LEGAL NOTES VOL 9/2015
Compiled by: Adv M Klein
INDEX1
SOUTH AFRICAN LAW REPORTS AUGUST 2015
SA CRIMINAL LAW REPORTS AUGUST 2015
All SOUTH AFRICAN LAW REPORTS AUGUST 2015
EDITORIAL
Congratulations to Adv Cassim Moosa who is now acting judge in the South
Gauteng High Court!
This made me ponder a bit, when lawyers2 come to the judge’s chambers and
matters are discussed then the rule is that “what is said in chambers stays in
chambers”. The expression was well-marketed for Las Vegas, although a comedian
said "...great to be back here in Vegas....you know how they say 'what happens in
Vegas stays in Vegas'....? Well I have a new saying....if it happens in Vegas, and I
see it....I'm telling EVERYBODY!!"
Unfortunately this has a ring of truth as the judges are more sceptic to divulge certain
information to lawyers, there were two incidents in the newspapers recently where
“what was said in chambers” did not stay in chambers. One was where Judge Cathy
Satchwell made a comment about a litigant and the other one was about Judge
Traverso in the Dewani trial. Also, a judge told me in the tea room that he no longer
entertains lawyers in his chambers. Sad! I always liked the idea of going to a judge’s
chambers as we could at least then be informal and we could sort out issues, i.e.
estimated duration of the trial or whatever. But the opposite could also ring true: I
once told a judge something confidentially which was then repeated by the judge in
court! Perhaps we should agree beforehand “what is now discussed stays in
chambers”….and do not tell client, next it will be in the newspapers.
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 2015 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!
2
The term is used as it comprises attorneys and advocates
SOUTH AFRICAN LAW REPORTS AUGUST 2015
ABSA BANK LTD v SNYMAN 2015 (4) SA 329 (SCA)
Magistrates' court — Civil proceedings — Judgments — Superannuation — Occurs
three years after judgment — Execution to be effected within those three years —
Magistrates' Courts Act 32 of 1944, s 63.
Absa Bank Ltd loaned Snyman a sum which it secured with a bond over his home.
When he defaulted on payment Absa obtained default judgment from a magistrates'
court as well as a warrant of execution of the property. Both were obtained on 18
December 2007. Nothing then occurred until 18 December 2010 when the warrant
was reissued. The property was sold in execution on 6 December 2011. Ultimately
Snyman sought the review inter alia of the sale in execution, which the Western
Cape Division of the High Court held was void. Absa appealed this finding to the
Supreme Court of Appeal, where the question was whether a reissue of a warrant of
execution could postpone superannuation of a magistrates' court's judgment.
Held, that a magistrates' court's judgment superannuated after three years (s 63 of
the Magistrates' Courts Act 32 of 1944); and that execution of the judgment had to
take place within the three-year period. Reissue of a warrant within that period would
not postpone superannuation. Here, the sale in execution had taken place more than
three years after the date of judgment, and would on that basis be invalid. (As it
happened, the High Court overlooked the possibility that the sale might have taken
place within three years of the last payment in respect of the judgment — the
alternative date from which superannuation may be calculated. The Supreme Court
of Appeal consequently referred this issue back to the High Court for it to determine.)
Appeal upheld, with referral as aforesaid.
KNIPE AND ANOTHER v NOORDMAN NO AND OTHERS 2015 (4) SA 338 (NCK)
Company — Winding-up — Liquidator — Provisional liquidator — Powers — Power
to sell company assets after final liquidation order granted — Not curbed by
supervening business rescue application — Interdict refused — Companies Act 61 of
1973, s 386(5); Companies Act 71 of 2008, s 131(6).
Business rescue — Liquidation proceedings already initiated — Final liquidation
order granted — Application for business rescue not suspending liquidation —
Provisional liquidators may continue carrying out their functions — May apply to sell
company assets — Companies Act 61 of 1973, s 386(5); Companies Act 71 of 2008,
s 131(6).
Section 386(5) of the old Companies Act 61 of 1973 allows the court to grant a
liquidator 'in a winding-up by the court' leave to 'raise money on the security of the
assets of the company . . . or do any other thing which the court may consider
necessary for winding up the affairs of the company'. Section 131(6) of the new
Companies Act 71 of 2008, which provides that business rescue proceedings will
suspend liquidation proceedings, does not apply where a final liquidation order has
been granted, and will hence not hamstring liquidators who wish to sell company
assets.
DEMOCRATIC ALLIANCE v SPEAKER OF THE NATIONAL ASSEMBLY AND
OTHERS 2015 (4) SA 351 (WCC)
Constitutional law — Legislation — Validity — Powers, Privileges and Immunities of
Parliament and Provincial Legislatures Act 4 of 2000, s 11 — Arrest and removal of
any person creating or joining disturbance during parliamentary, house or committee
sittings — Provision violating Constitution by allowing arrest of members for what
they may say at such sittings — Constitution, ss 58(1) and 71(1).
Parliament — Members — Privileges — Constitutional right to freedom from arrest
for anything said in National Assembly or Council of Provinces or any of their
committees — Violated by provision in s 11 of Powers, Privileges and Immunities of
Parliament and Provincial Legislatures Act 4 of 2000 allowing arrest and removal of
any person for what they may say at such sittings — Constitution, ss 58(1) and
71(1).
Section 11 of the Powers, Privileges and Immunities of Parliament and Provincial
Legislatures Act 4 of 2000 (the Act) allows the Speaker or the Chairperson of the
National Council of Provinces (or a person designated by them) to order 'a staff
member or a member of the security forces' to arrest and remove any person
creating or taking part in a disturbance during parliamentary, house or committee
sittings.
Section 58(1)(a) of the Constitution affords cabinet members, deputy ministers F and
members of the National Assembly (the NA) a right to freedom of speech in the NA
and its committees; and s 58(1)(b) protects such members against inter alia arrest or
imprisonment or damages 'for anything they have said in, produced before or
submitted to the Assembly or any of its committees'. Delegates to the National
Council of Provinces, participating local government representatives and members of
the national executive are afforded the same privileges and powers by s 71 of the
Constitution.
These constitutional privileges are violated by s 11 of the Act to the extent that it
permits a member to be arrested for what he or she may say on the floor of a House.
Because a member may not be arrested under s 11 if the conduct that led to the
arrest is protected under ss 58(1)(b)and 71(1)(b), the most appropriate remedy to
bring s 11 within constitutional bounds would be notional severance — leaving the
text unaltered but limiting the extent of its application by subjecting it to a condition.
The Western Cape Division of the High Court so held in an application challenging
the constitutional validity of s 11 of the Act. Accordingly it declared s 11 of the Act
inconsistent with the Constitution and invalid 'to the extent that it [permitted] a
member to be arrested for conduct that [was] protected by ss 58(1)(b) and
71(1)(b) of the Constitution'. (This declaration was suspended for a period of 12
months in order for Parliament to remedy the defect, and was referred to the
Constitutional Court for confirmation.)
ABSA BANK LTD v COLLIER 2015 (4) SA 364 (WCC)
Act of insolvency — Failure to satisfy judgment debt or indicate sufficient disposable
property to do so — Disposable property — Mortgaged property — Qualifying as
disposable if judgment creditor holds first mortgage bond — Order of special
execution not required — Insolvency Act 24 of 1936, s 8(b).
Under s 8(b) of the Insolvency Act 24 of 1936 a debtor who fails to satisfy a
judgment or point out sufficient 'disposable property' to do so commits an act of
insolvency.
The question here was whether Mr Collier's undivided half-share in immovable
property mortgaged to Absa, the judgment creditor, was disposable property as
intended in s 8(b). The sheriff had rendered a nulla bona return after Mr Collier
allegedly failed to point out sufficient disposable property to satisfy Absa Bank's
judgment against him. Absa, the holder of a first mortgage bond over the property in
question, argued that this was an act of insolvency under s 8(b) and applied for Mr
Collier's sequestration. Mr Collier resisted on the ground that the sheriff's return was
factually incorrect because he had advised the sheriff of his ownership of the
property, the value of which was sufficient to satisfy the judgment Absa had obtained
against him. A single judge of the High Court dismissed the application on the
ground that Absa was, as mortgagee, able to dispose of Mr Collier's half-share in
property without a special execution order and that in the circumstances it had failed
to establish an act of insolvency. In an appeal to a full bench —
Held:
Mortgaged immovable property was disposable only at the instance of the judgment
creditor as first mortgagee regardless of whether it had been declared specially
executable. Since Mr Collier's undivided half-share in the property was 'disposable'
under s 8(b), and since its value was sufficient to satisfy Absa's judgment, no act of
insolvency was committed. Hence a final order of sequestration would not issue.
Appeal dismissed.
SELEKA AND OTHERS v MINISTER OF POLICE AND OTHERS 2015 (4) SA 376
(LP)
Prescription-Extinctive prescription — Interruption — By service of process — Letter
of demand or notice of intention to sue state — Neither constituting service of
'process' affecting running of prescription — Prescription Act 68 of 1969, s 15(1);
Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002, s 3.
The defendants raised a special plea of prescription against actions for damages
instituted by the plaintiffs (for their alleged unlawful arrest, detention and assault by
members of SAPS) on the basis that said actions were instituted I and summons
served more than three years after their respective causes of action had arisen. The
plaintiffs contended that the running of prescription was interrupted as contemplated
in s 15(1) of the Prescription Act 68 of 1969 by the service of their respective letters
of demand and/or notices in terms of s 3 of the Institution of Legal Proceedings
against Certain Organs of State Act 40 of 2002. In issue was whether the letters of
demand and/or notices constituted 'processes' in terms of the aforementioned
provision of the Prescription Act and consequently affected the running of
prescription. The court held that they did not and the claims had accordingly
prescribed
WINDRUSH INTERCONTINENTAL SA AND ANOTHER v UACC BERGSHAV
TANKERS AS THE ASPHALT VENTURE 2015 (4) SA 381 (KZD)
Shipping — Admiralty law — Maritime lien — Seaman's lien for wages — Lien for
wages for crew captured and abducted by pirates — Claim falling within scope of
maritime lien for wages — Lien transferable by cession or assignment — Admiralty
Jurisdiction Regulation Act 105 of 1983, s 1(1)(s).
On 28 September 2010 the Asphalt Venture was hijacked by Somali pirates off the
Kenya coast. Though a ransom was paid and the ship released on 15 April 2011, the
pirates retained seven Indian crew members as hostages. Their employer, Concord
Worldwide Inc, the subcharterer, made payments equivalent to their wages to their
dependent families until October 2011, when it ran into financial difficulties. It was
common cause that the specified periods of employment of the abducted crew had
expired by the time the ship was released.
Bergshav, the respondent in the present case, acting as cessionary of the
wage claims of abducted crew, procured the arrest of Asphalt Venturein Durban in
September 2012. The claims were ceded to Bergshav under a settlement agreement
concluded between Bergshav and the families, which was approved by the Indian
High Court, Mumbai. In its summons in rem in the South African court Bergshav
claimed payment of what it had paid to the families. The present application was for
the release of the Asphalt Venture from its deemed arrest and for the return of the
security furnished. The applicants were Windrush, the original bareboat charterer,
and the ship itself. The question for the court was whether, given the termination of
the employment contracts and the absence of service to the ship after April 2011,
there was a valid claim for unpaid wages capable of supporting a maritime lien.
An ancillary question was whether, even if the claims and the maritime liens existed,
their transfer by cession or assignment was valid, at least without the sanction of the
Mumbai High Court. It was common cause that the abducted crew's employment
contracts were governed by Indian law.
Held: Although the employment of the abducted crew had ended in April
2011, Bergshav was able to show, if only at prima facie level, that Indian law would
recognise their wage claims at all material times to date of repatriation. Whether the
claims were supported by maritime liens enforceable by an action in rem had to be
determined with reference to the lex fori, ie South African law. The issue was in
effect settled by the applicants' concession that the claims were 'maritime claims', for
in South African law the liens would follow the claims. The critical factor, therefore,
was not the time when a claim arose, but whether it fell within the scope of a
maritime lien. It could for present purposes be concluded that crew's prima facie
wage claims did give rise to maritime liens, which were, moreover, by their nature
capable of being transferred by cession or assignment. And since the Mumbai High
Court had, on the applicants' version, indeed sanctioned the assignment, the court
would recognise Bergshav's title. Application dismissed.
STEYN v HASSE AND ANOTHER 2015 (4) SA 405 (WCC)
Cohabitation — Rights — Reciprocal duty of support — Though none arising by
operation of law, it may be regulated by agreement — Universal partnership may
come into being — Requirements — Both parties must contribute or bind themselves
to do so; it must be carried on for joint benefit of both parties; and object must be to
make profit.
Cohabitation generally refers to people who, regardless of their gender, live together
without being validly married to each other. Although cohabitation is a common
phenomenon and widely accepted, cohabitants generally do not have the same
rights as partners in a marriage or civil union. While no reciprocal duty of support
arises by operation of law, this may be regulated by agreement. An express or
implied universal partnership may arise between cohabitants. A universal partnership
exists when parties act like partners in all material respects without explicitly entering
into a partnership agreement. The three essential elements are, first, that each
contributes something to the partnership or binds himself to contribute something to
it; second, that the partnership should be carried on for the joint benefit of the
parties; and, third, that the object should be to make profit.
Mr Hasse, a married German businessman residing chiefly in Germany, was
involved in a romantic relationship with Ms Steyn during a series of interludes he
spent at his house in Somerset West, Western Cape. Steyn ended up living there
rent-free. But when the relationship soured Mr Hasse wanted Steyn out and sent her
an eviction notice. Steyn resisted on the ground that she was living in the house at
Hasse's invitation and, moreover, as his partner. She alleged that he had promised
to provide her with a secure home for 10 years. A magistrates' court, having found
no reciprocal rights and duties of support, held that the withdrawal of Hasse's
consent meant that Steyn's occupation was unlawful and granted an eviction order.
