JUTA'S ADVANCE NOTIFICATION SERVICE

 
JUTA'S ADVANCE NOTIFICATION SERVICE
JUTA'S ADVANCE NOTIFICATION SERVICE
                                        FEBRUARY 2020

Dear South African Law Reports and Criminal Law Reports subscriber

Herewith the cases in the February 2020 law reports

JUDGMENTS OF INTEREST IN THE FEBRUARY 2020 EDITIONS OF THE SALR, SACR
AND THE NAMIBIAN LAW REPORTS. SEE ALSO FURTHER BELOW, THE TABLE OF
CASES FOR THE BOTSWANA LAW REPORTS [2017] 2.
.

Click on the case name to download the original judgment.

SOUTH AFRICAN LAW REPORTS

Whether consumer entitled to exit, withdraw from, or terminate debt review process
after application for debt review
Nedbank Ltd, enforcing a consumer credit agreement, instituted action and obtained default
judgment against Mr Mabuduga. This, after Nedbank was served with a notice of Mr
Mabuduga’s application for debt review (under s 86(4)(b)(i) of the National Credit Act 34 of
2005) and a subsequent notice by the debt counsellor that the application had been
‘voluntarily withdrawn by the consumer’. In Mr Mabaduga’s application for rescission of the
default judgment, the parties requested the court to make a draft order, reached by consent,
an order of court. The court however raised the issue of whether it was competent for a
consumer to exit, withdraw from, or terminate the debt review process after their application
in terms of s 86(1). It held that no provision in the NCA empowered the consumer to do so,
and therefore once Mr Mabuduga had filed his application in terms of s 86(1), it was out of his
hands to withdraw his application, or from the debt review process. Mabuduga v Nedbank Ltd
2020 (1) SA 599 (GP)

Effect of amended rule 32 on applications initiated before its coming into effect
Before its amendment (effective 1 July 2019) rule 32 of the Uniform Rules provided that a
plaintiff could apply for summary judgment upon delivery of notice of intention to defend;
after its amendment a plaintiff may only apply for summary judgment after delivery of the
plea. Following a number of conflicting decisions as to whether the amendment had
retrospective effect, the Judge President issued a directive referring the matter to the full
court for decision. The full court held that the amended rule did not apply retrospectively to
pending applications for summary judgments initiated before 1 July 2009. Raumix Aggregates
(Pty) Ltd v Richter Sand CC and Another, and Similar Matters Ltd 2020 (1) SA 623 (GJ)

Community Schemes Ombud: Nature of appeal against adjudicator's order
A statutory appeal against a decision of the adjudicator as contemplated in s 57 of the
Community Scheme Ombud Service Act 9 of 2011 is an appeal in the ordinary strict sense,
with the proviso that the right of appeal is limited to questions of law only. It is a rehearing on
the merits but limited to the evidence or information on which the decision under appeal was
given, ie the record and the adjudicator’s order and reasons. The question for decision is
whether the order of the statutory body performing a quasi-judicial function was right or
wrong—in respect of a question of law—on the material which it had before it. For purposes of
forming an appeal record, the following would be sufficient: the application filed with
Community Schemes Ombud Service; any subsequent exchange of written submissions
between the parties to the adjudication; and the adjudicator’s written reasons for their
determination. Stenersen & Tulleken Administration CC v Linton Park Body Corporate and
Another 2020 (1) SA 651 (GJ).

SOUTH AFRICAN CRIMINAL LAW REPORTS

Parents right to moderate and reasonable chastisement of child
In a matter where a father was charged and convicted of assaulting his son, the Constitutional
Court declared that the common-law defence of moderate and reasonable chastisement was
inconsistent with the Constitution and invalid. Freedom of Religion South Africa v Minister of
Justice and Constitutional Development and Others 2020 (1) SACR 113 (CC)

Direct imprisonment imposed for theft of trust funds by attorney
A 50-year-old attorney was convicted of stealing R50 000 due to a client from the Road
Accident Fund. Despite having already been struck off the roll of attorneys, and suffering from
various chronic health conditions, a sentence of 30 months’ direct imprisonment was upheld
on appeal. S v Macheka 2020 (1) SACR 189 (FB)

Lengthy prison term imposed for cybercrime
The appellant, 42-year-old first offender with a master’s degree in computer science, was
convicted of various crimes relating to the interception of data communications to transfer
funds from a local authority to members of a syndicate. The court emphasised the need for
the sentence to reflect the far-reaching consequences for the economy and public of such
crimes and imposed an effective sentence of 10 years’ imprisonment. S v Msomi 2020 (1)
SACR 197 (ECG)

THE NAMIBIAN LAW REPORTS

Foreign appointed liquidators—their ability to institute legal proceedings in Namibia
The appeal concerned the question whether foreign appointed liquidators of a corporation in
liquidation in a foreign country could institute legal proceedings prior to being recognised as
such in Namibia to recover money allegedly owing to the liquidated corporation by a Namibian
corporation. For the liquidators to operate in Namibia, they needed recognition and they could
not exercise any powers as liquidators prior to recognition by a Namibian court. Based on the
general principles relating to ratification, the institution of the action and the steps taken with
regard to the action after institution thereof could not be ratified. Miller and Others NNO v
Prosperity Africa Holdings (Pty) Ltd 2019 (4) NR 905 (SC)

Medical negligence—duty of care owed by doctor to his patient
The plaintiff sued the defendant for damages in delict alleging that the defendant and its
employees had failed to fulfil their duty of care towards the deceased, her daughter, who after
having given birth to a daughter who died within an hour of birth, developed complications
from a laceration that led to her death four days later. The doctor did not enquire as to the
condition of the patient for four hours. The omission breaching duty of care and the death of
the patient regarded as within risk created by such omission. Lopez v Minister of Health and
Social Services 2019 (4) NR 972 (HC)

Validity of deed of suretyship—suretyship entered into by one spouse without the
approval of the other spouse
The plaintiff, Standard Bank, instituted an action against second and third defendants based
on a suretyship agreement between the plaintiff and the second defendant. Second and third
defendants were married in community of property. The suretyship agreement was signed
only by the second defendant and the space provided on the document in question for the
signature of the third defendant had been left blank. The provisions of s 7(2)(b) of the Married
Persons Equality Act 1 of 1996 (the Act) were framed in peremptory terms and the deed of
suretyship entered into by the plaintiff and the second defendant was void and unenforceable
for want of written spousal consent, the plaintiff disallowing reliance on any of the exceptions
provided for in s 7(5) or s 8(1)(a) of the Act. Standard Bank Namibia Ltd v Groenewald and
Others 2019 (4) NR 986 (HC)

WE WELCOME YOUR FEEDBACK

Please send any comments or queries to lawreports@juta.co.za.

