The law reports

November 27th, 2015
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October 2015 (5) South African Law Reports (pp 317 – 629); [2015] 3 All South African Law Reports September no 1 (pp 523 – 664) and no 2 (pp 665 – 736); [2015] 4 All South African Law Reports November no 1 (pp 255 – 399) and no 2 (pp 401 – 542); 2015 (6) Butterworths Constitutional Law Reports – June (pp 653 – 760); and 2015 (7) July (pp 761 – 885)

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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.

 

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:

CAC: Competition Appeal Court

CC: Constitutional Court

FB: Free State Division, Bloemfontein

GJ: Gatueng Local Division, Johannesburg

GP: Gauteng Division, Pretoria

KZD: KwaZulu-Natal Local Division, Durban

KZP: KwaZulu-Natal Division, Pietermartizburg

SCA: Supreme Court of Appeal

WCC: Western Cape Division, Cape Town

Children

Rescission of adoption order: In GT v CT and Others [2015] 3 All SA 631 (GJ) when the first respondent (mother) and the second respondent (father) divorced in 2005 the first respondent was given custody of the minor children, ET and IT. A year later the first respondent married the applicant (adoptive father) who, once again a year later, that is in 2007, adopted ET and IT as his children, both the first and second respondents consenting to the adoption. The pattern of a year later continued as in 2008 the marriage relationship between the applicant and first respondent broke down irretrievably with the result that they divorced, the first respondent being given custody of ET and IT, notwithstanding their adoption by the applicant. Because of the very bad influence of and interference by the first respondent, the relationship between the applicant and the children broke down. Due to the conduct of the first respondent who terminated contact between the applicant and the children, apart from paying maintenance for them the applicant had no say over their lives. Meanwhile, the second respondent continued contact with IT and in fact also paid maintenance for him. In brief, de jure the applicant was the adoptive father of ET and IT but in practice he was denied parental rights, duties and responsibilities over them. He accordingly applied for a rescission of the adoption orders so that the first and second respondents could have full parental rights, obligations and responsibilities over ET and IT. The rescission order was granted with no order as to costs.

Mokgoatlheng J held that in weighing up the children’s best interests in adoption matters, the court was obliged to consider the effect that rescission of the adoption order would have on the children, especially where a considerable period had elapsed since the granting of the adoption order and the children had formed a bond with their adoptive parent. In the instant case the adoption of ET and IT was in essence an abstract circumstantial fiction predicated on the applicant’s need that ET and IT should have a father figure after the first respondent’s divorce. The apparent adoption was in reality a legal fiction because the first respondent did not recognise or accept the legal effect and consequences of the adoption by the applicant that in law, immediately after such adoption, the parental rights of the first and second respondents regarding the lives of the children were terminated as provided for in
s 242(2) of the Children’s Act 38 of 2005.

The relationship between the children and the applicant having irretrievably broken down and the applicant having stated in no uncertain terms that he was not interested in rebuilding the bond between him and them, the formality of setting aside the adoption orders would afford the first and second respondents and the children an opportunity to strengthen their already existing parent-child relationship. Moreover, the first respondent always had custody of the children while for the second respondent his legal guardianship over the children would be restored. After all, the de facto family unit existing between the children and their biological parents would be lawfully formalised.

Company law

Damages for abusive, malicious or vexatious winding-up of a company: Section 347(1A) of the Companies Act 61 of 1973 (the Act) provides that: ‘Whenever the court is satisfied that an application for the winding-up of a company is an abuse of the court’s procedure or is malicious or vexatious, the court may allow the company forthwith to prove any damages which it may have sustained by reason of the application and award it such compensation as the court may deem fit’. The application of this section was dealt with in Business Partners Ltd v World Focus 754 CC 2015 (5) SA 525 (KZD); [2015] 4 All SA 294 (KZD) where the respondent, World Focus, was granted an order putting the applicant, Business Partners, in provisional winding-up notwithstanding the applicant’s opposition. A few months later, the provisional winding-up order was made final. As a result the liquidator sold the company’s property in a sale in execution after which the property was transferred to the buyer. The sale and transfer of the property proceeded notwithstanding the request by the applicant that it be stayed pending finalisation of application for leave to appeal against both provisional and final winding-up orders. Leave to appeal had been granted, the full court set aside both provisional and final winding-up orders against the applicant and significantly held that there had been an abuse of the court procedure. As a result the applicant launched the instant application for damages in terms of s 374(1A).

