The law reports – October 2019

October 1st, 2019
x
Bookmark

August [2019] 3 All South African Law Reports (pp 321 – 672); 2019 (8) Butterworths Constitutional Law Reports (pp 919 – 1047)

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

Abbreviations:

  • CC: Constitutional Court
  • GJ: Gauteng Local Division, Johannesburg
  • GP: Gauteng Division, Pretoria
  • LAC: Labour Appeal Court
  • LCC: Land Claims Court
  • SCA: Supreme Court of Appeal

Civil procedure

Settlement agreement an order of court: Weiner AJA at para 32 held: ‘Our courts have a duty to ensure that they do not grant orders that are contra bonos mores, or that amount to an abuse of process. Section 173 of the Constitution specifically empowers the Court to prevent any such abuses.’

In the case of PM v Road Accident Fund [2019] 3 All SA 409 (SCA), a mother sued the Road Accident Fund (RAF) on behalf of her minor child, averring that the child’s father had been killed in a collision and that the sole cause of the collision was the negligence of the insured driver, the minor child being deprived of maintenance and support. On the date of the trial, the court was requested to make a settlement agreement an order of court. The agreement provided that the RAF was liable to pay the appellant 100% of her proven or agreed damages.

Not satisfied that the agreement should be made an order of court, because there was no indication that the insured driver was negligent at all, the court declined to make the agreement an order of court. The trial proceeded and was postponed after one witness gave evidence.

The appellant then applied for the abandonment and annulment of the part-heard trial, and for a declaration that the lis between the parties had been fully and finally settled in terms of the settlement agreement. The dismissal of the application led to the present appeal.

The appellant’s case was that once they had concluded the settlement there was no longer a lis between the parties. The effect was to deprive the judge of jurisdiction to adjudicate that non-existent lis. Her jurisdiction extended only to making the order that the parties asked her to make. Accordingly, when she refused to make the settlement an order of court and required evidence to be led on the question whether the insured driver had been negligent to any degree, she overstepped the limits of her jurisdiction. The majority of the court on appeal disagreed. It was held that when the parties arrive at a settlement, and wish it to be made a consent order, they do not withdraw the case, but ask that it be resolved in a particular way. The jurisdiction of the court to resolve the pleaded issues does not terminate when the parties arrive at a settlement of those issues.

The court held that our courts have a duty to ensure that they do not grant orders that are contra bonos mores, or that amount to an abuse of process. A court cannot act as a mere rubber stamp of the parties. Public funds are being disbursed and the interests of the community as a whole demand that more scrutiny be involved in the disbursement of such funds. The appeal was dismissed.

Consumer law

Consumer information with credit bureau: In National Credit Regulator v Southern African Fraud Prevention Services NPC [2019] 3 All SA 378 (SCA), the National Credit Regulator (NCR), acting in terms of s 140(1) of the National Credit Act 34 of 2005 (the Act), lodged a complaint with the National Consumer Tribunal (the Tribunal) against the Southern African Fraud Prevention Services NPC (SAFPS).

SAFPS, a registered credit bureau, was accused of various contraventions of provisions of the Act and the regulations made thereunder. A settlement agreement disposed of all but one of the contraventions. The Tribunal was left to determine an alleged contravention of s 70(2)(f) of the Act, read with reg 17.

The issue was whether SAFPS was retaining information for longer than permitted by the Act. The NCR contended that the information in question was consumer credit information as defined in s 70(1) and that it could not be retained for longer than one year. SAFPS said that it was what it described as ‘fraud information’, which was not regulated and which it was entitled to keep for the period determined by it, namely ten years. The Tribunal upheld the contentions of the NCR that SAFPS had contravened s 70(2)(f). SAFPS successfully appealed to the High Court. The present further appeal related to the issue of the contravention and the imposition of an administrative fine.

The court, per Wallis and Schippers JJA, held that an obligation to expunge consumer credit information arises under s 70(2)(f). The obligation to expunge information arises in relation to any consumer credit information that is so prescribed. Any information not so prescribed is not subject to compulsory expungement. The issue was whether the fraud information was so prescribed. That required a determination of whether fraud information fell within the term ‘adverse classification of consumer behaviour’ – in which case it had to be expunged after one year. The court could not find that fraud information fell within the relevant category and it was, therefore, not subject to the time limit.

Confirming that there was no obligation on SAFPS to expunge the fraud information in its possession, the court dismissed the appeal.

