The law reports – January/February 2020

February 1st, 2020
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November 2019 (6) South African Law Reports (pp 1 – 326); November 2019 (2) South African Criminal Law Reports (pp 469 – 582)

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

ECG: Eastern Cape Division, Grahamstown

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

Banking

Failure to comply with FICA – proper interpretation of its provisions and regulations imposing administrative sanctions: In South African Reserve Bank v Bank of Baroda (South Africa) 2019 (6) SA 174 (WCC) the South African Reserve Bank (the Reserve Bank) made a number of findings against the respondent bank (Baroda) – of non-compliance with the provisions of the Financial Intelligence Centre Act 38 of 2001 (FICA) and the Money Laundering and Terrorist Financing Control Regulations promulgated in terms of FICA (the regulations). The Reserve Bank imposed administrative sanctions against the bank under s 45C of FICA. Baroda, however, successfully appealed against these to the Appeal Board established under FICA.

This case concerns the Reserve Bank’s appeal against the Appeal Board’s findings. The main issue was the proper interpretation of the penal provisions of FICA and the regulations. The Appeal Board had held that it was to be interpreted in accordance with the common-law principle that provisions giving rise to criminal and administrative penalties must be interpreted restrictively in cases of doubt and ambiguity.

The Reserve Bank submitted that, even if the restrictive-interpretation principle was applicable, purposive interpretation could not be discarded. The former was merely one interpretive principle, which had to be applied together with and mindful of the other interpretive principles, including a strong emphasis on the need for purposive interpretation. Here, so the argument went, that would require taking into account that FICA was enacted to secure vital national objectives and that its principal aim was combating money laundering and the financing of terrorist and related activities.

The court, per Louw J (Langa AJ concurring), held that the Appeal Board had correctly held that the matter could not be distinguished from the CC’s endorsement of the common-law presumption in favour of interpreting ambiguous penalty provisions restrictively; and that, therefore, the penal provisions in FICA had to be interpreted restrictively. This, it further held, would also apply to the regulations. Accordingly, it dismissed the Reserve Bank’s appeal.

Companies

No business rescue if liquidation proceedings already initiated: In Tjeka Training Matters (Pty) Ltd v KPPM Construction (Pty) Ltd and Others 2019 (6) SA 185 (GJ) the question was whether mere issue of liquidation papers constituted the ‘initiation’ of liquidation proceedings, thereby barring business rescue. The applicant, a creditor of the respondent company, had issued liquidation papers against the respondent. The respondent’s directors, unaware of this, filed a resolution to begin business rescue. Sometime thereafter the applicant served the papers.

The creditor, prompted by an imminent meeting in the business rescue process, challenged the validity of the resolution to begin business rescue. The question before the court was whether issue of the liquidation papers was ‘initiation’ of liquidation proceedings as intended in s 129(2)(a) of the Companies Act 71 of 2008. The court found that mere issuance would not constitute ‘initiation’ as contemplated by the section, but that service of the liquidation papers was required.

Costs

Costs awards against public officials, namely the Public Protector: The case of Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC) concerned a report issued by the Public Protector, Busisiwe Mkhwebane, into a 1980s loan by the Reserve Bank to an institution called Bankorp. The report recommended a constitutional amendment and the reopening of an investigation into the Bankorp loan.

The bank later, in first review proceedings in the GP, obtained the setting aside of the first recommendation; and in a second review in the same court, of the second. In the second review it also obtained a costs order against the Public Protector in her personal capacity, on the attorney and client scale.

The Public Protector applied for the CC’s leave to appeal against the GP’s costs order, and in the course of the majority judgment, the court considered, inter alia

  • the nature of a court’s costs discretion;
  • when a personal costs order may be made against a public official;
  • when costs should be ordered on the attorney and client scale; and
  • whether a personal costs order would breach the principle of separation of powers.

In his minority judgment the Chief Justice set out factors that ought to be taken into account when any costs order is made, and, specifically, when a personal costs order is warranted against a representative litigant.

  • See Heinrich Schulze law reports ‘Banking law’ 2018 (Jan/Feb) DR 36 for the GP judgment.

Criminal law

Different treatment accorded to first person convicted of participating in gang rape to that of subsequently convicted participants: In S v Ndlovu 2019 (2) SACR 484 (KZP) the appellant brought an appeal against a conviction in a regional magistrates’ court for rape and a sentence of life imprisonment. The magistrate found that the complainant had been raped several times by the appellant and his companions, acting with a common purpose, after they had kidnapped her from her home. The appellant was the only one who was arrested and prosecuted. The identities of his co-perpetrators were unknown. The magistrate subsequently determined that the prescribed minimum sentence was life imprisonment in terms of s 51(1) of the Criminal Law Amendment Act 105 of 1997 read with part 1 of sch 2. Having found that there were no substantial and compelling circumstances justifying the imposition of a lesser sentence, he imposed such a sentence.

