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.
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
Judicial review – s 7(1) of Promotion of Administrative Justice Act 3 of 2000 (PAJA): In Supaluck Investments (Pty) Ltd v Valuations Appeals Board: City of Johannesburg and Another [2023] 2 All SA 546 (GJ), the applicant sought the review of a decision by the Valuation Appeal Board for the City of Johannesburg to increase the property value of the applicant’s property. The issue of condonation was central to the matter as the applicant was given the decision and reasons on 13 July 2016 and the application to review was only served on the second respondent on 19 October 2019. That was three years and two months since the applicant became aware of the reasons of the decision.
The first question was whether the delay in prosecuting the review application was unreasonable. If found to be so, the second question was whether the delay should be overlooked and condoned. If the answers were in the negative, it would be the end of the application, and it would be unnecessary to deal with the merits.
Section 7(1) of PAJA provides that any proceedings for judicial review in terms of s 6(1) must be instituted without unreasonable delay and not later than 180 days after the date on which any proceedings instituted in terms of internal remedies as contemplated in subs (2)(a) have been concluded; or ‘where no such remedies exist, on which the person concerned was informed of the administrative action, became aware of the action and the reasons for it or might reasonably have been expected to have become aware of the action and the reasons’. The delay in this case was held to be unreasonable, and the prospects of success on merits were non-existent. The application was dismissed.
Approach to application of the Uniform Rules of Court: In Sasol South Africa t/a Sasol Chemicals v Penkin [2023] JOL 58591 (GJ), on 26 May 2020, personal service of the applicant’s summons was affected on the respondent. The respondent gave notice on 1 June 2020 of his intention to defend the action but failed to deliver a plea. After delivery of a notice of bar on 22 June 2020, the respondent delivered his plea. On 21 October 2021, the respondent delivered a notice of intention to amend the plea. The applicant contended that the notice offended against the provisions of r 28 because it did not comply with two sub-rules, being that a notice of intention to amend as contemplated in the rule must contain a provision notifying the recipient thereof of its intention to object and that it must contain a tender for the costs occasioned thereby. The applicant brought the present interlocutory application contending that the notice to amend the plea was an irregular step as contemplated in r 30.
When dealing with less than perfect procedural steps, the correct approach is to evaluate them based on prejudice and the interests of justice. The applicant could not point to any prejudice caused by the respondent’s notice to amend. There was also no obligation on a party giving notice of intention to amend in terms of r 28(1) to make a tender for the costs occasioned by the amendment. The court could find no authority for the proposition that the absence of a tender for costs renders the notice defective or irregular. The application was dismissed.
Court’s power to inquire into merits or validity of compromise: In Road Accident Fund v Taylor and related matters [2023] JOL 58945 (SCA), after two actions brought against the Road Accident Fund (RAF) were settled between the parties, the court refused to make the orders requested by the parties, taking the view that the claims amounted to exploitation of the RAF. Postponing the matters sine die, the court directed that its judgment be brought to the attention of any court called on to enforce the purported settlement agreements; and that the conduct of the legal practitioners, medical practitioner and actuary be referred to their respective professional bodies. The plaintiffs, the RAF, and the other parties affected by the order applied for leave to appeal. The SCA granted leave. Van der Merwe JA addressed the issue of appealability and the requirements for the present court to have jurisdiction to entertain an appeal. The postponements were found to be appealable decisions. The orders made by the judge in the court below constituted judicial overreach. The court pointed out that the settlement agreements in both matters were final and unconditional compromises, in respect of which the court had no power or jurisdiction to embark on an inquiry as to whether the compromise was justified on the merits of the matter or was validly concluded. The appeals were upheld.
Rule nisi and interim order – nature of order in respect of which non-compliance was alleged: On 18 December 2020, an order was issued declaring the municipality and municipal manager in breach of their constitutional obligations and granting consequential relief. A subsequent application to hold the municipality in contempt was dismissed. Central to the appeal by the Kgetlengrivier Concerned Citizens (KCC), was the interpretation of the 18 December order as amended and amplified on 12 January 2021 (the ‘Gura J orders’).
The issues were: The right to water and a healthy environment free from the harmful effects of sewerage spills, and the breach by the Kgetlengrivier Municipality and its municipal manager of duties in that regard. The first appellant in Kgetlengrivier Concerned Citizens and Another v Kgetlengrivier Local Municipality and related matters [2023] 2 All SA 452 (NWM) approached the court to assert rights to water and a clean unpolluted environment.
Petersen J (Hendricks JP and Mongale AJ concurring) held that the right to potable water is a basic human right entrenched in s 27(1)(b) read with s 27(2) of the Constitution. The right to a healthy environment is inextricably linked to the right to basic sanitation services. While striving to deal decisively with those who do not honour their constitutional mandate in serving the people, the court must ensure that due process which accords with the letter of the law is followed.
In examining the nature and implication of the Gura J orders it was held that once the return day of a rule nisi coupled with an interim order passed without being extended, both the rule nisi and the interim order lapse. Application must be made for the revival of rule nisi for allegation of contempt of court to be adjudicated.
The order granted impacted on the constitutional right to liberty of the municipal manager in circumstances where he was ‘convicted and sentenced’ without trial. The appeal by the KCC in respect of the relevant contempt application accordingly stood to be dismissed.
All the appeals before the court were dismissed.
