The Law Reports – April 2023

April 1st, 2023

February [2023] 4 All South African Law Reports (pp 299 – 577); January – February 2023 Judgments Online

This column discusses judgments as and when they are published in the South African Law Reports, the All South African Law Reports, the South African Criminal Law Reports and the Butterworths Constitutional 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.


ECP: Eastern Cape Division, Gqeberha (formerly Port Elizabeth)

FB: Free State Division Bloemfontein

GJ: Gauteng Local Division, Johannesburg

MM: Mpumalanga Division, (Main Seat) Mbombela

SCA: Supreme Court of Appeal

WCC: Western Cape Division, Cape Town

Civil procedure

Failure to amend particulars of claim to reflect true basis of case: Plaintiff in Lehlehla v Minister of Police [2023] 1 All SA 438 (WCC) alleged she had been unlawfully shot in the right eye by members of the police (SAPS) and sued for damages. The incident occurred during a riot in August 2011, in which police in Grabouw were called on to control and disperse an armed gathering of over 1 000 people. Police were accused of having breached the duty of care they owed to the plaintiff by failing to handle their firearms with proper consideration for safety of members of the public; and failing to avoid the shooting of the plaintiff when by the exercise of reasonable care, they should have done so.

Defendant denied that injury was sustained because of any conduct by SAPS. Alternatively, it was pleaded that the SAPS members in question had acted out of necessity; that the plaintiff had voluntarily assumed the risk; and that her own negligence had contributed to the injury she sustained. It was argued that the plaintiff had knowledge of the risk in approaching the gathering and, therefore, consented to the possibility of injury or failed to exercise reasonable care (the further alternative defence of contributory negligence).

The evidence suggested that she had passed at least alongside the protesters at a time when they had already begun an assault on the SAPS members. The plaintiff must have heard shots being fired even before she left her home but proceeded towards the scene of the protests.

The manner in which the plaintiff had pleaded her case was critical. She had specifically pleaded dereliction of duty by SAPS but relied in her testimony on the actions of a community patrol unit (the ‘POP unit’). The particulars of claim were not amended to reflect the true basis of the case, with the result that the defendant was provided with no factual basis alerting him of the case he would later be required to meet.

Finally, the police were found to have acted out of necessity when discharging their firearms containing rubber bullets. As shown above, the plaintiff also voluntarily assumed the risk of injury, whether at the hands of one or more of the protesters or the SAPS members acting out of necessity. In the premises, her claim was dismissed.


Rule 33(4) application – application for separate adjudication of special plea: In MEC for Public Works, Roads and Transport, Free State Province v Van der Merwe and Others; In re: Van der Merwe v MEC for Public Works, Roads and Transport, Free State Province and Others [2023] 1 All SA 154 (FB), the plaintiff instituted action against the first defendant (the MEC) for damages she suffered as a result of an accident which occurred on a provincial road. At the time of the accident, the first respondent/plaintiff was driving the bakkie in the course and scope of her employment. The action was contested by the MEC and after the parties agreed that the adjudication of the merits and quantum be separated in terms of r 33(4), the matter went on trial in relation to the merits. The court held the MEC liable to the plaintiff for 100% of her agreed or proven damages. Two interlocutory applications filed by the MEC were granted, leading to the joinder of the Compensation Commissioner appointed under s 2(1)(a) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 and the Minister of Labour and Director-General of the Department of Labour who administered the latter Act. It was common cause that the plaintiff submitted claims to the Compensation Commissioner, who accepted liability to compensate the plaintiff for her reasonable medical expenses and her loss of earnings.

The MEC, in terms of r 33(4), sought to have a special plea separated and adjudicated before any other issues in the trial on quantum of the claim. The special plea stated that in terms of s 36(2) of the Compensation for Occupational Injuries and Diseases Act, when awarding damages in an action referred to in s 36(1)(a) thereof, the court shall have regard to the compensation paid in terms of the Act. The MEC contended that consequently, all payments made and to be made in the future to the plaintiff in terms of the Act should be considered by the court, reducing the damages commensurately. The plaintiff replied that her claims for medical aid and essential help would terminate with effect from date of the court’s award, and she would thenceforth seek compensation in respect of future hospital, medical and related expenditure and essential help from the MEC, and not from the Compensation Commissioner.

Rule 33(4) provides that where it appears to the court mero motu that there is a question of law or fact, which may conveniently be decided either before any evidence is led or separately from any other question, the court may make an order directing the disposal of such question in such manner as it may deem fit, and may order that all further proceedings be stayed until such question has been disposed of, unless convenience dictates otherwise. The Supreme Court of Appeal has in recent times adopted a strong view that the convenient and expeditious disposal of litigation is not always achieved by separating the issues but often best served by ventilating all the issues at one hearing. Therefore, it is incumbent on both parties to place all relevant information before the court to enable it to exercise its discretion.

