The law reports – April 2018

April 1st, 2018
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David Matlala BProc (University of the North) LLB (Wits) LLM (UCT) LLM (Harvard) LLD (Fort Hare)HDip Tax Law (Wits) is an adjunct professor of law at the University of Fort Hare.

February 2018 (1) South African Law Reports (pp 335 – 657); August [2017] 3 All South African Law Reports (pp 365 – 737); October [2017] 4 All South African Law Reports (pp 1 – 294); January [2018] 1 All South African Law Reports (pp 1 – 316); February [2018] 1 All South African Law Reports (pp 317 – 619); 2017 (7) Butterworths Constitutional Law Reports – July (pp 815 – 948); 2017 (12) Butterworths Constitutional Law Reports – December (pp 1497 – 1605)

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

ECB: Eastern Cape Local Division, Bisho

GJ: Gauteng Local Division, Johannesburg

GP: Gauteng Division, Pretoria

KZP: KwaZulu-Natal Division, Pietermaritzburg

SCA: Supreme Court of Appeal

WCC: Western Cape Division, Cape Town

Company law

A member of a company is someone whose name has been entered in the company’s register of members and not a beneficial owner: Section 252(1) of the Companies Act 61 of 1973 (the Act) provides that: ‘Any member of a company who complains that any particular act or omission of a company is unfairly prejudicial, unjust or inequitable, or that the affairs of the company are being conducted in a manner unfairly prejudicial, unjust or inequitable to him or some part of the members of the company, may … make an application to the Court for an order under the section.’

In Smyth and Others v Investec Bank Ltd and Another 2018 (1) SA 494 (SCA); [2018] 1 All SA 1 (SCA), the appellants, Smyth and others, approached the GP in terms of the section for an order declaring two agreements, one concluded on 20 January 2010 and styled ‘Revised Settlement Agreement’ and the other concluded on 22 January 2010 and styled ‘Litigation Settlement Agreement’, as constituting an act or omission, which was unfairly prejudicial, unjust or inequitable as contemplated in the section. The appellants further sought an order directing the first respondent, Investec Bank, to purchase their shares in the second respondent, Randgold, at a specified amount per share or such other amount as the court would determine. As the appellants were not registered members of the second respondent but beneficial owners, the shares having been registered in the name of nominees, the main issue was whether they could invoke the application of s 252. A related question was if the section was not applicable to them, could they nevertheless be joined as co-applicants, together with their relevant nominees in proceedings, in terms of the section by virtue of a direct and substantial interest in such proceedings?

Rabie J upheld the lack of jurisdiction preliminary point raised by the first respondent, holding that the section did not apply to the appellants nor could they be joined as co-applicants. Their claim was dismissed with costs of three counsel. An appeal against that order was dismissed by the SCA with costs of two, and not three, counsel.

Petse JA (Lewis, Mathopo, Navsa JJA and Schippers AJA concurring) held that subss (1) and (2) of s 103 of the Act were applicable. They provided that in addition to the subscribers of a company’s memorandum of association, every other person who agreed to become a member of the company, and whose name was entered in its register of members was a member of the company. It was implicit from this that for a person to become a member, it was necessary that the name of such person should be entered in the register of members of the company concerned. It was a policy of the law that a company should concern itself only with the registered owners of the shares. Accordingly, the emphasis was that when a nominee had been appointed, it was that nominee and not the beneficial owner who was eligible to have their name entered in the register of members. Only once their name was entered in the register of members do they become a member. To allow the appellants to be joined as co-applicants with their nominees would fly in the face of clear provisions of s 252, which unambiguously confined the remedy only to members, which the appellants were not.

It was a simple matter for the appellants, if they wished to avail themselves of the remedy provided for in s 252 in their own names, to terminate the nomination of their respective nominees so as to procure the entry of their names in the register of members. For as long as the nominees’ names remained in the register of members, the beneficial owners lacked a legal interest in the subject-matter of the litigation. This was all the more so when regard was had to the fact that in any event the nominees were in truth advancing the interest of beneficial owners. In particular, they also acted subject to the latter’s instructions.

 

Oppression of minority and unfairly prejudicial conduct principles need oppression in order to apply: Section 163(a) of the Companies Act 71 of 2008 (the Act) provides that a shareholder or director of a company may apply to court for relief if ‘(a) any act or omission of the company, or a related person, has had a result that is oppressive or unfairly prejudicial to, or that unfairly disregards the interest of, the applicant’. Under the repealed Companies Act 61 of 1973 similar provisions were found in s 252. Regarding Close Corporations Act 69 of 1984 (the CC Act) similar provisions are found in s 49.

