Heinrich Shulze BLC LLB (UP) LLD (Unisa) is a professor of law at the University of South Africa.

November 2011 (6) The South African Law Reports 1 to 323; [2011] 4 The All South African Law Reports October no 1 (pp 1 – 112) and no 2 (pp 113 – 220)

Abbreviations:

GSJ: South Gauteng High Court

SCA: Supreme Court of Appeal

WCC: Western Cape High Court

Attorneys

Signing of pleading and summons: In Absa Bank Ltd v Barinor New Business Venture (Pty) Ltd 2011 (6) SA 225 (WCC) the plaintiff applied for summary judgment against the defendant. The defendant had delivered an affidavit in opposition to the application, which raised a great number of points. The court only had to determine one of these, namely whether the combined summons in terms of which the action was instituted was fatally defective for want of compliance with r 18(1) of the Uniform Rules of Court. Rule 18(1) prescribes that: ‘A combined summons, and every other pleading except a summons, shall be signed by both an advocate and an attorney or, in the case of an attorney who, under s 4(2) of the Right of Appearance in Courts Act [Act 62 of 1995], has the right of appearance in the Supreme Court, only by such attorney or, if a party sues or defends personally, by that party.’

It was trite that the combined summons in the current matter was signed by an attorney with the right of appearance in terms of the Right of Appearance in Courts Act (the Act), but who had not been enrolled by the registrar of the present court (the WCC) in terms of s 20(3) of the Attorneys Act 53 of 1979, as an attorney.

Binns-Ward J pointed out that the signature of pleadings by a legal practitioner is a function quite distinct from appearance in court. It precedes the appearance and is ordinarily done not in court, but in an advocate’s chambers or an attorney’s office. It was a function undertaken by attorneys qua attorney – as distinct from qua advocate – in the days long before attorneys obtained a statutory basis to exercise right of appearance in the superior courts. Also, attorneys who do not possess a certificate of right of appearance can sign pleadings.

Applied to the facts of the present case, the court held that an attorney enrolled and with right of appearance registered at High Court A needed to be enrolled at High Court B to practise there, and so to sign a combined summons there. The attorney’s right of appearance need not, however, be registered at High Court B for him to appear there. Because the attorney who signed the pleadings in the present case was not enrolled in the WCC, the point in limine was upheld and the application for summary judgment dismissed.

Constitutional law

Calculation of compensation for expropriation: The applicants in Haffejee NO and Others v eThekwini Municipality and Others 2011 (6) SA 134 (CC) were the trustees of the YGM Haffejee Family Trust (the trust). The trust owned certain property situated on the banks of the Umgeni River in Durban. The eThekwini Municipality had earmarked the property for expropriation for the purposes of a canalisation programme. The applicants contended that the determination of compensation was a prerequisite for the constitutional validity of expropriation in terms of the provisions of s 25(2)(b) of the Constitution. Expropriation is thus not constitutionally valid until compensation has been determined, so they argued.

Froneman J held that the provisions of s 25(2)(b) of the Constitution do not require that the amount of compensation and the time and manner of payment must always be determined by agreement or by the court before expropriation under s 25(2).

In those cases where compensation must be determined after expropriation, this must be done as soon as reasonably possible, in accordance with the provisions of s 25(3).

Eviction following expropriation may not take place unless agreed on between the parties to the expropriation or, in the absence of agreement, under court supervision. In disputed cases of eviction, the courts must grant orders that ensure just and equitable outcomes in accordance with the provisions of ss 25(3) and 26(3) of the Constitution.

Although the appeal was dismissed, the court held that because an important constitutional issue had been raised by a private litigant (the trust), costs should not follow the result and each party was ordered to pay its own costs.

Hate speech: The decision in AfriForum and Another v Malema and Another 2011 (6) SA 240 (EqC) elicited a lot of media attention. At stake in the Malema case was the question whether the well-known song from the struggle era of South Africa’s history ‘dubula ibhunu’ (shoot the boer) constituted hate speech. The first respondent, Malema, had on various occasions sung the song in public. The complainant, AfriForum, argued that the words amounted to hate speech. Malema and the second respondent, the African National Congress (ANC), argued that Malema had a right to sing the liberation song and that the song formed part of South Africa’s heritage and should be retained to preserve a complete history.

