David Matlala BProc (University of the North) LLB (Wits) LLM (UCT) LLM (Harvard) HDip Tax Law (Wits) is an adjunct professor of law at the University of Fort Hare.
April 2014 (2) The South African Law Reports (pp 321 – 640); [2014] 1 The All South African Law Reports March no 1 (pp 507 – 625); and no 2 (pp 627 – 698)
Abbreviations:
CC: Constitutional Court
ECG: Eastern Cape Division, Grahamstown
ECM: Eastern Cape Local Division, Mthatha
GJ: Gauteng Local Division, Johannesburg
GP: Gauteng Division, Pretoria SCA: Supreme Court of Appeal WCC: Western Cape Division, Cape Town
Administrative action
Contested administrative action should be set aside and not withdrawn or treated as non-existent: In MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd t/a Eye & Lazer Institute 2014 (3) SA 481 (CC) the respondent, Kirland, was a health service provider that applied for permits to establish two private hospitals in the Eastern Cape province. The second applicant, the Superintendent-General, Department of Health, Eastern Cape (S-G), declined the permits but his refusal was not communicated to the respondent.
During his sick leave the acting superintendent-general, under political pressure from the first applicant, the MEC for Health, granted the permits. As a result, the respondent started making preparations for the establishment of the hospitals. After his return from leave the S-G found out about the approval but did nothing. Only after some seven months, did he communicate with the respondent informing it that the approval had been withdrawn.
As a result, the respondent sought a High Court order reviewing and setting aside the withdrawal. The ECG held that the withdrawal was unlawful and set it aside. The court went further to hold that approval of the permits by the acting superintendent-general, given the circumstances in which it was granted, was also unlawful and had to be set aside. Accordingly, the approval was remitted to the S-G for reconsideration. However, a ruling on the approval of the permits was made, notwithstanding the fact that nobody had asked for it and it had not been canvassed in the papers, the applicant also not having made a counter-application for it. On appeal to the SCA it was held that the approval was invalid but, as it was not the subject of review, its setting aside was overturned. The applicants sought leave of the CC to appeal against the decision of the SCA. Such leave was granted but the appeal itself was dismissed with costs.
In a majority judgment Cameron J (Moseneke ACJ, Skweyiya ADCJ, Dambuza AJ, Froneman J, Mhlantla AJ and Nkabinde J concurring while Madlanga and Zondo JJ concurred in Jafta J’s dissenting judgment), held that even where a decision of a state official was defective – and in the instant matter evidence suggested that to be the case – the government should generally not be exempt from the forms and processes of review. It should be held to the pain and duty of a proper process. The government should apply formally for a court order to set aside the defective decision so that the court could properly consider its effect on those subject to it. When government erred by issuing a defective decision, the subject affected by it was entitled to proper notice and to be afforded a proper hearing on whether the decision should be set aside. The government could not be allowed to take shortcuts. Generally that meant that the government had to apply formally to set aside the decision. Once the subject had relied on a decision, the government could not, in the absence of specific statutory authority, simply ignore or withdraw what had been done. The decision, despite being defective, could have consequences that made it undesirable or even impossible to set aside. That demanded a proper process in which all the factors, for and against, were properly weighed.
That had not happened in the present case. The government took the attitude that it could simply withdraw or ignore the approval as a defective decision that did not exist. That was a fundamental error as the decision did exist and continued to exist until, in due process, it was properly considered by the court and set aside. The government ought to have instituted review proceedings or launched a counter-application for setting aside the contested approval. An invalid administrative action could not simply be ignored as it remained valid and effectual and would continue to have legal consequences until it was set aside by proper process.
Children
Retrospective confirmation of surrogate motherhood agreement concluded after fertilisation: Surrogate motherhood agreements are governed by the Children’s Act 38 of 2005 (the Act). Section 292 requires such an agreement to be in writing, signed by all the parties and confirmed by the High Court.