Mnguni J held that the proper course to be followed was to commence an action by way of simple summons and accordingly referred the matter to trial, with costs reserved. The applicant was directed to deliver its declaration within ten days of granting the order, after which the respondent was to file a plea, again within ten days of delivery of the declaration, after which the matter was to proceed in terms of the normal rules governing action proceedings. It was held that allowing the company ‘forthwith’ to prove any damages, which it might have sustained did not mean that only the court hearing the winding-up was empowered to apply the section as contended by the respondent. That sophisticated semantic analysis was not the best way to ascertain the intention behind the enactment of the section. An interpretation should not be given to statutory provisions if it led to impractical, unbusinesslike or oppressive consequences or that would stultify the broader operation of the legislation.

Competition

Prohibition of excessive pricing: Section 8(a) of the Competition Act 89 of 1998 (the Act) prohibits a dominant firm in the market from charging an ‘excessive price’ to the detriment of consumers. Section 1(1) of the Act in turn defined ‘excessive price’ as a price for goods or service, which bears no reasonable relation to the economic value of that goods or service. In Sasol Chemical Industries Ltd and Another v Competition Commission 2015 (5) SA 471 (CAC) the respondent Competition Commission (the commission) filed a complaint with the Competition Tribunal (the tribunal) alleging that the first appellant, Sasol Chemical Industries (SCI), being the dominant firm in the propylene and polypropylene sector was engaged in ‘excessive pricing’ of its products, which practice was detrimental to consumers. The tribunal found in favour of the commission and meted out penalties against SCI in an amount of some R 534 million, also imposing various administrative remedies.

On appeal to the CAC, the decision of the tribunal was set aside. Nothing was said about the costs. Davis JP (Molemela and Victor AJJA concurring) held that in the instant case the price-cost mark-up was on the average in the region of 16% to slightly less than 19%. On those calculations the changes to the price-cost mark-up should not vex any court with respect to an excessive pricing dispute. According to s 8(a) of the Act a price was excessive only if it was higher than economic value and bore no reasonable relation thereto. The section did not apply to prohibit any price in excess of economic value. A reasonable assessment of the economic value involved a value judgment in respect of which there was no single, inflexibly clear threshold, which could be applied to determine whether a price was excessive in each and every case.

A review of European jurisprudence indicated that the prices charged had to be substantially higher than the defined economic value before an adverse finding could be made. A price, which was significantly less than 20% of the figure employed to determine economic value, fell short of justifying judicial interference in the otherwise complex area of law. Evidence presented to the tribunal in the present case did not justify a finding that the price bore no reasonable relation to the economic value of the goods involved.

Constitutional law

Retrospective operation of order of invalidity: The facts in Cross-Border Road Transport Agency v Central African Road Services (Pty) Ltd and Others 2015 (5) SA 370 (CC); 2015 (7) BCLR 761 (CC) were that in March 2011, acting in terms of the Cross-Border Road Transport Agency Act 4 of 1998 (the Act), the Minister of Transport promulgated amendments to the regulations made in terms of the Act. The effect of the amendments was to substantially increase permit fees payable by cross-border road-transport operators. The respondents, the Central African Road Services and others, being road-transport operators, challenged the validity of the amendments on a number of grounds including that no proper consultation on the new tariff increases took place, there was no procedural fairness in the publication and promulgation of the amendments etcetera. The GP held per Makgoka J the amendments were inconsistent with the Constitution and declared them invalid. The order of invalidity was suspended for six months to give the Minister the opportunity to promulgate new amendments. No such promulgation took place, nor was extension of the suspension sought, this having the result that the invalidity of the amendments came into operation. Thereafter, the respondents obtained a second order before Heaton-Nicholls J declaring that as the suspension period of the order of invalidity had lapsed, the order of invalidity had full retrospective effect and that permit fees had to be paid in terms of the old regulations and not as per the invalid amended regulations.