The matter came before the full court of three judges who agreed that the appeal against the conviction had to be dismissed. In respect of the sentence, however, two members of the court (Ploos van Amstel J and Bezuidenhout J) were of the opinion that the court was bound by the decision of the SCA in S v Mahlase  (SCA) (unreported case no 255/13, 29-11-2013) (Lewis, Tshiqi and Theron JJA) despite the anomalous situation it created (in that matter it was found that where the other person who had raped the victim was not before the trial court and had not yet been convicted of the rape, the minimum sentence for rape was not applicable). The sentence of life imprisonment was accordingly set aside and replaced with 15 years’ imprisonment.

In a dissenting judgment on sentence, Hadebe J, after considering various case and legal authorities, was of the view that the matter was one where the obligation to be bound by a decision of the SCA could be avoided, and the magistrate’s decision to sentence the appellant on the basis that the victim had been raped more than once ought to be upheld.

Elections

Political parties’ duty to safeguard journalists: The case of Brown v Economic Freedom Fighters and Others 2019 (6) SA 23 (GJ) focussed on a case of intimidation of a journalist by members of a political party, and remedies available to her under the Electoral Code of Conduct.

The facts were that, during the run-up to the 2019 national elections, Karima Brown (the applicant), a well-known political journalist, mistakenly sent a message to a WhatsApp group run by the Economic Freedom Fighters (EFF) (the first respondent), a political party. The EFF’s leader, Julius Malema (the second respondent) then published a screenshot of the message – which contained Ms Brown’s personal telephone number – on his personal Twitter profile, which had over 2,3 million followers. The upshot was that Ms Brown was subjected to a torrent of abuse and threats of violence – including rape and death – from self-professed EFF supporters. In their defence the EFF and Mr Malema contended that since Ms Brown was not a legitimate journalist but an undercover African National Congress (ANC) or a government agent who was deliberately targeting the EFF, the normal rules and protections applying to journalists did not apply to her. They argued that her established bias against the EFF was a reasonable ground for the publication of the message. Mr Malema made no attempt to prevent EFF supporters from harassing Ms Brown, nor did he issue any instruction to them to desist. When specifically requested to intervene, both the EFF and Mr Malema did nothing.

Ms Brown, alleging various breaches of the Electoral Code of Conduct, referred a complaint to the Independent Electoral Commission (IEC) in which she sought remedy against both respondents under s 96(2) of the Electoral Act 73 of 1998 (the Act). Section 96(2) lists penalties for contraventions of the Act (which includes the Code as sch 2). When the IEC declined Ms Brown’s request on jurisdictional grounds, she launched the present urgent application in the GJ for orders –

  • granting her leave to institute High Court proceedings;
  • declaring that the respondents had contravened s 94 of the Act by failing to comply with various provisions of the Code; and
  • issuing the respondents with fines or a formal warning under s 96(2).

Ms Brown alleged that the respondents had contravened the following provisions of the Code –

  • those relating to political parties’ obligation to promote and comply with the Code (items 2 and 3);
  • those securing the role of women in the political process (item 6); and
  • those safeguarding the role of the media (item 8), in particular the respondents’ failure to ‘take all reasonable steps to ensure that journalists are not subjected to harassment, intimidation, hazard, threat or physical assault by any of their representatives or supporters’ (item 8(c)).

The GJ, per Dippenaar J, found that the application had to be seen in the context of the constitutional right to freedom of the press and the importance of the role of the mass media in a democratic society. The respondents were well aware that their posting would foster mistrust in Ms Brown and elicit a response from EFF supporters. Their obligation under item 8 of the Code to take reasonable steps to prevent harm to journalists of the Code were extended to both members and supporters of the EFF, and their bold denial that their allegations that Ms Brown was a member or agent of the ANC had triggered the barrage of abuse was untenable. Reasonable steps they could have taken included admonishing their supporters and instructing them to refrain from their offending conduct. The conduct complained of fell well short of what would have been reasonable in the circumstances, and exhibited scant regard for the fact that Ms Brown, as a woman, was especially vulnerable to threats of rape and violence. If the respondents did not deliberately intend the consequences of their actions, they were at least reckless in respect of them. They failed to comply with items 3, 6 and 8 of the Code, thereby contravening s 94 of the Act.

The GJ concluded that policy considerations favoured the granting of declaratory relief. The imposition of a formal warning under s 96(2)(a) of the Act was an appropriate and effective sanction, which would serve as a guideline to the respondents for their obligations and future conduct. The GJ considered that an additional fine was not called for in the circumstances.