In an appeal to the High Court —
Held
Given the nature of the relationship between the parties, there would have been no
express or tacit universal partnership nor any other legal basis for a finding that there
were reciprocal rights and duties of support. It was moreover highly unlikely that
Hasse would have given Steyn an undertaking to provide her with a home for 10
years, and the averment could be rejected out of hand. Steyn would be given three
months to vacate the premises.
FIRSTRAND BANK LTD v NKATA 2015 (4) SA 417 (SCA)
Credit agreement — Consumer credit agreement — Reinstatement of agreement in
default — Not possible after execution of court order enforcing agreement —
Meaning of 'execution' — Sale in execution at public auction — National Credit Act
34 of 2005, s 129(4)(b).
A consumer brought an application in the High Court for the rescission of a default
judgment and cancellation of the sale in execution of her property after she had
made good her arrears. The court did not rescind the judgment but, relying on s
129(3)(a) of the National Credit Act 34 of 2005 (NCA), declared that the loan
agreements had been reinstated — the default judgment and the writ in execution
had accordingly, by operation of law, ceased to have any force and effect. The
central issue in an appeal by the credit provider to the Supreme Court of Appeal
(SCA) was the meaning of 'execution' in s 129(4)(b) of the NCA. The section
provides that 'a consumer may not re-instate a credit agreement after . . . the
execution of any other court order enforcing that agreement'. The High Court
concluded that 'execution' only took place when the proceeds of the sale
in execution were paid over to the judgment creditor. In contrast the SCA —
Held, that reinstatement could only occur before a sale in execution at a public
auction. The debtor (consumer) had fallen foul of this provision and the order of the
High Court had therefore been wrongly made. Appeal upheld. Since the matter was
decided on the basis of s 129(4)(b), it was not necessary to deal with the High
Court's reasons and findings in respect of s 129(3)(a).
RAHIM AND OTHERS v MINISTER OF HOME AFFAIRS 2015 (4) SA 433 (SCA)
Immigration — Illegal foreigners — Detention pending deportation — Place of
detention — To be determined by director-general of Home Affairs — Determination
need accord with international best practice and be publicly proclaimed —
Immigration Act 13 of 2002, s 34(1).
Mr Rahim and 14 other foreign nationals sued the Minister of Home Affairs for
damages as a result of what they alleged were their unlawful arrest and detention.
Rahim and the others had applied for asylum but had been unsuccessful and their
appeals had later been refused. Thereafter they had been arrested at the instance of
officials of the Department of Home Affairs, and detained variously at police stations,
prisons and the Lindela holding facility. The arrests and detention had been on the
basis of s 34(1) of the Immigration Act 13 of 2002, which provides that 'an
immigration officer may arrest an illegal foreigner or cause him . . . to be arrested,
and shall . . . deport him . . . and may, pending his . . . deportation, detain him . . .
or H cause him . . . to be detained in a manner and at a place determined by the
director-general . . .'.
Rahim and the others asserted in the High Court that their places of detention had
not been so determined and that this rendered their detention unlawful. The court,
however, found against them, interpreting the Act to provide that prisons and police
stations were places that had been so determined.
On appeal, the Supreme Court of Appeal held that (1) any place used to detain
illegal foreigners pending deportation had to be determined to be a place of
detention by the director-general (the places requiring such determination including
prisons and police stations); (2) that any determination had to accord with
international best practice, which was to the effect that illegal foreigners had to be
detained separately from persons detained for criminal offences; and (3) that no
such determinations had been made here. The court also suggested (the issue not
arising for final decision) that any determination would have to be publicly
proclaimed. Appeal upheld, the detentions found to be unlawful, and the minister
ordered to pay damages.
ORESTISOLVE (PTY) LTD t/a ESSA INVESTMENTS v NDFT INVESTMENT
HOLDINGS (PTY) LTD AND ANOTHER 2015 (4) SA 449 (WCC)
Company — Winding-up — Application — By creditor — Abuse of process — Rule
that court will refuse application as constituting abuse of process where company
bona fide disputing debt on reasonable grounds (Badenhorst rule) — Ambit —
Provisional and final stages — Burden of proof.
Company — Winding-up — Grounds — Inability to pay debts — Discretion of court
to refuse winding-up — When it arises — Competing application for business rescue
— Difference of opinion among creditors on need for liquidation — Company solvent
and misguidedly but genuinely disputed applicant's claim — Companies Act 61 of
1973, s 345(1) read with s 344(h).
NDFT and Essa concluded an agreement under which Essa was to earn a
commission for helping NDFT to obtain an overdraft. When a dispute arose as to
whether Essa had earned its commission, it made a demand for payment under s
345(1)(a) of the (old) Companies Act 61 of 1973 and followed it up with an
application for the provisional liquidation of NDFT. The provisional order was granted
and the second respondent (the Trust) — NDFT's sole shareholder and largest
creditor by virtue of its loan-account claim — given leave to intervene to oppose final
liquidation.
The issues on the return date were —
(i) whether Essa was a creditor of NDFT;
(ii) whether NDFT genuinely (bona fide) disputed its claim on reasonable
grounds;
(iii) whether NDFT was factually or commercially insolvent; and
(iv) whether the court should, if these questions were answered in Essa's favour,
nevertheless refuse to grant a winding-up order.
The Badenhorst rule states that a court will refuse an application for the liquidation of
a company if the company bona fide disputes the applicant's claim on reasonable
grounds. Though its object is to prevent the abuse of the liquidation process for the
enforcement of debts, it is now treated as an independent rule not requiring proof of
actual abuse of process. Hence disputes relating to liability must be distinguished
from disputes about the other requirements for liquidation. Since the court will refuse
the application even where the applicant proves its claim, the Badenhorst rule is
more appropriate in provisional applications, when an onus may be cast on the
company to explain the basis of the claimed dispute (ie its bona fides and
reasonability). At the final stage, however, Plascon-Evans will apply and proof of the
claim will leave little scope for a finding that the debt is nevertheless genuinely
disputed. The requirement of bona fides is satisfied if the company genuinely wishes
to contest the claim and believes it has reasonable prospects of success. Lack of
bona fides will usually go hand-in-hand with an intention to delay, which would in turn
indicate that the company is unable to pay its debts and militate against the exercise
of a discretion in its favour (see below).
While a company's deemed inability — in terms of s 345(1) — to pay its debts does
not give rise to a rebuttable presumption, the court has a residual discretion to deny
the application for liquidation, and the reason the company gives for its refusal to pay
(eg bona fides and reasonability: see (c) below) might result in the court exercising it
in the company's favour. The ambit of the discretion is debated, but whatever its
limits, there must be a valid reason why the liquidation order should be withheld if the
applicant complied with the applicable statutory requirements. Such reasons would
include —
(a) that there are competing applications for liquidation and business rescue;
(b) that there is a difference of opinion among the creditors on the need for
liquidation — in particular, opposition by a major creditor; or
(c) the company is commercially solvent and a presumption of commercial
insolvency arose merely because it misguidedly but genuinely disputed the claim
and therefore refused pay it.
Held: As to (i): Although the facts tended to show that Essa's claim was duly
established, it was, in the light of the findings below, not necessary to decide this
point.
As to (ii): While it was similarly unnecessary to decide this point, any reliance by
NDFT on the Badenhorst rule would have failed, not for lack of bona fides, but
because its grounds for disputing the claim were not reasonable.
As to (iii) and (iv): The clear evidence that NDFT was commercially solvent and the
fact that its largest shareholder opposed liquidation would compel the court to
exercise its discretion against the granting of a final order.
Provisional order accordingly discharged.
ABSA BANK LTD v KEET 2015 (4) SA 474 (SCA)
Prescription — Extinctive prescription — Debt — Claim for rei vindicatio not
constituting debt — Accordingly, not prescribing after three years — Prescription Act
68 of 1969, s 10.
The appellant bank brought an action in the High Court seeking confirmation of its
cancellation of an instalment sale agreement and recovery of the vehicle when the
respondent defaulted on payments. Respondent's special plea of prescription was
upheld on the basis that appellant's claim for repossession of the vehicle was a 'debt'
as contemplated by s 10 of the Prescription Act 68 of 1969 and had thus prescribed
after three years. The main issue on appeal was whether a claim under rei vindicatio
became prescribed after three years by virtue of s 10. The Supreme Court of Appeal,
after reviewing various authorities, held that this view was contrary to the scheme of
the Act. The High Court had accordingly erred in upholding the special plea on this
basis. Appeal upheld.
ELIAS MECHANICOS BUILDING & CIVIL ENGINEERING CONTRACTORS (PTY)
LTD v STEDONE DEVELOPMENTS (PTY) LTD AND OTHERS 2015 (4) SA 485
(KZD)
Business rescue — Moratorium on legal proceedings against company — Leave to
institute proceedings to be obtained before commencement of proceedings and not
as part of relief in main application — Companies Act 71 of 2008, s 133(1)(b).
Applicant company sought an order directing first respondent to produce certain
documentation regarding a joint venture. First and second respondents (the latter
was also a party to the venture) were in business rescue proceedings at the time.
Leave to institute proceedings, as required in terms of s 133(1)(b) of the Companies
Act 71 of 2008, was not obtained prior to commencement but incorporated as part of
the relief in the main application. Counsel for respondents contended that it should
have been obtained before the launch of proceedings. In issue was whether leave
could indeed be sought in the same application in which the substantive relief was
sought. The court held that, on a proper construction of s 133(1)(b), it could not. The
applicant had therefore commenced the present application when it was not entitled
to do so. Such application was not competent and accordingly had to be dismissed.
SARRAHWITZ v MARITZ NO AND ANOTHER 2015 (4) SA 491 (CC)
Housing — Right to housing — Protection of vulnerable purchasers — Seller's
supervening insolvency — Statute failing to give cash purchasers same protection
(right to transfer) as instalment purchasers — Statute amended to provide equal
protection to all vulnerable purchasers in event of insolvency of seller — Alienation of
Land Act 68 of 1981, s 21 and s 22.
In September 2002 Mr Posthumus entered into a contract for the sale of a house to
Ms Sarrahwitz. She paid cash and took occupation in October 2002. But Mr
Posthumus did not transfer the house into her name, and in April 2006 his estate
was sequestrated. The first respondent, who was appointed trustee of Posthumus'
insolvent estate, refused to transfer the house to Ms Sarrahwitz on the ground that it
formed part of the insolvent estate.
Ms Sarrahwitz approached the High Court for an order for transfer but her
application was refused on the ground that the common law and not the Act
regulated the transfer of the house and that the common law supported the trustee's
position. Her subsequent approaches to the full bench of the High Court and the
Supreme Court of Appeal failed for the same reason.
Ms Sarrahwitz's problem was that, as a cash buyer, she did not enjoy the protection
afforded to instalment-sale buyers under s 21 and s 22 of the Alienation of Land Act
68 of 1981. The Act provides that a buyer of residential property who pays the
purchase price in two or more instalments over a period of one year or longer is
entitled to demand transfer if the seller becomes insolvent. In an application for leave
to appeal to the Constitutional Court Ms Sarrahwitz for the first time raised
constitutional principles, arguing that the common law and the Act unconstitutionally
failed to protect vulnerable cash buyers like her.
Majority judgment (per Mogoeng CJ): This case was about the protection of the poor
and vulnerable from homelessness. Given the absence of the exceptional
circumstances required for the development of the common law, the court would
instead approach the matter through a proper interpretation — premised on the
constitutional rights to housing, dignity and equality — of s 21 and s 22 of the
Alienation of Land Act. The purpose of the Act — to protect vulnerable buyers of
residential property — was beneficial, yet its failure to extend its protection to buyers
other than instalment buyers impaired the abovementioned constitutional rights in an
unjustified and irrational manner. Cash buyers and those who paid within a year
should also be protected. Hence the appropriate remedy would be to read into the
Act words that conferred a right on vulnerable buyers who paid cash or who paid in
less than one year to take transfer of the property in the event of the seller's
intervening insolvency, which right would only arise if the buyer were likely to
become homeless if transfer did not take place. In the event the first respondent
would be ordered to transfer the house to Ms Sarrahwitz.
Concurring minority judgment (per Cameron J and Froneman J): The order in the
main judgment would be concurred in with the reservation that it might lead to the
striking-down of beneficial consumer-protection legislation because it failed to protect
everyone equally. This would intrude too far into legislative territory. It was also
difficult to assess the limits of vulnerability that would entitle buyers who paid the full
purchase price to the same protection as instalment buyers. The Constitution,
moreover, did not protect against homelessness in absolute terms. Rather, it
provided that no one could be evicted from his or her home without an order of court
made in consideration of all relevant circumstances. Hence the less intrusive and
more appropriate remedy in the present case would have been to protect Ms
Sarrahwitz's possessory rights by refusing an eviction order.
PRIMEDIA BROADCASTING LTD AND OTHERS v SPEAKER OF THE
NATIONAL ASSEMBLY AND OTHERS 2015 (4) SA 525 (WCC)
Parliament — Proceedings — Broadcasting — Limitations on broadcasting of
unparliamentary conduct and grave disorder — Jamming of electronic signals during
turmoil in Parliament — Invocation of parliamentary rules and policy —
Constitutionality of such measures — Whether limitations reasonable and justifiable
in open and democratic society — Constitution, ss 57(1), 59(1)(b), 70(1) and
72(1)(b).