The potential merits of the second special plea constituted an arguable issue for purposes of a separate hearing should the r 33(4) application be successful. However, the adjudication of the special plea would require extensive evidence and a separate hearing would not shorten the proceedings. It would also lead to the overlapping and/or duplication of evidence, including expert evidence. The r 33(4) application was accordingly dismissed.


Absolution from the instance: In Van Zyl NO obo AM v MEC for Health, Western Cape Provincial Department of Health [2023] 1 All SA 501 (WCC) action was instituted by a curator ad litem on behalf of a patient seeking to recover damages from the defendant, who bore responsibility for any acts or omissions by staff at the hospital treating the patient, resulting in injury and damages. The patient suffered brain damage when being revived from anaesthetic at the hospital.

The patient appealed against the trial court’s granting of absolution from the instance.

Absolution was granted solely on the basis that the plaintiff had failed to adduce sufficient evidence to make out a case for negligence on the part of the defendant. The court discussed principles and the approach on appeal against an order for absolution. The authorities confirm the low threshold of proof in applications for absolution, with the enquiry being merely whether a prima facie case has been set up by the plaintiff.

The court addressed the function of an expert witness in a matter such as this. Such functions are threefold. First, where the experts have themselves observed relevant facts, that evidence will be evidence of fact and admissible as such. Second, expert witnesses provide the court with abstract or general knowledge concerning their discipline, that is necessary to enable the court to understand the issues arising in the litigation. Thirdly, they give evidence concerning their own inferences and opinions on the issues in the case and the grounds for drawing those inferences and expressing those conclusions. The court must be satisfied that such opinion has a logical basis. Expert opinion evidence should only be excluded when it impacts adversely on the right to a fair trial.

In this case, the evidence established that the doctor treating the patient did not act appropriately and timeously. The court a quo ought to have found that the plaintiff had made out a prima facie case of negligence.

The appeal was thus upheld.


Lease agreement – right of pre-emption: Respondent (Dahlia) was the owner of a farm which consisted of eight portions. The appellant (Plattekloof) owned an adjoining farm. In April 2018, Dahlia and Plattekloof entered into a lease agreement in terms of which Plattekloof rented two portions of Dahlia’s farm. The lease agreement provided for a right of pre-emption (clause 10) in Plattekloof’s favour. In terms of a deed of sale concluded on 7 April 2020, Dahlia sold the farm to a third party (Swellendam Plase). On finding out about the sale, Plattekloof claimed specific performance of the right of pre-emption. It approached the High Court for compliance with the relevant clause in the lease agreement. The court dismissed the application, resulting in an appeal.

On appeal in Plattekloof RMS Boerdery (Pty) Ltd v Dahlia Investment Holdings (Pty) Ltd [2022] JOL 56580 (SCA), the first question was whether the sale of the farm gave rise to an obligation on the part of Dahlia to make an offer to Plattekloof in terms of clause 10. The answer depended on an interpretation of clause 10 in terms of the ordinary well-known principles of construction of contracts. It had to be determined whether clause 10 meant that the right of pre-emption would only be activated if Dahlia received an offer for the two portions on their own. The High Court’s finding that the rights of the appellant in terms of clause 10 had been activated was confirmed on appeal.

On the issue of remedy, however, the court parted ways with the High Court. In terms of clause 10, Plattekloof had no more than the right of first refusal to purchase the two portions of the farm. Its offer had to be the same or not less favourable than that which a bona fide third party offered in respect of the two portions. Thus, Dahlia was contractually obliged to determine in good faith what portion of the Swellendam Plase offer pertained to the two portions and to offer that to Plattekloof. Dahlia was ordered to deliver its offer to Plattekloof accordingly.

Family law and persons

Divorce – r 43 application: Against the backdrop of acrimonious divorce proceedings, the court had to decide on an r 43 application brought by the applicant in HSH v MH [2023] 1 All SA 413 (GJ). The interests of the parties’ three children and the applicant’s need for interim maintenance were considered.

The high level of parental conflict heightened the need to protect the children, particularly as the conflict had resulted in various behavioural problems. Section 6(4) of the Children’s Act 38 of 2005 provides that in any matter concerning a child, an approach which is conducive to conciliation should be followed. Delay in any decision to be taken must be avoided as far as possible. The court appointed a social worker to deal with the high level of conflict between the parties and ordered that the children’s primary residence be with the applicant.

In deciding on interim maintenance, the court took note of the disparate financial means of the parties, with the applicant clearly unable to live or litigate at the same level as the respondent. Applicant’s entitlement to maintenance had to be assessed having regard to the standard of living enjoyed by the parties during the marriage. The monthly amount of R 104 000 claimed was reasonable in the circumstances.

