The law reports – June 2018

June 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.

April 2018 (2) South African Law Reports (pp 327 – 655); December [2017] 4 All South African Law Reports (pp 605 – 928); February [2018] 1 All South African Law Reports (pp 317 – 619); March [2018] 1 All South African Law Reports (pp 621 – 880); April [2018] 2 All South African Law Reports (pp 1 – 309); 2018 (2) Butterworths Constitutional Law Reports – February (pp 119 – 258); 2018 (3) Butterworths Constitutional Law Reports – March (pp 259 -385)

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

GJ: Gauteng Local Division, Johannesburg

GP: Gauteng Division, Pretoria

LC: Labour Court

SCA: Supreme Court of Appeal

WCC: Western Cape Division, Cape Town

Administrative law

Limitation on duty to exhaust internal remedies: Section 7(2) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) provides that no court or tribunal shall review an administrative action in terms of PAJA unless any internal remedy provided for in any other law has first been exhausted. The section also provides that a court or tribunal must, if it is not satisfied that any internal remedy has been exhausted, direct that the person concerned must first exhaust such remedy before instituting proceedings in a court or tribunal for judicial review. The section goes further to provide that a court or tribunal may, in exceptional circumstances and on application by the person concerned, exempt such person from the obligation to exhaust any internal remedy if the court or tribunal deems it in the interest of justice.

The question whether there were exceptional circumstances, which exempted the person concerned from the obligation to exhaust an internal remedy arose in Basson v Hugo and Others [2008] 1 All SA 621 (SCA) where the appellant, Basson, was a cardiologist practising in the Western Cape. In 2007 he was charged with, and found guilty of, unprofessional conduct by a professional conduct committee (the Committee) of the third respondent Health Professions Council of South Africa (the Council) for participating in chemical and biological warfare research during his employment with the South African Defence Force in the 1980s. Apart from a retired judge the other members of the Committee were the first respondent Professor Hugo and Professor Mhlanga. When the disciplinary hearing entered the second stage of determining appropriate penalty to be imposed, the appellant asked for recusal of Professors Hugo and Mhlanga on the basis that Professor Hugo had an interest in the subject matter of the inquiry and apprehension of bias in the case of both of them. The recusal request was refused by the Committee. In terms of the rules of the Council made under the Health Professions Act 56 of 1974 (the Act) the next step to have been taken after refusal of recusal was for the appellant to have appealed to the ad hoc appeal committee of the Council. Instead of doing so the appellant approached the High Court for an order reviewing and setting aside the decision of the Committee. The review application was dismissed, the GP holding that the appellant had to exhaust his internal appeal remedy before an ad hoc appeal committee first. As a result the appellant appealed to the SCA against the decision of the High Court.

The appeal was upheld with costs to be paid by the Council. The matter was remitted to the High Court to decide the review application. Shongwe AP (Seriti, Swain JJA, Mokgohloa and Schippers AJJA concurring) held that it was settled law that the impugned decision constituted administrative action as defined in PAJA. Therefore, an internal remedy had to be exhausted prior to judicial review, unless the appellant could show exceptional circumstances to exempt him from that requirement. Factors to be taken into account in deciding whether such circumstances existed were whether the internal remedy was effective, available and adequate. An internal remedy was effective if it offered a prospect of success and could be objectively implemented, taking into account relevant principles and values of administrative justice present in the Constitution and the law. It was available if it could be pursued without any obstruction, whether systemic or arising from unwarranted administrative conduct.

In the present case the internal remedy in s 10(3) of the Act was an appeal in the narrow sense as it did not include the power to set aside the proceedings before the Committee and, was therefore, inadequate. The internal remedy was ineffective and inadequate. It did not offer a prospect of success and could not redress the appellant’s complaint. Furthermore, it could not be implemented in accordance with the relevant principles and values of administrative justice of the Constitution.