In Geffen and Others v Martin and Others [2018] 1 All SA 21 (WCC) the applicants, Geffen and others, were minority members in companies and close corporations holding some 20% of the shares and membership interest in the entities concerned, where the respondents held the remaining 80%, approached the High Court for an order against the respondents, Martin and others, in terms of ss 49 of the CC Act and 163 of the Act. The relief sought included the appointment of a chartered accountant who would be requested to compile a report, which included the financial statements of the affected companies and close corporations for the financial years 2011 to 2017; a determination of whether any amounts were due by the affected entities to the applicants and, if so, the actual amounts involved and finally a determination of the fair and reasonable values of the third applicant’s membership interest in two close corporations together with two of the applicants’ shareholding in specified respondent companies.

The application was dismissed with costs. Davis J held that the use of the words oppressive or unfairly prejudicial or unfair disregard of the interest of the applicants was significant. Not only had the conduct to be prejudicial, but it had to be unfairly so or at the very least unreasonable or unethical. The inquiry was thus about whether objectively speaking, the applicants had suffered prejudice, which was sourced in the conduct of the majority shareholders and which was, at least, unreasonable or unethical. Apart from analysis of s 163, and its implications to the case, the fact that an offer had been made by the first respondent to purchase the first applicant’s interest in the entities, which offer was rejected, required further legal analysis.

The conduct of the majority shareholders had to be evaluated in the light of a fundamental principle of company law, namely that by becoming a shareholder, the latter undertook to be bound by the decisions of the majority of shareholders. Not all acts which prejudicially affected a minority shareholder or which disregarded their interests would entitle a minority group to the relief set out in the section. The consequence of the act or omission had to be either oppressive or unfairly prejudicial which, at the very least, connoted a significant element of unfairness.

In the present case and on the papers as presented, the applicants had failed to show on objective grounds that prejudice, as defined in case law, had been sourced in unfair conduct of the majority shareholders. It had not been shown that the alleged conduct adversely affected or was detrimental to the financial interests of the applicants.

Note: Far from doing or omitting to do anything, the real problem in the above case was that the new business venture, which the parties attempted simply failed.

Costs

In constitutional litigation an unsuccessful litigant in proceedings against the state ought not to be ordered to pay costs: In Hotz and Others v University of Cape Town 2018 (1) SA 396 (CC); 2017 (7) BCLR 815 (CC), the applicants, Hotz and others, were students at the respondent University of Cape Town who engaged in protest action in 2016 seeking, among others, free education. The protest turned violent as property was destroyed and threats were made to cause further damage and destruction, including threats to members of the university community. As a result, the respondent successfully sought an interdict against the applicants, which was granted with costs. On appeal to the SCA the interdict was confirmed, subject to modification as the generality of the interdict was narrowed down. The SCA confirmed the High Court costs order but held that concerning SCA costs each party had to pay own costs. On further appeal to the CC leave to appeal against the costs order was granted and the decision of the SCA on the merits confirmed. However, the court altered the costs order by setting aside the order of the High Court as confirmed by the SCA. Each party was ordered to pay own costs in the High Court, the SCA and the CC.

In a unanimous judgment the court held that s 172 of the Constitution vested in the courts wide remedial powers when dealing with constitutional matters. In terms of the section a court could make an order, including a costs award that was just and equitable. Since an award of costs was a discretionary matter, the discretion had to be exercised judicially having regard to all the relevant circumstances.

It was an established principle that the general rule in constitutional litigation was that an unsuccessful litigant in proceedings against the state ought not to be ordered to pay costs. The rationale for the rule was that an award of costs would have a chilling effect on litigants who might wish to vindicate their constitutional rights. However, that rule was not inflexible and could be deviated from. A court of first instance had discretion to determine the costs to be awarded in the light of the particular circumstances of the case. Where the discretion of the court was one in the true sense of the court having to make a choice from a member of permissible options, a court of appeal would require a good reason to interfere with the exercise of that discretion as in some instances it would be inappropriate to interfere with the exercise of the discretion of the court of first instance.

The primary consideration in constitutional litigation should be the way in which a costs order would hinder or promote the advancement of constitutional justice. The nature of the issues, rather than the characterisation of the parties, was the starting point. Costs should not be determined on whether the parties were financially well endowed or indigent. In the present case justice and fairness would best be served if each of the parties were ordered to pay its own costs not only in the High Court but also in the SCA and the CC.

