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.

February 2015 (1) South African Law Reports (pp 315 – 627); [2015] 1 All South African Law Reports January no 1 (pp 1 – 119) and no 2 (pp 121 – 259); 2014 (12) Butterworths Constitutional Law Reports – December (pp 1397 – 1513)

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

EqC: Equality Court, Western Cape Division

GJ: Gauteng Local Division, Johannesburg

GP: Gauteng Division, Pretoria

ICC: International Crime Court

NWM: North West Division, Mahikheng

SCA: Supreme Court of Appeal

WCC: Western Cape Division, Cape Town

Consumer credit agreements

A once-off credit agreement does not require the credit provider to register: Section 40(1) of the National Credit Act 34 of 2005 provides among others that a person must register as a credit provider if that person is a credit provider under at least 100 credit agreements or the total principal debt owed to the credit provider under ‘all outstanding credit agreements’ exceeds the threshold prescribed in terms of s 42(1), being the amount of R 500 000. The consequences of failure to register where such is required are, as provided for in s 89, that the agreement would be unlawful and void and as a result the credit provider would be required to refund the consumer payments received in terms of the agreement, together with interest.

In Friend v Sendal 2015 (1) SA 395 (GP) the appellant, Friend, signed an acknowledgment of debt in terms of which he admitted his indebtedness to the respondent, Sendal, in the amount of some R 1,2 million. He further undertook to repay the capital amount, together with interest, in instalments within a period of 12 months. When he defaulted in payment the respondent instituted proceedings for recovery of the balance outstanding, being the amount of R 620 000 and interest. The appellant contended that the acknowledgment of debt was a credit agreement and further that the respondent was a credit provider who was required to register but had not done so. Therefore, it was agreed that, the agreement was unlawful and void. The GP per Kollapen AJ granted judgment in favour of the respondent. An appeal to the full Bench was dismissed with costs.

Legodi J (Fabricius and Kubushi JJ concurring) held that the acknowledgment of debt in question was a credit agreement that did not automatically make the respondent a credit provider who was required to register in terms of s 40. Section 40(1) envisaged registration of a credit provider in a situation where a person frequently concluded credit agreements as defined. The subsection contemplated a situation where a credit provider, either alone or in conjunction with any associated person, would conclude credit agreements of under at least 100 in number. It did not refer to a single principal debt or a single credit agreement in respect of which the amount exceeded the threshold. It was the total principal debt under ‘all outstanding credit agreements’ that triggered an obligation to register as a credit provider. It was the credit provider’s frequency of providing credit that was envisaged. The section had to be seen as being directed at those persons who were in the credit market or intended participating in it. The respondent’s once-off transaction could not be seen as participating in that market.

Criminal law

Dolus eventualis: In S v Humphreys 2015 (1) SA 491 (SCA) the appellant, Humphreys, was charged with and found guilty on ten counts of murder and four of attempted murder and sentenced to 20 years of imprisonment by Henney J in the WCC. That was after a minibus taxi carrying school children collided with a train at a level crossing. As the driver of the minibus, the appellant, overtook a queue of vehicles waiting for the train to pass, ignored the red flashing lights and passed through boom gates by manoeuvring around them as they were staggered on either side of the road. Evidence showed that on two previous occasions he successfully negotiated that deadly manoeuvring but that was not to be so on the third occasion.

His appeal to the SCA was partially successful. The convictions of murder were changed to culpable homicide and those of attempted murder set aside as there was no offence of attempted culpable homicide in South African law. The sentence was reduced to eight years of imprisonment, effective from the date when he started serving the High Court sentence.

Brand JA (Cachalia, Leach JJA, Erasmus and Van der Merwe AJA concurring) held that the test for dolus eventualis was twofold namely –

• did the accused, being the appellant in the instant case, subjectively foresee the possibility of the death of his passengers ensuing from his conduct; and

• did he reconcile himself with that possibility?