In a separate concurring judgment, Swain JA, held that the High Court erred in classifying the claim of bias as an issue, which was amenable to an appellate jurisdiction by the ad hoc appeal committee. To reduce the inquiry to whether the decision by the Committee in refusing the application for recusal was right or wrong ignored the judicial nature of claim of bias, as well as the legal effect on the proceedings of the Committee if the claim were to be upheld. The internal remedy of an appeal to the ad hoc appeal committee did not provide an available, effective and adequate remedy to protect the appellant’s constitutional right to a fair and impartial hearing before the Committee. The appellant would suffer irreparable harm if he was unable to secure immediate judicial consideration of his claim of bias on the part of the Committee. In addition, the ad hoc appeal committee was not competent to adjudicate the issue of bias because it lacked the necessary authority to grant the type of relief requested, namely setting aside the proceedings on the ground that they were a nullity.

Constitutional law

Mechanism for removal of the President of the country: Section 89(1) of the Constitution provides that the National Assembly (NA), by a resolution adopted with a supporting vote of at least two thirds of its members, may remove the President from office only on the grounds of a serious violation of the Constitution or law or due to serious misconduct. Although it has the power to remove the President the NA has not put in place a mechanism in terms of which the removal can take place. However, the alternative mechanism of ad hoc committee, which was not created specifically to deal with removal of the president and can be used for a number of purposes, is available to achieve the removal.

In Economic Freedom Fighters and Others v Speaker of the National Assembly and Another 2018 (2) SA 571 (CC); 2018 (3) BCLR 259 (CC), the applicants, the Economic Freedom Fighters (EFF), United Democratic Movement (UDM), Congress of the People (COPE) and the Democratic Alliance (DA), all being opposition political parties, directly approached the CC seeking several orders. In the main application, the applicants sought an order declaring that the NA had failed to put all appropriate mechanisms and processes in place to hold former President Jacob Zuma (the President) accountable for violating the Constitution in failing to implement the recommendations contained in the report of the former Public Protector relating to non-security upgrades at his private residence in KwaZulu-Natal (the Nkandla saga). The applicants also sought an order directing the respondent NA, represented by the Speaker as a nominal respondent, had to put the requisite processes and mechanisms in place to hold the President accountable, as well as one directing the NA to convene a committee of Parliament or other appropriate independent mechanism to conduct an investigation into the conduct of the President regarding the question whether he had committed serious violation of the Constitution or the law. The application was a sequel to an earlier decision of the same court in Economic Freedom Fighters v Speaker, National Assembly and Others 2016 (3) SA 580 (CC) (the EFF 1) (see ‘Constitutional law’ 2016 (Aug) DR 36) in which it was held that the President had violated the constitution by failing to uphold, defend and respect it when he failed to implement the recommendations of the Public Protector.

The court held that it had exclusive jurisdiction to hear the application and that by failing to make rules regulating removal (impeachment) of the President in terms of s 89(1) the NA was in violation of its constitutional obligation. The NA was accordingly ordered to make such rules without delay. The NA and the President, the second respondent who did not participate in the proceedings, were ordered to pay costs.

Reading a majority decision Jafta J (Cameron, Froneman, Mhlantla, Theron JJ and Kathree-Setiloane, Kollapen AJJ concurring while Zondo DCJ, Mogoeng CJ, Madlanga J and Zondi AJ dissented) held that the existing ad hoc committee rules of the NA did not cater specifically for impeachment proceedings envisaged in s 89(1). The power to remove the President from office was available to the NA only if one of the listed grounds was established, none of which was defined in the Constitution. Since the determination of those issues fell within the exclusive jurisdiction of the NA, it alone was entitled to determine them. That meant that there had to be an institutional predetermination of what serious violation of the Constitution or the law was. Therefore, any process for removing the President from office had to be preceded by a preliminary inquiry during which the NA determined that a listed ground existed. Without rules defining the entire process it was impossible to implement s 89. The section implicitly imposed an obligation on the NA to make rules specially tailored for an impeachment process therein contemplated, which the NA failed to make. The ad hoc committees did not constitute a mechanism contemplated in the section.