Sections 57(1) and 70(1) of the Constitution provide that the National Assembly (the
NA) and the National Council of Provinces (the NCOP) may determine and control
their internal arrangements, proceedings and procedures, and make rules and
orders concerning their business. Sections 59(1)(b)(i) and 72(1)(b)(i) of the
Constitution provide that the NA and the NCOP must conduct their business in an
open manner and hold their sittings in public, but that they may regulate public
access (including the media) if it 'is reasonable and justifiable to do so in an open
and democratic society'.
Parliament's standing rules relating to the broadcasting of parliamentary proceedings
(the Rules) provide that during incidents of disorder or unparliamentarily conduct the
camera must focus on the occupant of the chair, ie the Speaker of Parliament or the
Chairman of the NCOP. This measure is repeated for incidents of 'grave disorder' in
Parliament's later Policy on Filming and Broadcasting (the Policy), but '(o)ccasional
wide-angle shots of the chamber are acceptable' in the case of unparliamentarily
behaviour.
The applicants challenged these measures on the basis that they were not
reasonable and justifiable limitations of the open and public nature of parliamentary
sittings as contemplated in ss 59(1)(b) and 72(1)(b) of the Constitution; alternatively,
that the Policy and the Rules as a whole were irrational for lack of public consultation
before they were adopted, and were therefore unconstitutional.
An order was also sought declaring the continued use of a device jamming electronic
signals in Parliament unconstitutional and therefore unlawful. This arose from a
'jamming incident' which had prevented cellphone use during the first part of the
same joint sitting of the NA and the NCOP in which the impugned measures where
invoked to limit coverage of the proceedings when it was deemed to have
descended into 'grave disorder'.
The full bench (by a majority) rejected the alternative ground on the basis that it was
sufficient that the measures were devised for Parliament's functioning by Parliament
itself, on a fully cross-party deliberative basis. It also rejected the declaratory relief
sought in relation to the jamming incident as 'serving no purpose whatsoever'.
As to the main issue — the reasonableness of the impugned measures —
Held
The public's right to know what was happening in Parliament was not absolute. The
question was whether these limitations were reasonable — regard being had to what
they sought to achieve and their context. The measures protected the dignity of
Parliament by tempering the especially strong impact that visuals of disorderly
conduct, if broadcast to the world, would have. They were designed to discourage
disorderliness and unparliamentarily behaviour; indeed they were essential for its
ordered operation. Thus, regard being had to all relevant factors, the measures
under discussion in the instant matter are 'reasonable measures' employed
to regulate public access, including access of the media, to Parliament.
Conduct obstructing or disputing Parliament's proceedings, or unreasonably
impairing Parliament's ability to conduct its business in an orderly and regular
manner acceptable in a democratic society, was (in any event) not legitimate
parliamentary business, and accordingly there was no obligation on Parliament to
broadcast such conduct.
Unreasonableness must be a high standard, particularly when an independent
constitutional institution had, through its own internal cross-party processes, drawing
on the experience of its own members and with regard to the practice under other
constitutional democracies elsewhere, done exactly what ss 59(1)(b) and 72(1)(b) of
the Constitution contemplated.
Parliament was constitutionally entitled to ensure its functioning and to protect its
own dignity. The challenged measures were reasonable, justifiable and
proportionate, striking a balance between the right to be informed about Parliament
and the duty to maintain the dignity of parliament.
ZA v SMITH AND ANOTHER 2015 (4) SA 574 (SCA)
Delict — Elements — Unlawfulness or wrongfulness — Liability for omission —
Failure to warn paying visitor to nature reserve of danger of slipping on
ice concealed by snow and sliding over edge of gorge.
In this matter Federica Za sued the owner of a farm (Smith) and a corporation that
carried on the business of a private nature reserve on the farm, for loss of support as
a result of the death of her husband Pieralberto. Za alleged that their omission had
resulted in his death. The background was that the corporation allowed members of
the public to use certain amenities on the farm, including a four-wheel drive track, for
a fee. On the winter day in question Pieralberto had paid the fee and driven his fourwheel drive to the terminal point of the track, which was a parking area at the top of a
mountain. There he had alighted and walked across the apparently snow-covered
ground to look into the gorge that was close by. Near to, but not at the edge of the
gorge, Pieralberto had slipped on ice concealed by the snow, had slid over the edge
and fallen to his death.
Federica's action in delict was based on Smith and the corporation's failure to take
steps to avoid the incident. (Those steps would be: (i) briefing members of the public
— inter alia — on the danger of slipping on ice concealed by snow and sliding over
the edge of the gorge ('the danger'); (ii) moving the parking area lower down, to
cause visitors to have to walk some distance on the snow toward the outlook over
the gorge, in order to familiarise them with the surface; (iii) fencing the parking area,
leaving an opening through which the visitors would have to pass, and at which
warning signs would be placed; (iv) warning, by means of those signs, of the danger;
(v) and marking out with poles the edge of the safe area and the unsafe area
beyond.)
Za was unsuccessful in the High Court and appealed to the Supreme Court of
Appeal. In issue there was the following.
(1) Whether the omission was wrongful (ie whether it was reasonable to impose
liability for the omission).
Held, that it was. This on the basis of the following considerations:
(a) the law's policy, as reflected in the common-law duty of a person in control
of a property containing a danger, to render the property safe for visitors;
(b) that Smith and the corporation were indeed in control of a property
containing a danger to visitors; and
(c) that the corporation and Smith allowed the public onto the property to, for a
fee, use a four-wheel drive route that led directly to the danger.
(2) Whether Smith and the corporation had been negligent. Specifically, whether
a reasonable person in their position would have taken steps to warn and protect a
person in the position of Pieralberto against the danger. (They contended that a
reasonable person would not have done so, because the danger would have been
clear to a person in Pieralberto's position.)
Held, that a reasonable person would have taken such steps. This because the
danger would not have been clear, and the proposed remedial steps (listed above)
would have been effective, affordable and sustainable.
(3) Whether the omission to take the steps outlined above was the cause of the
harm. (Smith and the corporation argued that Pieralberto had in fact been aware of
the danger, but had nonetheless proceeded to walk to the edge, and thus that even if
they had taken any of the proposed measures, the incident would still have
occurred.)
Held, that Pieralberto had not been aware of the danger and that the warning
measures would probably have been effective, and consequently that the omission
had been the cause of the incident.
Appeal upheld.
MBATHA AND OTHERS v JOHANNESBURG CITY AND OTHERS 2015 (4) SA
591 (GJ)
Local authority — Housing — Temporary emergency accommodation — Municipality
offering flood-affected residents of informal settlement temporary shelter in
community hall — Facilities inadequate in circumstances — Temporary
accommodation to be provided in terms of emergency housing programme
contained in National Housing Code — Housing Act 107 of 1997, s 9(1).
The impoverished residents (applicants) of an informal settlement on a flood- line —
the area was earmarked for upgrading — had been severely affected by excessive
flooding. The City of Johannesburg (the City) had offered to provide temporary
shelter in a local community hall. Dissatisfied, the applicants brought an urgent
application seeking, inter alia, immediate relocation to a site identified by the City in
terms of its emergency housing programme contained in the National Housing Code
2009 (NHC). The City was sceptical of the need for emergency flood relief and
resisted the application, suggesting that the main goal was permanent relocation.
Held, that, a proper scrutiny and reading of the provisions of the NHC — clause
2.3.1 plainly refers to 'emergency situations of exceptional housing' — was in favour
of the applicants. In addition, the City was obliged, in terms of s 9(1) of the Housing
Act 107 of 1997, to ensure that conditions not conducive to the health and safety of
inhabitants, like the applicants, were I prevented or removed. To provide the
applicants with temporary emergency accommodation at the community hall until the
development was completed would create issues relating to their constitutional
rights. This was untenable. In terms of both the emergency housing programme and
Disaster Management Act government institutions were anyway supposed to have
the appropriate mechanisms in place. The application was accordingly successful.
GB MINING AND EXPLORATION SA (PTY) LTD v COMMISSIONER, SOUTH
AFRICAN REVENUE SERVICE 2015 (4) SA 605 (SCA)
Revenue — Assessment to tax — Objection — Whether competent if assessment
based on incorrect information supplied by taxpayer — Burden of proof when
objecting against such assessment — Income Tax Act 58 of 1992, s 81(1).
Section 81(1) of the Income Tax Act 58 of 1992 (the Act) provided that any taxpayer
'aggrieved by any assessment' may object to such assessment in the prescribed
manner. Here the taxpayer had raised objections in terms of this section to revised
assessments over four tax years, contending that they were based on incorrect
information that the taxpayer itself had supplied to the Commissioner of the South
African Revenue Service (the Commissioner) in its tax returns. The objections
having been disallowed by the Commissioner — one in full and the others partially —
the taxpayer unsuccessfully appealed to the tax court. In the taxpayer's further
appeal to the Supreme Court of Appeal, the issues were —
(1) whether, given that s 79(A) of the Act specifically dealt with reduction of
assessments based on incorrect information provided in the taxpayer's return, it was
permissible for the taxpayer to object in terms of s 81(1) rather than relying on s
79(A); and
(2) whether, given that s 81 of the Act placed the burden of proof on the taxpayer,
the onus of satisfying the Commissioner that the information supplied by the
taxpayer was incorrect (and that the reduction was therefore justified) had been
discharged.
Held as to (1):
A taxpayer who had been the cause of an incorrect assessment by the
Commissioner could, as an alternative to relying on s 79A, claim to be 'aggrieved'
thereby and object to the assessment in terms of s 81. This was because a taxpayer
whose taxable income had been determined on an erroneous basis was always
'aggrieved' even if the source of error was entirely attributable to him; and also
because the powers of the Commissioner under s 79A could be exercised
'notwithstanding the fact that no objection [had] been made', suggesting that an
alternative route for the taxpayer to follow was by way of objection and, if necessary,
appeal.
Held as to (2):
The onus of satisfying the Commissioner that the information furnished was incorrect
and that a reduction in the assessment was justified was on the taxpayer. In order to
discharge this onus, additional evidence would have to be placed before the
Commissioner, the nature of which would depend upon the facts of each case and
particularly the nature of the erroneous information supplied to the Commissioner.
Such evidence would have to explain the precise nature and extent of the incorrect
information and how it was included, and all relevant supporting documentation to
verify the correct information would have to be submitted. So where the contested
determinations were based upon incorrect information supplied to the Commissioner
by the taxpayer — whether in the form of balance sheets and accounts or otherwise
— the taxpayer must show that it provided credible and reliable evidence to explain
the error and substantiate what it maintained was the true position.
This the appellant taxpayer had failed to do, and the appeal was accordingly
dismissed insofar as it related to the Commissioner's determinations based on
incorrect information furnished by the taxpayer.
ONE STOP FINANCIAL SERVICES (PTY) LTD v NEFFENSAAN
ONTWIKKELINGS (PTY) LTD AND ANOTHER 2015 (4) SA 623 (WCC)
Company — Contracts — Authority — Internal formalities — Presumption of
compliance (Turquand rule) — Codification of rule in Act — Provision to be
construed consistently with conventional scope of Turquand rule — Companies Act
71 of 2008, s 20(7).
Company — Contracts — Authority — Interplay between actual authority, ostensible
authority, constructive notice of company articles to third parties, and Turquand rule
— Turquand coming to outsider's aid, subject to implications of constructive
knowledge of articles, once he makes out case for ostensible authority —
Companies Act 71 of 2008, s 20(7) not changing common law on ostensible
authority I
In an application for the provisional liquidation of Neffensaan the issue was whether
the applicant, OSF, had locus standi as creditor by virtue of claims under three
agreements it had concluded with Neffensaan. Since OSF was unable to show on
the affidavits that the directors who signed the agreements on Neffensaan's behalf,
M and C, had actual authority to bind Neffensaan, the question became whether
Neffensaan was nevertheless bound by ostensible authority and the Turquand rule,
or by s 20(7) of the Companies Act 71 of 2008 (the Act). OSF stated that it had acted
in good faith and under the impression that M and C were, as directors of
Neffensaan, duly authorised to conclude the agreements, and for the rest it relied on
the Turquand rule. (The application was opposed by CRL, an intervening creditor.)
The Turquand rule (also known as the indoor-management rule) provides that an
outsider transacting with a company may assume that its officers have the powers
ordinarily associated with their positions, thus relieving him from having to
investigate whether the company's acts of internal management were regular. The
Turquand rule has an ameliorative effect, from the perspective of the outsider, on the
rule of constructive notice, under which knowledge of the contents of the company's
articles is imputed to him. The rule of constructive notice was abolished by s 19(4) of
the Act.
Section 20(7) of the Act provides that an outsider may presume that the company
has complied with any 'formal and procedural requirements' unless he knew or ought
to have known of a failure to do so.
Since the first of the agreements — a suretyship agreement — was concluded
before the coming into force of the Act, and the others — two loan agreements —
thereafter, the court had to consider the applicable law under both regimes.
The law before the Act
The Turquand rule would come to an outsider's aid only once he had, subject to the
implications of his constructive knowledge of the company's articles, made out a
case for actual or ostensible authority.
The law after the Act
Section 20(7) was not intended to change the law governing the circumstances in
which a company would be bound on the basis of ostensible authority. Hence the
expression 'formal and procedural requirements' must be construed consistently with
the conventional scope of Turquand. But the abolition of constructive notice means
that a company may now be so bound even if the official went beyond the potential
scope of his authority under the articles.
Application of the law to the present case
Authority to conclude the suretyship agreement: The absence of evidence regarding
the contents of Neffensaan's articles precluded OSF's reliance on the Turquand rule.
