The Law Reports – April 2021

April 1st, 2021
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February [2021] 1 All South African Law Reports (pp 311 – 622); February 2021 (2) Butterworths Constitutional Law Reports (pp 101 – 216)

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
ECL: East London Circuit Local Division
GP: Gauteng Division, Pretoria
KZD: KwaZulu-Natal Local Division, Durban
LC: Labour Court
SCA: Supreme Court of Appeal
WCC: Western Cape Division, Cape Town

Civil procedure

Exceptions to claim for ‘moral damages’: In Trustees for the Time Being of the Burmilla Trust and Another v President of the Republic of South Africa and Another [2021] 1 All SA 578 (GP) the plaintiffs’ claim was for constitutional damages, said to arise from the drastic curtailment of jurisdiction and capacity (shuttering) of an international tribunal, before which the plaintiffs and others had a case pending against the Kingdom of Lesotho. Of the three claims set out in the amended particulars of the claim, the first was for loss of profits – a claim said to have been ceded to the first plaintiff (Burmilla). The second claim was said to have been suffered personally by the second plaintiff (Mr van Zyl) as ‘moral damages’ for humiliation and indignity caused by harassment and intimidation. The third was for the wasted costs incurred in cases in other fora, all of which were from the plaintiffs’ perspective ultimately unsuccessful, in an effort to prevent or reverse the shuttering or to have their claims against Lesotho heard in another forum.

Mr van Zyl was a South African who controlled various Lesotho companies.

The plaintiffs’ cause of action was that the South African government violated the plaintiffs’ rights through its conduct in relation to the Southern African Development Community Tribunal (the SADC Tribunal). In brief, the government was a party to a series of decisions of the Southern African Development Community (SADC), which sought to restrict the jurisdiction and reach of the SADC Tribunal, a body that the SADC had created. The intention behind those decisions was to render the SADC Tribunal unable to pronounce on a pending case before the SADC Tribunal brought by the plaintiffs and the Tributing Companies against Lesotho, as well as three other cases then pending before the SADC Tribunal.

The defendants raised 14 exceptions to the particulars of the claim. The court did not deal with all of them individually because there were certain issues of principle on which some of the exceptions had to be upheld and because the exceptions in some respects overlapped.

A question in this case was whether the law should recognise liability under the South African Constitution to pay monetary compensation to a non-South African national for acts committed by South Africa (SA) in breach of our Constitution and in violation of international law, outside our borders, which caused the economic loss, which was suffered outside our borders. The court, as per Tuchten J, held that morality, the convictions of the South African community and policy do not require that SA should be held liable to compensate a non-national where the South African government breached international law in circumstances such as the present. The plaintiffs’ particulars of the claim, therefore, did not establish legal causation, on the plaintiffs’ claim for monetary compensation. The exceptions to the claim for moral damages were upheld. The court also upheld three other exceptions but dismissed the remainder.

The plaintiffs were granted leave to amend their particulars of the claim.

Corporate and commercial

Contract – claim for payment: In Astral Operations Ltd t/a Early Bird Farm v O’Farrell NO [2021] 1 All SA 350 (KZD) the plaintiff (Astral) produced chicken in large quantities for ultimate sale to the consumer market. Most were sold directly to major supermarket chains, while smaller outlets were generally serviced by wholesalers who bought from Astral. One such wholesaler was a trust (Nambitha) in which the defendants were trustees. Nambitha was a competitor of another wholesaler (Dawoods). In 2011, Nambitha found itself out-traded by Dawoods and its business of selling Astral products collapsed, leaving an unpaid balance owing to Astral.

In its claim against Astral, Nambitha averred that the debt arose from its purchase of the product from Astral. Nambitha contended that it was entitled to lower prices for the product in question, and that a debatement of Astral’s account of its claim against Nambitha would reveal a lesser debt. In a claim-in-reconvention, Nambitha contended that throughout 2011 it was entitled to lower prices than those which were actually charged, and that it should be compensated for loss of profits, as well as the collapse of its business as it was out-traded by Dawoods because Astral afforded Dawoods better prices. Nambitha argued that it was entitled to the same prices.