In a dissenting judgment Zondo DCJ held that although the NA had not put in place a mechanism that was specially tailored for s 89, it had put in place a mechanism that could be used effectively for the removal of the President in terms of the section. That mechanism was one of ad hoc committee. In a further dissenting judgment Mogoeng CJ held that the majority judgment was a textbook case of judicial overreach, a constitutionally impermissible intrusion by the judiciary into the exclusive domain of Parliament. When all the information or evidence necessary to resolve any issue was already well established, available or well known to decision-makers (as was the case in the present matter due to the finding of the court in the EFF 1 case) embarking on an investigation or inquiry, just because the evidential material was documented or recorded, would be an absurdity or sheer waste of resources. There was no justification for the inflexible position to the effect that the grounds for impeachment should always be established before the motion to remove the President from office was debated and voted on.

 

Delegation of powers – suspension of head of department: Section 38 of the Public Service Act 103 of 1994 (the Act), which has since been repealed by s 12 of the Public Service Amendment Act 30 of 2007, provided that the President of the country had power to undertake and manage the appointment and career incidents of Heads of National Departments and organisational components, which power could be delegated to ministers.

The application of the above provisions was dealt with in Apleni v President of the Republic of South Africa and Another [2018] 1 All SA 728 (GP) were the applicant Apleni was head (Director-General) of the department of Home Affairs. In 2007 the Minister of Home Affairs placed him on ‘precautionary suspension’. Aggrieved by this the applicant approached the High Court by way of urgent application in terms of which he sought to have the suspension declared unconstitutional, invalid and of no force and effect. It was alleged that the minister had no authority to suspend him.

Fabricius J held that where allegations were made relating to abuse by a minister or other public officials, which could impact on the public purse, the relevant relief ought normally be urgently considered. Section 12 of 2007 Amendment Act provided that the appointment and other career incidents of Heads of Department that shall be dealt with by the President. That was not the case in the instant matter where it was common cause that no delegation of authority by the President to the minister took place. The purported letter written by former President Thabo Mbeki in 1999 in terms of which he delegated authority to ministers was an executive act and accordingly had to comply with the provisions of s 101(1) of the Constitution. There was no evidence that the president signed such delegation or that it was signed by a Cabinet member as envisaged by the section. For that reason there was no lawful delegation in terms of s 101(1)(a). The purported delegation was in any event rendered ineffective by the repeal of the provisions of the Act. Accordingly, the minister had no lawful authority to suspend the applicant.

Courts

Jurisdiction of the LC to declare legislation unconstitutional: Section 38(2)(b)(i) of the Public Service Act 103 of 1994 (the Act) provides that if an employee has in respect of their salary been overpaid, an amount equal to the overpayment shall be recovered from them by way of deduction from their salary of such instalments as the relevant accounting officer may determine if they are in the service of the state. In Public Servants Association obo Ubogu v Head, Department of Health, Gauteng and Others 2018 (2) SA 365 (CC); 2018 (2) BCLR 184 (CC), the respondent Department of Health, Gauteng Province, relied on the section to unilaterally, without agreement with the affected employee, Ms Ubogu, or court order, to deduct an amount allegedly owed to it by the employee, a member of the applicant trade union, the Public Servants Association. That was after Ms Ubogu, a chief executive officer of a hospital in Tshwane, had been transferred to a hospital in Johannesburg in 2010 and given the position of a clinical manager: Medical and put on a salary scale of grade 12. Five years later, and in 2015, it was established that Ms Ubogu’s correct position was clinical manager: Allied, which carried a salary scale of grade 11. As a result she allegedly received overpayment in the amount of some R 675 000. The Department unilaterally resorted to self-help and started deducting instalments from Ms Ubogu’s salary without agreement with her or court order.

The LC held that the Department acted unlawfully in resorting to self-help and declared the section unconstitutional. The present application was for confirmation of the order of invalidity of the section, as well as an appeal against the order of the court. The two were heard together after the Chief Justice directed that they be consolidated into one. The CC confirmed the order of invalidity of the section and remitted the dispute about money allegedly owed by Ms Ubogu to the LC for ventilation. The Minister for Public Service and Administration, under whom the Act fell, was ordered to pay costs.

The majority judgment was read by Nkabinde ADCJ who held that in terms of s 151(2) of the Labour Relations Act 66 of 1995 (the LRA) the LC’s inherent powers and standing were equal to those of the High Court, it being a court of similar status as the High Court. That being the case it had power to make an order concerning the constitutional validity of an Act of Parliament and grant an effective remedy to safeguard against the alleged violation of employees’ rights, including the right to fair labour practices.