This left only ostensible authority, without the refinements of constructive knowledge
and the Turquand rule being brought to the enquiry. But OSF was, by virtue of its
denial of actual knowledge of Neffensaan's articles, precluded from relying on the
ostensible authority of M or C to bind Neffensaan to the suretyship agreement. OSF
was, moreover, unable to point to conduct of Neffensaan by which it held out that M
or C was authorised to conclude this sort of agreement on its behalf. In the result
OSF's reliance on the suretyship agreement would fail. Authority to conclude the
loan agreements: Given the overlap between the Turquand rule and s 20(7), the
absence of evidence regarding the contents of Neffensaan's articles similarly
precluded a reliance on s 20(7). As was required under the former regime, the
outsider had to establish that he was dealing with someone who had actual or
ostensible authority to bind the company, for only in those circumstances would he
be able to say that he was dealing with the 'company' as intended in s 20(7). Given
the lack of ostensible authority on the part of M and C, OSF's reliance on the loan
agreements would fail as well. Application for provisional liquidation accordingly
dismissed.
SACR AUGUST 2015
DIRECTOR OF PUBLIC PROSECUTIONS, WESTERN CAPE v PARKER 2015 (2)
SACR 109 (SCA)
Theft — What constitutes — Misappropriation of VAT — Whether misappropriation
by VAT vendor of VAT collected on behalf of Sars sustaining charge of common-law
theft — Value – Added Tax Act 89 of 1991, ss 28(1)(b) and 58.
A VAT vendor who misappropriates an amount of VAT which it collected on behalf of
the South African Revenue Service (Sars) cannot be charged with the common-law
crime of theft.This is because the Value-Added Tax Act 89 of 1991 is a scheme with
its own directives, processes and penalties, and does not confer on the vendor the
status of a trustee or a tax-collecting agent of Sars — the basis advanced for such
misappropriation constituting theft. Instead, the Act creates a sui generis debtor –
creditor relationship which entitles Sars to sue a non-paying vendor for payment
and/or to have such vendor charged with s 58 offences which, significantly, does not
include common-law theft.
S v COCK;S v MANUEL 2015 (2) SACR 115 (ECG)
Rape — Sentence — Life imprisonment — Minimum sentence in terms of Criminal
Law Amendment Act 105 of 1997 — Gang rape — Different treatment accorded to
first participant to be convicted for participation in gang rape to that of subsequent
participants convicted — Court pointing out anomaly but holding that it was bound by
Supreme Court of Appeal authority — Sentence of life imprisonment imposed under
prescribed minimum sentence legislation accordingly set aside but, in exercise of
court's common-law discretion, new sentence of life imprisonment imposed.
In two separate appeals to the full division against sentences of life imprisonment
imposed upon the two appellants arising from their having raped the complainant in
the execution or furtherance of a common purpose, the court felt obliged to comment
on the anomalous situation brought about by the judgment of the Supreme Court of
Appeal in the matter of S v Mahlase [2011] ZASCA 191. The anomaly that arose in
the present situation was that in terms of this decision the appellant in
the Cock matter, being the first accused to be convicted and sentenced, was liable to
a minimum prescribed sentence of only ten years' imprisonment, whereas any other
accused who was thereafter convicted as having been part of the gang which raped
the complainant (the appellant in the Manuel matter) would be liable to the
prescribed minimum sentence of life imprisonment, it now having been established
that the complainant had indeed been raped more than once, ie by two men. The
court held that it was bound by this decision and that the sentence of life
imprisonment imposed on the appellant in the Cock matter had to be set aside.
The court held, however, that in the exercise of its common-law jurisdiction it was
free to impose any sentence in excess of the prescribed minimum sentence of ten
years' imprisonment and, having regard to all the circumstances, including the fact
that the complainant was gang raped, the only appropriate sentence was that of life
imprisonment.
In respect of the appellant in the Manuel matter the court held that there were no
substantial or compelling circumstances which would justify the imposition of a lesser
sentence than life imprisonment and the appeal in respect of this appellant was
accordingly dismissed. As a new sentence of life imprisonment was imposed on the
appellant in the Cock matter, that sentence had to be backdated to the date of the
imposition of the original sentence.
S v MOTSEPE 2015 (2) SACR 125 (GP)
Defamation — Elements of offence — Unlawful and intentional publication of matter
concerning another which tended to injure his or her reputation — Journalist
appealing conviction of defamation — Published story defamatory of magistrate —
Based on incorrect facts which journalist believed to be true — Lacking intention —
Appeal succeeding.
Defamation — Whether offence consonant with Constitution — — Various amici
seeking to have common-law crime of defamation declared unconstitutional in regard
to media — Not succeeding — Whilst existence of criminal defamation undoubtedly
limited right to freedom of expression, such limitation was reasonable and justifiable
in open and democratic society and was consistent with criteria laid down in s 36 of
Constitution.
The appellant appealed against his conviction in a magistrates' court for criminal
defamation. The circumstances of the conviction were that the appellant, a journalist,
had written an article for a major newspaper dealing with two sentences imposed by
a white magistrate, one on a black man and the other on a white woman, which
suggested that the magistrate was biased. It was common cause that the articles
were published and, on a proper reading, it clearly injured the reputation of the
magistrate, and only intention and unlawfulness were in issue. The evidence was to
the effect that the appellant had relied on information received from an attorney and
that he had not verified the information. On appeal the court held that, on the
evidence, the appellant was clearly negligent in not taking further measures to
ensure that the information he received was correct. The court held, further, that the
court a quo was correct in holding that the appellant had acted hastily and had
thrown all caution to the wind and in this regard the finding that he had acted
recklessly was correct. Recklessness, however, did not equate to intention.
Held, further, that from the evidence it appeared that the appellant had relied on the
truth of the statement and deemed it in the public interest to publish the facts. Once
a person thought that the published words were covered by one of the recognised
defences to a claim for defamation, such person lacked the necessary intention
required for a conviction on criminal defamation. In the premises the state had failed
to prove intentional publication beyond a reasonable doubt and the conviction could
not stand.
Fourteen institutions applied to intervene in the appeal as amici curiae in the
interests of the media and their concern regarding the effect of criminal defamation
laws on the freedom of the media and the constitutionality of criminal defamation
laws. They contended that the civil remedy for defamation provided adequate means
to deter and prevent defamation by the media. They relied on a number of
international instruments and international case law to support their argument in
favour of the repeal of criminal defamation laws against the media. They contended
that the common-law crime of defamation was not consistent with the
Constitution and amounted to an unjustifiable limitation on the right to freedom of the
media. They requested that the court should develop the common law to limit the
crime to the publication of defamatory statements by persons who were not
members of the media.
Held, that there could be no doubt that the right to freedom of the media was of
critical importance and the media stood in a distinct position relative to the general
right to freedom of expression.
Held, further, that the request that the criminal defamation law be declared
unconstitutional undermined the Constitution and the Promotion of Equality and
Prevention of Unfair Discrimination Act 4 of 2000. Almost all of the international
instruments and international case law referred to by the amici in support of their
argument involved the condemnation of extreme situations of governmental abuse of
journalists. These examples did not find application in South Africa where journalists
and citizens enjoyed the benefit of the law and the Constitution.
Held, further, that freedom of expression did not have a superior status to other
rights under the Constitution.
Held, further, that a criminal sanction was indeed a more drastic remedy than the
civil remedy but that disparity was counterbalanced by the fact that the requirements
for succeeding in a criminal defamation matter were much more onerous than in a
civil matter and these onerous requirements in the case of criminal defamation would
probably be the reason for the paucity of prosecutions for defamation compared to
civil defamation actions.
Held, further, that prosecution of media journalists who committed a crime of
defamation was not inconsistent with the Constitution. In exercising their rights under
s 16 of the Constitution, the media should also guard against rights of others, as
freedom of expression was not unlimited and had to be construed in the context of
other rights, such as the right to human dignity.
Held, further, that the amici failed to make out a case for the decriminalisation of
defamation. Even though the defamation crime undoubtedly limited the right to
freedom of expression, such limitation was reasonable and justifiable in an open and
democratic society and was consistent with the criteria laid down in s 36 of the
Constitution. The appeal was accordingly upheld and it was declared that the
common-law crime of criminal defamation as pertained to the media was consistent
with the Constitution.
LAPANE v MINISTER OF POLICE AND ANOTHER 2015 (2) SACR 138 (LT)
Arrest — Without warrant — Further detention of accused — Constitutional duty on
police officers and public prosecutors handling case to ascertain reasons for further
detention — Such reasons or lack thereof to be placed before court —
Housebreaking implements found 'near' plaintiff not justifiable reason — Acted mala
fide — First and second defendants liable to plaintiff.
Prosecution — Prosecutor — Powers and duties of — Prosecutor unable to assist
court to assess whether prosecution and detention were justified in circumstances —
Housebreaking implements found 'near' plaintiff not justifiable reason to refuse bail
— Aware that without proof of presence of implements conduct would amount to
mala fides — Prosecutors did not apply their minds, rubber-stamped requests of first
defendant — Acted mala fide — First and second defendants liable to plaintiff.
The plaintiff instituted action against the first defendant, the Minister of Police, and
the second defendant, the Director of Public Prosecutions, for damages arising out
of an unlawful arrest, detention and prosecution. He was detained for 2 years and 13
days without being granted bail before the charges were withdrawn against him
without going to trial. The plaintiff testified that he was on his way home from a
nearby tavern when he was arrested. He alleged that he was denied any information
as to the reason for his arrest and that he was subsequently tortured and questioned
about a housebreaking and robbery. He was denied bail based on the submissions
made by the investigating officer and the prosecutor that he had been found in the
company of three other men and that housebreaking instruments were found near
him. The other men were released on bail or on a warning but he was continually
denied bail. It appeared that on the night in question an informer had tipped off the
police that another robbery was to be committed that night in the area where there
had recently been a spate of robberies. Despite the fact that the plaintiff had an alibi
that was very easy to check, the police relied entirely on the information of an
informer. The arresting officer could not say how close the alleged housebreaking
instruments were to the plaintiff and his fingerprints were not found on them.
The control prosecutor who took the decision to oppose bail relied entirely on the
contents of the docket in this regard and to inform the decision that the plaintiff
should be charged. She was unable to answer or explain why the plaintiff was
treated differently — at the time of his bail application — from the others who were
given bail or allowed to go on a warning.
Held, that the prosecutor's reliance on the alleged presence of
housebreaking implements near the plaintiff was not a justifiable reason to prosecute
him and refuse bail. This was not simply an error of judgment. Her conduct and
those of the prosecutors who took over were activated by mala fides, as they must
have known that without the proof of the presence of housebreaking implements, as
well as a failure to follow up on the plaintiff's explanation about his presence at the
tavern, their conduct would amount to mala fides.
Held, further, that the prosecutor and the relevant prosecutors seeking the
many postponements were responsible for the unfortunate and lengthy incarceration
of the plaintiff. Not one of the prosecutors had applied their minds to the case facing
the plaintiff but simply rubber-stamped the request by the police. In the
circumstances, the employees of the first and second defendants did not exercise
their powers in a bona fide manner and the first defendant was liable to the plaintiff
for the unlawful arrest and detention, while the second defendant was liable for the
prosecution and continued withholding of bail.
HO t/a BETXCHANGE AND ANOTHER v MINISTER OF POLICE AND OTHERS
2015 (2) SACR 147 (GJ)
Search and seizure — Search warrant — Warrant issued in terms of
Counterfeit Goods Act 37 of 1997 — Founding papers — Application for copies of
documents or statement that led to warrant being issued — Person entitled to such
information as part of judicial oversight of state's intrusion into individual's privacy —
Form of such application not necessarily by way of rule 53 review but any procedure
that was orderly and conducive to expeditious litigation acceptable — Relief justified
in order to take steps to protect dissemination of private information to prejudice of
applicant.
The two applicants were related companies whose businesses had been
subjected to a search by the South African Police Service in terms of a search
warrant that had been issued by a magistrate under the Counterfeit Goods Act 37 of
1997. The applicants operated a bookmaking business at two premises which were
licensed to sell alcohol which the patrons apparently consumed while betting and
watching horse racing screened by MNet on television sets via satellite signals fed
through a decoder. The complaint which led to the issue of the search warrant had
been initiated by the twelfth respondent, Tellytrack, which filmed the horse races and
streamed the images to MNet. Tellytrack had recently changed its conditions of
supply to MNet by confining its open viewing to the home market and requiring
businesses to pay for a separate licence to screen the races to their customers in
pubs and clubs. This change related to a dispute between the applicants and
Tellytrack which was being litigated separately. The applicants applied in the present
proceedings, pending the application to set aside the search warrants, to order the
respondents to deliver a copy of the complaint affidavits or statements used in
support of the applications for the warrants of search and seizure. The applicants
had requested that the affidavits or statements be supplied to them but the
respondents had refused to supply them and contended that the applicants'
approach to the court was the wrong way to compel disclosure, and until they were
compelled in the appropriate form they would refuse to disclose the documents.
They argued that the applicants would be entitled to the documents upon the
bringing of a review application in terms of rule 53 of the Uniform Rules to set aside
the magistrate's decision to issue the warrants.
Held, that if, as it seemed to be conceded, the applicants had a right to
the documents and the only real dispute was the procedure by which they had to be
disgorged, it followed that unless the procedure adopted by the applicants could be
faulted as being inimical to orderly litigation, no reason existed to proscribe it. It
seemed that a rule 53 approach was appropriate when the decision-maker had to go
to the trouble to compose a 'record', but a rule 6 application was appropriate when
the documents sought were unequivocally described and were already in existence,
on the shelf, so to speak, awaiting only the photocopier's caress, to be produced and
handed over as in the instant case.