The first issue in Astral Operations Ltd t/a Early Bird Farm was the proper interpretation of the terms of the contract between the parties with specific reference to Astral’s allegation that it charged its ‘usual prices’ to Nambitha at the time of dispatch of the goods. The second issue was whether the prices charged by Astral for the goods sold were the usual prices in the sense contended for by Nambitha (ie, not favouring any other wholesale customer). That led to the question of whether Astral breached the contract in supplying other wholesalers at lower prices than those allowed to Nambitha.

Regarding the first issue, it had to be determined whether ‘the usual price’ referred to in the contract between Astral and Nambitha meant the best wholesale price not undermined by the grant to any other wholesale customer of rebates or discounts or advertising allowances more advantageous than those afforded to Nambitha. Reliance was placed on an enforceable trade usage or trade practice, or the importation of a tacit term into the agreement. The difficulty was that what Nambitha contended for was not clear or certain, and contradicted the express terms of the contract. That conclusion answered the first question against Nambitha and rendered the second issue irrelevant. It also addressed the third issue, in that it could not be found that Astral breached the contract by charging Dawoods more favourable prices than Nambitha.

A fourth issue raised by Nambitha’s was that it had been induced to buy the goods, which it would not otherwise have purchased, through false representations by Astral. The evidence, however, revealed no misrepresentations. There was no inducement to buy the goods underlying Astral’s claim.

Judgment was granted in Astral’s favour, and Nambitha’s counter-claim was dismissed.

Courts – jurisdiction

High Court’s concurrent jurisdiction with Labour Court: The applicant in Baloyi v Public Protector and Others 2021 (2) BCLR 101 (CC) was a former Chief Executive Officer of the Public Protector (PP), employed as such on a five-year contract that provided for a six-month probation period, which could not be extended for more than 12 months. At the end of the probation period, the employer would be entitled to either terminate the applicant’s appointment or confirm it. Several months after the applicant’s probation period ended, she was informed that the employer was unable to confirm her permanent employment. The applicant launched an urgent application in the High Court contending that the termination of her employment was unlawful and that the PP had not complied with her constitutional obligations in terms of s 181(2) of the Constitution. The High Court dismissed the application on the basis that it lacked jurisdiction to deal with it. The applicant then appealed directly to the CC. She sought a review of the decision to terminate her employment and an order for her reinstatement. She also sought a declaratory order that the PP violated her constitutional obligations under s 181(2) of the Constitution. The applicant challenged the High Court’s ruling that it lacked jurisdiction to deal with the matter.

The CC granted leave for a direct appeal in relation to the jurisdictional challenge. However, it refused leave to appeal in relation to the merits, that is, the review relief and the declaratory relief.

The central issue was thus whether, in terms of the Labour Relations Act 66 of 1995 (the LRA), the High Court and LC enjoyed concurrent jurisdiction over an alleged unlawful termination of a fixed-term contract of employment. Section 157(2) of the LRA provides that ‘[t]he Labour Court has concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the Constitution … and arising from (a) employment and from labour relations; (b) any dispute over the constitutionality of any executive or administrative act or conduct, or any threatened executive or administrative act or conduct, by the state in its capacity as an employer; and (c) the application of any law for the administration of which the Minister [of Labour] is responsible’. The court affirmed that s 157(1) does not afford the LC general jurisdiction in employment matters. Section 157(1) provides that ‘[s]ubject to the Constitution and section 173, and except where [the LRA] provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of [the LRA] or in terms of any other law are to be determined by the Labour Court’. By virtue of s 157(2) of the LRA, the High Court and the LC share concurrent jurisdiction in respect of employment-related disputes over which the LC does not have exclusive jurisdiction. This means that the High Court’s jurisdiction is not ousted by s 157(1) simply because a dispute falls within the overall sphere of employment relations. The LC’s exclusive jurisdiction extends to disputes for which the LRA creates specific rights and remedies, including, for example, unfair dismissal disputes.

