The law reports – August 2018

August 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.

June 2018 (3) South African Law Reports (pp 335 – 661); [2017] 1 All South African Law Reports January (pp 1 – 312); [2018] 2 All South African Law Reports April (pp 1 – 309); [2018] 2 All South African Law Reports May (pp 347 – 595); 2018 (6) Butterworths Constitutional Law Reports – June (pp 659 – 756)

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

ECG: Eastern Cape Division, Grahamstown

ECP: Eastern Cape Local Division, Port Elizabeth

FB: Free State Division, Bloemfontein

GJ: Gauteng Local Division, Johannesburg

GP: Gauteng Division, Pretoria

SCA: Supreme Court of Appeal

WCC: Western Cape Division, Cape Town

Administrative law

Review of Public Protector’s decision on basis of legality principle: In the case of Minister of Home Affairs and Another v Public Protector 2018 (3) SA 380 (SCA), [2018] 2 All SA 311 (SCA) the facts were as follows: Marimi, the second respondent in the court a quo, was employed by the Department of Home Affairs (the Department) where he served the South African Embassy in Cuba. The Cuban government complained of his unruly behaviour, as a result of which, the Department recalled him. He lodged a complaint with the respondent Public Protector alleging maladministration on the part of the Department relating to his transfer from Cuba. As a result of his transfer, the cost-of-living allowance (COLA) was stopped. He was also threatened with disciplinary action, which never materialised.

After investigating the claim, the Public Protector concluded that his recall from Cuba was procedurally flawed and constituted maladministration; the delay in taking disciplinary action was unreasonable and improper; the decision to stop COLA was improper and constituted maladministration. The Public Protector directed, among others, that Marimi be paid COLA. The Director-General of the Department was directed to ensure that a letter of apology was written to him.

The appellants, the Minister of Home Affairs and her Director-General approached the High Court for an order reviewing and setting aside the decision of the Public Protector. The GP per Prinsloo J dismissed the application. An appeal to the SCA was dismissed with costs.

Plasket AJA (Lewis, Majiedt, Willis JJA and Mothle AJA concurring) held that the applicant for judicial review did not have a choice as to the ‘pathway’ to review. If the impugned action was an administrative action, as defined in the Promotion of Administrative Justice Act 3 of 2000 (PAJA), the application had to be made in terms of s 6 of PAJA. If, on the other hand, the impugned action was some other species of public power, the principle of legality would be the basis of the application for review.

The constitutional and statutory powers and functions vested in the Public Protector to investigate, report on and remedy maladministration were not administrative in nature and so were not reviewable in terms of s 6 of PAJA. That being the case, the Public Protector’s exercise of her core powers and functions was reviewable on the basis of the principle of legality and stemmed from the founding constitutional value of the rule of law. On the facts of the present case, the appellant had failed to establish any ground of review, since what the Public Protector did was allowed by law.

Appeal – suspension of judgment

Exceptional circumstances required to justify execution of judgment pending appeal: Section 18(1) of the Superior Courts Act 10 of 2013 (the Act) provides among others that unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision, which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of application or appeal. In subs (3) it is provided that a court may only order otherwise if the party who applied to it, in addition, proves on a balance of probabilities, that they will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders. Subsection (4)(ii) gives the other party affected by execution of judgment an automatic right of appeal to the next highest court against that execution order, meaning that no leave to appeal against the execution is necessary.

The application of the above provisions arose in the University of the Free State v Afriforum and Another 2018 (3) SA 428 (SCA); [2017] 1 All SA 79 (SCA) where in 2003 the appellant University of the Free State (the University) adopted a language policy, which provided for parallel-medium instruction in Afrikaans and English. The policy was changed in March 2016 when the University adopted a new language policy in terms of which English became the primary medium (with tutorials in Afrikaans and Sesotho), excluding the faculties of theology and teacher education where Afrikaans remained the medium of instruction. Aggrieved by the new language policy of the University, the respondent, Afriforum, a non-governmental organisation involved in the protection and development of civil rights, launched an application to review and set aside the new language policy. The order was granted by the Full Court of FB per Hendricks J (Mokgohloa and Motimele AJ concurring). Thereafter, the Full Court granted judgment in favour of the respondent to the effect that an appeal by the University to the SCA or the CC would not suspend the operation of the review and setting aside order, that is, the University would not in the meantime implement its March 2016 language policy, which was to come into effect at the commencement of the 2017 academic year. Pending determination of its appeal against the Full Court order reviewing and setting aside its March 2016 language policy, the University exercised the automatic right of appeal against the execution order granted to the respondent, but filing the present appeal. The appeal was upheld with costs.

