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.
June 2017 (3) South African Law Reports (pp 335 – 666); May [2017] 2 All South African Law Reports (pp 335 – 676); 2017 (3) Butterworths Constitutional Law Reports – March (pp 267 – 413); 2017 (5) Butterworths Constitutional Law Reports – May (pp 543 – 674)
This column discusses judgments as and when they are published in the South African Law Reports, the All South African Law Reports and the South African Criminal Law Reports. Readers should note that some reported judgments may have been overruled or overturned on appeal or have an appeal pending against them: Readers should not rely on a judgment discussed here without checking on that possibility – Editor.
Abbreviations
CC: Constitutional Court
ECG: Eastern Cape Division, Grahamstown
ECM: Eastern Cape Local Division, Mthatha
GJ: Gauteng Local Division, Johannesburg
GP: Gauteng Division, Pretoria
LCC: Land Claims Court
SCA: Supreme Court of Appeal
WCC: Western Cape Division, Cape Town
Child law
Where commissioning parent to a surrogate motherhood agreement is a single person her gamete must be used to fertilise surrogate mother: Section 294 of the Children’s Act 38 of 2005 (the Act) provides that: ‘No surrogate motherhood agreement is valid unless the conception of the child contemplated in the agreement is to be effected by the use of the gametes of both commissioning parents or, if that is not possible due to biological, medical or other valid reasons, the gamete of at least one of the commissioning parents or, where the commissioning parent is a single person, the gamete of that person.’
In AB and Another v Minister of Social Development 2017 (3) SA 570 (CC); 2017 (3) BCLR 267 (CC) the commissioning parent, AB, was a single person who had no gamete to use in the conception of the contemplated child. That was due to her infertility as she was not able to produce an ova or fall pregnant. As a result of lack of gametes her attorney advised her that the surrogate motherhood agreement was invalid for non-compliance with s 294 of the Act. For that reason the constitutionality of the section was challenged on a number of grounds, being that the section violated the rule of law, as well as the rights to equality, human dignity, reproductive autonomy, privacy and access to healthcare.
The GP, per Basson J, held that the section was unconstitutional and made a punitive costs order against the respondent minister for her dilatory conduct in the prosecution of her defence. The present application to the CC was for confirmation of the High Court order. The minister appealed against both orders. The court declined to confirm the High Court order relating to the invalidity of the section, this making the minister successful, but dismissed her appeal against the punitive costs order. The minister was ordered to pay the applicant’s costs in the CC.
The majority judgment was read by Nkabinde J (Mogoeng CJ, Moseneke DCJ, Bosielo AJ and Jafta, Mhlantla and Zondo JJ concurring) while the minority judgment was read by Khampepe J (Cameron, Froneman and Madlanga JJ concurring). The court held that the prerequisite for a valid surrogate motherhood agreement was that the conception of the child contemplated in the agreement had to be achieved by the use of the gametes of both commissioning parents or the gamete of one of the two parents if both parents could not donate gametes due to either biological, medical or other reasons. Where there was one commissioning parent, as was the case in the present matter, the section required the use of the gamete of that parent. The objective of the provision was evident from the plain language used in the heading to the section, which read ‘Genetic origin of child’, as well as the provisions of the section itself. Textually, if both commissioning parents were unable to contribute gametes for procreation they were disqualified. Single commissioning parents were likewise disqualified if they could not, in person, contribute gametes for that purpose.
The requirement of donor gametes within the context of surrogacy served a rational purpose of creating a bond between the child and the commissioning parent or parents. The creation of a bond was designed to protect the best interests of the child to be born so that the child had a genetic link with its parent or parents. The disqualification of the applicant, or of other people similarly placed, was rational in that it safeguarded the genetic origin of the child as contemplated in the surrogacy agreement for the child’s best interests. Clarity regarding the origin of a child was important to the self-identity and self-respect of the child.
Although the applicant was disqualified from concluding the surrogate motherhood agreement by reason of biological, medical or other reasons she was not left without any legal option. She could in theory bring herself within the ambit of the section by entering into a partnership relationship with someone whose gamete could be used for the conception of the child as contemplated in the agreement.
