June [2023] 2 All South African Law Reports (pp 587 – 869); May – June 2023 Judgments OnlineThis 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.
CC: Constitutional Court
GJ: Gauteng Local Division, Johannesburg
GP: Gauteng Division, Pretoria
KZP: KwaZulu-Natal Division, Pietermaritzburg
NWM: North West Division, Mahikeng
SCA: Supreme Court of Appeal
WCC: Western Cape Division, Cape Town
Whether arbitrator and appeal tribunal had committed a gross irregularity in the conduct of the arbitration proceedings: In Roux v University of Stellenbosch and Others and a related matter [2023] 3 All SA 248 (WCC), the University of Stellenbosch sued Mr Roux for damages arising from breaches of his employment contract. The parties agreed to have the matter referred to arbitration. In terms of the arbitration award, Mr Roux was found to have unlawfully transferred in excess of R 35 million from the unrestricted reserves of the university, into four accounts under his control over a period of ten years. Mr Roux was ordered to repay a total amount of R 37 116 402 as damages to the university. His appeal was dismissed.
The university applied to court for an order that the final arbitration award and arbitration appeal award granted in its favour be made orders of court. In response, Mr Roux sought the review and setting aside of the arbitration awards in terms of s 33 of the Arbitration Act 42 of 1965, alleging that the arbitrators had committed gross irregularities. Mr Roux mainly relied on s 33(1)(b) of the Act, which led to a consideration of whether the arbitrator and the appeal tribunal had committed a gross irregularity in the conduct of the proceedings. The court found that Mr Roux was given a fair trial and the application by the arbitrators of the common law on either the onus or the special damages challenge did not detract from that. Mr Roux’s application failed and the university’s application to make the awards an order of court succeeded. Mr Roux was ordered to pay the university the amount of R 37 116 402 plus interest.
Application of in duplum rule: In MEC: Police, Roads and Transport, Free State Provincial Government v Bovicon Consulting Engineers CC and Another [2023] JOL 59563 (SCA), the question in this appeal was whether the operation of the in duplum rule disentitled the first respondent (Bovicon) to post-judgment interest on the amount owed to it. The High Court granted an order in Bovicon’s favour against the appellant (the MEC) for payment of post-judgment interest accruing to the amount owed to Bovicon by the MEC – in effect, holding that Bovicon was entitled to mora interest on the judgment amount for as long as it remained unpaid. Apart from claiming to have fully satisfied the judgment debt, the MEC contended that the rate of interest applied by Bovicon exceeded that prescribed in terms of the Prescribed Rate of Interest Act 55 of 1975. Petse AP and Masipa AJA acknowledge that Bovicon’s counsel conceded that the High Court had erred in awarding interest at the rate of 15,5% in respect of the judgment amount. The appropriate rate of interest would be that prevailing at the time when judgment was granted in the High Court. Save for correcting the amount of interest payable, the court dismissed the appeal.
Consumer – s 43(2) of the Consumer Protection Act 68 of 2008 prohibits pyramid schemes: In Bester NO and Others v Mirror Trading International (Pty) Ltd (in liquidation) t/a MTI and Others [2023] 3 All SA 101 (WCC), as joint final liquidators of MTI, the applicants sought declaratory relief that, inter alia, the business model of MTI was an illegal scheme; that all agreements concluded between MTI and its investors in respect of the trading and investment of Bitcoin for the purported benefit of the investors were unlawful and void ab initio.
The ground on which the respondents opposed the relief sought by the applicants raised the question of whether Bitcoin (cryptocurrency) fell within the definition of property in the Insolvency Act 24 of 1936. The court found that cryptocurrency, like money, is movable property (s 2 of the Insolvency Act). The court found that the business of MTI was shown to be fraudulent. Section 43(2) of the Consumer Protection Act prohibits pyramid schemes. Even persons who unknowingly join, enter or participate in a pyramid scheme, will not be entitled to enforce an agreement between themselves and the illegal scheme. The agreements were declared void ab initio.
