The law reports – June 2019

June 1st, 2019
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April 2019 (2) South African Law Reports (pp 329 – 658); February [2019] 1 All South African Law Reports (pp 291 – 584); March [2019] 1 All South African Law Reports (pp 585 – 867); April [2019] 2 All South African Law Reports (pp 1 – 305); 2019 (3) Butterworths Constitutional Law Reports – January (pp 1 – 163)

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

ECP: Eastern Cape Local Division, Port Elizabeth

GJ: Gauteng Local Division, Johannesburg

GP: Gauteng Division, Pretoria

KZD: KwaZulu-Natal Local Division, Durban

SCA: Supreme Court of Appeal

WCC: Western Cape Division, Cape Town

Advocates

Requirements for admission and enrolment as an advocate: In terms of the Admission of Advocates Act 74 of 1964 (the Act) to be admitted and enrolled as an advocate a person had to be ‘duly qualified’, which phrase meant satisfying all the requirements for the LLB degree after completing a period of study of not less than four years or otherwise satisfied other requirements set out in s 3(2) of the Act. The Act was repealed on 1 November 2018 when the Legal Practice Act 28 of 2014 (the LPA) came into operation. The latter prescribes the requirements for admission and enrolment as an advocate as being the LLB degree completed after pursuing a course of study of not less than four years. However, the LPA has three additional requirements, which the Act did not have, namely vocational training, competency assessment or examination and community service. However, vocational training and an examination are required only for admission as a member of any of the societies of advocates (member of a Bar council).

Significant for present purposes is s 115 of the LPA, which provides that any person who, immediately before the date referred to in s 120(4) (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 the LPA.

The issue in Ex parte Bakkes and Similar Cases 2019 (2) SA 486 (ECG) was whether a person who immediately prior to 1 November 2018 was entitled to be admitted and enrolled as an advocate, also had to satisfy the requirements of the LPA given that the Act had been repealed and the application was made in terms of the LPA. The court held that the dual admission and enrolment system applied. This meant that persons who, immediately prior to 1 November 2018 were duly qualified, would be admitted and enrolled as advocates without the need to comply with the requirements of the LPA. However, for persons who duly qualified on or after 1 November 2018 the requirements of the LPA would have to be complied with.

Contrary to the view of Modiba J in Ex Parte: Goosen and Similar Matters (GJ) (unreported case no 2018/2137, 25-3-20019) (Modiba, Sutherland JJ and Millar AJ) Roberson J held that there was no ambiguity in s 115 of the LPA. It was clear from the section that persons who qualified for admission and enrolment ‘in terms of this Act’ meant nothing more than that the LPA would be used as a vehicle for the admission of such persons, given that the Act had been repealed. To require such a person to satisfy the requirements of the Act and the LPA in order to be admitted would unfairly require such person to be dually qualified and would negate the provision in s 115 to the effect that such a person was entitled to be admitted and enrolled if they were entitled prior to 1 November 2018. Section 115 clearly recognised different requirements for admission and enrolment prior to and from 1 November 2018 onwards. Such a system would in any event eventually disappear as more applicants would have obtained their LLB degrees from 1 November 2018 onwards and the number of applicants who obtained their LLB degrees prior to 1 November 2018 would diminish.

Citizenship

Acquisition of citizenship by naturalisation: Section 4(3) of the Citizenship Amendment Act 17 of 2010 (the Act), which came into effect on 1 January 2013, provides that a child born in South Africa (SA) whose parents are not South African citizens or who have not been admitted into the country for permanent residence, qualifies for South African citizenship on becoming a major if –

  • they have lived in the country from the date of their birth to the date of becoming a major; and
  • their birth has been registered in accordance with the provisions of the Births and Deaths Registration Act 51 of 1992.