Company law
Buying-out a shareholder to resolve deadlock: Section 163(1) of the Companies Act 71 of 2008 (the Companies Act) provides among others that: ‘A shareholder or director of the company may apply to court for relief if –
(a) any act or omission of the company, or a related person, has had a result that is oppressive or unfairly prejudicial to, or that unfairly disregards the interests of, the applicant.’
On considering the application the court is granted power by subs (2) to make any interim or final order it considers fit, including an order directing an exchange of shares and an order to pay compensation to an aggrieved person, subject to any other law entitling that person to compensation. Similar provisions, which apply to close corporations, are found in ss 36 and 49 of the Close Corporations Act 69 of 1984 (the CC Act).
In De Klerk v Ferreira and Others 2017 (3) SA 502 (GP) the plaintiff De Klerk (D) was initially the sole member of Plantsaam CC (the corporation), as well as the sole shareholder and director of Benjo (Pty) Ltd (the company). The company was the owner of land on which the corporation carried out its farming operations. As D was a medical practitioner practising his profession in Canada, he employed the first defendant Ferreira (F) as the farm manager. As an incentive to F he later admitted him as a member of the corporation and sold to him half of membership interest. He also admitted him as a shareholder and director of the company, selling to him half of the shares in the company. Because for a part of the year the plaintiff was out of the country, the day-to-day running of the farming business was left to F. However, F breached the trust by committing serious acts of financial irregularity when he misappropriated the funds of the corporation on several occasions and in a number of ways such as by depositing the corporation’s funds in his private banking account for personal needs. He also carried out farming operations for his own benefit on the company’s land, alleging that there was a lease but never paid rental or accounted for income received.
On finding out what F was doing D approached the court for an order authorising him to acquire F’s membership interest in the corporation, his shareholding in the company, both with full compensation, and cessation of F’s directorship of the company. F opposed the application and counterclaimed for winding-up of both the company and corporation. In the alternative he sought an order directing that he, in turn, should buy-out D. Because of the obvious dispute of fact that arose, motion proceedings were changed to trial action.
Murphy J granted with costs the order sought by D and dismissed F’s counterclaim. D was ordered to pay a specified amount to F, which represented the value of his membership interest in the corporation and shareholding in the company. The court held that if it appeared that particular acts or omissions by F in relation to the corporation were unfairly prejudicial, unjust or inequitable, or that the corporation’s affairs had been conducted prejudicially, unjustly or inequitably, the court could make such order as it thought fit, including compelling the sale of his membership interest, provided the court considered it just and equitable to do so. The common thread running through all the provisions of s 163 of the Companies Act and ss 36 and 49 of the CC Act was that they conferred on the court a wide discretion to compel a transfer of shares or member’s interest in order to deal with prejudicial, oppressive, unjust and inequitable conduct by a company, director, shareholder or member against other members.
The actions of F in relation to the corporation were unfairly prejudicial. Furthermore, F had conducted the affairs of the corporation in a manner unfairly prejudicial to D as contemplated in s 49 of the CC Act and thus permitting the court to make an order as it saw fit, which was considered just and equitable. It was thus appropriate to make an order in terms of s 36 of the CC Act that F should cease to be a member of the corporation and a further order for the acquisition of his interest in terms of ss 36(2)(a) or 49(2).
What was good for the corporation was equally good for the company as they were related entities and were both under the de facto control of F. Over the years F had exclusive control of the financial affairs, management and day-to-day running of the two entities. D had minimal access to the financial records, source documents and correspondence of both entities and played a limited role in their functioning, as well as performance. The corporation was, therefore, a ‘related person’ as contemplated in s 163(1) of the Companies Act with the result that D was entitled to relief in terms of s 163(2)(e) in relation to the company.
Protection of security or title interest of a third party when business rescue practitioner disposes of property belonging to the company: Section 134(3) of the Companies Act 71 of 2008 (the Act) provides among others that if during business rescue proceedings the company wishes to dispose of any property over which another person has any security or title interest, the company must –
‘(a) obtain the prior consent of that other person, unless the proceeds of the disposal would be sufficient to fully discharge the indebtedness protected by that person’s security or title interest; and
(b) promptly –
(i) pay to that other person the sale proceeds attributable to that property up to the amount of the company’s indebtedness to that other person; or
(ii) provide security for the amount of those proceeds to the reasonable satisfaction of that other person.’
