David Matlala BProc (University of the North) LLB (Wits) LLM (UCT) LLM (Harvard) LLD (Fort Hare)HDip Tax Law (Wits) is an adjunct professor of law at the University of Fort Hare.

August 2016 (4) South African Law Reports (pp 317 – 633); [2016] 3 All South African Law Reports July (pp 1 – 344); 2016 (5) Butterworths Constitutional Law Reports May (pp 577 – 708); 2016 (8) Butterworths Constitutional Law Reports August (pp 987 – 1132)

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
GJ: Gauteng Local Division, Johannesburg
GP: Gauteng Division, Pretoria
SCA: Supreme Court of Appeal
WCC: Western Cape Division, Cape Town

Administrative law

Review and setting aside of decision to discontinue prosecution: In Democratic Alliance v Acting National Director of Public Prosecutions and Others (Society for the Protection of our Constitution as amicus curiae) [2016] 3 All SA 78 (GP) before his election as President of the African National Congress (the ANC), a political party, in 2007 and as President of the country in 2009, Jacob Zuma faced allegations of corruption and was eventually indicted. The view of the prosecution team, the Directorate of Special Operations (before it was disbanded) and the Acting National Director of Public Prosecutions, Mokotedi Mpshe, was that Mr Zuma had to be prosecuted to answer allegations made against him. On 31 March 2009 Mr Mpshe and his deputies listened to a recording of intercepted communications between the head of the Directorate of Special Operations, one Leonard McCarthy and a former National Director of Public Prosecution, Bulelani Ngcuka, as well as those between McCarthy and various other persons, which were provided by Mr Zuma’s legal representatives. The conversations indicated an intent to frustrate Mr Zuma’s quest to be President of the country. Because of the content of the recordings Mr Mpshe felt angry and betrayed. Without taking anybody on board, be it the prosecution team, his deputies or any other interested person the following day Mr Mpshe announced his decision to discontinue the criminal prosecution against Mr Zuma. As a result, the applicant, Democratic Alliance, an opposition political party, approached the High Court for an order reviewing and setting aside the decision to discontinue the criminal prosecution. The applicant alleged that such decision was irrational.

In a unanimous decision the court, per Ledwaba DJP, Mothle and Pretorius JJ, held that the impugned decision was irrational and accordingly reviewed and set it aside. The respondents, the Acting National Director of Public Prosecutions and others, excluding the amicus curiae, were ordered to pay costs.

The court held that when Mr Mpshe announced his decision on 1 April 2009 no discussion had been held with senior members of the National Prosecuting Authority (NPA) to source their views on the subject. That omission was critical, considering that up to 31 March 2009, they had been collectively discussing and agreed to continue with the prosecution. Failure to source their views was irrational. Mpshe’s sudden inexplicable turnaround on the matter was irrational. He failed to explain how the information he heard on the tape recordings could be said to have affected, compromised or tainted the envisaged trial process and the merits of the intended prosecution. There was thus no rational connection between the need to protect the integrity of the NPA and the decision to discontinue the prosecution. In his own words Mr Mpshe stated on 1 April 2009 he felt angry and betrayed. Therefore, his feelings of anger and betrayal caused him to act impulsively and irrationally. For that reason Mr Zuma had to face the charges as outlined in the indictment.

Game animals

Statutory protection of ownership of game animals: Section 2(1) of the Game Theft Act 105 of 1991 (the Act) provides amongst others that: ‘A person who keeps or holds game … on land that is sufficiently enclosed as contemplated in subsection (2), or who keeps game in a pen or kraal or in a vehicle, shall not lose ownership of that game if the game escapes from such enclosed land or from such pen, kraal or vehicle’.

In terms of s 2(2)(a), ‘land shall be deemed to be sufficiently enclosed if, according to a certificate of the Premier of the province in which the land is situated, … it is sufficiently enclosed to confine to that land the species of game mentioned in the certificate’. The certificate is valid for three years. ‘Game’ refers to wild animals, which are kept or held for commercial or hunting purposes.

