The law reports – April 2024

April 1st, 2024
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January [2024] 1 All South African Law Reports (pp 1 – 331); February [2024] 1 All South African Law Reports (pp 333 – 614); Judgments online – January 2024

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.

Abbreviations:

ECG: Eastern Cape Local Division, Makhanda (formerly Grahamstown)

ECM: Eastern Cape Local Division, Mthatha

GJ: Gauteng Local Division, Johannesburg

GP: Gauteng Division, Pretoria

KZP: KwaZulu-Natal Division, Pietermaritzburg

NWM: North West Provincial Division, Mahikeng

SCA: Supreme Court of Appeal

WCC: Western Cape Division, Cape Town

Civil procedure

Application to found or confirm jurisdiction: The second and third applicants were trustees in the insolvent estate of the first applicant (Yzerfontein), a business operated by the first respondent’s son (Mr Ferreira). According to the applicants, funds intended to be used to pay Yzerfontein’s creditors were instead used by Mr Ferreira to renovate property owned by the first respondent. The property was subsequently sold and the proceeds from the sale had been paid to the second respondent (ABSA). The applicants launched an urgent ex parte application to attach funds of the first respondent held with ABSA, to confirm jurisdiction in respect of an action instituted against the first respondent and Mr Ferreira for payment of damages and/or recovery of assets allegedly misappropriated pursuant to various dispositions without value and collusive dealings committed by the first respondent and Mr Ferreira against the applicants. An interim order was obtained, and in Yzerfontein Curesmiths (Pty) Ltd t/a Flying Pig (in liquidation) and Others v Laubscher and Another [2024] 1 All SA 564 (WCC), the court had to decide whether the order should be confirmed.

Section 21(3) of the Superior Courts Act 10 of 2013 provides for the issuing of an order for attachment to confirm jurisdiction. Where an attachment is sought to confirm jurisdiction, some ground for that jurisdiction, other than the attachment, must be present.

The applicant bears the onus of satisfying the court that it has a prima facie case against the respondent in respect of the relief sought; that on a balance of probabilities, it is an incola and the respondent is a peregrinus; and that the property sought to be attached is that of the respondent. Although the first respondent did not dispute that the court had jurisdiction, the applicants contended that a consent to jurisdiction after the attachment has been made, is not a ground for the attachment to be discharged. The court concluded that the first respondent’s consent to jurisdiction was not dispositive of the matter.

The applicants’ case was based on an alleged disposition without value as referred to in s 26 and collusive dealing before sequestration as referred to in s 31 of the Insolvency Act 24 of 1936; the actio pauliana, which is an action to recover assets alienated by the insolvent with the intention to defraud creditors; and s 424 of the Companies Act 61 of 1973. The court found that the applicants had made out a prima facie case against the first respondent for the relief sought. The rule nisi was confirmed.

 

Non-compliance with court order: In Madiro v Madibeng Local Municipality and Others and a related application [2024] 1 All SA 225 (GP), the applicant (Mr Madiro) approached the court for an order authorising warrant of arrests for the municipal managers of the Madibeng Local Municipality and the Bojanala Platinum District Municipality. In terms of an interdict obtained by Mr Madiro in 2018, the two Municipalities were ordered to ensure that sewerage discharged on Mr Madiro’s property be cleared. Mr Madiro also obtained an order in 2019, declaring the municipal managers to be in contempt of court. In counterapplications, the Madibeng respondents applied to rescind and set aside both the interdict and contempt orders.

The Madibeng respondents relied on r 42(1)(a), which provides for rescission or variation of an order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby. However, where the Madibeng respondents deliberately elected to be absent, their absence did not fall within the scope of r 42(1)(a). Rescission of a default judgment may also be granted under the common law, with an applicant being required to show good or sufficient cause.