Held, further, that the very purpose of requiring judicial oversight over the issue of
the warrant to enter, search and seize was to protect a person's right to privacy and
to subject to judicial scrutiny and oversight a belief by the police, however bona fide,
that they really had a need to invade a person's privacy and that they had shown a
cogent basis for a lawful invasion to be authorised, because not every alleged crime
justified a search warrant to procure evidence. Such considerations pointed towards
any person having a right of access to the founding papers in respect of a search
warrant, as part and parcel of the broader right to privacy and freedom from arbitrary
state action, values which permeate the Constitution.
Held, accordingly, in any exercise to assert the right to privacy and freedom from
arbitrary power, where a procedure that was orderly and conducive to expeditious
litigation was selected, it was improper to resist disclosure. The insistence on the use
of a rule 53 procedure was inappropriate, and the idea of awaiting a prosecution
misdirected, and the relief had to be granted. The court ordered accordingly.
S v JR AND ANOTHER 2015 (2) SACR 162 (GP)
Child — Offences against — Deliberate neglect of a child — Ambit of section
in respect of persons who may commit offence — Legislature having cast net wide
and section covers any person who may even temporarily or partially and voluntarily
be caring for the child — Children's Act 38 of 2005, s 305(3)(a).
Child — Offences against — Deliberate neglect of a child — Sentence — Biological
mother of child treated more severely than actual abuser as she F had greater
responsibility to child — Children's Act 38 of 2005, s 305(3)(a).
Rape — Sentence — Rape of minor — Mother convicted as accessory after fact —
Sentenced to seven years' imprisonment on this count — Mother's boyfriend,
convicted of having raped child, sentenced to life imprisonment.
The two appellants were convicted in a regional magistrates' court of assault with
intent to do grievous bodily harm (count 1); deliberately neglecting to attend to the
injuries of the 13-month-old child (D) in contravention of s 305(3)(a) of the Children's
Act 38 of 2005 (count 2); and a contravention of s 3 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007 by raping (count 3). The
first appellant, the biological mother of the child, was sentenced to ten years'
imprisonment in respect of count 1; eight years' imprisonment for count 2; and seven
years' imprisonment as an accessory to rape in respect of count 3. Five years of
the sentence for count 2 was ordered to run concurrently with the sentence on count
1. The second appellant, the first appellant's boyfriend, was sentenced to 10 years'
imprisonment for the first count, five years' imprisonment for count 2; and to life
imprisonment in respect of count 3. After considering the evidence the court upheld
the findings of the court a quo that both appellants were guilty on all three counts. In
coming to this conclusion the court had to inter alia consider a submission by the
second appellant that he was not in any way responsible for D and that therefore the
conviction brought out against him on count 2 was wrong in law as s 305(3)(a) did
not apply to him. As regards sentence, the first appellant contended that the
magistrate had erred in not taking counts 1 and 2 together for the purpose of
sentence as the offence of abuse stemmed directly from the assault. She also
submitted that the disparity between the sentence of eight years' imprisonment
imposed on her for count 2, as compared to the sentence of five years' imprisonment
imposed on the second appellant, was unfair. She furthermore contended that the
sentence of seven years' imprisonment imposed on her for being an accessory to
rape was excessive. It was contended for the second appellant, with respect to the
appeals against the sentences imposed, that there was no evidence that the child
had suffered any psychological trauma; that the appellant showed remorse; and that
he had limited intellectual capacity; and that these factors cumulatively justified a
sentence less than the minimum sentence of life imprisonment.
Held, as to the application of s 305(3)(a) to the second appellant, that the provisions
of the section were clear and that even a person who voluntarily cared for a child,
whether temporarily or partially, may be guilty of the offence of deliberately
neglecting a child. It was clear that the legislature had sought to spread the net cast
by the subsection as widely as possible in relation to who was deemed to be a
caregiver. It seemed that even if a person were a guest at the house of another who
had a small child and the guest voluntarily cared for the child for a few minutes while
the parent absented him- or herself, that guest fell within the ambit of the section and
this was not strange if one had regard to the constitutional imperative in s 28(2) of
the Constitution, which provided that a child's best interests were of paramount
importance in every matter concerning the child.
Held, further, as to the sentence imposed on the first appellant for counts 1 and
2, that the magistrate had taken into consideration the fact that the convictions on
those counts stemmed from one continuous criminal transaction, and that was
reflected in the order that those sentences be served, in part, concurrently. In doing
so, the magistrate had not erred in any way.
Held, further, as to the disparity in sentences for count 2, that the magistrate
had correctly taken into account the different positions held by the respective
appellants over the child, in that she was the biological mother of the child whereas
the second appellant was not D's father, and that she had a greater responsibility
towards the child.
Held, further, as to the first appellant's argument that the sentence on count 3 was
excessive, given that her liability was only that of an accessory, that the crime of
being an accessory after the fact was one that was entirely sui generis and its
seriousness did not depend on the nature of the crime which the main perpetrator
committed, but on the manner in which an attempt was made to enable the
perpetrator to escape liability. The sentence imposed was appropriate.
Held, further, that the child could not express herself verbally so no
psychological profile could be drawn, but it appeared from the victim impact report
that the child still experienced nightmares from time to time and that this could be a
consequence of the abuse she had suffered. The court a quo had correctly rejected
the submission that the second appellant showed remorse, and the suggestion that
he had limited intellectual capacity was not his defence, nor did he tender it in
mitigation as an explanation for poor judgment, which may have been a substantial
and compelling circumstance, but instead he refused to take responsibility and
showed no remorse. The second appellant's personal circumstances were
outweighed by the seriousness of the offence and the need to protect society from
any possible repetition of this kind of abuse. The appeal against the sentence was
accordingly dismissed.
S v SEBOFI 2015 (2) SACR 179 (GJ)
Police — Duties of — Duty to investigate — Police officer involved in
investigation ought to appreciate that axiomatic line of enquiry was circumstances
which might offer corroboration or throw suspicion on truth or accuracy of complaint
— Similarly, any response by accused is relevant and must be taken seriously and
investigated — Investigating officers should ideally participate in running and
presentation of evidence to court and should be active in assisting prosecution.
Trial — The prosecution — Duties of — Presentation of evidence — Case cannot be
presented by pouring out jumble of random facts — Fair trial needs to be coherent
and orderly — In matters as serious as rape charge, active role for investigating
officer ought to be mandatory in terms of standard prosecutorial and police
procedures.
Appeal — Powers of court on appeal — Remittal to court a quo in terms of s
304(2)(c)(v) of Criminal Procedure Act 51 of 1977 — Court not satisfied on appeal
that fair trial had taken place and expressing no view on guilt or innocence of
appellant — Highly relevant aspects not pursued in court a quo — Matter remitted
and regional magistrate required to call for evidence in terms of s 167 and s 186 of
CPA.
The appellant was convicted in a regional magistrates' court of two counts of rape
and was sentenced to life imprisonment. He appealed against the convictions as well
as the sentence. After evaluating the evidence the court held that it could not be
satisfied that a fair trial had taken place but expressed no view on the guilt or
innocence of the appellant. The court remarked that the calibre of the case
presentations, both prosecution and defence, was unacceptable for a case of this
seriousness. A prosecutor could not present a case by just pouring out a jumble of
random facts. This was unfair to a court and it retarded the aim of a fair trial which,
apart from other factors, needed to be coherent and orderly. The defence fared little
better: the cross-examination hardly plumbed the body of evidence and appeared to
have no plan or objective and was either blind or inattentive to several material or
potentially material details. The narrative of the testimony referred to relevant
aspects which were ignored or overlooked. An adversarial process was founded on
proper preparation and commitment to testing the testimony available. It was not
served by treating the process as a clerical chore. These disturbing features troubled
the court and if the forensic standards exhibited in this trial were typical of the
regional court, it begged the question whether the regional court was a fit forum to
hear matters of such a serious nature. Victims of rape, as a class of vulnerable
people in our society, ought to have a reasonable expectation that their cases were
taken seriously enough to be investigated properly and tried at a standard so that the
guilty did not wriggle free because of superficial attention to detail by those who were
responsible to protect them. In rape cases the most familiar scenario would be that
the victim was a single witness and it was therefore a foreseeable and generic
aspect of such cases. Accordingly any police officer who was involved ought to
appreciate that an axiomatic line of enquiry was the circumstances which might offer
corroboration or throw suspicion on the truth or accuracy of the complaint. Similarly,
when a person accused of rape was confronted, what he said in response, whether a
flat denial, an explanation or alibi, or whether he said nothing whatever, was
relevant. Whatever rebuttal he offered had to be taken seriously and investigated
and reported on in evidence to demonstrate whether it supported or destroyed the
denial. Medical forensic tests had to be properly processed and reported on when
they could resolve critical issues which might exclude a suspect from culpability.
The court remarked further that investigating officers should, ideally, participate in
the running and presentation of the evidence to court and should be active in
assisting the prosecution. Often versions were disclosed for the first time during
cross-examination of state witnesses, or aspects of a witness's evidence required
amplification, qualification or simply explanation. These matters needed to be
followed up and, if necessary, postponements sought to investigate the correctness
or otherwise of the facts in question. A matter as serious as a rape charge, carrying
the drastic sanctions which followed upon a conviction, fell into the category of
matters in which an active role for the investigating officer ought to be mandatory in
terms of standard prosecutorial and police procedures.
In the circumstances the court held that the interests of justice required
remedial action in the present matter in the form of setting aside the conviction and
remitting the matter for further evidence. The verdict of guilty was set aside and the
case remitted to the trial magistrate in terms of the provisions of s 304(2)(c)(v) of the
Criminal Procedure Act 51 of 1977, and the trial was to be reopened and the
magistrate was to call for evidence in terms of ss 167 and 186 of the Criminal
Procedure Act 51 of 1977 about the specimens taken at the medical examination
and the laboratory test results, as well as alleged cellphone communications of the
appellant and such records thereof that might exist.
S v SEHOOLE 2015 (2) SACR 196 (SCA)
Prosecuting authority — Prosecutor — Authority of — Charge — State having
discretion regarding prosecution and pre-trial procedures and could decide inter alia
whether or not to institute prosecution — No statutory provision compelling state to
charge for more serious offence where more than one option.
Arms and ammunition — Unlawful possession of ammunition in contravention of s 90
of Firearms Control Act 60 of 2000 — Proof that items are ammunition — Although
ballistics report would provide proof, no authority compelling state to produce such
evidence — Where ammunition had been found inside properly working firearm, it
could be deduced to be ammunition related to firearm.
The respondent was convicted in a regional magistrates' court of contravening ss 3
and 90 of the Firearms Control Act 60 of 2000, in that he was found in unlawful
possession of a firearm and ammunition. He was sentenced to ten and five years'
imprisonment, respectively, for the possession of the firearm and ammunition. The
sentences were ordered to run concurrently. He appealed to the High Court against
the convictions and sentences. The High Court set aside the convictions and
sentences on the ground that the respondent should have been charged with the
more serious offence of a contravention of s 4 of the Act, having been in possession
of a firearm, the serial number of which had been filed off. As regards the conviction
for being in possession of the ammunition, the High Court held that there was no
evidence before the court that the items found in the possession of the respondent
constituted ammunition. The state appealed against the judgment of the court on
questions of law in terms of s 311(1) of the Criminal Procedure Act 51 of 1977, with
the leave of the court a quo.
Held, as to the issue of the correct charge, that the state, as dominus litis, had
a discretion regarding prosecution and pre-trial procedures. The state could elect to
charge a person with a less serious offence. In the present case the state had so
elected under that general prohibition of possession of a firearm without a licence in
terms of s 3, rather than under s 4 of the Act. There was no statutory provision which
compelled the state to charge a person with the more serious offence.
Held, further, that, ordinarily, courts were not at liberty to interfere with the
prosecutor's discretion unless there were truly exceptional circumstances for doing
so. In the present case the state's decision to prosecute the respondent under s 3 of
the Act did not fall into any category warranting the court to interfere and to be
prescriptive regarding the charge that was preferred. Held, further, as to the charge
of the possession of ammunition, that, whilst it was undoubtedly so that a ballistics
report would provide proof that a specific object was indeed ammunition, there was
no authority compelling the state to produce such evidence in every case. Where
there was acceptable evidence disclosing that ammunition had been found inside a
properly working firearm, it could, in the absence of any countervailing evidence,
be deduced to be ammunition related to the firearm. It followed that the High Court
had erred in finding that a ballistics report was the only manner of proving that the
offence had been committed. The appeal was accordingly upheld and the order of
the High Court was set aside in its entirety, and the convictions and sentences of the
regional court were reinstated, and the matter was remitted to the High Court for a
de novo hearing on the respondent's appeal.
S v MALIGA 2015 (2) SACR 202 (SCA)
Trial — Presiding officer — Duties of — Discharge of accused at end of state's case
— State not making out prima facie case — Presiding officer must raise this question
mero motu, irrespective of whether accused represented or not.
Prosecuting authority — Prosecutor — Powers and duties of — Paramount duty of
prosecutor not to secure conviction but to assist court to ascertain truth and dispense
justice — Prosecutor has duty to alert court to possible inadmissibility of evidence
that state wished to lead and in appropriate circumstances to request trial-within-atrial in order to determine admissibility of statements.