Damages

Payment of future medical expenses by way of periodic payments and payment in kind: In MEC for Health and Social Development, Gauteng v DZ obo WZ 2018 (1) SA 335 (CC); 2017 (12) BCLR 1528 (CC) the minor WZ suffered cerebral palsy due to asphyxia during her mother’s prolonged labour at Chris Hani Baragwanath Hospital. The appellant MEC for Health and Social Development, Gauteng, under whose jurisdiction the hospital in question fell, was sued for future medical expenses that would be incurred in the treatment of the minor. The merits of the case were settled when the appellant conceded liability, this leaving only the issue of quantum for determination. That was also settled when an amount of some R 20 million was agreed on. However, before the High Court the appellant amended her plea contending that she did not have to pay future medical expenses in a lump sum. It was contended that the common law made provision for periodic payment and that if it did not, it had to be developed accordingly. Moreover, there was a possibility that the minor would not incur those expenses as treatment could be received free of charge at a public health facility.

The GJ dismissed the amended plea as did the SCA. The CC granted leave to appeal, but dismissed the appeal with costs. Reading the main judgment Froneman J (Jafta J filing a separate concurring judgment) held that the common law did not make provision for payment of future medical expenses by way of periodic payments. Factual evidence to substantiate a carefully pleaded argument for the development of the common law had to be properly adduced for assessment. That had not been done in the present case as the appellant led no evidence at all.

There was only a single instance in South African law where the assessed loss was ordered to be paid in instalments, namely the case of Wade v Santam Insurance Co Ltd 1985 1 PH J3 (C). That case had apparently not been followed while doubt had been expressed as to whether the court had inherent jurisdiction to make the order there made. Apart from the Wade case the only instances of periodic payments as part of the damages award had been where the parties agreed to it or where execution of judgment followed on an award already made. If an order for periodic payments were to be made under s 173 of the Constitution or even under s 172(1)(b), that would constitute incremental development of the common law insofar as the court would need to determine whether a new set of facts fell within or beyond the scope of an existing rule.

Eviction

Constitutional and statutory obligation of the court to satisfy itself that eviction would be just and equitable after considering all the relevant circumstances: The facts in Lusithi and Others v Cape Lifestyle Investments and Another [2018] 1 All SA 166 (WCC) were that the appellants, Lusithi and others, were a group of persons who occupied the property belonging to the first respondent company, Cape Lifestyle Investments. The first respondent applied for eviction of the appellants from its property and on the date of the hearing before proceedings could start, Yekiso J invited counsel for both sides to his chambers. It was there that the judge informed counsel that after reading the papers he had taken a definitive view in respect of which no amount of argument would make him change his mind. As a result he gave counsel the opportunity to consult with their clients after which they came back to him in chambers where an eviction order was granted, specifying the date by which the appellants were to have vacated the property, failing which the sheriff was authorised to remove them and any structures erected. The second respondent, the Swartland Municipality, was directed to provide alternative site for relocation of occupants of 51 identified structures, but nothing was said about the occupants of many other structures that had since mushroomed in that place. The court denied the appellants leave to appeal but such was granted by the SCA, hence the present appeal before the Full Court.

Upholding the appeal, with no order as to costs, Erasmus J (Boqwana J concurring and Gamble J dissenting) held that courts dealing with eviction matters had a specific duty to ensure that the order made was fair and just. All relevant circumstances had to be considered. An eviction order could only be granted if the court was of the opinion that it was just and equitable to do so, after considering all relevant circumstances.

An agreement by the parties as to the unlawfulness of the occupation did not absolve a court of its constitutional and statutory duties to approach proceedings in a manner that ensured that the protection granted in s 26 (the requirement of a court order before eviction) of the Constitution was fully complied with. Since the appellants alleged that the first respondent gave them permission to occupy the property, the issue of consent ought to have been sufficiently interrogated in a proper hearing prior to the eviction order was granted.

