The law reports – April 2019

April 1st, 2019
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February 2019 (1) South African Law Reports (pp 327 – 655); January [2019] 1 All South African Law Reports (pp 1 – 289)

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

EC: Equality Court

GJ: Gauteng Local Division, Johannesburg

GP: Gauteng Division, Pretoria

KZP: KwaZulu-Natal Division, Pietermaritzburg

LC: Labour Court

SCA: Supreme Court of Appeal

TC: Tax Court

WCC: Western Cape Division, Cape Town

Administrative law

Preliminary investigation is not reviewable: In Gamede v Public Protector 2019 (1) SA 491 (GP) the applicant, Gamede, was a Member of the Executive Council (MEC) for the Department of Agriculture, Rural Development, Land and Environmental Affairs for the Mpumalanga Province. The respondent, the Public Protector, received a complaint of maladministration, corruption and irregularities committed by the applicant in his department. As a result, the respondent initiated a preliminary investigation to verify the merits of the allegations and in the process notified the applicant accordingly, as well as advising him that if it were later to appear that he could be implicated, he would be notified and given the opportunity to respond. The applicant was impatient and already during the preliminary investigative stage, he requested certain information and documents. The respondent declined the request. For that reason, the applicant launched an application in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) to review and set aside the respondent’s decision to decline the request. The application was dismissed with costs.

De Vos J held that the duty to institute a preliminary investigation in order to objectively determine whether sufficient facts existed to enable the Public Protector to make a decision in connection with allegations falling within the scope of her mandate, could not be regarded as a decision that was reviewable in terms of PAJA. On the facts before the court the respondent had not yet made any decision regarding the facts before her. Accordingly, no administrative action had been taken. It was not in dispute that the applicant was entitled to certain information in order to protect his rights but that was at a later stage in the investigation process. It was not at all unreasonable for the respondent to choose to refuse to proffer that information during the investigative process. Therefore, the respondent’s determination not to provide the applicant with certain documents at that stage of the investigation was not unreasonable.

Cession

Contractual rights of delectus personae are not ceded: In Propell Specialised Finance (Pty) Ltd v Attorneys Insurance Indemnity Fund NPC [2019] 1 All SA 79 (SCA) the appellant, Propell Specialised Finance (Propell), advanced money to clients of Buurman Stemela Lubbe Incorporated (BSL), a law firm, as bridging finance for property transactions. The money was deposited into the trust account of BSL against funds accruing to BSL’s clients from the property transactions concerned. After completion of the transactions and payment of the funds into BSL’s trust account Mr Buurman and/or Ms Van der Merwe, an employee of BSL, misappropriated the funds, resulting in BSL being unable to pay Propell. As a result, BSL notified the respondent Attorneys Insurance Indemnity Fund NPC of Propell’s claims and sought indemnity from it. The respondent repudiated liability on the ground that Propell’s money that was paid into BSL’s trust account was entrusted to it as contemplated by s 26 of the Attorneys Act 53 of 1979 (the Attorneys Act) and that the loss that Propell suffered was excluded in terms of clause 5.1.5 of the Policy, which provided, that the Policy did not cover any loss arising from theft by any principal, partner, director, candidate attorney, employee or ‘in-house’ consultant of the insured of any money or other property referred to in s 26 of the Attorneys Act. Instead of suing the respondent for repudiation of liability, BSL ceded its claim against the respondent to the appellant without the respondent’s consent as required by the Policy. The appellant’s claims against the respondent, based on the cession, were met with the special plea and could not be ceded as the insured, BSL, was a delectus personae and further that the Policy did not expressly or impliedly permit cession of the claims (pactum de non cedendo).

The WCC per Dlodlo J held that the rights were not ceded and dismissed the appellants’ claims. An appeal to the SCA was dismissed with costs. Zondi JA (Lewis, Saldulker, Mathopo JJA and Mokgohloa AJA concurring) held that the High Court was correct in holding that the rights of indemnification under the Policy were not capable of being ceded on the grounds that first, the nature of the contractual relationship flowing from the Policy involved a delectus personae and secondly, the cession had the effect of burdening the respondent’s position. The cession was, therefore, invalid and incapable of conferring locus standi on the appellant.