In Eastern Cape Parks and Tourism Agency v Medbury (Pty) Ltd 2016 (4) SA 457 (ECG) the plaintiff, Eastern Cape Parks Agency, was an organ of state charged with the management and control of a nature reserve situated in the province and on which there was a herd of Cape Buffalo (wild animals). Except for a dam – which formed a boundary between the reserve and the defendant Medbury’s property – the reserve was sufficiently fenced off. However, because of severe drought the water level in the dam dropped sufficiently to allow the buffalo to escape onto the defendant’s property. When the drought was broken, the animals did not return.

The plaintiff’s action to recover the animals from the defendant’s land was opposed. As the plaintiff had not obtained a certificate of the Premier confirming that the reserve had been sufficiently enclosed, it contended that such certificate was not the only prerequisite for recovering the animals, submitting that factual proof of sufficient enclosure, as opposed to a mere certificate, was sufficient. It also argued for the development of the common law to provide that wild animals, which were sufficiently contained in a protected area managed by an organ of state, were res publicae (state property) and, therefore, belonged to the state, meaning that in this case they were owned by it as an organ of state.

The action was dismissed with costs. Smith J held that all that was required by the owner (the plaintiff in the instant case) was to obtain a certificate of sufficient enclosure mentioned in s 2(2)(a) of the Act. As the plaintiff had all along contended that the reserve had in fact been sufficiently enclosed to contain the buffalo, all that was required was for it to apply for the certificate. Having failed to avail itself of that statutory protection, it instead impermissibly sought development of the common law to obtain ex post facto protection. The intention of the legislature was to limit protection against loss of ownership only to circumstances where a certificate of sufficient enclosure had been issued. The certificate was a practical mechanism to obviate the need for forensic investigation into the adequacy of fencing and thus served to avoid unnecessary disputes between landowners.

Class action

Certification of class action and transmissibility of claims: Gold mining in the Witwatersrand began in 1886 and contributed immensely to what the economy of the country is today. However, it also had a dark side, namely that in the process of mining operations silica dust is released which, if inhaled in large quantities, becomes the sole cause of silicosis, an occupational lung disease which is contracted by mineworkers who work underground in gold mines. Silicosis is a painful disease which is irreversible and incurable. Silica dust is also a contributory factor, but not the sole cause, in contracting pulmonary tuberculosis (TB), a bacterial lung disease. In Nkala and Others v Harmony Gold Mining Co Ltd and Others (Treatment Action Campaign NPC and Another as amici curiae) [2016] 3 All SA 233 (GJ) the applicants, Nkala and others, sought certification of a class action and a declaratory order developing the common law relating to transmission of a claim after the death of the plaintiff. The common law rule is that the plaintiff’s claim is transmissible to the successor if at the time of the death the proceedings have reached litis contestatio. However, pleadings re-open if an amendment is made. An amendment can be made before any stage until judgment is given. In the instant case certification of class action was sought for present and past underground mineworkers who were alleged to have contracted silicosis or TB in the course of their employment.

For those mineworkers who had passed away, the claims were those of their dependants, mostly the widows. The claims were for mineworkers ranging in number from 17 000 to 500 000 and against all gold mining companies in the country, of which there were a few dozens. The cut-off date for the claims was 12 March 1965, some 51 years ago, when the Mines and Works Act 27 of 1956 came into operation. The purpose of the class action was to avoid the same number of court cases, which would deal with essentially the same facts and legal issues only to reach possibly contradictory decisions.

