract with company cancelled when CEO unlawfully arrested on unrelated charge — Liability of police for losses suffered by company — Policy considerations militating against imposition of liability.Scott, the first respondent, was a professional hunter and undertaker of big-game hunting enterprises. He was also the chief executive officer of Scottco (Pty) Ltd, the second respondent, which owned Mopane Ranch and conducted hunting safaris for fee-paying guests. As representative of Scottco he concluded a contract with an American hunting and fishing magazine to carry advertisements for the business and bring clients to the ranch for hunts. On the night a hunting party arrived from America, Scott was arrested and detained by the police — on an unrelated assault charge — resulting in him being unavailable and the hunting trip ruined. The magazine cancelled the contract in the wake of the incident. The respondents sued the Minister of Safety and Security for damages arising from Scott's arrest and detention. This included a claim by Scottco for the loss of contractual income and profits. The high court found for the respondents and awarded R49 million in respect of loss of contractual income and profits. The order was upheld in an appeal to the full bench. In a further appeal to the SCA the court addressed the issue of the minister's liability to Scottco.Held: The general rule was that only intentional interference with the contractual relationship of another constituted an independent delictual cause of action. Since the police had no knowledge of the contract there could be no question of intentional interference. Academic authority suggested, however, that the general rule was too restrictive and that negligent conduct by a third party could, on principle, found an Aquilian action. The fear of unlimited liability would be allayed by the correct application of all the delictual elements. But even assuming that Scottco could get past negligence (which was doubtful), it faced problems with wrongfulness and B causation, both of which served as brakes on indeterminate liability. In either event, to impose damages in the circumstances of the present case would be to cast the net too wide and land police with liability for loss that was too remote. Scottco's claim should therefore have failed. Appeal upheld.

ROAD ACCIDENT FUND v FARIA 2014 (6) SA 19 (SCA)  Motor vehicle accident — Compensation — Claim against Road Accident Fund — Limits — 'Serious injury' threshold for general damages — RAF not bound by determination of its own expert that injury 'serious' — Joint minute prepared by experts from both sides no longer conclusive in deciding seriousness of claimant's injuries — Road Accident Fund Act 56 of 1996, s 17(1) and 17(1A). The 2005 amendments to the 1996 Road Accident Fund Act and regulations *  limited the Road Accident Fund's liability to compensate victims of road accidents by providing that it would pay general damages (non-pecuniary loss) only if a 'serious

injury' was sustained. The present case concerned the validity of a high court's granting of a claim for general damages despite its rejection by the RAF.Mr Faria was injured in a car crash and underwent medico-legal assessments by two of his own experts and by an expert appointed by the RAF. All three experts concurred that Faria had suffered a 'serious injury' and two of them (one from each side) prepared a joint minute confirming this. But the RAF rejected the serious-injury assessment (RAF 4) form. The high court, concluding that the joint minute meant that it was not in dispute that Faria's injuries were serious, awarded general damages of R350 000. In an appeal to the SCA the issues were whether the RAF could reject its own expert's finding on the seriousness of a claimant's injuries and whether it was, moreover, bound by the joint minute.Held: Under the new legislative regime the assessment of whether a claimant's injuries were serious was an administrative, not judicial, decision. The decision was that of the RAF, and it was not bound by its own expert's determination that the injury was 'serious'. Although a joint minute prepared by experts chosen by both sides would in the past have been conclusive in deciding a claimant's injuries, this was no longer the case. Unless the RAF was satisfied that the injuries were serious, the claimant simply had no claim for general damages. Hence the high court erred in awarding them. It simply had no jurisdiction to do so.

EX PARTE VAN DEN STEEN NO AND ANOTHER (CREDIT SUISSE GROUP AG AND ANOTHER INTERVENING) 2014 (6) SA 29 (GJ)  Company — Business rescue — Resolution to begin rescue proceedings — Requirement that resolution be published to every affected person — Substantial compliance sufficient — Achieved if established that all affected persons had full knowledge of notice and its contents — Companies Act 71 of 2008, ss 6(9) and 129(3)(a). Company — Business rescue — Business rescue practitioner — Appointment — Requirement that appointment be published to every affected person — Substantial compliance sufficient — Achieved if established that all affected persons had full knowledge of notice and its contents — Companies Act 71 of 2008, s 129(4). Company — Notices — Prescribed manner of delivery — Substantial compliance with prescribed manner of delivery sufficient — Achieved if established that all affected persons had full knowledge of notice and its contents — Companies Act 71 of 2008, s 6(9).  Section 6(9) of the Companies Act 71 of 2008 (the Act) provides for substantial compliance with 'a manner of delivery . . . prescribed in terms of this Act for any purpose'.Subsections 129(3)(a) and 129(4) of the Act respectively require that a notice of the resolution to commence business rescue and a notice of appointment of the business rescue practitioner be published to 'every affected person' within certain time limits and with certain accompanying information. * And ss (5)(a) of the Act provides that if a company should fail to comply with ss 129(3) and 129(4), its resolution to begin business rescue proceedings 'lapses and is a nullity'.Here the applicant for business rescue had published its ss 129(3)(a) and 129(4) resolutions in the prescribed way but had omitted to directly deliver it to the intervening parties who, notwithstanding, in any event became aware of the business rescue application shortly after the resolution was filed and within the time period

prescribed by s 129. In issue was whether ss 129(3)(a) and 129(4) of the Act required strict compliance or substantial compliance; and if the latter, whether the applicant had substantially complied.Held: Substantial compliance would be sufficient. Section 6(9) specifically stipulated that a deviation from the prescribed manner did not invalidate the action unless the deviation materially reduced the probability that the intended recipient would receive the notice. This provision — read with the definition in the Companies Regulations that 'to publicise information' was 'to bring the information to the attention of the persons for whom it is intended' — recognised that what was of paramount importance in respect of the delivery of notices to persons entitled thereto was not whether or not delivery had taken place strictly in accordance with the prescribed manner but whether or not, as a fact, the person to whom delivery ought to have been effected received the requisite notice. E Section 6(9) enabled a court to find that there was substantial compliance with giving notice to all affected parties if it were established that all affected parties had full knowledge of the notice and its contents. It was clear that the intervening parties were not only aware of the resolution but they also supported the application. In the circumstances, F there was substantial compliance with ss 129(3) and (4) as far as notice of the resolution and notice of the appointment of a business rescue practitioner were concerned.

RICHTER v BLOEMPRO CC AND OTHERS 2014 (6) SA 38 (GP) 

Company — Business rescue — Liquidation proceedings already initiated — Business rescue and liquidation incompatible — Business rescue application not possible after final liquidation order made unless latter rescinded on appeal — Companies Act 71 of 2008, ss 131(1) and 131(6).Company — Business rescue — Application for by affected person — Not possible after final liquidation order made unless liquidation order set aside on appeal — Companies Act 71 of 2008, s 131(1). Section 131(1) of the Companies Act 71 of 2008 (the Act) provides that an affected person may apply to court at any time for an order placing a company under business rescue. Here the issue was whether such an application could be brought after a final liquidation order.

Held: Business rescue proceedings and final liquidation were incompatible concepts requiring different considerations. The legislature intended for the E former to commence before the latter was ordered. It followed that a business rescue application was not in law possible after a final liquidation order had been made unless that order was set aside on appeal; and that the 'liquidation proceedings' (that a business rescue application would suspend) referred to in s 131(6) of the Act did not include a final liquidation order.

F v MINISTER OF SAFETY AND SECURITY AND ANOTHER 2014 (6) SA 44 (WCC) Damages — Rape — Rape and assault of 13-year-old girl by policeman after offering her lift home in police vehicle — Multiple injuries — Chronic post-traumatic stress and depression — Requiring medical treatment and lifelong medication —

Award of R500 000 general damages and R1 760 000 for loss of earnings; state to pay for future medical expenses and medication. When she was 13 years old F was assaulted and raped by an off-duty policeman after he had offered her a lift home from a club in a police vehicle. The state was found to be vicariously liable and only the quantum of damages remained to be determined. F was a virgin at the time and sustained multiple injuries during the attack. The parties agreed that as a result of the rape, F suffered from untreated chronic post-traumatic stress and co-morbid major depressive disorders that required ongoing medical treatment (primarily in the fields of psychiatry and psychology) and lifelong medication.Held: The rape happened when F was a mere child and had impacted severely on her sense of self, dignity, normal sexual development and enjoyment of life. The scars would live with her for a long time to come, if not forever. That the rape was perpetrated by an adult in a position of trust, a policeman who had a duty to protect citizens and uphold their safety and dignity, was an aggravating factor. The trauma suffered on a physical level was severe and merited an equitable award for pain and suffering and contumelia. In the circumstances R500 000 would constitute just and equitable general damages. A further R1 760 000 would be awarded for loss of earnings, and the C state would be ordered to pay future medical expenses and the reasonable costs of on going medication for life.

DEAN OF THE LAW FACULTY, UNIVERSITY OF THE NORTH WEST, AND OTHERS v MASISI 2014 (6) SA 61 (SCA) Education — University — Standards — Credit for courses completed at other university — Complaint in Equality Court concerning university's refusal to give credit for more than 50% of courses completed at another university — Equality Court setting aside university rules and applicable provisions of Joint Statute of SA Universities without giving minister, other universities, or their collective voice opportunity to participate in proceedings — Order set aside and matter remitted. Mr Masisi was registered for a LLB degree at UNW and wanted full credit for the courses and modules he had completed at another university. The university, however, refused to give him more than 50% credit, arguing that it was constrained to do so by its own rules and those of the Joint Statute of SA Universities, a document approved by the Minister of Education under the Universities Act 61 of 1955. Aggrieved, Masisi approached the Equality Court with a complaint of unfair discrimination. The Equality Court struck down the relevant provisions of the university's rules and of the Joint Statute. In an appeal to the SCA —Held: The issue was of vital importance to tertiary education in South Africa, and the Equality Court should have given the Minister of Education, other universities and their collective voice, Higher Education South Africa, the opportunity to deal with the issues raised by Masisi's complaint, including the question of the Equality Court's competence to make an order setting aside legislation. Matter remitted with the instruction that all interested parties be informed of the relief being sought against them.

MASTER CURRENCY (PTY) LTD v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE 2014 (6) SA 66 (SCA)  Revenue — Value-added tax — Zero rating — Services supplied to non-residents — Zero rating not applicable to services supplied to non-residents present in Republic when services rendered — Services supplied to non-residents by bureaux de change at international airport's duty-free area therefore not zero-rated — Value-Added Tax Act 89 of 1991, s 11(2)(l)(iii).Money — Currency — Banknotes — Nature — No longer to be regarded as promissory notes embodying incorporeal right against issuing bank. The taxpayer, a bureau de change operator at the Johannesburg International Airport, charged no value-added tax (VAT) on the fees and commissions it earned from currency-exchange services it rendered to departing non-residents. The tax court upheld the commissioner's ruling that the taxpayer's assumption that no VAT was chargeable in duty-free areas was incorrect, and held that VAT at the standard rate applied.In the taxpayer's appeal to the Supreme Court of Appeal the main issue was the proper construction of the provisions zero-rating services to non-residents in s 11(2)(l) of the Value-Added Tax Act 89 of 1991 (the Act).  The taxpayer contended that the services concerned qualified for a zero rating under s 11(2)(l)(ii)(aa) as 'movable property . . . exported to [non-residents]';   the commissioner that it was excluded from a zero rating by s 11(2)(l)(iii), having been rendered to a person who was 'in the Republic at the time the services [were] rendered'.A further contention (raised by the taxpayer in reply) was that because currency was banknotes and therefore movable property, and because the incorporeal rights that attached to the banknotes were situated where it was issued, its services were 'supplied directly in respect of . . . movable property situated in any export country at the time the services [were] rendered', and were therefore zero-rated in terms of s 11(2)(g).Held: The word 'or' where it appeared after subpara (ii) in s 11(2)(l) could not be read disjunctively. The fact that a service may fall under subpara (ii)(aa) H did not mean that it was not covered by subpara (iii). Subparagraphs (i) – (iii) were exceptions to the zero-rated services, in effect services that were standard-rated. No status was conferred on the services referred to in subpara (aa) or (bb); these helped to define the services referred to in the main body of para (ii). The taxpayer was not entitled to a zero rating by virtue of s 11(2)(l)(ii)(aa) of the Act.The promises to pay to bearer that were contained in some banknotes could not today be regarded as promissory notes embodying incorporeal rights against the issuing bank. It followed that banknotes, with or without a promise to pay its face value on demand, could not be regarded as documents that embodied incorporeal rights that were situated, in the case of foreign notes, elsewhere. The taxpayer's services A rendered in the duty-free area were subject to VAT at the standard rate and were correctly assessed as being so by the commissioner.

