The law reports

April 25th, 2016
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March 2016 (2) South African Law Reports (pp 1 – 316); [2016] 1 All South African Law Reports February (pp 313 – 628); [2015] 4 All South African Law Reports October no 1 (pp 1 – 129) and no 2 (pp 131 – 254); 2016 (1) Butterworths Constitutional Law Reports – January (pp 1 – 155)

Heinrich Schulze BLC LLB (UP) LLD (Unisa) is a professor of law at Unisa.

This column discusses judgments as and when they are published in the South African Law Reports, the All South African Law Reports and the South African Criminal Law Reports. Readers should note that some reported judgments may have been overruled or overturned on appeal or have an appeal pending against them: Readers should not rely on a judgment discussed here without checking on that possibility – Editor.

Abbreviations:

CC: Constitutional Court

GJ: Gauteng Local Division, Johannesburg

GP: Gauteng Division, Pretoria

SCA: Supreme Court of Appeal

Child law

Surrogate motherhood: In AB and Another v Minister of Social Development 2016 (2) SA 27 (GP); [2015] 4 All SA 24 (GP) the applicant, AB, was a single woman. She was unable to carry a child to term or to contribute a gamete to a surrogate mother. Her medical condition was permanent and irreversible. She wished to enter into a surrogacy arrangement whereby a surrogate mother would bear her a child conceived from donated male and female gametes.

However, she was barred by s 294 of the Children’s Act 38 of 2005, which provides that: ‘No surrogate motherhood agreement is valid unless the conception of the child contemplated in the agreement is to be effected by the use of the gametes of both commissioning parents or, if that is not possible due to biological, medical or other valid reasons, the gamete of at least one of the commissioning parents or, where the commissioning parent is a single person, the gamete of that person.’

AB challenged the constitutionality of the provision on the grounds that the genetic link requirement violates the first applicant’s rights to equality, dignity, reproductive healthcare, autonomy and privacy. AB submitted that it is trite that most people would prefer to use their own gametes in order to establish a genetic link with a child. However, so she argued, there is no justification for the limitation of these rights on this basis and enforcement of such a preference on everyone in the context of surrogacy, especially where such a limitation does not exist in the context of in vitro fertilisation (IVF).

Basson J held that s 294 was unconstitutional and invalid. This was because there was no rational connection between the limitation, on the one hand, and the purpose of the legislation, to wit, to allow parents, including a single parent, to have a child, on the other hand. Persons in the surrogacy situation requiring donor gametes were, irrationally, treated differently to individuals undergoing IVF who required the same.

Finally, the court held that the provision infringed also several other constitutional rights, including the right to dignity, to make decisions concerning reproduction, privacy and access to healthcare services.

Consumer Protection Act

Delictual liability of a ‘producer’: The decision in Halstead-Cleak v Eskom Holdings Ltd 2016 (2) SA 141 (GP) concerned the question regarding strict liability of a utility company in terms of the Consumer Protection Act 68 of 2008 (the CPA).

The plaintiff, while riding a bicycle, inadvertently came into contact with a low-hanging live power line spanning a footpath. The plaintiff sustained severe full-thickness electrical burns to the right forehead and burn wounds to the chest, arms and both thighs. The defendant, Eskom, was a licensee in terms of and for purposes of the Electricity Regulation Act 4 of 2006. Eskom was at all material times, responsible for the power line in question.

The parties agreed to separate the issues of delictual liability, quantum and strict liability under s 61 of the CPA. This case concerned only the so separated CPA issue. In dispute was whether the CPA applied where, as in the present case, the plaintiff’s injuries were not suffered in the course of utilising a supply as a consumer.

The parties further agreed that the delictual part of the plaintiff’s claim and the issue of the alleged quantum of damages be separated and postponed sine die; and that the possible contributory negligence on the part of the plaintiff was not an issue in relation to the CPA attack.

Baqwa J held that the fact that Eskom was a ‘producer’ and a ‘retailer’ in respect of electricity supplied to consumers in general did not mean that a ‘consumer’ had to be the injured party in this instance. Such an interpretation would not be in accordance with the spirit and purpose of the CPA, which provided protection to and redress for ‘any person’, that is, not only in respect of ‘consumers’ or a ‘consumer’, in a number of its provisions. Examples were s 5(5), which provided that ss 60 and 61 were applicable even in respect of transactions exempt from the provisions of the CPA; and s 61(5), which made it clear that liability arose not only in respect of ‘consumers’ as defined or consumers in the general sense, but also in respect of ‘any natural person’.