In Minister of Home Affairs and Another v Ali and Others 2019 (2) SA 396 (SCA) the five respondents, Ali and others, satisfied the requirements of the section and accordingly qualified for citizenship by naturalisation. They were all born and lived in SA and had never been to any country or were the citizens of another country. However, their parents were not South African citizens nor had they permanent residence status. When the respondents applied for citizenship they were turned away as the appellant Minister of Home Affairs took the view that the section did not have retrospective application, meaning that it applied only to those children who were born after the commencement of the section on 1 January 2013. Furthermore, the minister had not promulgated the necessary regulations and application forms. The WCC, per Wille AJ, held that in the absence of the regulations and application forms, and pending their making, applications for citizenship by naturalisation had to be made on affidavit. The court further held that the section applied to all persons irrespective of whether they were born before or after 1 January 2013. The minister was ordered to promote the necessary forms to be made available within one year of the court order.

The SCA, after making slight amendment of the High Court order by changing the ‘necessary forms’ to ‘regulations’, dismissed an appeal against the order with costs. Mathopo JA (Lewis, Seriti, Wallis and Molemela JJA concurring) held that it was an affront to deny the respondents the right to apply for citizenship in a country where they were born, had lived and which was the only country they had ever known. Preventing children born prior to 1 January 2013, even though they had lived in the country since birth and had attained majority thereafter, was unfairly discriminatory.

Costs

Recovery of legal costs paid by the state for government official litigating in his personal capacity: The facts in Democratic Alliance v President of the Republic of South Africa and Others and a Related Matter [2019] 1 All SA 681 (GP) were that in June 2005, December 2007, as well as March 2018 the former president of South Africa, Jacob Zuma, was charged with offences relating to racketeering, corruption, money laundering and fraud. During that period Zuma had just one aim, namely, to resist prosecution. To that end he employed private attorneys and teams of counsel, to make applications, counterapplications and interlocutory applications, which process the court described as litigating in a most luxurious scale. The total amount expended by the state in funding Zuma’s criminal prosecution and related civil proceedings ranged from R 16 million to R 32 million. The funding was authorised by the Director-General in the Presidency (the Presidency) and/or the State Attorney. In a few instances funding was provided without authorisation by either of the two.

The Democratic Alliance, an official opposition party in Parliament, instituted proceedings for a review and setting aside of the decision of the Presidency and the State Attorney to provide such funding, relying on the Promotion of Administrative Justice Act 3 of 2000 (PAJA), as well as the principle of legality. The Economic Freedom Fighters, another political party, based its review application on the principle of legality only.

The GP granted the order with costs to be paid by Zuma. The court declared invalid, and accordingly reviewed and set aside the decision of the Presidency and the State Attorney to cover legal costs, which Zuma incurred in his personal capacity. To ensure that recovery of such costs would take place the court directed the State Attorney to compile a full and complete accounting of all the legal costs incurred by Zuma in his personal capacity in litigation concerned and, thereafter, to take all necessary steps, including the institution of legal proceedings, to recover such amounts. The State Attorney was directed, within three months of the order, to file a report, made under oath, detailing the steps that had been taken and that would be taken to recover the amounts paid by the state for Zuma’s legal costs.

Meyer J (Ledwaba DJP and Kubushi J concurring) held that the provisions of s 3 of the State Attorney Act 56 of 1957 and reg 12.2.1 of the Treasury Regulations made in terms of the Public Finance Management Act 1 of 1991 did not authorise the impugned decisions by the Presidency and the State Attorney to pay for Zuma’s private legal costs in defending corruption and other related charges against him and in ancillary or related civil legal proceedings. The impugned decisions were not authorised by the statutory provisions invoked by the Presidency and the State Attorney and consequently amounted to a breach of the principle of legality. They were unconstitutional and fell to be set aside. They also fell to be reviewed and set aside in terms of PAJA. They were not authorised, were ultra vires and were influenced by an error of law.

Delict

Strict liability under actio de pauperie: In Roman law ‘pauperies’ was damage done without any legal wrong on the part of the doer since an animal (being devoid of reasoning) was incapable of committing a legal wrong. In such a situation the owner was held liable for damage caused by their animal merely because they were the owner. However, they could avoid pauperian liability by handing the animal over to the victim in surrender if they chose not to offer pecuniary damages. In Cloete v Van Meyeren 2019 (2) SA 490 (ECP); [2019] All SA 662 (ECP) dogs belonging to the defendant Van Meyeren attacked and seriously injured the plaintiff Cloete, a passer-by, in the street. The dogs escaped from the premises after an intruder had broken the locked gates and left them open. The defendant raised the plea that his liability was excluded by the conduct of the third party, the intruder, who had broken the locked gates and left them open, and consequently there was no fault on the defendant’s part.   

