The law reports – October 2017

October 1st, 2017
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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.

August 2017 (4) South African Law Reports (pp 341 – 677); [2016] 4 All South African Law Reports November (pp 299 – 664); July [2017] 3 All South African Law Reports (pp 1 – 364); 2017 (8) Butterworths Constitutional Law Reports – August (pp 949 – 1087)

This column discusses judgments as and when they are published in the South African Law Reports, the All South African Law Reports and the South African Criminal Law Reports. Readers should note that some reported judgments may have been overruled or overturned on appeal or have an appeal pending against them: Readers should not rely on a judgment discussed here without checking on that possibility – Editor.

Abbreviations

CC: Constitutional Court

ECB: Eastern Cape Local Division, Bhisho

GJ: Gauteng Local Division, Johannesburg

GP: Gauteng Division, Pretoria

KZD: KwaZulu-Natal Local Division, Durban

KZP: KwaZulu-Natal Division, Pietermaritzburg

LCC: Land Claims Court

LT: Limpopo Local Division, Thohoyandou

SCA: Supreme Court of Appeal

WCC: Western Cape Division, Cape Town

Appeal

Purging irregular step of making application for execution of judgment before leave to appeal is sought: Section 18(1) of the Superior Courts Act 13 of 2013 (the Act) provides among others that ‘unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal’. In terms of subs (3): ‘A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders.’

The application of the above provisions was dealt with in Mogale City Municipality and Others v Fidelity Security Services 2017 (4) SA 516 (GJ) where in one of the many judgments between the first appellant Mogale City Municipality (Krugersdorp) and the respondent Fidelity Security, the court a quo, per Du Toit AJ, granted an order in favour of the respondent, which provided that pending the lawful conclusion of a new contract pursuant a competitive bidding process, the first appellant was directed to reinstate the previous month-to-month contract with the respondent on the same terms. Acting through its attorneys, apparently on the instigation of the second appellant (who was the alleged troublemaker), the first appellant informed the respondent that it was not going to obey the court order and further that it was going to seek leave to appeal. Before the application for leave to appeal was made the respondent applied for execution of the court order in terms of s 18(3) pending application for leave to appeal and if granted, the appeal itself. The execution order was granted by Kathree-Setiloane J. In due course the application for leave to appeal against the order of Du Toit AJ was duly made. The instant case was an appeal in terms of s 18(4) against the execution order granted by Kathree-Setiloane J.  The appeal was dismissed with costs.

Sutherland J (Windell and Modiba JJ concurring) held that in the instant case the application for leave to appeal was lodged before the execution hearing. At the time of the execution hearing there had indeed been both an application for leave to appeal and an application for execution of the order had also been lodged. All that was necessary in order to entertain the execution application was present, albeit that the application to execute was the earlier event of the two.

When the respondent lodged an application to execute before an application for leave to appeal had been lodged, it took an irregular step. What the first appellant could have done was to invoke r 30 of the Uniform Rules of Court in terms of which it could have applied to have the irregular step set aside. However, it did not. Instead it embarked on two parallel courses of action by responding with an answering affidavit, which addressed the premature lodgement of the execution application and the merits thereof. Also, it lodged the application for leave to appeal. By doing so the first appellant took ‘further steps’ as contemplated by r 30(2)(a), which had the effect of advancing the proceedings one step nearer completion. By taking such further steps the first appellant, in effect, forfeited a right to complain about the premature lodging of the application to execute. The non-compliance with r 18, which the respondent committed, was in effect purged. The irregularity was wholly of form and not of substance and once the application for leave to appeal was lodged, the irregularity was no longer susceptible to complaint. If an application for leave to appeal had not been lodged, the issue of nullity of the execution application would have warranted examination but that was not the case in the instant matter.

The court further held that independently of r 30, dismissal of the application to execute would have been obviously wasteful and the delay in the respondent coming to court again later on fresh identical papers so inimical to the aims of s 18 that a court exercising its inherent power to regulate its process effectively ought to have allowed the execution application to proceed and mero motu condoned the irregularity.

NB ‘Exceptional circumstances’ were found to exist in Helen Suzman Foundation and Another v Minister of Police and Others [2017] 3 All SA 253 (GP) to justify a judgment to remain effective notwithstanding the possibility of petitioning the SCA for leave to appeal against it.