The appellant was charged in the Venda Provincial Division in January 2000 with the
murder of his wife. The state produced in evidence a statement made by the
appellant to the effect that he had shot his wife during an argument. The statement
was elicited by the investigating officer, a sergeant in the South African Police
Service and another sergeant (who were accordingly not I commissioned officers as
envisaged by s 334 of the Criminal Procedure Act 51 of 1977), who did not warn the
appellant of his constitutional rights as envisaged in s 35 of the Constitution. The
statement was not confirmed or reduced to writing in the presence of a magistrate or
justice. Despite this, there was no objection on the part of the appellant's legal
representative to the introduction of what amounted to inadmissible evidence. An
application was brought in terms of s 174 for the discharge of the appellant at
the end of the state's case but this was refused. The appellant was convicted and
was sentenced to 48 years' imprisonment. He appealed against his conviction and
sentence and the appeal came before the court only in 2014 without any explanation
being offered for the delay of 12 years between conviction and appeal.
Held, that the court had a duty to ensure that the accused was properly defended
and that his or her constitutional rights were not negatively affected, either by
commission or omission. If at the end of the state's case, the state had not made out
a prima facie case, the presiding officer had to raise the question of a discharge
mero motu, especially in the absence of an application for discharge. This duty was
not dependent on whether the accused was represented or not.
Held, further, that even more important was the role of the prosecutor. A prosecutor
stood in a special position in relation to the court. The paramount duty of a
prosecutor was not to procure a conviction but to assist the court in ascertaining the
truth. In the instant case the prosecutor was duty-bound to alert the presiding officer
of the possible dangers which were lurking in admitting the warning statement. The
prosecutor, who was the only person likely to know exactly what evidence he was
about to place before court, ought to have at least sought a ruling on the admissibility
of the warning statement and the statement allegedly made by the policeman who
arrested him. The written statement introduced to the court was a confession and
could not have been admitted as it did not comply with the legal formalities. If the
prosecutor were intent on having the evidence admitted, at the very least he should
have requested a trial-within-a-trial in order to determine the admissibility of the
statement.
Held, further, that the appellant had clearly been lured into testifying and
consequently did not receive a fair trial as envisaged in s 35 of the Constitution. The
conviction accordingly had to be set aside.
S v GROBLER 2015 (2) SACR 210 (SCA)
Fraud — Sentence — Correctional supervision — Generally — Fraud committed by
misrepresenting that investments were going into JSE listed company whereas
misappropriated for himself — Sentence of three years' correctional supervision with
strict supervision regime, entailing community service, monitoring and house arrest,
appropriate sentence where 13 years had elapsed since accused charged —
Accused first offender with tertiary qualification who had at all times been
economically active — Sentence appropriate.
The appellant was convicted in a regional court of 11 counts of fraud involving an
amount of approximately R1,5 million. The fraud had been committed by the
appellant misrepresenting to investors that their money was being invested in a JSE
listed company whereas he was taking the money for himself. The counts were all
taken together for the purposes of sentencing and he was sentenced to three years'
correctional supervision in terms of s 276(1)(h) of the Criminal Procedure Act 51 of
1977 and, in addition, was sentenced to five years' imprisonment suspended in its
entirety for five years on certain conditions. The conditions included the
reimbursement of the complainants to the full extent of their financial loss. When
he appealed to the High Court against his conviction his legal representative was
given notice that, in the event of the appeal against the conviction failing, he had to
be prepared to address the court on the suitability of the sentence. On appeal the
High Court confirmed the conviction and set aside the sentence and replaced it with
one of five years' direct imprisonment. He appealed against this sentence. It
appeared that the appellant was a first offender. He was an educated man with a
tertiary qualification and was married with three dependent children. The charges
had been laid against him in 2000 and he had endured emotional and mental
suffering since then. On appeal,
Held, that there was no indication in the judgment of the High Court why it saw fit to
interfere with the sentence imposed by the regional court. In arriving at what it
thought was an appropriate sentence, the regional court had been aided by a
comprehensive correctional supervision report with a strict correctional supervision
regime, entailing inter alia community service, monitoring by the commissioner, and
included rehabilitative programmes and house arrest for three years.
Held, further, that it was difficult to understand how the High Court had come to the
conclusion that direct imprisonment was suitable in the light of the carefully reasoned
judgment of the trial court. The reasoning of the High Court that because another
person would be making the payments for the reimbursement of the complainants
this would mean that the appellant would get off 'scot-free', was flawed. Should the
appellant fail to make any payment, he would be in breach of the conditions imposed
and the sentence of five years' direct imprisonment would then come into operation.
There was no evidence before the High Court to suggest that he would not have to
repay his benefactor.
Held, further, that, pragmatically, it would be unreasonable to incarcerate
the appellant, who had been an economically active member of society for the past
13 years since he was charged, and who had not committed any other offences
during this period. His circumstances provided a compelling case for a non-custodial
sentence and the regional court had clearly not misdirected itself when it imposed a
finely tuned sentence without resorting to imprisonment. The appeal accordingly
succeeded and the conviction and sentence imposed by the regional court were
confirmed.
All SA LAW REPORTS August 2015
Part One
Boost Sports Africa (Pty) Ltd v South Africa Breweries (Pty) Ltd [2015] 3 All SA
255 (SCA)
Civil procedure – Security for costs – Whether an incola company can be compelled
to furnish security for costs in light of the fact that the new Companies Act 71 of
2008 did not contain a similar provision to section 13 of the previous Companies
Act 61 of 1973 which used to cater for that – Although no corresponding provision
to section 13 in the new Companies Act, a court does have the inherent power to
regulate its own proceedings and an incola company, like an incola natural person,
may accordingly be compelled to furnish security for costs, but only if the court is
satisfied that the contemplated action is vexatious or reckless or otherwise amounts
to an abuse.
Words and phrases – “abuse” – Con a misuse, an improper use, a use mala fide, a
use for an ulterior motive.
Words and phrases – “vexatious” – Having dictionary meaning of “frivolous,
improper: instituted without sufficient ground, to serve solely as an annoyance to the
defendant”.
Based on an alleged breach of contract by the respondent, the appellant instituted
action in the High Court.
Concerned that the appellant would not be able to meet an adverse costs order
should it fail in the contemplated action, the respondent launched an application for
security for its costs. The present appeal was against the granting of the order.
Held – An application for security for costs is governed by rule 47 of the Uniform
Rules of Court. The rule, which deals with the procedure to be followed, applies to all
cases where security is sought in the High Court. It deals with procedure and not
with substantive law. It is the common law and the relevant statutory provisions that
govern the substantive right.
The general rule of our law is that an incola plaintiff cannot be compelled to furnish
security for costs, but a peregrinus may be called upon to do so, unless he can prove
that he is possessed of immovable property of adequate value within the country. In
the case of a company, until recently, there existed a statutory exception to the
general rule that an incola plaintiff cannot be compelled to furnish security. Section
13 of the Companies Act 61 of 1973 sought to protect persons against liability for
costs in regard to any action instituted by bankrupt companies. Its main purpose was
to ensure that companies, who were unlikely to be able to pay costs and therefore
not effectively at risk of an adverse costs order if unsuccessful, did not institute
litigation in circumstances where they had no prospects of success thus causing
their opponents unnecessary and irrecoverable expenses. So, if a company ordered
to provide security for costs was unable to do so, it could have been prevented from
proceeding with its action. The approach adopted had been that although the court
was not bound to order security to be furnished, it should nevertheless do so unless
special circumstances exist. The Companies Act 71 of 2008, which repealed the
1973 Act, does not contain an equivalent provision to section 13. As a result, the
High Courts have recently had occasion to consider whether, absent a counterpart
to section 13 in our new Act, an incola company can be ordered to furnish security
for costs. The courts have not been in agreement on that question. The present
Court therefore approached the question as if the matter was res nova.
The starting point was the fact that the courts have the inherent power, derived
from the Constitution, to regulate their own process as well to develop the common
law. Secondly, it is a well-established principle of statutory construction that the
Legislature must be taken to be aware of the nature and state of the law existing at
the time when legislation is passed. The omission of a similar provision to section
13 from the 2008 Act, must therefore be taken (prima facie at least) to import a
change of intention on the part of the Legislature.
Section 39(2) of the Constitution states that, when a court embarks upon a course
of developing the common law, it is obliged to promote the spirit, purport and objects
of the Bill of Rights. The court must undertake a two-stage enquiry. It should ask
itself whether, given the objectives of section 39(2), the existing common law should
be developed beyond existing precedent, and if so, how the development should
occur and which court should embark on that exercise.
The onus is on the party seeking security to persuade a court that security should
be ordered. In the absence of section 13, there can no longer be any legitimate basis
for differentiating between an incola company and an incolanatural person. And as
our superior courts have a residual discretion in a matter such as this arising from
their inherent power to regulate their own proceedings, it must follow that the former
can at common law be compelled to furnish security for costs. Accordingly, even
though there may be poor prospects of recovering costs, a court, in its discretion
should only order the furnishing of security for such costs by an incola company if it
is satisfied that the contemplated main action (or application) is vexatious or reckless
or otherwise amounts to an abuse.
In this case, the appellant had failed to show that an order compelling it to furnish
security would have the effect of it being forced to terminate its action. The lack of
candour by its shareholders, who were funding its litigation but were unwilling to
assist it in putting up security for the respondent’s costs, was found to be telling. The
appellant did not trade and had no assets. Moreover, it would not be in a position to
meet an adverse costs order should one ultimately be granted against it. Therefore,
the High Court was correct in making the order it did.
The appeal was dismissed.
Panamo Properties (Pty) Ltd and another v Nel NO and others [2015] 3 All SA
274 (SCA)
Business rescue proceedings – Effect of non-compliance by company with
procedural requirements of sections 129(3) and (4) of Companies Act 71 of 2008 –
Non-compliance does not automatically result in the business rescue being
terminated, but constitutes a ground for bringing an application to court to set aside
the resolution in terms of section 130(1)(a)(iii) – A court will only set aside such
resolution if it is otherwise just and equitable to do so in terms of section 130(5).
The sole shareholder of the first appellant (“Panamo”) was a trust in which the first
and second respondents were trustees. Panamo was a property-owning company
owning a large property on which the trustees’ home was situated. The property was
mortgaged in favour of the sixth respondent, but Panamo fell into arrears and
judgment was taken against it. The hypothecated property was declared executable.
In order to prevent a sale of the property and afford the trustees time to resolve
Panamo’s financial problems, the trust resolved to place Panamo in business
rescue. However, two years later, the trust sought an order declaring that the original
resolution to place Panamo in business rescue had lapsed and consequently that the
entire business rescue process was a nullity. The trust relied on its failure to comply
with various requirements prescribed by sections 129(3) and (4) of the Companies
Act 71 of 2008. The High Court upheld that argument, resulting in the present
appeal.
Held – The appeal involved a determination of the correctness of the High Court’s
construction of section 129(5).
Business rescue is a process aimed at avoiding the liquidation of a company if it is
feasible to do so. There are two routes through which a company may enter
business rescue, namely, by way of a resolution of its board of directors or by way of
a court order. The Court was concerned with the former. Under section 129(1), the
board of a company may resolve to begin business rescue proceedings if it has
reasonable grounds for believing that the company is financially distressed and there
appears to be a reasonable prospect of rescuing the company. Once a resolution is
taken it only becomes effective when it is filed with the Companies and Intellectual
Property Commission, Republic of South Africa. After the resolution has been filed,
the company is obliged to take certain steps set out in sections 129(3) and (4) of the
Act. The termination of business rescue proceedings is specifically dealt with
in section 132(2). That provision does not say that the lapsing of the initiating
resolution will cause the business rescue to terminate. Instead, it says in section
132(2)(a)(i) that business rescue is terminated when the court sets the initiating
resolution aside. That focuses on the provisions of section 130 of the Act, which
provide for an affected party to apply to court for the initiating resolution to be set
aside in certain circumstances, including non-compliance with the procedural
requirements of section 129. The court will only grant an order setting aside the
initiating resolution if it is satisfied on a consideration of all the circumstances that it
is just and equitable to do so. It was common cause that in this case there was a
degree of non-compliance with those provisions. The Court held that non-compliance
with the procedural requirements of sections 129(3) and (4) does not automatically
result in the proceedings becoming a nullity.
Although the statutory provisions were poorly drafted, the Court pointed out that
once it is appreciated that the fact that non-compliance with the procedural
requirements of section 129(3) and (4) might cause the resolution to lapse and
become a nullity, but does not terminate the business rescue, the legislative scheme
of the sections becomes clear. The company may initiate business rescue by way of
a resolution of its board of directors that is filed with CIPCSA. The resolution and the
process of business rescue that it commenced, may be challenged at any time after
the resolution was passed and before a business rescue plan is adopted on the
grounds that the preconditions for the passing of such resolution are not present. If
there is non-compliance with the procedures to be followed once business rescue
commences, the resolution lapses and becomes a nullity and is liable to be set aside
under section 130(1)(a)(iii). In all cases, the court must be approached for the
resolution to be set aside and business rescue to terminate.
Finding that the High Court had erred in its approach and should have dismissed
the application, the court upheld the appeal.
Za v Smith and another [2015] 3 All SA 288 (SCA)
Claim for damages – Loss of support – Liability of owners of property where
deceased fell to his death – Concepts of wrongfulness, negligence and causation
discussed – Fact that danger might be clear and apparent does not excuse those in
control from taking steps to avoid risk of harm to visitors using property.
In operating a private nature reserve, the second respondent invited and allowed
members of the public, for a fee, to make use of the recreational facilities available in
the reserve. It did so with the full knowledge and approval of the first respondent,
who was the owner of the property on which the reserve was located.
The appellant’s husband, and father of her three children, was killed when he
slipped on a snow covered mountain slope and fell over a 150 metre sheer precipice
to his death at Conical Peak, one of the highest mountain peaks in the Western
Cape. Conical Peak was situated in the first respondent’s private reserve.