After separating the issue of liability from the quantum, it was held that the defendant was liable for such loss as would be proved or agreed at a later stage. The defendant was ordered to pay the costs. Lowe J held that there were no facts present in the matter, pleaded or proven, bringing into operation the concept of culpable conduct of a third party (the intruder) causing a domesticated animal to act contra naturam and thus exonerating the owner from pauperian liability. Similarly, it was clear that the third-party intruder relied on was not in charge or in control of the dogs and thereafter failed by negligent conduct to prevent them injuring the victim.

Education

Invalidity of exclusion policy under which learner is excluded from examinations and seated apart from fellow learners: In NM v John Wesley School and Another 2019 (2) SA 557 (KZD) the first respondent was an independent private school, namely, John Wesley School (the school), had a policy in terms of which a learner would be excluded from participation in the activities of the school if payment of school fees was not paid up to date. In the instant case the minor, being the applicant’s child, was excluded from writing examinations because of the non-payment of school fees and put in a separate room, isolated from other learners, when the examinations were underway. The school refused payment of arrear by instalments, with the result that the minor was so treated until full payment was made. Contesting the validity and constitutionality of the exclusion policy the applicant approached the High Court for an order declaring that the policy was unlawful and inconsistent with the Constitution. It was so ordered.

Masipa J held that while the school was entitled to invoke its authority to exclude learners, a fair procedure had to be followed. The exclusion had to be for a fair reason, taking into account what was in the best interests of the child. In that regard it did not matter whether the institution was an independent school or a public one. That was the case regardless of whether the exclusion related to the child’s conduct or any breaches by its parents. In the present case the fact that the learner was allowed to write his examinations once the arrears were paid did not make the school’s conduct less reprehensible. The school’s conduct in isolating the learner and placing him in a separate room while other learners wrote examinations was degrading, humiliating and inhumane. It penalised the learner, a minor, for his parents’ conduct for which he was not responsible. In implementing such a penalty the school failed to take into account the learner’s best interests and conducted itself contrary to international treaties, the South African Schools Act 84 of 1996 and the Constitution. Doing so was not in the best interests of the learner.

Electricity

Human catastrophe justifies prohibition of reduction or termination of electricity supply: In Resilient Properties (Pty) Ltd v Eskom Holdings Soc Ltd and Others 2019 (2) SA 577 (GJ); [2019] 2 All SA 185 (GJ), the second respondent, Gamagara Local Authority (the municipality), a small municipality based in Kathu village in the north-eastern sector of the Northern Cape Province, fell into arrears with payment for electricity supplied by the first respondent Eskom. The two parties reached an agreement in terms of which the municipality undertook to pay instalments as they fell due. When the municipality failed to honour the agreement Eskom gave a ‘termination notice’ dated 14 Match 2018 in which it indicated that it was initially going to reduce and eventually terminate its electricity supply to the municipality. To prevent the threatened reduction or termination, pending final review and setting aside of that decision, the applicant Resilient Properties, the owner and operator of a shopping mall within the area of jurisdiction of the municipality, approached the High Court for interdictory relief. Resilient, whose electricity bill with the municipality was up to date, alleged that the threatened termination of electricity supply would have catastrophic effect on the mall and residents of the municipality by among others destroying water-reticulation and waste-water treatment systems, as well as lead to the shutdown of schools and compromise the operation of old-age homes, security companies and health-care providers. Eskom did not deny the allegations.

The court granted an interdict restraining Eskom from implementing the termination notice. The court further directed the municipality to pay Eskom all amounts falling due in terms of the instalments provided for in the acknowledgement of debt existing between the parties. Costs were to be costs in the cause of the pending main application. The court emphasised the fact that what Eskom was being restrained from doing, was the intended interruption of electricity supply as per the ‘termination notice’ or any substantially similar notice and not every conceivable interruption or reduction decision, as Eskom could well conceive – after appropriate notice and consultation – of a form of reduction of supply of electricity that would not result in human catastrophe as indicated above.