In Energydrive Systems (Pty) Ltd v Tin Can Man (Pty) Ltd and Others 2017 (3) SA 539 (GJ) the applicant, Energydrive, was the owner of certain equipment, which it leased to the second respondent, Winplas, subject to a reservation-of-ownership clause. When the latter went into business rescue proceedings, the fourth respondent, Knoop, was appointed its business rescue practitioner. The fourth respondent sold and delivered the equipment to the first respondent, Tin Can Man, without obtaining the prior consent of the applicant, paying to discharge the company’s indebtedness to it regarding its security or title interest in the equipment or providing security to its reasonable satisfaction.
When the applicant sought to recover the equipment from the first respondent, it was contended that as the proceeds of the sale were sufficient to satisfy the title interest of the applicant, the first respondent was protected by s 134(3) and could retain the equipment. The application was granted with costs and the first respondent ordered to deliver the equipment to the applicant. Coetzee AJ held that s 134(3) allowed a company under business rescue to dispose of property, which was subject to security or a reservation of ownership clause without the consent of the creditor concerned, only if the proceeds of the disposal would be sufficient to fully discharge the indebtedness protected by the security. If that were so, s 134(3)(a) authorised a business rescue practitioner to dispose of the property. In such event s 134(3)(b) required the practitioner to promptly pay the debt due to the secured creditor or owner or provide security, therefore, to the reasonable satisfaction of the applicant.
The obligation to pay or secure the debt was not a mere personal right against the practitioner as interpreting it that way would destroy the agreed security or ownership and replace it with a personal right against the practitioner. The obligation to promptly pay or secure the debt was a requirement for a valid transfer of ownership by the practitioner by way of a sale and delivery in terms of the section if there was no consent on the part of the creditor. The rights of the creditor would only be terminated on payment or the provision of other security. In the present case the practitioner did not pay or secure the debt due to the applicant. It followed, therefore, that the practitioner did not validly destroy the right of ownership of the applicant who still remained the owner of the equipment.
Custom and excise
South African Revenue Service (Sars) does not have embargo for payment of customs duty over imported goods when company is wound up: In Commissioner, South African Revenue Service v Van der Merwe NO and Others [2017] 2 All SA 335 (SCA) the sixth respondent, Pela Plant (the company) had a major civil engineering project in the Democratic Republic of Congo in respect of which it purchased certain items of heavy duty equipment. After completion of the project it brought the equipment back to South Africa. For importing (bringing back) same into the country the appellant Commissioner for Sars imposed customs duty in terms of the Customs and Excise Act 91 of 1964 (the Customs Act), as well as value-added tax (VAT) in terms of the Value Added Tax Act 89 of 1991 (VAT Act). The equipment was stored in a customs and excise warehouse pending payment of customs duty and VAT. In the meantime the company was wound up for inability to pay debts as a result of which the first to fifth respondents were appointed its liquidators. The liquidators requested the appellant to release the equipment for realisation in the insolvent estate of the company and distribution of proceeds among creditors. The appellant rejected the request, alleging that there was an embargo in his favour over the equipment, which precluded him from releasing it until customs duty and VAT were paid in full. The KZD, per Annandale AJ, held that the Customs Act did not preclude the appellant from releasing the equipment to the liquidators and thereafter, like any other creditor, prove a claim in the insolvent estate of the company. An appeal against that order was dismissed with costs by the SCA.