Fourie AJA (Cachalia, Swain, Mathopo JJA and Schippers AJA concurring) held that the well-established common-law rule of practice was that generally the execution of a judgment was automatically suspended on the noting of an appeal, with the result that, pending the appeal, the judgment could not be carried out and no effect could be given thereto, except with the leave of the court which granted the judgment. What was immediately discernible on perusing s 18(1) and (3) was that the legislature proceeded from the well-established premise of the common law that the granting of relief of that nature constituted an extraordinary deviation from the norm that, pending an appeal, a judgment and its attendant orders were suspended.

It was further apparent that the requirements introduced by s 18(1) and (3) were more onerous than those of the common law. Apart from the requirement of ‘exceptional circumstances’ in s 18(1), s 18(3) required the applicant, ‘in addition’, to prove on a balance of probabilities that they ‘will’ suffer irreparable harm if the order was not made, and that the other party ‘will not’ suffer irreparable harm if the order was made. Section 18(3) has introduced a higher threshold, namely proof on a balance of probabilities that the applicant would suffer irreparable harm if the order was not granted, and conversely that the respondent would not if the order was granted. On a proper construction of s 18, it was clear that it did not merely purport to codify the common-law practice, but rather to introduce more onerous requirements.

In evaluating the circumstances relied on by the applicant, a court had to bear in mind that what was sought was an extraordinary deviation from the norm, which in turn required the existence of truly exceptional circumstances to justify deviation. In the present case, the University had demonstrated such exceptional circumstances as there had been substantial planning and preparation to implement the new language policy in 2017. To that end the University expended extensive human and financial resources in the process. Were it to be precluded from continuing with the implementation and introduction of the new language policy, it would have wasted substantial public resources.

Attorneys – under settlement – professional negligence

Damages: Liability for under-settlement or prescription of client’s claim: In Drake Flemmer & Orsmond Inc and Another v Gajjar 2018 (3) SA 353 (SCA) Sutherland (S) was injured in a motor vehicle collision and as a result instructed the first appellant, Drake Flemmer & Osmond Inc (DFO) to represent him in a claim for compensation against the Road Accident Fund (RAF). DFO caused him to be examined by an orthopaedic surgeon, lodged a claim with the RAF and, thereafter, settled the claim in an amount of some R 98 000 for orthopaedic injuries suffered. The settlement offer was accepted in December 1999. Thereafter, as the medical condition of S deteriorated, he asked if the settlement agreement could be reviewed so that he could get a better settlement offer but that was not possible. As it turned out the claim was under-settled as the settlement offer did not, among others, include compensation for brain injury, as well as past and future loss of earnings. For that reason S instructed a new law firm Le Roux Inc (LRI) in July 2001 to sue DFO for under-settlement of his claim. However, LRI allowed the claim against DFO to prescribe in their hands, after which the matter dragged on for some ten years until LRI withdrew as attorneys of record in November 2011. Thereafter, a new law firm took over and joined LRI as the second defendant in the claim against DFO. The trial started on 23 November 2015, by which time the respondent Gajjar had been appointed as curator ad litem to act for S due to his medical condition. By that stage both DFO and LRI had conceded negligence on their part, the only remaining issue for determination being the amount of compensation to be awarded. Judgment was delivered almost a year later in October 2016. As the claim against DFO had prescribed, judgment was against LRI only.

The claim having been quantified by among others the actuary, as well as other experts, the ECP, per Bloem J arrived at a certain amount (some R 8,8 million) which was reduced by 43,69%, being the inflation rate from the date when the claim against LRI could have been finalised had it been prosecuted promptly. The High Court held that the appellant did not have to be saddled with undue hardship because of delay on the part of the plaintiff finalising the matter.