PRETORIUS AND ANOTHER v TRANSNET SECOND DEFINED BENEFIT FUND AND OTHERS 2014 (6) SA 77 (GP)  Practice — Class action — Certification — Provision to be interpreted generously and expansively, consistent with constitutional mandate — Transnet pensioners

seeking leave to institute class action as representatives of members of pension funds for payment of alleged R80 billion pension deficit — Case pattern-made for class-action proceedings — Certification appropriate and in interests of justice — Constitution, s 38(c). Pretorius and Kruger, two Transnet pensioners, brought an application for leave to institute a class action in terms of s 38(c) of the Constitution * as representatives of members of the Transnet Second Defined Benefit Fund (first respondent) and Transport Pension Fund (second respondent) against one, more or all of the respondents. They sought to compel Transnet (fourth respondent) and the state (fifth and sixth respondents) to pay a 'legacy debt' of R80 billion dating from the establishment of Transnet, to the funds in accordance with their obligations. They contended that these amounts were assets of the funds, the object of which was to provide benefits to pensioners, special pensioners and beneficiaries and the failure to redeem the debt had materially and adversely affected their rights and those of the members of the class. The respondents opposed the application chiefly on the basis that the proposed claims did not disclose a cause of action. Held: The situation in the present case seemed pattern-made for class-action proceedings. The applicants were drawn from the very poorest within society (old-age pensioners): those in need of statutory social assistance and who had the least chance of vindicating their rights through the ordinary legal process. As individuals they were unable to finance a legal action, given their meagre income in the form of pension moneys. What they had in common was that they were victims of official excess, bureaucratic misdirection and what they perceived as unlawful administrative methods. Against this background the provisions regarding a class action had to be interpreted generously and expansively, consistent with the constitutional mandate given to the courts, thus ensuring that the rights in the Constitution enjoyed the full measure of protection to which they were entitled. Further, the papers filed of record identified a triable issue between the parties. Should it happen, however, that the summons and particulars of claim in the proposed action did not disclose a cause of action, an exception could be filed at the appropriate time. In the circumstances certification was appropriate and in the interests of justice.

SCHOLTZ AND ANOTHER v MERRYWEATHER AND OTHERS 2014 (6) SA 90 (WCC)  Practice — Judgments and orders — Rescission — Default judgment — Rescission under common law — Requirements — Wilful default.Champerty — Funding of litigation by non-party — Court's discretion to make costs order against funder — Non-party father funding son's bid to rescind judgments — Judgments stemming from delict committed by son. This case considers the common law on rescission of judgments obtained by default. The common law allows a court to rescind such a judgment if there is sufficient cause to do so. Essential elements of sufficient cause are a reasonable explanation for the default; and a bona fide defence with, prima facie, some prospects of success. Other factors a court may examine are: the mental aspect of the default — whether it was wilful, negligent or blameless; the bona fides of the application; and the prejudice to the respondent if rescission is granted.

The facts were that Merryweather and Scholtz were involved in a fight which left Merryweather paralysed. Merryweather sued Scholtz for his damages and Scholtz failed to deliver a notice of intention to defend. Merryweather then obtained judgment by default and judgment on the quantum. Thereafter Scholtz applied to rescind both judgments. The court dismissed the application. It held that while Scholtz had made out a defence with prima facie prospects of success — that he had acted in self-defence — his explanation for his default, namely that he believed the service of summons on him  was ineffective, was not reasonable. Moreover Scholtz had wilfully defaulted (he had decided, aware of the summons, not to oppose the claim); the prejudice which would be caused to Merryweather by rescinding the judgments would be considerable; and Scholtz had not brought the application bona fide. The case also concerns a court's discretion to award costs against a non-party funder of litigation. A court may make such an award where the non-party substantially controls the litigation or is to benefit from it. Here the court ordered that Scholtz's father was liable jointly and severally with Scholtz for the costs of the application. He had funded his son's litigation and had substantially controlled the proceedings on his son's side — hindering service of the summons, consulting lawyers, and initiating the rescission application. He also stood to benefit — if the judgments could be rescinded he would be relieved of the need to support his son.

NB v MAINTENANCE OFFICER, BUTTERWORTH AND OTHERS 2014 (6) SA 116 (ECM)Maintenance — Children — Failure by executor of deceased estate to pay maintenance — Maintenance officer refusing to investigate claim — Provision not applicable to investigation of claims against deceased estates — Master requested to investigate complaint — Maintenance Act 99 of 1998, s 6(1)(a). The applicant, mother of four of the deceased's minor children, requested the executor to pay maintenance for all his children from the estate. Failing to get a response, she lodged a complaint with the maintenance officer in terms of s 6(1)(a) of the Maintenance Act. The maintenance officer refused to investigate the claim and the applicant asked the high court to review and set aside the decision, and direct the maintenance officer to undertake the investigation. The respondents all opposed the application. In issue was whether the provision applied to the investigation of claims against deceased estates, which claims were ordinarily regulated by the  Administration of Estates Act. The court concluded that, in the circumstances, it did not. The application was therefore dismissed and master requested to investigate the complaint.

SOUTH AFRICAN POLICE SERVICE v SOLIDARITY OBO BARNARD 2014 (6) SA 123 (CC)  Constitutional law — Human rights — Right to equality — Right not to be unfairly discriminated against — Restitutionary measures — Affirmative action — Constitutionality — Measures and implementation — Court's right to test — Impact on human dignity.Labour law — Employment equity — Affirmative action — Constitutionality — Measures and implementation — Refusal by police to promote white female officer

on basis that it would be inconsistent with their employment equity plan — Not amounting to unfair discrimination.  This case concerned the constitutionality of affirmative-action measures and whether their implementation would amount to unfair discrimination.Lieutenant-Colonel Barnard, a white female police officer, twice applied for and was twice refused promotion to a specialised SAPS unit despite having been identified as the best candidate for the position. The SAPS justified its decision (made by the national commissioner) by arguing that according to its employment equity plan, which set numerical norms based on national demographics, white women were already over-represented at that salary level. The post was subsequently scrapped on the ground that it was 'non-critical' and the vacancy 'would not affect service delivery'. Barnard alleged that she was denied promotion solely because she was white and that this amounted to unfair discrimination.The Labour Court found in Barnard's favour, but in an appeal the Labour Appeal Court held that there was no discrimination because the vacancy was not filled. In a further appeal the SCA concluded that the SAPS did not discharge the presumption of unfairness attracted by Barnard's claim and ruled in her favour. In a further appeal the Constitutional Court delivered four judgments unanimously upholding the appeal.Majority judgment (per Moseneke ACJ, with Skweyiya ADCJ, Dambuza AJ, Jafta J, Khampepe J, Madlanga J and Zondo J concurring):The applicable law: The Constitution had a transformative agenda to H achieve substantive equality, and measures directed at remedying past discrimination were therefore in principle fair and constitutionally sound, provided that the principle of legality was observed and the human dignity of those affected not unduly compromised. Once a measure passed constitutional muster as one designed to benefit a previously disadvantaged class I of person, it was neither unfair nor presumed to be unfair, though its legality could be tested by the courts. Validly adopted affirmative-action measures had to be lawfully implemented, and this could also be tested by the courts.The SCA judgment: The SCA erred in adjudging Barnard's claim as one of unfair discrimination on the ground of race and then, applying the Harksen J test,  concluding that the SAPS did not rebut the presumption of unfairness. It misconceived the issue before it as well as the controlling law. Since the decision not to promote Barnard was taken under the SAPS' employment equity plan — a restitutionary measure — the SCA had been obliged to approach the matter through the prism of s 9(2) of the Constitution. The SCA had wrongly burdoned the SAPS with an onus to dispel a presumption of unfair discrimination. Since the SCA decided the matter on the wrong principle, the appeal would succeed on this ground alone. The lawfulness of the commissioner's decision: Although the issue was raised for the first time on appeal and thus not properly before the court, it was clear that the commissioner had acted rationally and with due regard to the criteria in the employment equity plan and ancillary regulations. First concurring minority judgment (per Cameron J, Froneman J and Majiedt AJ):The standard applicable to the individual implementation of affirmative-action measures: fairness: The EEA required, besides rationality, fairness. This meant that the decision-maker had to give adequate reasons for his decision, particularly if it were based on race. Although the commissioner did not explain why he regarded representivity as more important than service delivery, his decision passed the fairness standard E because the over-representation of white women at the salary

level to which Barnard had applied justified the prioritising of racial representivity over other considerations. Second concurring minority judgment (per Van der Westhuizen J):The nature of Barnard's claim: Barnard's claim was a bid to set aside the commissioner's decision on the ground that it was unlawful. The lawfulness of the equity plan and the commissioner's decision: Both the plan and its implementation by the commissioner passed muster on the three-prong test †  for the constitutionality of a restitutionary measure. In particular, the commissioner's decision promoted the achievement of equality. The impact of the decision on Barnard's dignity: Since the implementation of the measure did not either treat Barnard as a mere means to H achieve an end nor amounted to an absolute barrier to her advancement, the impact on her dignity was not excessively restrictive and was indeed outweighed by the restorative goal of the measure. Public interest in service delivery: There was insufficient evidence to show that it was disproportionate for the commissioner to rank representivity higher than the possible impact of the decision on service delivery. The sufficiency of the reasons given by the commissioner: Though they could have been better formulated, the reasons were adequate because they gave Barnard enough information to understand why she was not appointed. Third concurring minority judgment (per Jafta J, with Moseneke ACJ concurring):The nature of Barnard's claim: new cause of action: A party was obliged to plead its case in the court of first instance. While she sought relief from unfair discrimination in the Labour Court, she then sought to introduce a constitutional complaint that was not pleaded, namely the validity of the commissioner's decision. This was impermissible, and the Constitutional Court would not determine it. The SCA judgment: The SCA approached the matter on an incorrect footing and applied the wrong test. The Harksen test did not apply where, in defending a claim of unfair discrimination, the defendant argued that the impugned decision was taken in the furtherance of a restitutionary measure as contemplated in s 9(2) of the Constitution. Fairness as a standard for the implementation of restitutionary measures: Fairness as a standard could not be sourced in the EEA and even if it could, its introduction would undermine s 9(2) of the Constitution. The issue of an appropriate standard for affirmative-action measures was in any event not properly raised and best left for another day.

CAPSTONE 556 (PTY) LTD v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE 2014 (6) SA 195 (WCC)  Revenue — Capital gains tax — Base cost of asset — Expenditure incurred — Borrowing costs — Meaning — Overall costs expended by taxpayer in acquiring asset with borrowed money — Income Tax Act 58 of 1962 sch 8 para 20(2)(a).Revenue — Income tax — Income or capital accrual — Determination of intention with which asset held and disposed of — Inferences to be made from objective facts — Period between acquiring and selling asset to be considered in broader context of evidence as whole — In present case such broader context overwhelmingly indicating intention to hold shares as capital asset. Revenue — Income tax — Income or capital accrual — Determination of intention with which asset held and disposed of — Inferences to be made from objective facts