Lamont J pointed out that at the time the song originated the words ‘dubula ibhunu’ were words meant to destroy the apartheid regime. That regime had been destroyed in 1994 when the country was transformed into a democracy. The apartheid regime was no more. Post-democracy the song was nonetheless sung, seeking the regime’s destruction. The response of Malema to this was to say that the regime lived on in the form of the untransformed person who held benefits conferred on him by the regime, which he had not relinquished. He accepted that there was an object to the verb and that the object was alive and well and lived in South Africa. It was a simple matter to identify the object. It was those persons who received benefit from and who promoted the regime. Those persons were, broadly speaking, the white Afrikaans-speaking members of society.

The court reasoned that the message the song conveyed, namely to destroy the regime and ‘shoot the boer’, might have been acceptable while the enemy, the regime, remained the enemy of the singer. Pursuant to the agreements that established the modern democratic South Africa and the laws promulgated pursuant to those agreements, the enemy had become ‘the friend, the brother’. Members of society were enjoined to embrace all citizens as their brothers. It must never be forgotten that in the spirit of ubuntu this new approach to each other had to be fostered. Hence the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 allowed no justification on the basis of fairness for historical practices that were hurtful to the target group, but loved by the other group. Such practices may not continue to be practised when it came to hate speech. Malema published and communicated words that could reasonably be construed to demonstrate an intention to be hurtful, to incite harm and promote hatred against the white Afrikaans-speaking community, including the farmers who belonged to that group. The words accordingly constituted hate speech.

Malema and the ANC were accordingly interdicted and restrained from singing the song ‘dubula ibhunu’ at any public or private meeting held or conducted by them.

• Note: Leave to appeal this judgment has been granted by the SCA. See also 2011 (Dec) DR 41.

Delict

Element of negligence: Butise v City of Johannesburg and Others 2011 (6) SA 196 (GSJ) is the most recent in a long line of so-called ‘municipality cases’. The facts were that the plaintiff instituted an action against a local authority (the municipality) for payment of R436 200 in respect of damages arising from a fracture sustained in 2005 after falling into an uncovered valve chamber on a pavement in Fordsburg, Johannesburg. The municipality adopted a proactive policy to replace the stolen inspection covers, but it was subject to budgetary constraints. The municipality’s servants only replaced missing inspection covers that, in their opinion, posed an immediate danger to the public. The servants did not demarcate the sites where uncovered chambers were considered not to pose an immediate danger to the public.

Mokgoatlheng J held that there was a positive legal duty on the municipality to ensure that uncovered valve chambers did not pose a danger to the public. Because of the ‘endemic massive scale theft of inspection valve chamber covers, a greater duty rested on the [municipality] to ensure the public’s safety through the regular consistent inspection of chambers’.

In considering the level of evidence required by the plaintiff in the present case to prove negligence on the part of the municipality, the court held that where a plaintiff was not in a position to adduce sufficient evidence on a particular aspect, less evidence would suffice to establish a prima facie case of negligence where the facts were peculiarly within the knowledge of a defendant. In such a situation there was an evidentiary burden on the defendant to rebut the prima facie inference that the cause of the harm was a result of its negligent act of omission.

The municipality presented no rational explanation as to why the uncovered valve chambers were not considered to pose an immediate danger to the public. There was an obligation on the municipality to adduce cogent, credible evidence explaining how its priorities impacted on its budgetary constraints, relative to its legal duty to the public to install inspection covers on all open valve chambers, by showing that the budgetary costs for such venture were so ‘astronomical’ that they warranted the inference that such costs should not reasonably be incurred by it in replacing all missing inspection covers in order to avoid liability where serious harm could occur to the public.

The municipality must have foreseen that such an irrational arbitrary policy would create a serious source of danger to the public. Consequently, it must have decided to accept the risk of liability in those cases arising from uncovered valve chambers designated as not posing immediate danger to the public.

The plaintiff’s claim was accordingly allowed with costs.

Ejectment

Ejectment from property by bona fide possessor: In United Apostolic Faith Church v Boksburg Christian Academy 2011 (6) SA 156 (GSJ) the applicant church sought the eviction of a school that had been operating from its land. Ownership of the land had been registered in the name of the parent body of the church in England in 1945. Although the church had its origins in England, it later gained administrative autonomy from the English governing body.

The school contended that the church had failed to prove ownership of the property, and had failed to establish locus standi. It argued that the church would have to go back to the highest governing body in England to obtain approval for the eviction order, alternatively seek its approval for the transfer from the English church (or its governing body) into the name of the South African church. In this regard, the school relied on s 16 of the Deeds Registries Act 47 of 1937, which provides that ownership of land may be conveyed only by means of a deed of transfer.

