The law reports – November 2018

November 1st, 2018
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Heinrich Schulze BLC LLB (UP) LLD (Unisa) is a professor of law at Unisa.

September 2018 (5) South African Law Reports (pp 1 – 322); [2018] 3 All South African Law Reports July (pp 1 – 305); [2018] 3 All South African Law Reports August (pp 307 – 603); 2018 (10) Butterworths Constitutional Law Reports October (pp 1179 – 1308)

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

ECLD: Eastern Cape Local Circuit Division, East London

GP: Gauteng Division, Pretoria

KZD: KwaZulu-Natal Local Division, Durban

SCA: Supreme Court of Appeal

WCC: Western Cape Division, Cape Town

Administrative law – PAJA

Commencement of 180-day limitation period: The decision in PG Group (Pty) Ltd and Others v National Energy Regulator of South Africa and Another 2018 (5) SA 150 (SCA); [2018] 3 All SA 52 (SCA) concerned the 180-day limitation period under the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

The National Energy Regulator of South Africa (NERSA) was established by law to regulate energy prices, including the price of piped natural gas. In 2013 NERSA granted an application by Sasol Gas to determine the maximum gas prices it was permitted to charge for piped gas. Since 2005 NERSA has been the designated regulator for piped natural gas under the Gas Act 48 of 2001.

The Gas Act requires NERSA to regulate gas prices ‘on a systematic methodology applicable on a consistent and comparable basis’ in cases where there is inadequate competition in the industry. Initially NERSA failed to consider this requirement but later it developed a methodology for determining maximum prices based on a basket of alternative fuel sources (the so-called ‘basket approach’).

Sasol applied for the determination of gas prices in 2012 and NERSA made a final determination in 2013 based on the basket approach. The prices finally determined by NERSA, were substantially higher than the prices previously charged by Sasol Gas. The mark up on the cost rose from 227% to 398%.

The applicants complained that the increases were unreasonable and irrational. They applied to the GP to review and set aside the decision and order that any new prices determined must be implemented retrospectively.

The court of first instance held that there was an unreasonable delay in bringing the application and dismissed it without considering the substantive merits of the case.

On appeal, Leach JA, held that when dealing with administrative action, which is the result of a process, the administrative action only becomes reviewable when it has a direct external legal effect. In the present case, the determination of the methodology was part of the process, but not the final act having direct external legal effect. This only happened when the maximum gas prices were determined. The applicants brought their application within the 180-day limit under the PAJA.

The SCA held that the decision of the High Court was wrong on this issue. NERSA did not finally determine the methodology to be used, rather it extended a choice of methodology to the applicant. It was only when this choice was exercised that it became the systematic methodology for determining maximum gas prices.

As a transitional measure NERSA also did not use the applicable methodology consistently but used a revised method to ensure that Sasol Gas suffered no financial loss.

Section 6(2)(f)(ii) of PAJA requires that an administrative decision must be reasonable. An administrative decision is also reviewable if it is a decision that a reasonable decision-maker could not have been reached.

NERSA’s task under the Gas Act was to regulate the market in the absence of a competitive market so as to ‘replicate competitive market outcomes in approving maximum prices’. Instead of developing a methodology that would lower gas prices, NERSA did the opposite, determining a maximum price that was 300% higher than what the applicants had previously paid. Setting a price that a monopolist would set, was thus illogical and irrational under the circumstances.

NERSA’s decision was wholly irrational and unreasonable and was set aside.

Constitutional law

Discrimination against polygamous Muslim marriages unconstitutional: In Moosa NO and Others v Minister of Justice and Others 2018 (5) SA 13 (CC); 2018 (10) BCLR 1280 (CC), the court was asked to pronounce on the constitutionality of s 2C(1) of the Wills Act 7 of 1953. The facts were as follows: The deceased had married the second applicant in 1957 and the third applicant in 1964. Both marriages were solemnised in ceremonies conducted under the tenets of Islamic law.

In 1982, the deceased applied for a bank loan to fund the purchase of the current family home. But, because Muslim marriages were not legally recognised, he was advised to formalise his marriage to the second applicant under South African law in order for the bank loan to be approved. He did so, with the consent of the third applicant, and then bought the property with the loan he obtained.

Since then the deceased lived with both his wives and some of their children in their family home until his death in 2014. He prepared a will three years earlier in which he referred to both marriages. Its terms directed that his estate be distributed under Islamic law. The Muslim Judicial Council certified that this required the estate to be divided in 1/16 shares to each of his wives, 7/52 to each of his sons and 7/104 to his daughters.

