The law reports

June 9th, 2015
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MatalaApril 2015 (2) South African Law Reports (pp 331 – 648); [2015] 1 All South African Law Reports March no 1 (pp 525 – 648) and no 2 (pp 649 – 718); 2014 (12) Butterworths Constitutional Law Reports – December (pp 1397 – 1513) and 2015 (1) Butterworths Constitutional Law Reports – January (pp 1 – 125)

David Matlala

BProc (University of the North) LLB (Wits) LLM (UCT) LLM (Harvard) HDip Tax Law (Wits)

is an adjunct professor of law at the University of Fort Hare.

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 KZD: KwaZulu-Natal Local Division, Durban

KZP: KwaZulu-Natal Division, Pietermaritzburg

SCA: Supreme Court of Appeal WCC: Western Cape Division, Cape Town

Administrative law

Closure of schools: In Minister of Education for the Western Cape and Another v Beauvallon Secondary School and Others [2015] 1 All SA 542 (SCA) the appellant, Minister of Education for the Western Cape, closed 20 schools in the province, mainly on the grounds of dwindling learner numbers, multiple-grade teaching in one classroom and poor results. Eighteen of the schools applied to the High Court for an order reviewing and setting aside the decision of the appellant. The majority of the WCC (Le Grange and Dolamo JJ) held that the decision of the appellant had to be set aside while the minority (Bozalek J) held to the contrary. An appeal to the SCA, save in respect of the first respondent school, Beauvallon Secondary School and its School Governing Body, the second respondent, was upheld with no order as to costs. Having been successful, the first and second respondents were granted their costs.

The main judgment was delivered by Leach JA (Brand, Maya JJA and Mathopo AJA concurring and Willis JA concurring in a separate judgment, which gave additional reasons) who held that there was no simple litmus test to determine whether a decision by a public official was administrative or executive in nature and in order to determine the issue a close analysis had to be undertaken on the nature of the public power or function in question in the light of the facts of each case. However, a decision heavily influenced by considerations of policy was a clear indication of it being executive rather than administrative in nature. Even in cases in which the Promotion of Administrative Justice Act 3 of 2000 (PAJA) was not of application, the principle of legality could be relied on to set aside an executive decision not made in accordance with the empowering statute. In the present case the statutory incorporation into s 33(1) of the South African Schools Act 84 of 1996 (the Schools Act) of a notice and comment procedure rendered superfluous any attempt to pigeon-hole the decision to close the schools as either executive or administrative in nature.

As long as the gist of his reasons was conveyed, the appellant was not obliged to spell out in great detail why the particular schools were being considered for closure. The appellant was not obliged to inform the schools of the adverse policy considerations and information concerning the government’s finances to facilitate their making proper representations. The fact that the appellant’s ultimate reasons for closure might not have tallied precisely with his initial reasons did not mean either that his final decision was vitiated by procedural unfairness or that additional reasons emerging during consultation process prescribed under the Schools Act could not be taken into account and relied on without giving further notice to the schools or the public.

Companies

Furnishing of copy of winding-up application to employees: Section 346(4A)(a) of the Companies Act 61 of 1973 (the Act) provides, among others, that when an application for winding-up of a company is presented to court, the applicant must furnish a copy of the application to a trade union representing employees, the employees themselves, the South African Revenue Service and the company itself, if it is not the applicant. In the case of the employees, a copy of the application is required to be affixed to any notice board to which the applicant and the employees have access inside the premises of the company or to the front gate of the premises, failing which to the front door of the premises from which the company conducted any business at the time of the application. Furthermore, in terms of s 346(4A)(b) the applicant is required, before or during the hearing, to file an affidavit by the person who furnished a copy of the application, explaining the manner in which the application was furnished to the employees.