Costs

Costs de bonis propriis: In Ebenhaeser Communal Property Association and Others v Minister of Department of Rural Development and Land Reform and Others [2019] 3 All SA 530 (LCC) the claim, by agreement, was to be heard over a three-week period. The LCC mero motu raised the question of costs de bonis propriis at a pre-trial conference and gave notice to both the plaintiff’s attorney and the State Attorney to show cause why costs de bonis propriis should not be awarded against them. The third to the 26th defendants (the landowner defendants) claimed such costs against plaintiff’s attorney on the basis that her non-compliance, inter alia, with the Practice Directions and her failure to get the files properly indexed, paginated and ready for trial, was the cause of the trial not proceeding.

It was held that the procedure in r 38 of the Land Claims Court Rules is to be followed once a claim for restitution of rights in land is referred to the court. The court detailed a litany of instances of non-compliance with its request for compliance with the rules and the Practice Directive by the plaintiff’s attorney. The files were found to be in a shambolic state and had not been indexed and paginated in accordance with the practice directions. Costs de bonis propriis are awarded against erring attorneys only in reasonably serious cases such as cases of dishonesty, wilfulness or negligence in a serious degree. The plaintiff’s attorney persistently failed to comply with Practice Directions 8 and 10, which required her to index and paginate the court files as prescribed, and file the requisite practice note from the time of her appointment, and that she continued not to comply thereafter, notwithstanding a direction from the court to make amends. A court direction is tantamount to a court order and failure to comply is not only disrespectful to the court and other parties but can be contemptuous. The cumulative effect of the plaintiff’s attorney failure to comply on multiple occasions, notwithstanding various admonishments by the court, was a flagrant disregard for the rules, practice directions and further directions of the court. That ultimately constituted the sole cause for the trial being adjourned. The conduct of the plaintiff’s attorney, substantially and materially, deviated from the standard expected of legal practitioners, was irresponsible, grossly negligent and displayed lack of care. The circumstances of this case warranted punitive costs to be paid de bonis propriis by plaintiff’s attorney on an attorney and client scale so that the landowner defendants would not be out of pocket.

Delict

Defamation: The facts in Manuel v Economic Freedom Fighters and Others (judgment and appeal) [2019] 3 All SA 584 (GJ) were as follows: In the wake of the removal of the former Commissioner of the Revenue Services (Sars), a new Commissioner had to be appointed. The President of South Africa appointed a panel, headed by Trevor Manuel to shortlist interviewees. Mr Manuel recused himself from the interview of one of the candidates (Mr Kieswetter) because he had previously worked at Sars, while Mr Manuel was the Minister of Finance. Mr Kieswetter was duly appointed by the President as the Commissioner of Sars, as being the most suitable and preferred candidate.

The Economic Freedom Fighters, a political party, published a tweet on its official Twitter account, criticising the interview process and referring to nepotism and corruption. Mr Manuel sought final interdictory relief against the respondents relating to the publication of the alleged defamatory statement. The court found that Mr Manuel had met the requirements for an interdict and issued a declaratory order in favour of Mr Manuel, ordered the respondents to apologise to him, and awarded R 500 000 damages payable by the respondents.

On application for leave to appeal, the court referred to s 17(1)(a) of the Superior Courts Act 10 of 2013, which provides that a judge may only grant leave to appeal if they are of the opinion that the appeal would have a reasonable prospect of success. The court rejected the applicants’ claim that the respondent was obliged to specify the defamatory portions of the statement. It was confirmed that the defamatory meaning was explicit, and that there was no need to have them pointed out. The applicants had accused the respondent of corruption and nepotism, and the likelihood of serious harm to reputation was plain.

All the grounds of appeal were dismissed as lacking in merit and the court confirmed the reasonableness of the quantum awarded as damages.

Environment

Waste disposal site: Navsa ADP at para 1 held: ‘This case demonstrates how, if litigating parties misconceive their rights and misidentify the main issue for adjudication, the decision by the court before which it is presented, inevitably, will be flawed.’

The appeal in Gauteng Department of Agriculture and Rural Development and Others v Interwaste (Pty) Ltd and Others [2019] 3 All SA 344 (SCA) concerned the validity of a compliance notice issued by an environmental management inspector, under s 31L of the National Environmental Management Act 107 of 1998. The High Court at the instance of Interwaste reviewed and set aside the decision of an environmental management inspector employed by the Gauteng Department of Agriculture and Rural Development (GDARD), to issue the compliance notice. That led to the present appeal.

Interwaste operated a waste disposal site in Gauteng, pursuant to a waste management licence issued in terms of the Act. The licence was to be renewed within a period of four years from date of issue, but was not. In the intervening period, the GDARD amended the licence, mainly increasing the total daily and annual tonnage of waste that the site was entitled to receive. Interwaste, in opposing the compliance notice, first of all denied that there was a four-year renewal period stipulated and submitted that even if it was stipulated, an amendment to the licence meant that the four-year renewal period ran from that date, and not from the date of first issue of the licence. In its view, the licence was still valid at the time of the issuing of the compliance notice.