Discovery in terms of r 35 of the Uniform Rules of Court: In Pentagon Financial Solutions (Pretoria) (Pty) Ltd and Others v Basson and Others [2023] 3 All SA 560 (WCC). An annexure to the notice of motion comprised the list of documentation, which respondent stated was necessary for the conduct of a forensic audit. The main application in this matter, was brought by the applicants seeking declaratory relief. The respondents launched an application in terms of r 35(13) of the Uniform Rules of Court, for an order allowing the discovery of certain documentation, which the applicant failed to respond to timeously. An application was brought in terms of r 30A to compel a response.
Rule 35(12) provides that any party to a proceeding may at any time before the hearing, deliver a notice to any other party in whose pleadings reference is made to any document or tape recording, to produce such document or recording for inspection and to permit the making of a copy or transcription thereof. Alternatively, the receiving party must state within ten days whether it objects to such production and the grounds therefor. In the event of non-compliance, r 30A provides for the giving of notice to the defaulting party, of intention to apply for an order compelling compliance or for the claim or defence to be struck out. In terms of r 30A(1), the court must first determine whether there has been non-compliance with the r 35(12) notice. While there did not appear to be any onus on a party in the context of an r 30A application seeking documents in terms of r 35(12), a party who seeks such documentation has the burden of adducing evidence as to the relevance of the document, and to show that the document is not privileged and can be produced. The r 30A application thus succeeded.
Leave to amend – r 28 of the Uniform Rules of Court: The plaintiff in Essence Lading CC v Infiniti Insurance Limited and Another [2023] 3 All SA 410 (GJ) sought leave to effect an amendment to the citation of the name of the second defendant. The plaintiff had cited Mediterranean Shipping Company (Mediterranean) as the second defendant, instead of MSC. MSC did not react to the summons and did not enter an appearance to defend. Instead, the named defendant, Mediterranean, entered an appearance to defend and raised an exception that the particulars of claim did not disclose a cause of action against it. The essential question was how the mistake could be corrected in a manner, which complied with the constitutional imperative of a fair and just judicial process.
Rule 28 of the Uniform Rules of Court may only be used to affect a substitution when no prejudice or injustice would result from such procedure. That would generally be the case where through some form of agency, the party to be introduced is already represented in the action and service of the process on the agent is deemed to be service on the party to be introduced; and the correct defendant, despite the mistake in the citation, entered an appearance to defend or intervene in the action. Therefore, subject to certain exceptions, the appropriate process to substitute a defendant, which would prevent an incurable injustice, was for the plaintiff to bring an application for joinder or substitution on proper notice to the proposed new party. Once the new defendant was properly joined or substituted, and became a party to the action, it would then be open to the plaintiff to appropriately amend the summons either based on the order granted by the court, or in terms of r 28.
Summary judgment application – r 30 of the Uniform Rules of Court: The defendant in Ingenuity Property Investments (Pty) Ltd v Ignite Fitness (Pty) Ltd [2023] 3 All SA 458 (WCC) had delivered a special plea and a plea on the merits, the plaintiff replicated, and simultaneously applied for summary judgment against the defendant. In response, the defendant applied in terms of r 30 for an order that the plaintiff’s summary judgment application be set aside as an irregular step, averring that the Uniform Rules of Court do not permit a plaintiff to simultaneously replicate in terms of r 25(1) and apply for summary judgment in terms of r 30(2). The defendant submitted that the rules only permit the plaintiff to do one or the other as its next procedural step and concluded that, for those reasons, the summary judgment application fell to be set aside as an irregular step.
Rule 30(2), does contain an express prohibition, precluding an application in terms of r 30(1) when a further step has been taken. Litigants are prohibited from bringing an application to set aside an irregular step if the applicant has itself taken a further step in the cause with knowledge of the irregularity. Rule 30(2)(a) is intended to deal with the situation where a party has taken a further step in the cause and thereafter seeks to make application to set aside an irregular or improper step. Confirming the purpose of r 30, the court concluded that on the particular facts of this matter, the r 30 application fell to be dismissed.