— Significance of period between acquiring and selling asset much reduced where decision to sell triggered by novus actus interveniens.  The taxpayer (Capstone), a special purpose vehicle for acquiring and holding shares in the JD Group (JDG), took transfer of the JDG shares in December 2003 and sold them in March 2004, declaring and paying a provisional amount of capital gains tax. The commissioner, viewing the proceeds as I revenue in nature, assessed for income tax and levied interest on underpayment. Two deductions claimed as exclusions from the capital gains (as part of the base costs of the shares) were also disallowed: the taxpayer's share of an indemnity obligation assumed upon acquiring the shares; and expenditure actually incurred in respect of certain loans made to acquire the shares, namely a payment to the lender of a share in the profits made from selling the shares (the 'equity kicker'). Capstone acquired the shares as part of a scheme involving a debt-for-equity swop: the debt that of a listed company in the furniture retail industry (P); the equity shares issued by P and taken up by its major creditor, FirstRand Bank Ltd (FRB). The scheme's ostensible purpose was to rescue P from financial difficulty and reduce FRB's bad-debt risk. Its prominent features were the said debt-for-equity swop (converting two-thirds of P's FRB debt into equity); JDG taking control of P to execute a turnaround strategy; FRB exchanging the bulk of its P shares for JDG shares; the on-selling by FRB of these to a consortium of investors, half of it ultimately held by Capstone and the other by et Cie; and the reservation in favour of Mr (the shareholder of et Cie and a director of Capstone) of the decision to sell (all) the shares.The shares were acquired at their value as at the date that P's turnaround strategy was effectively implemented, ie 21 June 2002, and was expected to take at least three years. By the time Capstone took transfer of the shares the turnaround strategy had already achieved considerable success. Around this time Mr — who by then had become inclined towards realising his South African assets — was informed (by chance) of the possibility of selling the shares by way of a 'book building exercise'. Deciding to do so, Mr D sold et Cie's JDG shares, and Capstone, as it was obliged to, followed suit.The commissioner based his assessment, inter alia, on the objective fact that the JDG shares were held for less than five months before being disposed of. The tax court agreed with the commissioner that the proceeds of the disposal were of a revenue nature but allowed the claimed deductions. *In Capstone's appeal against the former finding and the commissioner's cross- appeal against the latter, the full bench of the Western Cape Division held:As to the capital/revenue nature of the accrualIn drawing inferences as to the intention of the taxpayer, it was essential to consider the objective facts relied on by the commissioner in the broader context of the evidence as a whole. These overwhelmingly indicated that there was no short-term intention on the part of anyone who participated in the arrangements concerning the JDG shares. Capstone's intention when it first decided to acquire the JDG shares was to make a strategic investment and to hold those shares for however long P's turnaround strategy took. The effective date of the transaction as a whole dated back to 21 June 2002 and it was accordingly that date (and not when it was transferred) that determined the period for which the asset was held. The objective fact that an asset was sold for a profit very soon after it had been acquired loses much importance in drawing

inferences as to the intention with which an asset was acquired if it were sold as the result of a nova causa interveniens. Here H the advice regarding being able to sell the shares by way of a book building exercise had been solely responsible for Mr D's decision to sell, and as such constituted anova causa interveniens. In the final analysis the decision to sell was that of Mr D. Capstone's intention at the time that the asset was disposed of was irrelevant; its only intention at that time was to honour its commitment to its consortium partner. As to claimed deductions Only the 'equity kicker' (and not also the indemnity obligations) constituted 'expenditure actually incurred in respect of the cost of acquisition or creation of that asset', as contemplated by para 20(1)(a) of sch 8 to the Act.While the 'equity kicker' would ordinarily fall within the meaning of 'borrowing costs' — the overall costs expended by a taxpayer in acquiring an asset with borrowed money, excluded by para 20(2)(a) of sch 8 to the Act from expenditure deductible in terms of para 20(1)(a) — the equity kicker did not constitute borrowing costs because it related to 'share(s) listed on a recognised exchange' which subpara 20(1)(g)excluded from borrowing costs.

COPPER SUNSET TRADING 220 (PTY) LTD v SPAR GROUP LTD AND ANOTHER 2014 (6) SA 214 (LP)  Company — Business rescue — Business rescue plan — Vote — Rejection — Application to set aside result as 'inappropriate' — Unreasonable and irrational rejection set aside as inappropriate — Companies Act 71 of 2008,  s 153(1)(a)(ii) read with s 153(7). The business rescue practitioner of the applicant company had launched a s 153(1)(a)(ii) application * pursuant to the first respondent (SGL), a secured creditor, and the second respondent (NF), a concurrent creditor, voting against the adoption of the applicant's revised business rescue plan. In issue was whether the applicant had made out a proper case that their votes were inappropriate within the meaning of s 153(1)(a)(ii) read with s 153(7)  of the Act.Held: As a secured creditor SGL would probably be the only creditor standing to H gain from a liquidation, and this rendered its opposition to business rescueself-serving and unreasonable; and NF's opposition irrational since absent such a plan it would receive nothing. Accordingly their conduct in rejecting the applicant's revised business rescue plan was inappropriate.

MOTALA AND ANOTHER NNO v MOLLER AND OTHERS 2014 (6) SA 223 (GJ)  Insolvency — Effect — On property of solvent spouse — Sequestration of individual causing solvent spouse's estate to vest in trustee — After vesting solvent spouse transferring immovable property to third party — Whether s 21(1) rendering transfer void or voidable — Whether trustee can choose to proceed under s 21(1) rather than s 25(4) — Insolvency Act 24 of 1936, ss 21(1) and 25(4). Ms Stein was the owner of an immovable property. She was married to one Mr Segal. After a time Segal was sequestrated and thereafter Stein sold and transferred her property to one Mr Moller. Moller was unaware that Segal had been sequestrated and acted in good faith, paying the fair market price. Segal's trustees

then applied for an order declaring the transfer void. The trustees based their application on s 21(1) of the Insolvency Act 24 of 1936. Section 21 provides that:

   'The additional effect of the sequestration of the separate estate of  one of two spouses who are not living apart under a judicial order of separation shall be to vest in the Master, until a trustee has been appointed, and, upon the appointment of a trustee, to vest in him all the property (including property or the proceeds thereof which are in the hands of a sheriff or a messenger under a writ of attachment) of the spouse whose estate has not been sequestrated (hereinafter referred to as the solvent spouse) as if it were property of the sequestrated estate, and to empower the Master or trustee to deal with such property accordingly, but subject to the following provisions of this section.'The issues were (1) the effect of s 21(1) on a solvent spouse's transfer of her property to a third party; (2) the nature of a vesting of a solvent spouse's property in a trustee which is effected by s 21(1), and its consequences; and (3) the relation between s 21(1) and s 25(4), specifically whether a trustee may choose which he will proceed under. Section 25 states that:   'If a person who is or was insolvent unlawfully disposes of immovable property or a right to immovable  property which forms part of his insolvent estate, the trustee may, notwithstanding the provisions of subsection (3), recover the value of the property or right so disposed of —   (a)   from the insolvent or former insolvent;   (b)   from any person who, knowing such property or right to be I part of the insolvent estate, acquired such property or right from the insolvent or former insolvent; or   (c)   from any person who acquired such property or right from the insolvent or former insolvent without giving sufficient value in return, in which case the amount so recovered shall be the difference between the value of the property or right and any value given in return.' Held, as to (1), that s 21(1) rendered such a transfer voidable at the instance of the trustee. That is, the transfer was valid until set aside by the trustee. Held, regarding (2), that s 21(1) vests the insolvent spouse's property in the trustee 'as if it were property of the sequestrated estate'. It followed that the trustee had the same powers in respect of the solvent spouse's property as he had in regard to the insolvent's. Held, in respect of (3), that a trustee's remedies regarding disposal of immovable property by an insolvent or his spouse, are confined to those in s 25(4). In such a case a trustee cannot elect to proceed by way of a general provision such as s 21(1).None of s 25(4)'s requirements for relief having been met, the court dismissed  the application.

JA v DA 2014 (6) SA 233 (GJ)  Marriage — Divorce — Proprietary rights — Accrual system — Marriage — Proof of accrual — When content and value of respective estates to be assessed — Operative moment date order of divorce granted — Matrimonial Property Act 88 of 1984, s 3(1). The issue was whether the contents and values of the estates of spouses married C under the accrual system were to be determined on the date that the divorce was granted or when the pleadings in the divorce proceedings closed. It was

held that the date of dissolution of the marriage was the only relevant date upon which to determine the content and to calculate the value of the respective estates. RP v DP AND OTHERS 2014 (6) SA 243 (ECP)  Marriage — Divorce — Proprietary rights — Accrual system — Assets held in trust — Trust a sham — Husband in de facto control of assets and using them to acquire personal wealth — Whether assets to be included in accrual — Discretion of court — Where trust effectively alter ego of one of parties, assets to be included in accrual — Court not exercising discretion under Act but power under common law — Matrimonial Property Act 88 of 1984, C ss 3 and 4. In a counterclaim in a divorce action, the wife claimed half the net accrual of the husband's estate in terms of s 3(1) of the Matrimonial Property Act (MPA).  The husband filed a plea to the counterclaim disputing that his estate had shown a greater accrual. She then launched the present application seeking to amend her counterclaim, inter alia, to the effect that the value of the assets of a trust established during their marriage, should be taken into account in determining his accrual. She contended that he had been in de facto control of its assets since its inception and that the trust was a sham and operating as his alter ego: he had abused the trust form to acquire personal wealth and failed to keep the trust assets separate from his personal estate and enjoyment. This strategy had resulted in the substantial net growth of the trust assets compared to his personal estate, which had then not reflected a greater accrual than hers. The husband argued that the court was not permitted to exercise a discretion to include the trust assets in the F accrual as this offended against the wording of ss 3 and 4 of the MPA, which excluded trust assets in the calculation of accrual, and would therefore render the counterclaim excipiable.Held: If the evidence showed that the trust in question was effectively the alter ego of one of the parties, certain or all of the trust assets ought to be included in the estate for determination of the accrual. In piercing the trust veil the court was not exercising a discretion under the Act, but a power under the common law. Amendment granted.

MINISTER OF POLICE v MBOWENI AND ANOTHER 2014 (6) SA 256 (SCA) 

Constitutional law — Constitutional damages — Award — Infringement of child's right to parental care — Claim on behalf of daughters of man dying as result of conduct of police — Whether constitutional damages appropriate — Approach to constitutional damages discussed.Children — Rights — Parental care — Nature of discussed.Practice — Stated case — Requirements — Adequate statement of facts — Uniform Rules of Court, rule 33. In a police cell detainees assaulted M and as a result he died. V and R — each the mother of a daughter with M — sued the Minister of Police. They claimed H damages on behalf of their daughters for infringement of their right to parental care in s 28(1)(b) of the Constitution. The high court found the minister liable to pay damages for loss of support and referred the quantum of damages to trial. It also found, on a stated case, that a child whose parent had died because of unlawful conduct of a third party, could claim constitutional damages for infringement of the right to parental care. It I found the minister liable for such damages.

The minister appealed and the Supreme Court of Appeal (SCA) overturned the judgment for the following reasons.   (1)   The high court failed to properly analyse the right.    (2)   Facts proving loss of parental care were not placed before the court. This was owing to a misapplication of rule 33. Faced with a special case inadequately stating the facts, the judge ought to have refused to hear it.   (3)   The court failed to consider whether the right applied to the policemen (s 8(2) of the Constitution). It also failed to consider whether they owed a legal duty to his children to prevent an infringement of the right. (4)   The court did not consider whether damages for loss of support was, on its own, an adequate remedy.   (5)   Parties with an interest in the decision were not given an opportunity to intervene. Ultimately the SCA referred the matter to the high court for trial.

MINISTER OF DEFENCE AND OTHERS v SOUTH AFRICAN NATIONAL DEFENCE UNION AND ANOTHER 2014 (6) SA 269 (SCA)  Labour law — Disciplinary proceedings — Requirements — Inform of charge with sufficient clarity — Grant adequate time to respond. HDefence force — Members — Dismissal — Whether regulations must exist in order to exercise power to terminate service — Defence Act 42 of 2002, s 59(2). Soldiers took part in a demonstration contrary to orders and were suspended by I the South African National Defence Force (SANDF). The SANDF later instructed them to report in order to be charged and arraigned, but some failed to report. It sent those who did not report a letter asking them to show cause why they should not be dismissed in terms of s 59(2)(e) of the Defence Act 42 of 2002 for conduct unbecoming of a soldier and for disobeying the order to report. Separately the SANDF published an advert in two newspapers calling upon the soldiers to show cause why they should not be dismissed in terms of s 59(2)(e) for failing to report. The South African National Defence Union then applied to a high court for a declaration that the letter and advert procedure was unlawful. The court made the declaration and the SANDF appealed to the Supreme Court of Appeal (SCA).The first issue was whether regulations had to exist in order to exercise the power to terminate soldiers' service given by s 59(2)(e), no regulations dealing with the section having been made. Held, that regulations were not necessary. The second issue was whether the disciplinary procedure was fair. Held, that for a disciplinary proceeding to be fair, the employee had to be informed of the charge with sufficient clarity to understand what it was; and had to be given adequate time to respond and — if necessary — to obtain assistance in respondingHere the procedure was unfair: the soldiers were left uncertain of what charges they faced; it was not explained why their conduct was disciplinable conduct ('a security risk' in terms of s 59(2)(e)); and they were given insufficient time to obtain assistance and to respond — the advert gave four days.Accordingly the high court had correctly made the declaration and the SCA dismissed the appeal.