Although s 38(2)(b)(i) of the Act was a statutory mechanism to ensure recovery of money wrongly paid to an employee out of the state coffers, the provision gave the state free rein to deduct whatever amounts of money allegedly wrongly paid to an employee without recourse to a court of law. The deductions in terms of that provision constituted an unfettered self-help, the taking of law by the state into its own hands and enabling it to become the judge in its own cause, in violation of s 1(c) of the Constitution. By aiding self-help, the impugned provision allowed the state to undermine judicial process, which required disputes to be resolved by law as envisaged in s 34 of the Constitution. The latter section not only guaranteed access to courts but also safeguarded the right to have a dispute resolved by the application of law in a fair hearing before an independent and impartial tribunal or forum.

In a dissenting judgment, Jafta J held that the LC lacked jurisdiction to declare the impugned provisions of the Act invalid. The power of the LC to declare something unconstitutional was contained in s 157(2) of the LRA. That power was limited to the constitutionality of executive acts, administrative acts and conduct or threat to commit any of those acts. The list did not include the constitutionality of Acts of Parliament.

Education

Liability of divorced parents for school fees: Section 40(1) of the South African Schools Act 84 of 1996 (the Act) provides that a parent is liable to pay the school fees determined in terms of s 39 unless or to the extent that the parent has been exempted from payment in terms of the Act. In Head of Department, Western Cape Education Department and Others v MS 2018 (2) SA 418 (SCA); [2018] 1 All SA 640 (SCA), the issue was whether in the case of divorced parents, liability for payment of fees was joint or joint and several. This issue arose after the respondent Ms S, who was divorced, sought exemption from payment of fees for her child for the school year 2013. In order for her application for exemption from payment to be processed by the school, Fish Hoek High School in the Western Cape, required her to declare combined gross annual income of her and her divorced husband Mr G. However, she was not able to do so as Mr G was not cooperative and would not provide information regarding his financial position. As a result her application for exemption was declined. For that reason she approached the High Court for an order declaring that her liability for school fees was joint and several and not joint, as well as another one to the effect that Mr G was not a parent. In other words she wanted her application for exemption from payment to be assessed on her financial position alone.

The WCC per Le Grange J held that Ms S and her former husband Mr G, were ‘jointly’ and not ‘jointly and severally’ liable for school fees. The appellants, being the Head of Department of Education in the Western Cape, the MEC for Education in the province and the Minister of Basic Education at national level, appealed against the decision, while Ms S cross-appealed against the dismissal of the further orders she had sought in the High Court. The SCA upheld both the appeal and cross-appeal to the extent specified in the order. It was held that in terms of s 40(1) Ms S and her former husband Mr G were jointly and severally liable for the fees and that such position would apply countrywide to all parents who were in a similar situation. It was held further that granting exemption did not preclude the public school from taking legal steps to enforce payment by the other parent of the learner concerned of the school fees or balance thereof, as the case might be. The appellants were ordered to pay costs.

Navsa ADP (Tshiqi, Seriti, Saldulker JJA and Makgoka AJA concurring) held that as there should be equitable burden between parents within a school, and inter se, and that non-custodian parents should not escape legitimate responsibility for paying school fees, a contextual, purposive and literal reading of s 40(1) compelled the conclusion that parents were jointly and severally liable for school fees. Where the gross income of both the parents was a denominator, a parent could not be granted a total or partial exemption where they were unable to or did not provide the gross annual income of the other parent.

However, in the Regulations relating to the Exemption of Parents from payment of school fees in Public Schools (GNR 1052 GG29311/18-11-2006) the governing body of a public school could grant a conditional exemption to payment of school fees to a parent who –

‘(i) [i]n his or her application for exemption –

(a) gives particulars for his or her total annual gross income; and

(b) does not give particulars of the total annual gross income of the other parent of the learner concerned because the other parent had refused or failed to provide such particulars to the parent applying for the exemption; and

(ii) having regard solely to his or her total annual gross income, would qualify for a total or partial exemption in terms of the Regulations if he or she were the only parent of the learner concerned.’