Eskom’s submission, that an innocent third party who suffered loss, but who was not a ‘consumer’ stricto sensu could not claim redress because he or she was not the consumer, was held to be contrary to the spirit and purpose of the CPA. The plaintiff need not be a ‘consumer’ in the contractual sense or as defined in order for Eskom to be liable to him.

The court further pointed out that Eskom, on learning of the incident, rectified the situation by causing the electricity to be switched off and the power line to be dismantled. Eskom’s actions after the incident reinforced the notion that it had introduced the source of danger which led to the plaintiff’s injuries, for which it would be held liable.

Finally, the court pointed out that it was notable that Eskom neither pleaded nor adduced any evidence to substantiate the non-applicability of the CPA. Eskom was accordingly held liable in terms of s 61(1) of the CPA.

Contract law

Cancellation of tender: The facts in City of Tshwane Metropolitan Municipality and Others v Nambiti Technologies (Pty) Ltd [2016] 1 All SA 332 (SCA) were as follows: From 1 August 2009 until 31 December 2012, the respondent, Nambiti, was contracted to the first appellant, the municipality, to provide the latter with SAP computer software support services (SAP). On 11 December 2012 the municipality informed Nambiti that the tender contract would be cancelled on 31 December 2012. A new tender was awarded to another party up to 31 December 2013.

Nambiti was dissatisfied with the cancellation of the tender and applied to the GP that the decision of the municipality be reviewed. On review, the High Court set aside the cancellation of Nambiti’s tender contract and ordered the municipality to adjudicate and award the tender within two months of the court’s order.

On appeal, the central issue before the SCA was whether the cancellation of Nambiti’s tender was an administrative action, thus bringing the case within the purview of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

Wallis JA held that the question whether the cancellation of a tender before adjudication amounted to an administrative action, depended on whether it involved a decision of an administrative nature and whether it had a direct, external legal effect.

The court held that in cancelling the tender with Nambiti, the municipality was doing no more than exercising a right it reserved to itself not to proceed to procure those particular services on the footing set out in the tender. The court reasoned it is in any event always open to a public authority, as it would be to a private person, to decide that it no longer wishes to procure the goods or services that are the subject of the tender, either at all or on the terms of that particular tender.

Regulation 10(4) of the Procurement Framework Regulations 2011 provides that prior to awarding a tender, an organ of state may cancel a tender in three circumstances, namely if –

  • due to changed circumstances there is no longer a need for the services, works or good required;
  • funds are no longer available; or
  • no acceptable tenders are received.

In the present case there was a change in circumstances. The needs of the municipality had been reviewed and it no longer required that SAP services be provided for the period stipulated or on the terms included in Nambiti’s tender.

Importantly, so the court reasoned, a decision not to procure certain services does not amount to an administrative action. Further, a decision not to procure services (as has happened in the present case) does not have any direct, external legal effect. Once Nambiti’s legal entitlement to provide SAP support services to the municipality expired on 31 December 2012, it had no further right to provide those services.

The decision by the municipality to cancel Nambiti’s tender was thus not an administrative action and was not susceptible for review in terms of PAJA.

The appeal was accordingly allowed with costs.

Tender contracts: In Tasima (Pty) Ltd v Department of Transport and Others [2016] 1 All SA 465 (SCA) the facts were as follows: The appellant, Tasima, was the successful tenderer for the redevelopment and implementation of the National Traffic Information System (eNaTIS).

The turnkey agreement between Tasima and the respondent, the department, was intended for a fixed period of five years. It would have expired on 31 May 2007, with the possibility of an extension of the contract. Because of the complexity and importance of the eNaTIS system, its management could not be transferred from Tasima to the department or a third party quickly. Hence the agreement made detailed provisions regarding the transfer of the management of the eNaTIS system, including a transfer management plan meeting and a transfer management plan.

After the initial contract had expired on 31 May 2007, the contract was not renewed by the department for another five years, but continued on a month-to-month basis. However, in May 2010 the then Director General (the DG) of the department approved Tasima’s application for the renewal of the contract for a second five-year period, ending on 30 April 2015. A dispute arose between Tasima and the department regarding the question whether the contract was validly extended by the DG to 30 April 2015. The department averred that the DG had failed to comply with a certain Treasury directive, as well as s 38(2) of the Public Finance Management Act 1 of 1990 and it informed Tasima that the contract would expire on 31 May 2012. Tasima invoked the dispute resolution mechanism provided for in clause 24 of the agreement. It further successfully brought an application for an order that the department must perform its obligations in terms of the agreement.