Theron JA (Lewis, Wallis, Petse and Dambuza JJA concurring) held that the answer to the question – whether there was an embargo in favour of the appellant – which prevented the liquidators from taking possession of the equipment in order to deal with it according to the laws of insolvency without first having to pay customs duty and VAT thereon was to be found in ss 20(4)(a), 38, 39 and 114 of the Customs Act. The important aspect of the sections was that they were all addressed to the ordinary situation where goods were brought into the country and attracted liability to pay customs duty. The sections were directed at the obligation of the importer and others liable to pay customs duty, but did not address the special situation of insolvency. When one looked at liability to pay customs duty in the ordinary course, one only had to look to the provisions of the Customs Act alone. When insolvency intervened one turned to the Insolvency Act 24 of 1936 (the Insolvency Act). In the event of insolvency the common law provided that a trustee had to realise all the assets of the insolvent including those subject to a lien and as such the trustee was entitled to demand delivery thereof. If it were otherwise the lien-holder would be able to frustrate the winding-up of the estate. The common law was somewhat altered by s 83 of the Insolvency Act, which permitted a creditor, who held as security for his claim any movable property, to realise that security under certain prescribed conditions prior to the second meeting of creditors. Section 83 was, however, not applicable to the present case. In brief, there was nothing in either the Customs Act or the Insolvency Act, which expressly, or by necessary implication, providing that goods subject to a lien in favour of the appellant did not fall to be dealt with under the laws of insolvency.
Environmental law
Environmental authorisation of coal-fired power station needs climate change impact assessment: Section 24(1) of the National Environmental Management Act 107 of 1998 (NEMA) requires among others that environmental impact of a listed activity such as construction of a coal-fired power station must be considered, investigated, assessed and reported on, to the competent authority tasked with making a decision on environmental authorisation. Therefore, once an application for environmental authorisation has been made, an environmental assessment process has to be undertaken. According to s 24O(1) the purpose of the climate change impact assessment is to help the authorities in taking measures to protect the environment from harm likely to arise from the activity which is the subject of the application.
In Earthlife Africa Johannesburg v Minister of Environmental Affairs and Others [2017] 2 All SA 519 (GP) the second respondent, Chief Director of the Department of Environmental Affairs, granted environmental authorisation for the construction of a coal-fired power station by the fifth respondent, Thabametsi, in Lephalale (Ellisras) in Limpopo Province. The applicant Earthlife, a civil society organisation pursuing environmental issues, objected to the authorisation as it had been granted without undertaking climate change impact assessment. The applicant’s appeal against the authorisation was rejected by the first respondent, the Minister of Environmental
Affairs who, realising that there was no climate change impact assessment, upheld the authorisation on condition that such assessment was done. As a result the applicant approached the High Court for an order reviewing and setting aside the decisions of both the Chief Director and the Minister.
Murphy J held that in terms of s 8 of the Promotion of Administrative Justice Act 3 of 2000 the court had a discretion to grant relief that was just, equitable and proportional. Accordingly, it was not necessary to review and set aside the decision of the Chief Director but that of the minister only. For that reason the matter was remitted to the minister for a reconsideration of the appeal of the applicant in the light of a climate change impact assessment which had in the meantime been finalised. The respondents were ordered to pay costs.
The court held that a climate impact assessment was required before authorising new coal-fired power stations. That assessment was necessary and relevant to ensuring that the proposed coal-fired power station fitted the country’s peak, plateau and decline trajectory as outlined in the Nationally Determined Contributions, being factors to be pursued regarding climate change mitigation measures, and its commitment to build clearer and more efficient power stations than existing ones. The legislative and policy scheme and framework overwhelmingly supported the conclusion that an assessment of climate change impacts and mitigating measures were relevant factors in the environmental authorisation process, and that consideration of such would best be accomplished by means of a professionally researched climate change report. A plain reading of s 24O(1) of NEMA confirmed that climate change impacts were indeed relevant factors that had to be considered.
No prospecting for minerals in a nature reserve or protected conservation area: Section 48(1)(c) of the Mineral and Petroleum Resources Development Act 28 of 2002 (the MPRDA) provides among others that ‘no reconnaissance permission, prospecting right, mining right or mining permit may be granted or mining permit be issued in respect of –
…
(c) any land being used for public or government purposes or reserved in terms of any other law’.
Section 7(1)(a) provides: ‘In the event of conflict between a section of this Act and (a) other national legislation, the section of this Act prevails if the conflict specifically concerns the management or development of protected areas.’
