Court : South Africa Supreme Court of Appeal
on appeal from:limpopo high court, thohoyandou (hetisani j sitting as the sentencing court): 1. the appeal against conviction is dismissed. 2. the appeal against sentence is upheld. 3. the sentence of 30 years imprisonment imposed by the court below is replaced with 15 years imprisonment, antedated to 13 october 2001. judgment willis ja (maya, shongwe, pillay jja and zondi aja concurring): [1] this is an appeal against the conviction and sentence of 30 years imprisonment on a count of rape of a nine-year old girl. the appellant was arraigned before the regional court at thohoyandou. the allegations against him were that he had sexual intercourse with a child without her consent at the fandani village on 29 january 2001. [2] there are certain deficiencies in the record. most troubling is that parts thereof are missing. nevertheless, after some debate and the granting by this court of a number of different applications for condonation with the concurrence of the opposing sides, there was sufficient clarity for this court to move forward without risking injustice to any affected party. [3] on 13 october 2001 the appellant appeared before the learned magistrate, mrndou. his rights to legal representation were explained to him. he was duly warned that, if convicted, he was at risk of being sentenced to life imprisonment in terms of section 52 of the criminal law amendment act 105 of 1997 (the act). the appellant, who was 18 years old at the time, elected to conduct his own defence .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: north gauteng high court (pretoria) (goodey aj sitting as court of first instance): the appeal is dismissed with costs. judgment ponnan ja (majiedt ja, erasmus, swain and zondi jja concurring): [1] the outcome of the dispute in this appeal turns on an interpretation of s 118(3) of the local government: municipal systems act 32 of 2000 (the act) read with s 118(1). to the extent here relevant those subsections provide: '(1) a registrar of deeds may not register the transfer of property except on production to that registrar of deeds of a prescribed certificate (a)issued by the municipality or municipalities in which that property is situated; and (b)which certifies that all amounts that became due in connection with that property for municipal service fees, surcharges on fees, property rates and other municipal taxes, levies and duties during the two years preceding the date of application for the certificate have been fully paid. (1a) a prescribed certificate issued by a municipality in terms of subsection (1) is valid for a period of 60 days from the date it has been issued. (3) an amount due for municipal service fees, surcharges on fees, property rates and other municipal taxes, levies and duties is a charge upon the property in connection with which the amount is owing and enjoys preference over any mortgage bond registered against the property. [2] the facts giving rise to the dispute are either common cause or undisputed. during 2010 the first .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from:kwazulu-natal high court, pietermaritzburg (koen j sitting as court of first instance): 1. the appeal is upheld. 2. the order of the court below fixing a non-parole period of 13 years is set aside. judgment petse ja (maya, shongwe, leach jja and mbha aja concurring): [1] the principal issue for determination in this appeal is whether s 276b(2) of the criminal procedure act 51 of 1977 (the act) impels a court which sentences a person to imprisonment, following a conviction for two or more offences where the sentences of imprisonment are ordered to run concurrently, to fix a non-parole period in respect of the effective period of imprisonment. the subsidiary issue is whether or not the appellant had a right to be heard before the court below invoked s 276b(2) of the act. [2] it is necessary at the outset to mention, by way of background, a brief narrative of certain facts and circumstances, which bear on the questions to be decided in this appeal, as they emerge from the record. [3] the appellant was convicted in the kwazulu-natal high court, pietermaritzburg (koen j) on one count of murder, possession of a fully automatic firearm (an ak47 assault rifle) without a licence to possess such firearm and possession of five rounds of live ammunition (7.62 mm) without the required licence. [4] he was sentenced to 20 years imprisonment on the murder count and five years for both unlawful possession of a prohibited firearm and ammunition. the court below directed that the .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: western cape high court, cape town (koen aj sitting as court of first instance): the following order is made: 1. the appeal against conviction is dismissed. 