Notwithstanding the court order against it, the department acted contrary to the court order. The court a quo dismissed Tasima’s application for an order of contempt of court against the department, as well as a third party – the Road Traffic Management Corporation (RTMC) – which was appointed by the department to fulfil some of the obligations in terms of the original tender contract.

On appeal Brand JA held that the outcome of the review application was entirely irrelevant to the question whether the department was in contempt of court. Should the review application have been successful, it could have impacted on the future in that it could have served as a basis for setting aside the court orders. But unless and until those orders were set aside by a court of competent jurisdiction, they stood and had to be obeyed.

The court confirmed that court orders must be obeyed even if they are considered to be wrong.

Because the review application was brought under s 6 of the Promotion of Administrative Justice Act 3 of 2000, it was subject to the time bar in s 7. In terms of s 7, proceedings for judicial review in terms of s 6 must be instituted without unreasonable delay and not later than 180 days of the administrative conduct. Section 9 allows for an extension ‘where the interests of justice so requires’. In the Tasima case the department waited five years before it instituted review proceedings.

The court finally held that Tasima was not seeking to compel performance of a contract. It sought performance of court orders in its favour. The court thus concluded that the illegality or otherwise of the contract was of no consequence as long as the court orders stood.

Credit law

Credit agreement: The decision in Land and Agricultural Development Bank of South Africa v Chidawaya and Another 2016 (2) SA 115 (GP) yielded yet another judicial pronouncement on the vexed s 129 of the National Credit Act 34 of 2005 (the NCA).

The facts concerned an application for summary judgment in which the plaintiff, the bank, claimed payment from the defendants, the debtors, of the balance due on their loan agreement with the bank, together with interest. It was trite that the bank had attached the notice of default by the creditor (as required by s 129 of the NCA) to the summons. The bank conceded that the s 129 notices were ‘returned to sender’ and that they therefore, did not reach the debtors, as intended.

The crisp issue was whether the bank complied with the provisions of s 129 of the NCA by merely attaching the s 129 notice to the summons, without the notice ever actually reaching the debtors.

Baqwa J held that a notice in terms of s 129 may be attached to a summons as proof of compliance with the Act, but not as constituting compliance. For the purposes of compliance with the notice requirements in terms of s 129 of the NCA, the service of a s 129 notice by means of attaching it to the summons does therefore not suffice. It is clear from the wording of the Act that a s 129 notice is a pre-litigation step and must accordingly precede litigation.

If litigation is embarked on without compliance with s 129, then s 130(4) provides the procedural mechanism to remedy this defect. To hold otherwise, and dispense with the requirement of the pre-litigation notice, would render s 130(4) irrelevant. It would also ignore the directives of the legislature, as well as undermine the purpose of the Act as set out in s 3, namely to address issues such as over-indebtedness and debt restructuring.

The court ordered that the application for summary judgment had to be postponed sine die. The bank was directed to serve s 129(1)(a) notices on the debtors. The court made no order as to costs.

Criminal law

Dolus eventualis: In Director of Public Prosecutions, Gauteng v Pistorius [2016] 1 All SA 346 (SCA) the court was faced with the question whether the respondent (the accused) acted with the necessary dolus eventualis when he had shot and killed his girlfriend at his home in a secured complex. What was at issue was whether in doing so, the accused had committed the crime of murder (involving the intentional killing of another), or the lesser offence of culpable homicide (involving the negligent killing of another). The trial court found him guilty of the lesser offence.

The appellant (the state) contended that the trial court erred on certain legal issues, and appealed on reserved questions of law. The appeal related solely to count 1 of the indictment, viz the alleged murder of the deceased.

In terms of s 258 of the Criminal Procedure Act 51 of 1977 (the CPA), culpable homicide is a competent verdict on a charge of murder. Therefore, having found that the state had not proved that the accused was guilty of murder, but had shown that he was guilty of culpable homicide, the trial court relied on s 258 to convict him on the latter charge.

The main issue before the SCA was whether the trial court had erred in regard to the issue of dolus eventualis.