LRI’s appeal to the SCA was dismissed with costs while the cross-appeal against the 43,69% reduction of the claim was upheld. LRI was ordered to pay the respondent, in his representative capacity, the amount of some R 9,2 million.

Rogers AJA (Cachalia, Tshiqi JJA, Makgoka and Ploos van Amstel AJJA concurring) held that where an attorney had all the relevant information for assessing a proper settlement but negligently under-settled the matter, the date of settlement would be the appropriate date for assessing damages. Where, however, the complaint was that the attorney settled the case at a time when they had not properly investigated the claim, the date of settlement was inappropriate because it did not meet the essential function of an award of contractual damages, namely to place the aggrieved party in the position he would have enjoyed had the mandate been properly performed.

Where an attorney’s negligence resulted in the loss by a client of a claim which, but for such negligence, would have been contested, the court trying the claim against the attorney had to assess the amount that the client would probably have recovered at the time of the notional trial against the original debtor. Where the original claim was one for personal injuries, the evidence available and the law applicable at the notional trial date would determine the amount. The nominal amount in rand terms which the client would have recovered against the original debtor represented the client’s capital damages against the negligent attorney. A similar approach applied where, as in the present case, a second attorney had allowed a claim against the first attorney to prescribe. Generally, in such a case the client’s claim for damages against the second attorney was determined by the amount the client would have obtained against the first attorney.

In the present case, but for the supposed delay by the plaintiff the court a quo would have granted him the full amount as proven. However, and supposedly to avoid penalising the defendants for the plaintiff’s delay, the High Court reduced the award to accommodate inflation. The deduction was unsound in law and unjustified by the facts. There was no legal principle which entitled a court to reduce a claimant’s damages because of a delay in bringing a case to trial. If the defendant wanted to bring the matter to trial, there were procedural remedies at his disposal.

Credit agreements

Granting money judgment against the debtor without declaring the subject property executable: The case of Absa Bank Ltd v Njolomba and Another and Related Matters [2018] 2 All SA 328 (GJ) dealt with unopposed application for default judgment against the respondent, Njolomba, and was heard together with those of seven other respondents who were in a similar position. The applicant, Absa Bank, and the other applicants in the rest of the applications, did not cancel the agreement but only sought judgment against the respondent in an amount of money without declaration that the property was executable. That was after the respondent fell into arrear with payment of instalments under a home loan agreement. The loan was secured by a mortgage bond over the subject property and had an acceleration clause in terms of which failure to pay one instalment rendered the whole contract balance due and payable immediately. The respondents in all eight matters not opposing default judgment, the question was whether judgment should be granted as sought.

Fisher J held that the applicants, in all the matters, were entitled to orders sought in relation only to the money judgment without declaration of the subject property executable. It was further held that there was no reason to dictate that there be judicial oversight in all eight matters as there was no danger of foreclosure at that stage. The costs, on attorney and client basis, were awarded in those instances where they were provided for in the agreement and pressed for on behalf of the applicant. In all the matters the respondents were advised that if they paid the arrear amounts owing under the agreement, namely the total of all instalments that were overdue, together with the credit provider’s prescribed default administration charges and reasonable costs of enforcing the agreement up to the time of the default was remedied, which amounts could be obtained from the applicant, they could resume paying the usual instalments under the agreement in the normal course thereof.

There was, in the absence of cogent circumstances that could translate into the rendering of a debtor homeless, no reason to delay giving judgment in relation to an indebtedness to which a judgment creditor was entitled in terms of substantive law. It could not simply be assumed, as a general proposition, that the fact that money judgment was taken against a debtor would inevitably lead to the debtor becoming homeless or even that such event would be more likely. The court would not, in any event, seek to avoid that result in its ultimate inquiry as contemplated by r 46 and 46A of the Uniform Rules of Court. Indeed, the execution process was such that it could yield valuable information for the court as to the true circumstances of the respondent for the purposes in due course of the r 46A process. That was implicitly recognised by r 46(1)(a), which provided for the issue of a return process against the movable property of the judgment debtor from whom there was insufficient property to serve the writ. While that measure ensued that the immovable property was not executed on without a resort to the movables, it also had the effect of eliciting a return from the Sheriff and, furthermore, presented the opportunity to seek some form of engagement or cooperation if it had not been forthcoming from the debtor.