Kind Regards

The Juta Law Reports Team

                    SOUTH AFRICAN LAW REPORTS

                                   FEBRUARY 2020

                                   TABLE OF CASES

• Ascendis Animal Health (Pty) Ltd v Merck Sharp Dohme Corporation and Others 2020 (1) SA
327 (CC)
• Gelyke Kanse and Others v Chairperson, Senate of the University of Stellenbosch and Others
2020 (1) SA 368 (CC)
• Moodley v Kenmont School and Others 2020 (1) SA 410 (CC)
• President of the Republic of South Africa v Democratic Alliance and Others 2020 (1) SA 428
(CC)
• National Energy Regulator of South Africa and Another v PG Group (Pty) Ltd and Others
2020 (1) SA 450 (CC)
• BMW South Africa (Pty) Ltd v Commissioner, South African Revenue Service 2020 (1) SA
484 (SCA)
• NPGS Protection & Security Services CC and Another v FirstRand Bank Ltd 2020 (1) SA 494
(SCA)
• Telkom SA SOC Ltd v Cape Town (City) and Another 2020 (1) SA 514 (SCA)
• Achuko v Absa Bank Ltd and Others 2020 (1) SA 533 (GJ)
• Drummond Cable Concepts v Advancenet (Pty) Ltd 2020 (1) SA 546 (GJ)
• Fourie v Van der Spuy &De Jongh Inc and Others 2020 (1) SA 560 (GP)
• Ex parte Goosen and Others 2020 (1) SA 569 (GJ)
• Habib and Another v eThekwini Municipality 2020 (1) SA 580 (KZD)
• Gordhan v Malema 2020 (1) SA 587 (GJ)
• Mabuduga v Nedbank Ltd 2020 (1) SA 599 (GP)
• Rakgase and Another v Minister of Rural Development and Land Reform and Another 2020
(1) SA 605 (GP)
• Raumix Aggregates (Pty) Ltd v Richter Sand CC and Another, and Similar Matters 2020 (1)
SA 623 (GJ)
• Recycling and Economic Development Initiative of South Africa NPC v Moodliar and Others
2020 (1) SA 632 (WCC)
• Stenersen & Tulleken Administration CC v Linton Park Body Corporate and Another 2020 (1)
SA 651 (GJ)
FLYNOTES

ASCENDIS ANIMAL HEALTH (PTY) LTD v MERCK SHARP DOHME CORPORATION AND
OTHERS (CC)
MOGOENG CJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, LEDWABA AJ, MADLANGA J,
MHLANTLA J, NICHOLLS AJ and THERON J
2019 OCTOBER 24

Intellectual property—Patent—Dispute—Revocation and infringement—Whether findings in
revocation application having binding effect in later action based on infringement—Res
judicata (issue estoppel) and piecemeal litigation (multiple-stage defences) in patent
disputes—Court deadlocked on whether failed bid for revocation barring applicant from raising
invalidity defences in subsequent infringement (damages) action against it—Whether applicant
should be allowed to launch fresh validity challenge on new ground—Ease with which validity
challenges should be allowed—Patents Act 57 of 1978, s 25 and s 61(1).
Estoppel—Res judicata—Ambit of doctrine—Court deadlocked on issue of whether failed bid
for revocation of patent would bar applicant from raising fresh invalidity defences in
subsequent infringement claim.

GELYKE KANSE AND OTHERS v CHAIRPERSON, SENATE OF THE UNIVERSITY OF
STELLENBOSCH AND OTHERS (CC)
MOGOENG CJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, MADLANGA J, MATHOPO AJ,
MHLANTLA J, THERON J and VICTOR AJ
2019 OCTOBER 10

Education—University—Language policy—Historically Afrikaans university’s decision to adopt
new language policy giving preference to English over (formerly predominant) Afrikaans—
Reasonable practicabilty and appropriate justification—University reasonably citing cost barrier
to alternative of full parallel-medium teaching—University’s decision enhancing equitable
access to education and constitutionally justified—Constitution, s 29(2).

MOODLEY v KENMONT SCHOOL AND OTHERS (CC)
MOGOENG CJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, LEDWABA AJ, MADLANGA J,
MHLANTLA J, NICHOLLS AJ and THERON J
2019 OCTOBER 9

Education—School—Public school—Assets—Bar on attachment—South African Schools Act 84
of 1996, s 58A(4).

PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA v DEMOCRATIC ALLIANCE AND
OTHERS (CC)
MOGOENG CJ, CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, LEDWABA AJ, MADLANGA J,
MHLANTLA J, NICHOLLS AJ and THERON J
2019 SEPTEMBER 18

Appeal—To Constitutional Court—Discretion of court to decide moot issue arising from
interlocutory order—Interests of justice—Main application withdrawn and its merits essential
for proper determination of issues—Court declining to entertain appeal.
President—Powers—To appoint and dismiss cabinet ministers—Review—Applicability of
rule 53 of Uniform Rules—Issue moot and interlocutory—Constitutional Court refusing to
exercise discretion to entertain it on appeal—Semble: While executive decisions generally
reviewable under principle of legality and rule 53, applicability of rule 53 to cabinet
appointments requiring detailed consideration—Constitution, ss 91(2) and 93(1); Uniform
Rules of Court, rule 53.
NATIONAL ENERGY REGULATOR OF SOUTH AFRICA AND ANOTHER v PG GROUP
(PTY) LTD AND OTHERS (CC)
CAMERON J, FRONEMAN J, JAFTA J, KHAMPEPE J, LEDWABA AJ, MADLANGA J, MHLANTLA J,
NICHOLLS AJ and THERON J
2019 JULY 15

Administrative law—Administrative action—Review—Rationality—Assessment of process
leading to decision—Part of rationality enquiry under Act—Promotion of Administrative Justice
Act 3 of 2000, s 6.