Mojapelo DJP and Vally J (Windell J dissenting on the transmission issue only) granted with costs certification of class action and further held, as requested, that in respect of deceased mineworkers their claims had been transmitted to their dependants when the certification application was launched in August 2012 and not when litis contestatio was reached. The court held that a class action represented a paradigm shift in the South African legal process. It was a process that permitted one or more plaintiffs to file and prosecute a lawsuit on behalf of a larger group or ‘class’ against one or more defendants. The process was utilised to allow parties and the court to manage a litigation that would be unmanageable or uneconomical if each plaintiff was to bring his or her claim individually. It was normally instituted by a representative on behalf of the relevant class of plaintiffs. The class action process was designed to cover situations where the parties, particularly plaintiffs, were so numerous that it would be almost impossible to bring them all before the court in one hearing, and where it would not be in the interest of justice for them to come before court individually.

It was not only for the benefit of plaintiffs that the class action process was conceived as it was also designed to protect a defendant or defendants from facing a multiplicity of actions resulting in it having to recast or regurgitate its case against each and every individual plaintiff. Furthermore, it enhanced judicial economy by protecting courts from having to consider the same issues and evidence in multiple proceedings, which carries with it the possibility of contradictory decisions by different courts on the same issues. On the other hand, a class action allowed for a single finding on the issue or issues, which finding bound all plaintiffs and defendants.

Since the decision of the SCA in Trustees for the time being of the Children’s Resources Centre Trust and Others v Pioneer Foods (Pty) Ltd and Others (Legal Resources Centre as amicus curiae) 2013 (2) SA 213 (SCA) a class action would only proceed to trial if it has been certified by a court as being an appropriate means of resolving the dispute between the putative class members and the defendant or defendants.

On transmissibility of all claims, and not just class action claims as Windell J would have it, the court held that the common law had to be developed as follows –

• a plaintiff who had commenced suing for general damages but who had died whether as a result of harm caused by a wrongful act or omission of a person or otherwise, and whose claim had not yet reached the state of litis contestatio, and who would, but for his or her death, be entitled to maintain the action and recover the general damages in respect thereof, would be entitled to continue with such action notwithstanding his or her death;
• the person who would have been liable for general damages if the death of the plaintiff had not ensued remained liable for the said general damages notwithstanding the death of the plaintiff so harmed;
• such action should be for the benefit of the estate of the person whose death had been so caused; and
• a defendant who died while an action against him or her had commenced for general damages arising from harm caused by his or her wrongful act or omission and whose case had not yet reached the stage of litis contestatio remained liable for the said general damages notwithstanding his or her death, and the estate of the defendant would continue to bear the liability despite his or her death.

Company law

Access to securities register by third parties: Section 26(2) of the Companies Act 71 of 2008 (the Act) provides that: ‘A person not contemplated in subs (1), that is, a person who does not hold or have a beneficial interest in any securities issued by a profit company, or who is not a member of a non-profit company, has a right to inspect or copy the securities register of a profit company, or the members register of a non-profit company that has members, or the register of directors of a company, upon payment of an amount not exceeding the prescribed maximum fee for any such inspection.’

In Nova Property Group Holdings Ltd and Others v Cobbett and Another 2016 (4) SA 317 (SCA), [2016] 3 All SA 32 (SCA) the main issue was the right to inspect and copy the securities register of the appellants, Nova Property Group, and two associated companies, namely – its subsidiaries – Frontier Asset Management and Centro Property Group. The other issues in the case were leave to appeal and appealability of an interlocutory order which, for present purposes, are omitted. The facts of the case were that the first respondent, Cobbett, a financial journalist who specialised in investigation of illegal investment schemes, requested access to securities registers of the appellants, which request was declined. The purpose of the request was to enable him to investigate the shareholding structures of the appellants and write articles on his findings for publication by the second respondent, Moneyweb. The view of the appellants was that the second respondent had a ‘sinister agenda’. Because of denial of access, the respondents approached the High Court for an order to compel. Tuchten J granted the respondents the right to inspect and make copies of the requested documents.