A conditional exemption would be total or partial exemption to which an applicant would be entitled if he or she were the only parent of the learner concerned.’

  • See ‘Education’ 2017 (Oct) DR 27 for the WCC judgment.

Fundamental rights

Environmental security health and wellbeing: Section 24 of the Constitution provides that everyone has the right to an environment that is not harmful to their health or wellbeing and to have the environment protected for the benefit of present and future generations. In Propshaft Master (Pty) Ltd and Others v Ekurhuleni Metropolitan Municipality and Others 2018 (2) SA 555 (GJ); [2017] 4 All SA 901 (GJ), the applicant, Propshaft Master, and two other companies were owners of land adjacent to Eastleigh Spruit stream in Edenvale, Ekurhuleni Metropolitan Municipality (the Municipality). After flash floods in November 2016 and January 2017 their properties were damaged while the walls of the riverbed were destabilised and collapsed in parts. As a result culverts of a bridge were blocked with rubble and debris. The situation was hazardous and created a potential for further damage by rain, even if it did not fall significantly. The respondent Municipality did not attend to damage caused or take steps to prevent future damage or clear the rubble and debris notwithstanding requests by interested parties and a court order obtained by upstream owners of properties adjacent to the river, as well as a report prepared at the instance of the Municipality.

The applicants approached the High Court for an urgent interim structural interdict requiring the Municipality to take all reasonable steps to remediate the relevant portion of the river and clean the rubble together with the debris. Thereafter, the Municipality was required to provide feedback on the steps taken to that effect. The applicants also sought leave, in case the Municipality did not comply, to themselves take all reasonable steps to clear the culverts beneath the bridge and for costs thereof to be paid by the Municipality.

The interdict was granted in the form of a structural interdict, which ordered the Municipality to take reasonable steps to rehabilitate the river bed and clean the bridge of rubble and debris. A suitable reporting mechanism was found in ordering the Municipality to provide the applicants with comprehensive feedback within seven days of the granting of the order and, thereafter, once a month. Costs were reserved.

The alternative remedy of the applicants themselves taking all reasonable steps to clear the culverts beneath the bridge and thereafter claiming the costs thereof from the Municipality was rejected. Davis AJ held that as the applicants had not specified what they wanted to do, how they were going to do it and the cost thereof, the carte blanche sought by the applicants went far beyond what was necessary to protect their constitutional rights. It could be that after such an order was granted, the Municipality sufficiently remedied any deficiencies in its constitutional obligation to such an extent that no further relief would be necessary. Therefore, to order any payment consequences or potential recovery consequences at that stage would be premature.

A person’s sense of environmental security in relation to the potential risks and dangers of environmental disaster fell within the scope of protection provided by s 24 of the Constitution. The Municipality had further constitutional and statutory obligations and duties such as in terms of Disaster Management Act 57 of 2002 to implement measures aimed at preventing or reducing the risk of further disasters and mitigating the severity or consequences of disasters, which had already happened.          

 

Dignity, freedom, security of person and privacy: In Dladla and Others v City of Johannesburg and Another 2018 (2) SA 327 (CC); 2018 (2) BCLR 119 (CC) the applicants, Dladla and others, had been evicted in terms of a court order from property they were occupying in Berea, Johannesburg. The eviction order directed the first respondent, the City of Johannesburg, to provide temporary accommodation to the applicants. That was done in terms of an agreement with the owner of a certain property, Ekuthuleni Shelter (the shelter) whose rules had lockout and family separation provisions. In terms of the lockout rules the applicants and all other residents of the shelter had to leave the property by 8:00 in the morning and could not return until 17:30 in the evening. Thereafter, the gates were locked at 20:00 with the result that late comers were not allowed to enter the premises. Family separation rules provided for separate dormitories for men and women with the result that partners were not allowed to live together. The applicants challenged the rules on the ground that they infringed their fundamental rights to dignity, freedom, security of person, privacy and access to adequate housing. The GJ held that rules infringed the applicants’ rights to dignity, freedom, security in person and privacy. However, the rules were not imposed by a law of general application and therefore did not represent a justifiable limitation of the applicants’ rights in terms of s 36 of the Constitution. The City and shelter were interdicted from enforcing the rules against the applicants. An appeal against the order of the High Court was upheld by the SCA, which found that the rules were unreasonable.

