High Court Main Division

Criminal Law – Discharge of accused in terms of s 174 of the Criminal Procedure Act 51 of 1977 – Criminal Procedure – Trial – Discharge of accused at close of States case in terms of s 174 of Criminal Procedure Act 51 of 1977 – Whether there is evidence on which a reasonable court acting carefully may convict – Principles restated Approach by court and guidelines set out in S v Nakale and S v Teek followed.

Opposed motion – Inmates being granted remission – Effect of remission on date of eligibility on Parole – Section 115 of the Correctional Service Act – Grammatical and contextual meaning and interpretation of ‘term of imprisonment’ clarified – No effect of remission on date of eligibility of parole in terms of section 115 of the Correctional Service Act – Offender only eligible on serving 2/3 of the term of imprisonment as imposed by the court of law and not on remitted sentence.

Interpretation of the Communal Land Reform Act 5 of 2002 – section 15(2) – where a local authority is established within the boundaries of any communal land, that local authority area shall not be communal land – Section 20 - The primary power to allocate or cancel any customary land right in respect of any portion of land in the communal area of a traditional community vests (a) in the Chief of that traditional community or (b) where the Chief so determines, in the Traditional Authority of that traditional community – Section 28 – Customary land rights should be registered to be recognised.

Law of delict – Motor Vehicle Accident – Damages – Insurance Claim – Interpretation of insurance contracts – Court to determine the exclusionary term of the insurance contract that a driver must not leave the scene of the accident before the police or ambulance arrives.

Criminal Law – Appeal – Appeal on findings of fact by court a quo – Stock theft – No written declaration or oral evidence that the couple made declaration – Marriage contracted out of community of property – Complainant appointed as executor of estate and thus lawful possessor – Conviction particulars – Appeal partly succeeds against conviction and sentence.

Criminal Law – Sentence – Culpable homicide – Degree of culpability – Extent of the negligence plays role – Sentence should be neither too severe, nor too light – Remorse sincere – Blameworthiness diminished, to some extent, as accused went to assist father, but the consequence of the act cannot be disregarded – Accused first offender – Easy use of knife and multiple stabs constitute factors in aggravating – Partly suspended term of imprisonment appropriate in circumstances.

Law of contract - Section 8(1)(a) of the Married Persons Equality Act 1 of 1996 allows a transaction entered into without following the provisions of section 7(1)(h) to be deemed to have been entered into with the consent of the other spouse if the other person does not know and cannot reasonably have known that the transaction was entered into without the requisite consent. 

Execution — Sale in execution — Immovable property — Application to declare immovable property specially executable — Duty of court where immovable property is primary home of legally unrepresented debtor — Judicial oversight required.

Practice — Rules of the High Court — Rule 108 — In exercising judicial oversight, court must consider all relevant circumstances including 'less drastic measures than a sale in execution'.

Evidence — Factual disputes —  Evidence — Witnesses — Calling, examination and refutation — Two mutually destructive versions — Onus on plaintiff — Probabilities favoured plaintiff on occurrence of assault, but plaintiff did not prove the extent of his injuries. 

Criminal Procedure – Admissibility of Statements – Oral vs Written – Voluntariness – Right to Legal Representation – Search and Seizure – Validity and Execution of Warrant – Articles 12 and 13 of the Constitution – Application of S v Shikunga and S v Namwandi – Discretionary Exclusion of Unconstitutionally Obtained Evidence – Balancing Fair Trial Rights and Public Interest.

Civil Procedure – Urgent application and the requirements to be met by applicant therefor – Doctrine of compromise discussed and applied – Appropriateness of granting an order for stay of execution when there is no further step anticipated – Judicial oversight as envisaged in rule 108 reconsidered – Whether the court is at large, where circumstances demand to deal with the rule 108 enquiry afresh – circumstances in which court may grant orders and their further and/or alternative relief.

Winding-up – Close corporation – Section 68(c), read with section 69, and section 68(d) of the Close Corporations Act 26 of 1988 – Endorsements required on the execution officer’s return for deemed inability to pay debts under section 69(1)(b) – Proof to the court’s satisfaction that the corporation is unable to pay its debts for deemed inability to pay debts under section 69(1)(c) – Right ex debito justitiae to winding-up order when a valid debt is established and the debtor is unable to pay its debts – Advantage to creditors not required in corporation’s liquidation – Section 68(d) not a catch-all liquidation ground but a special ground under which special features of the way a corporation is being run is questioned to the point of seeking its liquidation and it requires facts supporting the conclusion that it would be just and equitable to liquidate the corporation – Misjoinder of corporation’s sole member as a party to the liquidation application.

Practice – Contract – Onus rests on plaintiff to prove existence of contract. Evidence — Witnesses — Calling, examination and refutation — Two mutually destructive versions — Onus on plaintiff — Probabilities favoured plaintiff.  

Evidence – Witnesses – Cross-examination – If party fails to cross-examine – Party whose witness not cross-examined is entitled to assume that witness's evidence accepted unless it is so absurd, fantastic or of so romancing a nature that no reasonable person can believe it. Civil procedure – Pleadings –  Replication – Principles applicable to the delivery of replications restated.

Practice – Applications and motions – Eviction – Immovable property declared specially executable – Deputy Sheriff vested with statutory duty to pass transfer to a purchaser of the property sold in execution – Where the registered owner of the property frustrates the efforts of the Deputy Sheriff to do so, eviction of the registered owner is permissible in the circumstances – Eviction order granted.