For relief based on contempt of court, Mr Madiro bore the onus to prove that a court order was granted; that the court order was served on the municipal managers or that the municipal managers had knowledge thereof; and that the court order was not complied with by them. If those requirements were established, a presumption would arise that the non-compliance was wilful and mala fide. Once Mr Madiro had satisfied the requirements to prove contempt, an evidentiary burden shifted to the respondent to show reasonable doubt. Should the respondent fail to discharge that burden, contempt would have been established. Both sets of respondents were found not to have complied with the court order. That non-compliance was proven to be mala fide. The court issued an order setting out the steps to be taken by the respondents, and in the event of non-compliance, the recourse available to Mr Madiro.

 

Threshold requirements for Anton Piller order: The applicant (Supercart) and respondent (Vanesco) were commercial competitors in the design, manufacture, and supply of a variety of different trolleys used by supermarkets. Supercart alleged that Vanesco’s conduct infringed its rights pursuant to a design it had registered under the Designs Act 195 of 1993. Vanesco contended that the design was not novel or original as at the date of its registration, and that it had therefore, not been validly registered. In Supercart South Africa (Pty) Ltd v Vanesco (Pty) Ltd and another [2024] 1 All SA 455 (GJ), Vanesco sought the reconsideration and setting aside under r 6(12)(c) of the Uniform Rules of Court of what both parties referred to as an Anton Piller order that Supercart had sought on an ex parte basis and in camera. The respondents mounted a challenge that started by impugning the application as an abuse of process in its very conception, proceeded to question the completeness of the information that was placed before the court, alleged a lack of justification for a number of the substantive and procedural features of the order as sought and granted, and finally the manner in which it was executed.

The three threshold requirements for an Anton Piller order at the ex parte stage are that the applicant has a cause of action against the respondent which it intends to pursue; that the respondent has in its possession specific documents, which constitute vital evidence in substantiation of the applicant’s cause of action; and that there is a real and well-founded apprehension that this evidence may be hidden or destroyed or in some manner spirited away by the time the case comes to trial. The court considered the proper approach to be taken in weighing the evidence when reconsidering the Anton Piller order. The court decided that the Anton Piller order should be allowed to stand as granted in all significant respects save in two respects.

Criminal law

Appeal against conviction and sentence: The appellant in Ntshongwana v S [2024] 1 All SA 345 (SCA) was arrested for the murder of four people who had been hacked to death. On further investigation, the perpetrator of the crimes was linked to two more incidents, four months earlier. Those incidents involved an assault with intent to do grievous bodily harm of a man; and the kidnapping and rape of a woman on multiple occasions over a period of three days. The appellant pleaded not guilty. His defence appeared to be that he suffered from a mental illness, and that by reason of such mental illness, he lacked criminal capacity. The type of defence sought to be raised is commonly referred to as a defence of pathological incapacity. Section 78(1) of the Criminal Procedure Act 51 of 1977 (the CPA) regulates such a situation.

There is a presumption in terms of s 78(1A) that the appellant was not suffering from a mental illness at the time of the commission of the offence so as not to be criminally responsible in terms of s 78(1). The appellant bore the onus to prove the contrary on a balance of probabilities. In this case, the trial court justifiably concluded that the only reasonable inference to be drawn, consistent with the proven facts, was that the murders were premeditated, and that the appellant was criminally responsible. In respect of the kidnapping and rape counts, the appellant’s actions were also indicative of conscious and goal-directed behaviour. His claim to suffer from amnesia was of no assistance as that was not a defence to the crimes. On a conspectus of all the evidence, the appellant failed to show any misdirection by the full court on the facts or the law. In addition, no circumstances were shown to justify interference on appeal with the finding that the appellant was able to appreciate the wrongfulness of his actions and that he was able to act in accordance with his appreciation of the wrongfulness of his actions during the commission of the offences. The appeal against conviction was dismissed.