Family law

Allowing a parent to leave the country with a child when it is against the wishes of the other parent: In RW v CS 2019 (6) SA 168 (GJ) the parties were the youthful, unmarried mother and father of a four-year-old boy. The mother, with whom the child lived, had decided to leave the country with him in order to relocate to New Zealand, a move, which she felt would be in the child’s best interests. She had then, pursuant to ss 18(3)(c)(iii) and 18(5) of the Children’s Act 38 of 2005, asked the father for his consent to her doing so. Those sections provide, respectively, that ‘a parent … who acts as guardian of a child must … give or refuse any consent required by law in respect of the child, including … consent to the child’s departure or removal from the Republic’; and that ‘[u]nless a competent court orders otherwise, the consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3)(c)’.

The father refused, and this prompted the mother to ask the GJ to waive this requirement. The issue for the court was how it was to exercise its discretion under s 18(5). The court, per Van der Linde J, proceeded to consider the bona fides and reasonableness of the mother’s decision, both of which it found unimpeachable, with the result that it waived the consent requirement. The GJ pointed out, in considering reasonableness, that the mother had been given a rare opportunity, and that if she failed to take advantage of it for the benefit of both herself and her son, she would miss the chance to establish a solid future in New Zealand for the two of them.

Housing

Community Schemes Ombud – locus standi to apply for dispute resolution: The case of Durdoc Centre Body Corporate v Singh 2019 (6) SA 45 (KZP) concerned a body corporate’s appeal against a ruling by the Community Service Ombud (COS). One of its grounds of appeal was that the COS had erred in finding that the respondent, Mr Singh – the manager of a company, which owned a number of units in the scheme concerned – enjoyed the necessary locus standi to bring a dispute before the tribunal.

The court, per Steyn J (Madondo DJP concurring), held that he did not. This was because the right to lodge a dispute was prescribed by s 38(1) of the Community Schemes Ombud Service Act 9 of 2011 as accruing to owners of units who were materially affected by a community-scheme related matter; and Mr Singh was neither the owner of the units, nor did he have a material interest in the existing scheme. The court accordingly upheld the appeal.

Jurisdiction

The competency of the High Court to hear matters falling within the monetary jurisdiction of the magistrates’ court: The GP recently ruled that actions and/or applications should be instituted in the magistrates’ court where the value of the claim fell within its monetary jurisdiction, unless the High Court had specifically granted leave for the matter to be heard before it. This finding was necessitated by the practice of parties, especially financial institutions – despite their matters falling within the monetary jurisdiction of the magistrates’ court – launching proceedings in the High Court on the basis of its sharing jurisdiction. Considering the costs involved in litigating in the High Court, such practice had negative implications for litigants’ right to access to justice protected in terms of s 34 of the Constitution. In the matter of Nedbank Ltd v Gqirana NO and Another, and Similar Matters 2019 (6) SA 139 (ECG), the ECG was tasked with deciding whether the GP’s approach should be adopted within its jurisdiction.

The court examined the common law principle that the High Court had jurisdiction to hear matters falling within the monetary jurisdiction of the magistrates’ courts. The court found that while this position had not, generally speaking, been altered by the passing of the Constitution, a different approach was called for in respect of matters falling within the scope of the National Credit Act 34 of 2005 (NCA). The NCA, the court (per Louw J, with Hartle J concurring) noted, was designed to assist and protect the previously disadvantaged section of the population, who would ordinarily constitute many of the respondents/defendants in matters involving credit transactions. It provided for specific structures and procedures to enable this group to benefit from its provisions. With this in mind, it extended jurisdiction to the magistrates’ court in respect of all matters, whatever the monetary sum, falling within the ambit of the NCA.

The court concluded that, when interpreted through the prism of the Constitution – which in terms of s 34, read with the s 9 equality right, guaranteed persons practical, reasonable and effective access to courts – the NCA required that civil actions falling within its ambit be instituted in the magistrates’ court having jurisdiction, unless there were unusual factual or legal issues raised, which instead first warranted them being heard in the High Court.

Note: It should accordingly be noted that the reach of the order in Gqirana was narrower than that in the decision of Nedbank Ltd v Thobejane and Similar Matters 2019 (1) SA 594 (GP); [2018] 4 All SA 694 (GP) – the requirement that proceedings be instituted in the magistrates’ court was limited to those civil matters falling within the scope of the NCA.

Legal practitioners

Admission as advocates of legal practitioners enrolled as attorneys: Section 115 of the Legal Practice Act 28 of 2014 provides that ‘[a]ny person who, immediately before [1 November 2018] was entitled to be admitted and enrolled as an advocate, attorney, conveyancer or notary is, after that date, entitled to be admitted and enrolled as such in terms of this Act’.