When the matter came to the CC leave to appeal was granted and the appeal upheld. It was held that the rules infringed the applicants’ rights to dignity, freedom, security of person and privacy. Once again the City and shelter were interdicted from enforcing the rules and were directed to permit those of the applicants who wished to do so, to live together with their partners of the opposite sex in communal rooms at the shelter. The City was ordered to pay the costs.

Reading the main judgment Mhlantla J held that the temporary accommodation given by the City implicated the rights to dignity, freedom, security of person and privacy. The applicants were thus entitled to the protection of their constitutional rights. The lockout and family separation rules limited the applicants’ right to dignity. They forced the applicants out onto the street during the day with no place whatsoever to call their own and to rest. As a result the applicants sought refuge on the street while waiting for the shelter to reopen. The lockout rule disproportionately affected people who worked the night shift and slept during the day as they had nowhere to rest and get ready for the next shift. For them in particular the shelter was no shelter at all.

The family separation rule created a vast chasm between parents and children, between partners and between siblings. It eroded the basic associative privileges that exists in and forms the basis of the family. Therefore, in so many ways the two rules limited the dignity of the applicants. The fact that the applicants were forced out onto the street during the day meant that they did not have privacy for the duration thereof and were exposed to the vagaries of street life both during the day and at night.

Absent that law of general application, the City could not invoke s 36 of the Constitution in an attempt to justify the limitations created by the rules. Consequently the City had failed to show that the limitations flowing from the application of the impugned rules were reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom as required by s 36(1).

In a concurring judgment Cameron J held that s 26 of the Constitution (right of access to adequate housing) also applied to temporary accommodation such as one in the instant case. Any measure taken in realisation of such right had to be reasonable, but the two rules in the present case were not reasonable. He held further that the law of general application, included the common law, which was the source of the rules in the present case.

In a further concurring judgment Jafta J held that s 26 of the Constitution found no application in the instant case as accommodation provided to the applicants was not as a result of a ‘measure’ to realise the right of access to adequate housing, but merely in fulfilment of the court eviction order.

Immigration

Reasonable opportunity for illegal foreigners to apply for asylum: The facts in the case of Kumah and Others v Minister of Home Affairs and Others 2018 (2) SA 510 (GJ); [2016] 4 All SA 96 (GJ), were that the applicant, Kumah and others, were illegal foreigners who had been arrested and were detained at the Lindela detention facility pending their deportation to various countries of origin. The applicants were arrested and detained after having been in the country illegally for a period ranging from four to nine months, during which some did not apply for asylum permit at all, while others unsuccessfully did so. The present applications were for their release so that they could apply for asylum permits. The applications were dismissed. The question of costs was postponed to afford the respondents, the Minister of Home Affairs, the Director-General, other senior officials and responsible employees, the opportunity to show cause why they should not be ordered to pay costs out of their pockets for failure to file the required papers such as the answering affidavit and heads of argument.

Satchwell J held that in the cases of Bula and Others v Minister of Home Affairs and Others 2012 (4) SA 560 (SCA) and Ersumo v Minister of Home Affairs and Others 2012 (4) SA 581 (SCA) the SCA made it clear that the factual basis justifying and entitling resort to the provisions of the Refugees Act 130 of 1998 (the Act) had to be placed before the court. Absent fundamental and necessary averments, it would be difficult to know the basis on which any court could rely on the Act for determination of the application and the dispute before it. In the present applications before the court there was an absence of disclosure on the part of the applicants. The court was not provided with even a foretaste of such information as was made available to the SCA in the Bula and Ersumo matters. None of the applicants indicated that he held a well-founded fear of being persecuted by reason of his race, tribe, religion, nationality, political opinion or membership of a particular social group and was unable to avail himself of the protection of the country of his nationality. Nor had any applicant indicated that there were events seriously disturbing or disrupting public order in either part or the whole of his country of origin to compel him to leave his place of residence to seek refuge in this country. None of the applicants had given any indication that the possibility of persecution extended to them within the whole of their country of origin or nationality and that there was no place for them.