Willis J held that the church’s current constitution provided that it shall be a body corporate with perpetual succession, capable of suing and being sued in its own name, and of acquiring rights and incurring obligations (including the power to own land and buildings) separately and distinctly from its members. It was clear that the church was a universitas capable of acquiring rights and obligations separate from its members. It was also capable of suing and being sued in its own name.

The highest governing body of the church in South Africa at any particular time had always had authority to exercise the rights and duties relating to ownership of the property. The church had thus been properly cited as the plaintiff. It was the owner of the property in question and thus had locus standi.

Interestingly, the court pointed out that, even if it were accepted that ownership of the property remained vested in the English church or the governing body of it, a person in bona fide possession of immovable property acquired a right in rem that gave rise to the right to apply for an eviction order. The church was clearly the bona fide possessor of the property and, as such, entitled to apply for the ejectment of others occupying it.

The order for ejectment of the school from the premises of the church was accordingly granted. No order for costs was given.

Execution

Requirements for sale in execution: Because of earlier conflicting judgments and an amendment to r 46 of the Uniform Rules of Court, it had become unclear what information a bondholder had to place before a court for the latter to decide whether or not to grant a writ of attachment and sale in execution of a judgment debtor’s home.

The court in Standard Bank of South Africa Ltd v Bekker and Another and Four Similar Cases 2011 (6) SA 111 (WCC) therefore invited counsel representing bondholders in five applications for default judgment against mortgagors to formulate specific questions for the court to address. The following questions were submitted:

• What were the ‘relevant circumstances’ a court had to have regard to before ordering execution against mortgaged property specially hypothecated to satisfy the debt secured by such mortgage?
• Who had to plead such circumstances?
• Did the new r 46(1) have the effect of setting up any substantive requirement on the part of the plaintiff in order to obtain the relief sought?
• Zondi, Saldanha and Binns-Ward JJ answered these questions as follows:
• Although no definitive answer could be given to the first question, relevant circumstances included evidence of an infringement of constitutional rights or an abuse of process, as well as evidence in support of any contention by the bondholder that an alleged or demonstrated infringement was justifiable.
• With regard to the second question, the court held that allegations that execution against the hypothecated property would infringe the judgment debtor’s constitutional rights or that the application for a writ of execution was an abuse had, in principle, to be pleaded by the judgment debtor, and any rebutting allegations by the bondholder.
• With regard to the third question, the court held that amended r 46(1)(a) did not give rise to new substantive obligations on bondholders seeking orders for execution against the hypothecated property. The proviso made it clear that execution against the judgment debtor’s primary residence entailed a potential infringement of the right to housing and could therefore only occur under judicial oversight (also where it was sought after excussion of the judgment debtor’s movable property).

The court also listed a number of procedural requirements that bondholders must comply with, the detail of which does not merit discussion here.

Minors

Requirements for surrogate motherhood agreement: In In re Confirmation of Three Surrogate Motherhood Agreements 2011 (6) SA 22 (GSJ) the court was presented with urgent applications to confirm three surrogate motherhood agreements in terms of the Children’s Act 38 of 2005 (the Act).

The court pointed out that the applications were all defective in one way or another. Apart from the fact that no grounds for urgency were made out, the three applications were copied and pasted and thus duplicated to a large extent. Each application stated that it relied on the founding affidavit of one BCB and the annexures thereto. BCB made no affidavits in the second and third matters, as he had no interest in them. These two applications consequently incorrectly referred to annexures not attached to them. All three applications sought an order that ‘the provisions of s 297(91) [of the Act] will apply to the agreement’. However, there is no such section in the Act. All three applications sought an order that the ‘Addendum of the Surrogate Motherhood Agreement’ be confirmed by the court. There were no addenda attached to the surrogate motherhood agreements.

Wepener J ordered that the applications be postponed sine die in order for the applicants to correct and supplement their applications to comply with the provisions of the Act and to place sufficient information before the court to enable it to consider the matters on their merits.

In ordering the postponement of the applications, the court held that when a court is presented with applications to confirm surrogate motherhood agreements in terms of the Act, the court, as upper guardian of all children, is duty-bound to ensure that the interests of the child, once born, are best served by the contents of the agreement. The children’s interests are paramount.

Applicants must supply proper and full details regarding themselves for the court to determine whether the commissioning parents are fit and proper to be entrusted with full parental responsibilities.

The court would need to know in detail who the commissioning parents are; what their financial position is; what support systems, if any, they have in place; what their living conditions are; and how the child will be taken care of. A good practice is also found regarding adoptions, where expert assessment reports from social workers are required and a police clearance is obtained in order to demonstrate the suitability of the adoptive parents. An expert report could also address the suitability of the surrogate mother.