Regarding the first leg of the enquiry it was held that the WCC was correct in finding that in the circumstances of the case the appellant foresaw the death of his passengers as a possible consequence of his conduct. No person in his or her right mind would avoid recognition of the possibility that a collision between a motor vehicle and an oncoming train would have fatal consequences for the passengers in the vehicle. Regarding the second leg of the enquiry the test was whether the appellant took the consequences that he foresaw into bargain, namely whether it could be inferred that it was immaterial to him whether those consequences would flow from his actions. Conversely stated, the principle was that if it could reasonably be inferred that the appellant could have thought that the possible collision he subjectively foresaw would not actually occur, the second requirement of dolus eventualis would not have been established. In the instant case the inference that the appellant foresaw that the possible collision would not occur was not only a reasonable one but was indeed the most probable one. In short, the appellant foresaw the possibility of the collision but thought that it would not happen, as was the case on two previous occasions. Therefore, he took a risk, which he thought would not materialise.

NB. It should be noted that the approach of the SCA to the second leg of the inquiry is not convincing at all as it looks at the conduct of the appellant with hindsight rather than foresight. Surely the appellant foresaw the collision as a possibility. The question is – what did he do to ensure it did not occur? He reconciled himself with the possibility of that eventuality materialising and took a great gamble with the life of his passengers in the hope that as he got away with it on two previous occasions that would be the case once more. Accordingly he reconciled himself with the possible occurrence of the collision were anything to go amiss, and it did.

Equality legislation

No constitutional or statutory duty on Parliament to publish legislation in all 11 official languages: Section 137 of the South Africa Act, 1909, being British legislation which created the Union of South Africa in 1910, provided that both English and Dutch languages were the official languages of South Africa and had to be treated on a footing equality, possessing and enjoying equal freedom, rights and privileges. All records, journals and proceedings of Parliament were required to be kept in both languages as were all Bills, Acts and notices of general importance or interest issued by the government. Save to say that the Afrikaans language took the place of the Dutch language, the Constitution of 1961 (Republic of South Africa Constitution Act 32 of 1961, s 119) and that of 1983 (Republic of South Africa Constitution Act 110 of 1983, s 99(2)) contained similar provisions. However, this is not the case under the present Constitution which in s 6(1) provides for 11 official languages being Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu. Significantly, there is a catch here since s 6(4) provides that all official languages must enjoy parity of esteem and must be treated ‘equitably’. It cannot be over-emphasised that they are required to be treated ‘equitably’ and not ‘equally’.

In Lourens v Speaker of the National Assembly and Others 2015 (1) SA 618 (EqC) the applicant, Lourens, sought among others a court order declaring that Parliament was unfairly discriminating against official languages other than English, which he alleged was treated as ‘super official language’, by not publishing all national legislation in all 11 official languages. He also sought an order to the effect that after publication in all 11 languages, legislation should be certified as correct for use in courts. The application was dismissed, with no order as to costs as none of the respondents sought an order for costs against the applicant.

The EqC held, per Griesel J, that the Constitution did not provide that because there were 11 official languages, all of them should always and for all purposes be treated equally. If equal treatment of all 11 official languages for all purposes were intended, one would have expected to find a clear provision to that effect, similar in content to the emphatic and unambiguous provisions of s 137 of the South Africa Act, 1909. Instead s 6(4) of the Constitution simply pr-o-vid-ed that all official languages should enjoy parity of esteem and be treated ‘equitably’. Furthermore, the Constitution did not require the simultaneous and equal use of all 11 languages for all purposes. On the contrary in s 6(3)(a) the Constitution permitted the use by the national and provincial governments of any particular official languages for the ‘purposes of government’, provided that they should use at least two official languages. The fact was that the Constitution expressly permitted the use of only two official languages for certain purposes, thereby sanctioning by necessary implication discrimination against the other official languages. The inevitable conclusion was that to the extent that the practice of publishing national legislation in only two official languages could be considered discriminatory, such discrimination was fair.