One of the benefits of having a matter ventilated in open court was that in proceedings such as the present, litigants would have the opportunity of listening to the argument made by their legal representatives. If the legal representative presented argument, which was contrary to instructions or made concessions on their behalf on matters they did not discuss, they had an opportunity to correct what was being conveyed to court. Therefore, if a legal representative had no authority to agree to a particular issue, litigants could correct it or at least have an opportunity to do so at that stage. Accordingly, even though the appellants were represented by counsel in the court a quo, that did not dispense with their right to a public hearing to persuade the court in oral argument and to hear if their case was properly conveyed to the court. Doing so was in line with the decision of the CC in Occupiers of Erven 87 and 88 Berea v De Wet NO and Another (Poor Flat Dwellers Association as Amicus Curiae) 2017 (8) BCLR 1015 (CC), which required the courts to interrogate whether consent was informed. Therefore, when faced with a settlement agreement the court had, as a first step, to be satisfied that the parties freely, voluntarily and in full knowledge of their rights, agreed to eviction. That duty arose even in circumstances where parties on both sides were legally represented and a comprehensive agreement was placed before the court. The interaction with counsel in chambers would not be sufficient in matters such as the present one where, not only did the attorney fail in his duty but ultimately it was the duty of the court to ensure that the information was fully placed before it before an eviction order was issued. As a result, the appellants did not have a fair hearing and the matter had to be heard afresh before a different judge.

In a dissenting judgment Gamble J held that the occupiers of the property, the appellants, were represented by counsel and attorneys of their choice before the judge in chambers. They accordingly had access to legal advice and representation. The important fact was that the appellants were legally represented and their counsel did not thereafter assert the right to be heard in open court.

Remittal of the case for a hearing de novo was not warranted in the circumstances. All of the considerations required for a court to determine whether eviction order could be granted, and if so on which terms, were before the court, which was therefore in as good a position as any other to make an order that was just and equitable. No purpose would be served by remitting the matter for a new hearing.

Fundamental rights

Impermissible limitation on freedom of expression: Section 41(6)(c) of the National Prosecuting Authority Act 32 of 1998 (the Act) provides that ‘no person shall without the permission of the National Director [of Public Prosecutions (the NDPP)] disclose to any other person –

(c) the record of any evidence given at an investigation contemplated in section 28(1)’.

In Maharaj and Others v Mandag Centre of Investigative Journalism NPC and Others 2018 (1) SA 471 (SCA); [2018] 1 All SA 369 (SCA), the respondents Mandag Centre, Mail and Guardian and managing partner of Mandag Centre, wanted to publish the contents of interviews, which had been held in terms of s 28(1) of the Act involving the first applicant Maharaj, at one time the Minister of Transport and later a presidential spokesman. The essence of the intended publication was to show that the first applicant lied under oath by withholding certain information and also gave false information. The NDPP declined permission as a result of which the respondents approached the GP for an order reviewing and setting aside the decision of the NDPP. The order was granted by Pretorius J. An appeal against the order was made but dismissed with costs by the SCA.

Ponnan JA (Petse JA, Tsoka, Mbatha and Schippers AJJA concurring) held that s 41(6)(c) of the Act did not contain an absolute ban on publication. Instead, publication depended on permission first having been sought and obtained from the NDPP. The purpose of the limitation was obviously to protect the integrity of the criminal justice system. However, there was no denying that s 41(6) constituted a limitation on the right to freedom of expression contained in s 16 of the Constitution.

On the facts of the present case there was no countervailing concern regarding the integrity of the administration of the criminal justice system. On the contrary, the administration and integrity of the very criminal justice system would require that the respondents be permitted to publish the contents of the interview. The Act did not spell out the factors, which the NDPP had to consider in exercising her discretion in terms of s 41(6). Nevertheless, a consideration of the s 28 interview record would be the first and most obvious factor. That was, however, not done in the instant case. As a result the NDPP was only aware of the s 28 interview in ‘general terms’. The NDPP’s relegation of a factor of such obvious and paramount importance to one of insignificance amounted to a failure to apply her mind properly to the matter. Accordingly, the NDPP ought not to have refused permission without a proper consideration of the record at the time of making her decision. Given the obvious relevance of s 28 record, failure to consider it rendered the decision irrational, for which reason alone the decision was susceptible to being set aside.

The matter raised serious allegations of corruption and mismanagement of public funds. Given the scourge of corruption, the role of the media in reporting on each activity was in the public interest. What was more, the appellants were public figures.