Leach JA held that in order to prove murder, the state had to establish that the perpetrator committed the act that led to the death of the deceased with the necessary intention to kill, known as dolus. Mere negligence would be insufficient. The two forms of intention which apply to murder are dolus directus and dolus eventualis. Dolus directus is present where a person commits the offence with the object and purpose of killing the deceased. Dolus eventualis in turn, arises if the perpetrator foresees the risk of death occurring, but nevertheless continues to act appreciating that death might well occur. Significantly, the wrongdoer does not have to foresee death as a probable consequence of his actions. It is sufficient that the possibility of death is foreseen, and is coupled with a disregard of that consequence. (See also: ‘Fight back and you might be found guilty: Putative self-defence’ 2015 (Aug) DR 34 and ‘Elevating culpa to crime’ 2015 (Sept) DR 40.)

The SCA held that the trial court’s question wrongly applied an objective rather than a subjective approach to the question of dolus. The issue was not what was reasonably foreseeable when the accused fired at the toilet door, but whether he actually foresaw that death might occur when he did so. Thus, the critical distinction was between subject foresight (what actually went on in the mind of the accused) and objective foreseeability (what would have gone on in the mind of a reasonable person in the position of the accused). That distinction must not be blurred. The court held that the trial court’s conclusion that the respondent had not foreseen the possibility of death occurring as he had not had the direct intent to kill stemmed from the application of the incorrect test.

A further error identified in the trial court’s conclusions related to whether the respondent knew that the person in the toilet was the deceased. The accused’s incorrect appreciation of who was in the cubicle was not determinative of whether he had the requisite criminal intent. Therefore, in confining its assessment of dolus eventualis to whether the accused had foreseen that it was the deceased behind the door, the trial court misdirected itself as to the appropriate legal issue.

The court was thus satisfied that in firing the fatal shots, the accused must have foreseen, and therefore did foresee, that whoever was behind the toilet door might die, but reconciled himself to that event occurring. That constituted dolus eventualis on his part, and the identity of his victim was irrelevant to his guilt.

The conviction and sentence for culpable homicide by the trial court were set aside and replaced with a conviction of murder. The case was remitted to the trial court for sentencing afresh.

Delict

Loss of future income: The facts in Terblanche v Minister of Safety and Security and Another 2016 (2) SA 19 (SCA) were as follows: The appellant, Terblanche (the plaintiff), was a farmer. While he was in police custody, he incurred severe injuries to his head, neck and back, as a result of being tossed around in the back of a police van negligently driven by police officers over rough terrain at high speed.

The only issue in the present appeal was whether or not the plaintiff had proved a claim for future loss of earning capacity against the respondents, the Minister of Safety and Security and a police officer named Inspector Mogale (the police), before the trial court in the GP. The trial court found that the plaintiff had not proved his loss of earning capacity and the full court upheld this finding.

The present appeal was against the decision of the full court, with the special leave of the SCA.

Mayat AJA held that where a plaintiff, in an action for damages for personal injury negligently caused, claims damages for loss of earning capacity and establishes before the trial court that he would sustain a pecuniary loss in his personal capacity because he has to employ additional, necessary labour in order to substitute certain aspects of his functions which he can no longer perform because of the injuries he has sustained, such plaintiff would be entitled to be compensated for the cost of such substituted labour.

While the SCA accepted that the plaintiff did not establish a case for a mechanically skilled foreman (at the highest level) to assist him in performing certain farming activities, it found that the plaintiff had established a case for the additional costs of an unskilled employee, who could potentially be trained over time. Counsel for both parties agreed in the context of the present appeal that, on the basis of the available actuarial computations, substituted labour for an artisan for specified physical functions was fairly and equitably calculated to constitute the sum of R 1 557 136,69.

In this regard it referred with approval to its earlier decision in President Insurance Co Ltd v Mathews 1992 (1) SA 1 (A); [1992] 1 All SA 179, where the court held (at 5 E–G) that: ‘There is no reason in principle why, in an appropriate case, the cost of employing a substitute should not form the basis of a claim for damages arising from a plaintiff’s inability to carry on his pre-collision trade or profession.’

The SCA concluded that the trial court, as well as the full court, erred in finding that the plaintiff had not established a claim for loss of earning capacity. The appeal relating to the plaintiff’s claim for the diminution of his earning capacity was thus upheld.

Family law

Proprietary rights Constitutionality of s 9: In MC v JC 2016 (2) SA 227 (GP) Mr and Mrs C were married out of community of property but with accrual. After 26 years of marriage Mr C sought, and received in a magistrate’s court, a decree of divorce, on the ground of irretrievable breakdown of the marriage. The regional magistrate also ordered that Mrs C partially forfeit the patrimonial benefits of the marriage in terms of s 9(1) of the Divorce Act 70 of 1979. Section 9(1) provides that: ‘When a decree of divorce is granted on the ground of the irretrievable breakdown of a marriage the court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part, if the court, having regard to the duration of the marriage, the circumstances which gave rise to the breakdown thereof and any substantial misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefited’ (my italics).