MOODLEY v ON DIGITAL MEDIA (PTY) LTD AND OTHERS 2014 (6) SA 279 (GJ)  Company — Business rescue — Moratorium on legal proceedings against company — Not applying to proceedings relating to development, adoption or implementation of business rescue plan — Companies Act 71 of 2008, s 133(1). Moodley, a shareholder, applied for leave to proceed against a company in I business rescue and its business rescue practitioner. This in terms of s 133(1)(b) of the Companies Act 71 of 2008. Moodley sought a declaration that certain transactions were not in accord with the business rescue plan or the Act and were unlawful; and asked for the company and practitioner to be interdicted from implementing them, or, to the extent that they had been implemented, that they be set aside.In issue was the ambit of the moratorium on legal proceedings against a company in business rescue in s 133 — specifically, whether the moratorium included proceedings relating to the development, adoption or implementation of a business rescue plan. Held, that it did not relate to such proceedings. Accordingly, given that Moodley's application concerned the implementation of a business rescue plan, there was no need for him to seek the leave of the court in order to proceed. Held, further, as regards the declaratory and interdictory relief, that Moodley had failed to show that the transactions were unlawful or that a right of his had been infringed. Application accordingly dismissed.

BARONT INVESTMENTS (PTY) LTD v WEST DUNE PROPERTIES 296 (PTY) LTD AND OTHERS 2014 (6) SA 286 (KZP)  Servitude — Personal servitude — Enforcement — Against successor in title of grantor — Where oral agreement allegedly conferring road servitude over grantor's land — Oral agreement not validly creating servitude capable of being enforced — Such servitude constituting 'interest in land' which must be alienated in writing — Alienation of Land Act 68 of 1981, s 2(1).Servitude — Public servitude — What constitutes — Temporary road servitude over privately held land in favour of local authority – Such not public but personal servitude between landowner and local authority.Practice — Judgments and orders — Order — Ambit of relief — Granting more extensive relief than claimed constituting misdirection. The subject-matter of this appeal was the court a quo's order that a temporary road servitude over the appellant's land — created as a condition of township establishment in favour of a local authority and cancelled when it lapsed — be reregistered in its original terms. That court so ordered pursuant to a finding that the cancellation constituted non-compliance with the requirements of s 211 of the Local Authorities Ordinance 25 of 1974 for the permanent closing of streets. The order granted was however not the relief that the applicants (WDP and others) had requested the court a quo to consider; they had applied for the registration of a reduced road servitude over BI's land based on an oral agreement to that effect allegedly concluded with BI's predecessor in title. BI denied any knowledge of such agreement.

The issues that arose for determination on appeal were whether the WDP were entitled to have any servitude registered over the appellant's property; and whether it was competent for the court a quo to have granted the relief that it did. During argument the question arose whether the servitude concerned was a public servitude (which would not have lapsed). The full bench held:As to the nature of the servitude: Public servitudes could be created by vetustas as immemorial user or by statute. The latter would be the case if a servitude were established by a local authority for the benefit of the public. Here, however, the servitude was not granted by a public authority but by a private person in favour of a municipality. Thus, the very basis for the creation of a public servitude was lacking. The servitude did not fall within the definition of a public servitude; it fell within the definition of a personal servitude — it was a servitude in favour of the municipality, between BI and the municipality.  As to the entitlement to registration of a servitude: Ultimately, it was irrelevant to the issues whether or not the appellant did or did not know of the alleged agreement when it took transfer of the property, as there was no written agreement (as required by the Alienation of Land Act) to confer a servitude. Accordingly, the submission that an oral agreement could validly create a servitude capable of being enforced was incorrect and fell to be rejected. As to the court a quo's order: The temporary road servitude did not constitute A a 'street' as envisaged in the Ordinance, and it therefore did not apply. In granting an order reinstating the cancelled servitude without any of the parties having requested that it be stated in those terms, the court a quo granted more extensive relief than had been claimed and went beyond that which the law permitted. This constituted a misdirection. In the circumstances of this case it was not open to the court to make that order.

SOUTH AFRICAN CRIMINAL LAW REPORTS NOVEMBER 2014

S v LITAKO AND OTHERS 2014 (2) SACR 431 (SCA) Evidence — Admissibility — Hearsay evidence — Admissibility of in terms of s 3 of Law of Evidence Amendment Act 45 of 1988 — Extra-curial confession or admission of one accused inadmissible against other accused.  The extra-curial confession or admission of one accused is not admissible against other accused. S v Ndhlovu and Others 2002 (2) SACR 325 (SCA) reconsidered.An appeal from convictions and sentences imposed for murder and robbery with aggravating circumstances in the Rustenburg Circuit Court (Hendricks J).OrderThe appeal is upheld and the convictions and related sentences are set  G aside.We reaffirm that approach in relation to the reception of hearsay evidence in general, just as we are emphatic about the bar on the use of confessions and admissions by one accused against his co-accused.It follows that for the reasons already stated, the following order is made:  GThe appeal is upheld and the convictions and related sentences are set aside.

S v MODISENYANE 2014 (2) SACR 453 (GP) Trial — Record — Mechanical recording of record defective — Impossible to reconstruct — Matter sent on review and accused having probably already been

released or due for parole — Impossible to tell whether unrepresented accused's rights had been properly explained to him — No point in ordering retrial in circumstances — Proceedings set aside.  The accused was sentenced in a magistrates' court to 24 months' imprisonment after having been convicted of assault with intent to do grievous bodily harm. The matter was to be sent on automatic review but it was discovered that it was only the magistrate's microphone that had been working during the course of the trial and that only the judgment on the merits and sentence could be transcribed and none of the evidence. Faced with this situation, a reviewing judge had directed that the matter be sent back to the magistrates' court and that the judgment on sentence be made available to the accused and the prosecutor to indicate whether they were satisfied with the manner in which the proceedings had been recorded in the judgment. This however proved impossible as the prosecutor had in the interim passed away. The matter was then again sent on review.Held, that the court was not in a position to judge how the accused's rights were explained to him after the state's case, and the court could not be satisfied that there had been proper assistance to the unrepresented accused. Held, further, that it was not possible to make an order that the clerk of the court reconstruct the record with the best available secondary evidence, as the magistrate had already indicated that she was unable to assist in the reconstruction of the record; the prosecutor had died; and the accused had in all probability already been released on parole or was due to be released soon. To make an order that the clerk of the court reconstruct the record could cause a delay in the release of the accused on parole or, if he had already been released, the order would be an exercise in futility. Held, further, that the proceedings had to be set aside but that it would be unfair to order a retrial after the accused had already served about one year of his sentence.

S v MAKHAKHA 2014 (2) SACR 457 (WCC) Sentence — Prescribed sentences — Minimum sentence — Imposition of in B terms of Criminal Law Amendment Act 105 of 1997 — Severity of crimes committed — Accused convicted of multiple counts of rape and murder committed on vulnerable young women whom he attacked and dragged into bushes — Showing no remorse — Despite relative youthfulness, clean record and length of time in custody awaiting trial, no substantial and compelling circumstances why prescribed minimum sentences should not be imposed. The accused was convicted of two counts of murder, one count of rape, one count of attempted rape, one count of robbery with aggravating circumstances and one count of attempted murder. The crimes had been committed over a period of four years and involved a similar modus operandi in each case. At the time of the first crime the accused was 21 years of age. The court held that he showed no remorse and denied the commission of the crimes. After considering all the circumstances, including the accused's relative youthfulness, his clean record and length of time awaiting trial, the court came to the conclusion that there were no substantial and compelling circumstances that warranted a deviation from the minimum sentences in respect of the counts of murder, rape and robbery with aggravating circumstances. He was accordingly sentenced to three terms of life imprisonment on

the murder and rape counts and to terms of imprisonment on the other counts which were ordered to run concurrently with the sentences of life imprisonment.

MINISTER OF SAFETY AND SECURITY AND ANOTHER v LINDA 2014 (2) SACR 464 (GP) Arrest — Legality of — Arrest without warrant — Criminal Procedure Act 51 of 1977, s 40(1)(b) — No fifth jurisdictional fact requiring arrest to be last resort — Question to be considered not whether police officer considered and applied his discretion in establishing reasonable suspicion but rather whether, objectively, suspicion that sch 1 offence committed and whether suspicion rested on reasonable grounds. The appellants appealed against a judgment in the high court in which the court found that the appellants were liable for damages for the unlawful arrest and assault of the respondent and ordered them to pay substantial damages. The evidence on which the finding that the arrest was unlawful was based was that the second appellant, a police inspector, had been called to the scene of a crime late at night where he found the deceased who had been shot. He heard that a woman had also been shot and taken to hospital. When the witness, Ms Mabasa, recovered he had approached her for a statement which she agreed to provide. On the basis of this information the second appellant arrested the respondent on charges of murder, attempted murder and rape, without a warrant of arrest. On the pleadings, the case that the appellants were called to meet was that the suspicion entertained by the second appellant did not rest on reasonable grounds. The high court concluded that there were no reasonable grounds for suspecting that the respondent had committed a serious offence.Held, that the finding of the court a quo was based on an erroneous interpretation of the decision of the Supreme Court of Appeal in Minister of Safety and Security v Sekhoto and Another 2011 (1) SACR 315 (SCA) (2011 (5) SA 367; [2011] 2 All SA 157; [2010] ZASCA 141). Held, further, that the Supreme Court of Appeal in that case had held that there was no cause, interpretative or otherwise, for reading into s 40(1)(b) of the Criminal Procedure Act 51 of 1977 a jurisdictional fact requiring arrest to be the last resort. Held, further, that the question to be considered by the court a quo was not whether the second appellant considered and applied his discretion in establishing a reasonable suspicion but rather whether, objectively, there existed a suspicion that a sch 1 offence was committed and whether that suspicion rested on reasonable grounds. Furthermore, the court, in asking whether the police inspector had considered less drastic means and concluding that there was no reasonable suspicion because of his failure to have done so, confused an issue of discretion with the jurisdictional facts. An improper exercise of discretion had in any event not been pleaded or I ventilated in the evidence. Held, further, that it was difficult to understand how the court a quo would conclude that the suspicion arising from the facts was not sufficiently reasonable and that the arrest of the respondent was unlawful on that account. Any reasonable police officer, faced with the statements obtained by the second appellant during his investigations, would have been derelict J in his duties had he not effected an arrest. The court a quo accordingly erred in finding that there were no reasonable grounds for the suspicion and that A the arrest was unlawful. The appeal was upheld on the claim for unlawful arrest. The appeal on the claim for assault was upheld on the merits.

S v PM 2014 (2) SACR 481 (GP) Murder — Premeditated or planned murder — What constitutes — Two different concepts representing two different ideas — Word 'or' between 'planned' and 'premeditated' in part I of sch 2 introduces second of two alternative concepts — Use of word 'or' indicates legislature did not favour composite description of circumstances to meet test.  The two words 'planned' and 'premeditated', as used in part I of sch 2 to the Criminal Law Amendment Act 105 of 1997, as read with s 51(1), are two different concepts representing two different ideas. 'Premeditated' refers to something done deliberately after rationally considering the timing or method of so doing, calculated to increase the likelihood of success, or to evade detection or apprehension. On the other hand, 'planned' refers to a scheme, design or method of acting, doing, proceeding or making, which is developed in advance as a process, calculated to optimally achieve a goal. The word 'or' between 'planned' and 'premeditated' in part I of sch 2 introduces the second of the two alternative concepts. The use of the word 'or' indicates that the legislature did not favour a composite description of the circumstances to meet the test.