Fundamental rights

Freedom of expression: Bylaw 9(h) of the Outdoor Advertising Bylaws of the City of Johannesburg Metropolitan Municipality (the City), promulgated in the Provincial Gazette Extraordinary 277 on 18 December 2009 provides among others that ‘no person may erect, maintain or display any advertising sign that is indecent or suggestive of indecency, prejudicial to public morals, or is insensitive to the public or any portion thereof or to any religious or cultural group’. In BDS South Africa and Another v Continental Outdoor Media (Pty) Ltd and Others 2015 (1) SA 462 (GJ); Boycott, Divestment and Sanctions South Africa and Another v Continental Outdoor Media (Pty) Ltd and Others [2014] 4 All SA 347 (GJ) a part only, and not the whole of the bylaw, was challenged. That part was the one dealing with prohibition of advertising that was ‘insensitive to the public … or to any religious or cultural group’. The constitutional challenge arose after an advertisement put up by the applicant, Boycott, Divestment and Sanctions South Africa (BDSSA) on an outdoor billboard owned and operated by the first respondent, Continental, was removed during the currency of its flight. The advertisement was pro-Palestine and anti-Israel and complained about alleged illegal occupation by Israel of Palestinian territory. As a result of complaints by members of the Jewish community, and because of the provisions of bylaw 9(h) the advertisement was removed. The applicant approached the GJ for an order declaring the impugned provisions of the bylaw inconsistent with the Constitution and therefore invalid as they infringed its right to freedom of expression. The applicant also sought reinstatement of the advertisement against payment as provided for in the rental agreement between the parties. The application was granted with costs, the court suspending the period of invalidity of the bylaw for 12 months. In the meantime the bylaw had to be read as not containing the impugned provision. Furthermore, if the City were to fail to remove the offending provisions, same would automatically be removed, as per the court order, after the elapse of the 12 month period.

Mayat J held that the words ‘or is insensitive to the public … or to any religious or cultural group’ as contained in bylaw 9(h) went beyond the limitation of permitted free speech in the Constitution and were, therefore, inconsistent with it. Those words set a far lower boundary than any of the specific limitations contained in s 16(2) of the Constitution. In other words the limitations in ss 16(2) and 36(1) of the Constitution went far beyond the notion of ‘insensitivity’ towards a portion of a religious or cultural group. Unlike the limitations to free speech contained in s 16(2), which included propaganda for war, incitement of imminent violence or advocacy of violence against a particular race or religion, and unlike the other limitations in bylaw 9(h) suggestive of indecency or prejudice to morals, ‘insensitivity’ was a manifestly subjective feeling. It had the result that some members of a particular religious or cultural group could subjectively feel or not feel that certain expressions of speech were ‘insensitive’. An expression had to reach the level of one of the categories in s 16(2) of the Constitution (or the unchallenged portions of bylaw 9(h) of the bylaws), before it could be prohibited by legislation or bylaw. Accordingly, even if the advertisement was ‘controversial’ it could only be prohibited on the basis of one of the constitutional limitations.

Individuals and private entities do not have constitutional duty to provide right of access to adequate housing: Section 26(1) of the Constitution provides that ‘everyone has the right of access to adequate housing’ while subs (2) provides that ‘the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of that right’. The main issue in the City of Cape Town v Khaya Projects (Pty) Ltd and Others 2015 (1) SA 421 (WCC); City of Cape Town v Khaya Projects (Pty) Ltd and Others [2015] 1 All SA 81 (WCC) was whether the duty of the state to provide adequate housing also extended to private parties. The applicant, City of Cape Town, through the erstwhile Blaauwberg Municipality, co-mmissioned the second respondent, a consultant, to develop a low-cost housing project for homeless residents. After completing its work, the second respondent entered into a contract with the first respondent, Khaya Projects, to build the required residential units. However, the first respondent did an unsatisfactory job with the result that the units were full of defects ranging from poor foundations, leaking roofs to fire hazards. As provided for in the contract, the dispute about the quality of work done, as well as payment to be made was referred to arbitration. However, arbitration proceedings, which should have been completed within four months, dragged on for years. As an interested person, and in order to be able to blacklist in the future contractors who did not do a good job, the applicant approached the High Court for two declarators, one to the effect that private parties had a constitutional duty to provide access to adequate housing and the other to the effect that arbitration proceedings had lapsed due to inordinate delay in finalising them. The application was dismissed with costs.