BMW SOUTH AFRICA (PTY) LTD v COMMISSIONER, SOUTH AFRICAN REVENUE
SERVICE (SCA)
NAVSA JA, LEACH JA, MBHA JA, VAN DER MERWE JA and NICHOLLS JA
2019 SEPTEMBER 6

Revenue—Income tax—Gross income—Payment by employer to tax consultants to render
assistance iro its expatriate employees’ tax obligations—Whether taxable ‘benefit or
advantage’—Income Tax Act 58 of 1962, s 1(i) sv ‘gross income’, read with sch 7 paras s 2(e)
and (h).

NPGS PROTECTION & SECURITY SERVICES CC AND ANOTHER v FIRSTRAND BANK
LTD (SCA)
NAVSA ADP, MBHA JA, MAKGOKA JA, MOKGOHLOA AJA and DAVIS AJA
2019 JUNE 6

Mortgage—Foreclosure—Judicial execution—Judicial oversight—When triggered—Legally
represented debtor obtained mortgage loan to finance his business—Failed to provide court
with any information regarding infringement of housing rights, save last-minute statement
from bar by legal representative—Summary judgment correctly granted—Court’s oversight
role not triggered—Constitution, s 26(3); Uniform Rules of Court, rule 46A.

TELKOM SA SOC LTD v CAPE TOWN (CITY) AND ANOTHER (SCA)
LEACH JA, TSHIQI JA, WALLIS JA, MOCUMIE JA and DLODLO JA
2019 SEPTEMBER 25

Telecommunication—Network—Facility—Licensee applying for rezoning of private land to
allow erection of telecommunications station—Before rezoning approved licensee erecting
station—Municipality obtaining declarator that erection unlawful—Challenge on appeal to
provisions of municipal bylaw requiring municipality’s consent to rezoning of property to
allow erection of such station.

ACHUKO v ABSA BANK LTD AND OTHERS (GJ)
UNTERHALTER J
2019 AUGUST 15

International law—Jurisdiction of courts—Whether South African courts enjoying jurisdiction
to consider violation of Bill of Rights in respect of conduct taking place outside territory of
South Africa, but having effects within its borders.

DRUMMOND CABLE CONCEPTS v ADVANCENET (PTY) LTD (GJ)
VALLY J
2018 DECEMBER 14

Contract—Breach—Remedies—Damages—Calculation—Proper approach.
FOURIE v VAN DER SPUY & DE JONGH INC AND OTHERS (GP)
KLEIN AJ
2019 AUGUST 30

Legal practitioners—Attorney—Rights and duties—Duties—Duty to execute mandate with
required standard of diligence, skill and care—Cybercrime—Payments by law firm, using
money held in trust on behalf of client, purportedly on latter’s instructions—Emails in fact from
unknown third parties who had hacked client’s account—Failure of attorney to employ
measures to ensure attorney and client safe from online fraud—Failure to exercise requisite
skill, knowledge and diligence of average practising attorney, and thus failure to discharge
fiduciary duty to client.
Legal practitioners—Attorney—Rights and duties—Duties—Cybercrime—Duty to employ
measures to ensure attorney and client safe from online fraud.

EX PARTE GOOSEN AND OTHERS (GJ)
SUTHERLAND J, MODIBA J and MILLAR AJ
2019 MAY 17

Recusal—On grounds of appearance of bias—What constitutes—Sitting judge a member of
amicus curiae invited by court to address it on certain legal issues.
Recusal—Application—Locus standi—Of amicus curiae, invited to assist court, to bring
application for recusal of judge.

HABIB AND ANOTHER v ETHEKWINI MUNICIPALITY (KZD)
PLOOS VAN AMSTEL J
2019 MARCH 20

Practice—Pleadings—Exception—Prescription raised in exception rather than in special plea—
Whether exception is an irregular proceeding.

GORDHAN v MALEMA (GJ)
SUTHERLAND J
2019 OCTOBER 31

Equality legislation—Hate speech—What constitutes—Requirements—‘Words based on one
or more of the prohibited grounds’—Prohibited grounds—Unlisted grounds—Character of such
grounds must be eiusdem generis with those of listed grounds—Not encompassing statements
vilifying person other than on ground of one or more personal attributes, as defined—Not
encompassing purely personal attacks—Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000, s 1 sv ‘prohibited grounds’ and s 10.

MABUDUGA v NEDBANK LTD (GP)
LE GRANGE AJ
2019 JULY 2019

Credit agreement—Consumer credit agreement—Debt review—Whether consumer entitled
to exit, withdraw from, or terminate debt review process after application for debt review—
National Credit Act 34 of 2005, s 86(1).

RAKGASE AND ANOTHER v MINISTER OF RURAL DEVELOPMENT AND LAND REFORM
AND ANOTHER (GP)
DAVIS J
2019 SEPTEMBER 4

Administrative law—Administrative action—Review—Of decision not to sell land to 78-year
old African farmer who qualified for grant but instead to enter into 30-year lease—Failure to
hear affected person, to furnish reasons, to act rationally and reasonably—Failure to comply
with constitutional imperative to realise land reform—Constitution, 1996, ss 25 and 237;
Promotion of Administrative Justice Act 3 of 2000, ss 3(1) and 6(2)(h).
Constitutional law—Duties of state—Duty to perform constitutional obligations diligently and
without delay—Land reform—Decision not to sell land to 78-year old African farmer who
qualified for grant but instead to enter into 30-year lease—Failure to convert tenuous land
rights when able to do so, amounting to breach of constitutional obligation—Constitution,
1996, ss 25 and 237.
Land—Land reform—Restitution—Duty of state—Breach—Failure to comply with constitutional
imperatives—Decision not to sell land to an African farmer who qualified for grant but instead
to enter into 30-year lease—Failure to convert tenuous land rights when able to do so,
amounting to breach of constitutional obligation—Constitution, 1996, ss 25 and 237.