In Alves v Legal Practice Council and Similar Matters 2019 (6) SA 18 (WCC) nine admitted attorneys applied under s 115 for enrolment as advocates. The High Court dismissed the Legal Practice Council’s ground of opposition – that s 115 only applied to applicants that were new in the profession and have never been admitted as legal practitioners. The court held that s 115, properly interpreted, allowed for the enrolment as advocates of legal practitioners already enrolled as attorneys.

Trusts

The validity of a resolution, varying a trust deed, passed by trustees and corporate trustees whose appointment is not authorised by Master: In the matter of Joubert and Others v Joubert and Others 2019 (6) SA 51 (WCC) the original beneficiaries of an inter vivos trust had instituted an application in the WCC to set aside a purported resolution by the trustees varying the trust deed by adding a further beneficiary.

One of the grounds on which the applicants argued that the resolution was invalid was that two of the trustees – a Mr Tubb; and C2M Trust Management Services (Pty) Ltd, a corporate trustee, represented by one Mr Nel – had lacked the requisite capacity to pass it, meaning that the required quorum as per the trust deed was not present. At the time of the resolution’s passing, the appointments of Mr Tubb and C2M’s nominee Mr Nel had not yet been authorised by the Master in terms of s 6(1) and (4) of the Trust Property Control Act 57 of 1988. This fact, the applicants argued, rendered the acts of Mr Tubb and C2M at such time void.

The court, per Bozalek J, confirmed that acts performed by a trustee who had been appointed in terms of a trust deed, but whose appointment had not yet been authorised in writing by the Master, were null and void and could not be cured retrospectively by the trustees themselves after receiving authorisation, or by the Master or the court. The same consequence, the court added, followed acts performed by a corporate trustee whose chosen nominee had not yet been authorised in a letter of authority issued by the Master.

The court, however, disagreed with the applicants’ interpretation of the trust deed as to the minimum of trustees required to pass a valid resolution. It found that those remaining trustees in the present case met the requirements for a properly constituted quorum and concluded that the resolution in question was properly passed.

The applicants also argued that the resolution was invalid because it had been passed without their consent as beneficiaries, which consent was necessary, in their view, in circumstances in which they had already accepted the benefits under the original trust deed. The court rejected this argument on the basis that no case had been made that all the beneficiaries had in fact accepted the benefits by the passing of the resolution. Despite this finding, the court made some interesting comments on whether the consent of the original beneficiaries would in any event have been necessary for the valid passing of the resolution varying the trust deed. It remarked that there was persuasive argument suggesting that such consent was not required. For one, it was, in the very nature of a stipulatio alteri that the third party who accepted the benefit of the contract between the stipulans and the promittens could not do so selectively, but subject to any limitations and/or onerous provisions. Thus, here, where the founder bestowed certain benefits on members of his family through the trust deed but reserved to the trustees a wide power of variation of its terms, the beneficiaries would accept their benefits subject to that limitation, that is, along with the risk that their benefits could be diminished pursuant to a subsequent variation in the trust deed.

The court, in conclusion refused, the relief sought.

Other cases

Apart from the cases and material dealt with or referred to above, the material under review also contained cases dealing with:

  • administrative law – liquidator duties and insolvency;
  • business rescue;
  • income tax assessments;
  • prohibition on appeal against interim relief in matrimonial matters;
  • revenue – fiscal legislation; and
  • validity of Land Affairs General Amendment Act 61 of 1998.

Gideon Pienaar BA LLB (Stell) is a Senior Editor, Joshua Mendelsohn BA LLB (UCT) LLM (Cornell), Johan Botha BA LLB (Stell) and Simon Pietersen BBusSc LLB (UCT) are editors at Juta and Company in Cape Town.

 


 

December [2019] 4 All South African Law Reports (pp 635 – 1020); 2019 (12) Butterworths Constitutional Law Reports (pp 1425 – 1537)

Abbreviations:

CC: Constitutional Court

SCA: Supreme Court of Appeal

WCC: Western Cape Division, Cape Town

Administrative law

Water services providers: In Umgeni Water v Sembcorp Siza Water (Pty) Ltd and Others and a related matter [2019] 4 All SA 700 (SCA) the first appellant was a water board established in terms of s 28 of the Water Services Act 108 of 1997. In terms of s 29 of the Act, its primary duty, as a bulk water provider, was to provide water services to other water services institutions within its service area. The municipalities receiving water from Umgeni Water are water services authorities, which, in terms of s 19 of the Act, may perform the functions of a water services provider, or enter into a contract with another water services provider to provide such services.