The specific group or class of people for whose benefit the insurance was established was specifically defined in the Policy. The ‘insured’ was defined as every individual practitioner who was practising as such in South Africa and was in possession of or would have been obliged to apply for a current Fidelity Fund Certificate. Viewed cumulatively, the above factors showed that the nature of the contractual rights under the Policy indicated the insured as a delectus personae. The contracts gave no right of indemnity to anyone but a legal practitioner. From the point of view of the respondent, the identity of the insured mattered.

Constitutional law

Cooperative governance – referral of dispute to state organs for resolution: In the case of Cape Gate (Pty) Ltd and Others v Eskom Holdings SOC Ltd and Others [2019] 1 All SA 141 (GJ) the first respondent, Eskom, supplied bulk electricity to the second respondent, Emfuleni Municipality, for redistribution to private consumers within its geographic area of jurisdiction. The first applicant, Cape Gate, and others were such private consumers whose accounts with the second respondent were up to date. However, the second respondent did not pay Eskom for electricity supplied and over time the debt exceeded R 1 billion. As a debt control measure, Eskom gave notice of its intention to disrupt electricity supply to the second respondent. Because of the nature of business conducted by the applicants, disruption of electricity supply could only mean one thing, namely shut down and loss of work for the workers. To prevent the threatened disruption the applicants approached the High Court for an interim interdict preventing Eskom from carrying out its threat. The interdict was to operate until the decision of Eskom to disrupt electricity supply was reviewed in legal proceedings. The applicants also asked for a court order authorising them to pay directly to Eskom for electricity consumed instead of paying to the second respondent, which did the monthly billing. Both the Gauteng Provincial Government (GPG) and the National Treasury intervened in the saga and indicated that they needed three months to come up with a recovery plan for the second respondent. However, because of a history of not honouring promises and not complying with a court order, Eskom insisted that it would interrupt electricity supply within one month.

The Full Court of the GJ per Keightley, Makume and Van der Linde JJA granted the interim interdict, which, was to operate until the dispute was resolved within six months, failing which, the matter could be set down for hearing of a review of Eskom’s decision to interrupt the supply of electricity. The issue of resolving the R 1 billion, which was owed by the second respondent was referred to the affected organs of state to resolve within the given six months. In the meantime, the applicants were authorised to pay their electricity bills directly to Eskom, while the mark-up (commission) was to be paid to the second respondent. Save for specified aspects thereof, costs were reserved for finalisation of the matter.

The court held that the decision to interrupt the supply of electricity was an administrative action, which entitled the applicant to challenge it under the Promotion of Administrative Justice Act 3 of 2000 (PAJA). Interruption of electricity supply was not rational as it was not going to help the second respondent pay its debt to Eskom, but would only destroy the applicants’ businesses. Therefore, the interruption decision could not, reasonably and rationally speaking, given the second respondent’s financial crisis, bring it the payment that Eskom was looking for. The interruption decision was accordingly reviewable under PAJA.

In the present case there were not only more parties involved, including the National Treasury but the GPG as well. The dispute was multifaceted and concerned how to resolve the indebtedness, given that the second respondent was not paying, could not pay and had what the Constitution in s 139 described as ‘crisis in its financial affairs’. The GPG had embarked on the constitutionally and statutorily envisaged route of placing the second respondent under administration and that of procuring an appropriate recovery plan. Mechanisms and procedures had been provided for purposes of settling the dispute as found in the Constitution (s 139) and the Local Government: Municipal Finance Management Act 5 of 2003. That route would eventually open access by Eskom to National Treasury intervention.

Therefore, in the circumstances of the case the organs of state had not made every reasonable effort to settle the dispute by means of the prescribed mechanism and procedures. As a result the court had the power under s 41(1) of the Constitution to refer the dispute back to the organs of state involved.