Mantame J held that nowhere in s 26 did the legislature attempt to delegate the state’s constitutional obligation to individuals or private parties. For the court to be asked by the applicant to impose additional constitutional obligations on the first respondent would be tantamount to over-regulating a building industry that had been well regulated. The burden imposed by the Constitution, particularly s 26(1), could not be extended to individuals or private parties. The court could not make a finding that it was an implied term of the first and second respondents’ contract that the units to be built would constitute ‘adequate housing’ in terms of s 26(1). Since the state had a constitutional obligation to deliver service to the people in the form of low-cost housing, it had to tighten the screws to ensure that houses built by contractors were suitable for dignified human habitation and that they passed the muster. If they did not the applicant should not issue occupational certificates for occupation by the residents. If the contractor transgressed, the state could claim damages or specific performance against same.

Insolvency

Irregular valuation of assets done without doing physical inspection: In Ex Parte Erasmus and Another 2015 (1) SA 540 (GP) the applicants, Mr and Mrs Erasmus who were married in community of property, made an application for voluntary surrender of their joint estate. However, their application had a number of unsatisfactory features particularly in respect of the conduct of their attorney and valuator. For example, the attorney alleged in the papers that his costs had been ‘taxed’ even though taxation thereof was only to follow in due course. When confronted with the issue he explained that the allegation was a ‘typing error’. The valuator did valuation of the applicants’ movables, which prima facie appeared to have been done without physical inspection. He subsequently explained that he did his valuation on the basis of a list of assets prepared by the applicants who indicated the condition of each item, its age and a photograph and expressly confirmed that he did not do physical inspection of the assets.

The application for surrender of the estate was dismissed, the court describing the conduct of both the attorney and valuator as unprofessional. The attorney was ordered to repay all fees and other moneys received from the applicants immediately, proof of which was to be presented to the Registrar of the court within five days. The application was referred to the law society having jurisdiction with a request that the attorney’s conduct be investigated. The valuator was also ordered to repay all fees and moneys received from the applicants or the attorney and thereafter provide proof thereof to the Registrar of the court within five days.

Bertelsmann J held that practitioners who launched applications for voluntary surrender had been warned repeatedly against dubious practices. In the instant case, it was self-evident that the valuation was completely unacceptable. It lacked any semblance of an independent confirmation that the assets existed. No professional assessment of the assets’ alleged value had taken place. A valuator’s contribution to an application for voluntary surrender, and indeed any forensic exercise, depended on for its admissibility as opinion evidence on the indisputable independence of the expert. The applicant who purportedly provided the list of assets and other information was no expert and was hardly able to provide information regarding the age and condition of the assets for purposes of valuation thereof. It had always been an obvious principle, albeit unwritten, that the valuator should personally inspect assets that were required to be valued.

The Deputy Judge President of the GP, having given approval, the court laid down as a formal rule of practice that a valuator in application for voluntary surrender should confirm under oath that he or she had personally inspected the assets that were referred to in the valuation. In such affidavit the date, time and locality at which the assets were inspected had to be set out and the applicant or his or her proxy had to confirm in the affidavit that he or she was present when the assets were viewed and that he or she pointed out the assets to the valuator.

No waiver of protection given to certain property: In terms of the Insolvency Act 24 of 1936 (the Act) in s 82 (1) the main task of the trustee of an insolvent estate is to collect assets, sell them and pay creditors a dividend. However, in terms of s 82(6) of the Act certain property of the insolvent is protected and is therefore not permitted to be sold. Very briefly the section provides among others that from the sale of the movable property of the insolvent ‘shall be excepted wearing apparel and bedding … and the whole or such part of his household furniture, and tools and other essential means of subsistence as the creditors or the Master may determine and the insolvent is allowed to retain, for his own use, any property so excepted from the sale’.

In Ex Parte Kroese and Another 2015 (1) SA 405 (NWM) the applicants, Mr and Mrs Kroese who were married in community of property, applied for surrender of their joint estate. They waived the protection afforded by the section with the result that if the surrender were to be accepted, the trustee would sell all their movable assets including household furniture and other appliances. The purpose was to increase the dividend available to creditors to 20 cents per rand owing whereas without that waiver the dividend would be 14 cents per rand. The application for surrender of the estate was dismissed.