All the children renounced the benefits due to them under the Will and the executor specified that their shares be divided equally between the two wives, regarding both as surviving spouses for purposes of s 2C(1) of the Wills Act.

The Registrar of Deeds refused to register the spouses’ shares in the property, arguing that s 2C(1) must be interpreted strictly, therefore, excluding the second wife.

On application, the High Court upheld the executor’s interpretation but also held that s 2C(1) was unconstitutional as it unfairly discriminated against Muslim spouses.

On appeal to the CC, Cachalia AJ confirmed the High Court’s declaration of the section’s constitutional invalidity. The CC held that the phrase ‘surviving spouse’ in s 2C(1) dates back to the pre-constitutional era when it plainly contemplated a partner in a common-law monogamous union. It, therefore, cannot be interpreted to include multiple surviving spouses within its ambit.

Section 2C(1) thus differentiates between surviving spouses married in terms of the Marriage Act on who the benefits are conferred, on the one hand, and those married under Islamic Law, who are not recognised as spouses, on the other hand. The section also differentiates between surviving spouses in customary unions and those in polygamous Muslim marriages. African Customary Law marriages fall within the section’s remit, but Muslim marriages do not. This differentiation constitutes unfair discrimination because it bears no relation to any legitimate governmental purpose.

The High Court limited the retrospectivity of the declaration of unconstitutionality to existing and future cases, excluding estates that have been finally wound up.

Finally, the CC confirmed the High Court’s decision that s 2C(1) has to be amended by adding the words in italics for the section to read:

‘If any descendants of a testator, excluding a minor or a mentally ill descendant, who, together with the surviving spouse of the testator, is entitled to a benefit in terms of a will renounces his right to receive such benefit, such benefit shall vest in the surviving spouse. For the purposes of this sub-section, a “surviving spouse” includes every husband and wife of a monogamous and polygamous Muslim marriage solemnised under the religion of Islam.

The order was accordingly confirmed. The court made no order as to costs.

Contract law – lease

Breach of contract: The decision in Ritz Plaza (Pty) Limited v Ritz Hotel Management Company (Pty) Ltd [2018] 3 All SA 583 (WCC) straddled a number of legal aspects. Only one of these, namely, breach of contract, will be discussed here.

The facts were as follows: The applicant (the Ritz) was a company, which owned the Ritz Hotel (the hotel) in Cape Town. In October 2016, it concluded a lease agreement with the respondent (the management company) in terms whereof the hotel was leased to the management company for a period of 20 years. By the end of 2016, the management company began defaulting on its monthly rental and other obligations towards the Ritz. The latter consequently elected to cancel the lease. The management company refused to vacate the hotel, necessitating the bringing of an application for its ejectment by the Ritz. The management company averred that the Ritz’s cancellation of the lease was invalid in that the rental, which would otherwise have been due and payable to it by the management company, was in fact not due and payable because the Ritz was the cause of the management company’s failure to pay. It further argued that when it stepped into the shoes of the previous tenant, the change of tenancy was facilitated by a so-called term-sheet intended to regulate the parties’ contractual relationship for an indefinite period. A loan, which the management company had obtained from a bank, was insufficient to cover its refurbishment of the hotel. It alleged that it was a tacit term of the term-sheet, that the Ritz would obtain an additional loan facility of R 30 million for the management company and make it available by a certain date. It further alleged that the Ritz breached the term sheet by failing to make the R 30 million bank loan available to the management company timeously, and that such breach was causally connected to the latter’s failure to pay the rental due.

Gamble J held that a tenant’s primary obligation under an agreement of lease is the timeous payment of rental in the agreed commodity to the landlord. Failure to meet that obligation constitutes a fundamental breach and after it has been given contractual notice to remedy its default, the landlord is entitled, without more, to cancel the agreement and seek the ejectment of the tenant.

The management company contended that the failure to pay the rental claimed was not payable due to the Ritz’s own conduct. It based its contention on the decision in Academy of Learning (Pty) Ltd v Hancock and Others 2001 (1) SA 941 (C) in which the court discussed the defence raised in that case, regarding the extension to breach of contract of the principle that a wrongdoer may not be allowed to profit from his own wrong. The court in the Academy of Learning case rejected the wide application of the principle and advanced three specific categories in which the approach might find application. Those are –

  • where the wrongful conduct of the creditor made performance by the debtor impossible;
  • where the creditor’s wrongful conduct can be ascribed to a deliberate intention on his part to prevent performance by the debtor; and
  • where the creditor’s conduct complained of by the debtor in itself constituted a breach of an express or implied term of the agreement.