RAUMIX AGGREGATES (PTY) LTD v RICHTER SAND CC AND ANOTHER, AND SIMILAR
MATTERS (GJ)
MATOJANE J, KEIGHTLEY J and YACOOB J
2019 OCTOBER 4

Practice—Judgments and orders—Summary judgment—Applications—Effect of amended rule
32 on applications initiated before its coming into effect—Amended rule not applying
retrospectively—Uniform Rule 32.

RECYCLING AND ECONOMIC DEVELOPMENT INITIATIVE OF SOUTH AFRICA NPC v
MOODLIAR AND OTHERS (WCC)
LE GRANGE J
2019 JUNE 26

Company—Winding-up—Liquidator—Remuneration—Where provisional liquidation order
discharged—Whether liquidator entitled to retain estimate of remuneration in attorneys’ trust
account as security for payment thereof pending taxation by Master.

STENERSEN & TULLEKEN ADMINISTRATION CC v LINTON PARK BODY CORPORATE
AND ANOTHER (GJ)
MATOJANE J, ADAMS J and NOBANDA J
2019 OCTOBER 24

Housing—Consumer protection—Community Schemes Ombud—Appeal against adjudicator’s
order—Nature of appeal—Correct procedure—Community Schemes Ombud Service Act 9 of
2011, s 57.
SOUTH AFRICAN CRIMINAL LAW REPORTS

                                   FEBRUARY 2020

                                   TABLE OF CASES
• Freedom of Religion South Africa v Minister of Justice and Constitutional Development and
Others 2020 (1) SACR 113 (CC)
• S v Davids and Another 2020 (1) SACR 134 (WCC)
• Amabhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and
Others 2020 (1) SACR 139 (GP)
• S v Macheka 2020 (1) SACR 189 (FB)
• S v Msomi 2020 (1) SACR 197 (ECG)
• S v Nkosi and Another 2020 (1) SACR 206 (GJ)
• Masindi and Another v National Director of Public Prosecutions 2020 (1) SACR 216 (GP)

                                         FLYNOTES

FREEDOM OF RELIGION SOUTH AFRICA v MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT AND OTHERS (CC)
MOGOENG CJ, BASSON AJ, CAMERON J, DLODLO AJ, FRONEMAN J, GOLIATH AJ, KHAMPEPE J,
MHLANTLA J, PETSE AJ and THERON J
2019 SEPTEMBER 29

Assault—Common assault—Defences—Parent’s            right   to   moderate    and    reasonable
chastisement of child—Constitutionally invalid.

S v DAVIDS AND ANOTHER (WCC)
BOZALEK J and THULARE AJ
2019 NOVEMBER 6

Court—Jurisdiction—District courts—Magistrate submitting matter to regional court despite
having called for reports for sentencing purposes—Reasons for committal not set out and
committal not explained to appellants—Procedure adopted irregular—Criminal Procedure Act
51 of 1977, s 116(1)(b).

AMABHUNGANE CENTRE FOR INVESTIGATIVE JOURNALISM NPC AND ANOTHER v
MINISTER OF JUSTICE AND OTHERS (GP)
SUTHERLAND J
2019 SEPTEMBER 16

National security—Telecommunications—Interception of communications—State practice of
‘bulk interceptions’ of telecommunications traffic—Whether interpretation of National Strategic
Intelligence Act 39 of 1994 providing authority—Practice unlawful, given absence of any law
authorising such practice—National Strategic Intelligence Act 39 of 1994.
Constitutional law—Legislation—Validity—Regulation of Interception of Communications and
Provision of Communication-Related Information Act 70 of 2002—Interception of
communications—Failure of Act to provide right of notice to subject of interception order—Less
restrictive means existing to achieve objectives of Act—Infringement of rights to privacy and
access to justice not justifiable—Constitution, ss 14, 34 and 36(1)(e); Regulation of
Interception of Communications and Provision of Communication-Related Information Act 70
of 2002, ss 16(7), 17(6), 18(3)(a), 19(6), 20(6), 21(6) and 22(7).
Constitutional law—Legislation—Validity—Regulation of Interception of Communications and
Provision of Communication-Related Information Act 70 of 2002—Interception of
communications—‘Designated judge’—Failure of Act to prescribe appointment process and
terms for designated judge that ensured independence—Less restrictive means existing to
achieve objectives of Act—Infringement of rights to privacy not justifiable—Constitution, ss 14
and 36(1)(e); Regulation of Interception of Communications and Provision of Communication-
Related Information Act 70 of 2002, s 1 sv ‘designated judge’.
Constitutional law—Legislation—Validity—Regulation of Interception of Communications and
Provision of Communication-Related Information Act 70 of 2002—Interception of
communications—No proper procedures in Act to be followed when state officials examining,
copying, sharing, sorting through, using, destroying and/or storing collected data—Less
restrictive means existing to achieve objectives of Act—Infringement of rights to privacy not
justifiable—Constitution, ss 14 and 36(1)(e); Regulation of Interception of Communications
and Provision of Communication-Related Information Act 70 of 2002, ss 35 and 37.
Constitutional law—Legislation—Validity—Regulation of Interception of Communications and
Provision of Communication-Related Information Act 70 of 2002—Interception of
communications—Journalist—Potential for exposure of confidential sources—Failure to
expressly address circumstances where subject of surveillance is journalist—Less restrictive
means existing to achieve objectives of Act—Unjustifiable breach of right to freedom of
expression and of media—Constitution, ss 16(1) and 36(1)(e); Regulation of Interception of
Communications and Provision of Communication-Related Information Act 70 of 2002,
ss 16(5), 17(4), 19(4), 21(4)(a) and 22(4)(b).
Constitutional law—Legislation—Validity—Regulation of Interception of Communications and
Provision of Communication-Related Information Act 70 of 2002—Interception of
communications—Lawyer—Potential revealing of legally privileged communications—Failure to
expressly address circumstances where subject of surveillance is lawyer—Less restrictive
means existing to achieve objectives of Act—Unjustifiable breach of right to privacy, freedom
and fair-trial rights—Constitution, ss 14, 35(5) and 36(1)(e); Regulation of Interception of
Communications and Provision of Communication-Related Information Act 70 of 2002,
ss 16(5), 17(4), 19(4), 21(4)(a) and 22(4)(b).