Landman J held that the purpose of s 82(6) was clear. It included measures that were intended to preserve the right to life and dignity of an insolvent and his or her dependants and to place them in a position to rebuild their lives. The right to dignity was one of the human rights that were inalienable. The Act and other legislation that provided for the protection of debtors were enacted for the benefit of such persons and the well-being of society. Since the advent of democracy and a society founded on human rights as well as a concern for the welfare of its citizens generally, it was not in the interest of the state that citizens should renounce their assets and become a burden to society. Taking into account the vital importance of the inalienable right to human dignity of the applicants and indeed whatever dependants they could be having as well as the right to work or trade, coupled with the purpose of excepting basic necessities, the applicants were not allowed to waive their entitlement. There was also the practical inference that if the applicants for voluntary surrender should waive the entitlement in question that was in indication that the advantage to creditors was borderline. In general a dividend of 20 cents in the rand was required. In the instant case if the waiver was left aside the applicants would not have made out a case that the surrender of their estate, offering a dividend of 14 cents in the rand, would be to the advantage of the creditors.

International criminal law

Duty to investigate international crimes against humanity of torture committed beyond the borders of South Africa: Section 4(3) of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (the Act) provides among others that any person who commits a crime contemplated in the Act outside the territory of South Africa is deemed to have committed it in this country if such person, after commission of the crime, is present in the country. The application of the section fell to be determined in National Commissioner of Police v Southern African Human Rights Litigation Centre and Another 2015 (1) SA 315 (CC); National Commissioner of the South African Police v Southern African Human Rights Litigation Centre and Another (Dugard and Others as Amici Curiae) 2014 (12) BCLR 1428 (CC) where in March 2007 Zimbabwean police raided the headquarters of the main opposition party, the Movement for Democratic Change (MDC) in Harare, Zimbabwe. In that raid more than 100 people were taken into custody and during their detention were subjected to severe torture, which included beating with iron bars and baseball bats, waterboarding, forced removal of their clothing and the like. After some of them came to South Africa the first respondent, the Southern African Human Rights Litigation Centre and the second respondent, Zimbabwe Exiles’ Forum did some investigating, gathered information and prepared a torture docket that was presented to the applicant, the National Commissioner of the South African Police Service (the National Commissioner) requesting that allegations of crimes against humanity of torture which took place in Zimbabwe be investigated. If successful the investigations could result in prosecution of alleged transgressors if they happen to be in South Africa or their extradition if they were not. The National Commissioner declined to investigate, mainly because of the policy of non-intervention in Zimbabwe’s internal affairs but also because the alleged transgressors who included six cabinet ministers, directors-general and high ranking official of Zimbabwe’s ruling party, the Zimbabwe African National Union, Patriotic Front (Zanu PF) were not present in South Africa. As a result the respondents approached the GP and obtained an order reviewing and setting aside the decision of the National Commissioner not to investigate. An appeal to the SCA was unsuccessful as that court held that the National Commissioner was empowered to investigate and accordingly ordered him to do so. In a further appeal to the CC leave to appeal was granted and the appeal dismissed with costs.

Reading a unanimous judgment of the court Majiedt AJ held that a primary purpose of the Act was to enable the prosecution, in South African courts or the International Criminal Court (ICC), of persons accused of having committed atrocities, such as torture, beyond the borders of South Africa. Torture, whether on the scale of crimes against humanity or not, was a crime in South Africa in terms of s 232 of the Constitution as the customary international law prohibition against torture had the status of a peremptory norm. The contention that the National Commissioner had no duty to investigate as the suspects were not present in South Africa was correct only in relation to prosecution. Section 35(3)(e) of the Constitution required an accused person to be present during his or her trial but did not require a person’s presence during investigation. Accordingly, the exercise of universal jurisdiction for the purposes of the investigation of an international crime committed outside the country’s territory could occur in the absence of a suspect without offending the Constitution or international law. Requiring the presence of suspects in South Africa for an investigation would render nugatory the object of combating crimes against humanity. Furthermore, any possible next step that could arise as a result of an investigation, such as prosecution or an extradition request, required an assessment of information that could only be attained through investigation. In the case of Zimbabwe, as it shared a border with South Africa, the possible presence of the suspects in the future could not be discounted.