The latter category (point 3) was relied on by the management company in the Ritz Plaza case. The court pointed to the provision in the term-sheet, which precluded the incorporation into the agreement of any tacit term. The management company’s reliance on the Academy of Learning case, therefore, fell at the first hurdle.

In any event, point 3 referred to in the Academy of Learning case required that the wrongful conduct complained of on the part of the Ritz had to be in breach of an express or implied (or tacit) term of the lease agreement itself.

The court concluded that no tacit term had been proved, and held that the management company was in default of its obligations to pay the rental due in terms of the lease and the Ritz was entitled to cancel the contract.

It was ordered that the management company vacate the premises, failing which the Sheriff of the court was authorised to eject it.

Construction law

Payment certificate creates a separate obligation: The crisp facts in Aveng Grinaker v MEC Department of Human Settlements [2018] 3 All SA 466 (ECLD) were as follows: The present claim arose pursuant to a construction services bid awarded to Aveng (the plaintiff) by the Department of Human Settlements (the defendant) for the rectification of defectively built homes in the Mount Ayliff Municipal area. Mount Ayliff is a small town in the eastern part of the Eastern Cape province of South Africa, near that province’s border with KwaZulu-Natal.

The plaintiff brought its claim against the defendant for the payment of a sum of R 3 038 972 reflected in an ‘interim payment certificate’ issued and authorised by a principal agent, Dennis Taylor, a quantity surveyor, for payment by the defendant.

One of the defences relied on by the defendant related to the authority to sign off payments. The defendant maintained that such authority lay solely with the head of department.

Significantly, so Mageza AJ reasoned, the defendant did not deny in its plea that the payment certificate was issued by the principal agent as the department’s representative and authorised agent. The defendant warranted at the outset that the principal agent had the authority to bind the defendant and it, therefore, must have anticipated that the plaintiff would act on that representation.

The court confirmed the role and stature of the principle agent in a building contract. In this regard it held that the principal agent represents the employer and is not a party to the Joint Building Contracts Committee (JBCC) agreement and is a key independent professional role player. Its role contributes to the strength or weakness of the entire building project and it manages the services of all consultants during project implementation ensuring the best interests also of the employer. The principal agent issues instructions on behalf of the employer (presumably in good faith) and binds the employer.

The authority of the principal agent to authorise payment and bind his principal was not in dispute. The construction agreement provided that the defendant as employer could not dispute or refuse to honour the obligation to pay an interim certificate issued by its principal agent. That obligation resulting from a payment certificate created a separate obligation and cause of action, independent of the contract.

The plaintiff’s claim was accordingly upheld, and the defendant was ordered to make payment as claimed.

The defendant was ordered to pay costs on a party and party scale.

Conveyancing

Conveyancing by entity other than conveyancers: In Proxi Smart Services (Pty) Ltd v Law Society of South Africa and Others [2018] 3 All SA 567 (GP) the court considered the scope of the statutorily prescribed services reserved for conveyancers.

Proxi Smart Services (Proxi), was a company, intended to set up a computerised system whereby some of the functions currently carried out by conveyancers in the property transfer process would be carried out by Proxi. Only certain services, as prescribed by statute, would be carried out by conveyancers.

The business model of Proxi was based on a list of tasks reserved for conveyancers to be carried out by conveyancers contracted to Proxi, and a list of non-reserved work to be carried out by Proxi. The fees to be charged would be capped to ensure that the combined fee of Proxi and the conveyancer did not exceed the maximum prescribed fees. Proxi would also hold sufficient professional indemnity insurance to protect consumers.

Proxi applied to the High Court for an order that would declare this business model legal in terms of the relevant legislation, comprising of the Attorneys Act 53 of 1979, the Legal Practice Act 28 of 2014 (the LPA) and the Deeds Registries Act 47 of 1937 and regulations. The application was opposed by the Law Society of South Africa and various other professional bodies.

Matojane J pointed out that s 20 of the Deeds Registries Act provides that deeds of transfer must be prepared in accordance with prescribed forms and must be executed by the owner of the land or by a conveyancer with the necessary power of attorney from the owner. In terms of s 15A of the Deeds Registries Act a conveyancer accepts responsibility for the accuracy of all the facts mentioned in the registration documentation. Similarly, s 83(8)(a)(i) of the Attorneys Act reserves certain work for attorneys only. No other person may prepare such documents for gain.