In the Bula and Ersumo cases the SCA did not interpret the Act or regulations made thereunder so as to allow an indefinite and unlimited period for an illegal foreigner to seek to invoke the protection of the Act until it finally suited him to do so. In the present case the applicants had been in the country for lengthy periods ranging from four to nine months. It could not be said that the applicants had not had every reasonable opportunity to make any application which they could genuinely wish to make.

 

Unreasonable delay in applying for asylum: In Minister of Home Affairs v Ruta 2018 (2) SA 450 (SCA); [2018] 1 All SA 682 (SCA) the respondent, Ruta, was a Rwandan national who entered the country illegally in December 2014 and subsequently obtained a fraudulent asylum permit. In March 2016 he was arrested and charged with driving without a valid driver’s licence, possession of a fraudulent temporary asylum permit and being an illegal foreigner. He was found guilty of driving without a valid driver’s licence and being in possession of a fraudulent temporary asylum permit and sentenced accordingly. While serving his sentence, he was apparently at the Lindela holding facility and repatriation centre awaiting to be deported to his country of origin, his legal representatives approached the High Court for an order directing his release from detention so that he could be given the opportunity to apply for asylum in terms of the Refugees Act 130 of 1998 (the Act) and the regulations made thereunder. The GP, per Tuchten J granted the order sought, further directing the appellant Minister of Home Affairs to renew the respondent’s temporary asylum seeker permit. An appeal against the order was upheld by the SCA with no order as to costs.

Seriti JA (Bosielo, Willis JJA, Schippers AJA concurring and Mocumie JA dissenting) held that asylum seekers who entered the country illegally were merely given a reasonable opportunity but not an indefinite or unlimited period in which to apply for asylum. In the instant case it was plain that apart from any other considerations the respondent delayed unreasonably, for some 15 months, in applying for asylum. On the facts of the case there was no indication that the respondent had any intention of applying prior to his arrest. The idea of applying for asylum came to his mind when he was detained and the appellant was in the process of arranging for his deportation. The behaviour of the respondent was not consistent with that of a person who wanted to apply for asylum.

In a dissenting judgment Mocumie JA held that once a refugee had evinced an intention to apply for asylum, the protective provisions of the Act and the associated regulations came into play and the asylum seeker was entitled to be afforded access to the application process stipulated in the Act. The fact that he committed offences in South Africa long after his entry could and should not serve as an exclusion from the protection of the Act.

Land

Liability of the registrar of deeds for negligent transfer of immovable property: The facts of the case of Stirling v Fairgrove (Pty) Ltd and Others 2018 (2) SA 469 (GJ); [2018] 2 All SA 290 (GJ) were that in 2015 the applicant Stirling, an owner of immovable property, found out that it had been sold and transferred, without her knowledge, to the third respondent, Alvares, who shortly thereafter sold it to the first respondent Fairgrove. Alvares allegedly paid some R 2,79 million for the property while he sold it to Fairgrove for R 3,65 million. As the applicant had not sold the property she approached the High Court for an order declaring that she was still the owner of the property and expungement of the two deeds of transfer, the first one to Alvares and the second to Fairgrove. In a counter-application Fairgrove sought damages against the second respondent, the registrar of deeds, for her role in allowing a blatantly fraudulent transfer to take place, as well as against Alvares for his fraudulent activities. The claims were meant to recover the purchase price and transfer duty it had paid. For his part Alvares instituted separate application proceedings against the estate agents, Phungula-Nkosi Properties, who sold the property to him, alleging that he was a victim of their fraudulent activities. He also contended that the registrar of deeds was to blame for allowing the fraud to take place.

The applications were consolidated and dealt together. The application of Alvares against the estate agents was dismissed with no order as to costs as it was not opposed. The dismissal was due to the fact that it did not appear that Alvares ever bought the property as it was fraudulently transferred to him free of charge. Regarding the counterclaim of Fairgrove it was held that the registrar of deeds and Alvares were jointly and severally liable to pay the purchase price and transfer duty incurred by it. The two were also held jointly and severally liable for the costs of the counter-application. Regarding the main application of Stirling, an order was granted in terms of which it was declared that she was the lawful owner of the property. To that end, the registrar of deeds was ordered to cancel and remove from her records the title deeds issued, one in favour of Alvares and the other in favour of Fairgrove.