Section 296(1)(a) provides: ‘No artificial fertilisation of the surrogate mother may take place … before the surrogate motherhood agreement is confirmed by the court’. Furthermore, there is also s 303(1) which provides: ‘No person may artificially fertilise a woman in the execution of a surrogate motherhood agreement or render assistance in such artificial fertilisation, unless that fertilisation is authorised by a court in terms of the provisions of the Act’. In terms of s 305 (1)(b) read with 305(6) – (7) carrying out an artificial fertilisation contrary to the provisions of the Act is a punishable offence.
In Ex parte MS and Others 2014 (3) SA 415 (GP), [2014] 2 All SA 312 (GP) the parties entered into a surrogate motherhood agreement which was well and truly contrary to the provisions of the Act. That was so as the parties entered into an oral agreement, artificial fertilisation was performed in terms thereof and only when the surrogate mother was some eight months pregnant did they approach the court for retrospective confirmation of the agreement. The correct approach which they should have followed was to have obtained confirmation before and not after fertilisation of the surrogate mother. The issue before the court was whether it could confirm the agreement under those circumstances. The court held that it could, and accordingly confirmed the agreement.
Keightley AJ held that the Act did not preclude a court from confirming a surrogate motherhood agreement subsequent to artificial fertilisation of the surrogate mother in circumstances where she was already pregnant with the child to be born under the agreement. It would be contrary to s 28(2) (best interests of a child) of the Constitution to hold that a court had no discretion to confirm a surrogacy agreement in circumstances where confirmation was sought after fertilisation. The court had to retain discretion to do so if it was satisfied that doing so would be in the best interest of the child to be born. However, that did not mean that the parties were free to ignore the general requirement that a surrogacy agreement should be confirmed by a court before artificial fertilisation of the surrogate mother took place. Furthermore, the parties should not assume that the court would rush to their aid if they neglected to follow the prescripts of the Act.
Conveyancing
Duty of seller to return deposit and transfer duty upon cancellation of sale: In Royal Anthem Investments 129 (Pty) Ltd v Lau and Another 2014 (3) SA 626 (SCA) the appellant, Royal Anthem, sold immovable property to the respondent spouses, Lau and Liang. The respondents duly paid the deposit and transfer duty to the appellant’s conveyancing attorneys. Although the respondents were not able to raise a mortgage bond within the stipulated time, they were nevertheless able to do so eventually. Because of that late provision of the required financing the appellant demanded unreasonably substantial interest. For that reason the sale fell through, resulting in the respondents demanding repayment of the deposit and transfer duty paid.
The appellant instructed its conveyancing attorneys to withhold repayment on the basis of a clause in the sale agreement, which provided that on cancellation of the contract, the appellant was entitled to ‘keep any other amounts payable’. The GP held per Kruger AJ that the appellant had to repay the deposit and transfer duty paid by the respondents. An appeal to the SCA was dismissed with costs on attorney-and-client scale as provided for in the contract.
Leach JA (Ponnan, Mhlantla JJA, Mathopo and Mocumie AJJA concurring) held that the general rule was that failure of the agreement obliged the parties to restore each other to the position they were in immediately before the conclusion of the agreement. Therefore, a purchaser who had paid a portion of a purchase price as a deposit was generally entitled to be repaid that sum. However, the duty to restore was not immutable and could be excluded by agreement such as in the case of a penalty clause. In the present case the amount that the appellant could keep in terms of the agreement was one received and held by it and not the amount paid to its conveyancing attorneys to be held in trust pending registration of the transfer. The transfer never took place and the amount was never paid to the appellant. Regarding transfer duty the court held that the amount was never payable to, paid over, nor held by or on behalf of the appellant. It could thus never have been an amount the appellant was entitled to keep as it was payable to the South African Revenue Service.
Copyright
Rate of ‘needletime’ royalties payable by commercial and public radio stations to copyright owners for broadcast of sound recordings: Section 9A(1)(a) of the Copyright Act 98 of 1978 (the Act) provides: ‘In the absence of an agreement to the contrary, no person may broadcast, cause the transmission of or play a sound recording as contemplated in section 9 (c), (d) or (e) without payment of a royalty to the owner of the relevant copyright’. Section 9(A)(2)(a) takes the issue a step further by providing: ‘The owner of the copyright who receives payment of a royalty … shall share such royalty with any performer whose performance is featured on the sound recording in question and who would have been entitled to receive a royalty in that regard …’.