2. the appeal against sentence is upheld and the sentence of 15 years imprisonment imposed upon each of the appellants is set aside and replaced with the following: first appellant is sentenced to ten years imprisonment. second appellant is sentenced to ten years imprisonment. which sentences are, in terms of s 282 of the criminal procedure act 51 of 1977, to run from the date of sentencing, being 29 july 2010. judgment swain aja (mpati p, tshiqi, pillay jja and southwood aja concurring): 1. the appellants with the leave of the western cape high court (koen aj) appeal against their convictions of robbery with aggravating circumstances and the sentences of 15 years imprisonment which were imposed upon each of them. 2. the first and second appellants stood trial as first and second accused respectively, and were convicted with a third accused, but at the stage of sentencing, the proceedings against the third accused were adjourned to allow for a psychiatric examination to be conducted upon this accused, in terms of s 78(2) of the criminal procedure act 51 of 1977 (the act). the relevance of this issue will become apparent when dealing with the sentences imposed upon the appellants. 3. the sole issue in regard to the appeals against conviction is whether as a question of fact, aggravating circumstances were .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: eastern cape high court, grahamstown (schoeman, roberson jj and grogan aj sitting as a court of appeal) the appeal against the sentence of imprisonment for life is dismissed. judgment bosielo ja (brand, heher, malan and pillay jja concurring): [1] the appellant was convicted on his plea of guilty of the rape his twelve year old daughter in the regional court, port elizabeth on 29 october 2009. having found no substantial and compelling circumstances as envisaged by s 51(3)(a) of the criminal law amendment act 105 of 1997 (the act) the appellant was sentenced to imprisonment for life in terms of s 51(1) of the act. the appellant appealed to the eastern cape high court, grahamstown (schoeman, roberson jj and grogan aj) which dismissed the appeal on 20 december 2010 by a majority of two to one. the appellant is appealing against that judgment with the leave of the court below. [2] as the appellant had pleaded guilty to the charge, the material facts surrounding the commission of this offence are very scanty. suffice to state that the appellant admitted that he had unlawful sexual intercourse with the complainant, and, importantly that he knew that she was below the age of sixteen years at the time of the commission of the offence. in fact she was twelve years old during the sexual intercourse. [3] the nub of the appellants attack against the imposition of life imprisonment is that the majority of the members of the court erred in not finding (a) that the sentence .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from:north west high court, mafikeng (hendricks and kgoele jj sitting as court of appeal): 1. the appeal is upheld. 2. the conviction and sentence imposed by the magistrate are set aside and substituted with the following: the appellants conviction is quashed and the sentence is set aside. judgment tshiqi ja (navsa and wallis jja and petse and ndita ajjaconcurring) 1. the issue that determines the outcome of this appeal is whether the trial court, having decided not to have the complainant take the oath or affirmation in terms of s162 and s163 of the criminal procedure act 51 of 1977, properly administered the admonition in due compliance with s164 and s165 of the criminal procedure act. 2. the appellant was charged with rape, read with s51(1) of criminal law amendment act 105 of 1997 and with s94 of the criminal procedure act, it being alleged that he had sexual intercourse with the complainant, a female aged 24 years, who was mentally retarded. he was convicted and sentenced to the prescribed minimum term of 15 years imprisonment.1his appeal to the north west high court, mafikeng, was dismissed. he now appeals to this court with leave of that court, against both the conviction and sentence. summary of facts 3. the appellant and the complainant were neighbours and knew each other very well. it is common cause that on 31 may 2005, they were found by the second state witness, one t (also a neighbour and a close family friend) at the complainants home. t had visited .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: north west high court (mafikeng) (hendricks j and kgoele and moloto ajj sitting as full court): the appeal is upheld with costs. the order of the full court is set aside and replaced with an order in the following terms: the appeal of the liquidators is upheld with costs. the cross-appeal of the defendant is upheld with costs. the order of the trial court is amended to read: claim and counterclaim are both dismissed with costs. judgment harms dp (nugent and bosielo jja concurring) introduction [1] the plaintiffs (the present respondents) are the joint liquidators of agrichicks (pty) ltd (in liquidation). the defendant, mr f j smith, farms in the zeerust district. initially, the plaintiffs sued mr smith for goods sold and delivered but later amended their summons and filed a declaration claiming payment of r469 604.96 allegedly due in terms of a written innominate agreement between mr smith and the company. the declaration quoted the terms of the agreement extensively and concluded by alleging that the company had performed all its obligations in terms of the agreement and that the said amount was owing in respect of day old chickens, poultry feed, medication and vaccination delivered to mr smith under the agreement. mr smith admitted the agreement but denied liability based on breaches by the company. in essence his plea raised the exceptio non adimpleti contractus. he, in addition, instituted a counterclaim for damages, alleging that the company had breached .