Senyatsi AJ held that if the agreement was tainted with fraud or obtained by some other means that vitiated consent, ownership of the property would not pass despite registration in the deeds registry. The registrar and those employed in her office were responsible for ensuring that all the legal requirements for registration were heeded. The Deeds Registries Act 47 of 1937 (the Act) conferred on the registrar of deeds significant powers and responsibilities to ensure the proper administration of land registration system in the country. The registrar held an important oversight role that required she and the officials in her employment scrutinise documents placed before them.

In the present case when consideration was given to a host of deficiencies in respect of transfer of the property to Alvares, it was clear that they were significant and should have been identified by the registrar as a reason for rejecting the deed of transfer. As that did not happen the registrar failed to discharge her statutory duty in a reasonable and acceptable manner and was accordingly negligent. Section 99 of the Act subjected the registrar and her staff to normal standards of reasonable care and diligence and imposed liability for deviating from same.              

Road Accident Fund claims

Road Accident Fund Appeal Tribunal does not have final say on causation: In the case of Road Accident Appeal Tribunal and Others v Gouws and Others [2018] 1 All SA 701 (SCA) the first respondent, Gouws, was injured in a motor vehicle collision in which he sustained injuries. Before lodging a claim for compensation with the Road Accident Fund (the Fund) he was assessed by an orthopaedic surgeon who reported that the injuries suffered were serious. However, the Fund rejected Gouws’ claim for general damages on the ground that the injuries suffered were not serious. That being the case Gouws referred the dispute to the first appellant Road Accident Fund Appeal Tribunal (the tribunal) for adjudication, which held that the injuries suffered were not caused by the motor vehicle collision and were therefore not serious. In other words the ruling of the tribunal was not so much about the seriousness of the injuries suffered, but their cause. As a result Gouws approached the High Court for an order reviewing and setting aside the ruling of the tribunal. The GP per Tuchten J granted the order sought and remitted the matter to the tribunal for reconsideration by a different panel. The present appeal was against the High Court order and was dismissed with costs.

Navsa ADP (Saldulker, Mocumie JJA, Tsoka and Makgoka AJJA concurring) held that in the ordinary course causation was an issue that was ultimately decided by courts. A dispute between the Fund and a claimant in relation to causation had to be referred to a court for adjudication. When that issue was decided by a court, it did not follow that medical practitioners were necessarily the only experts on whom reliance could be placed. Courts were not bound by the view of any expert, but made the ultimate decision on issues on which experts provided an opinion.

The contestation before the tribunal could only be in relation to the assessment by the medical practitioner of the seriousness of the injury and the finality of its decision was in relation to that aspect. The effect of the tribunal ruling was that the jurisdiction of the court was ousted. However, the tribunal could not have the final say in relation to causation as that power was not provided for in the Road Accident Fund Act 56 of 1996 or the regulations made thereunder. If the approach of the tribunal were accepted, it would deny claimants access to courts on an issue traditionally reserved for adjudication by them. The Fund retained the right to challenge or concede causation. If the approach of the tribunal were to be accepted the result would be that the Fund itself would be stripped of its power to decide the issue of causation in the event of an appeal tribunal deciding causation against it.

Other cases

Apart from the cases and material dealt with or referred to above the material under review also contained cases dealing with: Action in rem against an associated ship, application for recusal of judge in criminal case, commission of robbery by theft of incorporeal thing through violence or force, conversion of business rescue into liquidation, delay in bringing review application, doctrine of common purpose, liability of financial services provider to a client, post-commencement finance in business rescue, proceedings before Equality Court being less formal, Public Protector directing the President to appoint commission of inquiry, setting aside of conviction and sentence if there was failure of justice, undue delay in bringing application for common law review and whether rebate paid to motor manufacturer to encourage rationalisation of models was capital or revenue receipt.

This article was first published in De Rebus in 2018 (June) DR 30.

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