Finally, the court held that any future application for the confirmation of surrogate motherhood agreements had to comply with the requirements listed by the Deputy Judge President of the GSJ in Practice Directive 5 of 2011 regarding all applications for confirmation of surrogate motherhood agreements.

• See 2011 (May) DR 30.

Contact with minor by non-custodian parent: In WW v EW 2011 (6) SA 53 (KZP) seven unopposed divorce cases served before the court. In dealing with the aspects of custody and access to minor children by the parents who were involved in these divorce proceedings, the court pointed out that the provisions of the Children’s Act 38 of 2005 (the Act) relevant to this judgment had been in operation since 1 July 2007. Despite that, there was uncertainty about the effect that the Act has had on the law. In particular, the uncertainty relates to whether the concepts of custody and access, and to a lesser extent guardianship, have survived the provisions of the Act. The uncertainty manifests itself in the relief sought in relation to minor children in divorce actions. The wording of the prayers in the seven cases to which the present decision related illustrated this uncertainty. What was sought in relation to the children involved in the divorce proceedings were –

• in the first case, ‘joint care and custody’;
• in the second case, ‘care and custody’ and ‘reasonable rights of access to and contact with’ the minor child;
• in the third case, ‘joint rights and responsibilities’, ‘unlimited reasonable contact’, and an order that the plaintiff should be ‘the primary care giver’;
• in the fourth case, ‘care’;
• in the fifth case, a declaration that the parties be ‘co-holders of parental rights and responsibilities’ together with an order determining the ‘primary residence’ of the minor child;
• in the sixth case, ‘care and custody’; and
• in the final case, ‘joint care and custody’ together with an order determining the child’s ‘primary residence’.

Rall AJ held that although the concepts of care and contact in the Act correspond broadly with their common law equivalents, the correspondence was not exact. The difference was that while the statutory concepts included all the elements of the common law concepts, the statutory concepts were wider than the common law. In this regard s 1(2) of the Act provides that ‘[i]n addition to the meaning assigned to the terms “custody” and “access” in any law, and the common law, the terms “custody” and “access” in any law must be construed to also mean “care” and “contact” as defined in this Act’. Because most of the elements of custody and access were shared by care and contact respectively, the subsection meant that the legislature had equated custody and access to care and contact respectively. Custody could be used interchangeably with care, and access with contact, but it would be preferable for the new terminology to be used in pleadings and court orders.

The court further provided the following guidelines as to how orders in divorce cases should be framed:

(1) Where what is intended is the earlier concept of joint custody, and the parties do not require any directions on how the parties are to exercise their rights and obligations, an order that both parties are to retain full parental rights and responsibilities in respect of the children is all that is needed.

(2) Where what is intended is joint custody subject to any specific qualifications, what is needed is an order as per para (1) above together with certain qualifications that stipulate how the ‘joint custody’ is to function. For example, the court may order that the children are to reside primarily with one parent or give one parent a greater say than the other in relation to the children’s education.

(3) Where what is intended is that one parent is to have common law custody, while the other parent has reasonable rights of common law access, the order should read:

‘(a)    Subject to paragraphs (b) to (d) below, both parties shall have full parental responsibilities and rights as contemplated by s 18(1)-(2) read with s 1(1) of the Act in respect of the following children … ;

(b)     The children shall reside with plaintiff;

(c)     The plaintiff shall have the responsibility and right to care for the children as contemplated by s 18(2)(a) and s 1(1) of the Act;

(d)     The defendant shall have the right and responsibility to maintain contact with the children as contemplated by s 18(2)(b) read with s 1(1) of the Act.’

(4) Where an order defining access is required, the same order as in para (3) above should be made, save that para (4) will set out the parameters of the contact.

Partnerships

Dissolution of partnership: In Morar NO v Akoo and Another 2011 (6) SA 311 (SCA) a court appointed the appellant, Morar, as a liquidator to liquidate a partnership. He had difficulty carrying out his duties and applied to a High Court for extra powers. The High Court refused Morar’s application. He then appealed to the SCA.

The issues raised on appeal were whether it was competent for the initial order in terms of which Morar was appointed as liquidator to be varied and whether the relief Morar sought should be granted.

Wallis JA pointed out that the real issue on appeal was whether the actio pro socio or the common law gave a court the power to order, inter alia, a partner to contribute to the costs of liquidation or to order that a partner be interrogated by counsel. The SCA held that the authorities did not suggest a liquidator could use the actio and that, while a court had a wide discretion as to how partnership property should be liquidated and distributed, it did not have a discretion to give wide powers to a liquidator.