Consumer credit agreements

Once-off credit provider also required to register: The facts in Du Bruyn NO and Others v Karsten 2019 (1) SA 403 (SCA) were that the appellants, Mr and Mrs Du Bruyn, were married in community of property. Mr Du Bruyn and the respondent Mr Karsten conducted business together as shareholders in two companies and members of a close corporation. After a fall out Du Bruyn bought out Karsten in terms of three separate but identical agreements, the purchase price for the shares and member’s interest in the close corporation being R 2 million, which was payable by way of deposit of R 500 000 and monthly instalments of R 30 000. The appellants undertook to register a covering bond over their immovable property. Because of the amount of credit granted and for the sake of registration of the bond the respondent was required by the National Credit Act 34 of 2005 (the NCA) to register as a credit provider, but was not so at the time of conclusion of the contract as he only registered much later. After breach of contract by the appellants who failed to honour payment of instalments, the respondent sought to enforce his rights. The appellants contended that due to the respondent’s non-registration as a credit provider, the contracts were null and void.

The GP, per Mavundla J, held that the contracts were valid and granted judgment in favour of the respondent. The court expressly indicated that but for the Full Court decision of the same court in Friend v Sendal 2015 (1) SA 395 (GP), the decision would have been that the contracts were null and void as the respondent was not registered as a credit provider.

An appeal to the SCA was upheld and, as per agreement between the parties, no order was made as to costs. Nicholls AJA (Shongwe ADP, Makgoka, Schippers JJA and Mokgohloa AJA concurring) held that the amount of credit provided was the sole determining factor to ascertain whether a credit provider was obliged to register. A plain reading of s 40(1)(b) of the NCA made it clear that a person had to register as a credit provider if the total principal debt exceeded the prescribed threshold in terms of s 42(1). The section provided that the minister would, at the intervals of not more than five years, determine an applicable threshold of not less than R 500 000 for the purpose of determining whether a credit provider was required to register in terms of s 40(1).

The requirement to register as a credit provider was applicable to all credit agreements once the prescribed threshold was reached, irrespective of whether the credit provider was involved in the credit industry and irrespective of whether the credit agreement was a once-off transaction. That this was an imperfect solution was readily accepted but it was for the legislature to remedy, rather than for the courts to attempt to accommodate deficient drafting by attributing a meaning to a s 40(1)(b) that was not justified by the wording of the statute.

Education

Best interest of child and right to basic education: The facts in AB and Another v Pridwin Preparatory School and Others 2019 (1) SA 327 (SCA), [2019] 1 All SA 1 (SCA) were that the appellants AB (the father) and CB (the mother) who were parents of two minor children, signed two parents’ contracts with the first respondent Pridwin Preparatory School (the school) in terms of which the minors were admitted to the school. Clause 9.3 of the contracts, provided that the school had a right to cancel the contract at any time, for any reason, provided that the parent was given a full term’s notice in writing of the school’s decision to terminate the contract. After a number of incidents spanning over eight months in which AB, with CB being an accomplice, breached the contracts with the school by among others berating the school principal, the school head of sport and some staff members, the principal wrote a letter advising that the contracts had been terminated effective the end of the academic year. Although the principal could have terminated the contracts earlier, for the sake of the minors, the termination was delayed to the end of the year to avoid disrupting the minors’ schooling. The termination of contract did not include a hearing for the parents or the minors, the contracts making no provision to that effect. However, on a number of occasions when an incident occurred during a sporting or training event, the principal had been brought to the scene to have a talk with AB. To avoid further incidents in January 2016, an agreement was reached between the appellants and the principal in terms of which AB was to refrain from his disruptive tendencies and verbal abuse of both school staff and learners. As it turned out, the agreement was simply a waste of time as disruption and verbal abuse continued.