In Mpumalanga Tourism and Parks Agency and Another v Barberton Mines (Pty) Ltd and Others [2017] 2 All SA 376 (SCA) the first respondent, Barberton Mines, was granted prospecting rights on certain properties in the District of Barberton in Mpumalanga Province. When it wanted to commence prospecting it encountered resistance on the part of the appellants, Mpumalanga Tourism and Parks Agency (MTPA) and Mountainlands Owners Association (MOA), who were later joined by three other appellants. The position of the appellants was that as part of the prospecting area included areas that had been declared a nature reserve, protected area or protected environment by the provincial government in terms of the Proclamation 12 of 1996, prospecting for minerals was not allowed. The GP, per Baqwa J, granted the first respondent an order declaring that it was free to commence prospecting and further interdicted the appellants from interfering with its prospecting activities. The SCA upheld with costs an appeal against the decision of the High Court.
Ponnan JA (Tshiqi, Majiedt, Dambuza and Van der Merwe JJA concurring) held that the granting of prospecting rights under the MPRDA was made subject to environmental protections and constraints. Section 48(1)(c) of the MPRDA, which should be read subject to s 48 of the National Environmental Management: Protected Areas Act 57 of 2003 (the NEMPAA) prohibited the granting of a prospecting right in respect of any land which was being used for public or government purposes or was reserved in terms of any other law. NEMPAA bound all organs of state and trumped other legislation in the event of a conflict concerning management or development of protected areas. According to s 9(a) of NEMPAA the system of protected areas in the country included ‘special nature reserves, national parks, nature reserves (including wilderness areas) and protected environments’. In terms of s 12 of NEMPAA, a protected area that was reserved or protected in terms of provincial legislation was entitled to be regarded as a nature reserve or protected environment for the purposes of NEMPAA. The effect of that provision was to extend the protection afforded to a nature reserve by NEMPAA to a protected area reserved in terms of provincial legislation as well. NEMPAA contemplated the protection of areas that had been either declared or designated in terms of provincial legislation, while the definition of a nature reserve in NEMPAA included areas designated in terms of provincial legislation.
The effect of the Mpumalanga Proclamation of 1996 was that the designated area was reserved or protected in terms of provincial legislation for a purpose for which it could be declared as a nature reserve or protected environment under s 12 of NEMPAA. As the Proclamation met the requirements of s 12, it followed that the prospecting area fell to be protected against prospecting under s 48(1) of NEMPAA.
Land restitution
Exclusive jurisdiction of the LCC in land restitution claims and agreements: The facts in Bangani v Minister of Rural Development and Land Reform and Another [2017] 2 All SA 453 (ECM) were that: Prior to the year 1935 members of a certain community in the Eastern Cape enjoyed grazing rights over a certain piece of land. However, due to past racially discriminatory laws usage of that land for grazing purposes was outlawed with the result that the right was lost. In April 2009 the community, the local municipality, being Nyandeni Local Municipality (located some 30 km to the south of Mthatha) and the respondents, Minister of Rural Development and Land Reform (first respondent) together with the Regional Land Claims Commissioner (the second respondent), entered into a settlement agreement in terms of which households in that community were to receive some R 88 million as restitution. Thereafter the appellant, Bangani, instituted proceedings in the High Court, instead of the LCC, for recovery of her share of the restitution amount, which was some R 94 000. The respondents raised a special plea that the appellant did not have locus standi as she was not a direct descendant of the original claimant but a spouse of that descendant. The merits of the claim were also contested. At the trial the respondents raised another objection, namely that the High Court did not have jurisdiction over the claim as it belonged to the exclusive jurisdiction of the LCC.
The ECM held that it did not have jurisdiction over the matter and dismissed the claim. An appeal to the full court of the same division was dismissed with costs. Van Zyl DJP (Dawood and Brooks JJ concurring) held that in s 22 of the Restitution of Land Rights Act 22 of 1994 (the RLRA) the legislature created a court known as the LCC. Although the LCC had all the powers of a High Court having jurisdiction in civil proceedings at the place where the land in question was situated, it did not possess general or inherent jurisdiction. Unlike the High Court that derived its judicial authority from the Constitution, the LCC derived its authority from a statute and its powers were circumscribed. The powers, which it did possess were, however, to the exclusion of the High Court. Section 22 provided that the LCC had power to the exclusion of any court contemplated in s 166(c), (d) or (e) of the Constitution to determine any number of matters listed in paras (a) to (d) thereof.