The SCA having denied the appellant Cross-Border Road Agency leave to appeal, the CC was approached. Leave to appeal was granted but the appeal itself was dismissed with costs. Reading a unanimous decision of the court, Jappie AJ held that the consequences that ordinarily flowed from a declaration of constitutional invalidity included the principle that the law would be invalid from the moment it was promulgated, meaning that the order would have immediate retrospective effect. That was the default position which could, however, be varied by an order of court exercising the express power under s 172(1)(b)(i) of the Constitution, for various reasons pertaining to justice and equity. It was only an order of court that could vary the consequences that flowed from the doctrine of constitutional invalidity. Unless the order of court expressly varied those consequences, retrospectivity would follow. Where a judgment was silent on the issue of variation of the default position, it would be assumed that a judge had taken a decision not to moderate the default position as silence was an indication of full retrospective effect.

A court had the power to extend a suspension period of declaration of invalidity as the decision to suspend was ultimately premised on facts and circumstances applicable at the time the order was issued. Those facts and circumstances could well change and a court had to be alive to that possibility. However, that power could only be exercised ‘before the expiry of the period of suspension’. A court did not have the power to vary a suspension order once the suspension period had lapsed. In brief, the Constitution granted a court the power to suspend an order of constitutional invalidity but not the power to revive a law that had already become invalid as a result of lapsing of the suspension period.

Unconstitutionality of selective or targeted enforcement of the law: In Quick Drink Co (Pty) Ltd and Another v Medicines Control Council and Others 2015 (5) SA 358 (GP), acting in terms of the Medicines and Related Substances Act 101 of 1965 (the Act) the respondents, led by the first respondent, Medicines Control Council, seized a consignment of electronic cigarettes imported into the country by the first applicant, Quick Drink. As a result the first applicant approached the court for an order setting aside the decision of the respondents to seize the consignment. It also sought an order restraining the respondents from enforcing the Act selectively in a manner that targeted the first applicant and discriminated against it in that whereas there were many manufacturers, importers, distributors, wholesalers and retailers countrywide, the appellant was the only one targeted for seizure, while nothing was done against others. The orders sought were granted with costs.

Kollapen J held that public policy considerations and the efficacy of public administration, as well as the integrity of an effective law-enforcement function, militated against the notion that an individual against whom a law was sought to be enforced could, purely on account of an assertion that the law being enforced against him or her was not being equally or uniformly applied to other wrongdoers, escape liability on that account. It would, however, be a different matter when, beyond being unequally enforced, the law was enforced in a selective manner where no rational basis for selectivity existed. In the instant case it was known to the first respondent that there were many importers, manufacturers, wholesalers and distributors of e-cigarettes in the local market, most of whom were doing business in the public retail space. It was inexplicable why enforcement was chosen against the applicant that had not yet begun retail operations. Clearly the selection made, and the failure by the first respondent to offer any explanation in support of the selection made, lended itself to the conclusion that not only was it selectively made but also that it was irritational and that it targeted the applicant for no objective reason. It was sufficient for the first applicant to show, as it did, as an importer of e-cigarettes it was being treated differently from all other entities in that class of persons and that the differentiation was unfair in that there existed no rational connection between it and some legitimate governmental objective.

Contempt of court

Contempt of court requires wilfulness and mala fides: In an earlier case between the parties, that is, in Pheko and Others v Ekurhuleni Metropolitan Municipality 2012 (2) SA 598 (CC), 2012 (4) BCLR 388 (CC) (Pheko 1) the CC ordered the respondent municipality, Ekurhuleni Municipality (East Rand) to comply with a reporting obligation in terms of which reports were to be filed with the court detailing progress made in finding alternative land for resettlement of the displaced applicants, Pheko and others. The respondent filed the first report but not the second one. As a result the applicants launched the present application against the municipality for contempt of court in the matter of Pheko and Others v Ekurhuleni City 2015 (5) SA 600 (CC); 2015 (6) BCLR 711 (CC). Before the hearing of the application an amicus curiae sought joinder of the municipal manager and executive mayor of the municipality. At the hearing it turned out that the municipality had not been advised by its attorneys that a compliance order had been granted against it. As a result the court gave instructions calling on the attorneys to show cause why they should not be held in contempt of court and also be ordered to pay costs from their own pocket (de bonis propriis). The municipal manager, executive mayor and the MEC for Human Settlements, Gauteng Province were also called to show cause why they should not be joined in contempt of court proceedings.