The SCA dismissed with costs an appeal against the High Court order. Kathree-Setiloane AJA (Maya AP, Majiedt, Mbha JJA and Plasket AJA concurring) held that s 26(2) of the Act provided for an unqualified right of access to securities registers. If Parliament was of the view that the right should be qualified in some way, because of concerns relating to abuse of the right of access, it could have legislated accordingly but chose not to do so. In conferring an unqualified right of access to a companies’ securities register the legislature chose to prioritise the right of access to information over the privacy rights of shareholders and companies. In the absence of an express limitation of the right by the legislature, it was not for the court to limit it because of some nebulous spectre of abuse, particularly where there were built-in safeguards against disclosure of confidential information, more so that the constitutionality of the provision was not challenged.

Constitutional law

Parliamentary process and conduct: The facts in the case of Chairperson of the National Council of Provinces v Malema and Another [2016] 3 All SA 1 (SCA) were that on 17 June 2014 the President of South Africa delivered his State of the Nation Address to a joint sitting of the National Assembly (NA) and the National Council of Provinces (NCOP). Debate of the address took place the following day. It was during that debate that the first respondent, Julius Malema, who was the President of the second respondent, the Economic Freedom Fighters (EFF), an opposition political party, accused the ruling African National Congress (ANC) of having massacred striking miners at Marikana in Rustenburg, North West Province. The appellant, Chairperson of the National Council of Provinces, ruled that the accusation of a massacre was unparliamentary and accordingly requested the first respondent to withdraw it. When no withdrawal was forthcoming she ordered the first respondent to leave, which he did and was thus suspended from the proceedings for the rest of the day. The first and second respondents approached the WCC for an order reviewing and setting aside the rulings of the appellant, which order was granted by Bozalek J (Cloete J concurring).

The SCA dismissed with costs an appeal against the High Court order. Ponnan JA (Leach, Petse, Saldulker and Swain JJA concurring) held that there was nothing unparliamentary about robust, emotive language. The parliamentary standing order, which provided that Members of Parliament should not be allowed to impute improper motives to other members or cast personal reflections on the integrity of members or verbally abuse them in any way had as its purpose to ensure that parliamentary debates were not clouded by personal insults. Ad hominem attacks did not contribute to democratic discourse and were not protected. But the standing order did not, and constitutionally could not, go as far as impeding political speech. It did not censor criticism of the government or its ruling party. When regard was had to the first respondent’s utterances, it was plain that his primary target was the ruling party, not members of Parliament. He did not target Members of Parliament, either individually or collectively. For the standing order to apply, the first respondent’s words had to have targeted Members of Parliament. The first respondent’s speech was protected political speech.

Customary law

Duty of a daughter to support indigent parent under customary law: In Seleka v Road Accident Fund 2016 (4) SA 445 (GP) the plaintiff, Ms Seleka, claimed loss of support against the defendant, Road Accident Fund, after her daughter was killed in a motor vehicle collision. At the time of her death the deceased was working and contributing to the family income. The two also had an oral agreement in terms of which, the deceased made a monthly contribution of
R 1 300 towards maintenance of the plaintiff until she reached the age of 60 years, at which time she would be eligible for old-age social grant. The only other income of the family was a social grant of
R 1 500 per month, which the plaintiff’s husband, apparently not the deceased’s biological father, collected. The family lived according to customary practices and traditions in an area falling under traditional authority.

The issue before the court was whether in terms of customary law (Tswana law in this case) a child had a duty to support an indigent parent. The court held that there was such duty and granted judgment in favour of the plaintiff in an amount of some
R 72 000 as per draft order and also costs on the High Court scale due to the complexities that justified the plaintiff to institute action in the High Court.

Diedericks AJ held that customary law placed an obligation on a child who was financially able to provide maintenance for his or her needy parents. As far as Tswana law and customs were concerned, the principle had in fact also developed from not only a duty on a son to maintain his parents, but also to such duty on a daughter. Furthermore, in the instant case there was a contract between the plaintiff and her deceased daughter that she would maintain her mother by contributing an amount of R 1 300 per month towards household expenses, until such time as the mother would turn 60 years of age and thus be eligible to receive a government old-age pension. There was no doubt that the two elderly people, the plaintiff and her husband, were indigent.