The court a quo correctly found that it lacked material jurisdiction in respect of those matters, which the legislature in s 22(1) of the RLRA assigned to the exclusive jurisdiction of the LCC, which was created as a specialist court charged with the task of administering and interpreting the RLRA. The effect of s 22 was that the High Court did not have the power or authority to determine any of the listed matters. A judgment given by the High Court contrary to s 22(1) was void ab initio and of no force and effect. The power of the LCC in s 22(1) of the RLRA at para (cE) was ‘to determine any matter including the validity, enforceability, interpretation or implementation of an agreement contemplated in section 14(3), unless the agreement provided otherwise’. As the appellant’s claim was one for specific performance of the terms of a written contract, the matter fell squarely within what was contemplated by the legislature in para (cE).
Status of new land rights restitution claims: The Restitution of Land Rights Act 22 of 1994 (the RA) set the cut-off date by which land rights restitution claims had to be lodged as 31 December 1998. That date was extended to 30 June 2019 by the Restitution of Land Rights Amendment Act 15 of 2014 (the AA), which came into effect on 1 July 2014. However, the AA was declared invalid by the CC in the case of Land Access Movement of South Africa and Others v Chairperson, National Council of Provinces and Others 2016 (5) SA 635 (CC), (the Lamosa case) as the National Council of Provinces and provincial legislatures were found not to have followed the required consultative process in which interested parties and the public at large were given afforded adequate participation. In declaring the AA invalid the CC nevertheless held that while the Chief Land Claims Commissioner (the commission) could not process new claims lodged on the basis of the AA, claims that had been lodged in the meantime would be noted as received and acknowledged, with the result that after Parliament had passed a new amendment within a period of two years, failing which the CC could be approached for directives within two months after expiration of the period of suspension of the order of invalidity, such claims could then be processed.
The issue in the present case of In re Amaqamu Community Claim (Land Access Movement South Africa and Others as amici curiae) 2017 (3) SA 409 (LCC) was whether since in the Lamosa case the CC expressly prohibited the commission, and not the Land Claims Court (the LCC), from processing new land claims, the LCC was also prohibited from doing so. The court per Bertelsmann J (Meer AJP, Gildenhuys J and Sardiwalla AJ concurring) held that the LCC too was prohibited from processing new land restitution claims. That was so as it would be impossible for the LCC to deal with new claims in any fashion without the assistance of the commission. Even if the new claimants could be joined to old claim proceedings, or were able to intervene in them as plaintiff or defendant, they could not participate meaningfully in the trial without the assistance of the commission. Their claim would still need to be investigated, reported on, possibly gazetted or made subject to an order in terms of s 12 of the RA, all of which were the functions that needed to be performed by the commission but which it was precluded from doing by the Lamosa case.
The commission was also involved in the finalisation of matters that came before the LCC as a result of an application for direct access to it.
After all, new claimants would in all probability need to be funded through the offices of the commission, which funding could possibly be regarded as assisting in processing claims. The route of direct access to the LCC was also blocked in that s 38B of the RA, which enabled a party to approach the LCC directly, was premised on the existence of a claim lodged and accepted by the commission. Such a claim would need to have been lodged before 31 December 1998, which date was still the operative date as the AA had been declared invalid.
The court made no order as to costs, as there were no winners or losers in the case, the parties only having been interested in finding out the way forward.