The above provisions were dealt with in EB Steam Co (Pty) Ltd v Eskom Holdings Soc Ltd 2015 (2) SA 526 (SCA); [2014] 1 All SA 294 (SCA) where the GJ, per Tsoka J, had granted final winding-up orders, at the instance of the respondent, Eskom Holdings, against the first appellant, EB Steam and its 19 subsidiaries. The winding-up orders were resisted on the ground that there had not been compliance with s 346(4A)(a) of the Act in that the winding-up order applications had been served at the head office of the first appellant in Johannesburg, rather than affixed at the notice board in all locations all over the country, at which the various companies were conducting operations and had employees. The appeal was successful to the extent that final winding-up orders were set aside and replaced by provisional winding-up orders returnable eight weeks from the date of the order. The appellants were directed to furnish their employees with winding-up applications and, thereafter, file an affidavit explaining what had been done. The respondents’ costs were to be costs in the liquidation of the appellants, whereas if the provisional winding-up orders were to be discharged on the return date, the appellants were to be jointly and severally liable for the costs.

Wallis JA (Mthiyane AP, Cachalia, Pillay and Willis JJA concurring) held that while the obligation to furnish the winding-up application papers to the employees was peremptory, the modes of doing so, as indicated in the section, were directory with the result that alternative effective means could be adopted. In other words, the methods for furnishing employees with the application papers as set out in s 346(4A)(a) were no more than guides. If other more effective means, such as personal service on employees, were adopted and reflected in the affidavit filed in terms of s 346(4A)(b) then, provided that the court was satisfied that the method adopted was reasonably likely to make the application papers accessible to the employees, there would have been compliance with the section.

If the court was satisfied that the method adopted by the applicant to furnish the application papers to the employees was satisfactory and reasonably likely to make them accessible to the employees, there was no reason to refuse a winding-up order, whether provisional or final, merely because they were not furnished to the employees in one of the ways indicated in the section. Nor should the court refuse an order merely because it was not satisfied that the application papers had come to the attention of all employees. The section simply required that the application papers be made accessible to the employees who should be given adequate opportunity to respond, if they were so minded.

NB: The other case dealing with the section is Pilot Freight (Pty) Ltd v Von Landsberg Trading (Pty) Ltd 2015 (2) SA 550 (GP), which dealt with the person who should make the required affidavit and the contents thereof.

Contempt of court

Disobedience of court order: In Meadow Glen Home Owners Association and Others v Tshwane City Metropolitan Municipality and Another 2015 (2) SA 413 (SCA); [2015] 1 All SA 299 (SCA) the appellant home owners association, Meadow Glen, obtained several court orders in terms of which the respondent, Tshwane Municipality (Pretoria), was ordered to fence off an adjacent informal settlement, maintain the fence and provide security guards to control entry into and exit from the settlement. However, complying with the court orders proved elusive as residents of the settlement repeatedly cut holes through the fence and duplicated access cards, thus providing access to newcomers. Because of the respondent’s failure to comply with the court orders, the appellants approached the High Court for an order for contempt of court in terms of which one Mr F Fenyani, the respondent’s Director for Housing Resource Management, would be imprisoned for one month. The GP, per Kubushi J, dismissed the contempt of court application, hence an appeal to the SCA. The appeal was dismissed, each party being ordered to pay own costs.

Wallis JA and Schoeman AJA (Cachalia, Zondi JJA and Dambuza AJA concurring) held that if the respondent municipality experienced difficulty in complying with court orders, it should have returned to court to seek a relaxation of the terms of the orders. It was not appropriate for the municipality to wait until the appellants came to court complaining of non-compliance in contempt proceedings. The municipality should have taken the initiative and sought clarification from the court.

There was no basis in South African law for orders for contempt of court to be made against officials of public bodies, nominated or deployed for that purpose, who were not themselves personally responsible for the wilful default in complying with a court order that lay at the heart of contempt proceedings. It had to be clear, beyond reasonable doubt, that the official in question was the person who had wilfully and with knowledge of the court order failed to comply with its terms. Contempt of court was too serious a matter for it to be visited on officials, particularly low ranking officials, for breaches of court orders by public bodies for which they were not personally responsible.

The municipal manager was, so far as the officials of a municipality were concerned, the responsible person tasked with overseeing the implementation of court orders against the municipality. The municipal manager would know, as the accounting officer, what was feasible and what was not. The municipal manager could not pass responsibility for those administrative duties to a manager or director who was not directly accountable in terms of their duties. It was unacceptable that a person had to be ‘selected’ by the municipality to be liable for imprisonment when that person was clearly not the one who had control over all the facets and terms of the order and it was clear that he or she was being made the scapegoat. The municipal manager was the official who was responsible for the overall administration of the municipality and, therefore, the logical person to be held responsible. Even if the municipal manager delegated tasks flowing from a court order to others, it remained his or her responsibility to secure compliance therewith. The court added obiter that while certain political office bearers could also be liable for contempt, it was not necessary to traverse the issue in the instant case.