The problem with the Act though is that, whereas it requires radio stations to pay copyright owners (ie, recording studios) who in turn are required to share the royalties with performers (musicians), it does not prescribe how much should be paid or the formula to be used in making such determination. In terms of s 9A(2)(c) the legislature left it to the parties to determine, by agreement, the amount to be paid. In the absence of agreement the parties can agree on arbitration, failing which the issue could be taken to the Copyright Tribunal for adjudication.
In National Association of Broadcasters v South African Music Performance Rights Association and Another 2014 (3) SA 525 (SCA), [2014] 2 All SA 263 (SCA) the parties could not agree on the rate of royalties to be paid by some 31 commercial and public radio stations that were represented by the appellant National Association of Broadcasters (NAB). The matter was accordingly referred to the Copyright Tribunal where Sapire AJ held that the radio stations concerned had to pay copyright owners 7% of their revenue as ‘needletime’ royalties. In reaching that rate the tribunal disregarded all evidence provided by the parties and instead exercised its unfettered discretion to arrive at a decision that was considered reasonable in the circumstances.
On appeal to the SCA it was held that the tribunal wrongly discounted evidence of both parties and accordingly the appeal was upheld and the cross-appeal dismissed with no order as to costs as the parties had made substantial contribution to the court’s determination of the matter.
Navsa JA (Shongwe JA, Swain, Legodi and Mathopo AJJA concurring) held that a principle that applied universally was that broadcasters paid royalties in relation to the time that music was played on their radio stations. Put differently, the principle was pay for play. Another rule was that rates were based on a correlation between time and revenue generated. Some countries applied rates that increased in relation to bands of increasing revenue. The imposition of too high a royalty rate was not desirable as it had negative financial implications for the country in the form of excessive currency outflow. That was so as most of the money collected by the respondent association found its way to America and other countries which were main exporters of music. In addition, consideration had to be given to perverse consequences for the music industry by too prohibitive a rate that would drive broadcasters to the alternative of using session musicians and the like. A reasonable ‘needletime’ royalty rate was 3% of the revenue generated by a radio station, which rate was exclusive of advertising revenue. The revenue to be considered was as reflected in a radio station’s financial statement as certified by its accountants and verified by way of audited financial statements after the end of the financial year. That was a simple formula to be preferred.
Delict
Compensation for psychiatric injury, emotional shock and loss of support: In Hing and Others v Road Accident Fund 2014 (3) SA 350 (WCC) six sisters were involved in a motor vehicle collision in which they suffered personal injuries from which one of them died. As a result, proceedings were instituted against the respondent Road Accident Fund (RAF) to recover compensation. One of the claims was settled while others proceeded to trial where the various actions were consolidated and heard together. A number of the claims were dismissed by Klopper AJ in the WCC, hence the appeals to the full Bench. The present discussion will be confined to the appeals of the first, second and third appellants.
The claim of the first appellant was for compensation for loss of income resulting from ‘psychiatric injury’ after having sustained injuries that were described as ‘some bruising to her chest’. The trial court awarded her R20 000 in general damages but dismissed the claim for loss of income resulting from ‘psychiatric injury’. The appeal was dismissed with costs by Binns-Ward J (Griesel and Ndita JJ concurring). It was held that whether ‘psychiatric injury’ had been sustained by a claimant was a question that fell to be answered through the expert evidence of psychiatrists. Psychiatric evidence adduced to support the claim should be clear, cogently reasoned and preceded by summaries that properly fulfil the requirements of r 36(9)(b) of the Uniform Rules of Court.