Roads
Constitutional and statutory duty of provincial government to repair and maintain provincial roads, including farm roads: Section 3(1) of the Eastern Cape Roads Act 3 of 2003 (the Roads Act) provides among others that the Member of the Executive Committee (the MEC) or his or her delegate ‘may’ protect and rehabilitate a provincial road, as well as provide and maintain road infrastructure. In Agri Eastern Cape and Others v MEC, Department of Roads and Public Works and Others 2017 (3) SA 383 (ECG), [2017] 2 All SA 406 (ECG) the applicant, Agri Eastern Cape, a voluntary association representing the interests of the farming community in the Eastern Cape Province, together with some of its members, approached the High Court for a structural interdict in terms of which the Eastern Cape Department of Roads and Public Works (the Department), represented by the MEC and the Director-General, were required to come up with a plan of action for the repair and maintenance of provincial roads, including access farm roads. The draft order proposed to that effect also made provision for refunding farmers who spent money on repairing and maintaining access roads leading to farms. The interdict was sought after many meetings with the Department yielded no results, while neglect of provincial roads repair and maintenance extended over a period of more than 20 years in some instances. The Department pleaded lack of funds for failure to maintain and repair the roads but also argued that as in terms of the section the word used was ‘may’, the provisions of the Roads Act were permissive. That meant, so it was argued, that the duty to repair and maintain provincial roads arose only if funds were available.
The structural interdict was granted with costs, a fairly lengthy draft order providing for various reports that had to be filed with the registrar of the court relating to steps to be taken, progress made and difficulties encountered, if any.
Roberson J held that there was a constitutional and statutory basis for seeking the structural interdict. Part A of sch 5 of the Constitution provided for the functional areas of exclusive provincial legislative competence, one of which was provincial roads and traffic. In terms of s 125(2)(a) of the Constitution, the premier, together with the other members of the executive council, exercised executive authority by implementing provincial legislation in the province. When one considered some of the consequences of failure to repair and maintain roads, fundamental rights such as basic education and access to healthcare were indirectly affected.
Roads and road traffic fell within the exclusive legislative competence of provinces. No person or authority other than the MEC had the power to repair and maintain roads, unless the MEC or his or her delegate concluded an agreement with that person or authority to take over responsibility for a provincial road. The various consequences of a failure to maintain and repair farm roads illustrated the importance of road maintenance and repair in many respects, which were in the public interest such as rural development, employment opportunities, education of children, agricultural commerce, communication, access by and to emergency services and physical safety. The submission that the section imposed no duty on the MEC was not sustainable. It was, therefore, clear what the constitutional and statutory obligations of the respondents were and that their performance of same was deficient.
Social welfare
Payment of social grants after expiration of contract with a service provider: The facts in the case of Black Sash Trust v Minister of Social Development and Others (Freedom Under Law intervening) 2017 (3) SA 335 (CC); 2017 (5) BCLR 543 (CC), were that in 2012 the South African Social Security Agency (Sassa) concluded a five-year contract with Cash Paymaster Services (CPS) in terms of which, the latter, would administer the system of payment of social grants to beneficiaries. The contract was to expire on 31 March 2017. In 2013 the CC declared the contract invalid for failure to follow a proper bidding process. However, the declaration of invalidity was suspended until such time as Sassa would find another service provider or be in a position to render the service itself. That meant that CPS would continue rendering the service under the contract until its expiry date. The CC played a supervisory role as Sassa was required to file reports relating to performance in terms of the contract and any issues arising. The court’s supervisory role came to an end in 2015 when Sassa advised that it would not invite tenders for a new contract as it would administer the system of payment itself. By April 2016 it became clear that Sassa would not be able to run the payment system but nothing was done about it. In early 2017 it sought to enter into a contract with CPS for rendering that service without following any bidding process at all. Because of uncertainty that prevailed regarding provision of the service of administering social grants after expiry of the contract on 31 March 2017 the applicant, Black Sash Trust, a civil society organisation, approached the CC directly on an urgent basis for an order declaring that both Sassa and CPS, as organs of state, had a constitutional obligation to ensure payment of social grants to beneficiaries after 31 March 2017 and that this obligation should be performed on the same terms and conditions as those of the existing contract that was about to expire. Moreover, Black Sash Trust wanted to ensure that CPS’s pricing system was not inflated as it had a monopoly in rendering the service, there being no competitors at all.