Reading a unanimous judgment of the CC, per Nkabinde J, the court held that while there was no doubt that the municipality had not complied with the court’s directions and orders, it had been shown that it was not aware of same as it did not receive them from its attorneys. In the circumstances, the inference of wilfulness and mala fides could not be drawn against it. It followed that it had shown good cause why it should not be held in contempt. Regarding the attorney who was dealing with the matter, the court found that he did not inform the municipality of the directions and order because he did not receive them as they were transmitted to a facsimile number that was no longer linked to his changed e-mail address. It followed that no inference of wilfulness and mala fides could be drawn. Therefore, contempt of court on the part of the attorney had not been established.

While the evidence did not establish wilfulness or mala fides on the part of the attorney, it did nevertheless establish gross disregard for his professional responsibilities. At the very least the attorney had an obligation to notify his clients and the registrar of the court of any change of address, something which was not done in the instant case. Failure to notify the registrar of such change constituted gross negligence on his part. For that reason the attorney was ordered to pay the costs from his own pocket to mark the court’s displeasure at his conduct.

Given that contempt of court on the part of the municipality had not been established, no purpose would be served by joining the executive mayor, municipal manager and the MEC in contempt proceedings. However, by virtue of their constitutional and statutory responsibilities their joinder in respect of the court’s continuing supervision of the implementation of the orders in Pheko 1 was appropriate.

Defamation and injuria

Liability for defamation and injuria: In the case of Pieterse v Clicks Group Ltd and Another 2015 (5) SA 317 (GJ) the appellant, Pieterse, sued the respondent, Clicks Group, and its employee, the second respondent, for damages due to alleged defamation and injuria. This was after the appellant, a customer, was accused by the employee, the second respondent, of shoplifting and her handbag searched. As it turned out the appellant was not in possession of any stolen items. The magistrate dismissed the appellant’s claim, hence the instant appeal to the GJ. The court held that the appellant’s claim was based on injuria. The appeal based on defamation was dismissed as there was no proof of publication of the incident. However, the appeal based on injuria was upheld with costs. The appellant was awarded damages in the amount of R 25 000.

Spilg J (Mlonzi AJ concurring) held that it was not possible to conclude that the probabilities favoured the appellant’s version that there was at least one other person who witnessed the incident. Therefore, the magistrate’s finding that the appellant failed to prove publication of the incident had to stand, this disposing of the defamation claim. The court proceeded to deal with the alternative claim based on injuria on the basis that save for publication required for defamation, the approach to both defamation an injuria was the same. The element of animus injuriandi required to establish injuria involved both intention to injure and knowledge of wrongfulness. Nevertheless, if negligence sufficed in this type of case, a shop owner or employee would still be able to avoid liability if he or she could demonstrate that there were reasonable grounds for suspecting the customer of shoplifting. A genuine mistake would suffice as it would not constitute negligence in delict but would only do so if there was a failure of reasonable care. In the instant case the admitted statements that the second respondent accused the appellant of putting something in the handbag without paying for it, together with the search of the appellant’s handbag, amounted to an insult. The second respondent failed to prove the factual basis on which she could have formed a reasonable suspicion that the appellant was shoplifting. Furthermore, she exceeded the bounds of her authority and acted against the express company policy by commencing a search of the appellant’s handbag. Therefore, the respondents failed to provide a defence of justification, which would negate the element of wrongfulness. Accordingly, the appellant was entitled to damages on her claim based on injuria.