S v ESSOP 2014 (2) SACR 495 (KZP) Indictment and charge — Defective charge — Amendment of on appeal in terms of s 86(1) of Criminal Procedure Act 51 of 1977 — State aware of defect in charge-sheet when accused applied for discharge at end of state's case but electing not to apply for amendment at that stage, but applying on appeal — Amendment would prejudice accused as he no longer had opportunity to lead evidence to rebut assertion that state wished to introduce — Application for amendment refused.Fraud — Elements of — Prejudice — Where charge-sheet defective for want of allegation that accused's conduct caused prejudice and whether prejudice could be inferred — Charge defective — Mere inference that accused's conduct caused prejudice not sufficient since that inference would violate accused person's constitutional rights in terms of s 35(3)(a) of Constitution.  The appellant was charged in a regional magistrates' court with 69 counts of fraud involving an amount of R837 000 and was convicted on all counts and sentenced to five years' imprisonment. On appeal he challenged his conviction and contended, inter alia, that the charge-sheet was defective in that it did not make the necessary allegation of prejudice. The allegation against the appellant was that he, as a shipping manager, authorised cheque requisitions to be made by his employer in respect of freight charges, documentation charges and vallue-added tax payable on imported goods. He had allegedly misrepresented to his employer that it was indebted to Overseas Freight Carriers (OFC) and induced his employer to draw cheques in favour of OFC whereas in fact he was the sole proprietor of OFC and his employer did not owe OFC any money. The state applied on appeal to amend the charge-sheet to correct this deficiency, even though at the conclusion of the state's case at the trial it had pertinently been brought to its attention in the appellant's application for discharge that the charge-sheet was defective, but it had proceeded with the trial without applying for an amendment.Held, that in terms of s 35(3)(a) of the Constitution every accused person had the right to a fair trial which included the right to be informed of the charge with sufficient

detail to answer it. Any infringement was not to be considered in the abstract but by having regard to the circumstances of each case. Held, further, that in a trial on a charge of fraud a mere inference that the accused's conduct caused prejudice was not sufficient since that inference would violate the accused person's constitutional rights in terms of s 35(3)(a). Held, further, that the charge-sheet in the present matter did not even once suggest that the appellant's conduct caused prejudice to his employer, either actual or potential. Had it done so it is conceivable that he might have advanced evidence to disprove such fact. Despite having made certain admissions, the appellant pertinently placed in issue that the presentation of a cheque requisition was an authorisation and that such presentations were without the knowledge of his employer. He specifically denied that he had made a misrepresentation to his employer and denied that he had acted wrongfully or unlawfully. The risk of being prejudiced was real for the appellant if the element of prejudice was allowed to be inferred, as the appellant no longer had the opportunity to adduce evidence to rebut the fact that his employer did not suffer any prejudice. Held, further, that the purpose of a properly formulated charge-sheet was to bring awareness and clarity as to what the state intended proving. When the accused had to infer from facts, he had to make a deduction which created ncertainty. The law reports were testament to the fact that courts, at times, draw the wrong inferences from facts proved before them. An accused should not have to figure out what challenges he faced, he should be informed. Held, further, that to allow an amendment in the circumstances of the case would lead to an injustice as the state had had ample opportunity to cure the defect and had elected not to do so. The proceedings should not be validated by allowing an amendment that would cause real or potential prejudice, as envisaged by s 86(4) of the Criminal Procedure Act 51 of 1977, to the appellant.

S v NKOSI 2014 (2) SACR 525 (GP) Rape — Attempted rape — Contravention of s 3 of Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 — What constitutes — Evidence proving sexual assault in contravention of s 5 of Act, competent verdict on charge of contravention of s 3.Sexual offences — Sexual assault — Contravention of s 5 of Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 — Sentence — Aggravating circumstances present in sexual assault of vulnerable woman in presence of her 6-year-old child — Sentence of five years' imprisonment imposed. The appellant, a 29-year-old first offender, was convicted in a regional court of attempted rape in contravention of s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Act) and was sentenced to 10 years' imprisonment. The charge-sheet indicated that the charge was in terms of s 3 and used the wording applicable to that section but the charge that was read to the appellant used the wording of s 5, namely 'sexual violation' as opposed to 'sexual penetration' in s 3. The evidence was to the effect that the appellant had come to the home of the complainant at night and had asked for water. Whilst she was outside getting the water, he turned on the television and turned the volume of the radio up loud and when she returned he grabbed her, throttled her and hit  her on the mouth. Some of her teeth were broken as a result of the blow. He pushed her outside but

she resisted the attack. They fell on the stones outside and he was on top of her with his knee on her stomach. He grabbed her breasts and her left breast was hurt. He tried to pull down her skirt and it tore in the process. She managed to get hold of stones and hit the appellant on his hands and he then ran away.Held, that every element of the offence of sexual assault as contemplated in s 5 of the Act, read with s 1, was proven by the complainant's evidence. The court a quo had misdirected itself by finding the appellant guilty on the offence of attempted rape but a contravention of s 5 was a competent verdict on a charge under s 3. Held, further, that the aggravating circumstances were that the appellant had shown no remorse for the sexual assault on the complainant and had misled a vulnerable woman to trust him and then assaulted her in front of her 6-year-old child. This kind of violence against vulnerable victims was a common occurrence and had to be stopped by the court imposing a sentence that sent a clear message to society that such offences would not be tolerated. The sentence was accordingly adjusted to one of five years' imprisonment.

S v VAN STADEN AND OTHERS 2014 (2) SACR 533 (WCC) Appeal — In what cases — From decision of judge in pre-trial conference refusing request to have indictment translated — Such decision merely interlocutory ruling and not appealable. The appellants and a number of co-accused were served with an indictment charging them with racketeering, money-laundering, fraud and forgery. The indictment was in Afrikaans and at the pre-trial conference they requested it to be translated into English. This was refused. They then applied for leave to appeal against this decision and leave to appeal was granted and the matter came before the present court.Held, that the mere fact that leave to appeal had been granted did not mean that the decision of the judge in the pre-trial conference was therefore appealable. The jurisdiction issue as to appealability had to be decided by the court as the court of appeal. Held, further, that in criminal proceedings a presiding officer was not functus officio until after conviction and only became so at the point when the accused was sentenced. Held, further, that, in terms of s 316(1)(a) of the Criminal Procedure Act 51 of 1977 read with the provisions of ss 316B, 318 and 319 of the CPA, it was clear that, without a conviction, the CPA did not afford an accused a right of appeal.Held, further, that the refusal of the request to have the indictment translated could be reconsidered by the judge presiding at any subsequent pre-trial conference or the judge who presided at the trial. The ruling did not dispose of any part of the issues to be decided at the trial and merely embodied directions or rulings against which no appeal lay. The decisions were accordingly merely interlocutory rulings and were therefore not subject to an appeal. The appeal was accordingly dismissed.

ALL SA LAW REPORTS NOVEMBER 2014

Lamprecht v Klipeiland (Pty) Ltd [2014] 4 All SA 279 (SCA)

Company law – Winding up of company – Companies Act 61 of 1973 – Section 345(1)(a) – Threshold requirements – Applicant must prove that he is a creditor of the respondent for an amount not less than R100; which amount must be due and payable (a liquid debt) – There must be proof that, notwithstanding service of the sec- tion 345(1)(a) notice, the debtor has neither paid the amount claimed nor secured or compounded it to the reasonable satisfaction of the creditor.

In March 2003, the appellant and the respondent concluded an agreement in terms whereof the respondent appointed the appellant as its project manager to have its property rezoned and proclaimed a township. By September 2007, the appellant had succeeded in obtaining approval for the proposed township from the municipality. The appellant averred that he was to be paid R6 million as remuneration for the project under the agreement. However, during November 2007, the respondent terminated the agreement with the appellant and appointed another entity in his position, on the ground that the appellant had failed to perform in terms of the agreement. Regarding that as a repudiation or cancellation of the agreement, the appellant accepted it and demanded R6 million from the respondent as his compensation. A formal demand for payment was made in terms of section 345(1)(a) of the Companies Act 61 of 1973. When no payment materialised, the appellant instituted motion proceedings to have the respondent wound up.

The respondent denied that section 345(1)(a) was applicable as the appellant had not proved that his claim was liquid, and, further that the respondent was unable to pay its debt as envisaged by section 345(1)(a) of the Companies Act. It also denied that it had agreed to pay the appellant R6 million for the project as alleged by the appellant.

The High Court granted a provisional order. On the return day the court discharged the provisional winding-up order with costs, on the ground that it had not been shown that the applicant was entitled to the R6 million. The present appeal was against the discharge of the provisional winding-up order.

Held – Contrary to the finding by the court below, the appellant did not claim the R6 million in this winding-up application. All he wanted was to assert or establish his locus standi under section 345(1)(a) of the Act as a creditor.

To meet the threshold laid down in section 345(1)(a), it is essential that an applicant prove three essential requirements. Those are that he is a creditor of the respondent for an amount not less than R100; which amount must be due and payable (a liquid debt); and there must be proof that, notwithstanding service of the section 345(1)(a) notice, the debtor has neither paid the amount claimed nor secured or compounded it to the reasonable satisfaction of the creditor. As the respondent had conceded that the appellant had locus standi, that he was a creditor for a sum no less than R100 and further that it was due and payable, there was no dispute that although the section 345(1)(a) demand was served on the respondent, it had not paid any amount nor secured or compounded any amount to the reasonable satisfaction of the appellant. Thus, the jurisdictional requirements set out in section 345(1)(a) had been met. As the deeming provision of section 345(1)(a) creates a rebuttable presumption to the effect that the respondent is unable to pay its debts, the court a quo erred in discharging the provisional winding up-order.

The appeal was, accordingly, upheld.

Motswai v Road Accident Fund [2014] 4 All SA 286 (SCA)

Courts – Judges – Duty to investigate matters of concern in proceedings – Suspicion of fraud on part of attorney – Such conduct must be proved by clearest evidence – Judge not entitled to draw conclusions only from available documents without calling for further evidence.

 Courts – Judges – Exercise of power – Informal discussion in chambers – Irregularity – Once apparent to judge from perusal of papers that concerns existed regarding the propriety and management of a claim, judge required to terminate discussion immediately, postpone matter for a proper hearing in open court and direct the parties to file affidavits to address concerns – Power wielded by judges must be exercised judicially and within the parameters prescribed by law.

The appellant had instructed his attorney (“Mr Krynauw”) to institute a claim against the Road Accident Fund (“RAF”) for damages arising from injury sustained in a motor vehicle accident. The particulars of claim stated that the appellant had suffered a fractured ankle, when in fact he had a less serious soft tissue injury. The discrepancy in the description of the nature of his injury led the trial court to find that Mr Krynauw who signed the pleading, had fabricated the claim, misrepresented facts to the court and fraudulently set out to enrich himself and his firm from the funds intended to compensate road accident victims. That finding led to a second judgment, in which the court made a punitive costs order, prohibiting the attorneys of the appellant from recovering any fees from either the appellant or the RAF.

Although the present appeal was against the costs order made by the High Court, neither the appellant nor the respondent had any interest in the proceedings. The aggrieved party and de facto appellant was the attorney against whom the punitive costs order was made. While the appeal was against the costs order, Mr Krynauw’s real interest was to reverse the High Court’s finding of fraud against him.

The parties’ legal representatives had come to court with the matter largely settled. A draft settlement agreement was taken to the judge in chambers, who made the findings referred to above.

Held – The judge made sweeping findings against the professionals who rendered services in this case, including the appellant’s attorneys, without conducting a proper hearing in an open court, and without a factual basis. She drew the inference that Mr Krynauw had committed fraud from a reading of the court file containing the pleadings and documents – without any other evidence. The Court referred to the informal discussion in the judge’s chambers before the first judgment was delivered. It held that such discussion was irregular. Once it became apparent from her perusal of the papers that there were concerns regarding the propriety and management of this claim, the judge ought to have terminated the discussion immediately, postponed the matter for a proper hearing in open court and directed the parties to file affidavits to address her problems. Moreover, insofar as the representatives in attendance were not in a position to answer the judge’s questions on the history of the matter, yet were expected to do so, the proceedings in the judge’s chambers were unfair.

Apart from the above, the judge’s reasoning was found by the present Court to have been wrong. She drew inferences from the documents that were before her without calling for any further evidence. Our courts have stated emphatically that charges of fraud or other conduct that carries serious consequences must be proved by the clearest evidence, or clear, satisfactory and convincing evidence. While the judge was entitled to investigate matters of concern to her, and if necessary to call for evidence, she was not entitled to draw conclusions that appeared obvious to her only from the available documents. The evidence that the parties subsequently adduced on affidavit demonstrated conclusively that the inferences drawn by the judge and the conclusions she reached were wrong. The court also showed the fallacy in the judge’s finding that there was no justification for engaging the services of medico-legal experts and that that was done solely to enrich the parties involved, and with the finding that the agreement that the RAF would provide an undertaking to pay 80% of the appellant’s proven damages was solely intended to enrich the lawyers involved in the litigation.

The present Court held that a grave injustice was done to Mr Krynauw by the finding of fraud against him. The judge’s criticism of Mr Krynauw’s colleagues who dealt with this claim, was also unwarranted. There was thus no proper basis to deprive the appellant’s attorneys of their costs.

Due to the power wielded by judges, such power must be exercised judicially and within the parameters prescribed by law. In this case, it required the judge to hold a public hearing so that the interested parties were given an opportunity to deal with the issues fully, including allowing them to make all the relevant facts available to the court before the impugned findings were made against them. The judge failed to do so.