S v MACHEKA (FB)
MHLAMBI J and CHESIWE J
2019 MAY 6; AUGUST 29

Theft—Sentence—Theft by attorney of trust moneys—Fifty-year-old attorney convicted of
stealing R50 000 payment from Road Accident Fund—Having been struck off roll of attorneys
before commencement of trial —Court noting prevalence of offence but upholding sentence of
30 months’ imprisonment on appeal.

S v MSOMI (ECG)
SMITH J and RUGUNANAN AJ
2019 AUGUST 21; SEPTEMBER 3

Cybercrime—Sentence—Serious nature of offences emphasised—Such types of crime having
far-reaching consequences for economy and public, and courts to impose sentences reflecting
this—Interception of data communication to transfer funds from local authority to members of
syndicate—Appellant, 42-year-old first offender with master’s degree in computer science,
sentenced to effective 10 years’ imprisonment—Electronic Communications and Transactions
Act 25 of 2002; Prevention of Organised Crime Act 121 of 1998.

S v NKOSI AND ANOTHER (GJ)
SPILG J, BROODRYK AJ and JOHNSON AJ
2019 OCTOBER 21, 25

Evidence—Identification—Dock identification—Witness to traumatic coldblooded murder
making initial statement to police that unable to identify shooter but week later stating that
could identify him and giving description of features—Witness subsequently recognising
perpetrator from picture in newspaper placed by police seeking assistance from that person—
Witness identifying accused in dock as shooter—Evidence of witness held to be reliable.
Evidence—Identification—Evidence of identification of person in newspaper photograph
placed at request of police—Although dangers inherent in such identification, such constituting
necessary means of apprehending criminals.

MASINDI AND ANOTHER v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS (GP)
PHAHLANE AJ
2019 AUGUST 29; SEPTEMBER 20

Prosecution—Malicious prosecution—Damages—Quantum—Plaintiffs held for 16 days in very
poor circumstances and subjected to sexual abuse by inmates in crowded cell that lacked
privacy—First and second plaintiffs awarded R20 000 and R40 000 per day, respectively.

                         NAMIBIAN LAW REPORTS

                                        2019 (4)

                                   TABLE OF CASES
• Miller and Others NNO v Prosperity Africa Holdings (Pty) Ltd 2019 (4) NR 905 (SC)
• Namibian Competition Commission v Namib Mills (Pty) Ltd and Another 2019 (4) NR 916
(HC)
• S v Jonas 2019 (4) NR 924 (HC)
• Haindaka v Minister of Urban and Rural Development and Others 2019 (4) NR 951 (HC)
• Lopez v Minister of Health and Social Services 2019 (4) NR 972 (HC)
• Standard Bank Namibia Ltd v Groenewald and Others 2019 (4) NR 986 (HC)
• Blue Sky Shipping Ltd and Another v Hellenic Bank Public Company Ltd: MV MCP Pachna
2019 (4) NR 997 (HC)
• Namdeb Diamond Corporation (Pty) Ltd v Gaseb 2019 (4) NR 1007 (SC)
• Prosecutor-General v Atlantic Ocean Management (Pty) Ltd and Another 2019 (4) NR 1031
(SC)
• Standard Bank Namibia Ltd v Karibib Construction Services CC and Others 2019 (4) NR
1061 (SC)
• Botes v McLean and Others 2019 (4) NR 1070 (HC)
• Mberira v Chairperson of Board of Directors, Agricultural Bank of Namibia and Another 2019
(4) NR 1095 (HC)
• Christian t/a Hope Financial Services v Namibia Financial Institutions Supervisory Authority
2019 (4) NR 1109 (SC)
• GMTC I LLC v Fund Constituted from the Sale of the MV Palenque 1 and Others: MV
Palenque 1 2019 (4) NR 1142 (HC)
• RB v AB 2019 (4) NR 1160 (HC)
• MN v FN 2019 (4) NR 1176 (SC)
FLYNOTES

MILLER AND OTHERS NNO v PROSPERITY AFRICA HOLDINGS (PTY) LTD (SC)
SHIVUTE CJ, HOFF JA and FRANK AJA
2019 JUNE 26; JULY 30

Company—Winding-up—Liquidator—Foreign-appointed liquidator—Locus standi of—Requiring
recognition by court in Namibia—But liquidator requiring authorisation of principal and
principal being in liquidation and could not give authority, acts of liquidator could not be
ratified.

NAMIBIAN COMPETITION COMMISSION v NAMIB MILLS (PTY) LTD AND ANOTHER
(HC)
MASUKU J
2018 JULY 2; 2019 JULY 23

Trade and competition—Competition—Abuse of dominance—Test in s 26 of Namibian
Competition Act 2 of 2003—‘Per se’ test applicable.

S v JONAS (HC)
SHIVUTE J
2018 JUNE 4–14; 2019 MARCH 23; APRIL 24;
MAY 27; JUNE 10; JULY 31

Criminal law—Rape—Attempted rape—Such offence not covered under Combating of Rape
Act 8 of 2000 but could be covered under s 18(1) of the Riotous Assemblies Act 17 of 1956.

HAINDAKA v MINISTER OF URBAN AND RURAL DEVELOPMENT AND OTHERS (HC)
ANGULA DJP
2019 MAY 7; AUGUST 9

Customary law—Traditional authority—Powers of—Designation of chief—Right to nominate
chief vested in clan and not in individual—Death of nominated individual did not result in
evaporation of clan’s right to nominate successor—Chief’s counsel did not cease to exist after
death of chief—Traditional Authorities Act 25 of 2000, s 12.
Customary law—Traditional authority—Powers of—Designation of chief—Formalities—
Application for designation as chief—Non-compliance with formalities not necessarily resulting
in nullity—Traditional Authorities Act 25 of 2000, s 5.