The High Court was correct in dismissing Morar’s application and the present appeal was accordingly dismissed with costs.

Other cases

Apart from the cases and topics referred to above, the material under review also contained cases dealing with administrative law, civil procedure, company law, consumer credit, contempt of court, criminal procedure, customary law, divorce, husband and wife, immigration, interdicts, jurisdiction of courts, labour law, land reform, mining, pensions, practice, road accident fund, revenue, shipping and town planning.

David Matlala BProc (University of the North) LLB (Wits) LLM (UCT) LLM (Harvard) HDip Tax Law (Wits) is an adjunct professor of law at the University of Fort Hare.

December 2011 (6) The South African Law Reports (pp 325 – 648); [2011] 4 The All South African Law Reports November no 1 (pp 221 – 330) and no 2 (pp 331 – 443)

Administrative law

Premature institution of proceedings to compel furnishing of reasons for administrative action: Section 5(2) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) provides that the administrator to whom the request is made must, within 90 days after receiving the request, give that person adequate reasons in writing for the administrative action. In Jikeka v South African Social Security Agency 2011 (6) SA 628 (ECM) the applicant, Jikeka, applied for a disability grant in terms of the Social Assistance Act 13 of 2004 (the Act). The application was refused, but no reasons were given. Thereafter, the applicant’s attorneys wrote a letter requesting reasons to be furnished within one calendar month. After the expiration of one month the applicant instituted the present application seeking the furnishing of reasons and costs of the application. Subsequently, and before the expiration of 90 days as provided for in s 5(2), the respondent, the South African Social Security Agency, furnished reasons for its decision. As a result, the only question for determination was costs.

Dawood J dismissed the application and ordered each party to pay its own costs. The court held that the provisions of s 5(2) of PAJA set out time limits for the furnishing of the reasons in peremptory terms. The legislature intended the administrator to have a period of 90 days within which to furnish reasons when it promulgated s 5(2), unless the circumstances warranted a reduction of such period in terms of s 9, otherwise the latter section would not have been promulgated. Proceedings could only be instituted after the expiration of the 90-day period provided for in s 5(2) unless an agreement had been reached to reduce the time period or an application had been brought in terms of s 9(1), failing which proceedings would be dismissed on the basis that they had been instituted prematurely.

Advocates

Double briefing and overreaching: Double briefing refers to the situation where counsel accepts two or more trial briefs for the same day. Overreaching refers to the situation where counsel charges full fees in respect of preparation and appearance (a day fee) in each one of such matters, even though the matter was settled or postponed and did not run. Such conduct is viewed in a serious light and was the issue in Pretoria Society of Advocates and Another v Geach and Others 2011 (6) SA 441 (GNP), where 13 counsel, some junior and others senior, were accused of breaching rules of the first applicant, the Pretoria Society of Advocates, commonly referred to as the Pretoria Bar. Twelve of them pleaded guilty to the charges at internal disciplinary hearings while the hearing of the 13th respondent, Bezuidenhout, was not completed. The disciplinary committee against ten of the advocates held that there was a breach of the rules of the Pretoria Bar relating to double briefing and overreaching but that there was no dishonesty on their part, and accordingly recommended that they pay fines and face suspension. A different committee against the remaining two members held that there was dishonesty on their part and recommended that they be removed from the roll of advocates. The first applicant imposed fines on all of them and suspended them from practice for a period ranging from four weeks to six months and thereafter made the present application to the High Court, not for the suspension or striking off of the respondents in terms of s 7 of the Admission of Advocates Act 74 of 1964 (the Act) as could have been done. Instead it sought an order that the disciplinary sanctions imposed ‘be noted’ and alternatively that it would abide the decision of the court. The General Council of the Bar of South Africa (GCB) intervened as the second applicant and sought an order removing all 12 respondents from the roll of advocates. In the case of the 13th respondent, Bezuidenhout, because of the seriousness of the allegations made against him, the first applicant sought an order removing him from the roll of advocates.

The full court (Van Dijkhorst, Combrinck and De Villiers AJJ) held that it had an inherent right to control and discipline its practitioners, which power was not dependent on any statutory provision nor limited to those instances set out in the Act. For example, the court had inherent power to prohibit conduct inconsistent with the proper conduct expected of a legal practitioner and could make a costs order against an advocate. There was no reason for the court not to be empowered to order an advocate who had overreached to return the ill-gotten spoils. From the inherent right of the court to control and discipline its practitioners, of necessity flowed an ancillary power to order practitioners to make amends. As in all 13 cases there was overreaching, the court held that there was therefore dishonesty. The very concept of overreaching implied a level of dishonesty as a practitioner was obtaining a greater reward than that which he was entitled to by means which misled those responsible for the payment of that fee.