 

Unconstitutionality of a regulation unfairly discriminating against self-employed and informally employed consumers not having bank accounts: Regulation 23A(4)(c) of the regulations made in terms of the National Credit Act 34 of 2005 (the NCA) provides, among others, that a credit provider must take practical steps to validate gross income, in relation to consumers that are self-employed or informally employed, by requiring production of the latest three months bank statements or latest financial statements. Although there were a few peripheral issues in Truworths and Others v Minister of Trade and Industry and Another 2018 (3) SA 558 (WCC) the main one was the constitutional validity of the regulation. The applicant Truworths and two other clothing retailing companies sought a court order reviewing and setting aside reg 23A(4) although it was particularly subreg  (4)(c) that they were challenging. It was the applicants’ contention that the regulation was unfairly discriminatory, unreasonable and contrary to the provisions of Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Act) and that subreg (4)(c) dealt largely with poorer and less privileged members of the society. Since persons in that category did not ordinarily have banking accounts or financial statements, that form of validation of their gross income was inappropriate and, in most cases, impossible for them to comply with. As a result they were effectively excluded from the credit market.

The regulation was reviewed and set aside and the minister was ordered to pay costs. Engers AJ held that the regulation frustrated the aim of the NCA of promoting the development of a credit market that was accessible to all South Africans and, in particular, those who had historically been unable to access credit under sustainable market conditions. The evidence showed that reg 23A(4) had the potential to eliminate any credit being granted to many in that category, instead of merely preventing reckless credit. As such, the regulation was neither reasonable nor rationally connected to the purpose, which it was intended to serve. In discriminating against a section of the population that represented the less privileged, and probably many previously disadvantaged persons, in a manner that was not fair, the regulation fell foul of s 14(2) and (3) of the Act. The fact that it was taken virtually verbatim from one of the very many comments received from the public suggested that it was arbitrarily inserted into the regulations.

Local government

Presence of statutory disqualifying factors against approval of building plans: Section 7(1) of the National Building Regulations and Building Standards Act 103 of 1977 (the Act) has two parts. In the first part s 7(1)(a) provides that if a local authority, having considered a recommendation by the local building control officer, is satisfied that an application for the approval of building plans complies with the requirements of the Act and any other applicable law, it shall grant its approval in respect thereof. In the second part s 7(1)(b) provides that if the local authority is not satisfied or if it is satisfied that the building to which the application relates is to be erected in such a manner or will be of such a nature or appearance that it will probably or in fact be ‘unsightly or objectionable’ or will derogate from the value of adjoining or neighbouring properties, it shall refuse to grant its approval.

The application of the section arose in Cape Town City and Another v Da Cruz and Another 2018 (3) SA 462 (WCC); [2018] 2 All SA 36 (WCC) where the appellant City of Cape Town (the City) approved of building plans submitted by Simcha Trust (the Trust) for renovations to a building owned by the Trust and which was situated in the central part of the City. The building consisted of four storeys. The renovations were intended to increase the building by four more storeys to eight. If implemented, the renovations would result in the top three storeys of the building eventually abutting, as a blank and solid wall, against apartments on the eight to tenth storeys of the adjoining building along the common boundary of the two buildings thus obliterating whatever view, space and light which the apartments in the adjoining buildings had. It was the position of the respondents Da Cruz, an owner of a residential unit in the adjoining erf, and the body corporate of that building, that the construction of the renovations would trigger the disqualifying factors set out in s 7(1)(b) of the Act in that they would be ‘unsightly or objectionable’, would ‘disfigure’ the surrounding areas and ‘derogate from the value of adjoining or neighbouring properties’. Notwithstanding the respondents’ objections to the building plans the City, acting on the recommendation of the building control officer, approved of them. As a result the respondents approached the High Court for an order reviewing and setting aside the City’s approval of the building plans. The order was granted, hence the present appeal to the Full Court.