Whether ban on public displays of old South African flag constituted an unconstitutional infringement of the right to freedom of expression guaranteed in s 16(1) of Constitution: In Afriforum NPC v Nelson Mandela Foundation Trust and Others (Johannesburg Pride NPC and Another as Amici Curiae) [2023] 3 All SA 1 (SCA), a complaint was lodged in the High Court against Afriforum by the Nelson Mandela Foundation Trust, that public displays of the old South African flag at certain protests was a contravention of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. The court determined that the display of the old flag at the protests constituted hate speech, unfair discrimination, and harassment, within the meaning of ss 10(1), 7 and 11 of the Act. Afriforum appealed.
Schippers JA undertook an analysis of the meaning and effect of s 10(1) of the Act, which is linked to the rights to freedom of expression, equality, and dignity. The prohibition of hate speech in s 10(1) when read with the proviso in s 12 proscribes certain types of expression. The old flag is an icon of Apartheid, and represents hate and trauma for most people, particularly black South Africans. The gratuitous public displays of the old flag conveys affinity for Apartheid and satisfies the requirement of promoting and propagating hatred and unfair discrimination. The court set aside the order prohibiting ‘any’ display of the old flag and replaced it with an order prohibiting ‘gratuitous public displays’ thereof, subject to the proviso in s 12 of the Act.
Commercial lease – claim for remission of rent: Having leased premises from a trust, the appellant (the Butcher Shop) in The Butcher Shop and Grill CC v Trustees for the Time Being of the Bymyam Trust [2023] 3 All SA 40 (SCA) sub-leased the premises to a related company (Apoldo). The imposition of restrictions during the national state of disaster caused by the COVID-19 pandemic led to the appellant withholding payment of rent due claiming that it was denied beneficial use of the premises because of the restrictions and was thus not obliged to make payment of the full amount of rent due in terms of the lease. With regard to the entitlement to remission of rent when property is not placed at the disposal of the lessee, either by the lessor or because of an intervening circumstance, Goosen JA; Carelse, Van der Merwe, Mbatha and Weiner JJA concurring, confirmed that parties may limit or exclude the right to claim remission of rent in circumstances of vis major. The lease agreement was found not to have precluded a claim for remission of rent arising from a vis major event in this case. However, the Butcher Shop did not have a claim, in law, for the loss of use and enjoyment of the premises suffered by Apoldo as the sub-lessee.
Appeal against refusal of bail: In Kula v S [2023] 3 All SA 218 (NWM), the appellant, who was charged with murder appealed against the refusal of his application for release on bail. The grounds of appeal were that the magistrate had misconstrued the schedule to the Criminal Procedure Act 51 of 1977 wrongly placing the onus on the appellant, in terms of s 60(11)(a) and sch 6 to the Act, to prove exceptional circumstances warranting his release on bail.
Section 59 of the Criminal Procedure Act as amended by s 2 of the Criminal and Related Matters Amendment Act 12 of 2021 provides that an accused in custody may be released on bail before his first appearance in a lower court, unless the offence he is facing is one referred to in s 59(1)(a)(ii) and (iii). In terms of the newly introduced s 60(11)(c), where an accused is charged with one of the said offences, the court must order that he be detained in custody unless, having been given a reasonable opportunity to do so, he adduces evidence which satisfies the court that the interests of justice permit his release.
The court highlighted the procedural irregularities in the conduct of the bail application by the magistrate. It was found that whether sch 5 or 6 applied, the appellant still bore the onus of adducing evidence, either that exceptional circumstances exist, which in the interest of justice permitted his release on bail. None of the allegations against the appellant brought the bail application within the ambit of s 60(11)(a). Instead, s 60(11)(c) applied. The court went on to conclude that the interests of justice justified the release of the appellant on bail with strict conditions.
Application for setting aside of summons issued for purpose of instituting a private prosecution: In two separate applications, the respective applicants (Ms Maughan and Mr Downer) in Maughan v Zuma (Campaign for Free Expression and Others as Amici Curiae) and a related matter [2023] 3 All SA 484 (KZP) sought the setting aside of summons issued for the purpose of instituting a private prosecution against them by the respondent (Mr Zuma).
The applicants averred that the respondent had not obtained a nolle prosequi certificate from the Director of Public Prosecutions entitling him to institute the private prosecution against Ms Maughan and that he did not satisfy the requirements for standing in terms of s 7(1)(a) of the Criminal Procedure Act 51 of 1977; and the private prosecution was an abuse of process.