Civil procedure

Duty to provide reasons as well as all documents and records relating to executive decision: Rule 53(1)(b) of the Uniform Rules of Court provides among others that: ‘Save where any law otherwise provides, all proceedings to bring under review the decision or proceedings of any inferior court and of any tribunal, board or officer performing judicial, quasi-judicial or administrative functions, shall be by way of notice of motion directed and delivered by the party seeking to review such decision or proceedings …

(b) calling upon the magistrate, presiding officer, chairperson or officer, as the case may be, to despatch, within fifteen days after the receipt of the notice of motion, to the registrar the record of such proceedings sought to be corrected or set aside, together with such reasons as he or she is by law required or desires to give or make, and to notify the applicant that he or she has done so.’

It cannot be overemphasised that the rule deals with a review of the decision or proceedings of any inferior court and any tribunal, board or officer performing judicial, quasi-judicial or administrative functions. It does not include reviewing the decision of the President of the country performing executive functions. However, in Democratic Alliance v President of the Republic of SA; In re Democratic Alliance v President of the Republic of SA and Others [2017] 3 All SA 124 (GP) the applicant Democratic Alliance, a political party, sought to apply the rule to the President. That was after the President made a major reshuffle of the National Executive (Cabinet) in April. Among the Ministers and Deputy Ministers who were dismissed from Cabinet were the Minister and Deputy Minister of Finance. In the main application, which was brought on an urgent basis, the applicant sought an order reviewing and setting aside the decision of the President to dismiss the Minister and Deputy Minister of Finance. Acting in terms of the rule the applicant requested in the notice of motion that the President should provide reasons for the dismissal, as well as all documents and electronic records including correspondence, contracts, memoranda, advices, recommendations, evaluations and reports relating to the making of the challenged decisions. As the president failed to despatch same an interlocutory order was launched, again on an urgent basis, to compel him to do so. The president opposed both applications on the grounds that they were not urgent and also that the rule did not apply to executive decisions. The interlocutory application was granted with costs.

Vally J held that the executive power to appoint and dismiss Ministers and Deputy Ministers was wide-ranging but not as unfettered as its predecessor, the royal prerogative. The executive power conferred on the office of the president by s 91(1) of the Constitution was circumscribed by the bounds of rationality and subs 83(b) and (c) of the Constitution. The president’s executive decisions had to comply with the doctrine of legality by being rational. Should an executive decision not comply with the doctrine of legality, it would be unlawful.

Rule 53 was promulgated at a time when executive decisions were not subject to review. With the enactment of the Constitution and the development of the common law since then, executive decisions had become reviewable. Given that r 53 had not been amended to cater for review of executive decisions, it was necessary to subject it to a purposive interpretation. Relying on that interpretation there was no logical reason not to utilise the rule in an application to review and set aside an executive decision. The judicial exercise undertaken by the court in such review was no different from the one undertaken in review applications of an inferior court, a tribunal, a board or an officer performing judicial, quasi-judicial or administrative functions. Accordingly, the provisions of r 53 applied with the necessary adjustments to an application for the review and setting aside of an executive order or decision. For that reason the applicant was entitled to call the president to furnish the reasons for his decisions as well as the relevant part of the record that formed the basis on which the decisions were taken.

Education

Attachment of the primary dwelling of a parent of a learner at an independent school to recover tuition fees: Section 41(6) of the South African Schools Act 84 of 1996 (the Act) provides that a public school may not attach the dwelling in which a parent resides. The Act does not have a similar provision prohibiting an independent (private) school from attaching a parent’s residential dwelling. In St Charles College v Du Hecquet De Rauville and Others [2017] 3 All SA 358 (KZP) the applicant, St Charles College, was an independent school, which was granted summary judgment against the first and second respondent, H and G Du Rauville (the respondents), in an amount of some R 428 000. Thereafter, the applicant also obtained default judgment against the respondents in an amount of some R 198 000, bringing the total indebtedness to some R 627 000. Summary judgment was granted in respect of tuition fees and other charges that the respondents owed regarding their two sons who attended school at the applicant. As the respondents were unable to satisfy the judgment debt the applicant approached the court for an order declaring their residence executable so that it could be sold in execution of judgment. The property was registered in the name of the second respondent, the wife. The application was opposed on a number of grounds but the main one was that it was unconstitutional to subject the residence of parents with learners at an independent school to attachment while leaving out that of parents with learners at public schools. Accordingly, the respondents sought an order declaring that the residence of parents with learners at independent schools was equally protected by the section but did not seek an order declaring the section unconstitutional. The court granted an order declaring the residence executable with costs on an attorney and client scale, presumably because of the contract in terms of which the respondent’s children were admitted to the applicant school.