Sembcorp Siza Water (Siza) was a water services provider that purchased bulk water from Umgeni Water, which decided to impose a tariff increase on bulk water supply of 37,9% for Siza, a private entity, as opposed to an increase of 7,8% for its other customers, all of which were municipalities. As the tariffs had to be determined in accordance with the Act, the process was essentially statutory and subject to review as administrative action. Siza’s review was based on the Promotion of Administrative Justice Act 3 of 2000.

Umgeni Water drew a distinction between Siza and its other customers on the basis that Siza was a private sector company with a profit motive, while the municipalities were public entities that ploughed any surplus from the provision of water to consumers back into service delivery. No provision in the empowering legislation justified the discrimination between municipal and non-municipal water services providers, more particularly when they were both performing a municipal function. Penalising Siza for its ability to generate a profit through its efficiency would be irrational. Umgeni Water’s motivation to end cross-subsidisation was also found to be unsupported.

Finding no rational basis for the distinction, the court dismissed the appeal against the High Court order setting aside the tariff increase applicable to Siza and amended the order to remedy a lacuna.

Constitutional and administrative law

Application for permanent residence: In Director-General, Department of Home Affairs and Others v Link and Others [2019] 4 All SA 720 (WCC), the respondents were two German couples, who, after living in South Africa under non-resident permits for several years, applied for the grant of permanent residence. They received no response to their applications. Each of the couples then brought an application to compel the Department of Home Affairs to take the necessary decision. In both applications, an order was taken by agreement whereby the first appellant (the Director General) was directed to consider the applications for permanent residence within 30 days. That too was simply ignored.

Eventually, the Deputy Director-General addressed identically worded letters to the couples informing them that their applications for the issue of permanent residence permits had been refused on the ground that they had failed to produce adequate proof that they met the prescribed financial requirements and they consequently failed to qualify for permanent residence. The respondents launched an application for review.

The appellants contended that s 7 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) made it mandatory, unless there were exceptional circumstances present, for an applicant to exhaust all internal remedies prior to proceeding to court for relief. The application for review was thus premature as the respondents had failed to exhaust their rights of appeal or review in terms of s 8 of the Immigration Act 13 of 2002.

The court held that there were exceptional circumstances present, which justified the respondents being granted exemption from having to first exhaust their internal remedies and granted the review application. The present appeal was then brought.

The court, per Sher J, held that the consideration of the respondents’ applications for the issue of permanent residence permits, and the rejection thereof, constituted administrative action. In terms of s 33(1) of the Constitution, the respondents, therefore, had the constitutional right to demand that such action was carried out in a lawful, reasonable and procedurally fair manner. As the decision to refuse to grant permanent residence adversely affected their rights, the respondents also had a constitutional right in terms of s 33(2), to be provided with written reasons for it. Furthermore, s 5(1) of PAJA provides that a person whose rights have been materially and adversely affected by administrative action and who has not been given reasons, therefore, at the time has a right to request them. The reasons supplied must be adequate.

The appellants’ explanation that the respondents’ applications were rejected because they had failed to produce adequate proof of the prescribed financial requirements was not good enough. There were consequently no decisions as contemplated in subs 8(3) of the Immigration Act, which were subject to review or appeal in terms of s 8(4) at their instance, and the respondents were not under any obligation to exhaust the domestic remedies, which were provided for in terms of those subsections, before approaching the court.

The appeal was dismissed with costs.

 

Judicial Inspectorate of Correctional Services: In Sonke Gender Justice NPC v President of the Republic of South Africa and Others [2019] 4 All SA 961 (WCC) the applicant was a non-governmental organisation, which played an active role in prison-related work in South Africa’s correctional centres. It brought an application challenging the constitutionality of Chapters IX and X of the Correctional Services Act 111 of 1998 (the Act), which deals with the establishment of the Judicial Inspectorate of Correctional Services (the inspectorate), its structure and its functionality.

The applicant’s case was that the state is obliged, under s 7(2) of the Constitution, to create a prison inspectorate with sufficient independence to enable it to function effectively. It alleged that the inspectorate, as the primary institution tasked with monitoring and overseeing South Africa’s correctional system, as presently constituted, lacked the necessary structural and operational independence.

One of the strongly contested provisions, which formed the basis of the applicant’s complaint, was s 91 of the Act, which provides that the Department of Correctional Services (the department) is responsible for all expenses of the inspectorate – allowing for intrusion by the department. Central to the applicant’s case was that, because of the current structure of the Act, the inspectorate was in material respects beholden, or susceptible to being beholden, to the department. Section 91 was cited as an example. It was submitted that the provisions of the section were undesirable, as it might cause the inspectorate’s staff not to act solely to protect inmates’ rights, but to serve or protect the interests of the very department that the inspectorate ought to monitor and oversee.