Reading the main judgment Froneman J (Madlanga J filing a separate concurring judgment) granted the applicant direct access and held that Sassa and CPS were under constitutional obligation to ensure payment of social grant benefits to beneficiaries from 1 April 2017 until an entity, other that CPS, was able to do so. It was also held that failure to do so would infringe beneficiaries’ right of access to social assistance under s 27(1)(c) of the Constitution. The declaration of invalidity of the previous contract was further suspended for 12 more months beginning 1 April 2017, it being ordered that the contract would continue running on the same terms and conditions as the old one. Sassa and the minister were required to file reports on affidavit every three months setting out how they planned to ensure payment of grants after expiry of the 12-month period, as well as further steps they would take to ensure that payments did not cease after that period. Costs were reserved until conclusion of the proceedings.
Traditional leadership
Application of the principle of judicial immunity to members of the judiciary presiding in traditional courts: The facts in Congress of Traditional Leaders of South Africa v Speaker of the National Assembly and Others [2017] 2 All SA 463 (WCC) were that in 2009 King Dalindyebo of AbaThembu nation (the King) was convicted of culpable homicide, arson, assault with intent to do grievous bodily harm, defeating the ends of justice and kidnapping for which he was sentenced by the ECM per Alkema J to 15 years of imprisonment. On appeal to the SCA some of the convictions were set aside and the sentenced was reduced to 12 years. A further appeal to the CC was dismissed.
In the present case the applicant, Congress of Traditional Leaders of South Africa, a voluntary organisation looking after the interests of traditional leaders, sought to have the conviction and sentence of the King reviewed and set aside. The applicant approached the WCC for a number of orders including one reviewing and setting aside the decision of the second respondent, the National Director of Public Prosecutions, to charge and prosecute the King for the offences. If the order were granted, that would have the effect of nullifying the King’s prosecution, conviction and sentence. The other major remedy sought was an order directing Parliament to pass a law that would grant traditional leaders judicial immunity when presiding over civil and criminal matters in traditional courts, such as applies to magistrates and judges in their respective courts. It was alleged that by failing to pass such legislation Parliament was in breach of its obligation imposed by s 212(1) of the Constitution, which provides that national legislation may provide for a role for traditional leadership as an institution at local level on matters affecting local communities. The application was dismissed with costs.
Mantame J (Davis J concurring in a separate judgment and Hlophe JP dissenting) held that the doctrine of judicial immunity found no application in the instant case as at the time of the commission of the offences the King was not acting as a king, his brother Patrick was. Furthermore, when the offences were committed he was not acting as a judicial officer. His testimony was that it was the community that was carrying out ‘people’s justice’ or ‘jungle justice’. The King did not act as a Tribal or Regional Authority at the time of the commission of the offences. In order for judicial immunity discussion to be alive, the King would need to have acted as a King and/or judicial officer when the offences were committed. There would be no fear if traditional leaders applied punishment and sanction in terms of customary law guiding principles and within the confines of the Constitution. The actions of traditional leaders had to keep up with the rule of law and the Constitution. If traditional courts performed their judicial functions according to applicable customary legislation and more importantly in line with the Constitution, there would be no need for presiding officers to be anxious and fear prosecution. Judicial immunity would flow to them automatically the way it was applicable to magistrates and judges.
Other cases
Apart from the cases and material dealt with or referred to above the material under review also contained cases dealing with: Appeal against Land Claims Court order confirming eviction lying to the SCA, application for search warrant in terms of the Criminal Procedure Act 51 of 1977, defamation, disqualification from inheritance of a person who attests and signs a will as a witness, effect of dispute of fact on motion proceedings, enforceability of obligation to negotiate in good faith, exclusion of trust assets from accrual system, expungement of trade mark for non-use, invalidity of contractual provision inconsistent with unalterable provisions of the Companies Act 71 of 2008, liability of the Minister for attack caused by person released on parole, liability of municipality for attack which took place at holiday resort owned by it, notice to debtor in terms of s 129 of the National Credit Act 34 of 2005, option to renew a lease and piercing veneer of trust form and rejection of representations made to representations officer in terms of Administrative Adjudication of Road Traffic Offences Act 46 of 1998.
This article was first published in De Rebus in 2017 (August) DR 28.