In her personal capacity and in her capacity as mother and natural guardian of her
three children, the appellant sued the respondents for damages representing the
loss of support they had suffered through the death of her husband. Her claim was
based on delictual liability arising from the wrongful and negligent failure by the first
and second respondents to take reasonable steps to avoid the incident which led to
the death of the deceased.
The High Court held that the appellant had failed to discharge the onus of proving
a causal connection between the alleged wrongful and negligent omission of the
respondents, on the one hand, and the death of the deceased, on the other. In
consequence, her claims were dismissed with costs. The appeal against that
judgment was with the leave of the court a quo. There was also a cross-appeal by
the respondents, aimed at the failure by the court a quo to award the costs of the
respondents’ expert witness.
Held – The respondents denied wrongfulness, arguing that owners and others in
control of property, are under a duty to warn and protect those who visit the property
against hidden dangers of which the latter are unaware, but not against dangers
which are clear and apparent. The present Court did not believe that the concept of a
clear and apparent danger, on which the respondents relied for their line of defence,
had anything to do with wrongfulness. The Court pointed to the often-confused
discrete concepts of wrongfulness and negligence in delictual liability. It also
confirmed that the correct test for negligence is that of the diligens paterfamilias, and
involves whether a diligens paterfamilias in the position of the person concerned
would take any guarding steps at all and, if so, what steps would be reasonable.
The Court was satisfied that the element of wrongfulness had been established by
the appellant. In determining wrongfulness, the other elements of delictual liability
are usually assumed. Hence the enquiry is whether, on the assumption that the
respondents in this case could have prevented the deceased from slipping and
falling to his death and that he had died because of their negligent failure to do so, it
would be reasonable to impose delictual liability upon them for the loss that his
dependants had suffered through their negligence. The Court noted that the
respondents were in control of a property which held a risk of danger for visitors. The
second respondent, with the knowledge and consent of the first respondent, allowed
members of the public, for a fee, to make use of a four-wheel drive route, designed
to lead directly to the area which proved to be extremely dangerous. The Court held
that the respondents should have warned and protected the unwary visitor against
the danger of slipping and sliding over the precipice. The failure in that regard was
negligent.
The test for causation is whether, but for the defendant’s wrongful and negligent
failure to take reasonable steps, the plaintiff’s loss would not have ensued. In the
circumstances of the present matter, the Court found that but for the respondents’
wrongful and negligent failure to take reasonable steps, the harm that befell the
deceased would not have occurred.
The appeal was therefore upheld, and the cross-appeal dismissed.
Kgomo and another v Standard Bank of South Africa and others [2015] 3 All
SA 305 (GP)
Default judgment – Erroneous granting of – Rescission – Uniform Rules of Court –
Rule 42(1)(a) – Main contention that the judgment was erroneously sought and
granted, was the bank’s failure to comply with section 129(1) read with section
130 of the National Credit Act 34 of 2005 – Issue was whether non-compliance
with section 129(1) and the relevant parts of section 130 was merely a dilatory
defence that did not give rise to an erroneous seeking or granting of default
judgment – Court proceeded in terms of section 130(4)(b)(i) and (ii) by adjourning
the proceedings and directing what steps the bank must take before the proceedings
were resumed.
Judgment was granted against the applicants, together with an order declaring
certain immovable property to be specially executable, and an order authorising the
Registrar to issue a warrant of execution against the property. The grant of default
judgment followed on the applicants’ default on their mortgage loan with the first
respondent bank.
Rescission of the default judgment was sought in terms of rule 42(1)(a) of the
Uniform Rules of Court on the basis that it was erroneously sought and erroneously
granted in the absence of the party affected by it. The main basis for the applicants’
contention that the judgment was erroneously sought and granted was the bank’s
failure to comply with section 129(1) read with section 130 of the National Credit
Act 34 of 2005.
Held – In terms of the above provisions, delivery of a notice is required before legal
proceedings are commenced. The notice draws the debtor’s attention to his default
and invites him to consider using one of the non-judicial mechanisms provided for in
the Act with a view to agreeing on a plan to bring the payments up to date. It was
common cause that the notice was sent to an address which was not in fact the
address of the applicants. Therefore, the notice did not reach the applicants before
the bank issued summons.
Based on relevant case law, the Court had to establish the implications of the
admitted failure to deliver the notice in this case. The question was whether noncompliance with section 129(1) and the relevant parts of section 130 was merely a
dilatory defence that did not give rise to an erroneous seeking or granting of default
judgment. If so, rescission of judgment had to be refused.
It was clear from the pleadings that the bank’s particulars of claim averred delivery
of the notice to the applicants. That was clearly incorrect and judgment was therefore
granted erroneously. The flawed section 129(1) notice, reflecting the incorrect
address for the applicants, was an annexure to the particulars of claim. That the
address was incorrect was apparent by comparing it with the correct address
reflected in the particulars of claim. That address reflected a street number that did
not coincide with the erf number. The error was thus apparent on the record when
default judgment was granted. In those circumstances, the Court was required to
proceed in terms of section 130(4)(b)(i) and (ii) by adjourning the proceedings and
directing what steps the bank must take before the proceedings were resumed. The
applicants were therefore entitled to rescission of the judgment granted against
them.
Land and Agricultural Development Bank of South Africa v Factaprops 1052
CC and another [2015] 3 All SA 319 (GP)
Amendment of plea – Special plea of prescription – Nature of notarial bond –
Distinction from mortgage bond – Issue was what the period of prescription is in
respect of a debt secured by a notarial bond envisaged insection 1 of the Securities
by Means of Movable Property Act 57 of 1993 – Section 11 of the Prescription Act 68
of 1969 stipulates that the period of prescription of debts is thirty years in respect of
any debt secured by mortgage bond; six years in respect of a debt arising from a bill
of exchange or other negotiable instrument or from a notarial contract, unless a
longer period applies in respect of the debt, and three years for any other debt – A
notarial bond when executed or registered, hypothecates corporeal movable
property specified in the bond, cannot constitute a mortgage bond, and accordingly,
prescription of the debts secured by such divergent bonds, ought to differ both in
effect and interpretation.
The applicants (the defendants in the main action) sought leave to amend their plea
in terms of rule 28(4) of the Uniform Rules of Court. The plea sought to be amended
incorporated a special plea of prescription. Upon delivery of the relevant notice in
terms of rule 28(1) referred to, the respondent served a notice of objection to the
proposed amendment, contending that its cause of action is for payment of a debt
secured by a notarial bond, and that the applicable prescription period in terms
of section 11(a)(i) of the Prescription Act 68 of 1969 is therefore 30 years.
Consequently, the special plea sought to be inserted by the proposed amendment
was not only bad in law, but also did not disclose any defence, and would
accordingly be excipiable if allowed to stand.
As a result of that objection, the applicants now approached the court for leave to
amend their plea by introducing the special plea of prescription of the claims against
them.
Held – The question for consideration was two-fold: whether a registered notarial
mortgage bond, for a debt, falls within the ambit “mortgage bond” in terms of the
provisions of section 11(a)(i) or a debt arising from a “notarial contract” in terms of
section 11(c) or a written loan contract in terms of sec-tion 11(d) of the Prescription
Act, 1969 – or put differently, what the period of prescription is in respect of a debt
secured by a notarial bond envisaged insection 1 of the Securities by Means of
Movable Property Act 57 of 1993.
A debt shall be extinguished by prescription after a lapse of the period which in
terms of the relevant law applying in respect of the prescription of such debt. The
period of prescription of debts is governed by the provisions of section 11 of the
1969 Prescription Act which stipulates that the period of prescription of debts is thirty
years in respect of any debt secured by mortgage bond; six years in respect of a
debt arising from a bill of exchange or other negotiable instrument or from a notarial
contract, unless a longer period applies in respect of the debt, and three years for
any other debt. Prescription begins to run as soon as the debt becomes due. A
notarial bond which in its nature, when executed or registered, hypothecates
corporeal movable property specified and described in the bond, cannot constitute a
mortgage bond, and accordingly, prescription of the debts secured by such divergent
bonds, ought to differ both in effect and interpretation. Accordingly, the period of 30
years does not apply to the notarial bond because it is not a mortgage bond.
Setting out the principles applicable to amendment of pleadings, the Court found
no reason not to allow the amendment to the plea, introducing the special plea of
prescription.
Primedia Broadcasting, A Division of Primedia (Pty) Ltd and others v Speaker
of the National Assembly and others [2015] 3 All SA 340 (WCC)
Broadcasting – Internal arrangements, proceedings and procedures of National
Assembly – Sections 57 and 59(2) of the Constitution of the Republic of South
Africa, 1996 – Media not to be excluded unless it would be reasonable and justifiable
to do so in an open and democratic society – Rules laid down by Parliament
regulating the televising of proceedings in Parliament – Challenge to provisions of
paragraph 8.3.3.2 of the Policy on Filming and Broadcasting – Challenge failing as
impugned rules held to be reasonable and justified.
Constitutional law – Proceedings of Parliament – Rules laid down by Parliament
regulating the televising of proceedings in Parliament – Challenge to provisions of
paragraph 8.3.3.2 of the Policy on Filming and Broadcasting – Televising during
continued incidents of grave disorder or unparliamentary behaviour – Challenge
failing as impugned rules held to be reasonable and justified.
Events which occurred during the 2015 State of the Nation Address (“SONA”) were
at the heart of the present matter. The State Security Agency employed a device that
jams mobile telecommunication signals. Consequently, journalists and MPs
attending SONA were rendered unable to use their cell-phones in order to inform
members of the public not in attendance about the happenings in Parliament. It was
also averred by the applicants in this matter that members of the public were denied
the right to see for themselves events of national importance occurring on the floor of
the Parliamentary Chamber when the following took place.
The applicants challenged the constitutional validity of paragraph 8.3.3.2 (a) of
Parliament’s Policy on Filming and Broadcasting (“the Policy”) and raised the
question of whether any order was to be made regarding the jamming incident that
occurred shortly before the SONA. The premise of the applicants’ case was that all
South Africans have a right to know what happens in Parliament and that includes a
right to see and hear for themselves disruptions by members of Parliament.
Held – The provisions of sections 57(1) and 70(1) of the Constitution empower
Parliament to make rules and orders concerning its business. The various rules and
policies adopted and approved by Parliament are essential for its ordered operation.
There is no obligation on Parliament to broadcast conduct that clearly obstructs or
disrupts its proceedings and conduct that unreasonably impairs its ability to conduct
its business in an orderly and regular manner acceptable in a democratic society
because such conduct is not legitimate Parliamentary business. Thus, the challenge
levelled against the policy had to fail.
ALL SA AUGUST 2015 PART TWO
Commissioner for the South African Revenue Service v Van der Merwe [2015]
3 All SA 387 (SCA)
Appeal – Lapsing of – Whether condonation should be granted and the appeal
revived – In cases of flagrant breaches of the rules, especially where there is no
acceptable explanation therefor, the indulgence of condonation may be refused
whatever the merits of the appeal – In casu, breaches of the rules were of such a
nature and explanation offered so unacceptable and wanting that condonation
refused irrespective of the applicant’s prospects of success on appeal.
Tax – Appointment of curator bonis – Tax Administration Act 28 of 2011 – Section
163(7)(b) – A court granting a preservation order, may make any ancillary orders
regarding how the assets must be dealt with including appointing a curator bonis in
whom the assets must vest – Pointing to the respondent’s sudden acquisition of
extraordinary wealth, the Court was of the view that an investigation was called for
which required the appointment of a curator bonis.
In the context of a long-running dispute with the respondent’s father (“Mr Van der
Merwe”) about his tax liability, the appellant (“SARS”) formed the opinion that Mr Van
der Merwe had been associated with certain juristic entities that had fraudulently
claimed VAT refunds from SARS. SARS asserted that those entities were
collectively liable to it for tax, additional tax, penalties and interest, and therefore
applied to the High Court against a total of 22 respondents, including Mr Van der
Merwe, the applicant and a host of corporate entities for a preservation order, and
the appointment of a curator bonis in terms of section 163(4)(a) of the Tax
Administration Act 28 of 2011. The High Court issued a provisional preservation
order but did not appoint the curator bonis sought by SARS. In terms of the order,
the respondents were interdicted from dealing with, disposing of, encumbering or
removing from the country any of the assets listed in the order.
Leave was granted to the respondent to appeal to the present Court against the
grant by the High Court of the preservation order, and to SARS to cross-appeal
against the failure of the High Court to appoint the curator sought by it. However, the
respondent failed to take any steps whatsoever to prosecute her appeal with the
result that it lapsed. Therefore, the first question before the Court was whether her
default should be condoned and the appeal revived.
Held – Condonation is not to be had merely for the asking. Factors which usually
weigh with this Court in considering an application for condonation include the
degree of non-compliance, the explanation therefor, the importance of the case, a
respondent’s interest in the finality of the judgment of the court below, the
convenience of this Court and the avoidance of unnecessary delay in the
administration of justice.
In this case, the Court found the explanation proffered for the default to be woefully
inadequate. It therefore found it impossible to hold that the delay in bringing the
present application was explained in a satisfactory manner. The Court was also not
convinced of the prospects of success on appeal. The Court did not deal with the
applicant’s prospects of success on appeal because the circumstances of the
present case were such that the application for condonation had to be refused
irrespective of the prospects of success. It was pointed out that in cases of flagrant
breaches of the rules, especially where there is no acceptable explanation therefor,
the indulgence of condonation may be refused whatever the merits of the appeal.