Fundamental rights

Right of access to courts: In Stopforth Swanepoel & Brewis Inc v Royal Anthem (Pty) Ltd and Others 2015 (2) SA 539 (CC); 2014 (12) BCLR 1465 (CC) the first respondent, Royal Anthem (RA), sold immovable property to the second and third respondents, Yeun Fan (YF) and Shun Chen (SC) respectively, in terms of which the last two were required to pay a deposit and transfer duty to RA’s attorneys and conveyancers, the applicant, Stopforth Swanepoel & Brewis Inc (SSB). That was duly done. The agreement further provided that if the deal were to fail, the deposit would be returned with interest to YF and SC. When that happened RA instructed SSB not to give YF and SC their money back, contending that the contract allowed it to keep same in terms of a forfeiture clause. As a result YF and SC instituted High Court proceedings against RA and SSB to recover payment. SSB gave notice to abide by the decision of the court and as a result the action against it was withdrawn. The GP ordered RA to return the money. An appeal by RA was dismissed by the SCA, which also clarified certain ‘ancillary issues’ and altered the order of the High Court. It held that as the funds had been transferred to SSB and were held by it in an interest generating trust account in terms of the Attorneys Act 53 of 1979, SSB and not RA, had to return the money. Accordingly, although it was not a party to the proceedings and had given notice to abide, SSB was ordered to return the money. Moreover, that repayment of the money was more than what SSB held, in that whereas the interest earned by the trust account funds was low, the court ordered SSB to return it with interest calculated at the higher legal rate of 15,5% per annum. SSB appealed to the CC against the order of the SCA, which was made against it in its absence.

The CC gave SSB leave to appeal and upheld the appeal. RA, and not SSB, was ordered to return the deposit and transfer duty, with interest calculated at the rate of 15,5% per annum, as well as the amount of that had been invested in the trust account, together with interest that it generated. The court said nothing about the costs.

Reading a unanimous judgment of the court, Nkabinde J held that RA was a party that should have been ordered to repay the money, together with interest, as well as interest that was earned when part of that money was invested in a trust account in terms of the Attorneys Act. It was common cause that the dispute before the SCA did not extend to the liability of SSB. It was also undisputed that SSB merely kept the funds on the instructions of RA. After the dispute arose SSB indicated that it had lodged the funds in the interest-bearing trust account until such time as a court order indicated to whom it should be paid. There was no issue on appeal between SSB on the one hand and YF and SC on the other regarding SSB’s liability. SSB was not a participant on appeal and should at the very least have been invited to make submissions. That did not happen. Consequently SSB was not heard. For these reasons SSB was entitled to seek relief in the CC.

Temporary emergency accommodation: In Mbatha and Others v City of Johannesburg Metropolitan Municipality and Others [2015] 1 All SA 575 (GJ) the applicants, Mbatha and others, were residents of an informal settlement in Kliptown, Soweto in Gauteng who lived within the flood line and were accordingly troubled by floods during the rainy season, an occurrence they experienced over the years. In December 2014 and immediately after severe floods they sought an urgent High Court order in terms of which the first and second respondents, the City of Johannesburg Metropolitan Municipality and a member of the Mayoral Committee, were required to provide them with temporary emergency accommodation. The respondents offered them accommodation at a civic hall, which the applicants found unacceptable.

Moshidi J held that the circumstances of the case justified the granting of the application on an urgent basis, with costs. The respondents were ordered to provide the applicants with temporary emergency accommodation within seven days. The court held that to provide the applicants with temporary accommodation at a community hall until the development of permanent accommodation was completed a few years down the line would violate their rights to privacy, dignity, freedom and security as enshrined in the Constitution. In addition, and of particular importance, were the rights of children at stake. In this regard, s 28(1)(c) and (2) of the Constitution guaranteed that every child had the right to basic nutrition, shelter, basic health-care and social services and further that the child’s best interests were of paramount importance in every matter concerning the child. All of these rights would be infringed if the applicants were to be given temporary emergency accommodation at the civil hall, as offered by the respondent.

