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.

August 2012 (4) The South African Law Reports (pp 325 – 660); [2012] 3 The All SA Law Reports July no 1 (pp 1 – 118) and no 2 (pp 119 – 244)

Abbreviations:

CC: Constitutional Court

GNP: North Gauteng High Court

GSJ: South Gauteng High Court

SCA: Supreme Court of Appeal

WCC: Western Cape High Court

Access to information

Exemption from duty to exhaust internal appeal process: Section 78(1) of the Promotion of Access to Information Act 2 of 2000 (PAIA) provides that a requester of information may only apply to court for appropriate relief after exhausting the internal appeal procedure against a decision of the information officer of a public body. In Hlaba v MEC for Health, Eastern Cape, and Others 2012 (4) SA 401 (ECM) the applicant, Hlaba, was injured in a motor vehicle collision and wished to lodge a claim with the Road Accident Fund. To do so, the law required the claim form to be accompanied by, among others, an RAF 1 form (incorrectly referred to in the judgment as an MMF 1 form), which had to be completed and signed by the doctor who treated him. Due to a shortage of doctors at the public hospital where the applicant was treated, the RAF 1 form was not completed despite several requests. To avoid the claim prescribing, the applicant instituted proceedings for a mandamus requiring the respondents, the member of the executive council for health and the hospital superintendent, to complete, sign and return the form to him. The respondents opposed the application, but shortly before the hearing of the matter they provided the completed and signed form. As a result, the only issue remaining for determination was costs. The court granted the applicant costs as sought.

Nhlangulela J held that it was incorrect that the applicant had bypassed the internal appeal process. The truth of the matter was that he had been denied his right to engage in the appeal process. There was a need for the applicant to ask for a mandamus to force the respondents to execute their obligations. Such conduct was reasonable. It was correct for the court to order the respondents to carry out their statutory duties even though there had been no direct refusal on their part to do so. It was not that the applicant did not lodge an appeal at all, since he did so in terms of a different document, which nevertheless complied substantially with the requirements of PAIA. It could not be doubted that, had the applicant been given the appropriate forms to complete and lodge the appeal, he would have been able to comply with PAIA. With all avenues for constitutional expression being denied by the respondents, the applicant was correct in bringing an application seeking a mandamus to force the respondents to comply with their duties.

Special defence – failure to exhaust internal remedies: In Dlusha v King Sabata Dalindyebo Municipality and Others 2012 (4) SA 407 (ECM) the applicant, Dlusha, was a ratepayer and resident of the respondent, the King Sabata Dalindyebo Municipality in the Eastern Cape. Having received a notice of discontinuation of municipal services that showed she was in arrears with payment for municipal rates and charges in the amount of some R 61 000, Dlusha formally requested information indicating the basis on which the arrears had been calculated. However, this was not forthcoming. Some two months later she instituted proceedings to compel disclosure of the calculation of such arrears, asking in particular to be furnished with specific documents covering a number of years. The respondents, being the municipality and its officials, raised a special defence that the applicant had not exhausted internal remedies to obtain the information desired, as provided for in s 78(1) of PAIA. Although the issue was not covered in the respondents’ answering affidavit, their counsel raised in his heads of argument the point that to provide the information requested by the applicant would be prejudicial to the municipality’s claim against various consumers in its area of jurisdiction. As a mark of disapproval of the conduct of the respondents, the special defence was dismissed with costs on a punitive scale.

Mageza AJ held that the attitude of the respondents, as articulated in the heads of argument, ought to have been communicated to the applicant to enable her to exercise the various options at her disposal, including exercising her right to an internal appeal, abandoning the request if so desired or approaching the court for relief. The duty of the respondents was always to facilitate, rather than obstruct, the dissemination of reasonably requested information. An applicant who had in good faith and as of right requested information in terms of PAIA ought to be dealt with in a rational, fair and just manner by public authorities. Arrogant disregard and failure to positively engage the public were not values contemplated in the Constitution.