Practice

Refusal of postponement is not gross irregularity: In Magistrate Pangarker v Botha and Another 2015 (1) SA 503 (SCA); Pangarker v Botha and Another [2014] 3 All SA 538 (SCA) the parties, AB the husband and CB the wife, were married out of community of property. Thereafter AB, the first respondent, instituted divorce proceedings against CB. The hearing of the matter was postponed a total five times, three of which were at the instance of AB who needed legal representation. On the other two occasions postponement was granted to give AB’s legal representatives the opportunity to familiarise themselves with the facts of the case. On the fifth occasion when the hearing was postponed to a specific date the magistrate, the appellant Pangarker, warned AB that on the next occasion, the sixth, the hearing would proceed without him having a legal representative if he did not solve the problem in time. AB secured the services of an attorney, one D, who was double-briefed as he had commitment elsewhere on the same date. As a result, but without communicating with CB’s legal representatives, D wrote the appellant a letter asking for postponement because of his other commitment on the scheduled date. The appellant replied that she could only see legal representatives for both sides at the same time if arrangements could be made for such a meeting. No such meeting was arranged. At the hearing of the matter on the sixth occasion AB appeared without his attorney D. He informed the court that D instructed him to read into the record an application for recusal of the appellant as the presiding officer and thereafter leave the court. The appellant advised AB that the hearing would proceed in his absence if he left and the recusal application were to fail whereas if it were granted the hearing would be postponed. Thereafter, AB read the recusal application into the record and left the court. The refusal application was successfully opposed by CB’s legal representative. As a result the trial proceeded in the absence of AB, a decree of divorce was granted with costs and AB ordered to forfeit a part of the marriage benefits.

AB applied to the WCC, Cape Town for a review and setting aside of the court order on the grounds that the magistrate committed ‘gross irregularity’ by not postponing the hearing mero motu and proceeding in his absence. Goliath J and Cloete AJ granted the review application with costs against AB and the magistrate. An appeal against the WCC order was upheld with costs by the SCA.

Mhlantla JA (Mthiyane DP, Lewis, Wallis JJA and Legodi AJA concurring) held that the finding of the High Court in finding that the failure to postpone the trial constituted a gross irregularity was disturbing as it was not supported by the facts. Furthermore, the High Court failed to appreciate the principles applicable in respect of postponement and recusal applications. In the instant case there was one application before the magistrate, which was recusal, and it was properly dismissed. When AB left on his own volition he elected not to participate in the proceedings. There could have been no doubt that he knew of the consequences of doing so as they had been explained to him. The unavailability of a legal representative was not necessarily a basis for postponement of a matter. On the facts of the present case there was no basis for the magistrate to postpone the trial in vacuo. Also the High Court failed to consider CB’s competing right to have the dispute settled swiftly. It was evident that AB had ample opportunity to obtain a legal representative and prepare for trial. Accordingly, his lack of legal representation could not be a basis for a finding of any ‘gross irregularity’ on the part of the magistrate.

The court added that the conduct of the attorney D was improper in that he directed a letter seeking postponement to the magistrate and also took instructions in two matters in different courts, which were to be heard on the same date. As D had in the meantime been appointed as a magistrate, it was directed that a copy of the judgment should be sent to the Magistrates’ Commission for information.

Servitudes

Cancellation of praedial servitude due to cessation of its utility or abandonment: In Pickard v Stein and Others 2015 (1) SA 439 (GJ); Pickard v Stein and Others [2014] 3 All SA 631 (GJ) the applicant, Pickard, and the respondent, Stein, were owners of adjacent properties in a hilly area. As the applicant’s property was on higher ground the parties registered a servitude of light in favour of the respondent in terms of which the applicant was not allowed to erect structures or grow trees or shrubs that would prevent light reaching the respondent’s property. Thereafter the applicant subdivided his property and sold a portion thereof to a third party B who started building a house. Because of the new house, and for the sake of security and privacy, all three parties agreed that B should build another boundary wall on top of the existing one, which was done. Subsequently the applicant sought cancellation of the servitude while the respondent wanted demolition of part of the new building as well as reduction of the height of the boundary wall as both interfered with the servitude of light. The question before the court was whether the servitude of light came to an end when the second boundary wall was built on top of the first or had been abandoned so as to justify cancellation of its registration against the title deed. The court granted with costs an order declaring that the servitude could be cancelled because of its abandonment by the respondent. The applicant was to bear cancellation costs of the servitude.