Under the proposed model, Proxi would manage all communications between the purchaser, seller, estate agents and bond attorneys, including the payment of deposits and requesting financial guarantees from the bond attorneys.

The indemnity insurance by Proxi is entirely unregulated and depends solely on the discretion of Proxi. However, there is no statutory protection under the Fidelity Fund set up under the Attorneys Act to protect consumers against the abuse of trust funds.

Section 33(3) of the LPA provides that no-one may render a service for a fee reserved for an advocate, attorney, conveyancer or notary. The public derives comfort from the fact that property transactions involving large sums of money are controlled by professionals regulated by statute and professional societies.

Proxi’s business model will lead to a loss of control of the process by the regulated professionals and strip the process from the statutory controls and assurances. The business model will contravene s 83(8)(a)(i) of the Attorneys Act and para 49.17 of the consolidated Rules for the Attorneys’ Profession and would, therefore, be unlawful.

This distinction between reserved and non-reserved work was created by Proxi and is not to be found in any of the relevant statutory instruments.

Finally, the application was also rejected because the relief sought was vague, unenforceable and would not bring finality to what conduct the court sanctioned.

The application was dismissed with costs.

  • An application for leave to appeal is being made.

Credit law

Rearrangement of consumer’s repayment obligations: The facts in Pettenburger-Perwald v Vosloo and Others 2018 (5) SA 206 (WCC) were as follows: The consumer brought an application to a debt counsellor for debt review in terms of subs 86(1), 86(7)(c) and 86(8)(b), read together with ss 85 and 87 of the National Credit Act 34 of 2005 (the NCA) and r 55 of the Rules Regulating the Conduct of Proceedings of Magistrates’ Courts of South Africa. The debt counsellor (and appellant in the present proceedings: Pettenburger-Perwald) determined in terms of s 86(6) of the NCA that the consumer was over-indebted and proceeded with an application to place the consumer under debt review.

A payment restructuring proposal was sent by the debt counsellor to all the credit providers cited in the present case as the respondents. Some of them accepted the proposed monthly payments. The acceptance letters set out the outstanding amounts, the proposed instalments, the interest rates, monthly fees and the concession terms. The consent letters by the creditors did not only set out the proposed reduced instalment and adjusted concession term, but also amended the interest rate to a lower rate, in many cases as low as a 0% interest rate. The matter served before the Cape Town Magistrates’ Court, but the court declined to grant the order in the light of the fact that in various earlier decisions it was held that the magistrates’ court, being a creature of statute, is not empowered to alter the contractual interest rate, as that effectively changes the terms of the original agreement.

The crucial issue in the present appeal was whether the magistrates’ court has the power to make an order rearranging an over-indebted consumer’s repayment obligations based on the parties’ agreed amended interest rate.

Ndita J pointed out there was earlier case law to the effect that a magistrates’ court, when rearranging an over-indebted consumer’s credit obligations under a credit agreement, was not permitted to amend the interest rate set out in the credit agreement, as there was nothing in the NCA, which empowered it to do so. In this regard the court referred to s 87(1) read with
s 86(7)(c)(ii) of the NCA.

However, so the court reasoned, a purposive interpretation of the NCA, which encouraged the consensual resolution of disputes, led it to the conclusion that, in circumstances where the debt counsellor and credit provider had agreed to an amended interest rate, a magistrates’ court had the jurisdiction to make an order rearranging the consumer’s obligations based on an amended interest rate.

The appeal was upheld. No order as to costs was made.

Customary law

Effect of legislation on customary law: In Gongqose and Others v Minister of Agriculture and Others 2018 (5) SA 104 (SCA); [2018] 3 All SA 307 (SCA) the appellants were arrested and charged in September 2010 with attempting to fish in a marine protected area without a permit in contravention of s 43(2)(a) of the Marine Living Resources Act 18 of 1998 (MLRA). Their defence was that they have a customary right to fish and did not act unlawfully.

The appellants were part of the Dwesa-Cwebe communities that have been fishing in the area since the 18th century. It is common cause that the Dwesa-Cwebe communities were dispossessed of their land and that they relied on marine resources for their livelihood. They were denied access to marine resources through various Acts, of which the MLRA was the most recent, until its amendment in 2014.