The court, as per Theron J (Mogoeng CJ, Jafta, Khampepe, Madlanga, Majiedt, Mhlantla, Tshiqi JJ, Mathopo and Victor AJJ concurring) held that the termination of a contract of employment has the potential to found both a claim for relief for infringement of the LRA and also a contractual claim for enforcement of a right that does not emanate from the LRA. The litigant must decide which cause of action to pursue. The applicant had advanced a claim for contractual breach and had expressly disavowed reliance on the provisions of the LRA. While the applicant might also have a claim for unfair dismissal in terms of the LRA, nothing in the LRA required her to advance that claim in the LC. As for the public law basis for the review relief and the declaratory relief based on s 182(1) of the Constitution, neither of those claims fell within the exclusive jurisdiction of the LC, in terms of s 157(1) of the LRA. The High Court had erred in dismissing the applicant’s application on the basis that it was ‘essentially a labour dispute’ and that the High Court’s jurisdiction was not engaged. The applicant’s appeal against the High Court’s finding on jurisdiction thus had to be upheld. The CC remitted the matter to the High Court for hearing de novo.

Criminal law and procedure

Admissibility of evidence found as result of unlawful search: In Ndlovu and Others v S [2021] 1 All SA 538 (ECG) the appellants were charged in the High Court with various charges arising from ten incidents of rhino poaching that occurred over a period of three years at various farms and nature reserves. They were convicted on almost all the charges and were sentenced to lengthy periods of imprisonment, resulting in an effective sentence of 25 years’ imprisonment. They unsuccessfully applied for leave to appeal against their convictions and the sentences imposed but were granted leave on petition on two limited and narrowly defined grounds.

The questions on appeal were whether –

  • the trial court, acting in terms of s 35(5) of the Constitution, correctly allowed physical evidence found as a result of the unlawful search of a premises to become part of the evidential material placed before it by the state; and
  • or not the cumulative effect of the sentences imposed by the trial court rendered the sentences shockingly disproportionate.

Regarding the first question, it was common cause that the police had entered and searched a chalet in which the appellants were present without a search warrant. The trial court found that the admissibility of evidence that has been obtained in a manner that violates rights guaranteed in s 35(5) of the Constitution unlawful. Section 35(5) envisages a two-step process. First, the evidence sought to be excluded must have been obtained in a manner that infringed on a right guaranteed by the Bill of Rights. If it is found that the impugned evidence was so obtained, the second step is to determine whether the admission of the evidence will render the trial unfair. The section does not provide for the automatic exclusion of evidence that was obtained in violation of a protected right. The court, as per Van Zyl DJP (Griffiths and Roberson JJ concurring), held that the appellants were not in any way compelled to participate in the discovery of the articles in the chalet. Further, the breach of the appellant’s right to privacy did not operate to undermine the reliability of the evidence. The articles were relevant real evidence that existed independently of any of the actions of the police officials and would have been revealed independently of the appellant’s right to privacy. Accordingly, the admission of the evidence did not render the trial unfair. The determination of whether the admission of the evidence would be detrimental to the administration of justice required a value judgment. The court was satisfied that the trial court correctly found that the evidence ought to be admitted, as its exclusion would cause harm to the administration of justice.

It was also not found that the sentences imposed were too harsh.

The appeal was dismissed.

 

Evidence – creditability and reliability of witnesses: The present appeal dealt with the death of a 15-year-old boy (the deceased). The state and the defence presented mutually destructive versions of the circumstances surrounding the boy’s death.

The main witness for the state, Mr Pakisi, testified that the appellants in Doorewaard and Another v S [2021] 1 All SA 311 (SCA) assaulted, mishandled, and threw the deceased out of a moving van, and assaulted, kidnapped and intimidated him. He had been walking towards a sunflower field when he heard a gunshot. He then saw the second appellant holding a firearm and running towards a quad bike, which he drove towards the first appellant, who was in a van with an unknown white man. Mr Pakisi testified that he heard the deceased crying in the back of the van, before the second appellant threw him out of the moving van. After the appellants picked up the deceased again, they drove into the field, and on re-emerging, they confronted Mr Pakisi about what he had seen. He alleged that he was kidnapped, threatened and assaulted by the appellants. He stated that he subsequently attempted to lay charges against the appellants but was met by a lack of cooperation by the police.

The appellants denied all the charges against them. They alleged that on that day they had noticed two boys stealing sunflower heads from their employer’s farm. They had traced one of the boys, which was the deceased. The appellants alleged that the boy had agreed to take them to the other boy, and had sat in the back of their van, but had jumped out of the moving van during the drive, injuring himself.

The appellants were convicted in the High Court on charges of murder, kidnapping, intimidation, theft, and the pointing of a firearm. They obtained leave to appeal against their convictions.