In the instant case there was no evidence of cognitive or memory impairment or depressed mood. The claimant was not impaired at all, only that she had symptoms of unresolved grief and loss for her late sister who had died as a result of injuries suffered in the same collision. The trial judge was justified in holding that manifesting some symptoms of post-traumatic stress syndrome did not equate to a diagnosis that the first appellant was suffering from post-traumatic stress disorder itself. Damages were not recoverable in delict for normal grief and sorrow following bereavement.
The second appellant’s appeal was also dismissed with costs. His claim for loss of support could not be sustained since at the time of the death of his wife as a result of the collision, not only was he working but he was, in fact, earning more than her. Moreover, his financial need only arose some two years after her death when he was retrenched because his employer ‘ran into financial difficulties’ as the economy of his country, Canada, was facing a slump. Therefore, the second appellant’s loss arose in the context of an intervening event, namely his retrenchment, which was entirely unconnected to any wrongdoing by the insured driver. That being the case the second respondent had not satisfied the requirement of establishing legal causation.
The third appellant’s appeal succeeded under the sub-heading ‘emotional shock’ but was dismissed as far as loss of support was sought, the court holding that her studies were not interrupted by the death of her mother for she progressed well in the year that her mother was injured and died. Evidence showed that her studies were affected by extraneous factors which were never explained, the appellant herself not having testified.
On the issue of ‘emotional shock’ the court held that the relationship between a parent and child was plainly one that would make it readily foreseeable that either could suffer psychiatric injury as a result of the traumatic and violent death of the other. In the present case, the interval between the collision and the ensuing death of the third appellant’s mother was relatively short, this having the result that it could not be said that the connection between the insured driver’s wrongdoing and the ensuing death was so tenuous as to call into question whether negligence was legally causal of the resultant damage.
The issue in contention was costs and expenses incurred by the appellants’ attorney, counsel and industrial psychologist who travelled to Mauritius, Australia and Canada to collect evidence. The question was whether the industrial psychologist, if he needed to undertake those travels in the first place, had to be accompanied by legal representatives. Moreover, there were other, cost-effective modern means of communication that could have been used.
The full Bench held that the trial court erred in principle in granting the declaration. It was for the taxing master to determine what attendances and expenses to allow as being reasonably necessary for the conduct of litigation. While it was permissible, and indeed often useful, for the court in its judgment to express its views on costs-related issues for assistance or guidance of the taxing master, judges should nevertheless not usurp the taxing master’s role and functions.
Liability in delict and contract: The case of Loureiro and Others v iMvula Quality Protection (Pty) Ltd 2014 (3) SA 394 (CC) dealt with the issue of liability in both contract and delict emanating from the same conduct. The applicant, Loureiro, had a contract with the respondent, iMvula, a private security company, for the protection of his family and property. After an incident of security lapse the applicant specifically instructed the respondent not to allow anybody entry onto his property without his permission or that of his wife.
In breach of that specific instruction one evening, an employee of the respondent, one Mr Mahlangu, allowed a ‘policeman’ access to the property who immediately produced a gun and was joined by accomplices to effect a robbery. The applicant, his family and domestic staff were traumatised and property to the value of some R 11 million was taken away. The circumstances under which Mahlangu, a qualified and experienced security officer, allowed the ‘policeman’ access to the property were that the ‘policeman’ arrived at the gate driving an unmarked motor vehicle, which had a flashing blue light on the dashboard; the ‘policeman’ wore a vest marked ‘police’ and quickly flashed an identification card which Mahlangu did not have the chance to verify. Mahlangu did not ask for the purpose of the visit, that being precisely the reason for opening the gate, did not speak to him over the intercom and did not call the applicant, his wife or the respondent to find out if they were expecting a visit by the police. Briefly, Mahlangu innocently and in good faith thought that he was assisting the police in the performance of their duties and did not suspect that there was a robbery about to occur. In other words he assumed, without verifying, that he was dealing with a policeman.
The applicant sued the respondent for breach of contract while his wife and children sued in delict for pain and suffering. The parties agreed for a separation of merits from the quantum and that the trial would proceed on the merits only, the quantum to be attended to later once liability had been established.