Insolvency law

Invalidity of appointment policy for insolvency practitioners: In February 2014 the Minister of Justice and Constitutional Development adopted a ‘Policy on the Appointment of Insolvency Practitioners’, which regulated the appointment of insolvency practitioners, defined as curatores bonis, trustees and liquidators, by the Master of the High Court. Interested parties opposed the policy and obtained interim interdicts in the WCC and GP pending finalisation of proceedings in which an order declaring the policy unlawful was sought. The envisaged proceedings resulted in SA Restructuring and Insolvency Practitioners Association v Minister of Justice and Constitutional Development and Others, and Another Application 2015 (2) SA 430 (WCC); [2015] 1 All SA 589 (WCC) in which the applicant, SA Restructuring and Insolvency Practitioners Association (SARIPA), sought an order declaring the policy inconsistent with the Constitution. Although there was no consolidation with the application, which had been instituted in the GP, the two were heard together with the result that the outcome of the WCC was decisive of the Gauteng application. In terms of the policy the first respondent, the Minister, required that the Master of the High Court had to appoint insolvency practitioners using the formula 40% African, coloured, Indian and Chinese females; 30% African, coloured, Indian and Chinese males; 20% white females; and 10% white males. The appointments had to be sequential in the sense that they had to be made precisely in that order. In the same categories the names were arranged alphabetically using surnames followed by first names, and appointments had to be made using the alphabetical order. The policy was challenged on a number of grounds including lack of discretion on the part of the Master to make appointments, its rigidity, lack of time limit after which it would come to an end, etcetera.

Katz AJ granted an order declaring the policy inconsistent with the Constitution and, therefore, invalid. The third respondent, the Association for Black Business Rescue and Insolvency Practitioners of South Africa (ABRIPSA), an intervening party which took the side of the Minister and Chief Master of the High Court, was ordered to pay costs incurred in the WCC application.

The court held that the formula used in the policy allowed insufficient scope for the Master to balance the practitioners’ race, gender and years of experience on the one hand, with their industry-specific knowledge and expertise on the other. The policy put in place a rigid, inflexible regime in which the Master effectively became a rubber stamp, which had to appoint a designated person by rote from fixed lists arranged alphabetically on race and gender lines. To allow such considerations in appointment of provisional liquidators was inconsistent with the Master’s oversight role in respect of final liquidators. A system that made use of a strict roster was out of keeping with the discretion required of the Master in s 370 of the Companies Act 61 of 1973 and s 57 of the Insolvency Act 24 of 1936. Therefore the rote alphabetical system set up by the policy unlawfully fettered the Master’s discretion. Insofar as the policy aimed to make the insolvency industry accessible to previously disadvantaged individuals, it had to do more than increase numbers but still ensure that there was a match between individual skill and the requirements of the role within the system provided for by the law. Playing a ‘numbers game’ went further than formal equality and was not lawful affirmative action as contemplated by the Constitution.

The manner in which the race and gender categories were employed in the roster formula created silos, which overly privileged race and gender at the expense of all other relevant characteristics. There was explicitly no scope for considering the skills, knowledge, expertise and experience of practitioners when being appointed by the Master. A scheme of that kind could not possibly give effect to the dignity of either those advantaged or disadvantaged by the policy. In becoming a nearly absolute barrier to employment the policy implicated the right to work and inherent dignity of those it excluded and was, therefore, not a lawful affirmative action.