Evidence

Assessment of evidentiary basis of murder conviction: The appellant in Cupido v S [2024] JOL 62513 (SCA) was convicted of murder, attempted murder, unlawful possession of a firearm and unlawful possession of ammunition. The charges followed a shooting during a drug deal, in which one person was killed and another was shot in the jaw (the complainant). The state relied on the complainant’s identification of the appellant in bringing charges against him. The appellant’s appeal against his convictions was dismissed by the full court, and he obtained special leave to appeal to the Supreme Court of Appeal.

Tokota AJA refers to s 208 of the Criminal Procedure Act 51 of 1977, which provides that an accused may be convicted of any offence on the single evidence of any competent witness, and confirms the general approach as to how the evidence of a single witness should be treated.

Where the complainant had already positively identified the perpetrator to the police, it was not necessarily wrong to show a photograph of suspects to confirm existing suspicions and to ascertain the identity of suspects that had already been described. The judgment went on to discuss the accused’s privacy rights in connection with his photograph, evaluation of exculpatory statements made in the appellant’s plea explanation, the trial court’s discretion to admit or exclude portions of the bail record, and the trial court’s exclusion of hearsay evidence.

The court dismissed the appeal.

 

Court’s duty in assessing single witness evidence: The High Court having dismissed the appellant’s appeal against his convictions on charges of rape, he obtained special leave to appeal to the SCA. The appellant in Jantjies v S [2024] JOL 62549 (SCA) denied having raped the complainant, and alleged that the complainant had fabricated the accusation because he had stolen money from her and terminated their relationship.

Matojane JA found that the trial court had adopted an incorrect judicial approach to the evaluation of evidence and failed to exercise caution when it evaluated the evidence of a single witness, and the High Court materially misdirected itself by not taking into account the entirety of the evidence and neglecting the fundamental principle in criminal proceedings that the state must prove its case beyond a reasonable doubt. The state’s case was wholly dependent on the testimony of the complainant. Section 208 of the Criminal Procedure Act 51 of 1977 provides that an accused may be convicted of any offence on the evidence of a single competent witness. The trial court is tasked with meticulously evaluating the evidence in such circumstances. The credibility and reliability of the complainant’s evidence considering all other evidence presented was unsatisfactory in this case, and there was no independent support for her allegations.

The appeal was upheld.

Insolvency

Application for winding up of company based on alleged inability to pay debts: An application by a creditor, in Nobilatus Projects 23 (Pty) Limited v K2015351259 (South Africa) (Pty) Limited [2024] 1 All SA 407 (NWM) to wind up the debtor company (K2015) for inability to pay debts. K2015 had acted as surety for loans taken by another company Improfin. When Improfin defaulted, K2015 as surety failed to pay the outstanding debt owed to the creditor.

K2015 raised two defences. First, it argued the cause of action arose in 2016 so the creditor’s claim prescribed in 2019, barring the winding up application. Second, it contended there was no proven commercial insolvency to justify winding up, as K2015 owned sufficient assets to cover its liabilities.

The court, per Gura J held winding up should not be used to enforce disputed debts. Significantly, the creditor had a pending civil case against Improfin and K2015 on the same debt and claims. When the winding up application was brought, the civil case was already opposed.

The court emphasised it was being asked to liquidate K2015 while it was opposing the claim on several grounds. The key question was whether K2015’s defenses were bona fide and reasonable. The court did not need to evaluate the defenses’ merits, only their reasonableness.

Reviewing the grounds of opposition, the court concluded they were bona fide and reasonable. The winding up application was solely an attempt to force payment of a reasonably disputed debt.

As such, the court dismissed the creditor’s application to wind up K2015, finding the debt was genuinely disputed on reasonable grounds in the pending civil action.

Legal practice

Taxation of bill of costs: A review application brought in a divorce litigation by the applicant in JJVR v Taxing Master, High Court of South Africa (Western Cape Division) and Another (Horowitz and South African Legal Practice Council as intervening parties) [2024] 1 All SA 178 (WCC) who was prohibited from using a costs consultant to represent him at the taxation of costs hearing. The party had engaged a non-lawyer costs consultant to oppose the bills of costs submitted by his ex-wife. At the taxation hearing, the Taxing Master ruled the consultant could not make submissions and only the party’s attorney would be heard.