• See editorial ‘RAF loses Constitutional Court case on grants amid fraud allegations’ 2015 (May) DR 3.
• See case note ‘Considerations for the quantification of damages awards’ 2015 (Dec) DR 47.

Education

Validity of provincial regulations relating to admission of learners to public schools: Basic education is an area in respect of which both the national and provincial governments have concurrent jurisdiction and, therefore, carries a high risk of conflicting laws and policies. Section 5(5) of the South African Schools Act 84 of 1996 (the Schools Act) provides that: ‘[S]ubject to this [the Schools] Act and any applicable provincial law, the admission policy of a public school is determined by the governing body of such school’. This provision should be contrasted with s 11(1) of the Gauteng School Education Act 6 of 1995 (Gauteng Act), which provides that: ‘Subject to this [the Gauteng] Act, the Member of the Executive Council (MEC) may make regulations as to the admission of learners to public schools’ (my italics). It will be noted that in terms of the Schools Act the admission policy of a public school is determined by the school governing body whereas in terms of the Gauteng Act it is determined by the MEC through regulations. That was the nature of the problem in Federation of Governing Bodies for South African Schools v MEC for Education, Gauteng and Another 2016 (4) SA 546 (CC); 2016 (8) BCLR 1050 (CC), where the applicant, Federation of Governing Bodies, challenged the validity of regulations made by the first respondent, the MEC, relating to admission policies. The attitude of the applicant was that school governing bodies, and not the MEC, should determine the policies. The regulations provided that –

• schools were prevented from obtaining a confidential report from the learner’s current school before admitting him or her;
• the MEC could (‘may’) determine a school’s feeder zone;
• the district director could place an unplaced learner at any school which was not declared full; and
• the district director could declare a school full.

The GJ upheld the application and declared several of the regulations invalid. The decision was, however, reversed on appeal to the SCA. Thereafter, the CC granted leave to appeal against the decision of the SCA, but dismissed the appeal itself with no order as to costs as the application raised important constitutional issues.

Delivering a unanimous judgment of the court, Moseneke DCJ held that the MEC was correct in taking the view that there was no justification for one school to shift the burden of admission of a troublesome learner onto other schools after looking at a confidential report. It was quite reasonable and justifiable that the Gauteng Department of Education preferred to eliminate the real prospect of unfair discrimination by preventing access to confidential information before admission. The means used by the MEC were properly aligned to the objective of preventing unfair exclusion of a learner at the point of admission to a school.

There was much to be said for the applicant’s insistence that the word ‘may’, as used in relation to the MEC’s power to determine a school’s feeder zone, should be read to mean ‘must’ so that a determination would be made to avoid reliance on the default feeder zone principle. Accordingly, the MEC was directed to determine the feeder zones of public schools in Gauteng within a reasonable time but not later than 12 months from the date of the judgment.

The duty to place unplaced learners fell on the MEC who had to ensure that there were enough school places so that every child could attend school. Similarly, the power to determine learner enrolment capacity and declare a school full or not, in the absence of norms and standards required by the Schools Act that were in force, rightly fell on the Head of the Department (HOD). Absent that power, the statutory task of the MEC and HOD to place unplaced learners would come to naught.

• See case note ‘Court orders education MEC to determine public school feeder zones’ 2016 (Aug) DR 44.

Extradition

Jurisdiction of foreign state to prosecute a suspect: In Carolissen v Director of Public Prosecutions [2016] 3 All SA 56 (WCC) the appellant, Carolissen, was a resident of Cape Town and an employee of the City of Cape Town. Using his office computer he manufactured videos and photographs, which he uploaded onto the Internet. Through his e-mail account and Facebook he distributed – to interested persons – child pornography material, which he manufactured, indicating in some instances that he molested the minors involved. After sending some material to an undercover agent in Maine, in the United States (US), the authorities there requested his extradition in terms of the Extradition Act 67 of 1962 (the Act) so that he could face prosecution. The magistrate dealing with the matter granted the extradition request. The final stage of the extradition that remained was the approval by the Minister of Justice and Constitutional Development. Pending ministerial approval or disapproval of the extradition the appellant appealed against the decision of the magistrate, which appeal was dismissed by the High Court.