 

Right to receive education in an official language of choice: Historically the medium of instruction at Stellenbosch University (SU) has always been Afrikaans. However, attempts to revise the language policy were made in 2001 and 2003 but the major one took place in 2014 (the 2014 Policy) in terms of which, Afrikaans remained the primary medium of instruction while room was made for usage of English as well, this being among others by way of parallel teaching, meaning that a class would be divided into two groups, one group being taught in Afrikaans while the other was taught in English. Sometimes a lecturer would conduct the same lecture in both English and Afrikaans or only in Afrikaans with an interpreter assisting in English. The policy was not particularly successful as students who could not communicate in Afrikaans (mostly black students) were greatly disadvantaged. To solve the problem SU came up with a new policy in 2016 (the 2016 Policy) in terms of which English became the dominant, but not exclusive, medium of instruction. Provision was made for usage of Afrikaans, the policy providing in particular that usage of Afrikaans would be preserved and increased where reasonably practicable.

In Gelyke Kanse and Others v Chairman of the Senate of Stellenbosch University and Others [2018] 1 All SA 46 (WCC) the main issue was that the applicants, Gelyke Kanse (literally Equal Opportunities) and others, sought an order reviewing and setting aside SU’s 2016 Policy, as well as another directing SU to implement its 2014 Policy until it was validly amended or replaced. Their contention was that the 2016 Policy effectively dispensed with Afrikaans as a primary language of instruction.

The application was dismissed with costs. Dlodlo J (Savage J concurring) held that in terms of s 29(2) of the Constitution everyone had the right to receive education in the official language or languages of their choice, subject to the requirement that such would be the case where it was reasonably practicable. What was reasonably practicable was an assessment of equity and historical redress. The courts had to be extremely hesitant to interfere with a university’s determination of what was reasonably practicable. It was rational for a university to conclude that it was not reasonably practicable to teach in Afrikaans because it would result in an unconstitutional situation on its campus, such as segregated classrooms. An assessment of what was reasonably practicable required a consideration both of resource constraints and logistics (the factual criterion) and what was reasonable which clearly included considerations of equity, redress and non-racialism (the constitutional criterion). The 2016 Policy complied with the Higher Education Language Policy formulated in terms of the Higher Education Act 101 of 1997, which allowed each university to take reasonable decisions on their own language policy. In the present case the applicants had not shown that the 2016 Policy was in any way unconstitutional.

Land tenure

Unconstitutionality of automatic conversion of land tenure rights into ownership: Section 2(1)(a) of the Upgrading of Land Tenure Rights Act 112 of 1991 (the Act), which deals with automatic conversion of land tenure rights (occupation rights) into ownership, provides that: ‘Any land tenure right mentioned in Schedule 1 [of the Act] and which was granted in respect of –

(a) any erf or any other piece of land in a formalised township for which a township register was already opened at the commencement of this Act shall be converted into ownership’.

The problem, which the Act sought to solve, was created by Proclamation R293 of 1962, issued in terms of the Black Administration Act 38 of 1927, which has since been repealed. The Proclamation was obviously an old era regulatory scheme in terms of which property was registered in the name of the head of a family, invariably a male, to the exclusion of women.

In Rahube v Rahube and Others 2018 (1) SA 638 (GP) an extended family of eight members was allotted property in Mabopane, an area outside Pretoria, in 1970. The household consisted of the first respondent Rahube (who was the applicant’s brother), the other siblings, the applicant Rahube together with her children, as well as the grandmother of the siblings and their uncle. In 1987 a certificate of occupation in respect of the property was issued in the name of the first respondent. The other members of the household were specified by name as occupants of the property. A year later, in 1988, the certificate of occupation was upgraded to a deed of grant.

It was that deed of grant, which was converted into ownership by s 2(1)(a) of the Act. However, there was a problem in that automatic conversion meant that the first respondent became the owner to the exclusion of all other occupants who were not afforded an opportunity to lay a claim. In the instant case the applicant’s brothers, including the first respondent, left the property in the 1980s and early 1990s. The uncle left in the year 2000. The applicant, together with her children and grandchildren, continued living on the property. The first respondent sought an eviction order against the applicant and her descendants. In response the applicant sought an order declaring that she was the owner of the property or alternatively that she was entitled to have the property registered in her name. In the further alternative she sought an order declaring s 2(1)(a) unconstitutional and, therefore, invalid as it did not give her, and the other occupants in similar position, the opportunity to lay claim at the time of automatic conversion of the deed of grant into ownership.

Kollapen J held that the request that the applicant be declared the owner of the property or alternatively that she be declared entitled to have the property registered in her name could not be granted. That was substantially because of her failure to join other members of the household in the proceedings, given that they had a direct and substantial interest in the matter. However, the order of declaration of constitutional invalidity of the section was granted with costs against the third respondent, the Department of Local Government and Housing. That order of invalidity was suspended for a period of 18 months to afford Parliament the opportunity to remedy the defect. During that period the first respondent was interdicted from passing ownership, selling or encumbering the property in any manner whatsoever.