Section 7(1)(a) provides for private prosecution where the Director of Public Prosecutions declines to prosecute for an alleged offence committed against a ‘private person who proves some substantial and peculiar interest in the issue of the trial arising out of some injury which he individually suffered in consequence of the commission of the said offence’. Where a private prosecution, such as alleged in the current matter has been initiated for an ulterior purpose, it constitutes a breach of the principle of legality and amounts to an abuse of the process of the court. A prosecution which is unsustainable also constitutes an abuse of the process of court. A court is then obliged to intervene and end the abuse of process. The applicants were thus entitled to the relief sought in the respective notices of motion.
Wrongfulness inquiry in delictual action: In MEC for Education, KwaZulu-Natal v Singh [2023] JOL 59566 (SCA), the respondent, an educator, took early retirement seven years before the usual compulsory retirement age, claiming that she suffered from clinical depression due to her employer’s failure to take reasonable steps to prevent the principal of her school from victimising her. She sued for damages representing the income she lost as a result of being unable to work for what would have been the last seven years of her working life. Olsen AJA confirmed that the respondent bore the onus to establish wrongfulness, causation, and negligence. Evidence regarding the respondent’s medical condition and applicable legislative framework was considered by the court. The court discussed the respondent’s failure to engage with the remedies available to her in the case of victimisation and acknowledged the appellant’s contention that allowing a delictual claim along the lines of that advanced by the respondent posed a significant threat to the capacity of a department to perform its functions. Wrongfulness was found not to have been established. The appeal was upheld.
Divorce constitutional invalidity of s 4 of the Mediation in Certain Divorce Matters Act 24 of 1987: The High Court’s declaration of constitutional invalidity in respect of s 4 of the Mediation in Certain Divorce Matters Act 24 of 1987 was referred to the Constitutional Court for confirmation in Centre for Child Law v TS and Others [2023] JOL 59835 (CC).
The section was declared unconstitutional in that it placed an obstacle in the way of never-married parents and their children, to access the services of the Office of the Family Advocate in the same way that married parents going through a divorce and parents who were married to each other were able to access those services when there was a dispute regarding the care and contact of their children.
Section 9(3) of the Constitution prohibits direct and indirect discrimination by the state against anyone on any of the grounds listed therein. The first question was whether there was differentiation between people or categories of people. Tshiqi J referred to the test for assessing whether differentiation amounts to discrimination and whether the discrimination is unfair. As the provision treated divorced or divorcing parents differently from never married and married parents who were separating but not divorcing, differentiation was established.
The next question was whether the differentiation bore a rational connection to a legitimate government purpose. The third respondent (the Minister) conceded that there was no purpose behind the differentiation. Section 4 clearly discriminated on the basis of marital status, albeit indirectly. The next question was whether the limitation was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, in view of all relevant factors, including those mentioned in s 36(1) of the Constitution. The limitation was not justifiable in terms of s 36. The High Court order was confirmed, and the declaration of invalidity was suspended for 24 months to enable Parliament to cure the defect.
Trademarks – s 10 of the Trade Marks Act 194 of 1993: In National Brands Limited v Cape Cookies CC and Another [2023] 3 All SA 363 (SCA) application was made by the first respondent (Cape Cookies) for registration of the trademark SnackCrax under class 30, in a specification covering savoury biscuits. The application was opposed by the appellant (National Brands), who was the proprietor in South Africa of the trademarks Salticrax, Snacktime and VitaSnack in class 30. Cape Cookies’ SnackCrax savoury biscuits had been on the market since August 2014 and were sold in competition with National Brands’ Salticrax savoury biscuits. Cape Cookies also used the VitaCrax mark, registered in 2009, in relation to a crisp bread snack.
National Brands opposition to trademark registration was based on several provisions of s 10 of the Trade Marks Act 194 of 1993, specifying which marks may not be registered as trademarks. Registration is not permissible where the mark sought to be registered was likely to take unfair advantage of the distinctive character or repute of an existing trademark. The registration stage of trademarks is aimed at ensuring the sanctity of the Register of Trade Marks, which should contain only distinctive marks. Only one ground of opposition needs to succeed for registration to be prohibited. There is an overall onus on the applicant for registration to satisfy the court that there is no bar to registration under the Act.