Jappie JP held that in deciding whether or not a court should declare the primary residence of a judgment debtor who is a natural person executable the court had to consider all circumstances relevant to the particular case. In the present case the judgment debt was substantial. Moreover, the respondents made an informed choice of enrolling their sons at an independent school knowing that they would incur the cost of tuition fees and did so voluntarily. They had a choice, if they so wished, to enrol their sons at a public school and thus avoid their current predicament. There was, therefore, no evidence before the court to persuade it to exercise its discretion if their favour to avoid the attachment and execution of the immovable property.

In seeking to execute judgment against the second respondent’s immovable property, the applicant did not actually or potentially fundamentally impair the dignity of the respondents. It was the respondents’ choice to send their sons to an independent school because they enjoyed a higher economic status. The exercise of a choice that was based on economic or financial considerations did not fundamentally impair the dignity of a parent who chose to enrol his child at an independent school. The differentiation between parents with learners at a public school and those at independent school did not constitute discrimination, let alone unfair discrimination, as contended by the respondents.

 

Joint liability of divorced or separated parents for fees at fee-paying public school: Section 40(1) of the South African Schools Act 84 of 1996 (the Act) provides among others that: A parent is liable to pay school fees at fee-paying public schools unless or to the extent that he or she has been exempted from payment. One of the requirements for exemption from payment of fees as contained in reg 6(2) is that the applicant must provide ‘combined annual gross income of parents’. In MS v Head of Department, Western Cape Education Department and Others 2017 (4) SA 465 (WCC); [2016] 4 All SA 578 (WCC) the applicant MS, a divorced mother of the learner at a fee-paying public school, was refused exemption by the school governing body (SGB) of the local school as her application was incomplete in that it did not include the financial position of her former husband that she had since divorced. He was very uncooperative and did not provide his financial position. The first respondent, the Head of the Department of Education in the Western Cape, rejected the applicant’s appeal against the decision of the SGB.

Contending that her liability to pay school fees was joint rather than joint and several, the applicant approached the court for an order reviewing and setting aside the first respondent’s decision regarding her appeal. In other words, her stance was that her application for exemption from payment of fees should be determined on the basis of her financial position alone concerning her share of liability for fees. That meant that for the balance the SGB would have to deal with her divorced husband separately.

Le Grange J granted with costs an order reviewing and setting aside the decision of the first respondent. The matter was remitted to the first respondent for determination of the exemption as the court itself was not a better place to do so. Moreover, doing so would encroach on the doctrine of separation of power between the judiciary and the executive.

It was held that on a proper construction of the provisions of s 40(1) of the Act, liability of a parent to pay school fees had to be regarded as joint and not joint and several. That was reference to the liability of the parent to the school in terms of s 40(1), not the liability for school fees between parents, which could be effected by private arrangement, as was the case in the present matter. Given that back in 2010 both parents undertook to remain involved in all aspects of the learner’s life, including her schooling and general welfare, the suggestion by the applicant that she was offended by the respondents to regard the divorced husband as part of her family and to insist that she requested financial information from him in order to complete the application forms for the school fees was unjustified. In fact she accepted and agreed that she was under a legal obligation to forward correspondence relating to the learner to the divorced husband. Moreover, both parents accepted to remain co-holders of parental responsibilities and rights in terms of the Children’s Act 38 of 2005. Therefore, the relief sought by the applicant for a declaration to the effect that by requesting her to also submit financial information of her divorced husband, the SGB infringed her right to human dignity by degrading and humiliating her, as alleged, was unsustainable and legally untenable.