After analysing the nature and extent of the infringement of the rules in all 13 cases, the court left the fines imposed by the first applicant intact, ordered all the respondents to return the extent of the overreach to the Road Accident Fund (the victim in all the cases), suspended (with certain conditions) some of them from practice for six months, while others were suspended for 12 months. Because of additional aggravating factors, six of the respondents were removed from the roll of advocates. Each of the respondents was ordered to pay costs on an attorney and own client scale.

Attorneys

Jurisdiction over attorneys in former Bophuthatswana: A statute of the former Republic of Bophuthatswana, the Attorneys, Notaries and Conveyancers Act 29 of 1984, created the Law Society of Bophuthatswana and gave it authority to regulate the activities of attorneys falling within its area of jurisdiction. Section 84A of the Attorneys Act 53 of 1979, which was introduced in an Amendment Act in 1999, extended the area of jurisdiction of the Law Society of the Northern Provinces to areas of the former Republic of Bophuthatswana. In Law Society of the Northern Provinces v Mabando and Another [2011] 4 All SA 238 (SCA) the appellant Law Society of the Northern Provinces applied to the High Court for removal of the name of the first respondent, Mabando, from the roll of attorneys because of alleged unprofessional, dishonourable or unworthy conduct. It was alleged that the first respondent had among others failed to pay his correspondent attorney fees and disbursements due, had failed to account to another law firm the funds collected from a client as a correspondent and had also failed to account to a client for funds collected from a third party. Furthermore, in all the above instances the first respondent failed to respond to the appellant’s requests for comment. The first respondent was subjected to disciplinary inquiries, where he was found guilty and ordered to pay fines, which he failed to pay in full. Because of a lack of cooperation and repentance on the part of the first respondent, the appellant formed the view that he was not fit to practise as an attorney and sought his removal from the roll of attorneys. The High Court rejected the first respondent’s contention that the appellant did not have jurisdiction over him and other attorneys in his position because s 84A was unconstitutional and invalid. The court did so as the first respondent had not joined the Minister in charge of the Act as a party to the proceedings, as required when challenging a law’s validity. The appellant’s High Court application was dismissed, the court holding that although the first respondent had acted unprofessionally, his conduct did not warrant his removal from the roll.

The SCA upheld the appeal with costs on an attorney and client scale, ordering both the first and the second respondent, the Law Society of Bophuthatswana, to pay the costs. The court described the attitude of the second respondent, which made common cause with the respondent notwithstanding his conduct, as an ‘unbecoming turf war’, as the two contended that the appellant did not have jurisdiction over the first respondent despite the provisions of s 84A of the Act. Navsa JA (Heher, Majiedt, Van Heerden JJA and Petse AJA concurring) held that the High Court took too lenient an approach to the misconduct complained of relating to the first respondent’s fellow practitioners who either instructed him to act as a correspondent or who did work for him as a correspondent. Furthermore, the first respondent resisted all attempts by the appellant to get him to address the complaints, stubbornly attacking its jurisdiction rather than dealing with what were legitimate complaints. In so doing, the first respondent demonstrated a lack of insight concerning the professional and ethical standards expected of an attorney. That conduct was clearly unprofessional, dishonourable and unworthy and rendered him liable to be struck off the roll. He was not a fit and proper person to continue to practise law.

• See also 2011 (Oct) DR 43.

Constitutional law

Provincial legislature lacks authority to enact legislation dealing with its financial management: In terms of s 104(1) of the Constitution, a provincial legislature has power to pass legislation for its province with regard to any matter within a functional area listed in schedule 4 (concurrent jurisdiction between provincial and national legislature), functional area listed in schedule 5 (exclusive jurisdiction of provincial legislature), any matter expressly assigned to the province by national legislation and any matter for which a provision of the Constitution envisages the enactment of provincial legislation. In Premier, Limpopo Province v Speaker of the Limpopo Provincial Government and Others 2011 (6) SA 396 (CC) the legislature of the Limpopo province passed the Financial Management of the Limpopo Provincial Legislature Bill, 2009, which was sent to the applicant, the Premier of Limpopo, to assent and sign. Having reservations about the competence of the legislature to pass the Bill, the applicant declined to assent to and sign it into law. After exhausting the internal process, the Premier referred the Bill, in terms of s 121 of the Constitution, to the Constitutional Court for determination of its constitutionality.