The court held that the Act perpetuated the exclusion of women, such as the applicant, from the right of ownership insofar as it provided for automatic conversion but failed to provide any mechanism in terms of which any competing rights could be considered and assessed after which a determination could be made. The legislative scheme introduced by the Act effectively vested all rights of ownership in the property in the first respondent and similarly divested the applicant and others who might have been similarly situated of any entitlement to the property. The Act did so without affording the applicant and potentially others an opportunity to be heard and present a claim for entitlement to the property.

The conversion process prescribed in the Act took as its starting point the land tenure rights granted in terms of the Proclamation, which had been described as racist and sexist and did not consider the genesis of how such rights were granted, and in particular whether they were granted under circumstances that excluded women from consideration as rights-holders. The applicant and her descendants were not the only persons affected by the operation of the Act as other family members were also listed for the purposes of certificate of occupation. All affected persons, those listed in the certificate of occupation or their descendants, had the right to be heard in respect of the ownership of property. However, no provision was made in the Act for an appropriate procedure affording the opportunity to be heard. The Act’s automatic conversion mechanism, the lack of notice of conversion and the absence of a procedure for raising issues with the conversion of land tenure rights into ownership, defied the audi alteram partem principle, which required that all parties be given the opportunity to respond to evidence.

Public roads

Traffic rules governing public roads in a gated estate are governed by public law and not contract: In Singh and Another v Mount Edgecombe Country Club Estate Management Association Two (RF) (NPC) and Others 2018 (1) SA 615 (KZP), [2018] 1 All SA 279 (KZP) the first respondent, Mount Edgecombe, was a gated security estate having rules governing the conduct of residents of the estate and their domestic servants, as well as those governing usage of public roads found within the estate. The rules provided, among others, that domestic servants of residents could not walk on public roads in the estate, but had to use busses provided or be transported by the employer in their vehicle. They also provided for fines to be imposed for infringement. The traffic rules were not made with the permission of the Minister of Transport, his delegate, a Member of the Executive Committee (MEC) or a municipality as required by the National Road Traffic Act 93 of 1996 (the Act).

After the daughter of the first appellant Singh infringed the rules governing public roads in the estate by exceeding the specified speed limits, a fine was imposed and debited to the account of the latter. When payment was not forthcoming the first appellant’s access card to the estate was de-activated with the result that he, together with his family, was denied access to the estate. The first and second appellant, another resident of the estate, approached the High Court for an order declaring the rules invalid in that, in the case of public road rules, they were made without the permission of the MEC and in the case of domestic servant rules, they were unreasonable. The KZP held, per Topping AJ, that the rules were valid as they were a contract between the first respondent and its residents. An appeal to the Full Bench was upheld with costs, the rules were declared invalid, which order of invalidity was suspended for a period of 12 months, during which the first respondent was afforded the opportunity to obtain the necessary permission from the minister or the MEC.

Seegobin J (Chetty and Bezuidenhout JJ concurring) held that while the first respondent believed that it was free to control, regulate and police all roads within the estate by virtue of its rules and the contracts it concluded with its members, including the appellants, the problem was that the public-road status within the estate carried with it certain public law legal consequences. Inherent in the concept of a public road was that the public had access to it and that the regulatory regime was a statutory one, namely, the Act, which applied throughout the country.

Private bodies, such as the first respondent, were obliged to seek the necessary permission from the MEC and/or the municipality concerned. In granting such permission the MEC and/or municipality concerned would be entitled to impose such conditions as they would consider necessary in the circumstances. In the instant case it was common cause that the first respondent did not apply for such permission at any stage.

Since roads within the estate were public roads, it was only the minister or someone authorised by him by virtue of delegated authority, who had the power to regulate any road or any aspect of those roads. To the extent that the road rules sought to authorise the first respondent to impose a speed limit in respect of the roads within the estate, it simply had no authority to do so. The restrictive nature of the first respondent’s rules also affected basic rights of domestic employees such as their rights to human dignity, equality, freedom of association, freedom of movement, freedom of occupation and fair labour practices. To the extent that the rules restrained the rights of domestic employees from freely being on and traversing public roads in the estate, they were unconscionable and unlawful.                 