The WCC dismissed the appeal with costs. Sher J (Hlophe JP and Fortuin J concurring) held that the basic premise from which the building control officer proceeded to consider the objections by the affected owners of adjoining properties and the body corporate was flawed. His understanding was that as long as the owner of the subject property sought, in its plans, to put forward a construction that was permitted by the zoning scheme, which was otherwise legally compliant in a formal sense, the owners of adjoining properties had to accept any intrusiveness that would result, even if it were gross and unreasonable, because that was the inevitable consequence of progressive development within the City. That amounted not only to a basic misunderstanding of the legal position, but to an abdication of the duty which the building control officer had to weigh up in regard to the envisaged development against the probable negative effect it would have on neighbouring properties.

The fact that plans for a proposed building were legally compliant with zoning, planning and building requirements did not mean that the building, which was to be erected in terms thereof should, on that account alone, be permitted to be erected by a local authority, particularly if the negative attributes of the proposed building were considered not to have been within the legitimate expectations of the notionally informed parties to a hypothetical sale. In giving effect to their duties in terms of s 7(1)(b), local authorities were required to strike a balance between the rights of the owner of the subject property for which the building plan approval was sought, and the rights of the owners of adjoining properties. That could not be done by the simple expedient of having regard only to the building plans under consideration in isolation and without regard to what existed, as well as what could reasonably be anticipated was likely to be put up in the future, on neighbouring properties. Whether or not a proposed building would disfigure an area, be unsightly or objectionable or derogate from the value of adjoining properties, required a judgment call that could only properly be made if it had regard to the area concerned and the neighbouring buildings in it.

 

Whether a vote of no-confidence in the mayor of local government should be taken by secret ballot: In the case of De Lille v Democratic Alliance and Others [2018] 2 All 464 (WCC) the applicant, Patricia de Lille was the Mayor of the City of Cape Town (the City) and a member of the first respondent, the Democratic Alliance (the Party), a governing political party in the City. After instituting an investigation into the conduct of the applicant, the majority party (the African National Congress) placed a motion of no-confidence on the agenda of the council against the mayor. The Party caucus resolved at its meeting that it would support a motion of no-confidence in her. At a further caucus meeting and, thereafter, the chairperson of the federal executive of the Party told caucus members that they were bound by the majority decision of the caucus that it had no confidence in the Mayor, whether they agreed with it or not. The position of the Party emanated from clause 6.7 of its caucus regulations, which provided that all decisions made by the caucus were binding on all members of the caucus except on issues where the Party allowed a free vote. A vote on no-confidence in the Mayor, which in the instant case was scheduled for 15 February 2018, was not such an exception.

The present case was an interlocutory application, brought on an urgent basis, for an order:

  • Interdicting and restraining members of the Party caucus for the City from participating in the motion of no-confidence in the Mayor other than on the basis that each member of the caucus shall be free to vote for or against the motion in accordance with the dictates of their own conscience.Interdicting and restraining the Speaker (second respondent) and the City from proceeding with the vote unless it was by way of secret ballot.
  • Interdicting and restraining the Party’s office bearers from influencing members of the caucus on the manner they should vote in respect of the motion of no-confidence.

The court granted an order, with costs against the Party, declaring that by agreement between the parties, for the purpose of the scheduled motion of no-confidence, members of the Party caucus were free to vote for or against the motion, in accordance with the dictates of their conscience and that no member would face any adverse consequences from the Party no matter how they voted on the motion. The Speaker was ordered to exercise their discretion as to whether the motion of no-confidence would be voted on by means of secret ballot.

Henney J held that the chairperson of the Party’s federal executive knew, or ought to have known, that as a result of the decision of the CC in United Democratic Movement v Speaker of the National Assembly and Others (Council for the Advancement of the South African Constitution and Others as Amici Curiae) 2017 (5) SA 300 (CC), 2017 (8) BCLR 1061 (CC), not only members of the National Assembly but also councillors in a local government, should vote according to their conscience, rather than on the instructions of how their political party expected them to vote.