Administration of estates

Removal of executor: In Reichman v Reichman and Others 2012 (4) SA 432 (GSJ) the applicant and the first respondent were brothers who were entitled to inherit from the estate of their deceased mother. The first respondent was also an executor of the estate. After preparing the liquidation and distribution account in the deceased estate, the applicant objected to it as being incomplete in that it did not account for some of the major assets of the estate, including a loan the deceased had made to the first respondent. Accordingly, the applicant applied for removal of the first respondent as executor of the estate due to an alleged conflict of interest as both executor and heir. The court granted with costs an order removing the first respondent from office as executor of the estate and requiring him to return his letters of executorship.

Scholtz AJ held that it was undesirable for the first respondent to continue acting as the executor of the estate of the deceased. Section 54(1)(a)(v) of the Administration of Estates Act 66 of 1965 provides that an executor can at any time be removed from office by the court if the court is satisfied that it is undesirable that he should act as executor of the estate concerned. In the present case the first respondent had an irreconcilable conflict between his personal interests and his duty as executor to act impartially in the best interests of the estate. One of the duties of the executor was to investigate the validity or otherwise of the debts the applicant alleged the first respondent owed to the estate. The first respondent could not be a judge in his own cause and could not rely on the Master to resolve that factual dispute.

Administrative law

Invalid administrative action: In City of Johannesburg and Another v Ad Outpost (Pty) Ltd 2012 (4) SA 325 (SCA) the first appellant, the City of Johannesburg, granted the respondent, Ad Outpost, permission to use two billboards for advertising purposes in 2002, which permission elapsed in 2004. When the respondent applied for renewal of such permission, this was denied. The first appellant indicated that the billboards were put in a prohibited area where they impaired visibility of directional traffic signs. The respondent approached the High Court for an order declaring the decision of the first respondent invalid and setting it aside, which was granted. The GSJ, per Matlapeng AJ, held that to refer the matter back to the first appellant for reconsideration would subject the respondent to ‘unjustifiable prejudice’ and, as a result, granted the respondent permission to use the billboards for five years, effectively making the court a licensing authority. On appeal to the SCA, the order of the High Court was set aside with costs.

Leach JA (Farlam, Van Heerden, Mhlantla JJA and Ndita AJA concurring) held that the first appellant’s latest bylaws of 2009, unlike the old ones of 2001, which had since been repealed, were to be interpreted as providing an absolute prohibition against advertising signs in prohibited areas. The 2009 bylaws were applicable to the renewal application and, in terms of these, there was an absolute prohibition in respect of advertising signs being placed where the two billboards were situated. Thus, not only did the High Court err in finding that the 2001 bylaws were applicable to a reconsideration of the renewal applications, but it also erred in exercising a discretion on behalf of the first appellant, which the latter did not have in terms of the bylaws. The High Court ought to have merely made an order setting aside the decision of the first appellant and the second appellant, the city manager.

Attorneys

Suspension or removal of attorney from roll: In Law Society of the Northern Provinces v Le Roux 2012 (4) SA 500 (GNP) an investigation by an official of the applicant law society established that the respondent, Le Roux, had misappropriated trust funds. Evidence also showed that, before leaving his former employer as a professional assistant, he had misappropriated a large amount of trust money, which he was not able to repay as promised. Moreover, the police were also investigating him in connection with the misappropriation of trust funds. Against this background, the applicant law society approached the High Court for the suspension of the respondent from his practice as an attorney and conveyancer. It did not, however, also request the striking off of his name from the roll of attorneys and conveyancers in the alternative. The application was not opposed.

Bertelsmann J (Tuchten J concurring) held that suspension of the respondent was not a sufficient sanction and accordingly granted a rule nisi returnable on a specific date calling on the respondent to show why he should not be struck off the roll of attorneys and conveyancers and, further, why he should not be ordered to pay the applicant’s costs on the scale of attorney and client. Pending the return date, the respondent was suspended from practice as an attorney and conveyancer. It was held that prima facie, and in the light of the uncontested evidence of dishonesty, the respondent had admitted theft of trust funds, which, apart from being a criminal offence, constituted evidence of dishonesty of a degree that rendered an attorney unfit to practise. A suspension allowed the name of the attorney to remain on the roll of the court’s officers and enabled a dishonest individual to mislead unsuspecting members of the public by failing to disclose that he was no longer allowed to practise as an attorney. On the evidence presented in the instant case, it would offend public policy and the public interest not to consider the ultimate sanction of striking the respondent’s name off the roll of attorneys. The uncontested evidence established without doubt that he was unfit to be an officer of the court.