Mrs C’s ‘substantial misconduct’ was adultery.

On appeal to the High Court Semenya AJ held that Mrs C would not ‘unduly benefit’ were she to receive the patrimonial benefits of the marriage and, accordingly, that she should not forfeit them.

The court had also requested, in the course of the hearing, argument on the constitutionality of s 9(1) with respect to forfeiture on the ground of substantial misconduct. It held, by way of an obiter dictum, that s 9(1) might infringe the right to equality. This was because it placed the party who had committed substantial misconduct in an unfavourable position when it came to distribution of the patrimonial benefits of the marriage. In this regard the court referred with approval to the decision in DE v RH 2015 (5) SA 83 (CC) (see law reports ‘Delict’ 2015 (Nov) DR 37). It also pointed out that being forced to remain in an unhappy matrimonial relationship for fear of losing patrimonial benefits may deprive a spouse of the right to dignity.

It might also, in certain circumstances, infringe a woman’s reproductive rights; or a person’s rights to dignity, freedom and security of the person.

The court did not, however, decide the issue, but instead ordered that the procedure in Uniform Rule 16A be followed, and also that certain persons be joined, before it finally determined the constitutional point.

The procedure in Uniform Rule 16A involves that the appellant (Mrs C) must join the Minister of Justice and Correctional Services as the executive authority responsible for the administration of the Divorce Act (r 10A); as well as the Speaker of Parliament, as the legislative body. Failure to do so would mean that the present court was not empowered to declare the provisions of s 9 invalid for inconsistency with the Constitution.

Prescription

Extinctive prescription of suretyship: In Miracle Mile Investments 67 (Pty) Ltd and Another v Standard Bank of SA Ltd 2016 (2) SA 153 (GJ) the respondent bank, Nedbank, concluded an agreement with one Mr NC Papachrysostomou (the client) in terms of which Nedbank granted him a credit facility. An account was opened for the client in the books of Nedbank and he was granted a line of credit to the maximum amount of R 13,9 million. Nedbank undertook to pay out or lend money on behalf of the client and debit his account with such sums. It was a requirement of the facility that the client’s debt to Nedbank had to be secured by collateral or suretyships. The applicants (the sureties) accordingly executed suretyships in favour of Nedbank and registered 12 bonds as security pursuant to the suretyships signed by them.

The client agreed to pay the principal debt with interest and charges in 240 monthly instalments. By 21 October 2008 the client owed Nedbank R 7,4 million. The client did not thereafter draw on the credit facility or make any payments. Nedbank did not take action against the client for a period of more than three years thereafter. The sureties then applied for the cancellation of the mortgage bonds, contending that the principal debt and hence their accessory liability had prescribed under s 11 of the Prescription Act 68 of 1969 (the Act).

Nedbank opposed the application on a number of grounds. First, it contended, as to when prescription commenced, that the failure by the client to pay a particular monthly instalment did not automatically accelerate the payment of the balance of the debt or render it immediately due and payable. This was so because the credit facility only entitled Nedbank to convert the facility to one repayable on demand if he failed to pay any instalment due in terms of the agreement and if he did not remedy this failure within seven days of written notice given to him by Nedbank to do so. As no such notice had been given to the client, the amount due in terms of the facility did not become due and prescription had accordingly not commenced running.

Secondly, Nedbank contended that in terms of s 11 of the Act the applicable period of prescription was 30 years, because the period of prescription of a debt secured by a mortgage bond was 30 years.

Thirdly, Nedbank argued that the client had in 2012, in sequestration proceedings against him by another bank, acknowledged his liability to Nedbank and that such acknowledgment of liability interrupted the running of prescription in terms of s 14(1) of the Act.

Gaibie AJ held as follows. First, as to when prescription began to run the court reasoned that the question whether the debt incurred by the client in terms of the facility had prescribed depended on whether the debt became ‘due’ within the meaning of s 12(1) of the Act. Section 12 provides that ‘prescription shall commence to run as soon as the debt is due’. According to the applicable case law and jurisprudence, prescription was not prevented from running if Nedbank was entitled to accelerate payment of the balance and claim the full amount but failed to do so. Prescription ran from the date Nedbank had the right to enforce payment of the full amount due to it even though it did not do so and was prepared to wait longer.