Fundamental rights

Right of access to information held by a public body is not absolute: Section 45 of the Promotion of Access to Information Act 2 of 2000 (PAIA) provides that: ‘The information officer of a public body may refuse a request for access to a record of the body if –

(a) the request is manifestly frivolous or vexatious; or

(b) the work involved in processing the request would substantially and unreasonably divert the resources of the public body.’

In Belwana v Eastern Cape MEC for Education and Another; Langeveldt v Eastern Cape MEC for Education and Another [2017] 3 All SA 32 (ECB) two applications for access to information held by the Eastern Cape Department of Education were consolidated and heard together. The first application was that of Belwana who had applied for two positions as head of department at a local primary school in Port Elizabeth. She was not shortlisted. Initially she requested reasons for failure to shortlist her, as well as the criteria used for shortlisting. However, in court proceedings she sought disclosure of information on the interviews, which took place although she was not a party thereto.

Stretch J dismissed her application with costs, holding that her application was frivolous and vexatious. The information which the applicant sought did not relate to her as a requester. It related to meetings where she was not the subject of discussion. It related to opinions about and recommendations with respect to candidates who were shortlisted and those who were interviewed. The applicant was not one of them. There was no valid reason why the applicant would be entitled to information regarding a process that she was not a part of. Her case was not that she considered herself to be more suited for the position than any other applicant or that she considered herself to have been unfairly prejudiced by her early exclusion. She was but one of the many unsuccessful candidates.

However, the position of the second applicant, namely Langeveldt, stood on a different footing. In her case she was shortlisted, was invited to the interview, which she attended but the position was given to another candidate. For that reason she was entitled to the information she sought regarding among  others minutes of meetings of the school governing body, minutes of shortlistings, panellists’ preference lists, correspondence with other candidates for the position, memoranda and other documents. Nevertheless, because of the confidentiality clause on the basis of which panellists were appointed and which they signed, the applicant was not entitled to those aspects of her application, which sought the provision of evaluative material prepared by panellists for the purpose of determining the suitability, eligibility or qualifications of the other applicants for the post, including the identities of the persons who furnished and obtained such evaluative material, since it was protected by s 44(1) of PAIA. Because of limited success achieved by each side party in the second application, each party had to pay own costs.

Land reform

Appointment of special master to process claims of labour tenants: Section 16 of the Land Reform (Labour Tenants) Act 3 of 1996 (the Act) enables a labour tenant (farm worker) to apply for an award of a piece of the land, which he or she is entitled to occupy or use. To that end the Director-General of the Department of Rural Development and Land Reform (the department) is mandated by the Act to play a pivotal role in the processing of applications by labour tenants while the minister grants advances or subsidies for the acquisition of land by labour tenants. In Mwelase and Others v Director-General, Department of Rural Development and Land Reform and Others 2017 (4) SA 422 (LCC) the applicants were labour tenants who approached the LCC for appointment of a ‘special master’ to facilitate the process of awarding land to labour tenants countrywide. That was after the department conceded that it was not able to process the claims and finalise them. The position was that after 20 years of the Act coming into operation some 11 000 applications were still pending, many lodged claims had files that disappeared while the department was not able to collate information, provide statistics and report on progress made. It was estimated that it would take another 40 years to finalise the outstanding 11 000 applications.

Ncube AJ granted with costs an order authorising the appointment of a special master and gave parties the opportunity to name preferred candidates for the job. Once appointed the special master was required to come up with an implementation plan to ensure that the applications of labour tenants were processed and finalised. To avoid confusion with other masters, the special master was designated ‘Special Master of Labour Tenants’.

The court held that the size and complexity of the task alone justified the appointment of a special master to, inter alia, assist the court to meaningfully monitor implementation of the Act. The department acknowledged the complexity and enormity of the task and demonstrated that it was unable to process the applications with the haste and scale that was required. Frequent returns by the parties to the LCC also demonstrated that the court, the department and applicants required help in implementing the Act.

A special master was an independent person who was appointed by and reported to the court. His or her duty was to assist the court and in the instant case, the duty was to assist in the manner determined by the court. He or she was not an advocate for the claimants or the government, but was an agent of the court and as such was given limited decision-making powers. His or her powers were always subject to oversight by the court as he or she provided additional resources to the court and could also engage more informally with the parties than a judge would. While the concept of a special master was a relatively novel one in South African law, the role and function thereof was no different from that of a court appointed amicus curiae or a family advocate whose powers were determined by the court to assist where specialist skills or capacity was needed.