The first question was whether there is a constitutional obligation to establish and maintain an independent inspectorate. Although the Constitution does not specify the creation of an inspectorate with the necessary independence, given the scheme of the Constitution, read with the international obligations South Africa has committed itself to, and the objects of the Act, the most reasonable and effective interpretation of s 7(2) of the Constitution is that it does impose an obligation for the creation of an independent institution, as part of its duties to provide reasonable and effective mechanisms to promote human rights.

The next question was whether the inspectorate had the operational and structural features of independence. The Constitution does not envisage absolute independence, as that may not be attainable having regard to the South African context. What is envisioned is adequate independence, which should be demonstrated by the structure of the institution and its operation.

Of the various provisions challenged by the applicant, the court – per Boqwana J – upheld the challenge in respect of three of the statutory provisions.

Section 88A(4) requires any matters relating to misconduct or incapacity of the Chief Executive Officer (CEO) to be referred, by the inspecting judge, to the National Commissioner. The CEO is meant to be independent of the department, which is the body administratively in charge of the correctional centres and under the control of the National Commissioner. The process of referral from the inspectorate, which is an office that is meant to be independent, to the National Commissioner, may undermine the independent role that the CEO had to play. In terms of s 88A(1)(b) the CEO was accountable to the National Commissioner for all the money received by the inspectorate. Section 91 provided that the department was responsible for all expenses of the inspectorate. The court found that s 88A(1)(b), read with s 91, dealing with the funding of the inspectorate being under the control of the department, and s 88A(4), which refers matters relating to misconduct or incapacity of the CEO to the National Commissioner by the inspecting judge, to be inconsistent with the Constitution. The sections were declared invalid, as they did not provide the inspectorate with adequate independence.

The declaration of invalidity was suspended for a period of 24 months from the date of judgment in order to afford Parliament the opportunity to remedy the defect.

 

Removal of Deputy National Director of Public Prosecutions (DNDPP): The applicant was removed by the DNDPP. The President’s decision was based on court judgments calling into question the integrity and fitness of the applicant and was preceded by the holding of an inquiry in terms of s 12(6) of the National Prosecuting Authority Act 32 of 1998 (the NPA Act).

In Jiba v President of the Republic of South Africa and Others [2019] 4 All SA 742 (WCC) the applicant launched an application by way of notice of motion on an urgent basis, seeking interim relief in Part A (the present proceedings), pending final determination of Part B of the application. What was sought in the present proceedings was mainly, a declaration that the decision of the President and the National Prosecuting Authority (NPA) to remove her from office was in violation of the Constitution and unlawful. The relief sought in Part B dealt with the constitutionality of s 12(6) of the National Prosecuting Authority Act. In the alternative, the applicant challenged the constitutionality of the inquiry referred to above.

A point raised by the respondents was that the applicant had in her replying affidavit, introduced a new basis for her relief in the proceedings, averring that the President acted in violation of an order granted by another court where the court directed the President to institute disciplinary inquiries against the applicant regarding her fitness to hold office, but suspended the implementation of the order pending the outcome of an appeal in another case. The objection was that the applicant was bound by her pleaded case in the founding affidavit and she could not make out a new case in reply. The court agreed with the respondents in this respect, which left for consideration the allegation that it was wrong for the President and the NPA to remove her from office before the conclusion of the parliamentary process, which according to the applicant was based on a wrong interpretation of the provisions of s 12(6) of the National Prosecuting Authority Act.

It was clear from the wording and the manner in which s 12(6) was constructed, that it envisaged two distinct and separate procedures when a National Director of Public Prosecutions (NDPP) or DNDPP is removed from office. An NDPP or DNDPP shall not be suspended or removed from office except in accordance with the provisions of ss 12(6), (7) and (8). In terms of subs (6)(a), the function to suspend or remove clearly resides with the President and no one else. The Act does not give Parliament such powers and it does not state that the removal is conditional on the approval of Parliament. It is only after the removal by the President comes into operation or takes effect, that Parliament plays a role. The President was found to have followed all required processes in arriving at his decision. The applicant accordingly failed to show that she had a clear right not to be removed by the President and the NPA prior to the conclusion of the parliamentary process. To uphold the applicant’s contentions, the court would have to usurp the functions and duties of Parliament.

The application was dismissed with costs.

For more reports pertaining to the Jiba matter, see:

 

Transgender rights: The applicant was incarcerated in a correctional centre after being convicted of murder, theft and attempted theft. The applicant was born male but wished to pursue treatment to affect a gender transition to female. In September v Subramoney NO and Others (Gender Dynamix as amicus curiae) [2019] 4 All SA 927 (WCC) the applicant sought, in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act), to be allowed to express her gender identity while in prison. In addition, the court was requested to order just and equitable relief for the violation of her fundamental constitutional rights to equality and human dignity.  She alleged that, since her incarceration, the respondents denied her permission to express her gender identity.