Secondly, as to the period of prescription, it held that it was clear from the terms of the facility granted to the client that the suretyships and the mortgage bonds were collateral for the principal debt offered to the client by Nedbank. In the circumstances, and in the absence of the principal debt, neither the suretyships nor the mortgage bonds would have existed. The sureties registered the bonds as security for their obligations as sureties and co-principal debtors, and therefore did not undertake a separate, independent liability as principal debtors, and their debt remained accessory to the principal debt. The mortgage bonds that were passed were essentially passed to secure the sureties’ liability and to secure the liability of the client as the principal debtor, and therefore the prescriptive period of the client’s debt was three years.

Thirdly, as to the contention that the running of prescription had been interrupted, that the phrase ‘acknowledgement of liability’ in s 14(1) of the Act had, on the decided cases, to be construed as meaning an acknowledgment to the creditor or its agent.

The acknowledgment in the sequestration proceedings was made in 2012, after the debt had become prescribed in 2011. The acknowledgment, if any, had to refer to an existing liability and not to a liability that had existed in the past. If the acknowledgment was made after the prescription period had elapsed, the acknowledgment had no effect and could not interrupt the running of prescription in terms of s 14(1) of the Act.

The application was accordingly granted with costs.

Voluntary association

Disciplinary proceedings: The facts in De Lange v Methodist Church and Another 2016 (2) SA 1 (CC); 2016 (1) BCLR 1 (CC) were as follows: De Lange, a Methodist Church minister, announced to her congregations her intent to enter into a same-sex marriage. This caused the church to charge her with breaking its rules. The rule in question was that ministers had to obey church policy, and church policy recognised only heterosexual marriages. The church’s district disciplinary committee later found her guilty.

De Lange appealed to the church’s connexional disciplinary committee. It confirmed the verdict, and as sentence discontinued her holding of the office of minister. De Lange then referred the matter to arbitration, and its convenor entered into an arbitration agreement on her behalf. The church rules provided that arbitration had to be used for resolution of disputes between ministers and the church.

However before the arbitration proceeded, De Lange approached a High Court and applied to set aside the arbitration agreement; for a declaration that the decision to discontinue her ministry was unlawful in its being based on a policy that was unfairly discriminatory on the ground of sexual orientation; for the review and setting-aside of the disciplinary committee’s decisions; and for her reinstatement. She later abandoned the claim of unfair discrimination in her replying affidavit.

The High Court dismissed the application and held that De Lange ought first to have concluded the arbitration. It granted leave to appeal to the SCA.

On appeal, the SCA found likewise and confirmed the abandonment of the discrimination claim (see  law reports ‘Arbitration’ 2015 (Mar) DR 31). De Lange then applied for leave to appeal to the CC. She sought there to reverse the decisions on good cause, and also to advance the discrimination claim. The issue was whether it would be in the interests of justice to grant leave. Moseneke DCJ held that it would not be.

In this regard the CC reasoned that:

  • First, there was no prospect of finding differently from the High Court and SCA.
  • Secondly, that there was no good cause to set aside the arbitration agreement. Indeed arbitrating the matter would spare the court having to determine questions of Church doctrine.
  • Thirdly, it would be unfair to the Church to allow De Lange to revive the discrimination claim at this stage.
  • Fourthly, it held that the principle of subsidiarity debarred De Lange making her discrimination claim outside of the process provided by the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. The court held, in passing, that in a matter involving an Equality Act question and an unrelated question, there was ‘much to be said’ for allowing the same High Court to decide both questions, sitting alternately as the Equality Court and the High Court.
  • Fifthly, De Lange had failed to give notice in terms of Uniform Rule 16A that she intended to raise a constitutional issue. This had possibly prevented interested parties from intervening or joining as amici curiae at the High Court stage of the proceedings.

Finally, the court concluded that the discrimination issue was complex and had wide ramifications, and it was undesirable for the CC to decide it as the court of first and last instance.  Leave to appeal was accordingly refused.

In a separate concurring judgment Van der Westhuizen J suggested that the more private the area of dispute, the less appropriate it was for a court to enter and to decide the tension of rights such as equality and religion. Thus, it was more appropriate to attempt to resolve the present dispute by way of arbitration.

Other cases

Apart from the cases and topics that were discussed or referred to above, the material under review also contained cases dealing with: Administrative law, civil procedure, constitutional law, criminal procedure, discovery and inspection, environmental law, evidence, immigration, interpretation of contracts, language rights, local authorities, local government planning law, municipal rates, racketeering, rape and right of way.

 

This article was first published in De Rebus in 2016 (May) DR 34.

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