The appeal was upheld, and the judge’s findings reversed.

Pharma Dynamics (Pty) Ltd v Bayer Pharma AG (formerly Bayer Schering Pharma AG) and another [2014] 4 All SA 302 (SCA)

Intellectual property law – Patents – Infringement of patent – Validity of patent – Patents Act 57 of 1978 – Whether invention for which protection claimed in the patent involves an inventive step required by section 25(1) of the Act – Whether patent qualifies as a true “divisional patent” in terms of section 37 of the Patents Act – Challenge to patent not succeeding, with court confirming that patent had been infringed.

The first respondent was the patentee of an invention used as a contraceptive (“the 2004 patent”). The second respondent was licenced to use the invention in South Africa. They were jointly referred to by the court as “Bayer”.

The appellant (“Pharma”) was a local distributor of generic pharmaceuticals. In March 2011, Pharma obtained approval from the Medical Control Council to import and sell an oral contraceptive called Ruby. That product was the generic equivalent of the Yasmin product sold by Bayer under the 2004 patent. Alleging that the sale of Ruby constituted an infringement of the 2004 patent, Bayer approached the court  a quo for an interdict and ancillary relief. Pharma denied that Ruby infringed the patent, or that the 2004 patent was valid, and counterclaimed for its revocation. The

court a quo held, however, that the 2004 patent was valid and that Ruby infringed it. That led to the present appeal.

Pharma argued that the 2004 patent did not include within its scope the allegedly infringing Ruby product. In attacking the validity of the patent, Pharma relied firstly on the ground that the invention claimed in the specification of the patent lacked an inventive step. Secondly, Pharma contended that, in any event, the 2004 patent was invalid on the ground that it was not a true divisional of its 2002 parent patent. In consequence, so Pharma’s contention went, the 2002 patent lacked novelty in the light of the disclosures in the 2002 patent.

Held – It was necessary for the Court to begin with the broad principles of patent interpretation as established by authority. The rule of interpretation is to ascertain, not what the inventor or patentee may have had in mind, but what the language used in the specification means, ie, what the intention was as conveyed by the specification, properly construed. The words used must be viewed in the context of the patent as a whole.

A patent specification is a statement by the patentee, addressed to those skilled in the art, in which he informs them of what he claims to be the essential features of the invention for which a monopoly is claimed. Consequently, a patent specification must be construed with reference to the state of knowledge of those skilled in the art at the time of the priority date of the patent in issue. Accordingly, in order to enable the court to construe the specification properly, it must be instructed by expert witnesses as to the state of the art in the field of the invention in order to place the court as near as may be possible to the position of those skilled members of the public to whom it is addressed.

The determination of the question as to whether or not plaintiff has proved an infringement of his patent turns upon a comparison between the articles involved in the alleged infringement and the words of the claims in the patent. Applying the relevant principles, the Court concluded that Pharma’s Ruby product did infringe the 2004 patent.

Turning to Pharma’s attack against the patent on the basis that it lacked an inventive step, the Court referred to section 25(10) of the Patents Act 57 of 1978 which requires that, in order to be patentable, an invention must involve an inventive step in the sense that it is not obvious to a person skilled in the art, having regard to any matter which forms, immediately before the priority date of the invention, part of the state of the art. After considering the expert opinions, the Court agreed with the court a quo’s conclusion that Pharma had failed to establish its attack on the patent in suit based on obviousness. Pharma’s attack of the patent on the basis of novelty similarly failed.

The appeal was thus dismissed with costs.

President of the Republic of South Africa and others v M & G Media Ltd [2014] 4 All SA 319 (SCA)

Access to information – Refusal of access – Promotion of Access to Information Act 2 of 2000 – Section 80 allows court to take judicial peek at contested record in

certain circumstances – Refusal of access based on sections 41(1)(b)(i) and 44(1)(a) of Promotion of Access to Information Act 2 of 2000 found to be unjustified.

The respondent, a newspaper company, requested in terms of the Promotion of Access to Information Act 2 of 2000 (“the Act”), information under the control of the appellants. The information was contained in a report prepared by two senior judges after their visit to Zimbabwe shortly before the presidential elections that were held in that country in 2002. They did so at the behest of the then President (President Mbeki). The report was never released to the general public.

The High Court ordered the Presidency to make the report available to the respondent. On appeal to this Court, that order was upheld. A further appeal by the Presidency to the Constitutional Court resulted in an order setting aside the orders of the High Court and the Supreme Court of Appeal, and remitting the case to the High Court for an examination of the report in terms of the provisions of  section 80 of the Act and determination of the application under section 82. The High Court examined the contents of the report as contemplated in section 80 of the Act and then ordered the Presidency to make it available to the respondent. The present appeal was against that order.

Held – Section 11 of the Act stipulates that requesters for information under the control of a public body (in contrast with a private body) are entitled as of right to the information sought, provided that the procedural requirements are met. Refusal is only permitted on grounds contemplated by Chapter 4 of Part 2 of the Act. As the procedural requirements were met in this case, the respondent did not have to justify its request for access to the report. The onus rested on the Presidency to justify its refusal.

Section 80 of the Act, which was central to the majority judgment in the Constitutional Court, allows any court hearing an application, or an appeal against a decision on that application, to examine any record of a public or private body to which the Act applies, and no such record may be withheld from the court on any grounds. On the issue of when courts should exercise their discretion in favour of resorting to a judicial peek into the contested record, the majority of the Constitutional Court held that it should be reserved for the situation where an injustice may result from the unique constraints placed upon the parties in disputes covered by the Act – where, for instance, the holder of the information had failed to discharge its burden under section 81(3), but indicated that it was prevented from doing so by the provisions of the Act, the courts should generally invoke section 80. The Constitutional Court was of the view that the provisions of section 80 should have been invoked by the High Court in the circumstances of this case.

Before the hearing in the High Court, the Presidency applied, in terms of rule 6(5) of the Uniform Rules of Court, for an affidavit of President Mbeki to be received in further evidence. The declared purpose for introducing the affidavit was to support an attempt by the Presidency to persuade the High Court – contrary to the clear directions of the Constitutional Court – not to resort to a judicial peek into the contents of the report under section 80. The High Court ordered the Presidency to make the report available to him to facilitate the judicial peek, and the Presidency then proceeded to file the affidavit by President Mbeki as well as an affidavit by the current President, Jacob Zuma. On appeal, the Presidency’s case was that the court a quo should have admitted the two affidavits by President Mbeki and

President Zuma as representations under section 80(3). The Court pointed out that the representations contemplated in section 80(3)(a) must be directed at the contents of the record that the court had ascertained through taking a judicial peek. The purpose of section 80(3) is therefore not to afford an opportunity to any of the parties to adduce new evidence, extraneous to the record, which should have been introduced as part of its original case. In that context, there were various reasons why the affidavit by President Mbeki fell outside the ambit of what section 80(3)(a) is aimed at. Regarding the affidavit of President Zuma, the Court agreed with the court a quo’s reasoning that that affidavit could not support the Presidency’s refusal of access to the report based on sections 41(1)(b)(i) and 44(1)(a). Thus, as found by the court a quo, there was nothing in the report that supported the grounds upon which the Presidency refused the access sought by the respondent.

The position was summarised by the Court as follows. The majority of the Constitutional Court agreed with the minority that the Presidency had not made out a case for its refusal to grant access. The majority decided, however, not to grant the respondent’s application for access, but to remit the matter to the High Court for final decision after the court had taken a judicial peek at the contents of the record. The High Court complied and arrived at the conclusion that there was nothing in the contents of the record which would justify the refusal of access. The present Court, after having also had a judicial peek, was not persuaded that the High Court was mistaken in arriving at that conclusion The appeal was dismissed.

Wishart and others v Justice P Blieden NO and others [2014] 4 All SA 334 (SCA)

Civil procedure – Insolvency inquiry – Application to restrain lawyers from interrogating appellants at an inquiry into the business and affairs of a company in terms of sections 417 and 418 of the Companies Act 61 of 1973 – Common law does not recognise a right of an individual to restrain a lawyer from acting against him or her where the individual has never been a client of the lawyer and where the lawyer does not have confidential information in respect of that individual – Application by the appellants to restrain three of the respondents (lawyers) from examining them in an insolvency inquiry was not supported by the facts and this was not a case in which to develop the common law.

The appellants were directors and officers of a number of companies owned through a number of trusts. They applied to the High Court for an order restraining the respondents from interrogating the appellants at an inquiry into the business and affairs of a company (“Avstar”) in terms of sections 417 and 418 of the Companies Act 61 of 1973. The respondents were lawyers who intended examining the appellants at the inquiry. The present appeal was directed at the High Court’s refusal of the relief sought.

Although the appellants were never clients of the respondents, they argued that they had interests in and were variously directors of companies that had instructed an attorney who had in turn instructed the second and third respondents. They contended that that made them “quasi-clients” who were entitled to object to the lawyers acting against them on the basis that they had a conflict of interest. It was argued on appeal that they should be treated as clients, and thus receive the same protection that they would have been afforded had they been direct clients of the lawyers.

Held – Our law affords protection to the former client of a legal practitioner such that he will be precluded from acting against a former client where the practitioner has confidential information about the former client that may be misused. Recognising that the lawyers had no such confidential information, as the High Court found, the appellants argued that the present Court should develop the common law so as to ensure that as a matter of public policy, and in the interests of the administration of justice, it is improper for a legal practitioner to act against a person who had an interest in an entity for whom the practitioner had previously acted.

The Court found, as submitted by the respondents, that at the heart of a client’s right to be protected against a former legal representative taking the other side is the possible misuse of confidential information. In this case, the appellants were not clients of the lawyers and they had not disclosed any confidential information to the lawyers. There was no possibility then, that the lawyers could use their secrets against them. Even if the court were to recognise the principle that there should not be even a reasonable perception that the administration of justice may be impaired, this was not a case where such a principle would have any application.

The High Court’s finding that the application for the interdict against the lawyers had to fail was confirmed on appeal. The appeal was dismissed with costs.

Boycott, Divestment and Sanctions South Africa and another v Continental Outdoor Media (Pty) Ltd and others [2014] 4 All SA 347 (GJ)

Constitutional law – Removal of outdoor advertising signs – Lawfulness – Constitution of the Republic of South Africa, 1996 – Section 16 – Right to freedom of expression – Section 9(h) of the Outdoor Advertising By-Laws prohibited the displaying of an advertising sign which was insensitive to the public or any portion thereof or to any religious or cultural group – Court found that such restriction went beyond that which was constitutionally permissible – Court held that the by-laws were inconsistent with the Constitution and accordingly invalid.

The first applicant was a non-profit organisation affiliated to a global campaign initiated by 171 non-governmental organisations, in support of the Palestinian cause for boycotting Israel and promoting disinvestment from Israel as well as imposing international sanctions against Israel. The first respondent (“Continental”) was a company involved in renting out advertising space on thousands of different outdoor billboards in 14 countries in sub-Saharan Africa. The second respondent was the relevant municipality.

In October 2012, Continental removed from a billboard an outdoor advertisement depicting Israel’s occupation of Palestine.

The applicants sought a declaratory order that the removal of the above advertisement by Continental was unlawful and unconstitutional. They also sought an order directing Continental to reinstate the advertisement and to maintain the reinstated advertisement for a continuous period of three months against payment of rental for such billboard as envisaged in a rental agreement between the second applicant (“Sweetworks”) and Continental.

Held – The issues for determination were whether there was a settlement agreement between Sweetworks and Continental, which extinguished Sweetworks’ contractual

rights; whether Continental was justified in removing the advertisement on the basis of the advertising by-laws, the Advertising Standards Authority code and Continental’s internal policy; and whether the removal of the advertisement was unlawful and invalid in terms of section 16 of the Constitution on the basis of an averred infringement of the applicants’ constitutional right to freedom of expression. If the above issues were answered in the applicants’ favour, a further issue was whether it was appropriate in the circumstances of this case for the court to grant specific performance against Continental, as requested by the applicants.

The Court found that the removal of the advertisement by Continental was in breach of the rental agreement and also constituted an infringement of the applicants’ constitutional right to freedom of expression. Specific performance was an appropriate remedy in the circumstances of this case. Finally, the relevant advertising by-law was held to be unconstitutional and accordingly infringes their constitutional right to freedom of expression. Section 9(h) of the advertising by-laws prohibited the displaying of an advertising sign which was insensitive to the public or any portion thereof or to any religious or cultural group. The Court found that such restriction went beyond that which was constitutionally permissible.

The application, accordingly, succeeded.