Constitutional law

Separation of power between judiciary and executive: In International Trade Administration Commission v SCAW South Africa (Pty) Ltd 2012 (4) SA 618 (CC) the facts were that in 2002 the Minister of Trade and Industry (the Minister), acting on a recommendation of the Board on Tariffs and Trade (the board), requested the Minister of Finance to impose anti-dumping duties on steel cable and similar products manufactured by Bridon International Limited UK of the United Kingdom, which request was duly acceded to. Such duties were to last for a period of five years and lapse in 2007 unless extended. The duties benefited the respondent SCAW, South Africa’s main manufacturer of steel products and Bridon UK’s competitor. In 2007, before the duties could lapse, the respondent requested the extension of duties for a period of 18 months in order to conduct an investigation on the desirability of their termination, amendment or imposition for a further period of five years. The appellant, the International Trade Administration Commission (ITAC), a successor to the board, conducted an investigation and recommended the termination of duties to the Minister. Unhappy with this recommendation, the respondent approached the High Court for an urgent interim interdict restraining the appellant from forwarding the recommendation to the Minister and restraining the Minister from accepting the appellant’s recommendation, as well as from requesting the Minister of Finance to terminate the duties. Further, if the request had already been made, the respondent wanted the court to interdict the Minister of Finance from giving effect to the request to terminate the duties. The interdict was to be in operation pending finalisation of an application to be launched by the respondent to review and set aside the appellant’s recommendation to terminate existing duties.

The GNP, per Bertelsmann J, granted the interdict sought by the respondent. Leave to appeal was denied by both the High Court and the SCA, hence leave to appeal to the CC. Such leave was granted and the appeal was upheld with costs, save unnecessary costs incurred in the process.

Delivering a unanimous judgment of the court, Moseneke DCJ held that the interdict granted by the High Court breached the doctrine of separation of powers, which was an integral part of the Constitution. It was inappropriate for the High Court to grant an order that invaded the terrain of the national executive function without justification. In the South African constitutional democracy all public power was subject to constitutional control. Each arm of the state had to act within the boundaries set. Where the Constitution or legislation entrusted specific powers and functions to a particular branch of government, courts could not usurp that power or function by making a decision of their preference, as doing so would frustrate the balance of power implied in the principle of separation of powers. The primary responsibility of a court was not to make decisions reserved for the domain of other branches of government but was rather to ensure that the concerned branches of government exercised their authority within the bounds of the Constitution. That was particularly so where the decision in issue was policy laden as well as polycentric. The formulation and implementation of trade policy was a matter that resided in the national executive function. The setting, changing or removal of an anti-dumping duty in order to regulate exports and imports was patently an executive function that flowed from the power to formulate and implement domestic and international trade policy. This power resides in the domain of the national executive authority.

Contracts

Breach of contract – placing debtor in mora: The facts in G & C Shelf 103 (Pty) Ltd v Chemical Specialities (Pty) Ltd 2012 (4) SA 335 (KZD) were that in September 2006 the defendant, Chemical Specialities, entered into a contract of lease with the plaintiff, G & C Shelf, in terms of which it leased the plaintiff’s industrial properties. The lease agreement provided that the defendant had to insure the properties with a reputable insurer but did not specify the period within which the property had to be insured. The agreement further provided that in the event of damage or destruction of the properties, the proceeds of the policy would be used to reinstate the properties. It did not, however, indicate the period in which reinstatement had to take place; it only provided that this had to take place ‘as quickly as possible’. Fire having destroyed the properties, the defendant lodged a claim with the insurer, which paid the proceeds directly to the plaintiff as provided for in the policy, which proceeds were sufficient to reinstate the properties in full. The plaintiff thereafter instituted proceedings for damage allegedly suffered as a result of breach of certain provisions of the contract by the defendant by not insuring the properties and reinstating them after their destruction. The claim was dismissed with costs.