The GJ per Satchwell J held that the respondent was liable in contract to the applicant and in delict to his wife and minor children as Mahlangu had acted negligently. That decision was reversed on appeal to the SCA where it was held that the contract term prohibiting access to the property did not impose strict liability. In other words, liability would arise only if there was fault on the part of Mahlangu in opening the gate. There being no fault on his part, liability could not arise. After all, the clause prohibiting unauthorised entry to the property did not apply to police officers performing official duties. Furthermore, Mahlangu did not act negligently in opening the gate or unreasonably in believing that the impostor was a police officer as the impostor had all the appearance of the former. Mahlangu could not lawfully resist opening the gate to a policeman’s legitimate demand for entry. At all times he had acted in good faith, believing that he was helping the police.
On further appeal to the CC leave to appeal was granted and the appeal upheld with costs. The decision of the SCA was set aside and the respondent held liable to the applicant for breach of contract, and to his family, in delict. Delivering a unanimous decision of the court Van der Westhuizen J held that the law of contract did not require fault, even in the form of negligence, for breach. In the instant case, the parties expressly agreed to a strict-liability prohibition. The express prohibition of entry to the property could not be said to impose a reasonableness proviso, tacitly or otherwise.
On the issue of delictual liability, the court held that Mahlangu had acted negligently. A reasonable person would have taken steps to ascertain the identity of the man at the gate, including for example, determining whether the card flashed was a legitimate police identity card and at least inquiring why the man sought access to the premises. Even if the man was a police officer, a reasonable person would have checked that he was making a lawful demand. A reasonable person would have attempted to make contact with the main house or the respondent to find out if the police were expected. In other words Mahlangu failed to take any of the fairly easy precautions which should have been taken.
It should be noted, however, that in respect of the wrongfulness of Mahlangu’s conduct, the court held that it could not agree with the SCA that Mahlangu was obliged to open the gate because of his duty to cooperate with the police. The intruders were as a matter of fact robbers and not police officers. The community expected security guards not to give criminals access to guarded property. It was, therefore, wrongful for Mahlangu to give them access. The problem here is that all along the visitor was a ‘policeman’ and only turned into a robber after gaining access, had Mahlangu known or at least suspected that the man was not a policeman, he would not have granted him access.
Education
Right to education – immediate realisation of duty of state to provide school furniture: In Madzodzo and Others v Minister of Basic Education and Others 2014 (3) SA 441 (ECM), [2014] 2 All SA 339 (ECM) the applicants, Madzodzo and others, were parents whose children attended junior and senior public schools in the Eastern Cape.Although the application was initially about children attending three public schools in the province, other parents joined the proceedings and eventually the remedy sought was in respect of the whole of the province.
The allegation was that the respondents, the national Minister of Basic Education, and her Eastern Cape Province counterpart, had failed to provide essential school furniture in the form of desks and chairs to public schools throughout the province and in particular in impoverished rural areas. This had the result that the affected children did not have reading and writing space at schools and this affected their learning. As it turned out the court had already ordered the respondents on two occasions to provide the required furniture but there had been no compliance. The provincial Department of Education indicated that its budget for the financial year 2013/2014 was limited to R 30 million whereas the cost of providing the required furniture was an estimated R 360 million. That meant that the need could be met only in the 2014/2015 financial year. In other words, the position of the provincial Department of Education was that it would be in a position to meet its obligations only in the future.
Goosen J held that the respondents were in breach of the constitutional right of learners in public schools in the province as provided for in s 29 of the Constitution by failing to provide adequate age-and-grade-appropriate furniture that would enable each child to have his or her own reading and writing space. A structural interdict was issued in terms of which the respondents were ordered to file at court and provide the applicants’ attorneys by a specified date with a copy of the audit of all learner furniture needs at public schools in the province. The respondents were further required to provide the required furniture within 90 days (three months) of receipt of the audit report. If more time was required to comply with the order the respondents were to approach the court for such authorisation, at which stage they would have to give details of progress made, what was outstanding, how and when same was to be provided.