 

Right of occupier of land to effect improvements without the consent of the owner or person in charge of the land: Section 6 of the Extension of Security of Tenure Act 62 of 1997 (ESTA) gives ‘occupiers’ of land, defined in s 1(1) as persons residing on land belonging to another person with consent or another right in law to do so, a number of rights. However, the right to make improvements to property without the consent of the owner or person in charge of the land is not one of them. In Daniels v Scribante and Another 2017 (4) SA 341 (CC); 2017 (8) BCLR 949 (CC) the applicant, Daniels, was a domestic worker on a farm where she, together with her three minor children, was given a cottage to live in. When the person in charge of the farm, the first respondent and farm manager Scribante, failed to maintain the cottage, the condition thereof deteriorated making it a problem in rainy conditions. As a result the applicant informed the first respondent by a letter that she intended to do certain essential improvements to the cottage to make it suitable for human habitation. The purpose of the letter was simply to inform the first respondent of the applicant’s intention and was not a request for permission. After commencement of the improvements the first respondent ordered them to cease, as a result of which litigation commenced. The Stellenbosch Magistrates’ Court held that ESTA did not give the applicant the right to make improvements to the property without the consent of the owner or person in charge. The LCC reached a similar decision and denied the applicant leave to appeal. Such leave was also denied by the SCA.

On appeal to the CC for leave to appeal was granted and the appeal upheld. The court granted an order directing the parties to enter into meaningful engagement regarding the ‘mechanics’ of effecting those improvements. If those negotiations were to fail, after thirty days either party could approach the Stellenbosch Magistrates’ Court for appropriate relief.

Reading the main judgment of the court Madlanga J held that s 6 had no provision that explicitly provided that an occupier had a right to make improvements meant to bring his or her dwelling to a standard suitable for human habitation. However, that was not the end of the matter. Whether that right existed depended on what an interpretative exercise yielded. Section 5 of ESTA decreed that occupiers enjoyed certain fundamental rights, including the right to human dignity. The occupier’s right to reside on another person’s property had to be consonant with the fundamental rights contained in s 5 and in particular, the right to human dignity. Occupation was not simply about a roof over the occupier’s head. It was about occupation that was conducive to human dignity and the other fundamental rights itemised in s 5. That much was plain from a reading of s 6 together with s 5. Like ‘residence’, the notion ‘security of tenure’ meant that the dwelling had to be habitable. That in turn meant making whatever improvements, which were reasonably necessary to achieve that objective. Permitting an occupier living in circumstances of the instant case to make improvements to his or her dwelling would serve the twin purpose of bringing the dwelling to a standard that befitted human dignity and averting the indignity that the occupier could suffer as a result of possible departure from unacceptable living conditions.

An owner or a person in charge’s consent was not a prerequisite when the occupier wanted to bring the dwelling to a standard that conformed to conditions of human dignity. Although consent was not a requirement, meaningful engagement of an owner or person in charge by an occupier was still necessary. Therefore, it was necessary that an occupier should approach the owner or person in charge to raise the question of the proposed improvements. However, the need for meaningful engagement did not detract from the conclusion that the existence of the occupier’s right to make improvements was not dependent on the owner or person in charge’s consent.

Medicine

Medical malpractice: Legal duty to exercise care irrespective of doctor/patient relationship: In TS and Another v Life Healthcare Group (Pty) Ltd and Another 2017 (4) SA 580 (KZP) the plaintiffs, Mrs S and her husband, sued the first respondent, Life Healthcare Group, together with the second respondent Dr Suliman jointly and severally. The plaintiffs sued for loss suffered by them in their personal capacity, as well as in a representative capacity for their minor child who suffered birth asphyxia (deprivation of oxygen) while the mother was in labour. As a result the child developed cerebral palsy. The first defendant was the owner of the hospital where Mrs S was admitted and gave birth, while Dr Suliman, a specialist obstetrician, acted as cover for Dr Maise who was not available to attend to Mrs S. Mrs S was admitted at 10:00 am, went through the challenges of labour through the day, during which the foetus showed signs of distress, that is to say needed delivery but that did not happen until 10:10 pm, which proved to have been too late. Right through the day Dr Suliman had telephonic conversations with the nursing staff who updated him on developments but significantly, did not verify the condition of the patient himself. His attitude was that he did not want to interfere with the relationship between Ms S and her doctor, namely Dr Maise and that he would only intervene in the event of emergency or imminent delivery. During the course of the day the nursing staff failed to pick up an important warning signal, namely, deceleration when the heart rate went down significantly. A further deceleration was picked up but its importance was not realised as they failed to report it to Dr Suliman. As it turned out the nurses did not even know of a necessary instrument such as a vacuum and when it was brought to them they did not know how to use it.