The court was not permitted by law to issue an order to the effect that the Party had to instruct its members of the caucus to support the vote by a secret ballot, as doing so would breach the principle of separation of powers, crossing into the terrain of the legislature in the sphere of local government. Doing so would be directing a political party to exercise a specific function in the legislative sphere of local government. Neither the Local Government: Municipal Structures Act 117 of 1998 nor the rules of Order Regulating the Conduct of Meetings of the Municipal Council of the City of Cape Town (Rules of Order) made provision for a vote to be held by means of a secret ballot. There was no provision that a motion of no-confidence in the Mayor would take place by secret ballot. The person or authority that was best suited to make such a decision was the Speaker who was given the necessary discretion by r 4 of the Rules of Order.

Prescription

Arbitral award is not debt for the purpose of prescription: In Brompton Court Body Corporate SS119/2006 v Khumalo 2018 (3) SA 347 (SCA) the appellant, Brompton Court, was a body corporate of a sectional title scheme that claimed payment from the respondent, Khumalo, regarding levies and electricity consumption. In a counter-claim the respondent claimed payment from the appellant for cost of repairs to her property and loss of rental for which she blamed the appellant. By agreement the disputes between the parties were referred to arbitration, which was conducted in terms of the Arbitration Act 42 of 1965. The arbitrator published his award on 21 December 2012 in terms of which, the appellant was entitled to payment of a certain amount (some R 87 000), together with interest and the costs of arbitration. In March 2014 the appellant applied to the GJ for the award to be made an order of court. The respondent opposed the application on the ground that the debt in question had prescribed in terms of the Prescription Act 68 of 1969 (the Act). The High Court per Mokose AJ upheld the defence of prescription and accordingly dismissed the application with costs.

On appeal to the SCA it was contended first that when a binding arbitral award was made, a new debt arose and second that if an arbitral award was not made an order of court within three years of its granting, the right to do so prescribed. The court held that both submissions were not correct and upheld the appeal with costs.

Van der Merwe JA (Ponnan, Mocumie JJA, Pillay and Makgoka AJJA concurring) held that the statement that when an arbitral award was made an order of court a new debt arose could not be accepted as a principle of general application. If anything, the opposite was the case. Even a judgment of a court generally did not create a new debt. It served to affirm and/or liquidate an existing debt, which was disputed. What the judgment did in relation to prescription of a debt was to give rise to a new period of prescription of 30 years in terms of s 11(a)(ii) of the Act. The same principle generally also applied to an arbitration award, save that it did not attract a new prescription period in terms of s 11 of the Act. The conclusion that an arbitration award generally did not give rise to a new debt was supported by s 13(1)(f) of the Act, which delayed completion of the period of prescription of a debt subjected to arbitration by one year. If the arbitration award constituted a new debt, it would make no sense to provide for the delay of completion of prescription on the original underlying debt after the award. The sensible and logical approach was that the delay of completion of prescription in terms of s 13(1)(f) was intended to enable a creditor to apply to make the arbitration award an order of court in terms of s 31 of the Arbitration Act before the debt on which it was based prescribed.

An arbitration award was not a debt and it did not prescribe after three years. In terms of the Act a ‘debt’ meant an obligation to pay money, deliver goods or render services. In the present case the appellant’s claim to make an arbitration award an order of court did not require the respondent to perform any obligation at all, let alone one to pay money, deliver goods or render services. The appellant merely employed a statutory remedy available to it.