LOPEZ v MINISTER OF HEALTH AND SOCIAL SERVICES (HC)
PARKER AJ
2018 OCTOBER 31; NOVEMBER 1, 8
2019 FEBRUARY 18–22; MARCH 13; JUNE 20; AUGUST 6, 9; SEPTEMBER 24

Delict—Causation—Medical negligence—Liability of doctor on duty when patient gave birth to
child who died within an hour—Patient suffering laceration during birth that led to profuse
bleeding—Doctor not enquiring as to condition of patient for four hours—Omission breaching
duty of care and death of patient regarded as within risk created by such omission.
Delict—Damages—Quantum—Medical negligence—Plaintiff’s daughter dying after giving birth
to baby who died within hour of birth—Mother suffering laceration during birth that led to
bleeding that was not properly attended to for four hours—Total amount of damages of
N$651 042 awarded.
STANDARD BANK NAMIBIA LTD v GROENEWALD AND OTHERS (HC)
USIKU J
2019 MARCH 11, 14; SEPTEMBER 6

Principal and surety—Deed of suretyship—Validity of—Spouses married in community of
property—Effect of provisions of s 7 of Married Persons Equality Act 1 of 1996 on suretyship
entered into by one spouse without approval of other spouse.

MV MCP PACHNA
BLUE SKY SHIPPING LTD AND ANOTHER v HELLENIC BANK PUBLIC COMPANY LTD
(HC)
NDAUENDAPO J
2019 AUGUST 13; SEPTEMBER 17

Shipping—Jurisdiction—Arrest of vessel—Court having jurisdiction by virtue of English
admiralty court having jurisdiction—Court furthermore having jurisdiction by virtue of owner
of vessel having agreed in mortgage deed to jurisdiction of court chosen by mortgagee.

NAMDEB DIAMOND CORPORATION (PTY) LTD v GASEB (SC)
MAINGA JA, SMUTS JA and HOFF JA
2018 APRIL 10; 2019 OCTOBER 9

Labour law—Dismissal—Fairness of—Misconduct—Proof of—Existence of specific rule in code
of conduct covering misconduct complained of—Employer not required to prove existence of
such rule where employee in breach of fiduciary duty not to work against employer’s
interest—Security officer failing to report theft of diamonds from diamond mine.

PROSECUTOR-GENERAL v ATLANTIC OCEAN MANAGEMENT (PTY) LTD AND ANOTHER
(SC)
SHIVUTE CJ, MAINGA JA and SMUTS JA
2019 JUNE 20; OCTOBER 9

Practice—Applications and motions—Ex parte application—Failure to disclose material facts—
Breach of uberrima fides rule—Court entitled to reconsider order irrespective of whether non-
disclosure wilful or mala fide.
Criminal procedure—Organised crime—Preservation order—Return date—Anticipation of—
Respondents entitled to anticipate return date—Drafters of POCA Regulations had been
careless in that they had not made distinction in applicability of regulations between
applications in terms of s 51(2) and s 91(2)—Prevention of Organised Crime Act 29 of 2004,
ss 51(2), 91(2); High Court Rules, rule 72; Regulations in terms of Prevention of Organised
Crime Act 29 of 2004.
Criminal procedure—Organised crime—Preservation order—Ex parte application—Appellant
required in terms of s 51 of POCA to justify or demonstrate to court legitimate reason to bring
application ex parte—Prevention of Organised Crime Act 29 of 2004, s 51.

STANDARD BANK NAMIBIA LTD v KARIBIB CONSTRUCTION SERVICES CC AND
OTHERS (SC)
MAINGA JA, HOFF JA and FRANK AJA
2019 APRIL 10; OCTOBER 9

Banker—Guarantee—Demand guarantee—What constitutes—Clear from terms of contract
that valid demand guarantee had come into existence.
Banker—Guarantee—Demand guarantee—Claim under—Defences—Fraud—Fraud relied upon
had to be in document rather than in underlying transaction—Underlying transaction irrelevant
to proceedings to enforce guarantee.
BOTES v MCLEAN AND OTHERS (HC)
MASUKU J
2016 MARCH 22–APRIL 1; NOVEMBER 21 2017; FEBRUARY 24;
OCTOBER 2–10; NOVEMBER 22 2018; APRIL 23 2019; SEPTEMBER 2

Practice—Rules of court—Witness statements—Requirements—Reading statement into
record—Whether slavish adherence to provisions of rule 93 of High Court Rules required.
Evidence—Witness—Calling, examination and refutation of—Witness statement—Language
employed in statement to be that of witness who would testify and use of legalese to be
avoided.
Contract—Interpretation—Employment contract—Whether term ‘all income’ referred to ‘gross
income’.

MBERIRA v CHAIRPERSON OF BOARD OF DIRECTORS, AGRICULTURAL BANK OF
NAMIBIA AND ANOTHER (HC)
CLAASEN AJ
2019 APRIL 10; OCTOBER 8, 15

Administrative law—Administrative action—Review—Agricultural Bank of Namibia Ltd—
Nature of—Bank unlike any other commercial bank had unique character and special role to
play as development financing institution—Agricultural Bank of Namibia Act 5 of 2003, s 4.
Administrative law—Administrative action—Review—Refusal of loan by Agricultural Bank of
Namibia Ltd—Refusal based on ground other than those prescribed in assessment criteria—
Applicant not having been given opportunity to be heard on matter—Decision set aside on
review—Agricultural Bank of Namibia Act 5 of 2003, s 4.

CHRISTIAN t/a HOPE FINANCIAL SERVICES v NAMIBIA FINANCIAL INSTITUTIONS
SUPERVISORY AUTHORITY (SC)
CHOMBA AJA, MOKGORO AJA and NKABINDE AJA
2019 MARCH 11; OCTOBER 7

Practice—Parties—Authority to institute proceedings—Power of attorney authorising legal
practitioner to appear on behalf of corporate entity—Minimum evidence required that of
resolution of corporation—Lack of resolution rendering subsequent proceedings nullity.
Practice—Parties—Authority to institute proceedings—Power of attorney authorising legal
practitioner to appear on behalf of corporate entity—Minimum evidence required that of
resolution of corporation—No resolution filed—Ex post facto ratification having no legal effect.
Appeal—Power of court of appeal—Rescission of default judgment having to be set aside
because of lack of authority of attorney to appear on behalf of corporate entity—Default
judgment however having been improperly obtained—Default judgment also set aside on
appeal and matter remitted to court a quo.