The claim was settled in the amount of R 20 million, after which the first defendant sought contribution from Dr Suliman in terms of the Apportionment of Damages Act 34 of 1956. Dr Suliman denied liability on the basis that as Mrs S was not his patient and, therefore, there being no doctor-patient relationship between them he did not owe her a duty of care (there was no wrongfulness). He also denied negligence, as well as causation on his part.

Ploos van Amstel J held that there was wrongfulness and negligence on the part of Dr Suliman but that the requirement of causation had not been satisfied and accordingly dismissed the claim with costs. The court held that it was generally accepted that a doctor who managed, treated or performed a procedure on a patient was under an obligation to do so with the degree of care and skill that could reasonably be expected of a doctor in his position. That was so whether or not there was a contract between them. The question was not whether there was a doctor-patient relationship between the two. Instead, it was whether public policy considerations required that the doctor owed the patient and her unborn baby a legal duty and whether he should be held liable to compensate them for the damage caused by negligence on his part.

The process of labour was inherently dangerous and called for expert monitoring and management of both mother and foetus. Considerations of reasonableness and public policy required that the doctor should be held liable for the consequences of any negligent omissions on his part. In other words, Dr Suliman had a legal duty to exercise the required degree of care and skill which arose at 10:30 am when he was informed of the patient’s admission and gave telephonic instructions to the nursing staff with regard to her care.

The court concluded that as expert testimony could not confirm when brain damage occurred or whether the baby would have been saved by a caesarean section at about 7:30 pm or 8:00 pm, causation had not been proved.

NB It will be noted that causation was the only issue that does not seem to have been dealt with correctly in this matter. Brain damage or caesarean section did not have to have taken place at 7:30 pm or 8:00 pm. The duty of Dr Suliman to intervene started at 10:30 am when he was notified of the patient’s admission. As the court indicated, from that time Dr Suliman, by his own admission, should have gone to the hospital to see the patient and satisfy himself that the information given to him by the nursing staff was correct and to verify for himself that everything was in order. However, he did not do so as Mrs S was not his patient but that of Dr Maise. As the court also pointed out the process of labour is inherently dangerous and calls for expert monitoring and management of both mother and foetus, something which Dr Suliman did not do. Therefore, it was obviously his fault that the child was not delivered earlier to avoid birth asphyxia.

Road Accident Fund claims

Serious injury assessment report (RAF 4 form) may be lodged after five years: In terms of s 23(1) of the Road Accident Fund Act 56 of 1996 (the Act) a claim for compensation for injuries arising from the driving of a motor vehicle (RAF 1 form) is required to be lodged with the Road Accident Fund (RAF) within three years from the date on which the cause of action arose, that is after the motor vehicle collision took place. If the claim is not lodged within that period, it prescribes. In terms of subs (2), once the claim is lodged a summons can be issued and served on the RAF at any time up to a period of five years from the date on which the cause of action arose, failing which the claim would prescribe. However, there is a complicating factor which started on 1 August 2008 when reg 3(3)(b)(i) of the Road Accident Fund Regulations dated 21 July 2008 came into operation. The regulation introduced the requirement of a ‘serious injury assessment report’, which is presented on RAF 4 form that has to be completed by a medical practitioner and confirm that the injuries suffered by the claimant are ‘serious’ to justify compensation for non-pecuniary loss, that being commonly referred to as ‘general damages’ and covers compensation for pain and suffering, as well as loss of amenities of life. The regulation provides that the ‘serious injury assessment report’ (RAF 4 form) may be submitted ‘separately’ after submission of the claim and at any time ‘before’ the expiry of the periods for the lodgement of the claim provided for in the Act and the regulations.