Local government

No late objection to municipal valuation of property: Section 50 of the Local Government: Municipal Property Rates Act of 2004 (the MPRA), read with s 49(1)(a), provides, among others, that any person may lodge an objection with municipal manager regarding any matter reflected in, or omitted from, the valuation roll. Such objection is required to be lodged within 30 days of publication of notice inviting members of the public to inspect the valuation roll and lodge objections thereto. Alternatively, a member of the public may ask for publication of supplementary valuation roll in relation to his or her property. Section 80 empowers the MEC for local government of a province, on good cause shown, to condone any non-compliance with a provision of the MPRA. In MEC for Local Government and Traditional Affairs, KwaZulu-Natal v Botha NO and Others 2015 (2) SA 405 (SCA); [2015] 1 All SA 649 (SCA) a certain company, Universal Retail Portfolio (URP), indicated in its records that it purchased property in 2006 for R 24 million. However, that was totally misleading as the market value of the property was in fact in the region of R 4,5 million. The amount of R 24 million was used in order to defraud tax authorities regarding value-added tax claim. Based on the provided information the local government, eThekwini Municipality (Durban), determined the property’s market value as R 23 million and assessed it for municipal rates in the amount of some R 2,7 million for the 2008 financial year. The company did not object to the assessment or ask for a supplementary valuation roll. Subsequently, the company was wound up in 2010. In 2011 its liquidators, the present respondents, Botha and others, sold the property in liquidation and sought municipal clearance certificate in order to transfer it to the buyer. It was only then that they found out the outstanding amount, which was inclusive of the R 2,7 million 2006 assessment. They accordingly asked the MEC for condonation and leave to lodge objection against the 2008 assessment. The MEC did not respond. As a result the respondent approached the High Court for, amongst others, an order condoning late objection to assessment or alternatively, an order directing the MEC to consider the application for condonation within 14 days of the granting of the order.

The KZP, per Tonjeni AJ, granted an order referring the respondent’s application for condonation to the MEC for consideration and making a decision within 30 days. The MEC appealed against that order while the respondents cross-appealed. In the cross-appeal the respondents sought a court order granting condonation instead of having the matter referred to the MEC for consideration. The SCA upheld the appeal with costs and dismissed the cross-appeal.

Fourie AJA (Navsa ADP, Shongwe, Theron and Swain JJA concurring) held that absent an objection against the 2008 valuation of the property, the internal appeal procedure as provided for in s 54 of the MPRA was not available to the respondents. The company not only misrepresented the 2006 purchase price of the property but subsequently failed to take any steps to prevent the misrepresentation from materially influencing the 2008 municipal valuation of the property. In those circumstances the company would not only be prevented from benefitting from its own fraudulent conduct, but would also be precluded from having such conduct condoned by allowing it to lodge a late objection to the 2008 valuation. In any event, the company would certainly not be able to show ‘good cause’, which would entitle it to relief in terms of s 80 of the MPRA.

Parent and child

Full parental responsibilities and rights of an unmarried father: Section 21(1)(b) of the Children’s Act 38 of 2005 (the Act) provides, among others, that an unmarried father of a child, regardless of whether he has lived or is living with the mother of the child, acquires full parental rights and responsibilities over the child if he –

‘(i) consents to be identified or successfully applies to in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law;

(ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and

(iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period’.

In KLVC v SDI and Another [2015] 1 All SA 532 (SCA) the issue was whether the first respondent, the father, had satisfied the requirements of the section and accordingly acquired full parental rights and responsibilities over his minor child. During the first respondent’s temporary trip overseas, the appellant mother relocated the four-month-old minor from Durban to a location in England without the consent of the father or authority of a court. As a result the first respondent instituted proceedings in an English court for return of the child to South Africa. The English court was unable to decide if the removal of the child from South Africa was wrongful in that it was done without the required consent of the father or authority of court. It accordingly referred the question for determination by a South African court.

The KZD held that the first respondent had satisfied the requirements of the section and accordingly acquired full parental rights and responsibilities over the minor child. An appeal against that order was dismissed with costs by the SCA.

Mbha JA (Maya, Leach, Theron JJA and Schoeman AJA concurring) held that determining whether or not an unmarried father had met the requirements of the section was an entirely factual enquiry. It was a type of matter, which could only be disposed of on a consideration of all the relevant factual circumstances of the case. An unmarried father either acquired parental rights or responsibilities or did not. Judicial discretion had no role in such an enquiry. The concept of a contribution or attempt in good faith to contribute to the child’s upbringing for a reasonable period was an elastic one, which permitted a range of considerations culminating in a value judgment as to whether what was done could be said to be a contribution or a good faith attempt at contributing to the child’s upbringing over a period which, in the circumstances, was reasonable.

In the present case, the first respondent demonstrated sufficiently that he had acquired full parental responsibilities in respect of the minor. As co-guardian, his consent was required prior to the removal of the child from South Africa by the appellant. By removing the minor without such consent the appellant acted in breach of the first respondent’s parental rights and responsibilities.