It was held further that the conduct encountered in this matter was deserving of an
order of costs on the punitive scale. The conduct of the applicant and her father
throughout generated costs that should not have been incurred. Those costs should
not be borne by compliant taxpayers. An award of costs on the scale as between
attorney and client was justified in this case.
The appeal by SARS was confined to a consideration of whether the order of the
High Court should have made provision for the appointment of a curator bonis. In
terms of section 163(7)(b) of the Tax Administration Act, a court granting a
preservation order, may make any ancillary orders regarding how the assets must be
dealt with including appointing a curator bonis in whom the assets must vest.
Pointing to the respondent’s sudden acquisition of extraordinary wealth, the Court
was of the view that an investigation was called for. That required the appointment of
a curator bonis. The High Court should therefore have granted the order sought by
SARS in that regard, and SARS appeal was thus upheld.
Minister of Mineral Resources and others v Mawetse (SA) Mining Corporation
(Pty) Ltd [2015] 3 All SA 408 (SCA)
Mining and minerals – Prospecting right – Lapsing of – Mineral and Petroleum
Resources Development Act 28 of 2002 – Untenable for a prospecting right to be
granted and reserved indefinitely, and the period for which it endures must be
calculated from the date on which the right holder was informed of the granting of the
right – Right endures for the period for which it was granted, and then lapses
irrespective of whether it still has to be executed and that it has not yet become
effective.
In November 2006, the fifth appellant (“Dilokong”) applied for a prospecting right for
chrome ore in respect of a farm (“Driekop”). On receiving the application, the fourth
respondent (“the Regional Manager”) requested Dilokong to give effect to the objects
of section 2(d) of the Mineral and Petroleum Resources Development Act 28 of
2002 (“the Act”) by submitting, amongst others, a signed shareholder agreement by
a certain date. Dilokong did not comply, and on the date on which the prospecting
right was about to be notarially executed, it was informed that the execution could
not take place, due to the failure to give effect to section 2(d) in relation to the
required BEE shareholding.
Oblivious of the facts set out above, the respondent (“Mawetse”) applied in
September 2009 for a prospecting right for various minerals (including chrome) in
respect of Driekop. Its application was rejected in terms of section 16(2)(b)of the Act
because that prospecting right had already been granted to Dilokong. Upon
investigation Mawetse discovered that Dilokong’s prospecting right had not been
executed, that its duration was for three years and had already lapsed.
In the High Court, Mawetse challenged the award of the prospecting right to
Dilokong. The upholding of the award of the prospecting right to Dilokong led to
Mawetse launching a review application culminating in the present appeal.
Dilokong’s case was that its prospecting right had not lapsed and in fact the duration
of its prospecting right had not yet commenced since it had not yet been notarially
executed.
Held – The first issue raised in the matter was whether Dilokong could lawfully have
been required to be BEE compliant. The Court found that the Regional Manager had
made a legitimate request in that regard, and that the court below correctly
concluded that Dilokong’s failure to meet the condition had the effect of barring
Dilokong from implementing its right to prospect.
In deciding whether the right granted to Dilokong had lapsed, the Court considered
Dilokong’s contention that the period for which the right had been granted had not
started running since the prospecting right had never become effective and had not
been executed. The Court found that it would be untenable for a prospecting right to
be granted and reserved indefinitely. The period for which Dilokong’s prospecting
right endured had to be calculated from the date on which it was informed of the
granting of the right. The right then endured for the period for which it was granted,
and then lapsed irrespective of whether it still had to be executed and that it had not
yet become effective. The High Court’s ruling was, therefore, correct.
The appeal was dismissed with costs.
Rahim and others v Minister of Home Affairs [2015] 3 All SA 425 (SCA)
Claim for damages – Unlawful arrest and detention – Relevant factors are the
circumstances under which the deprivation of liberty took place, the conduct of the
defendants and the nature and duration of the deprivation.
Immigration – Detention of illegal foreigners pending deportation in terms of section
34(1) of the Immigration Act 13 of 2002 – Lawfulness – Detention of illegal foreigners
can only take place as prescribed by section 34(1) ie in the manner and at a place
determined by the Director-General – In terms of the principle of legality, it had to be
shown that the Director-General had made the determinations contemplated
in section 34(1) – Failure to establish that determination had been made rendered
detentions unlawful.
The appellants were foreign nationals who had sought asylum in South Africa in
terms of section 21 of the Refugees Act 130 of 1998, and had been granted asylum
seeker permits. They thereafter attended at the Port Elizabeth office of the
Department of Home Affairs at regular intervals to have their permits extended in
contemplation of the finalisation of their applications.
According to the respondent, the appellants were each arrested after their appeals
against their unsuccessful asylum applications failed.
The appellants sued for damages alleged to have been sustained as a result of
their alleged unlawful arrest and detention at the instance of officials of the
respondent. The dismissal of their claims led to the present appeal.
The power to arrest and detain the appellants was claimed in terms of sec-tion
34(1) of the Immigration Act 13 of 2002. The appellants disputed their status as
illegal foreigners at the time of their arrest, and contended that at the time of their
arrest they had not been provided with reasons. They also contended that their
detention was rendered unlawful as their rights were not explained to them.
Importantly, they invoked the principle of legality in relation tosection 34(1) of the
Immigration Act, contending that they could only, as prescribed by that subsection,
be detained in a manner and at a place determined by the Director-General of the
Department, which they claimed had not occurred.
On appeal, the respondent contended that section 34(1) does not prescribe how
the determination by the Director-General is to be made and therefore nothing more
is required of the Director-General than a firm or conclusive decision about where
illegal foreigners may be detained.
Held – The detention of illegal foreigners can only take place as prescribed
by section 34(1) ie in the manner and at a place determined by the Director-General.
The exercise of public power is constrained by the principle of legality which is
foundational to the rule of law. The respondent was therefore required to show that
the Director-General had made the determinations contemplated in section 34(1),
which it failed to do. Consequently, the detention of all of the appellants was
unlawful.
The next question related to the quantum of damages. In cases involving
deprivation of liberty the amount of satisfaction is calculated by the court ex aequo et
bono. Relevant factors are the circumstances under which the deprivation of liberty
took place, the conduct of the defendants; and the nature and duration of the
deprivation. Having regard to the limited information available and taking into
account the factors referred to, the Court deemed it just to award globular amounts
that varied in relation to the time each of the appellants spent in detention. The
appeal was thus upheld.
Eskom Holdings Soc Limited v Khum MK Investments & Bie Joint Venture
(Pty) Ltd and others [2015] 3 All SA 439 (GJ)
Arbitration – Arbitration award – Review application – Arbitration Act 42 of 1965 –
Section 33(1) – Courts have maintained their lack of jurisdiction to enquire into the
correctness of the conclusion arrived at by arbitrators on the evidence before them –
Integrity of the arbitration process is preserved except where the arbitrator himself
has discredited it through mala fides, gross irregularity or the exercise of powers not
conferred upon him.
Contract – Tender contract – Illegality of contract – Estoppel by conduct – Employer
estopped from denying tender contract with company – Court held that the
arbitrator’s finding against the applicant on the issue of estoppel was found to be in
keeping with the legal principles.
In terms of section 33(1) of the Arbitration Act 42 of 1965, the applicant sought to
review and set aside a partial award made by the third respondent in respect of
separated issues in an arbitration. The dispute referred to arbitration was of a
contractual nature.
Held – As pointed out in case law, our law governing the review of arbitration awards
has been underpinned and applied so as to provide only narrow grounds for review
and these have been restrictively interpreted. Although the courts have
demonstrated a willingness to assist parties deprived of a fair hearing by procedural
wrongs, they have limited their reviews to those alone and have refused jurisdiction
in cases that requested their reviews of the arbitrator’s legitimate exercise of
discretion. The courts have therefore maintained their lack of jurisdiction to enquire
into the correctness of the conclusion arrived at by arbitrators on the evidence before
them. Consequently, the integrity of the arbitration process is preserved except
where the arbitrator himself has discredited it through mala fides, gross irregularity or
the exercise of powers not conferred upon him.
The applicant made allegations of gross irregularity, misconduct, bias and
incompetence against the arbitrator. The Court found those allegations to be without
any basis. The arbitrator’s finding against the applicant on the issue of estoppel was
found to be in keeping with the legal principles on that issue. The applicant, as
employer, was estopped from denying a tender contract involving the first
respondent. The arbitrator was found to have correctly rejected the defences raised
by the applicant.
The review application was thus dismissed.
Media 24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd
[2015] 3 All SA 478 (WCC)
Final interdict – Requirements – Applicant had to establish a clear right by asking the
court to make a final determination, firstly, of its rights of copyright in relation to its
work, and, secondly, of a breach thereof by the respondent – Applicant had to prove
on a balance of probabilities an “injury” committed by respondent ie an infringement
of its copyright with resultant prejudice – Applicant had to establish that it had no
adequate or alternative remedy available to it.
Intellectual property law – Copyright – Compilation of dictionaries – Copyright Act 98
of 1978 – A court considering the claim for copyright infringement must draw an
inference from all the facts before it, and the absence of a cogent explanation for the
objective similarity between two works can lead to a strong inference that there has
been copying – Court concluded that the dissimilarities in the competing works (from
layout to typeface and example sentences) were so extensive that any true copying
was regarded as lacking in sufficient similarity to warrant interdictory relief.
The respondent was a South African publisher of a variety of literary works including
dictionaries, in this case for use by school learners. The applicant also published
dictionaries for the local market through one of its trading arms.
Alleging that the respondent had copied certain of its earlier titles, thereby
breaching its rights of copyright under the Copyright Act 98 of 1978, the applicant
applied for interdictory relief restraining the respondent from infringing its copyright.
The claim for final relief was challenged by the respondent on two levels. Firstly,
there was a general denial that it had directly copied the applicant’s work. Secondly,
it said that the applicant had failed to establish the originality of its entire work, on the
basis that, like the respondent, it had sourced the meaning and definition of some
words and example sentences in other reference works to which both may have had
access in the process of compilation, or that example sentences chosen by it were
common practice and/or common explanations over which the applicant could not
claim exclusivity.
Held – In seeking a final interdict, the applicant had to establish a clear right by
asking the court to make a final determination, firstly, of its rights of copyright in
relation to its work, and, secondly, of a breach thereof by the respondent. It also had
to prove on a balance of probabilities what is customarily referred to as an “injury”
committed by respondent. That was to be understood as an infringement of its
copyright with resultant prejudice. Furthermore, the applicant had to establish that it
had no adequate or alternative remedy available to it.
A court considering the claim for copyright infringement must draw an inference
from all the facts before it, and the absence of a cogent explanation for the objective
similarity between two works can lead to a strong inference that there has been
copying. Regard was had in this case to the manner in which dictionaries are
complied.
Given the technical nature of the issues involved, the Court deemed it not
appropriate to decide the case on the strength of the expert reports on affidavit. The
matter had to be determined in accordance with the Plascon-Evans rule with due
regard for the onus which the applicant had attracted by moving for final interdictory
relief.
Finding that the respondent had devoted a significant amount of time, effort,
expense and expertise in the compilation and publication of its new work, which took
a number of years to compete, the Court found that to fly in the face of an allegation
of unbridled plagiarism.
The applicant was unsuccessful in establishing a clear right to the relief sought,
and the interdict was refused.
Southern Africa Litigation Centre v Minister of Justice and Constitutional
Development and others [2015] 3 All SA 505 (GP)
International law – Rome Statute of the International Criminal Court Act 27 of 2002 –
South Africa’s obligations – Non-fulfilment of – Arrest and detention of President of
the Republic of Sudan – As a ratifying State of the Rome Statute, South Africa was
enjoined to co-operate with the ICC, for example, to effect the arrest and provisional
arrest of persons suspected of war crimes, genocide and crimes against humanity –
Court confirmed that despite its order for the arrest and detention of the President,
he was allowed to leave South Africa and his departure, in full awareness of the
order demonstrated non-compliance with the order.
This matter concerned the duties and obligations of South Africa in the context of the
Implementation of the Rome Statute of the International Criminal Court Act 27 of
2002 (“the Rome Statute”). The question was whether a Cabinet Resolution coupled
with a Ministerial Notice were capable of suspending South Africa’s duty to arrest a
head of State against whom the International Criminal Court (“ICC”) had issued
arrest warrants for war crimes, crimes against humanity and genocide.
The Court had issued an order declaring the respondents’ failure to take steps to
arrest and/or detain the President of the Republic of Sudan Omar Hassan Ahmad Al
Bashir (“President Bashir”) to be unconstitutional and invalid. The Court directed the
respondents to take all reasonable steps to prepare to arrest President Bashir
without a warrant in terms of section 40(1)(k) of the Criminal Procedure Act 51 of
1977. President Al Bashir was to be detained, pending a formal request for his
surrender from the International Criminal Court. The Court provided its reasons for
this order.
Arguing that where the ICC has made a request for the arrest and surrender of a
person within a State party’s jurisdiction, the State party must comply with the
request, the applicant maintained that South Africa became liable to arrest and
surrender President Bashir as soon as he entered the country.
Held – As a ratifying State of the Rome Statute, South Africa was enjoined to cooperate with the ICC, for example, to effect the arrest and provisional arrest of
persons suspected of war crimes, genocide and crimes against humanity. The
respondents’ assertion that President Bashir would be protected by diplomatic
immunity was shown to be without merit.
The Court ended by confirming that despite its order for the arrest and detention of
President Bashir, he was allowed to leave South Africa. His departure, in full
awareness of the order demonstrated non-compliance with the order. For that
reason, the court invited the NDPP to consider whether criminal proceedings were
appropriate.