De Vos NO and another v Minister of Justice and Constitutional Development and others (Down Syndrome South Africa and another as amici curiae); In re: Snyders and another v Minister of Justice and Constitutional Development and others [2014] 4 All SA 374 (WCC)

Constitutional law – Mentally impaired accused – Mental capacity – Criminal Procedure Act 51 of 1977 – Section 77(6)(a) – Constitutionality – Where an accused person is found by virtue of his or her mental condition to be incapable of understanding the proceedings so as to make a proper defence; and on a balance of probabilities, to have committed the act (ie actus reus) of murder, culpable homicide, rape or compelled rape – Court is obliged, automatically and in every case, to order that the accused be detained in a psychiatric hospital or prison for an indefinite period until otherwise directed by a judge in chambers – Court held that section 77(6)(a), in limiting or threatening the rights to freedom of the person and the rights of children, was unconstitutional and could not be saved by the limitations clause.

Two applications were consolidated and heard together in the light of the similarity in the relief claimed as well as the applicable legal principles on which the claims were based

Both applications concerned persons with mental disabilities facing charges of murder and rape respectively. They were represented by their mothers as well as the curators ad litem appointed for them by the court.

In both applications, an order was sought declaring section 77(6)(a) of the Criminal Procedure Act 51 of 1977 (“the Act”) to be unconstitutional. At issue was the fate of persons who, by reason of mental illness or mental defect, are unfit to be tried.

Held – The issues of mental illness and criminal responsibility are regulated in Chapter 13, in sections 77–79 of the Act. Section 77 deals with an accused person’s fitness to stand trial. The criterion for an accused’s fitness to stand trial, as

expressed in section 77(1), is whether the accused by reason of mental illness or mental defect is not capable of understanding the proceedings so as to make a proper defence. If it appears to the court at any stage in the proceedings that the accused may be unable to understand the proceedings due to a mental ill-ness or defect, the court must direct that the accused be referred for observation in terms of section 79. Section 78 deals with the situation where the accused is found, by reason of mental illness or mental defect, not to be criminally liable for an act or omission which would otherwise have been punishable as a crime. The most conspicuous difference between sections 77(6) and 78(6) is that the court in terms of the latter provision has a fairly wide discretion as to a range of orders that can be made, whereas the court under the former provision has no discretion.

The effect of section 77(6)(a)(i) is that where an accused person is found by virtue of his or her mental condition to be incapable of understanding the proceedings so as to make a proper defence; and on a balance of probabilities, to have committed the act (ie actus reus) of murder, culpable homicide, rape or compelled rape, or an offence involving serious violence, then the court is obliged, automatically and in every case, to order that the accused be detained in a psychiatric hospital or prison for an indefinite period until otherwise directed by a judge in chambers.

The Court held that section 77(6)(a), in limiting or threatening the rights to freedom of the person and the rights of children, was unconstitutional and could not be saved by the limitations clause. Insofar as an accused person with a mental disability may be detained for an indefinite period in unwarranted circumstances, the impugned provisions fell to be declared inconsistent with the Constitution and invalid.

Helen Suzman Foundation v Judicial Service Commission (Police and Prisons Civil Rights Union and others as amici curiae)[2014] 4 All SA 395 (WCC)

Civil procedure – Review proceedings – Uniform Rules of Court – Rule 53(1)(b) – Decision taken by the respondent to advise the President of the Republic of South Africa to appoint certain candidates, and not to advise him to appoint other candidates as judges of the Western Cape Division – Consideration had to be given to the objectives and purpose of the rule, including the overall process adopted by the JSC in respect of judicial appointments, and the documents and information that had been made available as part of the record – Rule essentially confers the benefit that all the parties have identical copies of the relevant documents on which to draft their affidavits and that they and the Court have identical papers before them when the matter comes to court.

Civil procedure – Uniform Rules of Court – Rule 53(1)(b) – Application for compliance – Judicial Service Commission’s (JSC) power to advise the State President on the appointment of Judges of the High Court is derived from the provisions of section 174(6) of the Constitution of the Republic of South Africa, 1996 – On the question of whether the JSC is legally and constitutionally obliged in the present circumstances to reveal not only its distilled reasons but the full recording of its private deliberations, as part of the rule 53 record, the Court held that the applicant was not entitled to the full recording of the deliberations of the JSC as part of the rule 53 record.

In an interlocutory application, the applicant sought an order directing the respondent (“JSC”) to comply with rule 53(1)(b) of the Uniform Rules of Court and to deliver the full recording of the proceedings sought to be reviewed in the main application.

In the main application, the applicant instituted review proceedings against the JSC for an order, declaring, inter alia, that the decision taken by the respondent, undersection 174(6) of the Constitution, to advise the President of the Republic of South Africa to appoint certain candidates, and not to advise him to appoint other candidates as judges of this Division, was unlawful and or irrational and thus invalid.

Held – The JSC’s power to advise the State President on the appointment of Judges of the High Court is derived from the provisions of section 174(6) of the Constitution. In deciding whether in the circumstances of this matter the deliberations of the JSC form part of the record as envisaged by rule 53(1)(b), consideration had to be given to the objectives and purpose of the rule, including the overall process adopted by the JSC in respect of judicial appointments, and the documents and information that had been made available as part of the record. The rule essentially confers the benefit that all the parties have identical copies of the relevant documents on which to draft their affidavits and that they and the Court have identical papers before them when the matter comes to court.

In casu, even though full record of the deliberations was not provided, the JSC had complied with the objective and purpose of the rule, as the applicant was not forced to launch a review application in the dark. The Court rejected the applicant’s complaint regarding the lack of openness, transparency, equality of arms and access to information.

On the question of whether the JSC is legally and constitutionally obliged in the present circumstances to reveal not only its distilled reasons but the full recording of its private deliberations, as part of the rule 53 record, the Court held that the applicant was not entitled to the full recording of the deliberations of the JSC as part of the rule 53 record.

Barko Financial Services (Pty) Ltd v National Credit Regulator and another [2014] 4 All SA 411 (SCA)

Consumer protection – Credit agreements – National Credit Act 34 of 2005 – Section 91(a) – Section providing that a credit provider must not directly or indirectly require or induce a consumer to enter into a supplementary agreement, or sign any document, that contains a provision that would be unlawful if it were included in a credit agreement.

Consumer protection – National Credit Act 34 of 2005 – Compliance notice in terms of section 55 – Consumer paying service fee in excess of the maximum prescribed by the Act pursuant to a supplementary agreement – Where credit provider induced consumer to sign supplementary agreement, compliance agreement was justified.

Words and phrases – “induce” – National Credit Act 34 of 2005 – Section 91(a) – Section providing that a credit provider must not directly or indirectly require or induce a consumer to enter into a supplementary agreement, or sign any document, that contains a provision that would be unlawful if it were included in a credit agreement – To “induce” is to succeed in persuading or leading someone to do something.

The appellant (“Barko”) was a credit provider, and the first respondent, the National Credit Regulator (the “NCR”). In June 2010, the NCR issued Barko with a compliance notice in terms of section 55 of the National Credit Act 34 of 2005 (“the NCA”). The NCR’s concern was whether it was legitimate in terms of the NCA for persons to whom Barko lent money to agree to pay, in addition to the statutorily prescribed fees and interest, a further fee for the successful processing of the repayments of their indebtedness. The NCR regarded that as a breach of the NCA. Barko contended that this additional fee was paid to a third party (“NuPay”) in terms of a separate agreement and did not contravene the NCA.

Barko lodged an objection to the compliance notice with the second respondent, the National Consumer Tribunal, but the Tribunal declined to set aside the compliance notice, modifying it instead. Barko’s appeal to the High Court was dismissed, but leave to appeal to the present Court was granted.

Held – Section 55(1)(a) of the NCA authorises the NCR to issue a compliance notice in the prescribed form to a person or association of persons whom the NCR on reasonable ground believes has failed to comply with a provision of the NCA or is engaging in an activity in a manner that is inconsistent with the NCA.

Two broad issues arose for determination. The first was whether there was an agreement between NuPay and the consumer as contended by Barko; and the second was whether the Tribunal had the power under the NCA to order Barko to repay to the respective consumers the NuPay service provider fee.

Barko’s case was that in each instance three distinct agreements, each with its own purpose, found application, namely: a credit agreement between it and a consumer (the “credit agreement”); a service level agreement between it and NuPay (the “SLA”); and an alleged agreement concluded between NuPay and the consumer (referred to in the judgment as annexure “D5”). Those agreements had to be construed in order to determine the correctness of the parties’ respective contentions. The SLA determined the relationship between Barko and NuPay. The credit agreement set out the relationship between Barko and the consumer. The key issue was the nature and status of annexure “D5” and whether it was part of the agreement between Barko and the consumer or was a separate transaction between the consumer and NuPay. The Court questioned Barko’s description of annexure “D5” as a contract between NuPay and the consumer because on the face of it, annexure “D5” did not purport to be an agreement between the consumer and NuPay. The Court found that annexure “D5” was an agreement between Barko and the consumer in which the consumer authorised the fee payable in terms of the SLA by Barko to NuPay to be met from the consumer’s bank account. Consequently, the purpose of that agreement was not to enable Barko’s customers to discharge their obligations to NuPay, but to enable Barko to ensure that its obligations to NuPay were discharged by its customers. even if annexure “D5” could rightly have been characterised as an agreement between NuPay and the consumer it would be hit by the provisions of section 91(a) of the NCA, which provided that a credit provider must not directly or indirectly require or induce a consumer to enter into a supplementary agreement, or sign any document, that contains a provision that would be unlawful if it were included in a credit agreement. Barko took issue with whether it could be said that it had induced the consumer to conclude annexure “D5”, and whether annexure “D5” contained a provision that would be unlawful if it were included in the credit agreement. The Court stated that to “induce”, according to the Shorter Oxford

English Dictionary 6ed, is to succeed in persuading or leading someone to do something. The manner in which annexure “D5” was presented to the consumer satisfied the court that the consumer was induced to sign the agreement. The Court found further that annexure “D5” contained a provision that would be unlawful if it were included in the credit agreement.

The appeal was dismissed with costs.

Firstrand Bank Ltd v Land and Agricultural Development Bank of South Africa[2014] 4 All SA 425 (SCA)

Insolvency – Free residue in insolvent estate – Proper distribution of – Whether the preference afforded to the holder of a general notarial bond in terms of section 102 of the Insolvency Act 24 of 1936 extends only to such portion of the free residue as may consist of the proceeds of movable property – Such preference does not extend beyond the value of the movable assets hypothecated under the bond.

As the holder of a general notarial bond over all the movable assets of an insolvent company (“Rubaco”), the appellant (“Firstrand”) claimed the entire balance of the free residue remaining in the insolvent estate of the company. It based its assertion on section 102 of the Insolvency Act 24 of 1936.

The respondent (the “Land Bank”) was the largest concurrent creditor of Rubaco. It disagreed with the appellant, contending instead that Firstrand had no preferent claim to any part of the balance of the free residue arising from the realisation of assets not subject to its bond. It maintained that the bulk of the free residue arose from the disposal of immovable assets no preference in favour of Firstrand attached to it. Instead it had to be distributed among the concurrent creditors of Rubaco. The High Court upheld the respondent’s contentions but granted leave to appeal to this Court.

The parties formulated the question for decision as being whether the preference afforded to the holder of a general notarial bond in terms of section 102 of the Insolvency Act extends only to such portion of the free residue as may consist of the proceeds of moveable property.

Held – The effect of a general notarial bond over movables is such the bondholder does not acquire any real right over the hypothecated movables. Firstrand’s general notarial bond covered all of Rubaco’s movable assets. Prior to the liquidation of Rubaco it had obtained an order perfecting its security up to an amount of R5,5 million. The Land Bank’s argument was that prior to insolvency, Firstrand enjoyed no right of security over the immovable assets of Rubaco, which were not covered by the terms of the bond. Firstrand could perfect its security or enjoy a preference in the free residue under section 102 but only in respect of movable property. That statement was correct.

Judicial opinion on the rights in insolvency of the holder of a general notarial bond over movables has consistently been that such a creditor enjoys a preference out of the free residue of the estate, but only up to the value of the assets hypothecated. The argument advanced by Firstrand flew in the face of accepted wisdom on the rights of the holder of a general notarial bond on insolvency, namely that once a provisional winding-up or sequestration order had been granted the position of all

creditors and their rights to claim that they enjoyed a security over assets or a preference in the liquidation and distribution of the assets of the estate was frozen.