Aggrieved by termination of the contracts the appellants approached the GJ for an order declaring that the termination, which was not preceded by a hearing or representation, was unconstitutional, invalid and unlawful and accordingly had to be reviewed and set aside. To that end the appellants relied on ss 28(2) (paramountcy of a child’s best interests) and 29(1)(a) (right to basic education) of the Constitution. They also relied on the right to fair administrative action as contained in the Promotion of Administrative Justice Act 3 of 2000 (PAJA). The High Court, per Hartford AJ, dismissed the application, hence the present appeal. The SCA dismissed the appeal with costs.

Cachalia JA (Shongwe ADP, Schippers JA and Mothle AJA concurring) held that the approach of the appellants in demanding a hearing before the contracts were terminated was to focus on the interests of their children to the exclusion of all others. It was not only the dignity of their children that needed protection but also the dignity of every other child and every other person at the school. That meant that every person’s rights were worthy of equal consideration. That included the right of the school to enter into and terminate contracts freely in accordance with their terms and the freedom to associate and dissociate with whomsoever it wished. That being the case, the argument that s 28(2) of the Constitution gave rise to an implied right to be heard before a contract was terminated had to be rejected. The right to be heard did not arise generally from s 28(2) and could not be deployed to limit a party’s right to terminate a contract on notice. Furthermore, s 29(1)(a) of the Constitution could not be used to impose a duty on a private school, not provided for in the contract, to grant a hearing before it terminated the contract on notice.

There was no constitutional obligation on a private school to admit the appellants’ children. The school had done nothing to prevent the appellants’ children from obtaining basic education at a public school, there being three public schools in the area that would be obliged to take them. Accordingly, there had been no breach of the right to basic education in any way. The fact that s 29(3) of the Constitution, read with the South African Schools Act 84 of 1996, specifically permitted independent educational institutions to be established did not mean that such institutions performed a constitutional function to provide basic education as envisaged in s 29(1)(a) of the Constitution. In cancelling the contracts the school was not exercising a public power or performing a public function. It was exercising a contractual power that did not constitute administrative action for PAJA to apply.

In a dissenting judgment Mocumie JA held that clause 9.3 of the contracts was unconstitutional, contrary to public policy and unenforceable to the extent that it purported to allow the school to terminate the contracts without following a fair procedure and without hearing the views of the appellants’ minor children. In her view a curator ad litem ought to have been appointed to represent the two minor children.

Equality Court

Jurisdiction of Equality Court: In AS v Neotel (Pty) Ltd 2019 (1) SA 622 (GJ) the applicant, AS, was an employee of the respondent Neotel. Her senior, one G, instructed her to come to his house to collect work-related material. It was at his house that G allegedly raped her, after which she reported her complaint to the police and the respondent. However, the respondent was more interested in protecting its reputation than investigating the complaint. To that end no proper investigation followed, while the work of the police was obstructed. That being the position the applicant lodged a complaint with the GJ sitting as an EC. In her complaint the applicant alleged that the conduct of the respondent made her a victim of gender-based discrimination, harassment and abuse of corporate power, which compromised her rights to equality and access to justice. As a result, she sought damages, an order directing the police to investigate and report back to court, as well as another order directing the Director of Public Prosecutions to investigate her complaint and make a decision regarding prosecution.

The respondent raised a special plea, contending that the EC did not have jurisdiction as the complaint was employment-related and accordingly belonged to the LC. The special plea was dismissed with costs.

Spilg J held that it was a sine qua non for the application of the Employment Equity Act 55 of 1998 (the EEA) that unfair discrimination should arise from an employment policy or practice. The EEA was directed at eliminating unfair discrimination in the workplace. On the other hand, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act) was directed at facilitating equality within the broader social structures consonant with the values of the Constitution. For that reason, it would defeat a core objective of the Equality Act if one had regard only to the grounds of complaint and not the remedial action which the EC was empowered to implement proactively and through structural orders that addressed the imbalances within the broader society, including its institutions.