The court held that the state’s obligation to provide basic education as guaranteed by the Constitution was not confined to making places available at schools. It necessarily required the provision of a range of educational resources such as schools, classrooms, teachers, teaching material and appropriate facilities for learners. In the instant case, the respondents had been well aware for a considerable time that proactive steps had to be taken to address the shortage and to fulfil the right to basic education as required by ss 7 and 29 of the Constitution. As a result it was not good enough to state that inadequate funds had been budgeted to meet the needs and that the respondents could therefore not be put on terms to deliver the identified needs of schools within a fixed period. Nor was it good enough to state that the full extent of the needs was unknown.
Learners were entitled, as of right, to have immediate access to basic education as well as to be treated equally and with dignity. Lack of adequate age-and-grade-appropriate furniture in public schools, particularly by schools located in deep rural and impoverished areas, undermined the right to basic education while the persistent failure to deliver such appropriate furniture to public schools constituted an ongoing violation of the right to basic education. The court, in the exercise of its discretion, was obliged to give effect to the fundamental right enshrined in the Constitution and give appropriate orders to vindicate those rights where such orders were required.
Income tax
Preservation order in terms of Tax Administration Act 28 of 2011: Section 185(1)(a) of the Tax Administration Act 28 of 2011 (the Act) provides among others that: ‘[i]f the SARS [South African Revenue Service] has, in accordance with an international tax agreement, received … a request for conservancy of an amount alleged to be due by a person under the tax laws of the other country where there is a risk of dissipation or concealment of the assets by the person, … SARS… may apply for a preservation order under section 163 [of the Act] as if the amount were a tax payable by the person under a Tax Act; …’.
In Commissioner, South African Revenue Service v Krok and Another 2014 (3) SA 453 (GP) the applicant Commissioner received a request from the Australian Tax Office (ATO) to seek a conservation order over the South African assets of the first respondent, Krok. It was alleged that the first respondent owed ATO a substantial amount of tax, inclusive of interest and penalties, being some R 235 million. ATO further alleged that the first respondent’s tax liability had been duly assessed, that objection was made and rejected as a result of which the assessment became final. Necessary documentation in support of ATO allegations was attached. Although the first respondent purportedly sold all his South African income and assets to a third party, that was only on paper as he remained the beneficial owner and user of the income and assets that he dealt with for his own benefit.
On the extended return date, confirmation of the preservation order was granted with costs. Fabricius J held that the question was whether the applicant had shown that there was prima facieproof of the risk of dissipation or concealment of assets by the first respondent. In the present case the relevant request for assistance in collection and/or conservancy gave the necessary information and details pertaining to the amount due and the background relating to the taxes owed by the first respondent to the Australian Government. It stated what amount was due to it and that such revenue claim was enforceable under the tax laws of Australia. It further stated that the first respondent had lodged an objection against the tax assessment and administrative penalties but that the objection had been disallowed in full. As a result of the determination of the objection the tax debt was no longer in dispute. Section 163 of the Act provided for preservation of the first respondent’s assets if such order was required to secure payment of taxes. The Act also provided, in s 185(3), that the certificate accompanying the request was conclusive proof of the existence of the tax debt and prima facie proof of the other statements contained therein. In view of the provisions of ss 163 and 185 of the Act confirmation of the provisional preservation order was justified.
Labour law
Automatically unfair dismissal: The Labour Relations Act 66 of 1995 (the LRA) gives employees and employers a number of rights, and of course also obligations. To guarantee those rights it has a number of sections that do not allow the employer to prevent, discourage or penalise his or her employees from exercising any of the rights granted.
For example, s 4(2)(a) provides that every member of a trade union has the right, subject to the constitution of the trade union, to participate in its lawful activities. Section 5(2) provides that no person may do or threaten to prevent an employee from exercising any right conferred by the LRA or from participating in any proceedings in terms thereof. Significantly in terms of s 187(1)(d) dismissal of an employee is automatically unfair if the employer, in dismissing the employee, acts contrary to s 5 or if the reason for the dismissal is that the employee took action or indicated an intention to take action against the employer by exercising any right conferred by the LRA. Also, s 8(b) provides that every trade union and every employers’ organisation has the right to plan and organise its administration and lawful activities.