The court held that the Bill was unconstitutional as the provincial legislature did not have the legislative authority to pass legislation with respect to its own financial management, but made no order as to costs, the parties not having asked for a costs order. The main judgment was read by Ngcobo CJ (Yacoob J dissenting and Cameron J concurring with the dissenting judgment), who held that, unlike national parliament which enjoyed plenary legislative power within the bounds of the Constitution, the legislative authority of provinces was circumscribed. Part A of schedule 4 listed functional areas with regard to which both parliament and the provincial legislatures had legislative competence. Part A of schedule 5 listed functional areas with regard to which provincial legislatures had exclusive competence. Provinces had no power to legislate on a matter falling outside schedules 4 and 5 unless it was a matter that was expressly assigned to the province by national legislation or was a matter for which a provision of the Constitution envisaged the enactment of provincial legislation. It followed that any matter that fell outside those functional areas with regard to which the provinces had legislative competence fell within the exclusive legislative competence of parliament, unless the latter had expressly assigned legislative power over such matter to provincial legislatures or the Constitution envisaged provincial legislation with respect to such matter. That had not been done in the instant case. The Financial Management of Parliament Act 10 of 2009 did not expressly assign to the provinces the power to legislate on financial management matters of provincial legislatures. Moreover, when the Constitution envisaged the enactment of provincial legislation, it did so in clear and unmistakable terms.

Delict

Killing of innocent victim in circumstances of necessity is justified: In Maimela and Another v Makhado Municipality and Another 2011 (6) SA 533 (SCA) the first appellant, Maimela, claimed damages for injuries suffered when he was shot. The second appellant, Mrs Davhana, claimed damages for loss of support suffered by herself and her minor children when their breadwinner, Mr Davhana, was killed in the same shooting incident. Compensation was sought from the first respondent, Makhado Municipality, in that the second respondent, Nkuna, when firing the shots, was acting within the scope of and the course of his employment with the first respondent. The shooting took place during industrial action by workers after the second respondent attended a meeting with the striking workers to discuss their problems. Far from having a peaceful meeting, the second respondent was encircled and severely assaulted, with the attackers seemingly intending to kill him. In the process, the second respondent fired three shots, which injured the first appellant and killed Davhana. The defence raised by the second respondent was characterised as one of necessity and not self-defence as there was no evidence that the victims were themselves attacking him. The High Court held that the actions of the second respondent in firing the shots were justified and attracted no liability.

The SCA dismissed with costs an appeal against the decision of the High Court. Mpati P (Cachalia and Majiedt JJA concurring) held that necessity, unlike self-defence, did not require the defendant’s actions to have been directed at the perpetrator of an unlawful attack. It was invoked where the action or conduct of the defendant was directed against an innocent person for the purpose of protecting an interest of the actor or a third party (including the innocent person) against a dangerous situation. Whether or not the defendant’s conduct would be covered by the defence of necessity depended on all the circumstances of the case. To deny the innocent person the right to act in self-defence would be to deny that individual his right to life. The same principle applied where an innocent person acted in circumstances of necessity. Thus, where the defendant was able to show that his conduct in causing the death of an innocent person was objectively reasonable in the particular circumstances, he would be exonerated. In determining whether the conduct of the defendant was reasonable, a court would consider questions of proportionality. In the instant case there could be no greater harm than a threat to the second respondent’s life.

Gaming and wagering

Location of internet gambling: Section 8 of the National Gambling Act 7 of 2004 (NGA) provides among others that no person must engage in, conduct or make available a gambling activity except a licenced one. Section 11 provides that a person must not engage in or make available an interactive game except as authorised in terms of the NGA or other national law. These sections must be read together with s 15, which prohibits advertisement or promotion of any gambling activity that is unlawful in terms of the NGA or applicable provincial law. One such provincial law is the Gauteng Gambling Act 4 of 1995 (the GGA), which prohibits unlicenced gambling in the Gauteng province.

In Casino Enterprises (Pty) Ltd v Gauteng Gambling Board and Others 2011 (6) SA 614 (SCA) the appellant, Casino Enterprises, was a company registered and incorporated in Swaziland. The appellant owned and operated a land-based casino and an internet (online) casino from that country. Both casinos were licenced in Swaziland but not in South Africa. In response to the appellant’s approach to target gamblers in South Africa, particularly in the Gauteng province, the first respondent, the Gauteng Gambling Board, notified certain radio stations broadcasting in the Gauteng province that they were prohibited in terms of s 71(1) of the GGA from advertising or distributing any information in the province concerning the appellant’s internet casino and threatened them with prosecution. As a result, the stations withdrew the appellant’s online gambling advertisements. The appellant responded by launching proceedings for declaratory relief to the effect that when persons in the Gauteng province gambled with the internet casino such gambling took place in Swaziland and not in South Africa and therefore such activities did not contravene any of the provisions of either the NGA or the GGA. The High Court held that the appellant’s internet casino activities took place in South Africa and, as they were not licenced, they were unlawful.