Patents

Revocation of patent for lack of utility: In Marine 3 Technologies Holdings (Pty) Ltd v Afrigroup Investments (Pty) Ltd and Another 2015 (2) SA 387 (SCA) the appellant, Marine 3 Technologies, was the patentee of surface active solution (surfactant), which was used to control dust in mining wet surfaces in fire-fighting and dissolve fertilizers in agriculture. The respondent, Afrigroup Investments, was a distributor of the product. After a dispute arose between the parties and the distribution agreement was terminated, the respondent sought revocation of the patent on a number of grounds, including one of lack of utility of the product, alleging that the product was not capable of achieving the results that it claimed it did. The Court of the Commissioner of Patents, per Tuchten J, granted the revocation because of lack of utility, hence the appeal to the SCA. Accepting that the decision of the court a quo was not correct and would be set aside by the SCA, the parties agreed that the respondent would not oppose the appeal and further that the appellant would not seek costs against the respondent, both of appeal and before the court a quo. The SCA duly upheld the appeal and set aside the order of the court a quo, making no order as to costs.

Ponnan JA (Swain JA, Mathopo, Mocumie, Gorven AJJA concurring) held that the onus of establishing invalidity on the grounds of inutility rested on the respondent. An invention that could not be performed was obviously not capable of being used or applied in trade, industry or agriculture and would therefore not be patentable and, if patented, the registration for it would be liable to be revoked. Inutility was a question of fact to be decided in the circumstances of each case. An invention was not useful if it did not effectively produce the result aimed at or promised by the specification. In particular, where a claim involved the use as ingredients of a class of chemical compounds, it was invalid if any of them did not work. To determine the inutility issue, it was necessary to begin with a consideration of the meaning of the claims of a patent. In construing a claim one had to have regard to the way in which it would appeal to the addressee who had to work with such things.

In the instant case, the conclusion of the respondent’s expert witnesses that the surfactant could not be manufactured, was not based on any actual attempt by either of them to manufacture the product but was purely theoretical. The factual evidence that the surfactant had indeed been in commercial manufacture and was sold debunked that theoretical hypothesis. Moreover, the respondent was alleged to have infringed the patent by the manufacture of the same surfactant. Perverse attempts to show failure, or the choice of unusual combinations, which would not succeed, were generally not sufficient to support the plea of non-utility.

• See 44.

Township development

Compensation for expropriation of excess land: Section 28 of the Western Cape’s Land Use Planning Ordinance 15 of 1985 (LUPO) provides that: ‘The ownership of all public streets and public places over or on land … shall, after the confirmation of such subdivision or part thereof, vest in the local authority … without compensation by the local authority concerned if the provision of the said public streets and public places is based on the normal need therefor … or is in accordance with a policy determined by the Administrator [now Premier] from time to time’. In brief, when a township is developed, the part of the land that is normally required for public streets and public places shall vest in the local authority free of charge while for any further land (excess land) that vests in the local authority, unless it so vests in terms of policy determined by the Premier from time to time, compensation has to be paid.

In Arun Property Development (Pty) Ltd v Cape Town City 2015 (2) SA 584 (CC); 2015 (3) BCLR 243 (CC) public streets and public places duly vested in the respondent, City of Cape Town, when a farm was developed into a residential area. However, further land (excess land) also vested in the respondent for ‘higher-order roads’, being regional road infrastructure envisaged in the respondent’s structure plan. For that vesting of excess land, the appellant, Arun Property Development, claimed compensation in the amount of some R 13 million. At the hearing of the matter the WCC, per Dlodlo J, granted a separation of merits from the quantum and held that the respondent had to pay compensation to the appellant in an amount determined in terms of the Expropriation Act 63 of 1975. That decision was reversed on appeal to the SCA. An appeal to the CC was upheld with costs, the court holding that the appellant was entitled to compensation for expropriation of excess land, the quantum of which was to be determined in terms of the Expropriation Act, just as the High Court had ordered.