As neither the applicant nor the respondent pleaded facts to indicate that the complaint of harassment arose from an employment policy or practice, the precondition for the application of the EEA (a preserve of the LC) to the exclusion of the Equality Act, fell away. The conduct complained of did not arise from, and was unrelated to, an employment policy or practice of a company in respect of its employee. As a result, the EEA did not apply and the LC lacked jurisdiction to adjudicate the complaint.

Income tax

Simulated transactions: During the tax years 2005 to 2007 s 103(1) of the Income Tax Act 58 of 1962 (the Act) provided that whenever the Commissioner for the South African Revenue Service (the commissioner) was satisfied that any transaction, operation or scheme had been entered into or carried out had the effect of avoiding or postponing liability for the payment of any tax, duty or levy imposed by the Act and, having regard to the circumstances under which it was entered into or carried out, it was by means or in a manner which would not normally be employed, and was entered into or carried out solely or mainly for the purposes of obtaining a tax benefit, the commissioner had to determine the liability for any tax, duty or levy imposed by the Act, and the amount thereof, as if the transaction, operation or scheme had not been entered into or carried out.

For present purposes the above provisions have to be read in conjunction with s 9D of the Act, which was introduced in 2001, and which extended the basis of taxation from source to residence. Section 9D(9) provides that in determining the nett income of a controlled foreign company there shall not be taken into account any amount, which is attributable to any business establishment of that controlled foreign company in any country other than South Africa. The section continues to provide that the exemption provisions would not apply, and therefore the nett income would be subject to tax, if such nett income is derived from any person, in relation to that controlled foreign company, who is a resident of South Africa unless that controlled foreign company purchased the sold goods within the country of residence of that controlled company, from any person who is not a connected person in relation to the controlled foreign company.

The application of the above provisions (ss 103(1) and 9D(9)) was dealt with in Sasol Oil Proprietary Limited v Commissioner for the South African Revenue Service [2019] 1 All SA 106 (SCA) where the appellant Sasol Oil, a subsidiary of Sasol Ltd, was a South African company based in Durban. Sasol Oil imported crude oil from the Middle East to refine and market locally. When the Sasol Group of companies started to ‘globalise’, it among others incorporated Sasol Trading International (STI) in the Isle of Man and Sasol International Services UK (SISL) in London, the latter initially being known as Sasol Trading Services until the name change in 1998. STI and SISL were wholly owned subsidiaries of another Sasol Group company, namely Sasol Investments Holdings, which was incorporated in South Africa.

After restructuring of the Sasol Group and from 1997 procurement of crude oil from the Middle East was done by STI, instead of the appellant Sasol Oil, which shipped the oil to the latter. From 2001 there was a further change as instead of shipping the oil Sasol Oil, STI sold it to SISL in London, which in turn sold it to Sasol Oil. In 2004 a second wholly owned subsidiary of Sasol Oil, called Sasol Oil International (SOIL) was also established in the Isle of Man and did the same work as STI as it procured crude oil from the Middle East and delivered it to SISL. The upshot of the above arrangement was that there were two companies and contracts in terms of which STI and SOIL procured and shipped crude oil to SISL for on-selling to Sasol Oil.

The obvious problem which the commissioner faced was the interposition of SISL. Before the interposition of SISL the position was that the nett income of STI was taxable in the hands of Sasol Oil as foreign income earned by a South African resident. With the interposition of SISL the position changed because the latter received the amount from the sale of goods (crude oil) as a result of purchasing from within the country of residence of that controlled foreign company (Isle of Man). The commissioner took the view that the interposition of SISL was a simulated transaction that had to be disregarded. In the alternative it was argued that the transactions had to be disregarded in terms of s 103(1) of the Act.

The TC, per Mali J, held that the impugned transactions were simulated and that the role of SISL was a sham. That being the case, the TC did not have to consider the implications of s 103(1) and accordingly upheld the commissioner’s assessments, together with the imposition of penalties and the obligation to pay interest. All that was in respect of the tax years 2005 to 2007. An appeal against the TC’s decision was upheld with costs by the SCA.