In interpreting section 102, the Court concluded that the effect of the interpretation contended for by Firstrand would be that the holder of a general notarial bond would acquire on liquidation greater rights than it enjoyed at the date of liquidation and its security would be enhanced. That was not a sensible construction of the section.

Answering the question posed by the parties, as referred to above, in the affirmative, the Court found for the Land Bank.

Minister of Defence and others v South African National Defence Union and another [2014] 4 All SA 441 (SCA)

Employment law – Disciplinary action against soldiers – Defence Act 42 of 2002 – Section 59(2) – Section provides that the service of a member of the defence force may be terminated in accordance with any applicable regulations in certain specified circumstances – Neither the language of section 59(2) nor its context points to the construction that the exercise of the powers conferred by section 59(2) is dependent on the existence of regulations.

Employment law – Disciplinary action against soldiers – Whether procedure adopted by the Defence Force to discipline soldiers who had not returned to their bases in terms of an instruction was fair – Minimum requirements for fair procedure set out – Court concluding that procedure adopted was not fair.

A protest gathering by members of the South African National Defence Force (“SANDF”) in 2009 occurred in contravention of military orders and a court order. Some of the protesters were armed and the conduct of some of them provoked a confrontation with the police, who found themselves compelled to use a water cannon, and to fire rubber bullets, in an attempt to bring things under control. Police and military vehicles were damaged in the incident.

Discipline meted out by the SANDF to participants in the demonstration gave rise to the present appeal. The first respondent (“SANDU”), a trade union, challenged the fairness of the disciplinary steps taken by the SANDF. The High Court’s finding that the discipline was unlawful and unconstitutional led to the present appeal.

In disciplining the protesters, the SANDF initially suspended the affected soldiers. Subsequent thereto, letters were addressed to the soldiers instructing them to report to their headquarters for the sole purpose of being warned of the charges preferred against them and to be arraigned for conduct relating to the protest. However, not all the soldiers responded to that instruction. The SANDF then sent letters to the soldiers who had not reported to their bases, constituting notice of intended administrative discharge or dismissal. As a result, SANDU applied for a declaratory order that the above procedure was unconstitutional and unlawful.

Held – Section 59 of the Defence Act 42 of 2002 deals with the various circumstances in which the services of a member of the SANDF may be terminated. Section 59(2), which the SANDF sought to invoke in the present case, provided that the service of a member of the regular force may be terminated in accordance with any applicable regulations in certain specified circumstances. It was common cause that no regulations had been promulgated under the section. In

those circumstances, SANDU argued that it was impermissible for the SANDF to use the section in order to dismiss the soldiers. It sought to rely on the principle that where a statute provides that something be done as a condition precedent to an exercise of a lawful power, non-compliance with the condition precedent is fatal to the exercise of the power. The Court held that neither the language of the section nor its context pointed to the construction that the exercise of the powers conferred by section 59(2) was dependent on the existence of regulations.

The central question was whether the procedure adopted by the SANDF to discipline the soldiers who had not returned to their bases in terms of the instruction was fair. The proceedings against the soldiers were disciplinary in nature. A fair procedure in disciplinary proceedings against an employee requires as a minimum the following. The employee must be told what they have done that is said to constitute misconduct with sufficient clarity to understand the nature of the alleged misconduct. The employees must be given an adequate opportunity to address the charges raised in a manner that protects their own rights. To that end they will ordinarily be entitled to the assistance of any trade union of which they are a member, whether in formulating their response or by way of representation at a disciplinary hearing. The procedure adopted by the SANDF was found to be defective in all of the above respects. It could therefore not be regarded as fair, and the court below was correct to grant the declaratory orders that it did.

The appeal was dismissed with costs.

Minister of Police v Mboweni and another [2014] 4 All SA 452 (SCA)

Civil procedure – Claim for constitutional damages – Constitution of the Republic of South Africa, 1996 – Section 28(1)(b) – Whether a child whose parent has died as a result of the unlawful conduct of a third party has a right to sue for constitutional damages arising from an infringement of the constitutional right to parental care – Court has to first decide the issue of whether there had been any deprivation of parental care at all, before embarking on enquiry into damages.

Words and phrases – “Special case” – Uniform Rules of Court – Rule 33 – Parties to any dispute may, after institution of proceedings, agree upon a written statement of facts in the form of a special case for the adjudication of the court – A special case must set out agreed facts, not assumptions.

The respondents were mothers of children fathered by the same person (“the deceased”).

In 2009, the deceased had been arrested by police, and during his detention, he was assaulted by two other prisoners. The police did not detect the assault or do anything to prevent it or protect the deceased. When they released him the next day, he was suffering from the effects of the assault. He was taken to a doctor and, later that day, hospitalised. His condition deteriorated and he died five days later.

The respondents pursued claims on behalf of their daughters, against the Minister of Police (the “Minister”), for damages based on an allegation that their daughters’ right to parental care as provided for in section 28(1)(b) of the Constitution was impaired when their father died as a result of the conduct of the members of the police for whom the Minister was in law liable. Delictual damages were claimed in respect of loss of support. The High Court held that a child whose parent has died as

a result of the unlawful conduct of a third party has a right to sue for constitutional damages arising from an infringement of the constitutional right to parental care. The appellant was thus held liable to compensate the minor children of the deceased for proven constitutional damages arising out of the unlawful deprivation of their father’s parental care. That led to the present appeal.

Held – The parties and the court below adopted an incorrect approach to the matter in treating the matter as if there was a clear-cut issue of law capable of resolution with the barest minimum of factual matter being placed before the court. The question of remedy can only arise after the relevant right has been properly identified and the pleaded or admitted facts show that the right has been infringed.

Rule 33(1) and (2) provides that parties to a dispute may agree upon a written statement of facts in the form of a special case for adjudication by the court.

A special case must set out agreed facts, and not assumptions. In thinking that the statement that the deceased provided parental care to his daughters was a statement of fact that sufficiently raised the point of legal principle of whether a claim for constitutional damages was legally tenable, the parties erred.

The proper approach would have been for the court to decide first the issue of whether there had been any deprivation of parental care at all. An enquiry into damages must be an enquiry into the damages arising from an identified wrong.

A second area of concern with the approach adopted in the court below was that, even if the facts showed that the children had been deprived of parental care within the meaning of section 28(1)(b) of the Constitution, that did not necessarily establish their right to claim damages. A further issue was whether the actions, or more accurately inaction, of the police in failing to safeguard and care for the deceased while in police custody, constituted a wrongful act in relation to the children. While the police had a duty to protect the deceased whilst in their custody, that did not necessarily mean that they were at the same time under a legal duty to his children to secure their rights in terms of section 28(1)(b).

It was concluded that the court below failed to address issues of a factual and a legal character that were central to the decision that it was called upon to make. The appeal was upheld and the action referred back to the High Court for trial in accordance with the guidelines in this judgment.

Inkatha Freedom Party, Nongoma and another v Electoral Commission and others [2014] 4 All SA 465 (Elect Ct)

Administrative law – By-elections – Special votes – Failure to include – Objection – Powers, duties and functions of Electoral Commission – Presiding officer failing to open and count box of special votes cast in terms of section 55 of the Local Government: Municipal Electoral Act 27 of 2000 in municipal by-election – Electoral Commission upholding objection but referring objection to the Electoral Court in terms of section 65(7)(b) of the Municipal Electoral Act – Integrity of the electoral process depending on free and fair elections.

The applicants lodged an objection with the first respondent in terms of sec-tion 65 of the Local Government: Municipal Electoral Act 27 of 2000 (“the Municipal Electoral Act”), regarding the failure by the first respondent (“the Electoral Commission”) to take into account certain special votes cast in terms of the provisions of section 55 of

the Act in municipal by-elections. The first respondent informed the appellants that it had investigated the objection and resolved to uphold it, and believed that the nature of the irregularities might justify the setting aside of the entire by-election. Based on that view, the first respondent informed the applicants that it had decided to refer the objection to this Court for its decision.

Aggrieved by the decision of the first respondent to refer the matter to court, the applicants launched urgent proceedings seeking leave to appeal against the first respondent’s decision to refer the matter to court.

Held – The main issue for determination was whether the first respondent correctly and properly referred the matter to the court or whether it ought to have simply amended the results of the by-election, as contended by the applicants. Section 65(7) of the Municipal Electoral Act makes it clear that if the first respondent decides to uphold an objection after the results of the election have been announced, it may amend such results. Alternatively, if the first respondent holds the view that the seriousness and extent of the unlawful conduct or irregularities that occurred during elections may justify the setting aside of the election, refer the objection to the Electoral Court for its decision. The plain and unequivocal meaning of section 65(7) is that in both instances, the first respondent is vested with discretionary powers. The powers must be exercised according to the rules of reason and justice, and not according to private opinion, and must also not be arbitrary, ambiguous and unrealistic, but rather legal and regular.

The decision not to amend the results and to refer the matter to court instead constituted administrative action.

The Court found that the irregularities complained of in the election, were administrative in nature, and that the first respondent should have used its administrative powers and discretion by simply amending the result of the by-election as suggested by the appellants. It was unfair and inequitable to saddle the applicants with the consequences of an administrative error caused by the staff of the first respondent. The applicants had, accordingly, succeeded in proving that the setting aside of the by-election would not be just and equitable.

The appeal was upheld and the first respondent was ordered to amend the result of the by-election.

South African Human Rights Commission and others v Minister of Home Affairs: Naledi Pandor and others [2014] 4 All SA 482 (GJ)

Immigration – Detention of immigrants – Constitutionality – Whether the detention of the 19 applicants and other detainees, were unconstitutional and in contravention of the Immigration Act 13 of 2002 – Respondents’ conduct of detaining illegal foreigners beyond the maximum permissible 120 days was unlawful and unconstitutional – No basis for the argument that there is a discretion to extend the maximum detention period beyond 120 days whenever it is necessary or justifiable.

The applicants sought a declaratory order that the respondents’ practices regarding detention of the 19 applicants and other detainees, were unconstitutional and in contravention of the Immigration Act 13 of 2002. They also sought a systemic order requiring the first to fourth respondents to provide regular reports to the first applicant

about the number and status of detainees at a certain repatriation centre (Lindela) and to permit the first applicant regular access to Lindela.

Held – Although the issue of the release of the detainees was moot, the Court found that the consideration of the issue of unlawful detention of the individual applicants presented a live issue worthy of consideration. The interests of justice dictated that the lawfulness or otherwise of the individual applicants had to be considered.

The Court went on to find that the respondents’ conduct of detaining illegal foreigners beyond the maximum permissible 120 days was unlawful and unconstitutional. There could be no basis for the argument, as submitted by the respondents, that there is a discretion to extend the maximum detention period beyond 120 days whenever it is necessary or justifiable.

The Court granted the declaratory and systemic relief sought by the applicants.

South African National Roads Agency Limited v City of Cape Town and others; Protea Parkway Consortium v City of Cape Town and others [2014] 4 All SA 497 (WCC)

Civil procedure – Litigation – Applications to keep information secret – Implied undertaking rule – Rule applies not only to the parties to whom discovery is made, but also to third parties such as the parties’ legal representatives, court officials, expert witnesses and any person who comes into possession of the information knowing that it was obtained by way of discovery, or equivalent compulsion in terms of the rules of court.

Civil procedure – Litigation – Pending review application – Uniform Rules of Court – Rule 53(1)(b) – Applications to keep information secret – Neither of the applicants had established a right to the relief sought in the terms that they sought it – No person shall disseminate, publish, or distribute any part of the administrative record, or any part of any affidavit in the supplementary founding papers that quotes or substantively reproduces the content thereof, before the hearing of the pending review application.

Two interlocutory applications relating to a pending judicial review application were argued together because they concerned similar issues.

The first matter was an application by the South African National Roads Agency Limited (“SANRAL”) for an order that would require the supplementary founding papers of the City of Cape Town in the pending review proceedings to be redacted so as to keep secret certain information which SANRAL contends should not be released in the public domain.

In the second application, the applicant (“PPC”) applied for an order directing that certain identified parts of the City’s supplementary affidavit, including the annexures thereto, be redacted and placed in a confidential file. An order was sought that the information placed in the contemplated confidential file would not be disclosed to the public, but only to the court seized of the review and the legal representatives and expert witnesses of the other parties in the review application subject to the provision by the latter of appropriate confidentiality undertakings.

Held – Neither of the applicants had established a right to the relief sought in the terms that they sought it. The Court made certain orders that would effectively keep certain categories of information secret until the review application commenced.