Rall AJ held that the plaintiff was required to allege and prove the breach and damage allegedly suffered by it. Where a party relied on a breach in circumstances where prior demand was required, it was necessary for that party to plead and prove that such demand had been made. The plaintiff was required to place the defendant in mora before claiming damages for the alleged breach of the lease agreement. As that had not been done, the plaintiff failed to prove that the defendant breached the agreement. It was that breach, had it been proved, that could have resulted in a loss to the defendant. Moreover, the proceeds of the policy had in fact been paid to the plaintiff and, as it was common cause that these were sufficient to pay for the costs of reinstatement, the defendant had not suffered damage.

Note: The issue of placing a debtor in mora was also dealt with in Mokala Beleggings (Pty) Ltd and Another v Minister of Rural Development and Land Reform and Others [2012] 3 All SA 130 (SCA).

Criminal law and procedure

No punishment, no crime principle: Broadly speaking, the provisions of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Act) can be divided into two categories – those that proscribe certain conduct and prescribe punishment for such conduct and those that proscribe certain conduct but fail to prescribe punishment. Section 5(1) of the Act, which fell into the latter category, provided that a person (A) who unlawfully and intentionally sexually violates a complainant (B), without B’s consent, was guilty of the offence of sexual assault. However, no punishment was provided for such sexual assault in the Act. In Director of Public Prosecutions, Western Cape v Prins [2012] 3 All SA 138 (WCC) the respondent, Prins, was charged in the regional magistrate’s court with a contravention of s 5(1) in that he touched the body of the complainant inappropriately without her consent. The respondent objected to the charge sheet on the basis that it did not disclose an offence as the proscribed conduct did not attract a penalty. The regional magistrate upheld the objection and quashed the charge. The High Court dismissed the appeal.

Blignault J (Fortuin and Mantame JJ concurring) held that the nulla poena sine lege (no punishment without a law) principle, with its concomitant nullun crimen sine lege (no crime without a law) constituted essential elements of the doctrine of legality in criminal law. The nulla poena sine lege principle has been described as requiring that there be some punishment affixed to the commission of an act, and where no law exists affixing such punishment, there is no crime in the law. The principle, as an integral element of the legality principle, is firmly established as part of the South African legal system. The reason for the nulla poena sine lege principle is to inform citizens of the consequences of any proposed course of conduct and to enable the courts to avoid the imposition of arbitrary penalties.

The decision of the High Court was reversed on appeal to the SCA in Director of Public Prosecutions, Western Cape v Prins and Others 2012 (2) SACR 183 (SCA). The SCA, per Wallis JA (Mpati P, Navsa, Brand and Malan JJA concurring), held that the conclusion of the High Court that the charge sheet did not disclose an offence was incorrect. There was no doubt that the Act created – in express terms – criminal offences in ss 2 to 26, including s 5(1), all of which were couched in similar terms. With reference to s 5(1), nothing could be clearer than that it created a criminal offence. The court also took into account the provisions of s 276(1) of the Criminal Procedure Act of 51 of 1977 (CPA), holding that although the section had not been raised before the High Court, it was a point of law that could properly be raised for the first time on appeal. This section provides, among others, that subject to the CPA, any other law and the common law, certain specified sentences can be passed on a person convicted of an offence. The section empowers courts to impose sentences on persons convicted of crimes and is thus an embodiment of the principle nulla poena sine lege. It recognises and embodies the general principle of sentencing by the courts in relation to common law crimes where no penalty is prescribed. The same principle is to be recognised and complied with in relation to any statutory crimes where the legislature, for whatever reason, has not incorporated a specific penalty provision in the statute creating the offence. In the absence of any provision governing penalty in the Act, the necessary implication is that this is left to the general discretion of the courts in terms of their powers under s 276(1) of the CPA. Therefore, s 276(1) is a general empowering provision that authorises courts to impose sentences in all cases, whether at common law or under statute, where no other provision governs the imposition of sentence.

• Readers should note that an amending Act, the Criminal Law (Sexual Offences and Related Matters) Amendment Act 6 of 2012, was assented to by President Jacob Zuma on 23 June. This Act, which was fast-tracked through the parliamentary process, expressly provides for the imposition of penalties for specific offences under the Act being in the discretion of the courts.
• See 2012 (Aug) DR 8 and 2012 (July) DR 40.