MV PALENQUE 1
GMTC I LLC v FUND CONSTITUTED FROM THE SALE OF THE MV PALENQUE 1 AND
OTHERS (HC)
NDAUENDAPO J
2018 OCTOBER 28; 2019 MARCH 28

Shipping—Admiralty action in rem—Ranking of claims—First preferred Panamanian ship
mortgage—Lender ranking above supplier of bunkers when permanent registration taking
place within six months of preliminary registration.
Shipping—Admiralty action in rem—Ranking of claims—Mortgage claims over necessaries
claims—Powerful reasons must exist to permit departure from recognised order.
RB v AB (HC)
ANGULA DJP
2019 OCTOBER 8; NOVEMBER 1

Marriage—Divorce—Proprietary rights—Settlement agreement—Variation order—Whether
order can be varied—Order a final order and not capable of being varied.
Marriage—Divorce—Proprietary rights—Settlement agreement—Interpretation of—Agreement
that jointly-owned home be used by mother and daughter until latter turned 25 or became
self-supporting—Mother and daughter left Namibia and let house but retained all rental
payments—That was contrary to purpose of agreement—Applicant entitled to debatement of
account.

                   THE BOTSWANA LAW REPORTS
                            [2017] 2
• Above 40 Degrees (Pty) Ltd v Premier Properties (Pty) Ltd [2017] 2 BLR 411 (HC)
• Ahuja v Busy Five Enterprises (Pty) Ltd and Another [2017] 2 BLR 531 (CA)
• Aphiri v Kgatleng Land Board and Another [2017] 2 BLR 100 (CA)
• Attorney-General v Iragi and Others; Attorney-General v Ngezi and Others [2017] 2 BLR
590 (CA)
• Attorney-General v Letsatsi Casino (Pty) Ltd and Another [2017] 2 BLR 190 (CA)
• Attorney-General v Sebota [2017] 2 BLR 360 (CA)
• B L Moalosi Enterprises (Pty) Ltd v Brown Khata & Sons (Pty) Ltd and Others [2017] 2 BLR
200 (CA)
• Baotsi v Quality Meat (Pty) Ltd [2017] 2 BLR 300 (CA)
• Barclays Bank of Botswana Ltd v Trans Wheels (Pty) Ltd t/a Ditech Tyre Services [2017] 2
BLR 205 (CA)
• Barrows and Another v The State [2017] 2 BLR 520 (CA)
• Bash Carriers (Pty) Ltd v Ravines (Pty) Ltd [2017] 2 BLR 309 (CA)
• Bathamile v The State [2017] 2 BLR 116 (HC)
• Becor Bricks (Pty) Ltd v Mupane Gold Mining (Pty) Ltd [2017] 2 BLR 494 (HC)
• Bohireleng v The State [2017] 2 BLR 365 (HC)
• Botswana International University of Science and Technology v Ndzinge [2017] 2 BLR 346
(CA)
• Botswana Landboards and Local Authorities Workers' Union and Others v Director of Public
Service Management and Others [2017] 2 BLR 427 (HC)
• Botswana Power Corporation v Baliki [2017] 2 BLR 69 (CA)
• Botswana Public Employees Union v Botswana Meat Commission [2017] 2 BLR 168 (IC)
• Bubble Estates (Pty) Ltd and Others v Stanbic Bank Botswana and Another [2017] 2 BLR 12
(CA)
• Chauto v The State (2) [2017] 2 BLR 214 (CA)
• Chauto v The State [2017] 2 BLR 104 (CA)
• Chibiya v Directorate of Public Prosecutions [2017] 2 BLR 424 (CA)
• Commander of Botswana Defence Force and Another v Tlhapisang and Another [2017] 2
BLR 244 (CA)
• Commissioner General, Botswana Unified Revenue Service v Electronic Amusements (Pty)
Ltd [2017] 2 BLR 304 (CA)
• Commissioner of Police and Another v Lesole [2017] 2 BLR 586 (CA)
• Dabilo v Botswana Savings Bank [2017] 2 BLR 647 (IC)
• Dade v The State [2017] 2 BLR 26 (CA)
• Des Supermarkets (Pty) Ltd t/a Food Lovers Market v Chancery Investments (Pty) Ltd
[2017] 2 BLR 441 (CA)
• Dick v Maikano [2017] 2 BLR 394 (HC)
• Director of Public Service Management and Others v Botswana Landboards, Local Authorities
and Health Workers' Union and Others [2017] 2 BLR 673 (CA)
• Director of Public Service Management and Others v Ranko; In Re Ranko v Director of Public
Service Management and Others [2017] 2 BLR 691 (HC)
• Directorate of Public Prosecutions v Nthebolang [2017] 2 BLR 23 (CA)
• Eleck v Chuma [2017] 2 BLR 217 (CA)
• First National Bank of Botswana Limited v Shabane and Others [2017] 2 BLR 409 (HC)
• Fouche v Slums Enterprises (Pty) Ltd t/a Slums Transport and Slums Travel and Tours and
Another [2017] 2 BLR 448 (HC)
• Goodwin v SMC Brands (Pty) Ltd [2017] 2 BLR 120 (IC)
• Gritty Holdings v Mbish and Another [2017] 2 BLR 293 (CA)
• Gunda v The State [2017] 2 BLR 338 (CA)
• Gwaranti v Establishment Secretary and Another [2017] 2 BLR 51 (CA)
• Hypolite v Laurelton Diamonds Botswana (Pty) Ltd [2017] 2 BLR 224 (CA)
• Kahwema v First National Bank of Botswana Ltd [2017] 2 BLR 96 (CA)
• Kavindama v Gaborone City Council [2017] 2 BLR 400 (HC)
• Kefitile v Commissioner of Prisons and Rehabilitation and Another [2017] 2 BLR 482 (HC)