The state bears the onus to prove the guilt of an accused beyond a reasonable doubt. Where there are two mutually destructive versions, as in this case, the court must consider the credibility and reliability of the witnesses. Evidence that is reliable should be weighed against the evidence that is found to be false and, in the process, measured against the probabilities. In the final analysis the court must determine whether the state has satisfied the requirement of proof beyond a reasonable doubt.

In this case, there were serious evidentiary deficiencies due to the manner in which the case was handled and investigated by the police. There were also material discrepancies in the evidence of Mr Pakisi, who was a single witness with no corroboration to his evidence. The inference drawn by the trial court that the deceased had been thrown from the van was not supported by the facts. Even though the appellants’ version regarding how the deceased vanished from their vehicle was unsatisfactory, the state did not prove its case beyond a reasonable doubt. Consequently, the appeal was upheld and the appellants were acquitted.

In a minority judgment it was stated that the murder charge should be replaced with one of culpable homicide in that the appellants had negligently caused the death of the deceased by not providing any medical assistance after he was injured.

Family law and persons – succession

Right to inherit from child’s estate: In Wilsnach NO v TM and Others [2021] 1 All SA 600 (GP) the first and second respondents were respectively the parents of a child born in 2013 and diagnosed with cerebral palsy. The child died in 2018. The second respondent and the child lived with the third respondent (the second respondent’s mother) who provided them with a home and took care of their basic needs.

On the child’s death, all three respondents laid claim to his estate. The first and second respondents based their claim on their status as parents, and the third respondent on her having been awarded parental rights and responsibilities by the court.

Kollapen J held that it had to be determined whether each of the respondents qualified as a parent for the purpose of inheriting as contemplated in s 1(1)(d) of the Intestate Succession Act 81 of 1987.

The first respondent had nothing to do with his child since birth, largely because of the child’s condition. He, therefore, at no time fulfilled his parental obligations in terms of the Children’s Act 38 of 2005. To then regard him as a parent in terms of the Intestate Succession Act would offend against the constitutional scheme on which that Act was founded. The court ruled that the first respondent did not meet the factual or legal requirements of parenthood and was not entitled to inherit from the estate of the child.

While the second respondent’s performance of her duties as mother was open to some question, she did care for the child in the first two years of his life. She was recognised as a parent in terms of both the Children’s Act and the Intestate Succession Act.

The primary caregiver and dominant parental figure in the child’s life was the third respondent. The court described the pivotal role she played in the child’s life and concluded that she was a parent for the purpose of inheriting as contemplated in s 1(1)(d) of the Intestate Succession Act.

The second and third respondents were to inherit in equal shares from the estate of the child.

Insurance law

Interpretation of indemnity clauses: In March 2020, the COVID-19 pandemic was declared a national disaster in South Africa. Regulations were then issued in an attempt to curb the spread of the virus including a national lockdown and a prohibition on the sale of alcohol.

The applicants in Grassy Knoll Trading 78 CC t/a Fat Cactus and Another v Guardrisk Insurance Company Limited [2021] 1 All SA 503 (WCC) operated restaurants in Cape Town. The impact of the pandemic led to a decline in their business, exacerbated by the alcohol ban. In order to reduce overall losses, the applicants closed their restaurants. In June 2020, the applicants submitted claims to the respondent (Guardrisk) under a business interruption section of their insurance policy, for losses, which they suffered. The ‘disease clause’ on which they relied, insured them against loss resulting from interruption of, or interference with their business due to ‘notifiable disease occurring within a radius of 50 km of the premises’. The claims were rejected on the ground that the applicants had not provided evidence that their loss was a consequence of a confirmed case of COVID-19 within the specified radius of their premises. Guardrisk maintained that the business interruption suffered by the applicants was not caused by the occurrence of COVID-19 within a 50 km radius of their premises, but by the global COVID-19 pandemic and the government’s response to it, which in Guardrisk’s submission were not perils covered by the policy.

The applicants sought a declaratory order that Guardrisk was obliged to indemnify them under their insurance policy.

It was held by Norton AJ that insurance contracts must be interpreted in accordance with the usual rules of interpretation, having regard to their language, context and purpose, and preferring a commercially sensible meaning over one that is insensible or at odds with the purpose of the contract. A commercially sensible meaning, in respect of an insurance contract, is a meaning that both the prospective insured and the insurer must have regarded as meeting their aims in concluding the policy.