Insurance

Duty of disclosure: In Jerrier v Outsurance Insurance Co Ltd 2015 (5) SA 433 (KZP), [2015] 3 All SA 701 (KZP) the appellant, Jerrier, had an insurance contract with the respondent, Outsurance Insurance, in terms of which his motor vehicle and household goods were insured. The contract had bonus points and rewarded non-lodgement of claims. This was done by providing that if no claim for insurance benefits was lodged in the first three years of conclusion of the contract the insured would be entitled to a 10% refund of the premiums paid during that period, in the two years that followed the reward for non-lodgement of claims increased to 20% of the premiums paid during that period and, thereafter, the reward was 25% refund of premiums paid every year in which no claim was lodged. Briefly, the contract encouraged the insured not to lodge claims. It was against that background that in 2009 the appellant preferred not to lodge claims and thus preserved the bonus points, after the occurrence of two incidents in respect of which he could have lodged the claims. However, the damage arising from both incidents was less than the bonus points that he would have lost had he lodged the claims. The first incident involved damage to the rim of a wheel after the vehicle hit a pothole while the second incident related to damaging the vehicle of a third-party, and his own, when the appellant was reversing his vehicle. In both instances the appellant absorbed the loss by repairing his car and that of the third-party. In 2010 the appellant’s vehicle was involved in a collision as a result of which he lodged a claim. The respondent having found out the occurrence of the two incidents of 2009 for which the appellant did not lodge a claim, repudiated liability for non-disclosure. That was so as the contract required the appellant to notify the respondent immediately of any changes to his circumstances that could influence the cover to be given, as well as the conditions and premium thereof. Furthermore, the contract also required the appellant to report his claim or any incident that could lead to a claim as soon as possible but not later than 30 days after the incident. It was common cause that the appellant had not done so in respect of the two incidents of 2009. The KZP held, per Koen J, that the appellant should have disclosed the two incidents of 2009 and accordingly dismissed his claim against the respondent.

On appeal to the full Bench the decision of Koen J was reversed with costs of senior counsel and not two counsel as sought. Chetty J (Vahed and Poyo-Dlwati JJ concurring) held that the obligation of the appellant to report a claim or an incident related to circumstances, where the insured suffered damage to his vehicle and where the vehicle belonging to a third-party was damaged. Such an obligation arose only if the insured wished to enforce the indemnification for loss which the insurer was obliged to honour. If the appellant was involved in an accident and the other party agreed to accept an offer in full and final settlement for the repairs to his vehicle, there could be no possible reason for the respondent to be informed of the incident. In the instant case the appellant elected to make a conscious decision to absorb the damage and repair his vehicle and that of the third party. His reward for absorbing the loss was the retention of his non-claim status and the preservation of his bonus points. Where the appellant elected not to report the matter to the respondent within 30 days that marked the end of the respondent’s liability. The driver of the other vehicle still had a claim against the appellant. However, there was no obligation on the insurer to indemnify the appellant against such a claim. The approach of the court a quo conflated the duty to disclose true and correct information at the commencement of the contract and the duty to disclose during the currency of the contract. In the present case, the contract was not one subject to an annual renewal assessment of the risk. Therefore, there could be no contention that failure to disclose the two incidents, which took place in 2009 had a bearing on the conditions of cover or the premiums payable. The policy simply did not provide for the ongoing duty to report after commencement of the contract.

Intellectual property

Registration of a domain name does not give the registrant exclusive right to the name: In the case of Fairhaven Country Estate (Pty) Ltd v Harris and Another 2015 (5) SA 540 (WCC), [2015] 3 All SA 618 (WCC) one Wiehahn and the first respondent, Harris, who were both interested in a residential property known as Fairhaven and which belonged to Nedbank, started working together in a business relationship. As an estate agent, the first respondent, was interested in marketing and selling units in the property, while Wiehahn wanted to develop it. To increase the chances of obtaining mandate from Nedbank to market and sell the units the first respondent registered in his name the domain name (internet address) ‘fairhavenestate.co.za’ and sometime later he also registered several variations of the domain name being ‘fairhaven.co.za’, ‘fairhavencountryestate.co.za’, ‘fairhaven-country-estate.co.za’ and ‘fairhaven.estate.co.za’ and paid the nominal registration fee. As a property developer, Wiehahn acquired ownership of the property through his company, Proventus, whose name was subsequently changed to the applicant Fairhaven Country Estate (Pty) Ltd. The applicant spent heavily on the domain name by paying the costs for the development and renewal of the domain name as well as for the upgrade and development of the website connected therewith, including e-mail traffic and advertisement. In brief the applicant used the domain to market the Fairhaven property.

After the business relationship between the applicant and the first respondent terminated, the latter requested transfer of the active domain name ‘www.fairhavenestate.co.za’ to himself so that he could operate it to promote and market his Fairhaven property business interests. Transferring it to him meant terminating control and access to the website and e-mails by the applicant. To protect its interests in the domain name, the applicant applied for an interdict restraining the first respondent from redirecting or transferring the affected domain names to any party other than itself. The interdict also sought transfer of the domain names to the applicant, as well as an order restraining the first respondent from registering further domain names containing the name ‘Fairhaven’. The interdict was granted with costs.