• Keorapetse v The State [2017] 2 BLR 230 (CA)
• Keotshabe v The State [2017] 2 BLR 20 (CA)
• Kgabo Civil Works (Pty) Ltd v Attorney-General and Others [2017] 2 BLR 471 (HC)
• Kgaogano v Mupane Gold Mining (Pty) Ltd [2017] 2 BLR 1 (CA)
• Kgomotso v The State [2017] 2 BLR 233 (CA)
• Koko v Ministry of Education and Skills Development and Others [2017] 2 BLR 90 (HC)
• Kossery v Worldwide Commodities (Pty) Ltd [2017] 2 BLR 86 (IC)
• Kweneng District Council v Gaamangwe [2017] 2 BLR 525 (CA)
• Lekwapa v Attorney-General and Another [2017] 2 BLR 570 (CA)
• Lianguing and Another v Zimbeva [2017] 2 BLR 237 (CA)
• Mabiza Plant Hire v Botswana Unified Revenue Service and Others [2017] 2 BLR 556 (CA)
• Machana v Murray and Roberts [2017] 2 BLR 126 (IC)
• Maiteko Syndicate v Bojelaphitshana Syndicate and Another [2017] 2 BLR 132 (HC)
• Mangadi v Directorate of Public Prosecutions [2017] 2 BLR 181 (HC)
• Marapo Construction (Pty) Ltd and Others v First National Bank of Botswana Ltd [2017] 2
BLR 81 (CA)
• Masie v Okehi and Others [2017] 2 BLR 93 (HC)
• Masilompane v Masilompane and Others [2017] 2 BLR 43 (CA)
• Mathaio v The State [2017] 2 BLR 513 (CA)
• Mathumo v The State [2017] 2 BLR 387 (HC)
• Mbaiwa v Kapimbua [2017] 2 BLR 260 (CA)
• Mido Construction (Pty) Ltd v Mokgotle [2017] 2 BLR 547 (CA)
• Mokganedi v The State [2017] 2 BLR 508 (HC)
• Molefe v Motlaleng [2017] 2 BLR 176 (HC)
• Mompati v Botswana Postal Services t/a Botswana Post and Others [2017] 2 BLR 421 (CA)
• Moroka and Another v Ministry of Labour & Home Affairs and Another [2017] 2 BLR 153 (IC)
• Morotsi v The State [2017] 2 BLR 332 (CA)
• Mosweu v Ministry of Education and Skills Development and Another [2017] 2 BLR 565 (IC)
• Motlhasedi v The State [2017] 2 BLR 49 (CA)
• Motor Vehicle Accident Fund v Mogale [2017] 2 BLR 695 (HC)
• Moyo v The State [2017] 2 BLR 383 (HC)
• Mpusetsang v The State [2017] 2 BLR 75 (CA)
• Mupane Gold Mine v Makuku [2017] 2 BLR 543 (CA)
• Nasha v Water Utilities Corporation and Others [2017] 2 BLR 31 (CA)
• National Amalgamated Local and Central Government and Parastatal Workers' Union v
Botswana Power Corporation and Another [2017] 2 BLR 160 (IC)
• Ncube v The State [2017] 2 BLR 113 (HC)
• Northern Ranching (Pty) Ltd v Botswana Meat Commission [2017] 2 BLR 285 (CA)
• Nthite v Moagi and Another [2017] 2 BLR 40 (CA)
• Permanent Secretary to the President and Another v Botswana Public Employees Union and
Another [2017] 2 BLR 626 (CA)
• Pitse-E-Tshweu (Pty) Ltd and Others v National Development Bank [2017] 2 BLR 61 (CA)
• PKB House (Pty) Ltd and Another v Stanbic Bank Botswana Ltd; In Re: Stanbic Bank
Botswana Ltd v PKB House (Pty) Ltd and Another [2017] 2 BLR 375 (HC)
• Poloko v The State [2017] 2 BLR 561 (CA)
• President of the Republic of Botswana and Others v National Amalgamated Local Central
Government and Parastatal Workers' Union and Others [2017] 2 BLR 134 (CA)
• Price v Rann and Others [2017] 2 BLR 667 (CA)
• Rutang v Rutang [2017] 2 BLR 406 (HC)
• Sebataladi v The State [2017] 2 BLR 583 (CA)
• Sibanda v The State [2017] 2 BLR 578 (CA)
• Simba and Another v The State [2017] 2 BLR 280 (CA)
• Simololang v The State [2017] 2 BLR 7 (CA)
• Sperring v Registrar of Births and Deaths and Another [2017] 2 BLR 368 (HC)
• Sprint Couriers (Pty) Ltd v Skynet Botswana (Pty) Ltd [2017] 2 BLR 255 (CA)
• Surveying Services Botswana (Pty) Ltd v Vanqa and Another [2017] 2 BLR 517 (CA)
• Tau v The Francistowner (Pty) Ltd t/a The Voice and Others [2017] 2 BLR 501 (HC)
• Thipe (Nee Sebeo) v Thipe and Another [2017] 2 BLR 65 (CA)
• Tiphe Transport Holdings (Pty) Ltd v Thebe and Others [2017] 2 BLR 419 (CA)
• Tirelo v Botswana Football Association [2017] 2 BLR 185 (IC)
• Tours of Africa (Pty) Ltd and Another v Standard Chartered Bank of Botswana and Another
[2017] 2 BLR 325 (CA)
• Tselayarona v The State [2017] 2 BLR 614 (CA)
• Tshosa v Attorney-General [2017] 2 BLR 272 (CA)
• Tsodilo Services (Pty) Ltd t/a The Sunday Standard and Others v Matambo [2017] 2 BLR
313 (CA)
• Tyre Fix (Pty) Ltd and Another v Chevron (Botswana) (Pty) Ltd [2017] 2 BLR 107 (CA)
• Wadimo v The State [2017] 2 BLR 574 (CA)
• Willy Kathurima & Associates (Pty) Ltd v Hlabano [2017] 2 BLR 252 (CA)
• Yardstick Services (Pty) Ltd and Another v Feune (Pty) Ltd and Another [2017] 2 BLR 466
(HC)
• Zac Construction (Pty) Ltd v Chalebgwa [2017] 2 BLR 156 (HC)
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