 

Knowledge of facts from which debt arose, not of effect of those facts, required: The facts in Loni v MEC for Health, Eastern Cape (Bhisho) 2018 (3) SA 335 (CC); 2018 (6) BCLR 659 (CC) were that the applicant Loni suffered a gunshot wound in August 1999 and was admitted to a provincial hospital falling under the jurisdiction of the respondent MEC for Health, Eastern Cape. Although X-rays were taken, the bullet was found to have lodged in his body and save for cleaning the wound and giving him painkillers, not much else was done. The following morning doctors looked as his file and did not communicate with him. Two weeks later an operation was performed in order to insert a plate and screws on his femur, but the bullet was not removed. After two to three months he was discharged from hospital and given his file to use when visiting a local clinic for treatment. At the time of his discharge his condition deteriorated. He was still in pain and the wound visibly infected and oozing pus. More than a year later he removed the bullet himself and after getting employment in 2008, which enabled him to secure medical insurance, he approached doctors in private practice to establish the reason for his limp and constant pain. He was informed by the doctor that he was disabled. In November 2011 Dr Olivier advised that his condition was attributable to medical negligence. In June 2012 he instituted an action against the respondent for damages arising out of the treatment he received at the provincial hospital. The respondent raised a special plea of prescription. The applicant’s defence was that he only became aware of his claim against the respondent in November 2011 after advice given by Dr Olivier.

The ECB upheld the special plea and dismissed the claim. The court held that the applicant had acquired knowledge of information, which enabled him to institute the claim long before consulting with Dr Olivier, in that his wound was still oozing pus after discharge from hospital; he removed the bullet himself; he continued to experience pain; was limping and was given his medical file on discharge. In those circumstances a reasonable person would not have waited for seven years in order to institute proceedings. Furthermore, a reasonable person would not have endured pain for seven years before seeking help to find out the cause of the pain. An appeal against the High Court decision was dismissed by the Full Court of the ECG. His application for leave to appeal to the SCA was also dismissed.

That being the case the applicant approached the CC with an application for leave to appeal. The application was dismissed with no order as to costs. A unanimous court held that the objective assessment, which was appropriately applied by both the High Court and the Full Court, established that a reasonable person in the position of the applicant would have realised that the treatment and care he received at the provincial hospital were substandard and not in accordance with what he could have expected from medical practitioners and staff acting carefully, reasonably and professionally. On an assessment of the applicant’s evidence, it was clear that by December 2000, and before meeting Dr Olivier, he had already suffered significant harm and it would have been apparent from a reasonable assessment that the pain and suffering, which he had endured, were a direct result of the substandard care, which he had received.

The applicant should have over time suspected fault on the part of hospital staff. There were sufficient indicators that the medical staff had failed to provide him with proper care and treatment, as he still experienced pain and the wound was infected and oozing pus. With that experience, he could not have thought or believed that he had received adequate medical treatment. Long before the applicant’s second discharge from hospital in 2001 and certainly thereafter, the applicant had knowledge of the facts on which his claim was based. He had knowledge of his treatment and quality (or lack thereof) from his first day in hospital and had suffered pain on an ongoing basis. The fact that he was not aware that he was disabled or had developed complications was not a relevant consideration.

Revenue

Amount of transfer duty – whether one or two transactions involved: In the case of Commissioner, South African Revenue Service v Short and Another 2018 (3) SA 492 (WCC); [2018] 2 All SA 100 (WCC) the respondents, Short and his life partner, jointly bought a residential unit from the seller, Morrow Investments, for R 4,2 million. The two were jointly and severally liable for the amount. In terms of the agreement the first respondent Short acquired bare dominium of the property, and was registered as the sole owner, while the second respondent acquired habitatio. The arrangement was reflected in the title deed to protect the right of use, enjoyment and occupation of the second respondent in the event of the first respondent encountering financial difficulties. The appellant, Commissioner for the South African Revenue Service (the Commissioner) levied transfer duty on the transaction, treating it as a single transaction. The respondents paid the duty under protest, contending that they had concluded two separate transactions, one for bare dominium and the other for habitatio. If treated as a single transaction, the amount of transfer duty was higher, being some R 281 000 whereas if they were two separate transactions the respondents would each pay transfer duty separately, but would collectively make a tax saving of some R 55 000. The Cape Town Tax Court upheld the respondents’ appeal against the Commissioner’s assessment.