Dodson AJ held obiter that applying s 173 of the Constitution which required development of the common law by the court taking into account the interests of justice, if the utility that a praedial servitude previously provided to a dominant tenement had permanently ceased, the servitude itself would become extinguished. However, in the instant case the court was able to find either on the evidence presented or on the basis of judicial notice, that the preference or need for security and privacy was so pervasive that the servitude of light had for those reasons permanently lost its utility. Furthermore, a servitude could be cancelled as a result of abandonment. By giving the applicant and B the right to build the second wall on top of the first the respondent had abandoned her servitudinal right of light. The fact that it later emerged from the land surveyor’s report that the wall was inadvertently built slightly inside the respondent’s property and not on the boundary as thought, did not detract from the inference to be drawn from her conduct, particularly given that the wall necessarily and naturally obstructed the servitude in all its component.

Trademarks

Expungement of a trademark that is not distinctive: Section 10(2)(a) of the Trade Marks Act 194 of 1993 (the Act) provides among others that a trademark is liable to be removed from the trademark register if it is not capable of distinguishing the goods or services of a person in respect of which it is registered or proposed to be registered generally or, if registration or proposed registration is subject to limitations in relation to use within those limitations. In Discovery Holdings Ltd v Sanlam Ltd and Others 2015 (1) SA 365 (WCC) the applicant, Discovery, was the registered owner of the trademark ‘Escalator Funds’. It subsequently found out that after registration of its trademark its direct competitor, the respondent Sanlam, made application for registration of the trademark ‘Sanlam Escalating Fund’ and that it had in fact commenced using the trademark ‘Escalating Fund/Sanlam Escalating Fund’. Alleging that usage of the trademarks ‘Escalating Fund’ and ‘Sanlam Escalating Fund’ in relation to financial products violated its trademark ‘Escalator Funds’ the applicant sought an interdict prohibiting the respondent from using a trademark that was confusingly similar to its own. In a counter-application the respondent sought expungement of the applicant’s trademark on the ground that ‘Escalator Funds’ was not distinctive but only descriptive of the product that was being offered. Accordingly, its registration as a trademark was wrong and ought not to have been done in the first place. The interdict application was dismissed and the counter-application granted, both with costs.

Goliath J held that the phrases ‘escalator funds’ or ‘escalating fund’ were not distinctive enough on their own to distinguish products from their competitors. The phrase ‘escalator funds’ was entirely descriptive. Derivatives of the word ‘escalate’ and even the word ‘escalator’ were already common in the financial services sector and ‘escalator’ for financial services or products was not a word or concept that the applicant first coined or could claim exclusive rights to. The word ‘escalator’ had been in use in other countries in respect of financial services products. The words ‘escalating’, ‘escalator’ and ‘fund’ were common English words. The word ‘escalator’ was coined in the early 1920s when escalators were new. Confusion was not likely to arise in the market place because Discovery’s ‘Escalator Funds’ trademark was not confusingly similar to Sanlam’s ‘Escalating Fund’ trademark when the two were appreciated in their entirety. The phrases ‘escalator funds’ and ‘escalating fund’ were not distinctive but merely descriptive of the financial services products, more particularly the risk nature of the product being offered.

Other cases

Apart from the cases and material referred to above the material under review also contained cases dealing with access to information held by a private body, asylum application, adopted child’s loss of support claim after the death of natural father, child justice, claim for compensation to doctor raped on duty at hospital, claim for constitutional damages that were never expressed or implied in contract, duty of presiding officer to explain the right to legal representation, findings or remedial action by Public Protector not binding on persons and organs of state, income tax search-and-seizure warrants, international arbitration, invalidity of foreign exchange regulations, lapsing of grocers’ wine licences, reluctance of court to enforce arbitration agreement concerning disputes of a religious nature, right of pre-emption established through a testamentary disposition, setting aside decision of Independent Communications Authority of South Africa, tax implications of share option scheme, tender bid having to comply for prescribed formalities, test for removal of prosecutor and unlawful arrest and detention.

This article was first published in De Rebus in 2015 (April) DR 39.