The appellants were convicted for contravening s 43(2)(a) of the MLRA in the magistrate’s court, although the court acknowledged that they were exercising a customary right to fish. The appellants were granted leave to appeal against the conviction.

The High Court upheld the appellants’ convictions. It held that the legislature was aware of people exercising their rights in respect of marine resources. The appellants’ conduct was unlawful for the reason that they had not applied for an exemption under the MLRA to be granted a permit to fish in the protected area.

The appellants applied for special leave to appeal in terms of s 17(2)(d) of the Superior Courts Act 10 of 2013.

On appeal Schippers AJA pointed out that the application for leave to appeal raised four issues, namely –

  • the status of customary law;
  • whether the appellants proved that they were exercising customary law rights of access to and use of marine resources;
  • whether the MLRA exting­uished such customary law rights; and
  • whether the appellants’ conduct was lawful.

The SCA held that the Constitution recognises customary law as an independent entity of law. The appellants clearly have a customary right of access to and use of the marine resources in the area. Only the Constitution and legislation specifically dealing with customary law can expressly or by implication amend existing customary law rights. The MLRA does not specifically deal with customary law and does not repeal the existing customary law rights of access to and use of marine resources by the appellants. The appellants acted lawfully under their customary law rights and their rights had not been repealed by legislation specifically dealing with customary law.

The High Court’s contention that the appellants acted unlawfully for not applying for an exemption under the MLRA was dismissed.

Special leave to appeal was accordingly granted and the appellants’ convictions and sentences were set aside.

Family law

Whether a ‘known sperm donor agreement’ is valid in South Africa: The facts in BR v LS 2018 (5) SA 308 (KZD) concerned a boy, ES, who was born on 12 March 2015, after having been naturally conceived by the applicant (the father) and the respondent (the mother). The couple, never married, had in June 2014 revived an earlier relationship after the father agreed to the mother’s request to impregnate her via natural insemination. By July 2014 the mother was pregnant. The father had, inter alia, accompanied her on visits to obstetricians, attended pre-natal classes with her, and had paid certain expenses in respect of the pregnancy. But when the father told her he wanted to take on parental responsibilities, she objected. The relationship remained under strain, and in September 2015 the mother, having obtained legal advice, sent the father an e-mail in which she raised the notion of a ‘known sperm donor agreement’, pointing out that it was more ‘appropriate’ than the parenting plan suggested by the father. The father did not sign the agreement and in November 2015 he applied for an order granting him scheduled contact and assigning him the full rights and obligations of unmarried fathers set out in s 21(1)(b) of the Children’s Act 38 of 2005.

The court granted an interim order and referred the following questions for oral evidence:

  • whether the father met the requirements of s 21(1)(b);
  • whether the parties had concluded a ‘known sperm donor agreement’; and
  • whether it was in the best interest of ES for the father to be assigned rights of contact.

While the father stated that the agreement between him and the mother was that he could choose his level of involvement in ES’s life, the mother argued that the alleged ‘known sperm donor agreement’ meant that the usual consequences of biological fatherhood in s 21(1)(b) did not apply. She acknowledged that such agreements were not recognised by the Act and would be novel in South African law, but contended that they were increasingly common and that their recognition would be consistent with mothers’ rights to dignity and sexual preference.

Koen J held that the ‘known sperm donor agreement’ contended for by the mother was an innominate contract, the terms of which she had to establish on a preponderance of probabilities. The recognition of such agreements, which were not necessarily invalid, was a novel issue, which required the benefit of detailed argument. Any such inquiry would have to consider the best interest of the child and whether recognition might be contra bonos mores.

The court assumed – without deciding – that a ‘known sperm donor agreement’ could be validly concluded in South Africa to vary the rights and responsibilities the Act awarded to biological fathers. In the present case, however, the father had satisfied the level of commitment required by the Act to confer on him the rights and responsibilities mentioned in s 21. The mother’s conduct was consistent with the father’s view that he could elect to involve himself in ES’s life, and the fact that a parenting plan was even considered also pointed in this direction. Since the mother failed to prove, on a balance, the agreement alleged by her or to contradict the father’s more probable version that there had been no variation of the normal consequences of biological fatherhood, the father was entitled to an order declaring that he had acquired full parental rights and responsibilities under s 21.

No costs order was made.