The party sought to review the decision arguing the consultant should be permitted if an attorney was present. The Taxing Master argued her decision did not constitute administrative action subject to review under Promotion of Administrative Justice Act 3 of 2000 (PAJA). She also could not permit representation in violation of the Legal Practice Act 28 of 2014 (LPA), which requires accredited legal practitioners. Additionally, the consultant was interdicted for past dishonest conduct.

The court held the Taxing Master’s decision did not qualify as administrative action under PAJA’s definition. All state organs are bound by legality and cannot permit unlawful conduct. The LPA precludes non-lawyer consultants from representing parties at taxation even jointly with attorneys. Case law also established costs consultants cannot represent parties at taxation hearings.

Given the consultant’s interdiction and past conduct, allowing her participation would undermine the legal system’s integrity.

The court dismissed the review application, ruling the Taxing Master correctly prohibited the costs consultant from representing the party at the taxation hearing as it would be unlawful under the LPA and against public interest.

Local government

Obligations of private property owner towards unlawful occupiers: After property under the ownership of the respondent (Lehlaka) was invaded by unlawful occupiers who utilised the electricity on the property, Lehlaka sought to terminate its consumer agreement with the appellant municipality. It was advised to first inform the unlawful occupiers of its intention, and then put a plan in place to relocate them before disconnecting the electricity. The municipality’s refusal to accept the termination of the agreement led to Lehlaka approaching the High Court for declaratory and consequential relief. The granting of such relief resulted in an appeal by the municipality.

In Emalahleni Local Municipality v Lehlaka Property Development (Pty) Ltd [2024] 1 All SA 1 (SCA), the court addresses the issue of non-joinder of the unlawful occupiers on the property, setting out the test for whether there has been non-joinder. The judgment confirms that there is no constitutional or other legal obligation on a private property owner to pay for electricity consumed by unlawful occupiers. Lehlaka was not seeking an order to terminate the electricity supply to the unlawful occupiers, but merely to terminate the consumer agreement Lehlaka had with the municipality. The municipality could decide to terminate the electricity supply to the unlawful occupiers, or not. Lehlaka had no constitutional obligation towards the unlawful occupiers to provide electricity, and the unlawful occupiers had no corresponding legal right to be provided with electricity by Lehlaka free of charge. Confirming Lehlaka’s entitlement to terminate the contract with the municipality, the court dismissed the appeal.

Personal injury/delict

Jurisdictional requirements for lawful arrest and detention: The plaintiff in Zenzile v Minister of Police [2024] 1 All SA 593 (ECM) claimed damages against the Minister of Police for unlawful arrest and detention. The plaintiff was arrested by police at her home in May 2017 and released on bail two days later, with no charges ultimately filed against her.

The plaintiff alleged her arrest was unlawful as the police had no warrant, reasonable suspicion, or valid grounds. The Minister claimed the plaintiff was causing a disturbance and attacked officers. At trial, the defence changed to allege the plaintiff possessed stolen livestock.

The court found the new defence was not actually pleaded despite being argued at trial. The issues were whether the arresting officer had reasonable suspicion under the Criminal Procedure Act 51 of 1977, whether detention was lawful, and appropriate damages. The burden was on the Minister to prove lawful arrest and detention as admitted.

The court found the police arrived to find the plaintiff’s husband but arrested her instead until he appeared. The plaintiff denied possessing stolen livestock. Her version conflicted with the police version.

The court ruled a reasonable officer would not have considered there were sufficient grounds to suspect the plaintiff of possessing stolen property. The arrest involved a discretionary power which was unlawfully invoked for improper purpose. The plaintiff seemed more credible than the police.

The court held the arrest was unreasonable and unjustified. The detention was also unlawful. Damages of R100 000 were awarded for the wrongful arrest and detention in violation of the plaintiff’s rights.