Lewis JA (Ponnan and Cachalia JJA concurring) held that the mere fact that the parties had followed professional advice in order to minimise the tax payable by them was not wrong nor did it point to deceit. The real question was whether they actually intended a sale by STI (then later also SOIL) to SISL and whether SISL intended to acquire ownership of the crude oil from STI/SOIL. The issue was, therefore, whether they dishonestly purported to do so solely for the purpose of avoiding the tax that would be payable by Sasol Oil.

Sasol Oil had discharged the onus of proving that the supply agreements between STI, SOIL and SISL and itself (Sasol Oil) were genuine transactions, which they implemented from July 2001 through the years of assessment being 2005, 2006 and 2007. The transactions had a legitimate purpose. There was nothing impermissible about following professional tax advice given and so reducing Sasol Oil’s tax liability. The transactions were not false constructs created solely to avoid residence-based tax. There was good commercial reason for introducing SISL into the supply chain, while professional tax advice was not the trigger for the transactions. The fact that STI could have sold the crude oil directly to Sasol Oil did not mean that it was abnormal for STI to sell to SISL and then for the latter to sell to Sasol Oil.

In a dissenting judgment Mothle AJA (Makgoka JA concurring) held that the supply agreements in terms of which STI and SISL deferred the supply of crude oil to Sasol Oil were a simulation. Analysis of the evidence showed that in essence SISL traded by purchasing crude oil from STI and on-selling it only to Sasol Oil without making any profit. Therefore, Sasol Oil failed to demonstrate to the TC the commercial justification for interposing SISL in the supply chain. Failure to provide commercial justification for SISL revealed the absence of bona fides behind the transactions.

Judgments and orders

Absolution from the instance: The facts in Liberty Group Ltd v K & D Telemarketing CC and Others 2019 (1) SA 540 (GP) were that in 2010 the applicant, Liberty Group, instituted an action against the first defendant for repayment of certain commissions after certain policies had been cancelled or lapsed, an eventuality for which the applicant was entitled to repayment. The second and third defendants stood surety for the obligations of the first defendant. The trial took place in 2015 where the court granted absolution from the instance against the applicant, then plaintiff in the matter. Nothing was done about the absolution order in the sense of an appeal or application to have it set aside. In 2016 the applicant applied to amend its pleading and for a trial date. The application was successfully opposed as an irregular step. In 2017 the applicant launched the present application for leave to reopen the old action against the defendants on the same papers and for condonation for its lateness in doing so. The defendants launched a counter-application for an interdict preventing the applicant from taking any further steps and/or any further legal proceedings of whatsoever nature under the old case number, as well as for the costs on attorney and client scale de bonis propriis.

Tuchten J dismissed both the main application and the counter-application with costs holding that the applicant, in the main application, had delayed in bringing the application. Moreover, there was no good reason for leading new evidence sought to be introduced since it was available at the time of the trial and it was simply left out.

On the issue of absolution from the instance the court held that an order for absolution did not give rise to a defence of res judicata or lis finitis. A plaintiff against whom absolution had been ordered could competently institute the same claim de novo. An order of absolution at the end of the defendant’s case meant that the plaintiff failed to successfully prosecute the claim to final judgment as contemplated by s 15(2) of the Prescription Act 68 of 1969, which provided that the interruption of prescription lapsed, and the running of prescription would not be deemed to have been interrupted if the creditor did not prosecute the claim under the process in question to final judgment.

A plaintiff against whom an order of absolution had been granted always had a right to bring further proceedings to enforce the claim. He could do so by introducing proceedings afresh, for which he did not need the leave of the court. Whichever route was followed, such a plaintiff had to proceed afresh (de novo). However, in the absence of an order setting aside absolution from the instant prescription would supervene.

An order allowing the plaintiff to proceed on the same papers was not equivalent to an order setting aside an order of absolution and, did not therefore, result in the plaintiff escaping the consequences of prescription. Whether the action was commenced afresh by issue and service of a new summons or whether it was renewed on the same papers, the consequences would be the same. The defendant would be entitled to raise all available defences including those which arose after absolution was ordered.