Gamble J and Donen AJ held that the offences with which the appellant was charged, namely, the manufacturing and distribution of child pornography, as well as child sexual molestation, were committed both in South Africa and the US. The appellant’s minor victims were sexually exploited in South Africa, where the pornographic material was produced and subsequently uploaded onto the Internet, and that the US predicated an exercise of jurisdiction on the conduct that occurred outside its sovereign territory, but which had a potential harmful effect within its territory. The essence of the charges against the appellant in the US was that he engaged in sexually explicit conduct outside of the US for the purpose of producing a visual depiction of such conduct and that he later transported such depiction to the US via the Internet.

In regard to the question of the US’s extra-territorial jurisdiction, it was established law that it was open to a sovereign state to enact legislation permitting it to prosecute within its own jurisdiction suspects who had committed crimes elsewhere in the world, where those crimes might ultimately have a deleterious effect in the territorial jurisdiction of the requesting state.

Housing

Informal settlement qualifies as dwelling houses: The facts in the case of Educated Risk Investments 165 (Pty) Ltd and Others v Ekurhuleni Metropolitan Municipality and
Others [2016] 3 All SA 18 (SCA) were that ‘Payneville Extension 3’ (Extension 3) was an informal settlement established in the town of Springs, which fell within the jurisdiction of the first respondent Ekurhuleni Metropolitan Municipality (East Rand). The settlement had no potable water supply, refuse removal, sewage reticulation system, electricity or tarred roads. Not far from it was ‘Payneville Extension 1’ (Extension 1), which was vacant. The first respondent commenced the construction of sewage, water reticulation services and toilets on Extension 1 with a view to relocate some families from Extension 3 to it. The plan was to develop Extension 3 and have the same families returning or remaining on Extension 1 if it was developed in the meantime. The appellants, being Educated Risk Investments and other property owners in the adjacent township, opposed the establishment of the temporary informal settlement, which was Extension 1. Although many grounds were raised the main one was that ‘informal settlement’ was not ‘dwelling houses’ as defined in the relevant Town Planning Scheme (the Scheme). It was the contention of the appellants that ‘dwelling houses’ referred to conventional brick and mortar houses and not informal settlement shacks made of among others, wood, corrugated iron and fibreglass sheeting.

The GJ per Lamont J granted an interim order prohibiting the development of Extension 1 as a temporary informal settlement. On the extended return day the interim order was discharged by Mabesele J. An appeal against that order was dismissed with costs by the SCA.

Wallis JA (Lewis, Theron, Mathopo JJA and Victor AJA concurring) held that there was no doubt that the type of building contemplated by the appellants, of conventional bricks and mortar, albeit small, would constitute a ‘dwelling unit’ as defined and therefore a ‘dwelling house’ for the purposes of the Scheme. However, a rigid interpretation of such schemes, viewing them through the prism of a developed society in which those problems were largely absent, was unsuited to South African circumstances. In accordance with the tenor of the Constitution such an approach would be inappropriate. The Constitution required that construction of the provisions of the Scheme should be done in the light of the rights of citizens to access to adequate housing, dignity and a healthy environment. Both on the ordinary meaning of dwelling house, and on an application of the definitions in the Scheme, there was nothing that would preclude ‘informal housing’ from being ‘dwelling houses’ as defined in the Scheme.