The main aspect addressed was the request for a contribution to legal costs. Rule 43 of the Uniform Rules of Court provides an interim remedy to assist an applicant for a limited period before a divorce is finalised, in respect of, inter alia, a contribution to legal costs. Rule 43 ensures that neither party is prejudiced during the divorce proceedings by a lack of resources to maintain a reasonable standard of living, or to pursue their case in the main action.

It has been established in case law that there is no reason why an applicant may not be entitled to all of her costs, so that the parties are able to place their case before the court on an equal footing. In circumstances where one party causes the other to bear unnecessary costs, entitlement to full costs would be negatively impacted. The respondent was ordered to pay an amount of R 830 000 as a contribution towards applicant’s legal costs within 10 days of the order.

Personal injury/delict

Unlawful arrest and detention – lawfulness of arrest without warrant: In Lifa v Minister of Police and Others [2023] 1 All SA 132 (GJ), the plaintiff (Mr Lifa) claimed delictual damages from the defendants based on unlawful arrest and detention, and malicious prosecution. The defendants were the Minister of Police, the Minister of Justice and Correctional Services and the National Prosecuting Authority. The claim relating to malicious prosecution was withdrawn. The issues for determination were whether or not Mr Lifa’s arrest by a member of the SA Police Services and the subsequent detention was unlawful and, if so, the determination of damages. Only the Minister of Police remained potentially liable for those damages.

Section 40(1)(b) of the Criminal Procedure Act 51 of 1977 deals with arrest without a warrant. A peace officer may, without warrant, arrest any person whom he reasonably suspects of having committed an offence referred to in schedule 1, other than the offence of escaping from custody. The law pertaining to arrest without warrant has been described as requiring –

  • that the jurisdictional prerequisites for subs 40(1)(b) be present;
  • awareness by the arrestor that he has a discretion to arrest; and
  • exercise of such discretion with reference to the facts.

There is no jurisdictional requirement that the arresting officer should consider using a less drastic measure than arrest to bring the suspect before court. When a peace officer has an initial suspicion, steps must be taken to have it confirmed in order to make it a reasonable suspicion before the peace officer arrests. The discretion to arrest must be properly exercised. In objectively determining when an arrestor has acted arbitrarily the court should consider whether he applied his mind to the matter or exercised his discretion at all. The onus rests on the arrestor to prove that the arrest was objectively lawful. That onus was not discharged in this case.

The court identified the period for which damages should be awarded, and awarded Mr Lifa R 600 000 in damages.


Claim for damages – malicious prosecution: The plaintiff in Mdhlovu v National Director of Public Prosecutions [2023] 1 All SA 458 (MM), a regional court prosecutor, having formed the view that a case handed to him suffered insurmountable contradictions in the facts, exercised his discretion to withdraw the charges in the matter. He was subsequently criminally charged for his action but was found not guilty at his trial and was discharged in terms of s 174 of the Criminal Procedure Act 51 of 1977. He sued the National Director of Public Prosecutions (NDPP) based on his alleged malicious prosecution by the NDPP, acting through its employees who had acted within the course and scope of their employment.

In order to succeed on the merits with a claim for malicious prosecution, a plaintiff must prove that the –

  • defendant set the law in motion, namely, instigated or instituted the proceedings;
  • defendant acted without reasonable and probable cause;
  • defendant acted with ‘malice’ or animus iniuriandi; and
  • prosecution had failed.

In considering whether the NDPP had acted with reasonable and probable cause and with malice, the court noted the acknowledgment by the prosecutor acting on behalf of the state that the plaintiff should have been called to a disciplinary enquiry instead of being criminally charged.

The actio iniuriarum is a cause of action whereby a plaintiff can claim for injuries to his person, dignity or reputation, where the injury is committed wrongfully and with animus iniuriandi (intentionally). It is not sufficient for a defendant to merely deny animus iniuriandi. He must allege and prove the factual basis for the absence thereof.

In order to succeed in an action for malicious prosecution, a plaintiff must prove that the –

  • defendant instituted or instigated the proceedings;
  • defendant acted intentionally or with animus iniuriandi;
  • defendant acted without reasonable and probable cause;
  • defendant was actuated by an improper motive or malice;
  • prosecution has failed or has been terminated in the plaintiff’s favour; and
  • plaintiff suffered damages.

Both the requisite objective and subjective elements in respect of the NDPP’s animus iniuriandi were present in this matter. The court found that the plaintiff had proved on a balance of probabilities that the NDPP’s deputy acted with animus iniuriandi, and that no defence was established.