Henney J held that it was irrelevant that the domain names were registered and acquired by the first respondent before the applicant company came into existence. Prior to its association with the applicant, from the perspective of the first respondent, such domain names held no value. It was only after the applicant came into existence and, as new owner of the Fairview property, gave the first respondent the mandate to market and sell residential units in the property, that value became attached to the domain names. Such value attached to the applicant in that the domain names formed part and parcel of the applicant’s get up and promotional material.

The applicant clearly established an inextricable link between the domain names and its name, even though the first respondent was responsible for the registration thereof. It was not correct for the first respondent to claim that as the registered owner of the domain names he had the exclusive rights of use thereof and that the applicant’s rights in and to its goodwill and intellectual property could not trump his proprietary right in the domain name. Mere registration of the domain name, that was linked to the property, which belonged to someone else, could not result in the registrant having the exclusive right to the use of that domain name. It was irrelevant that the domain names were registered in the name of the first respondent as it was never his intention that such names would be attached to his own name or his own business or services. Moreover, it was well established in law that the owner of an unregistered trademark was entitled to enforce it with a passing-off action if the requirements for passing off were met.

Magistrate’s court

Consent to jurisdiction not allowed in emoluments attachment: Section 65J of the Magistrates’ Courts Act 32 of 1944 (the Act) provides that only the court of the district in which the employer of the judgment debtor resides, carries on business or, is employed, or if the judgment debtor is employed by the state, the court of the district in which the judgment debtor is employed, has jurisdiction to issue an emoluments attachment order. The provisions of the section are in line with s 90(2)(k)(vi)(bb) of the National Credit Act 34 of 2005 (the NCA), which state that a provision in a credit agreement is unlawful if it contains a consent to jurisdiction of ‘any court seated outside the jurisdiction of the court having concurrent jurisdiction and in which the consumer resides or works or where the goods in question (if any) are ordinarily kept’.

The application of the above and other related provisions was dealt with in MBD Securitisation (Pty) Ltd v Booi 2015 (5) SA 450 (FB) where the respondent, Booi, had her emoluments attached in unbelievably peculiar circumstances after she was tricked unawares into consenting to the jurisdiction of a magistrates’ court in another province very far away from her home and workplace. There the appellant, MBD Securitisation, was a company with a registered office in Hyde Park, Johannesburg, Gauteng Province, which sued the respondent for goods sold and delivered, which goods were not specified. The respondent was a 61-year-old female who lived and worked in Alice, Eastern Cape. The appellant made use of the legal services of an attorney in Nelspruit, Mpumalanga Province who in turn instituted proceedings by making a request for judgment and attachment of the respondent’s emoluments in Hennenman, a small town in the Free State Province. It was not clear why the Hennenman Magistrate’s Court was chosen but the High Court suggested that it was because it was either very efficient or that there was a person or persons who did others a favour in return for payment.

As could be expected the result was that the appellant obtained default judgment against the respondent but that was subsequently rescinded. However, the rescission took place in the absence of the appellant in that after two postponements the third one was denied after which counsel did not take any further part in the proceedings (and probably left the court). The instant case was an appeal against the rescission of emoluments attachment order, which was dismissed with costs. The court directed the registrar to forward copies of the judgment to the Law Society of the Northern Provinces, the Minister of Justice and Constitutional Development, as well as the National Credit Regulator.

Daffue J (Williams AJ concurring) held that the appellant had not demonstrated that the magistrate’s rescission judgment, granted by default, was appealable. The appellant was entitled to apply for rescission of that default judgment but whether or not the rescission application would be successful could not be considered in an appeal. Just in case the court erred on the appealability issue, it proceeded to deal with the attachment of emoluments question and held that in terms of r 12(5) of the magistrates’ courts rules the clerk of a magistrate’s court was not entitled to grant judgment, that is, to issue an emoluments attachment order by consent, as happened in the instant case. As the cause of action, namely goods sold and delivered, was governed by the NCA, the clerk of the court was obliged to refer the request for judgment and attachment of emoluments to the magistrate for determination. The purpose of r 12(5) was to ensure that the oversight function of the court in respect of credit agreements governed by the NCA was fulfilled.