In Manukha v Road Accident Fund 2017 (4) SA 453 (SCA) the claim was lodged within the period of three years after the cause of action arose and the summons served within a period of five years as required by
s 23. However, the problem lay with the ‘serious injury assessment report’, which was submitted to the RAF after the expiration of a period of five years – the prescription period. The RAF raised a special plea to the claim, contending that the claim for general damages had prescribed for late submission of the RAF 4 form. The LT per Kganyago AJ upheld the special plea and dismissed the appellant’s claim for general damages. As the rest of the claim was not affected by the special plea, liability for same was subsequently conceded by the RAF.

The SCA upheld the appeal with costs. Petse JA (Leach, Tshiqi, Theron JJA and Molemela AJA concurring) held that the appellant had but one unitary claim for compensation against the RAF arising from the motor vehicle collision that took place. On a proper reading of the Act and the regulations, the RAF’s contentions could not be sustained. First, s 17 of the Act made reference to ‘a claim for compensation’ and not multiple claims. In addition, the section provided that the RAF was obliged to compensate a third party for non-pecuniary loss in respect of serious injury only, which was required to be assessed as provided for in the regulations. Second, s 24 in turn provided for the lodgement of a ‘claim’ and the requirements that the third party should meet in lodging ‘the claim’. Third, s 23(1) which pertinently dealt with prescription referred to a right to claim compensation under s 17 from the Fund. In particular, s  23(3) provided that no claim (in singular) lodged in terms of s 17(4) or s 24 would prescribe before the expiry of a period of five years from the date on which the cause of action arose. In the instant case the appellant instituted the action within that period. Fourth, reg 3(3)(b)(i) provided that the serious injury assessment report could be submitted separately from the submission of the claim itself. Implicit in this was that ‘the claim’ existed independently of the ‘assessment report’. Accordingly the claim, inclusive of the claim for non-pecuniary loss, could be submitted in terms of s 24 of the Act without the ‘serious injury assessment report’. There was nothing in the regulations dealing with prescription, an issue that was otherwise dealt with exclusively by the Act. At best for the RAF it was entitled to a stay of that part of the appellant’s claim relating to compensation for non-pecuniary loss until the process set out in reg 3 had been complied with by the appellant.

NB This is good news for claimants whose RAF 4 forms may from time to time be submitted late. However, the court did not deal at all with that part of the regulation requiring the RAF 4 form to be submitted ‘before’ the expiry of the period for the lodgement of the claim prescribed in the Act. The key word is ‘before’, there being no reference to ‘after’ in the regulation.

Spoliation

Mandament van spolie not available solely to protect right of access arising from contract if there is no loss of occupation or physical control: In Jigger Properties CC v Maynard NO and Others 2017 (4) SA 569 (KZP) the facts were that the Mycrochem Trust (the Trust), through its trustees, the first to third respondents, was owner of underground storage tanks installed in a sectional title scheme. To access the tanks the Trust used the ‘exclusive use area’ in respect of unit 16 in the scheme, which was owned by Marbla CC. Thereafter Marbla CC sold the unit to the appellant Jigger Properties. Subsequently, the appellant demanded payment of monthly rental from the Trust for using its ‘exclusive use area’ in order to access the tanks. As such payment was not forthcoming the appellant threatened to prevent the Trust’s right of access to the tanks by denying it passage over its ‘exclusive use area’. For that reason the Trust sought and was granted a spoliation order (mandament van spolie) by the KZD per Norman AJ. An appeal against the order was granted with costs by the full court.

Seegobin J (Jappie JP and Van Zyl J concurring) held that an essential requirement that should be satisfied for spoliatory relief was that there should have been spoliation. Put differently, there should have been a wrongful deprivation of another’s right of possession. It was well-established that mere personal rights were not protected by the mandament van spolie and that only rights to use or occupy property or incidents of occupation warranted protection by a spoliation order.