The court held that in terms of the compliance notice showed confusion as to its purpose. The period for renewal had passed. Compliance could thus not be enforced. In the circumstances set out above, the compliance notice was superfluous. It served no practical purpose. Instead, the validity of the licence terminated because of the effluxion of time. The High Court ought not to have granted Interwaste any relief at all and ought to have concluded that there was no purpose or profit to be gained in dealing with the question of the propriety of the compliance notices. The appeal was upheld.

Family law

Rule 43 applications: In E v E and related matters [2019] 3 All SA 519 (GJ) three applications brought in terms of r 43(1) of the Uniform Rules of Court were referred for hearing before the Full Court as a result of two conflicting judgments in the division. The parties were found to have departed from delivering a statement in the nature of a declaration and a reply in the nature of plea, having regard to r 43(2) and (3). The referral to the Full Court was intended to address the question of whether the court has a discretion to permit the filing of applications that have departed from the strict provisions of r 43(2) and (3). If such discretion did exist, the question was whether the Practice Manual should direct that all r 43 applications conform to a specific form, particularly regarding length. Finally, if the court had a discretion, the factors necessary for the reasonable exercise of the discretion had to be identified. The applicants sought relief pendente lite for interim maintenance, custody and contribution to costs pending the finalisation of their divorce actions.

It was held that r 43 as it presently reads provides an interim remedy to assist an applicant to obtain –

  • relief speedily and expeditiously in respect of interim care, residency and contact with the child/children;
  • maintenance for a spouse and/or child/children;
  • enforcement of specified necessary payments; and
  • contribution towards legal costs of the divorce action.

The procedure envisaged in r 43 is not that of a normal application commenced by way of notice of motion. It is a succinct application, aimed at providing the applicant interim relief, speedily and expeditiously. In all three applications, one or two respondents applied for the dismissal of the application or for a punitive costs order on the basis of prolixity and failure to comply with the strict provisions of r 43(2) and (3). The question to be answered related to the interpretation of r 43, which would ensure a speedy and efficient resolution of the application, while at the same time protecting the rights of women and children vulnerable in r 43 applications. The court decided that the best solution was for the judge allocated to such a matter to issue a directive to the parties in terms of r 43(5) calling on the parties to file a supplementary affidavit making a full and frank disclosure of their financial and other relevant circumstances to the court and to the other party. The affidavits in question must be accompanied by a financial disclosure form. Finally, affidavits filed in terms of r 43(2) and (3) shall only contain material or averments relevant to the issues for consideration.

Immigration

Visitor’s visa status: The case of Nandutu and Others v Minister of Home Affairs and Others 2019 (8) BCLR 938 (CC) challenged the constitutionality of reg 9(9)(a) of the Immigration Regulations made in terms of the Immigration Act 13 of 2002 (the Act). The applicants applied for a change in status attached to a visitor’s visa. Section 10(6)(b) of the Act provides that such application shall not be made by the visa holder while in the Republic of South Africa (RSA), except in prescribed exceptional circumstances. The applicants challenged the regulation on the basis that the rights accorded by means of the ‘exceptional circumstances’ contemplated in s 10(6)(b) were not extended to a foreign spouse or child of a citizen or permanent resident. Applicants applied directly to the CC after the High Court dismissed their application.

The majority (Mhlantla J with Cameron, Jafta, Khampepe, Madlanga, Theron JJ and Nicholls AJ concurring) held that the impugned provision was unconstitutional. The CC observed that the right to dignity is extended to include the right to family life and referred to Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs 2000 (8) BCLR 837 (CC). The court held that the government had not shown why it was necessary that spouses and children of South African citizens or permanent residents must leave the RSA to apply for a change of visitor’s visa status. An order was made declaring reg 9(9)(a) of the Immigration Regulations to be inconsistent with the Constitution and, therefore, invalid to the extent that the rights accorded by means of the exceptional circumstances contemplated in s 10(6)(b) of the Act are not extended to the foreign spouse or child of a South African citizen or permanent resident. The declaration of invalidity was suspended for 24 months and during this period, the following words are to be read into reg 9(9)(a) of the Immigration Regulations: ‘(iii) is the spouse or child of a South African citizen or permanent resident’.

Legal practice

Removal from the roll: In General Council of the Bar of South Africa v Jiba and Others 2019 (8) BCLR 919 (CC) the case concerned a High Court application by the General Council of the Bar of South Africa (the GCB) for the removal of Ms Jiba, Mr Mrwebi and Mr Mzinyathi, who were senior officials in the National Prosecuting Authority, from the roll of advocates due to misconduct.