Judges

Consent of head of the court before a judge of that division can be sued: Section 47(1) of the Superior Court Act 10 of 2013 (the Act) provides among others that: ‘[N]o
civil proceedings by way of summons or notice of motion may be instituted against any judge of a Superior Court, and no subpoena in respect of civil proceedings may be served on any judge … except with the consent of the head of that court … .’ The consent of the head of the GP was sought in Engelbrecht v Khumalo 2016 (4) SA 564 (GP) so that a judge, the respondent Khumalo, could be joined as a party in proceedings in which the applicant, Engelbrecht, was sued. In that case, before becoming a judge the respondent was a co-director of a certain company together with the applicant and a third party. The applicant stood surety for the debts of the company arising from a lease. Thereafter the applicant sold his shares to the respondent and the other director, after which he resigned as a director. The remaining directors indemnified him against liability for company debts but he still remained surety for the company’s debts under the lease agreement. When sued as surety, the applicant wanted to join the applicant as a co-defendant and accordingly wrote a letter to the Judge President of the GP for consent in terms of the section. The Judge President advised that a formal motion application should be made so that the parties could make the necessary representation, hence the present case.

Mlambo JP granted the applicant leave to institute an application for joinder of the respondent as a party in proceedings against him relating to his suretyship debts, making no order as to costs. The court held that s 47(1) was a mechanism through which the institution of legal proceedings against judges was regulated and accordingly played a gate-keeping role. In essence the section sought to insulate judges from unwarranted and ill-conceived legal proceedings aimed at them. Therefore, the need to protect judges from uncalled for litigation was not difficult to fathom. It was integral part of the adjudication function of judges that they should be free from any fear of repercussions for doing their work. It was necessary that judges be protected from the ever present threat of legal proceedings directed at them arising from the execution of their official responsibilities.

In the instant case it appeared fair, just and equitable that consent be granted as the applicant had made out an arguable case requiring an answer from the judge about her own liability in the main case. The application was not vexatious as it was based on the facts on which a justiciable claim was set out. Accordingly, good cause had been demonstrated justifying the granting of consent.

Labour law

Section 32(2) of the Labour Relations Act 66 of 1995 is not inconsistent with the Constitution: Section 32(2) of the Labour Relations Act 66 of 1995 (the LRA) provides among others that the Minister of Labour ‘must’ extend a collective agreement to apply to non-parties (minority trade unions and other employees not belonging to majority trade unions) if a bargaining council makes a written request that such collective agreement be extended to non-parties. In Free Market Foundation v Minister of Labour and Others 2016 (4) SA 496 (GP); [2016] 3 All SA 99 (GP), the applicant Free Market Foundation (FMF), an independent policy research and education organisation promoting the principles of limited government, economic freedom and individual liberty, alleged that the section was inconsistent with the provisions of s 1 of the Constitution regarding the principle of legality. The applicant alleged that by providing that the Minister ‘must’, rather than ‘may’ extend the operation of a collective agreement to non-parties, the Minister was deprived of a discretion to do so and that ‘must’ meant that there was no judicial oversight or state control of the Minister’s decision to extend the operation of such agreement. As a remedy the applicant did not seek an order declaring the section invalid. Instead, it sought some kind of reading-in, namely that ‘must’ be changed to ‘may’ with the result that in a proper case the Minister could decline the request.

The application was dismissed, but for the sake of not discouraging civil society activists from pursuing constitutional claims for fear of being mulcted with costs, the court made no order as to costs.

Murphy J (Matojane and Basson JJ concurring) held that the contention of the FMF that the legislative scheme for the extension of bargaining council agreements was unconstitutional because of the absence of adequate state and judicial control was wholly
wrong. The respondents were correct in their submissions that the constraints and judicial supervision provided for in the LRA, read with the Promotion of Administrative Justice Act 3 of 2002 (PAJA) or the constitutional principle of legality, gave adequate expression to the constitutional right to administrative justice and in practice could prove more protective than the remedy sought by the FMF. There was a possibility that bargaining council decisions could be reviewed on PAJA or on rationality grounds, but even if they could not, the discretionary power of the Minister to extend minority collective agreements was certainly reviewable on PAJA grounds or for rationality, and the attenuated power to review the extension of majority collective agreements was a reasonable and justifiable limitation on the rights of administrative justice, by reason of the legitimate and rational basis for the application of the majoritarian principle in collective bargaining, the proportional safeguards found in other subsections of s 32, the protection against discrimination found in s 32(3) and the common law. Therefore, s 32 was not inconsistent with the Constitution. For that reason there was no basis for making an order substituting the word ‘must’ in s 32(2) with the word ‘may’.