Mining

Environmental authorisation, land use authority, heritage compliance and waste management licence: In Global Environmental Trust and Others v Tendele Coal Mining (Pty) Ltd and Others [2019] 1 All SA 176 (KZP) three applicants, led by the first applicant Global Environmental Trust, a registered trust, which had the general object of pursuing and supporting environmental causes. Global Environmental Trust launched an application for an interdict restraining the first respondent Tendele Coal Mining (Tendele) from continuing with mining operations in an area adjacent to the Hluhluwe-Imfolozi Park in northern KwaZulu-Natal. To that end the applicants raised four grounds, namely that –

  • the first respondent’s mining operations were unlawful because it had no environmental authorisation issued in terms of the National Environmental Management Act 107 of 1998 (NEMA);
  • the first respondent had no land use authority, approval or permission from any municipality having jurisdiction;
  • no waste management licence was issued by the Minister of Environmental Affairs in terms of s 43 of the National Environmental Management: Waste Act 59 of 2008 (Waste Act); and
  • no written approval was obtained in terms of s 35 of the KwaZulu-Natal Heritage Act 4 of 2008 (Heritage Act) to damage, alter, exhume or remove any traditional graves from their original position.

The application was dismissed with costs. Seegobin J held that whereas in terms of s 24 of NEMA an applicant who intended to commence an activity specified in a listing notice needed an environmental authorisation, prior to changes made with effect from December 2014, the position was that environmental impacts of mining were regulated exclusively through the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA), which required the applicant to obtain an environmental management plan (EMP) prior to commencing mining and ensure that mining took place in accordance with such approved EMP. It was, therefore, evident that the position prior to December 2014 was that the first respondent’s mining licence having been granted in 2005, the Minister of Minerals and Energy’s decision to approve the first respondent’s mining EMP and to grant the mining licence effectively constituted the environmental authorisation to conduct mining activity. As a result, in the absence of any evidence to the contrary from the applicants, it had to be assumed that all EMPs, including the first respondent’s EMP, were approved because they met the requirements as prescribed by the MPRDA at the time. Moreover, in terms of transitional arrangements, an EMP or programme approved in terms of MPRDA was regarded as having been approved in terms of the law as amended.

In KwaZulu-Natal land use was regulated primarily by the KwaZulu-Natal Town Planning Ordinance 27 of 1949, which did not require municipal approval of land use. Any requirement of municipal consent only came into effect in October 2008, long after the granting of the first respondent’s mining licence in 2006.

On the question of waste management licence, the court held that a person who was conducting a listed waste management activity lawfully as in November 2013, which the first respondent did, was entitled to continue conducting such activity without waste management licence until such time as they were called on by the minister by notice in the Gazette to apply for such licence.

Regarding relocation of traditional graves without the consent of the Heritage Council as required by the KwaZulu-Natal Heritage Act 4 of 2008, the court held that whereas in the past the first respondent did relocate some graves without the consent of the Heritage Council, it had since undertaken that it would work with the Heritage Council to ensure that any future relocations would comply with both the letter and spirit of the law. The applicants had not put up any facts to justify any reasonable apprehension that the first respondent would continue to relocate or exhume traditional graves without the appropriate statutory safeguards.

Other cases

Apart from the cases and material dealt with or referred to above the material under review also contained cases dealing with: Concurrent jurisdiction of magistrates’ court, regional court and High Court, contingency deduction in calculation of future loss of income, credit guarantee distinguished from suretyship, deductibility of contractual damages for income tax purposes, delictual liability for omission, dolus inventualis and requirements for self-defence, eviction order, identity of owner of vehicle in RAF claims, invalidity of contingency fee agreement, investigative powers of the Competition Commission, prescribed minimum sentence for pre-meditated murder, proceedings before Refugee Appeal Board, rectification of construction guarantee and unconstitutionality of regulations governing provision of school infrastructure.

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.

This article was first published in De Rebus in 2019 (April) DR 23.

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