Customary law

Validity of a subsequent customary marriage: Section 7(6) of the Recognition of Customary Marriages Act 120 of 1998 (the Act) provides that a husband in a customary marriage who wishes to enter into a further customary marriage with another woman after the commencement of the Act must make an application to court to approve a written contract to regulate the future matrimonial property system of his marriages. The Act does not, however, indicate the implication if a further customary marriage is entered into without making such application. In MN v MM and Another 2012 (4) SA 527 (SCA) the first respondent, MM, and the deceased had married each other according to customary law in 1984. After the death of the deceased, the first respondent sought to register the customary marriage with the department of the second respondent, the Minister of Home Affairs, but was advised that such registration could not take place as another woman, the appellant MN, had also sought to register a customary marriage, alleging that she married the deceased in 2008. The first respondent considered the alleged marriage between the deceased and the appellant void as it had been contrary to s 7(6) and, further, she had not been consulted about it. The GNP, per Bertelsmann J, held that the marriage between the appellant and the deceased was null and void ab initio as it had been concluded without compliance with the section. An appeal to the SCA was partially successful in that the court held that the marriage between the appellant and the deceased was valid and the second respondent was ordered to register such marriage. No order was made as to costs.

Ndita AJA (Ponnan JA delivering a separate concurring judgment, while Mthiyane DP concurred in both judgments) held that s 7(6) was intended to protect the matrimonial property rights of spouses by ensuring a fair distribution of the matrimonial property in circumstances where a husband was desirous of entering into a further customary marriage. Properly construed, s 7(6) was for the benefit of women in both monogamous and polygamous customary marriages. A contrary interpretation of the section that excluded women in polygamous marriages – validly married according to customary law and recognised as such in their communities – was deeply injurious to women in such marriages. Such women would be adversely affected in areas of, among others, death, succession and social standing. It would also constitute a gross and fundamental infringement of their rights to dignity, equal status in marriage, as well as to physical and emotional integrity. The effect thereof would be to render children born of such marriages illegitimate. Accordingly, notwithstanding the absence of a sanction for non-compliance with s 7(6), the scheme of the Act and its broader context compelled a conclusion that the section could never have been intended to have any impact on the validity of the second customary marriage.

Refugees

Opportunity to apply for asylum before deportation: In Bula and Others v Minister of Home Affairs and Others 2012 (4) SA 560 (SCA) the appellants, Bula and 18 others, were Ethiopian nationals who entered the country illegally. After being caught, they were taken to a repatriation detention facility where they were detained while the process of their deportation was under way. The appellants approached the High Court for an order restraining the first and second respondents, the Minister and director-general of the Department of Home Affairs, from deporting them. They also sought their release from detention and the granting of asylum seeker permits, which would entitle them to be in the country for 14 days, during which they would apply for asylum. The GSJ, per Cassim AJ, dismissed the application. An appeal to the SCA was upheld with costs. The first and second respondents were ordered to stop the deportation process and to release the appellants from detention, as well as to issue them with temporary asylum seeker permits so that they could apply for asylum.

Navsa JA (Cloete, Maya, Bosielo and Leach JJA concurring) held that reg 2(2) of the regulations made under the Refugees Act 130 of 1998 (the Act) ought to have been the starting point as the appellants fell within its ambit. This regulation, which provides that any person who entered the country illegally and in violation of the Aliens Control Act 96 of 1991, and who has not submitted an application for asylum but who indicates an intention to apply for it, has to be issued with an appropriate permit valid for 14 days. The regulation does not require an individual to indicate an intention to apply for asylum immediately when he is encountered nor should it be interpreted to mean that when the person does not do so there and then he is precluded from doing so later. The purpose of the regulation is to ensure that where a foreign national indicated an intention to apply for asylum, the regulatory framework of the Act ‘kicks’ in. This is to ensure that genuine asylum seekers are not turned away. Once the appellants, through their attorneys, indicated an intention to apply for asylum, they became entitled to be treated in terms of the regulation and to be issued with an appropriate permit valid for 14 days, in which they were obliged to approach a refugee reception office to complete an asylum application. In terms of s 22 of the Act, an asylum seeker has the protection of the law pending the determination of his application for asylum.