Van der Linde J held that in principle Eskom had the power under s 21(5) of the Electricity Regulation Act 4 of 2006 to terminate or interrupt the supply of electricity to the municipality, given the latter’s contractual default. Due to the nature and source of Eskom’s power, the exercise thereof was administrative action for the purposes of s 33 of the Constitution and the Promotion of Administrative Justice Act 3 of 2000 and was constrained, if not by the requirement of reasonableness then at least by the baseline standard of rationality. Ordinarily the power to interrupt or terminate the supply of electricity would have been intended to prevent Eskom from having to supply electricity when it would not be paid for. However, it could not be accepted that the power would have been intended to be exercised in such a manner that it would in a given circumstance result in widespread human catastrophe.

Minerals and petroleum

Prior informed consent of holders of informal land rights required before granting mining rights: In Baleni and Others v Minister of Mineral Resources and Others 2019 (2) SA 453 (GP); [2019] 1 All SA 358 (GP) the applicants, Baleni and others, were members of the Umgungundlovu community (the community) living on ancestral land in the Xolobeni area, Eastern Cape. The fifth respondent, Transworld Energy and Mineral Resources (the company) wanted to carry out mining activities in the area. The majority of the applicants lived within or in close proximity of the proposed mining area and opposed the intended mining activities of the company taking place without their free prior informed consent as provided for in s 2(1) of the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA), which states that no person may be deprived of any informal right to land without their consent. The applicants’ right to the land in question was informal as it was communal and without title deeds, the land having been occupied in terms of customary law and tradition. On the other hand the first respondent (the minister) relied on the provisions of the Minerals and Petroleum Resources Development Act 28 of 2002 (the MPRDA) contending that ‘consultation’ with the community, instead of their ‘consent’ was sufficient to enable mining activities to be carried out.

In the application, the applicants sought a declaratory order to the effect that in terms of IPILRA the minister was obliged to obtain their full and informed consent prior to granting any mining rights to the company. The order was granted with costs.

Basson J held that the granting of mining right over the property amounted to deprivation of rights over land for the purposes of IPILRA and s 25 of the Constitution as it would result in the diminution of the use, occupation and access to the land. Due to such deprivation, the consent requirement provided for in s 2(1) of IPILRA was triggered, as the land was not expropriated in terms of the Expropriation Act 63 of 1975 or any other Act. ‘Consent’ could not be equated with ‘consultation’. The former contemplated an agreement while the latter envisaged a process of consensus-seeking that might not necessarily result in an agreement. Communities such as the applicants were afforded broader protection in terms of IPILRA when mining rights were considered by the Minister.          

Mortgage bonds

Money order and order to specially execute against primary residential immovable property to be granted or postponed simultaneously: The facts in Standard Bank of South Africa Ltd v Hendricks and Another and Related Cases 2019 (2) SA 620 (WCC), [2019] 1 All SA 839 (WCC) were that on 13 September 2018 a total of seven foreclosure matters served in the WCC, before Savage J where Standard Bank and Absa Bank sought an order of execution against immovable property, which was the primary residence of the judgment debtor. In view of the judgment of the full court of the GJ, in the case of Absa Bank Ltd v Mokebe and Related Cases 2018 (6) SA 492 (GJ) Savage J invoked the provisions of s 14(1)(b) of the Superior Courts Act 10 of 2013 and postponed the matters. Thereafter the Judge President referred the matters for hearing before a Full Court, inviting the legal practitioners for the parties, together with amici curiae, to address the court on a number of issues, which essentially amounted to whether an application for a judgment order sounding in money and an order of special executability relating to the same matter could be heard separately or should be held simultaneously. A related question was whether a judgment order sounding in money could be granted while the order of special executability was postponed. There was also the question whether the court had a discretion to postpone such a judgment, as well as a special executability order hearing. The parties were also directed to address the court on the issue of the reserve price if the property were to be declared executable. The individual defendants did not participate in the proceedings.

All the applications were postponed sine die, nothing being said about costs which the applicants did not seek. The Full Court per Erasmus, Dolamo and Savage JJ held that r 46A of the Uniform Rules of Court, which required personal service on the debtor of the notice of a motion for a judgment sounding in money and an order of executability, required that more should be said on the attempt to achieve personal service than simply a reference by the Sheriff to the fact that the debtor was not present or could not be found at the premises. Such personal service could include service at the debtor’s workplace or at their home over the weekend. If personal service was not possible, the court had to be approached to authorise service in some other manner.