Section 12 of the Constitution guarantees the right to freedom and security of person, which includes in s 12(1)(e) the right not to be treated or punished in a cruel, inhuman or degrading way. What had to be determined in this matter, was whether the respondents complied with the basic standard laid down in s 12. Accepting that the applicant was being caused severe mental suffering, and that her treatment resulted in feelings of fear, anguish and inferiority leading to humiliation, the court concluded that her punishment and treatment fell foul of s 12(1)(e).

Furthermore, the right to dignity implies protection from conditions or treatment, which offends a person’s sense of worth in society. If the state undermines a person’s self-worth through condemnation of conduct that forms part of a person’s experience of being human, the state violates that person’s right to dignity. Even though ‘transgender’ is not a listed ground under the Constitution or the Equality Act, it was the right to equality that lay at the centre of this matter, and in particular how it relates to the right to dignity and the right to freedom of expression. The right of dignity included the applicant’s right to her gender identity. The court emphasised the constitutional imperative on the state to respect, protect, promote and fulfil the rights in the Bill of Rights in line with s 7(2) of the Constitution.

In considering effective relief, the court stated that there were a variety of reasonable steps open to government to accommodate the applicant. Such steps had to balance the competing interests raised, and should allow for gender expression, but also not undermine the safety of the applicant or detention facilities. It was held that the respondents’ failure to apply the principle of reasonable accommodation to the applicant and to allow her to express her gender identity rendered the discrimination against her manifestly unfair. Such refusal was declared unlawful and unconstitutional, with the court making ancillary orders aimed at entrenching the applicant’s rights.

Criminal law and procedure

Extradition: In Kouwenhoven v Minister of Police and Others [2019] 4 All SA 768 (WCC), the applicant was a Dutch national who was residing in South Africa on a visitor’s visa. He was convicted on two criminal charges in his home country, after which Interpol in The Hague despatched a notice to Interpol Pretoria with a request to provisionally arrest the applicant. Also included was a letter from the Advocate General of the Netherlands confirming the intention to submit a request to the South African authorities for the applicant’s extradition. The South African authorities decided to wait for an extradition request before attempting arrest. However, when it became likely that the applicant was a flight risk, he was arrested and taken before the Cape Town Magistrate.

The applicant sought to have the Pretoria Magistrate’s decision to issue a warrant for the applicant’s arrest in terms of the Extradition Act 67 of 1962 to be unlawful and invalid. One of the averments made by the applicant was that the warrant was issued unlawfully as his arrest was in breach of an undertaking given by the South African Police Service (SAPS) represented by a Warrant Officer, who, when applying for the warrant, failed to disclose that undertaking. The undertaking was that the applicant would not be arrested until the extradition request was received.

The court, per Cloete J, held that the undertaking could not extend to a situation where the applicant had become a flight risk. Once that risk arose, the SAPS was obliged, despite any prior undertakings, to apply without notice to the applicant for a warrant for his arrest. The Warrant Officer’s failure to disclose to the Pretoria Magistrate the ‘so-called’ undertaking given months earlier was not a material non-disclosure.

The warrant, the applicant’s arrest, and the proceedings before the Cape Town Magistrate were confirmed as lawful. The review application was dismissed.

Education (university)

Language policies: The appeal of Gelyke Kanse and Others v Chairperson of the Senate of the University of Stellenbosch and Others 2019 (12) BCLR 1479 (CC) had its roots in 2016 when the Senate and Council of Stellenbosch University took decisions to adopt a new language policy. In Gelyke Kanse v Chairman of the Senate of Stellenbosch University 2018 (1) BCLR 25 (WCC) a number of applicants challenged the decisions to adopt the new language policy, which dispensed with Afrikaans as a primary language of instruction, contending that it fell to be set aside on constitutional and administrative law grounds.

The High Court dismissed the application with costs. Section 29 of the Constitution, which guaranteed the right ‘to receive education in the official language or languages of [one’s] choice in public education institutions’ was qualified by the words ‘where such education is reasonably practicable’. In regard to the right to education in the language of choice, the SCA had held in University of Free State v AfriForum 2017 (4) SA 283 (SCA) ([2017] 2 All SA 808 (SCA)) that what is ‘reasonably practicable’ is determined by an assessment of equity and the need for historical redress; that courts should be extremely hesitant to interfere with a university’s determination of what is ‘reasonably practicable’; and that it is rational for a university to conclude that it is not ‘reasonably practicable’ to teach in Afrikaans where that will result in an unconstitutional situation on its campus, such as, for example, segregated classrooms. (By the stage of the High Court’s judgment, the CC had not yet delivered its judgment in AfriForum v University of the Free State 2018 (4) BCLR 387 (CC) (2018 (2) SA 185 (CC)) in which it dismissed an appeal against the SCA’s judgment in University of Free State v AfriForum.) The High Court held that the new policy could not be found to be irrational. The University had decided that its multiple purposes of preventing exclusion, promoting multilingualism, ensuring integration, and fostering Afrikaans were best served by the new policy that it adopted. It had considered many factors and weighed them all. The court could not second-guess that extremely difficult process. Accordingly, the court could not interfere. The applicants approached the CC seeking a direct appeal against the High Court’s judgment. The CC granted leave to appeal but dismissed the appeal. It made no order as relating to the costs of the proceedings in the CC but set aside the costs order made in the High Court.