In the instant case the Trust’s right to access the tanks flowed from a contractual agreement, which the parties had with each other over the years. That was the right which the Trust was exercising and which the appellant threatened to stop. Therefore, the Trust’s claim in the court a quo amounted to nothing more than a claim for specific performance of its contractual rights. That could not be effected by way of mandament van spolie. All that the Trust enjoyed was a right of access as it neither occupied the premises nor exercised any physical control over it. Without an actual and wrongful deprivation of purported right of possession, the remedy of mandament van spolie was not justified. A mere threat of dispossession would find no ground for relief through a mandament van spolie but final interdict.

Unlawful occupation of land

Just and equitable date of eviction and significance of report by local authority: In the case of Jacobs v Communicare NPC and Another 2017 (4) SA 412 (WCC) the appellant Jacobs was a tenant of affordable, effectively subsidised, accommodation provided by the first respondent Communicare, a non-profit company whose aim was to provide affordable accommodation to residents of the Western Cape. When the appellant fell into arrears with rental payment he was given notice and eventually the lease was cancelled. Thereafter, the first respondent approached the magistrates’ court for an eviction order. Although eviction was sought in terms of s 4(6) and not s 4(7) of Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) in that the appellant’s unlawful occupation of the premises, after cancellation of the lease, was less than six months, the first respondent nevertheless joined the responsible local authority, the second respondent City of Cape Town (the City), as a party. However, it did not appear that the City had been served with the papers. Moreover, it did not participate in the magistrates’ court proceedings. As a result the magistrate did not have the benefit of a report prepared by the City as to available alternative accommodation or emergency accommodation. That notwithstanding, the eviction order was granted, hence the present appeal to the High Court.

Gamble J (Kose AJ concurring) dismissed the appeal, making no order as to costs. Although the matter could have been remitted to the magistrate for determination after consideration of a report by the City, given that the appellant had been treated sympathetically by everybody, namely the first respondent, the magistrate and the High Court itself when the appeal was reinstated after striking off for lack of expeditious prosecution and acceptance of heads of argument after late filing, the court was of the opinion that in view of the prejudice already suffered by the first respondent, the better approach was to bring the matter to finality by dismissing the appeal. The appellant was ordered to vacate the premises by a date agreed on by the parties as reasonable, failing which he would be evicted by the Sheriff a few days thereafter.

It was held that given that the appellant’s current accommodation was expressly provided by the first respondent for the benefit of economically disadvantaged citizens and further that the appellant fell into arrears because of short payment rather than non-payment of rental, it was reasonable to infer that the eviction of the appellant would lead to him being without a roof over his head, at least in the short term. In such circumstances, the case called out for a report from the local authority in relation to the availability of at least emergency accommodation.

The first respondent bore the onus of persuading the court that eviction from its premises on the terms sought was just and equitable in the circumstances. It should, therefore, have ensured that a report by the City was furnished to inform the court of the relevant circumstances relating to the appellant’s prospects of finding alternative accommodation and in the absence thereof, the availability of emergency accommodation. The steps which the first respondent was required to take were not onerous. As it had joined the City as a party in the proceedings all that it had to do was to ensure that the papers were served on it and, thereafter, request it to report to the court, something it did not do. The failure of the magistrate to consider a report by the City was a procedural defect in the proceedings in the court below, which had the effect that the magistrate did not properly discharge his constitutional obligations. The magistrate had a duty to respond proactively and call for a local authority report in a matter such as this.

Other cases

Apart from the cases and material dealt with or referred to above the material under review also contained cases dealing with: Application to lead further evidence in a criminal trial, assessment of evidence in a criminal trial, business rescue, defamatory statement on social media, delay in gazetting intergovernmental agreement, Fidelity Fund Certificate for an estate agent, interruption of prescription by joinder application, leave to appeal, meaning of administrative action, motherhood surrogacy agreement, no extension of asylum seeker permit after lapsing, period of prescription of a special notarial bond, provision of temporary emergency accommodation, provisional authorisation of temporary buildings, remedy against oppressive or unfairly prejudicial conduct of the affairs of a company, striking attorney from the roll, vindicatory (spoliatory) claim not sustainable where items not properly identified, widow’s physical appearance and nature not to be considered when looking at remarriage contingency in loss of support claims and zoning of property for amusement not encompassing use as place of gambling.

This article was first published in De Rebus in 2017 (Oct) DR 27.

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