The High Court found that Ms Jiba and Mr Mrwebi were not fit and proper persons to continue to practice and ordered that their names be struck from the roll of advocates. Costs were awarded in favour of Mr Mzinyathi against the GCB. Ms Jiba and Mr Mrwebi appealed to the SCA. By a majority (Shongwe ADP with Seriti and Mocumie JJA concurring) the SCA upheld the appeal of first and second respondents and dismissed the GCB’s cross-appeal. The minority (Leach and Van der Merwe JJA) would have dismissed the appeals of Ms Jiba and Mr Mrwebi and upheld the cross-appeal of the GCB in relation to the costs order granted to Mr Mzinyathi.

The GCB approached the CC. The CC in a unanimous judgment, per Jafta J, observed that jurisdiction is determined on the basis of the pleadings and not the substantive merits. It must be clear from the claim advanced that a constitutional issue or an arguable point of law of general public importance is raised. The GCB sought to have the respondents’ names removed from the roll of advocates on the grounds that they were no longer fit and proper persons to continue to practise as advocates. Reliance was placed on the making of false statements under oath, the suppressing of information to mislead the court and the abuse of powers of the office they held. This did not raise any constitutional issue, nor was there an arguable point of law, so the appeal could not be entertained.

Regarding the dismissal by the SCA of GCB’s cross-appeal in respect of the costs order, however, the CC had jurisdiction. An application by the GCB aimed at removing an advocate from the roll of advocates for misconduct is not in the nature of ordinary civil proceedings. In such proceedings the GCB is not in the position of an ordinary litigant; it is performing a public duty aimed at enabling the court to exercise its disciplinary powers. An order of costs against such a body should not be made except in circumstances where the body has conducted itself in a manner unacceptable to the court before which proceedings were brought.

Property

Labour tenants: In the case of Kubheka v Adendorf and Others [2019] 3 All SA 566 (LCC), the plaintiff, a pensioner residing on a farm owned by the first defendant, sought a declaratory order to the effect that he was a labour tenant, as well as an award of land in terms of s 16 of the Land Reform (Labour Tenants) Act 3 of 1996 (the Act). Section 1 of the Act defines a labour tenant as –

  • a person who is residing or has the right to reside on a farm;
  • who has or has had the right to use cropping or grazing land on the farm in exchange for providing labour to the owner or lessee; and
  • whose parent or grandparent resided or resides on a farm and had the use of cropping or grazing land on such farm or another farm of the owner in exchange for providing labour to the owner or lessee.

The plaintiff bore the onus of proving that he was a labour tenant. In terms of s 2(5) of the Act, once a plaintiff proves that he complies with the definition of a labour tenant, then the onus shifts to the defendant to prove that the plaintiff is a farmworker.

The plaintiff had resided on the farm since 1975 with cropping and grazing rights, providing labour to successive owners of the farm. However, it was argued that from 1986 to 1995, the plaintiff worked for a person who was neither the owner nor the lessee of the farm, he did not comply with para (b) of the definition during that period and was, therefore, not a labour tenant. The main problem with that argument was that it failed to adopt a holistic and continuous approach to the definition of labour tenant. The plaintiff provided labour to the other owners and lessees of the farm for a cumulative period of 18 years. On a holistic and continuous interpretation of the labour tenant definition, that constituted compliance with para (b). The evidence further established that the plaintiff complied with the third part of the definition as his parents lived on the farm, had cropping and grazing rights on the farm and provided labour to the owner. Furthermore, it was not proven that the plaintiff was a farm worker.

In terms of s 16 of the Act, a labour tenant may apply before the cut-off date for the award of land, which he was entitled to occupy in terms of s 3. The court was satisfied that the plaintiff had made a valid application for the award of land and was thus entitled to the award of the land he was using and occupying as at 2 June 1995.

Other cases

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

  • cancellation of agreement due to breach;
  • claim for damages – unlawful arrest and detention;
  • division of joint estate;
  • inter vivos trust;
  • litigation test in shipping;
  • obligations of political parties under the Electoral Code of Conduct;
  • r 43 order – application for rescission;
  • refurbishment of terminal at port;
  • Road Accident Fund passenger claim;
  • s 13(1)(g) of the Sectional Titles Schemes Management Act;
  • security arrest made in terms of s 5(3) of the Admiralty Jurisdiction Regulation Act;
  • summary judgment existence of bona fide defence;
  • taxation of decision by taxing mistress; and
  • termination of lease agreement.

To view more cases reported in LexisNexis law reports, please visit www.lexisnexis.co.za and for assistance or feedback on the law reports e-mail LexisNexis at: caselaw@lexisnexis.co.za

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

This article was first published in De Rebus in 2019 (October) DR 18.