Traditional leadership

Appointment of senior traditional leadership of a traditional community: The dispute in Premier of the Eastern Cape and Others v Hebe and Others [2018] 1 All SA 194 (ECB) was about the right person to be senior traditional leader (chief) of the abaThembu Traditional Community in Whittlesea, Eastern Cape. In the recent past the senior traditional leader of the community was Hebe who, after his death, was succeeded by his son, the first respondent, Chief Hebe, in 2007. Chief Hebe’s position was contested by the second respondent, one Katsi, who claimed to have been the rightful senior traditional leader of the community, he belonging to a subgroup of the abaThembu, the amaTshatshu. Because of competition between the two the dispute was referred to a provincial committee (the Committee) of the Commission on Traditional Leadership Disputes and Claims for investigation and recommendation. After completion of its task the Committee reported to the first appellant, the Premier, in which it recommended that the second respondent be recognised as the senior traditional leader. The Premier delegated the task to the Superintendent-General to advise the first appellant of the intention to recognise the second respondent as the senior traditional leader, also asking for written representation as to why that should not be done.

Apart from making written representation the first appellant also approached the High Court for an interdict restraining the Premier, the MEC and the Superintendent-General from recognising the second respondent as senior traditional leader pending determination of the application for a review and setting aside the recommendation of the Committee and the decision of the Premier to recognise the second respondent. The interim interdict was granted and later made final by Bacela AJ who also reviewed and set aside the recommendation of the Committee and the decision of the Premier.

An appeal against that decision was dismissed with costs by the Full Court. Van Zyl DJP (Stretch J and Mageza AJ concurring) held that the Committee made a recommendation and not a binding decision. The dispute resolution mechanism created by the Traditional Leadership and Governance Framework Act 41 of 2003 (the Act) commenced with an investigation and was concluded with the decision of the Premier. The Premier similarly derived the power to make a decision on the recommendation from the Act. The Premier cannot take a binding decision without a recommendation of the Committee. The recommendation was accordingly a jurisdictional fact and a prerequisite for the exercise by the Premier of his authority as contemplated in s 26 of the Act. Although the Premier was empowered to make a decision that differed from the recommendation of the Committee, he or she was obliged to act on the recommendation. If the Committee’s role in the decision making process was flawed, the entire process would be tainted.

In the instant case the Committee’s role in the decision making was indeed flawed. That was so as the Committee did not take into account relevant evidence and important affidavits used in the 1982 case decided in the Supreme Court of Ciskei in which the senior traditional leadership of the first respondent’s father was disputed. For that reason the recommendation of the Committee had to be reviewed and set aside. Furthermore, the Committee deviated from its mandate by investigating and reporting on a matter it was not mandated to do. The task of the Committee was to investigate a dispute in relation to the right or title of the first respondent to the chieftaincy of abaThembu Traditional Council. The investigation was directed at the right or entitlement to be appointed to the chieftaincy of an existing traditional community. On the contrary, the underlying basis of the Committee’s recommendation was that the amaTshatshu should be recognised as a traditional community in the land of their ancestors and that the appointment of the second respondent to the disputed chieftaincy would achieve that result. That constituted a serious misdirection and failed to recognise that the dispute was concerned with the chieftaincy of an existing community consisting of more than one abaThembu group. In brief, the Committee’s recommendation effectively dealt with the traditional leadership of the amaTshatshu community as opposed to the leadership of the abaThembu community as per the mandate.

Wills

No will is valid unless it is signed by the testator in the presence of two or more competent witnesses present at the same time: The facts of the case of Twine and Another v Naidoo and Another [2018] 1 All SA 297 (GJ) were that at the time of his death in 2014 the deceased, one Twine, was living in a romantic relationship with the first defendant, Naidoo, to whom he was not married. The deceased left two wills, the 2011 will and the 2014 will. In the 2011 will the deceased bequeathed among others R 20 000 to the first defendant and the rest of the estate to his daughters, the plaintiffs. The 2014 will was the opposite of the 2011 will in that there the deceased among other things bequeathed R 10 000 each to the plaintiffs and left the rest of the estate to the first defendant.

The plaintiffs approached the High Court for an order declaring the 2014 will invalid and null and void, while the 2011 will had to be declared a valid last will and testament of the deceased. The validity of the 2014 will was challenged on the grounds that it was not co-signed by the deceased’s niece as stipulated in the 2011 will that all future wills should be co-signed by her and further that the deceased signed it in the absence of the witnesses. As a matter of fact one of the witnesses who signed it testified that she and her husband signed the will and left with the result that if the deceased signed the will after all it would only have been after their departure.