The first aspect addressed by the court was the required causal relationship between the notifiable disease peril and the business interruption in the policy. The general approach, unless a different intention appears from the insurance contract, is that the insured peril must be the factual cause and the legal cause of the loss or occurrence, which is covered by the contract. When there are two or more possible causes of the loss or occurrence, which is covered by the contract, a court must determine which is the proximate cause. The disease clause in this case was found to provide cover where the insured peril was the factual and legal cause of the insured’s business interruption, and the proximate cause if there were other competing causes.

On a proper interpretation of the disease clause, the court concluded that the clause provided cover for business interruption caused by the COVID-19 pandemic and the government’s response to it, provided that there had been an occurrence of COVID-19 within the specified radius of the insured’s premises. The applicants were granted the declaratory relief sought regarding Guardrisk’s liable to indemnify them for losses resulting from the business interruption.

Legal practice – unprofessional conduct

Ethical duties of legal representatives: In Mzayiya v Road Accident Fund [2021] 1 All SA 517 (ECL) an application for default judgment was made by the plaintiff in a motor vehicle accident case. In his particulars of the claim, the plaintiff alleged that an unidentified motor vehicle had collided with him on 20 March 2019. Compensation was sought from the defendant.

In an affidavit deposed to on 18 August 2020, the plaintiff’s legal practitioner (Mr Klaas) admitted that the allegation that the accident occurred on 20 March 2019 was false, and it was stated that the accident in fact occurred on 15 February 2007, more than 12 years earlier.

In Mzayiya several issues were of concern to the court. No explanation was given for the misrepresentation and no amendment was sought to correct the date. Another troubling aspect raised by the court was the possibility that someone other than the plaintiff might have signed the affidavits. The affidavit in support of the claim was commissioned by the same advocate who appeared in court for the plaintiff. The court questioned the propriety of the advocate’s subsequently appearing in a matter where he had commissioned one of the affidavits relied on in support of the application, he being at all material times under an ethical duty to maintain his independence in relation to his client and the litigation.

The court, as per Kroon J, held that the claim was a bogus one based on the incorrect premise that the accident occurred on 20 March 2019 and that future medical expenses and loss of earnings should be calculated from that erroneous date onwards. How the incorrect date came to be used in the papers was a matter of concern as the accident reports clearly showed the correct date. Moreover, a draft order presented to court reflected the correct date, suggesting an attempt to obtain relief by way of a draft order containing facts materially different to what was contained in the particulars of claim and affidavit deposed to in support of the default application, and without the knowledge of the defendant.

The issues raised led the court to explain the ethical standards required of legal practitioners. A legal practitioner has a pre-eminent duty to the court not to embark on a litigation plan that will mislead the court.

As the particulars of claim on which the application for default judgment was sought referred to a non-existent accident, the relief sought could not be granted. In any event, given the manner in which the plaintiff’s legal representatives approached the court, the matter could not be entertained, and was accordingly struck from the roll. The court questioned whether the legal representatives who were responsible for lodging and prosecuting the claim and seeking default judgment might have been guilty of unprofessional conduct. As a result of the questions about their bona fides, the matter was referred to the appropriate bodies for further investigation. Should the plaintiff wish to proceed with the claim he was required, within 21 days, to bring a substantive application for leave to amend his particulars of the claim to reflect the correct date of the accident and was required to give a full explanation as to the matters raised in the court’s judgment.

Other cases

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

  • administration of estates, heirs and legatees unworthy of inheriting by testament or intestacy;
  • administrative law not applying to disputes where cause of action and remedy covered by the Labour Relations Act;
  • appropriate test, which must be used when determining the guilt of the accused person;
  • banker and client relationship and non-disclosure of limitations of a security system;
  • constitutional right to adequate medical treatment of prisoners;
  • conventions, treaties and judicial cognisance of existence of treaties and its contents;
  • interrogation and compulsion to answer notwithstanding possibility of self-incrimination; and
  • unlawful and irrational lawfulness of shortening of notice period for termination of contract/tender of Road Accident Fund panel attorneys.

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

This article was first published in De Rebus in 2021 (April) DR 27.

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