Reading a unanimous decision of the court, Moseneke DCJ, held that when the need for public roads arose from the normal needs of the subdivision of land itself, it made sense to expect the developer to bear the burden of providing the land, free of charge, for the purpose of public roads. There could be no township development without public streets and public places. But where the extent of the roads and public places was beyond the normal need, the local authority had to compensate the developer for the excess land that vested in it. The excess land was not related to, and the need for it preceded, and was not created by the subdivision of land. When the local authority resolved that the time had come to build the higher-order roads, the land had to be expropriated and compensation paid to the owner. Excess land, properly so established, should attract compensation, a remedy which s 28 itself used and LUPO provided for in a few other instances such as in s 19.

Unlawful arrest and detention

No vicarious liability for negligent conduct of magistrate: The facts in Minister of Safety and Security and Others v Van der Walt and Another [2015] 1 All SA 658 (SCA) were that the respondents, Van der Walt and Van Wyk, were arrested and detained on charges of theft, assault and pointing a firearm. Bail was denied on three occasions because when they made their first appearance in court, and after adjournment, they faced a new charge of armed robbery, which was not there on the original charge sheet. During adjournment the magistrate and prosecutor had a conversation and after resumption of the hearing the magistrate wrote something on the papers before her. The respondents suspected that the charge of armed robbery had been added by the magistrate but that could not be verified. The prosecutor did not know who added the charge of armed robbery. After their release on bail on the fifth day of detention, the respondents sued the complainant, one M, for having laid false charges against them, the first appellant, Minister of Safety and Security, the investigating officer, one P, in his personal capacity, as well as the Minister of Justice, for the wrongful conduct of the magistrate in denying them bail in circumstances where it should have been given.

The High Court, per Van der Merwe AJ, held the complainant M liable to the respondents. The court further held the first appellant, the Minister of Justice, and the investigating officer jointly and severally liable to each respondent in the amount of R 250 000. The complainant M did not appeal. Neither did the respondents cross-appeal against the High Court finding that the first appellant was not liable for the wrongful conduct of the National Prosecution Authority committed through the prosecutor. As a result it was the first appellant, for the conduct of the investigating officer P, the Minister of Justice, for the conduct of the magistrate, and P in his personal capacity, who appealed to the SCA. The appeal achieved limited success in that the amount awarded against the first appellant and P was reduced from R 250 000 to R 120 000. The appeal of the Minister of Justice was upheld, each party being ordered to pay own costs. For the rest of the appeal the first appellant was ordered to pay costs.

Tshiqi JA (Mpati P, Theron, Swain JJA and Mocumie AJA concurring) held that there was no conceivable reason for the refusal by the magistrate to release the respondents on bail. They remained in custody because of the groundless charge of armed robbery, which was added to the charge sheet and the collective negligence of P, the prosecutor and the magistrate. It followed that the detention of the respondents was unlawful. Furthermore, the investigating officer P was negligent in his handling of the bail application. His negligence was the prolonged detention of the respondents. As a result the High Court’s finding of liability had to stand. However, the Minister of Justice was not liable because when magistrates acted in the course and scope of their functions they, like all judicial officers, enjoyed a status of judicial independence. That meant that although magistrates remained state employees under their contracts of employment, they performed a judicial function and formed part of the judicial branch of government. There was ample authority to the effect that judicial independence for judicial officers meant that they were protected from liability for their negligent conduct. A magistrate was not liable for his or her negligent conduct when performing judicial functions because for reasons of public and legal policy his or her conduct was not regarded as wrongful. The fact that the magistrate was immune from liability for his or her negligent conduct meant that there was no basis to hold any other person, such as the Minister of Justice, vicariously liable for such negligent conduct. The court added obiter that as in the instant case the magistrate had not acted maliciously, it was not necessary to deal with the issue whether the Minister of Justice was vicariously liable for the malicious conduct of a magistrate.

Other cases

Apart from the cases and material dealt with or referred to above the material under review also contained cases dealing with Anton Piller orders, arrest of associated ship, complaint against medical aid scheme, consolidation of parallel High Court and Equality Court proceedings, dismissal of appeal where judgment or order would have no practical effect or result, eviction of unlawful occupiers of land, extinctive prescription, failure to pay value-added tax not amounting to theft, hypothec arising out of instalment sale transaction, interpretation of rules of homeowners’ association, jurisdiction of court to wind-up a company, late review of decision of property developer, remuneration and expenses of business rescue practitioner, search of business premises by police and selection process of judges.

This article was first published in De Rebus in 2015 (June) DR 34.

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