Court : South Africa Supreme Court of Appeal
..... are suspected persons, in such cases, to be allowed to be at large, however serious the offence which their conduct is believed in law to constitute? ..... indeed a court should be obliged to and therefore ought to intervene if there is no reasonable and probable cause to believe that the accused is guilty of an offence before a prosecution is initiated. ..... cause to believe that the accused is guilty of an offence before a prosecution is initiated . . . ..... what of cases where the facts are known with certainty but a genuine doubt exists as to whether those facts constitute an offence? .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... reasonable belief that the vehicles were concerned in the commission of an offence (that is, that there was no compliance with s 20) [of the cpa], we see no reason why, when the vehicle is in the possession of the police, and they ascertain that there are indeed such grounds for a reasonable belief that the item is concerned in the commission of an offence such as the tampering with engine and chassis numbers they ..... procedure act 51 of 1977 (cpa) entitled the appellant to the summary restoration of his vehicle when his consequent possession of the vehicle would have been without lawful cause and thus an offence as contemplated in s 68(6)(b) of the national road traffic act 93 of 1996 (the act). ..... 89(3) of the act in turn provides that a contravention of s 68(6)(b)constitutes an offence for which the accused is, on conviction, liable to a fine or imprisonment for ..... s 89(3) of that act, contravention of s 68(6) amounts to a criminal offence rendering an accused liable on conviction to a fine or imprisonment not exceeding ..... to unqualified restoration of possession of his spoliated gambling machines, even though his possession thereof constituted a contravention of the provisions of s 9(1) of the national gambling act 7 of 2004 and a criminal offence under s 82 of that act. ..... the present matter, which is that restoration of possession is not possible10because the possession thereof by the spoliated person would not only be unlawful but would in fact constitute a criminal offence. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... this approach is unacceptable.4 [14] in order for a conviction of rape to be sustained, the state has to prove beyond a reasonable doubt that all the elements of the offence are present and that the act was committed by the person so charged. ..... the appellant pleaded not guilty to the charge and denied the offence, he did not disclose the basis of his defence at the plea stage. ..... it was therefore incumbent upon the state to prove all the elements of the offence, including the identity of the perpetrator, beyond a reasonable doubt. ..... [20] in my view, the state failed to prove all the elements of the offence, more particularly sexual penetration. ..... an important element of the offence that the state must prove is that penetration took place as is required in law. ..... he was not in the area on 23 june 2004 when the incident is alleged to have occurred and it was therefore impossible for him to have committed the offence. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: south gauteng high court, johannesburg (boruchowitz j sitting as court of first instance): 1. the appeal is upheld with costs. 2. the order of the high court is set aside and is substituted with the following order: the defendants are ordered jointly and severally to pay to the plaintiffs the sum of r449 499 together with interest thereon at the rate of 15.5 per cent per annum from the date of judgment, being 23 september 2011, and costs of suit including the qualifying fees of mr visagie. judgment swain aja (lewis, maya and cachalia jja and erasmus aja concurring): 1. a thatch roof that leaked prior to the sale of a house by the respondents to the appellants, and which continued to leak after the sale, gave rise to the present dispute between the parties. 2. the main claim advanced before the south gauteng high court (boruchowitz j) by the appellants, was based upon the actio quanti minoris, in which a reduction in the purchase price was sought, being the cost of repairing the roof, to cure the leaks. the agreement of sale contained a voetstoots clause. this placed the added burden upon the appellants of not only proving the existence of the latent defects in the roof, but also that the respondents were aware of these defects which caused the roof to leak, and thereby fraudulently neglected to inform the appellants of their existence. 3. two further alternative causes of action were advanced by the appellants. one was based upon a fraudulent misrepresentation .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... [2] section 521as it then stood required a regional court, when it has convicted an accused person of an offence for which life imprisonment is the prescribed sentence, to stop the proceedings and commit the accused for sentence by a high court. ..... the residual discretion to decline to pass the sentence which the commission of such an offence would ordinarily attract plainly was given to the courts in recognition of the easily foreseeable injustices which could result from obliging them to pass the specified sentences come what may. ..... appellants conduct in my view was sufficiently reprehensible to fall within the category of offences calling for a sentence both reflecting the courts strong disapproval and hopefully acting as a deterrent to others minded to satisfy their carnal desires with helpless children. ..... there comes a stage at which the maximum sentence is appropriate to an offence and the fact that the same sentence will be attracted by an even greater horror means only that the law can offer nothing more. ..... so in terms, it is evident from the tenor of its judgment that before it imposed the prescribed sentence, it had assessed, upon a consideration of all the circumstances of this case, whether the prescribed sentence was indeed proportionate to the offence charged (see eg s v vilakazi2009 (1) sacr 552 (sca) para 15). .