Property

Operation of guesthouse on residential property: The applicant objected to the operation of a guest house on property abutting her own. She alleged that the steep topography of the area afforded the occupants of the guesthouse a clear and unobstructed view over her property. In Long v Appeal Authority iro Ndlambe Municipality and Others [2024] 1 All SA 364 (ECG), the applicant sought the review and setting aside of the municipality’s decision to approve the operation of the guesthouse. The applicant contended that the tribunal’s decision to approve the fourth respondent’s application for a departure from the zoning scheme was incorrect and amounted to a reviewable decision in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

The three main issues to be decided were the applicant’s application for condonation in relation to the late filing of her replying affidavit; the applicant’s application for the extension of the 180-day period within which to have brought her review application; and if the extension was granted, then whether the municipal planning tribunal’s decision to grant conditional approval for the operation of the guest house, and the appeal authority’s decision to dismiss the applicant’s appeal, were reviewable.

Regarding the late filing of the replying affidavit, r 27(3) of the Uniform Rules of Court permit a court, on good cause shown, to condone non-compliance. The applicant must file an affidavit that satisfactorily explains the delay and demonstrate on oath that her action is clearly not ill-founded. A further requirement is that the granting of condonation must not prejudice the other party in any way that cannot be compensated by a suitable order. Condonation was granted.

The applicant’s institution of review proceedings fell outside the 180-day period stipulated under s 7(1) of PAJA. The court was satisfied that the applicant had made application for the extension of the period in question, but whether it would be in the interests of justice to grant such application would depend on the facts of the matter.

In approving the operation of the guesthouse, the planning tribunal’s decision was materially influenced by an error of law, relating to its failure to appreciate the legal effect of the restrictive conditions in relation to the applicable scheme. The relevant decisions were set aside, and the second respondent was to decide, within 90 calendar days, any application made by the fourth respondent for consent use as envisaged under the current land use scheme.

Trust/wills and estates

Appointment of administrator over trust: The applicants and first respondent in Dlhomo NO and Others v Chalwa NO and Another (Small Enterprise Development Agency (SEDA) as intervening applicant) [2024] 1 All SA 126 (KZP) were appointed trustees of the National Construction Incubator Trust, a public benefit organisation for emerging construction companies. SEDA was the founder and the main beneficiary of the trust. Conflict arose between the applicants and first respondent trustee, leading the applicants to seek the first respondent’s removal for misconduct. SEDA applied to intervene, seeking appointment of an administrator over the trust.

The court held it lacked jurisdiction to appoint an administrator, as only the Master of the High Court has that power.

Regarding removing the first respondent as trustee, she was both chief executive officer (CEO) and trustee of the trust. As trustee she owed fiduciary duties to ensure the trust achieves its objectives under the trust deed, despite also managing daily operations as CEO. However, the first respondent made unilateral decisions detrimental to the trust’s performance of its mandated functions.

Detailing numerous breaches of her fiduciary duties, the court found the first respondent trustee conducted herself in a manner completely inappropriate for a trustee. Her continued role would prejudice the trust and beneficiaries.

The court thus removed the first respondent as trustee due to misconduct in violation of her duties.

Other cases

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

  • application in terms of s 78 of Promotion of Access to Information Act 2 of 2000 to compel disclosure of information to which access had been denied;
  • claim for damages – unlawful arrest and detention – malicious prosecution;
  • doctrine of mootness;
  • imposition of anti-dumping duties in poultry market;
  • lawful water use – s 32(1)(a)(ii) read with s 36(1) of the National Water Act 36 of 1998;
  • murder, kidnapping and rape – appeal against conviction and sentence;
  • procurement – award of tender – review application;
  • rights of prisoners to education;
  • suspension by business rescue practitioners of payment obligations arising from industry agreement;
  • tax avoidance scheme;
  • test for appealability; and
  • town planning – land development applications.

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

This article was first published in De Rebus in 2024 (April) DR 27.

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