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from western cape high court, cape town (binns-ward j sitting as court of first instance) the appeal is dismissed with costs. judgment lewis ja ( ponnan and willis jja concurring) [1] this appeal concerns the validity of a sale of a house in execution of a judgment debt. the only issue to be determined is whether the failure to comply with one of the requirements for such sales vitiated the sale which should accordingly be set aside. sales of immovable property in execution of judgments are governed by rule 46 of the uniform rules of court. non-compliance in this matter, which was admitted, was in respect of rule 46(7)(e) which requires that: not less than 10 days prior to the date of the sale, the sheriff conducting the sale shall affix one copy of the notice on the notice-board of the magistrates court of the district in which the property is situate, . . . and one copy at or as near as may be to the place where the said sale is actually to take place. a copy was not affixed at or near the property to be sold in execution. all other requirements of the rule were met. [2] the appellant, ms elizora todd, formerly a co-owner of the property, brought an application in the western cape high court for an order that the sale be set aside. binns-ward j held that the failure by the deputy sheriff to affix the notice at or as near as may be to the property did not go to the root of the matter and did not invalidate the sale by auction that took place. the appeal against the .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: eastern cape high court, grahamstown (smith j sitting as court of first instance): the appeal is upheld with costs on an attorney and client scale, and the order of the court a quo is set aside and replaced with the following. the application is dismissed with costs on an attorney and client scale. judgment mthiyane dp (majiedt ja and van der merwe, swain and mbha ajja.concurring) [1] the respondent, michael wharton randell, is a duly admitted attorney of the high court practising as such in port elizabeth. he is currently facing charges of fraud and theft involving a sum of r2,4 million which he together with two other persons are alleged to have misappropriated while they were trustees of the greenwood property trust (the trust), the sole beneficiary of which was the greenwood primary school, port elizabeth (the school). the criminal proceedings against the respondent are still pending. [2] prior to the disposal of the criminal proceedings of the appellant, the law society of the cape of good hope, launched an application in the eastern cape high court for the removal of the respondents name from the roll of attorneys. the application is based on the same facts which are the subject of the criminal proceedings pending against the respondent in the commercial crimes court in port elizabeth. without filing an answering affidavit in opposition to the application to strike him off, the respondent launched a counter application for a stay of the striking off .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: north gauteng high court, pretoria (ledwaba, msimeki and tlhapi jj, sitting as a court of appeal): 1. the appeal is upheld and the order of the court below dismissing the appeal is set aside and replaced with the following: 1. the appeal is upheld. 2. the appellants conviction for murder is set aside and replaced by a conviction for assault with intent to commit grievous bodily harm. 3. the appellants sentence is set aside and replaced by a sentence of four years imprisonment. judgment petse aja (mthiyane dp, maya, malan, and wallis jja concurring): [1] on 11 may 2007 the appellant was convicted in the regional court sitting in schweizer-reneke on a charge of murder. on 8 november 2007 he was sentenced to ten years imprisonment. [2] disenchanted with his conviction and sentence he appealed against both to the north gauteng high court, pretoria with leave granted by it on petition. that court subsequently dismissed the appeal in a judgment by ledwaba j, with msimeki and tlhapi jj concurring. he now appeals to this court with leave granted by the court below on 12 november 2010. [3] the deceased, thulasizwe hlatswayo, died on 13 february 2006 from the consequences of a subdural haemorrhage. prior to that he had been subjected to various assaults by different people including the appellant. the problem, however, is that the medical evidence is insufficient to establish beyond a reasonable doubt which of these assaults caused his death. the factual circumstances .....
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