There was no doubt that the Hennenman Magistrate’s Court never had jurisdiction over the respondent. She was not resident or employed in that district while the whole cause of action did not arise there. Section 90(2)(k)(vi)(bb) precluded a credit agreement from including a consent by a consumer to the jurisdiction of a court seated outside the area of jurisdiction in which the consumer resided, worked or where the goods in question, if any, were ordinarily kept. Even if it could be found that the respondent validly consented to the jurisdiction of the Hennenman Magistrate’s Court, which she did not, such consent could only have been in respect of the institution of proceedings in that court, that is, the issuing of summons up to the stage of the granting of judgment or the request for judgment by consent but not in respect of emoluments attachment as that was prohibited by s 65J.

Note: The same issue was also dealt with in University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice and Correctional Services and Others 2015 (5) SA 221 (WCC);  [2015] 3 All SA 644 (WCC).

  • See also –

– editorial: ‘Debt collection system to be changed(2015 (Aug) DR 3);

– opinion: ‘The use of emolument attachment orders, jurisdiction and forum shopping under the spotlight(2015 (Oct) DR 59);

– law reports: ‘execution(2015 (Nov) DR 38); and

– case note: ‘The use of emolument attachment orders, jurisdiction and forum shopping under the spotlight(2015 (Nov) DR 40).

Property

Encroacher is not entitled to transfer of encroached upon land: The case of Fedgroup Participation Bond Managers (Pty) Ltd v Trustee of the Capital Property Trust Collective Investment Scheme in Property [2015] 3 All SA 523 (SCA) dealt with the dispute between the appellant, Fedgroup, and the respondent, Capital Property Trust (CPT), who were neighbours owning adjacent properties. On the appellant’s property was an incomplete structure, which had been erected unlawfully without the approval of the local authority. When it was discovered that the incomplete structure in fact encroached on the respondent’s property negotiations started for the acquisition of the encroached on piece of land, as well as additional adjacent land, through sale. Negotiations having failed, the appellant approached the GJ for an order directing the respondent to transfer the encroached on piece of land, together with adjacent land, to the appellant against payment of compensation and related costs. Victor J held that the court had authority to order the owner of encroached on property to transfer it to the encroacher. However, in the exercise of its discretion and in the circumstances of the instant case such an order could not be made. Aggrieved by the decision the appellant appealed to the SCA which dismissed the appeal with costs.

Navsa ADP and Saldulker JA (Mhlantla, Pillay and Willis JJA concurring) held that the law had always been careful to protect the right of ownership, particularly of immovable property. Leaving aside acquisitive prescription, it was difficult to conceive a basis on which the encroacher could offensively, as of right, claim transfer of ownership into his or her name of another’s land. An encroacher would be able to defend an action or an application for removal on the basis that it was unjust and unfair to order demolition and removal. That was a defensive position that could rightly be adopted. The court, in exercising a discretion to award compensation instead of ordering removal, would do so on the basis of policy considerations such as unreasonable delay on the part of the landowner, or on the basis of what could be viewed as acquiescence. Prejudice and the principles of neighbour law were taken into account. However, an encroacher did not have an independent cause of action. He or she could not offensively compel another to part with rights of ownership. Furthermore, no court had ever gone as far as ordering the transfer of land greater than the area of encroachment. Such an order was just not competent.

Other cases

Apart from the cases and material dealt with or referred to above the material under review also contained cases dealing with approval of building plans; authority of trustee to institute legal proceedings, business rescue proceedings against company in final liquidation, claim for loss of support suffered as a result of death of foster parent, consecutive contracts of employment, debarment of financial services representative, enquiry into affairs of a company, fraudulent and reckless conduct of company’s affairs, inspection order against medical scheme, international abduction of children, irregularities in government procurement, jurisdiction of KwaZulu-Natal High Court over district in the Eastern Cape, liability of principal for acts of agent, lawfulness of tender process, occupational injuries, right of children to be provided with transport to and from school at state’s expense, rights and duties of conveyancer and search and seizure warrant in terms of the Insolvency Act 24 of 1936.

This article was first published in De Rebus in 2015 (Dec) DR 40.