The NDPP was held liable to the plaintiff, under the actio iniuriarum, for the damages caused to the plaintiff’s personality and dignitas through his malicious prosecution.


Claim for damages – medical negligence: The plaintiff in Williams v Member of the Executive Council, Department of Health, Eastern Cape and Another [2023] 1 All SA 562 (ECP) claimed compensation from the defendants, respectively the provincial health department and the medical superintendent, after her husband died on falling from the fifth floor of a public hospital. On being admitted to the hospital, the deceased was identified as having a history of alcohol abuse, displaying irrational behaviour, suffering from chronic alcoholic liver disease and demonstrating clear signs of severe alcohol withdrawal.

The issues of negligence and causality would be tried separately from, and prior to, the remaining issues in the action. The treating medical and nursing personnel were under a legal duty to provide the deceased with adequate and timeous medical treatment with such professional skill and care as may reasonably be expected of reasonable medical and nursing personnel in similar circumstances, failing which, it was reasonably foreseeable that the deceased would wander around the hospital in a state of psychosis and confusion, while having visual and auditory hallucinations and alcohol withdrawal delirium.

The only oral evidence tendered at trial was that of the parties’ respective expert witnesses. In considering the expert evidence adduced, the court reminded that it is the court’s task to determine issues of fact and not that of an expert witness. The key function of an expert witness is to guide the court in its decision-making process on questions which fall within the ambit of the expert’s specialised field of knowledge. The court was satisfied that the factual basis on which the respective expert witnesses expressed their opinions, was not in dispute between the parties. A conflict did arise in the experts’ analysis of the established and/or common cause facts; and regarding the accepted standard of care/treatment by a medical practitioner in certain circumstances. The opinion advanced by an expert witness must be properly motivated. Where the court is presented with competing opinions, it is incumbent on it to carefully consider the underlying reasoning of the respective experts to enable it to choose which of the opinions to adopt, if any, and to what extent. In doing so, the court, after a careful evaluation of the expert testimony, is required to justify its preference for one opinion over the other.

Negligence will be established if a reasonable person would foresee the reasonable possibility of his conduct injuring another and causing him patrimonial loss and would have taken reasonable steps to guard against the occurrence of harm. The established test relating to the diligens paterfamilias was set out by the court. The onus rested on the plaintiff to establish the presence of negligence. The court found that negligence on the part of the hospital staff was established, as was causation.

The defendants were held liable, jointly, and severally, for plaintiff’s proven damages.

Wills, trusts and estates

Sale to company owned by trustees, of shares owned by trust: In Kuttel v Master of the High Court (Western Cape Division) and Others [2023] 1 All SA 17 (SCA), the applicant’s father had created a trust in which applicant and his brothers were beneficiaries. Although his brothers were trustees in the trust, the applicant was not. In 2012, the trustees decided to restructure the trust’s assets. One of the transactions involved the sale by the trust of its shares in a company owned by his brothers. The applicant challenged the validity of that transaction, objecting to not having been informed of the transaction and taking issue with the trustees’ decision to sell the shares. The High Court dismissed his application to set aside the sale of the shares. In seeking leave to appeal, the applicant relied on the modern custom of requiring a court’s confirmation when a trustee purchases immovable property from a trust. He argued that the transaction was invalid for failure to comply with such practice; that the transaction was not open and bona fide; and that he was treated unequally.

The custom of obtaining a court’s confirmation was a rule of practice that only related to the purchase of immovable property. The applicant attempted to bring the sale of shares transaction within the practice by arguing that the sale of shares, when the company concerned owned immovable property, was akin to the sale of the company’s immovable property. That proposition was rejected by the court.

Where a co-trustee obtains the consent of their co-trustee to purchase trust property, the sale must be open and bona fide. Evidence of how the trustees in this case took their decision regarding determination of the purchase price, was adduced. The court accepted that the method employed reflected fair market value for the shares. It was clear that the trustees had satisfied themselves that the transaction was open and bona fide.

That left the allegation by the applicant that he had been treated unfairly, leading to the voidability of the sale transaction. Trustees have extensive powers to realise assets or investments, and in terms of the trust deed were given a wide discretion as to how they performed their functions. The trust deed did not require notice to or the consent of the beneficiaries. It only required that the trustee concerned disclosed his interest to the other trustees before any contract was concluded. To the extent that it might be said that the applicant was treated differently to his brothers, that differentiation was held to be justified, and not unfair. The application was dismissed.

Other cases

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

  • bill of costs – taxation – review;
  • civil procedure – evidence – expert opinion;
  • criminal law and procedure – drug offences – cultivation of cannabis;
  • legal practice – attorney – misconduct – application for striking from roll; and
  • personal injury/delict – unlawful arrest and detention.

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

This article was first published in De Rebus in 2023 (April) DR 22.