Note: Other cases dealing with asylum seekers, all of which involved Ethiopian nationals, are Fikre v Minister of Home Affairs and Others 2012 (4) SA 348 (GSJ); Arse v Minister of Home Affairs and Others 2012 (4) SA 544 (SCA); and Ersumo v Minister of Home Affairs and Others 2012 (4) SA 581 (SCA).

Sale in execution

Writ of execution issued before s 66(1)(a) declared unconstitutional: The decision of the WCC in Sani and Another v FirstRand Bank Ltd and Others 2012 (4) SA 370 (WCC) can best be understood against the following background. Until the decision of the CC in Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (2) SA 140 (CC), s 66(1)(a) of the Magistrates’ Courts Act 32 of 1944 (the Act) gave the clerk of the magistrate’s court power to grant default judgment against a debtor and authorise the sale of his immovable property without judicial oversight. This section was declared unconstitutional in the Jaftha case for this lack of judicial oversight.

The Jaftha case was distinguished on the facts from Standard Bank of South Africa Ltd v Saunderson and Others 2006 (2) SA 264 (SCA); [2006] 2 All SA 382 (SCA) and was not followed. In this matter it was held that it was permissible for the registrar of the High Court to grant default judgment and authorise the sale of a debtor’s immovable property if the debt in question was not extraneous to the immovable property; that is, if the debt was based on money lent and advanced and such loan was secured by a mortgage bond over the property in question. The Saunderson case was overruled by the CC in Gundwana v Steko Development and Others 2011 (3) SA 608 (CC). In this matter the court held that the declaration of invalidity of the legislative provisions did not entail that all transfers made subsequent to invalid execution sales were automatically invalid. Rather, individuals affected by the ruling of invalidity had to approach the courts to have the sales and transfers set aside if they had been granted by default.

In the Sani case the court followed the Gundwana approach. The applicants, Sani and another, were previously the registered owners of immovable property, which they sought to have returned by court order. This was after the clerk of the court had granted default judgment against them, declared the property specially executable and authorised the sheriff to attach it. As a result, the property was subsequently sold in execution at a public auction. After the sale, the property was duly registered in the name of the buyers, the second and third respondents. This was finalised in 2003 – before the Jaftha decision. In 2010 the applicants approached the court for a reversal of the process and for the property to be re-registered in their names. However, this was without first rescinding the default judgment granted by the clerk. The application was dismissed with costs.  

Zondi J held that the applicants did not challenge the default judgment that formed the basis of the sale in execution. According to the Gundwana judgment, the mere constitutional invalidity of the law under which the property was declared executable was not sufficient to undo everything that followed. In order to set aside the subsequent transfer of property that followed its sale in execution, an aggrieved debtor would have to bring an application for rescission of the default judgment. In the instant case the writ of execution was authorised in accordance with s 66(1)(a) of the Act before it was declared unconstitutional by the CC in the Jaftha case. Although the declaration of invalidity operated retrospectively to affect writs of execution that were improperly issued by the clerk of the court in the past, it was clear from the Gundwana judgment that the mere invalidity of s 66(1)(a), under which the applicant’s property was declared executable, was not sufficient to undo everything that followed. In other words, in order to set aside the sale and transfer of their property to the second and third respondents, the applicants should have first brought a rescission application in order to benefit from the declaration of unconstitutionality of the section.

• See 2011 (Aug) DR 40 and 2011 (June) DR 50.

Other cases

Apart from the cases and material referred to above, the material under review also contained cases dealing with authority of trustee of a trust, carrying on business for gain, co-guardianship of a minor, deemed disposal of assets, failure to investigate crimes against humanity and atrocities, failure to properly exercise discretion, international child abduction, interpretation of documents, interruption of running of prescription, liability for pure economic loss, liquid document, locus standi, mandate of attorney regarding trust funds, meaning of motor vehicle, reinstatement of registration of a company, removal of trade mark from register, review of administrative action, sole guardianship of minor, stay of proceedings and trade union suing for defamation.

This article was first published in De Rebus in 2012 (Oct) DR 40.