Liquor and gambling

Bookmakers and horseracing: In a dispute between bookmakers and totalisator operators, the issue was whether bookmakers, in addition to their right to take bets on horse racing, possess the sole right to take bets on other sports, to the exclusion of totalisator operators, who were alleged by the appellants to be confined to taking bets on horse racing. In KwaZulu-Natal Bookmakers’ Society and Another v Phumelela Gaming and Leisure Ltd and Others [2019] 4 All SA 652 (SCA) the appellants were voluntary associations whose members held bookmaker’s licences. They contended that on a proper interpretation of the Lotteries Act 57 of 1997 (the Lotteries Act), the legislature has prohibited totalisator betting on sports other than horse racing in the absence of a sports pool licence, issued in terms of the Lotteries Act. They argued that totalisator betting on sports other than horse racing, fell within the definition of a ‘sports pool’ in s 1 of the Lotteries Act.

The respondents operated totalisator betting in relation to horse racing and other sports events. The bookmakers challenged the validity of the licences held by the respondents, issued by provincial gambling boards, on the basis that the relevant provincial statutes did not authorise the holder of a totalisator licence to take bets on sporting events, other than horse racing.

The court examined the meaning of a ‘sports pool’ as defined in the Lotteries Act and of ‘totalisator betting’ as defined in the National Gambling Act 7 of 2004. It had to be determined whether totalisator betting on sports other than horse racing, fell within the definition of a ‘sports pool’ in the Lotteries Act. The court found that a sports pool is any scheme in which any person is invited or undertakes to forecast the result of any series, or combination of sporting events in competition with other participants and a prize is awarded to the competitor who forecasts the said result correctly, or whose forecast is more nearly correct than the forecasts of other competitors. Against that definition, the court held that totalisator betting on horse racing and other sports does not fall within the definition of ‘sports pool’ in the Lotteries Act. Totalisator betting on sports is regulated in terms of the National Gambling Act and the provincial legislation. The provincial licences were validly issued by the provincial gambling boards, to the tote respondents, in accordance with the provincial legislation.

The appeal was dismissed with costs.

Pensions

Special Pensions Act: To recognise people who had made substantial sacrifices, both personal and financial, in the struggle to fight Apartheid, Parliament passed legislation in the form of the Special Pensions Act 69 of 1996, providing for the payment of special pensions to such people. The Act came into operation on 1 December 1996.

Several years later, the appellant applied to the Special Pensions Board for a pension. His application was refused, as were internal appeals to the Special Pensions Appeal Board. An application for review was dismissed by the High Court, leading to the present appeal of Sewpersadh v Minister of Finance and Another [2019] 4 All SA 668 (SCA).

The Act required that for a five-year period prior to 2 February 1990, an applicant for a special pension must have been engaged full-time in the service of a political organisation. The appellant had been a member of both the African National Congress and its armed wing, Umkhonto WeSizwe. The principal dispute between the parties was whether the appellant had been engaged full-time in their service as envisaged in s 1(1)(a)(i) during that period.

The Special Pensions Board’s decision that the appellant was not entitled to a special pension was based on its view that during the five-year period, he had held down full-time employment. The court took into account the political climate at the relevant time, and the need for anti-Apartheid operatives to operate clandestinely. The appellant’s job at a jewellery workshop was found to have been a cover for his activities on behalf of the political organisations.

The appeal was upheld with costs, and the lower court’s order was replaced with one in terms of which the appellant was awarded a special pension.

Other cases

Apart from the cases and material dealt with or referred to above, the material under review also contained cases dealing with –

  • appealability of order and urgency;
  • application for permanent stay of prosecution;
  • income tax – valuation of trading stock;
  • liquidation of company and liquidators’ fees;
  • procurement and tender award by municipality;
  • service of applications and stay of execution of writ;
  • time-bar clause in arbitration agreement; and
  • zoning and by-laws relating to cellphone towers.

Merilyn Rowena Kader LLB (Unisa) is a Legal Editor at LexisNexis in Durban.

This article was first published in De Rebus in 2020 (Jan/Feb) DR 20.