A combined application for the judgment sounding in money and the order of executability against a primary residence, in terms of r 46A, required personal service on the debtor. Both an order sounding in money and a special executability order had to be sought simultaneously by the creditor and not separately. It was not appropriate to order postponement of the implementation of the order of special executability only. Having regard to s 26 (right of access to adequate housing) of the Constitution, the court had a discretion to postpone the judgment sounding in money hearing, together with the order for special execution where a court, on a proper consideration of the facts before it, considered doing so to be in the interests of justice.

On the issue of a reserve price it was held that in most instances the benefits of setting a reserve price outweighed any prejudice, which would arise in doing so. A reserve price would halt the sale of homes at nominal value to the direct prejudice of the judgment debtor. It was, therefore, only in exceptional circumstances that the court would exercise its discretion not to set a reserve price.

Note: The court attached two annexures to the judgment, one being a Practice Directive dealing with the requirements for an order sounding in money and an order of special executability while the other annexure dealt with the contents of the affidavit supporting the application, which the attorney or financial institution seeking the order had to prepare.

Refugees

Delay in applying for asylum status is not fatal to the application: The facts in Ruta v Minister of Home Affairs 2019 (2) SA 329 (CC); 2019 (3) BCLR 383 (CC), were that the appellant Ruta, a national of Rwanda, entered the country other than at a port of entry and without a visa, this making him an illegal foreigner. Some 15 months later he was arrested for traffic offences at which stage his status as an illegal foreigner was established. While in prison for the traffic offences the Department of Home Affairs (the Department) sought to deport him to his country. It was at that stage that he applied for asylum status. The attitude of the Department was that it was too late for him to apply and would accordingly be deported.

The GP granted an interdict restraining his deportation and ordered his release from prison. On appeal to the SCA the decision of the High Court was reversed. The CC granted leave to appeal and upheld the appeal with costs even though by that time the issue between the parties had become moot as the appellant had been released from prison and his application for asylum status was in process. It was nevertheless in the public interest to deal with the appeal as it raised an arguable point of law while there were many people in the appellant’s position before his release.

Reading a unanimous decision of the court Cameron J held that once an intention to apply for asylum was evinced, the protective measures of the Refugees Act 130 of 1998 (the Refugees Act) and the regulations came into play. As a result, the asylum seeker was entitled as of right to be set free subject to the provisions of the Refugees Act. Failure to apply for asylum at the first available opportunity was no disqualification since delay did not function as an absolute disqualification from initiating the asylum application process. All asylum seekers were protected by the principle of non-refoulement (which prohibited sending asylum seekers back to a jurisdiction they were fleeing from), which protection applied as long as the claim for refugee status had not been finally rejected after a proper procedure. Until the right to seek asylum was afforded and a proper determination procedure was engaged and completed, the Constitution required that the principle of non-refoulement as articulated in s 2 of the Refugees Act should prevail. The overriding principle of the section was that apart from those officially recognised as refugees and afforded refugee status, no applicant for asylum should be expelled, extradited or returned to any other country or be subjected to any similar measures.

  • See law reports ‘Immigrants’ 2018 (June) DR 30 for the SCA judgment.

Other cases

Apart from the cases and material dealt with or referred to above the material under review also contained cases dealing with: Business rescue, cancellation of procurement contracts on the basis of prior fraud, confirmation of a surrogate motherhood agreement, cost price of trading stock as the benchmark against which diminution in value should be measured, costs on attorney and client scale due to vexatious and abusive conduct in litigation, deemed accrual of proceeds of sale of property on date of agreement, emoluments attachment order, fishing quotas, foreclosure of residential property, hate speech, mental competence of the complainant in a rape trial, removal of a trustee by Master not invalidating decisions taken by such trustee, repudiation of contract, review and setting aside of unfair disciplinary proceedings, review of decision of both first instance and appeal, as well as trial for murder, defeating or obstructing administration of justice.

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

This article was first published in De Rebus in 2019 (June) DR 17.