Vally J granted the order as sought, making no order as to costs, which the plaintiffs did not seek in the first place. It was held that in terms of s 2(1)(a)(ii) of the Wills Act 7 of 1953 no will was valid unless the signature made by the testator was made in the presence of two or more competent witnesses present at the same time. Accordingly, the witnesses who attested to the signature of the testator had to be present when the testator actually signed. That requirement was mandatory and if not met, the will was invalid for want of compliance with a statutorily required formality. As in the present case both witnesses who were supposed to attest to the signing of the 2014 will by the deceased were not present when he signed it, it was invalid.

The parties having made use of the services of handwriting experts, the court commented at length on the role, duties and functions of an expert witness, as well as the role and functions of the court in that respect. Very briefly, the court held that a witness claiming to be an expert had to establish and prove their credentials in order for their opinion to be admitted. Their testimony should only be introduced if it was relevant and reliable. An expert witness’ overriding duty was to the court in respect of which they should provide independent assistance by way of unbiased opinion in relation to matters within their expertise. Such a witness was not an advocate for any party and their independence should never be relinquished. In the instant case the testimony of the experts for both sides was rejected. That was so as in the case of the plaintiffs’ witness, she failed to distance herself from the case of the plaintiffs to the point where she became an advocate for their case. While in the case of the defendant’s witness he was too uncertain to be of any probative value in determining the central questions before the court.

 

Non-compliance with the Wills Act and forgery of signature: The case of Karani v Karani NO and Others [2018] 1 All SA 156 (GJ) resembles that of the Twine case (op cit) in a number of respects, including the issues involved and how they were dealt with. Furthermore, the same expert, was called to testify for the plaintiff in both cases, only that in the Karani case her testimony was found credible and accordingly accepted.

The facts of the case were that the testatrix was alleged to have executed a total of six wills at various stages during her lifetime. The plaintiff, the deceased’s brother, sought an order declaring the will dated 15 September 2006 (the 2006 will) to be a valid last will and testament of the deceased and that her will executed on 7 February 2013 (the 2013 will) to be declared invalid and, therefore, null and void. The 2013 will was alleged to be non-compliant with s 2(1)(a) of the Wills Act 7 of 1953 in that it was signed by the testatrix and one witness when they were together. However, the second witness was not there at the time and only signed a day later and in the absence of both the testatrix and the first witness, which was a clear violation of the section. The question was whether the will could still be validated in terms of s 2(3) of the Act, which made provision to that end if the will was drafted by the deceased personally and was intended to be her will.

Monama J held that the 2013 will was invalid and thus null and void for non-compliance with s 2(1)(a) when it was executed. Furthermore, it could not be validated in terms of s 2(3), as it was not drafted by the deceased personally. On the contrary, it was drafted by the third defendant, the deceased’s nephew who was in Canada at the time and then sent to the second defendant by electronic mail. On receipt the second defendant printed the will and brought it to the attention of the deceased, explaining it in her language as it was written in English.

Regarding forgery of the deceased’s signature on the will the expert explained how great effort had been made to present the signature of the deceased as it had always been in the past. However, that was exactly the problem since at the time of the execution of the 2013 will it was improbable that her signature would have remained the same as her age had advanced in that she was 76 years of age, her health had deteriorated while she had arthritis. The forger apparently forgot to take care of all those considerations. The other problem with the will was that it was witnessed on the last page only, to the exclusion of the other pages. In this regard the court held that the word ‘signature’ should be interpreted widely to mean that each and every page had to be signed by all signatories as failing to do so would create the risk that the unsigned pages could be tampered with.

Turning to the question of expert witness the court held that such had to be objective irrespective of the party calling her. The expert had to be properly qualified and provide the factual basis for her opinion.

Other cases

Apart from the cases and material dealt with or referred to above the material under review also contained cases dealing with: Court refusing to enforce strict terms of a harsh lease contract, eviction of lessee after cancellation of lease, exclusion of adopted children from inheritance, ‘interim-interim’ interdict; interpretation of statutes, naturalisation of persons as South African citizens, prescription of right to claim retransfer of property to the seller, reasonable notice terminating relationship between banker and client, requirements for condictio indebiti, rescission of eviction order and statement made by witness to police as hearsay evidence.

This article was first published in De Rebus in 2018 (April) DR 40.

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