Interdictory relief against municipality for nuisance emanating from property: In Body Corporate of the Six Sectional Title Scheme No SS 433/09 v City of Cape Town [2023] 3 All SA 136 (WCC), the applicant was the body corporate of a sectional title scheme, and the respondent (the City) was the registered owner of seven neighbouring undeveloped erven forming a large open field as well as a parking lot. Although the erven had been awarded to claimants in land restitution claims, in 22 years, transfer of the properties had still not taken place. According to the applicant, the site in its current state, and the activities being conducted thereon by various persons, including the homeless, constituted a societal health, environmental and safety risk. It sought a final interdict against the City directing it to take all steps reasonably necessary to clear the site of the illegal occupants. It was contended that the nuisance generated from the site would continue until the land was redistributed as planned, but that such redistribution could not occur while the nuisance continued. The applicant, therefore, sought to compel the City to take more permanent steps to deal with the issue.
The court agreed with the applicant that the City had contravened its municipal planning by-law as the activities on the site did not comply with the permitted zoning uses. The City further failed to comply with its community fire safety by-law, its street, public places and prevention of noise nuisances’ by-law, and its integrated waste management by-law. The activities complained of gave rise to a nuisance that the applicants could not reasonably be expected to tolerate. The applicant acknowledged that the most appropriate remedy would be a structural interdict. That would afford a reasonable opportunity for the City to take appropriate remedial steps in line with the order issued by the court.
Review of South African Revenue Services (Sars) decision on prescription of tax assessment: In I-Cat International Consulting (Pty) Ltd v Commissioner for the South African Revenue Services [2023] 3 All SA 154 (GP), the applicant’s request for a reduced assessment in terms of s 93 of the Tax Administration Act 28 of 2011 in respect of its 2015 tax assessment was declined by the respondent (Sars) on the ground that the 2015 assessment had become prescribed in terms of s 99 of the Act. The applicant applied for the review of the decision. The court called for submissions on whether the provisions of ss 99(2)(d)(i) and 150 were applicable; and whether the court was entitled to mero motu raise the aforementioned as questions of law that emerged from the evidence. Vermeulen AJ confirms the parties’ agreement that the court could raise the issues in question. Regarding the review application being out of time, the court refers to s 9 of the Promotion of Administrative Justice Act 3 of 2000; standard to be applied in assessing delay; and factors to be considered when granting condonation. Condonation was granted. On the merits, the court found that provisions of s 99(2)(d)(i) were applicable to the present matter with consequence that the prescription period of three years as provided for in s 99(1) was not applicable. Sars’ finding that the 2015 assessment had prescribed was reviewed and set aside.
Interpretation of will: The dispute between the appellants and respondents in Spangenberg and Others v Engelbrecht NO and Another [2023] JOL 59562 (SCA) centred around the interpretation of a clause in the appellants’ father’s will. The appellants challenged the executor’s interpretation that it was the deceased’s intention to grant the second respondent a habitatio over a plot of land. The appellants alleged that they and the testator had informally agreed to divide the plot into three portions with each sibling being allocated a specific portion. They appealed against the High Court’s granting of declaratory relief to the executor.
Weiner JA held that the testators have the freedom to dispose of their assets in a manner they deem fit, except insofar as the law places restrictions on that freedom. The principle of freedom of testation is constitutionally endorsed.
The approach to interpretation required the court to ascertain the wishes of the testator from the language used. In endeavouring to ascertain those wishes, the will had to be read in light of the circumstances prevailing at the time of its execution. Relying on the contextual interpretation of the words in the will, there was no place for the introduction of the surrounding circumstances relied on by the appellants. The appeal was dismissed.
Apart from the cases and material dealt with above, the material under review also contained cases dealing with –
Merilyn Rowena Kader LLB (Unisa) is a Legal Editor at LexisNexis in Durban.
This article was first published in De Rebus in 2023 (Oct) DR 32.