The application of ss 4(2)(a) and 187(1)(d) arose for consideration in National Union of Public Service and Allied Workers obo Mani and Others v National Lotteries Board 2014 (3) SA 544 (CC) where a number of members of the applicant trade union, the National Union of Public Service and Allied Workers (NUPSAW), were dismissed at a disciplinary hearing. The dismissal was confirmed by the Labour Court and the SCA. This was after the trade union complained about the leadership style and modus operandi of the Chief Executive Officer (CEO) of the employer, the respondent National Lotteries Board. To substantiate the complaints the applicant asked for a copy of the CEO’s contract of employment, which was denied. Thereafter, the trade union sought disclosure of that contract in terms of the Commission for Conciliation, Mediation and Arbitration (CCMA) procedure and the conciliation process started. The parties were given extended time for conciliation.
In the meantime, the applicant wrote a letter to the respondent, in which it ‘urged’ it to terminate the services of the CEO by a specified date as its members were no longer prepared to work with him as they had lost confidence in him. A copy of the letter was thereafter leaked to the media where it was published. The respondent, after writing the trade union a letter indicating that its members would be subjected to a disciplinary hearing unless they disassociated themselves from the letter and its leakage to the media, duly charged them with insubordination, disrespectful conduct and bringing its name into disrepute, found them guilty and, as already indicated, dismissed them.
The CC granted the applicant leave to appeal, upheld the appeal with costs and ordered retrospective reinstatement of the affected employees on terms and conditions of service no less favourable to them than those that applied at the time of dismissal. This was after the court found that, in terms of s 187(1)(d), the dismissal was automatically unfair. The minority judgment was read by Froneman J (Skweyiya ADCJ and Cameron J concurring) who held that the dismissal was fair. In a separate dissenting judgment Dambuza AJ held that the dismissal was substantively unfair and, therefore, called for reinstatement of the employees concerned.
In the majority judgment, Zondo J held that in forwarding a letter to the respondent concerning the CEO, the applicant was taking forward the conciliation process already underway. Its members, the employees, were taking part in a lawful trade- union activity in terms of the LRA as provided for in s 4(2)(a) read with s 187(1)(d). The articulation by the trade union and the employees of their proposed solution to the issue of the CEO was part of collective bargaining and was, therefore, a lawful activity of the trade union in which the employees were entitled to participate in terms of s 4(2)(a). It was also participation in proceedings in terms of s 5(2)(b), namely conciliation proceedings aimed at resolving the disclosure of the CEO contract dispute. The employees were entitled, as members of the trade union, to participate in those proceedings. The dismissal of employees for that conduct constituted an automatically unfair dismissal in terms of s 187(1)(d)(i) and (ii). The dismissal of employees for associating themselves with the contents of a letter concerning the CEO was a dismissal of union members for participating in a lawful activity of their trade union as provided for in s 4(2)(a) and amounted to a dismissal of employees for the reason of exercising their right as contemplated in s 187(1)(d)(i). Such dismissal would also be a dismissal for participating in proceedings as contemplated in s 187(1)(d)(i). The proceedings in this context were conciliation proceedings that had been adjourned to enable the parties to make efforts to resolve the dispute. Dismissing employees for associating themselves with that conciliation process was automatically unfair.
Other cases
Apart from the cases and material dealt with or referred to above, the material under review also contained cases dealing with administration of traffic fines, appointment as relief magistrate, broadcast of court proceedings by media, complaints about electoral irregularities, consumer credit agreement, copy of contract to be attached to pleadings, declaration of identity of trustees of a trust, defamation, delaying completion of running of prescription, delictual liability in contractual context, infringement of copyright, lessor’s tacit hypothec over movables, municipal property valuation and rates, passing off, proceedings by a company during winding-up, recognition of traditional leaders, search and seizure, stock exchange and written authorisation for a prosecution before a person could be charged.
This article was first published in De Rebus in 2014 (Aug) DR 35.