Procedural law

Separation of issues: The crisp issue in FirstRand Bank v Clear Creek Trading 12 (Pty) Ltd and Another 2018 (5) SA 300 (SCA) was whether the provisions of the National Credit Act 34 of 2005 (the NCA) applied to an agreement. This arose as follows: The appellant (FNB), loaned money to the first respondent (Clear Creek), against the security of a mortgage bond. The second respondent (the surety) stood surety for the due performance of the agreement by Clear Creek. FNB sued Clear Creek for breach of the agreement and sought to foreclose on the mortgage bond. It also sued the security under a deed of suretyship. The only defence raised in the plea was that the agreement was unlawful for two reasons, namely –

  • certain provisions in the agreement were said to have had the general purpose and effect of deceiving Clear Creek and so contravened s 90(2)(a)(ii) of the NCA; and
  • it was claimed that FNB had failed to comply with subs 81(2) and (3) of the NCA.

The latter subsections required FNB to properly assess Clear Creek’s general understanding and appreciation of the risks and costs of the proposed credit, and of its rights and obligations under the agreement. The nett effect of the plea was that, because the agreement was unlawful for one or both of the above reasons, Clear Creek was relieved of any obligation to perform. The NCA would ordinarily not apply to the agreement. This is made clear in s 4(1) of the NCA.

At the commencement of the trial in the court a quo, the parties agreed to deal with the issue of whether the NCA was applicable to their credit agreement as a separate issue in terms of r 33(4) of the Uniform Rules of Court.

After the court a quo dealt with the issue, an order was granted to the effect that the Act did apply.

On appeal, Gorven AJA held that r 33(4) refers to a ‘question of fact or a question of law’ in a pending action; and that this means an issue arising on the pleadings. Apart from being a requirement in the rule, the fashioning of an order sharpened the focus of the inquiry as to whether the issue specified could conveniently be decided separately, and also assisted in defining the precise ambit of the inquiry to be undertaken.

While it would not always have this result, the procedural failures of the court a quo in applying r 33(4) combined to render its approach incorrect in the circumstances of this case. The formulation of the issue as to whether the NCA applied to the agreement, and the simple order that it did, led to anomalies such as passing over sections excluding its application to juristic persons. This gave no clarity on the question whether Clear Creek was entitled to rely on the defence that the agreement constituted reckless credit as contemplated in s 81 of the NCA. Therefore, the issue could not have been properly decided on the basis on which it was dealt with in the court a quo.

The appeal was upheld with costs.

Road Accident Fund

Relevance of pre-accident voluntary contributions to retirement fund: The appellant (Bouttell) in Bouttell v Road Accident Fund 2018 (5) SA 99 (SCA) was a successful electrical engineer by profession and owned two businesses. He dictated the manner and form of the monthly salary which he drew. He earned dividends and a salary of R 4 million per year. However, he was not a beneficiary of pension fund contributions by his two businesses. Instead, he voluntarily paid 15% of his earnings into a retirement annuity fund. In 2012 he was injured in a motor-vehicle accident, as a result of the collision, he sustained bodily injuries.

In a claim for compensation by the Road Accident Fund (RAF), he argued that these voluntary contributions had to be taken into account for the purpose of calculating loss of earnings. Whether or not they were counted made a R 3 million difference to his claim. The matter went to the GP, which agreed with the RAF that voluntary contributions to a retirement annuity fund should not be taken into account for purposes of calculating loss of earnings.

On appeal, Hughes AJA agreed with the High Court that ‘provisions for the future’, such as an investment cannot be taken into account when calculating future loss of earnings for the purpose of provisions of the Road Accidents Fund Act 56 of 1996.

The court rejected Bouttell’s argument that this amounted to unfair discrimination, pointing out that an employee whose employer contributed to a pension fund as part of his remuneration and one whose employer did not do so, were treated equally in the sense that the court considered the employment contract as a whole in order to determine loss of future earnings.

In this regard the court reasoned that while the concepts of equity and discrimination are linked, discrimination concerns treating one person (or groups of persons) differently to another on the basis of inherent characteristics or attributes such as race, gender or the other grounds listed in s 9(3) of the Constitution. The differentiation in treatment on which Bouttell relied, is unrelated to any inherent characteristic or attribute having the potential to impair the dignity of a person.

The appeal was dismissed with costs.

Other cases

Apart from the cases and topics that were discussed or referred to above, the material under review also contained cases dealing with: Administrative law, business rescue, children, civil procedure, competition, constitutionality of legislation, credit law, criminal law, customary law, evidence, labour law, marriage, mining, pension funds, practice, prescription and shipping.

This article was first published in De Rebus in 2018 (Nov) DR 34.

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