• See employment law update on p 45.

Prescription

Prescription does not run against a claimant who does not have material facts on which the claim is based: The facts in Links v Department of Health, Northern [Cape] Province 2016 (4) SA 414 (CC); 2016 (5) BCLR 656 (CC), were that on 26 June 2006 the applicant, Links, suffered a dislocation of his left thumb and was treated at a hospital under the control of the respondent, the Department of Health, Northern Cape Province. A plaster of Paris cast was applied, after which he was discharged and advised to come back after ten days. Before the given period elapsed he had to go back to the hospital twice because of increased pain. He was admitted on 3 July 2006 and the thumb was amputated on 5 July 2006 but no explanation was given for the amputation. He was eventually discharged at the end of August 2006. In September 2006 he realised that he had permanently lost the use of his left hand and forearm. In December 2006 he approached the Legal Aid Board and gave instructions to institute a claim against the respondent. For three years nothing was done and with a week or two left before a period of three years would elapse since he was injured, the Legal Aid Board referred the claim to a private law firm, which had a summons served on the respondent on 6 August 2009. The respondent raised two special pleas, namely –

• failure to give it notice as required by s 19 of the Institution of Legal Proceedings against certain Organs of State Act 40 of 2002 (the Legal Proceedings Act); and
• prescription of the claim.

As a result a notice was given in terms of the Legal Proceedings Act and application made for condonation of late service thereof. It was only after consultation with a general surgeon in 2011 that the applicant discovered that the cause of amputation of the thumb was that the plaster of Paris was cast too tight and kept for too long.

At the trial Mamosebo AJ refused condonation only because of a finding that the claim had prescribed at the time of service of summons. The SCA granted leave to appeal to the full Bench where Kgomo DJP (Lacock and Pakati JJ concurring) dismissed the appeal for the same reasons as the trial court.

The CC granted leave to appeal, condoned late service of notice in terms of the Legal Proceedings Act and upheld the appeal with costs. Reading a unanimous judgment of the court Zondo J held that the question was whether on or before 5 August 2006 (three years before service of summons on 6 August 2009) the applicant had knowledge of the facts from which the debt arose. To make a determination on that question it was important to bear in mind that from about 3 July 2006 to the end of August 2006 the applicant was in hospital. Therefore, realistically, before the end of August 2006 he could not have had access to independent medical professionals. Accordingly, he could not have had knowledge of all the material facts he needed to have before he could institute legal proceedings. For that reason prescription could not have begun running before 5 August 2006. That had the result that the applicant’s claim did not prescribe. The trial court and full Bench erred in not approaching the matter on the basis that on or before 5 August 2006 the applicant did not know or have reasonable grounds to suspect that his negligent treatment at the hands of the respondent’s personnel led to the compartment syndrome. Nor did he know that such treatment in turn caused the amputation of his thumb and loss of function of his left hand.

NB: The name of the case refers to Northern Province, which might be thought to refer to Limpopo Province before the name change. In fact, the correct name is the Northern Cape Province. Also in para 1 the name of the High Court is referred to as the Northern Cape Provincial Division, instead of the Northern Cape Division, as it should be.

Other cases

Apart from the cases and material dealt with or referred to above the material under review also contained cases dealing with: Adoption proceedings, amendment of pension fund rules, application for asylum, base cost of asset for purposes of capital gains tax, business rescue, claim for loss of value of shares, compulsory sequestration, copyright infringement, jurisdiction of High Court and Labour Court, maintenance of children from deceased estate, meaning of farming operations, relief from oppressive conduct and status and powers of Advertising Standards Authority.

This article was first published in De Rebus in 2016 (Oct) DR 36.