Civil procedure – Discovery – Rule 28 – Application to compel discovery of specified documents – Relevance of the documents sought analysed – Request found to constitute a fishing expedition – Application to compel discovery refused with costs.

Criminal Procedure – Appeal – Against sentence – Interference by court of appeal – Sentencing essentially falling within discretion of trial court – Court to balance interest of individuals, society and purposes of sentencing – Consideration of comparable cases – No misdirection by the court a quo when exercising its judicial function. 

Civil proceedings – Points in limine – Request to vary settlement agreement – Parties may by mutual consent modify their agreement – The court may modify its order accordingly – Failing an agreement between the parties, the court cannot vary its order – Third point in limine upheld – Contempt of court – Distinction between civil and criminal contempt – Proof of standards – Criminal sanctions – Proof beyond reasonable doubt – Civil remedies – Balance of probabilities.

 Legislation – Prevention of Organised Crime Act 29 of 2004, (‘POCA’) – Condonation – Section 60(1) of POCA – Applicant applying for condonation for failure to timeously give written notice of intention to oppose the making of a forfeiture order within the time limit contained in s 52(3) read with s 52(4) of the POCA — Application for condonation lodged out of time — Court does not have inherent power to condoning non-compliance with time period stipulated in s 60(1).

Appeal – Late filing of notice of appeal – Application for condonation – Non-compliance with rule 67 of the Magistrates’ Court Rules – Court in determining application for condonation – Two requirements – First leg – Acceptable and reasonable explanation for cause of delay – Second leg – Prospects of success – Basis to be led – Explanation for late noting of appeal not reasonable and acceptable – No prospects of success on appeal – Application for condonation is refused.

Criminal Procedure – Appeal – Sentence – Appellant convicted of two counts of housebreaking with intent to steal and theft – Sentenced to effective nine years imprisonment – Previous conviction on similar offence – No misdirection on the part of magistrate in imposing the sentence – Appeal dismissed.

Applications and motions – Members of the National Assembly withdrawn from the Assembly purportedly on the ground that they have ceased to have qualifications which rendered them eligible to be members of the Assembly in terms of article 48(1)(a) of the Constitution –  Court finds that first respondent was entitled to withdraw the second and third applicants from the National Assembly in terms of article 48(1)(b) of the Constitution – Reference to an incorrect article does not render the withdrawal unconstitutional – Applicants` application dismissed with costs.

Summary judgement – On summary judgement, monetary claims brought together with the relief to declare the immovable property executable – Prescripts of rule 60 on Summary Judgement considered on whether an order declaring the immovable property executable can be granted at summary judgment stage.

Criminal Procedure – Appeal against sentence – Dealing in dangerous dependence-producing drugs (Cannabis) – Section 2 of Act 41 of 1971 – Sentence of 6 years’ imprisonment – First offender – Guilty plea under s 112(2) of Act 51 of 1977 – Whether sentence induces a sense of shock or is disproportionate – Sentencing discretion of trial court – No material misdirection found – Appeal dismissed.

Civil action for damages – Inmate kept in single cell or solitary confinement for a period of 31 days without reason and without any disciplinary hearing – Such confinement alleged to have constituted inhuman and degrading treatment – Deprivation of the right to associate with fellow inmates and right to exercise in terms of section 205 of the Correctional Service Act – Such confinement alleged to have contributed to emotional and physiological harm – Damages sought in the amount of N$100 000 – Evidence and probabilities not establishing any unlawful or wrongful conduct of the defendants - Claim dismissed.

Criminal law – Murder – Self defense – Requirements – Naftali approach to weighing private defense – Accused’s version supported by state’s evidence – Dolus eventualis – components of dolus eventualis as set out in Humphreys – Intention not proven, but accused went overboard in his defence – Accused ought reasonably to have realized that his conduct was excessive and he was thus negligent in his actions – Convicted of competent verdict of culpable homicide.

Criminal Procedure – Sentence – Murder with direct intent – Committed in context of domestic violence – Deceased assaulted with an axe in the face and head – Accused pleaded self defence which was rejected by court – Act committed in presence of two minor children – Sentencing objectives of retribution and deterrence weigh more and the interest of the accused and rehabilitation recede to the background.

Practice —  Judgments and orders — Default judgment —  Rescission of — Under common law  —  Grounds for —   An applicant must show good gause by giving a reasonable explanation for the default and must show a bona fide defence to the claim which prima facie has some prospects of success — The Court's discretion extends beyond the grounds provided for in Rule 103.

Practice — Applications and motions — Affidavits — Application to file further set of affidavits — Rule 66(2) — Reasonable explanation must be provided  — Applicant’s reasons vague and unsupported — insufficient evidence provided for the court to exercise its discretion.

Civil trial - Damages from a motor vehicle collision - Application for absolution from the instance and the principles applicable thereto - Failure to lead evidence on damages allegedly suffered and the effect thereof - The failure by the plaintiff to prove that he complied with the terms of the written insurance contract - Failure to call witnesses and the inference drawn therefrom.

Civil Procedure – Absolution from the instance – The plaintiff must make out a case that on the evidence led, a court applying its mind reasonably, could or might (not should nor ought to) find for the plaintiff in respect of the elements of the claim, failing which, a court may grant absolution at the end of the plaintiff’s case.

Criminal Procedure – Trial – Application in terms of s 174 of the CPA – Test to be applied – Whether there is evidence on which a reasonable court acting carefully may convict – No specific formula or test to be applied to all cases when deciding whether or not to discharge – Each case to be decided on its own merit.