The appeal to the SCA was dismissed. As per agreement between the parties, no costs order was made. Heher JA (Ponnan, Seriti JJA, Plasket and Petse AJJA concurring) held that the elements of gambling were payment of a consideration (stake, bet or wager) and a chance (contingency) of becoming entitled to or receiving a payout (the uncertain future event). The stake was irrevocably placed on the outcome of the player’s chosen gambling game and the game was under way at the moment the gambler activated the ‘spin’ (play) button or its equivalent on the computer. Activation took place in South Africa, although it was sent to and would be processed in Swaziland to decide the outcome of the gamble and advise accordingly. The fact that any or all of the other resultant actions would occur in Swaziland after or as a consequence of that activation was irrelevant to the central issue as none of those actions changed the reality that the player at his computer in South Africa had committed to staking money on the chance. That activation, and therefore internet casino gambling, took place in South Africa where the player was situated and not in Swaziland where the rest of the activities happened. Such interpretation satisfied the aims of the legislation in that the prospective player was ‘seduced’ in South Africa, he took and activated the crucial decision there, he was impoverished there, the internet casino intruded on the field of licenced operators there and did so without payment of dues to the state. The legislature was concerned with the substance, not the form, and if gambling took place in South Africa it was of no consequence what means were employed to facilitate it and whether those means were employed outside the country.

Minors

Confirmation of surrogate motherhood agreement: A surrogacy agreement is one in terms of which a woman carries and delivers a child for another couple or person. To be effective, the agreement is required to be confirmed by the High Court in terms of s 295 of the Children’s Act 38 of 2005 (the Act). The Act has comprehensive provisions dealing with the requirements for such an agreement and the factors a court should take into account before confirming it. In Ex Parte WH and Others 2011 (6) SA 514 (GNP) the commissioning parents were two males who were married to each other and who approached the court for confirmation of a surrogate motherhood agreement. The surrogate mother and her life partner also joined the proceedings as applicants. Finding that the commissioning parents had made out a proper case for the relief sought; that both the commissioning parents and surrogate mother were suitable persons as contemplated in the Act; that proper arrangements had been made for the care and welfare of the child to be born, including the stability of the home environment; and that the agreement was arrived at for altruistic rather than commercial reasons, the court confirmed the agreement.

Tolmay and Kollapen JJ held among others that as South African law recognised heterosexual as well as same-sex civil marriages, and in light of the fact that no discrimination on grounds of sexual orientation was allowed, same-sex couples had to be treated in exactly the same manner as heterosexual couples and any deviation therefrom would be unconstitutional. Care had to be taken that different tests were not applied to same-sex couples that could be discriminatory. The best interests of the child were taken care of by the Act in that the surrogate mother had to hand the child over as soon as reasonably possible after the birth, while neither she, her partner nor relatives had any rights of parenthood or care. Furthermore, the agreement could not be terminated after artificial fertilisation had taken place. Nevertheless, a surrogate mother who was also a genetic parent of the child could prior to the lapse of 60 days after the birth of the child terminate the agreement. Section 301 of the Act deals with the question of payments that can be made and generally prohibits commercial surrogacy while only permitting payments related to compensation for expenses, loss of earnings and bona fide professional, legal and medical services related to confirmation of the agreement. Accordingly, any payment to any person other than as set out in the section was prohibited.

Other cases

Apart from the cases and topics referred to above, the material under review also contained cases dealing with arrest of a vessel to found and confirm jurisdiction, cession and counter-claim, consumer credit agreement, defamation, defence of lis alibi pendens, disgorgement of secret profits, double sale, establishment of private hospital, estate agent commission, failure to take steps to prevent spread of disease in prison, good faith in contract, late filing of appeal, mines and minerals, non-patentable invention, offer and acceptance, proceedings by liquidators, prohibition of hate speech, refusal of rezoning and subdivision of property, reliability of breathalyser test, revocation of will by later testamentary instrument, right to assemble, demonstrate, picket and petition, right to equality, sectional title scheme and specific performance.

These articles were first published in De Rebus in 2012 (Jan/Feb) DR 38.