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: western cape high court (gamble j sitting as court of first instance) the appeal is dismissed with costs. judgment ponnan et saldulker jja (maya, leach and swain jja concurring): [1] this appeal, with the leave of the court below, concerns the validity of a suretyship. judgment was granted by the western cape high court (gamble j) in the sum of r16 631 071,41, together with interest and costs, in favour of the respondent, structured mezzanine investments limited (smi), against the first appellant, gerhardus adriaan odendal (odendal) and the second appellant, gabriel joshua jordaan (jordaan) in terms of that deed of suretyship (the suretyship) which had been signed by the appellants and francois basson (basson), who were the trustees of fxt property trust (the trust), as security for a loan to the trust. [2] on 18 february 2008, smi, a bridging financier, approved an application by the trust for a loan facility in the amount of r10 million to partly fund a sectional title development by the trust in hermanus. in its letter of approval, smi recorded, inter alia, that as security for the loan a second mortgage bond would have to be registered over erf 10965 hermanus (the property), the trustees would have to bind themselves as sureties for all of the trusts obligations, and an irrevocable guarantee would have to be furnished on behalf of the trust to smi. the terms and conditions recorded in the facility letter were accepted by basson on behalf of the trust by .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... of sentences passed under the act shows that non-custodial sentences are usually imposed for this particular offence, although each case must of course be decided on its own merits. ..... the problem is that no facts concerning the commission of the offence can be gleaned from the judgment and no reasons are furnished for the imposition of the maximum permissible sentence in terms of ..... appellant was charged under the act, since the offence was committed when that act was still in ..... [6] the maximum competent sentence for this particular offence, in terms of s 39(1)(i), read with s 39(2)(d) of the act, at that time was a fine not exceeding r4 000.00 or 1 year imprisonment or both such fine ..... s v sam 1980 (4) sa 289 (t), a 67 year old caf owner was convicted of a similar offence and sentenced to a fine of r100.00 or 25 days imprisonment. ..... the court held that these offences do not fall within the ambit of the section of that act which attracts the ..... to my knowledge only one reported judgment where a custodial sentence had been imposed for an offence such as the present one. ..... made at the outset of an important consideration, namely that the penal provisions in the present firearms control act, 60 of 2000 (the firearms control act) have been increased substantially in respect of this particular offence, compared to those in the act. ..... part company with my colleague majiedt is the invocation by him of various authorities to identify what he describes as the benchmark for an offence of this kind. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: south gauteng high court (vermeulen aj sitting as court of first instance): the appeal is dismissed with costs, such costs to include the costs of the applications for condonation, and are to be paid by the appellants jointly and severally, the one paying the other to be absolved. judgment wallis ja (brand, tshiqi and willis jja and van der merwe aja concurring: [1] on 28 july 2003 the first appellant, mr motala, was appointed jointly with three colleagues as the liquidator of cement board industries (pty) ltd (cbi). in february 2005 the liquidators instituted an action before the south gauteng high court against the fifth respondent, boake incorporated (boake inc), a firm of accountants and auditors, and the sixth respondent, mr kevin wiles. that action proceeded at a snails pace and, from a procedural perspective, was still ongoing in august 2010, when mr wiles attorney discovered that cbi had been dissolved in terms of s 419 of the companies act 61 of 1973 (the act). that revelation prompted this application, in terms of s 420 of the act, for a declaration that the dissolution was void and ancillary relief. the application was opposed by boake inc and mr wiles and dismissed by vermeulen aj in the south gauteng high court. this appeal is with his leave. [2] in his founding affidavit mr motala explained rather tersely the circumstances in which cbi came to be dissolved, notwithstanding the fact that its liquidators were engaged in litigation against boake inc .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... penetration was a common law requirement and it is continued in the present definition of the crime of rape in s 3 of the criminal law (sexual offences and related matters) amendment act 32 of 2007, although that definition extends the scope of the crime to other penetrative acts. 11. ..... if the doctors evidence had made it clear that it could not be said with certainty that penetration had occurred the trial judge would no doubt not have convicted the appellant of rape, but of the lesser offence of indecent assault and a substantial but lesser sentence would have been imposed. ..... as the offence was perpetrated before the enactment of the criminal law (sexual offences and related matters) amendment act the offences are those under the common law. ..... judgment wallis ja (mthiyane dp and majiedt ja concurring) [1] this appeal is against the appellants conviction of the rape of a seven year old girl and the sentence of life imprisonment imposed upon him for that offence. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... he was sentenced by the venda high court (per makoba j) to imprisonment for life being the minimum sentence prescribed by the legislature for an offence of this kind in terms of the criminal law amendment act 105 of 1997. ..... ' in the circumstances, the high court viewed the offence 'in a very very serious light'. ..... those obviously paled into insignificance when compared to the objective gravity of the offence. .....
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