An appeal to the Full Bench of the WCC was upheld. As per agreement between the parties the court made no order as to costs. Binns-Ward J (Waglay and Nuku JJ concurring) held that in order for the respondents’ contention to prevail, the reservation of a right of habitatio to the second respondent would have to be an acquisition, which was independent of, and not integral to, the transfer of title of the property from the seller to the first respondent. The fact that separately registrable rights were to be acquired by the purchasers was not determinative. A multiplicity of individually registrable properties of various values could be the subject of a single transaction for transfer duty purposes. In this case it did not matter that there were two purchasers, each of whom was to acquire different rights in the property.

There were a number of salient pointers in the agreement that there was only one indivisible transaction in the contemplation of the parties namely –

  • the agreement expressly referred to the purchasers as acting ‘jointly’;
  • the undertaking by the purchasers of joint and several liability for all the obligations in terms of the agreement was irreconcilable with the respondent’s contention that the intention was to enter into two divisible transactions; and
  • only a single purchase price was given. There was no indication that separate prices had been agreed on by the seller and the purchasers for the right of habitatio and the bare dominium.

Road Accident Fund claims

Objection to medical examination by Road Accident Fund (RAF) doctor on basis of bias: In Road Accident Fund v Chin 2018 (3) SA 547 (WCC) the respondent Chin was the plaintiff in the main action between the parties, in terms of which she claimed compensation from the applicant in the interlocutory application, the RAF, for injuries suffered in a motor vehicle collision. The RAF filed a notice in terms of r 36(2) of the Uniform Rules of Court in terms whereof, Chin was advised to attend a medical examination to be conducted by Dr M. In response Chin’s attorneys filed a notice in terms of r 36(3) objecting to her examination by Dr M, alleging that the doctor was –

  • biased against plaintiffs;
  • failed to listen to complaints by plaintiffs;
  • made uncalled for comments in respect of plaintiffs’ lawyers;
  • lacked empathy and care when examining plaintiffs; and
  • further that he had already pre-judged a plaintiff’s condition even before examination.

Because of that objection the RAF instituted the present interlocutory application for an order directing Chin to submit to examination by Dr M. The application was granted with costs to be costs in the main action. It was further ordered that in addition to her own medical practitioner and legal representative being present at the examination, Chin could, if she so chose to, record the examination.

Slingers J held that given the inherent invasive nature of the provisions of r 36(2) the legislature could not have intended to limit the grounds on which an objection could be raised against a doctor nominated to carry out the medical examination. While there was no closed list of objections, which could possibly be raised against submitting to an examination by a medical practitioner nominated by the RAF, the objection raised would have to be reasonable, material and substantial. In determining whether the grounds of objection raised in a matter were reasonable, material and substantial, regard had to be had to the facts or averments on which the objections were based.

Given that the prerogative to elect one’s own expert was part of the right to a fair trial, a higher standard than a reasonable apprehension of bias would be applied when objecting to a medical practitioner nominated to conduct the medical examination in terms of r 36(2). At a minimum the apprehension of bias would have to have been objectively established, which had not been done in the instant case. As Chin would also be aided by the expertise and assistance of her own expert, which would enable her to fully interrogate the opinion and report of Dr M, it had not been shown what prejudice she would suffer should Dr M be allowed to conduct the medical examination. Furthermore, bias was best tested through cross-examination. Accordingly, Chin had not demonstrated that her objection to Dr M on the basis of a reasonable apprehension of bias was material and substantial.

Other cases

Apart from the cases and material dealt with or referred to above the material under review also contained cases dealing with: Additional income tax assessment, admissibility of confession, arrest of associated ship, bail application in extradition proceedings, compensation for land awarded to a labour tenant, deduction of interest expense incurred on a loan facility, division of property on divorce, exception to particulars of claim, locus standi to liquidate a company, mandatory suspension of accused’s driving licence, maintenance of spouse pendent lite, Minister of Finance not empowered to intervene in private bank-client relationship, Road Accident Fund appeal tribunal deals with seriousness of injuries and not causation, setting aside arrest of vessel, standing to apply for removal of base station of cellular station from common property, targets for participation in or ownership of mining rights by historically disadvantaged persons, transfer of joint estate property to third party without consent of spouse, unlawful possession or control of abalone for commercial purposes and winding-up of a solvent company on the just ground.

This article was first published in De Rebus in 2018 (Aug) DR 36.

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