Access to information: The appellant in Ericsson South Africa (Pty) Ltd v City of Johannesburg Metropolitan Municipality and Others [2023] 2 All SA 378 (GJ) sought an order compelling the respondents to provide copies of a draft and final forensic report on the City of Johannesburg’s Broadband Network Project under the Promotion of Access to Information Act 2 of 2000, but the request was refused by the City on the basis that it was exempt from providing the applicant with the requested information under ss 37, 39, 40, 44 and 46 of the Act. Ericsson submitted that they should be bound by the grounds advanced in response to the request and internal appeal.
The application was dismissed based on non-joinder of the entity (Nexus), which compiled the forensic report.
Keightley J (Matojane J and Van Aswegen AJ concurring) held that s 82 of the Act deals with the court’s powers regarding s 78 applications.
The Act gives content and effect to the constitutional right of access to information contained in s 32 of the Constitution. Section 11(1) of the Act provides that a requester must be given access to a record of a public body if he complies with all the procedural requirements; and access to that record is not refused in terms of any ground for refusal contemplated in the relevant provisions. When access is sought to information in the possession of the state, it must be readily availed. Refusal constitutes a limitation of the right of access to information. As such, a case must be made out that the refusal of access to the requested records is justified. Chapter 4 sets out a range of exemptions. Section 81 of the Act expressly places the burden on the state to prove that a refusal of a request for information was justified. The evidentiary burden must be discharged on a balance of probabilities. The state is required to put forward sufficient evidence for a court to conclude that, on the probabilities, the information withheld falls within the exemption claimed.
The respondents failed to justify their refusal of Ericsson’s request. The court directed that the request be complied with, subject to measures being taken to protect third parties involved.
Application by shareholder to bring derivative action on behalf of company in terms of s 165(5)(b) of Companies Act 71 of 2008: In Nebavest 1 (Pty) Ltd t/a Minster Consulting v Central Plaza Investments 202 (Pty) Ltd and Others [2023] 2 All SA 795 (WCC), the applicant (Nebavest) owned 50% of the shares in the first respondent (Central Plaza). The second respondent (Strydom) was the sole director of Central Plaza and a director of its other 50% shareholder (Salt).
Having served a demand on Central Plaza in terms of s 165(2)(a) of the Companies Act, Nebavest now sought to bring a derivative action on behalf of Central Plaza, for the repayment of all benefits paid by an insurer (African Unity) to persons other than Central Plaza arising from medical aid cover and other business conducted with the National Road Freight Industry Fund since 2010.
In terms of s 165(5)(b), a person who has made such demand may apply to a court for leave to bring proceedings in the name and on behalf of the company, and the court may grant leave if satisfied of three requirements, viz that the applicant is acting in good faith; the proposed proceedings involve the trial of a serious question of material consequence to the company; and it is in the best interests of the company that the applicant be granted leave to commence the proceedings.
In its demand in terms of s 165(2), Nebavest relied on the alleged breach of two agreements. The basis for the complaint was said to be the non-payment by African Unity of the full amount of the commission due to Central Plaza. The two agreements were an undated ‘Non-Circumvention/Non-Disclosure Agreement’ (the NCNDA) concluded between Central Plaza and African Unity, and an alleged oral agreement concluded in 2009 between Nebavest, Salt and African Unity. Against that background, it had to be determined whether the three requirements in s 165(5)(b) had been met. The good faith requirement in s 165(5)(b)(i) is not satisfied if it is apparent that the applicant does not honestly believe that a good cause of action exists and that it has a reasonable prospect of success. The court was unable to accept that Nebavest had a bona fide belief that Central Plaza enjoyed a viable claim against any of the persons identified as potential defendants in the contemplated derivative proceedings. The result was that the first requirement had not been met, and the application was dismissed with costs.
Effect of establishment of concursus creditorium: An application for credit facilities form that was presented to the first respondent (Voltex 2), in Prevance Bonds (Pty) Ltd v Voltex (Pty) Ltd and Others [2023] 2 All SA 587 (SCA), by the second respondent (First Strut) incorrectly recorded Voltex 2’s registration number. After the liquidation of First Strut, Voltex 2 submitted its claims to the liquidators, with a security cession contained in the credit facilities form securing such claims. The appellant (Prevance) objected to the recognition of Voltex 2 as a secured creditor and Voltex 2 applied for rectification of the recordal of its registration number on the credit facilities application form and the security cession. Despite Prevance’s objection, the High Court granted rectification. Prevance appealed.
Two issues arose for determination on appeal –
Rectification of a written agreement is a remedy available to parties in instances where an agreement reduced to writing, through a common mistake, does not reflect the true intention of the contracting parties. The onus is on a party seeking rectification to show, on a balance of probabilities, that the written agreement does not correctly express what the parties had intended to set out in the agreement. Prevance’s defences were premised on the allegations that the purpose of the rectification application was to substitute a secured creditor in circumstances where the unsecured creditor’s claim should not have been admitted. But there was no factual foundation for the defences. The first issue was thus decided in Voltex 2’s favour.
On the second question, the court agreed with the High Court that a case for rectification had been established by Vortex 2. The court emphasised the principle that a creditor, who at the date of winding-up was only a concurrent creditor, cannot by rectification of an agreement alter its position to become a preferent or secured creditor, as this would disturb the concursus creditorum. As the document in which the security cession was embodied was the recordal of the agreement and cession, rather than agreement and cession itself, it was capable of being rectified without offending the concursus creditorum. The rectification of the document would not result in any prejudice to the third-party creditors and, in any event, none had been established.
The appeal was dismissed with costs.
Actio de pauperie – past and future medical costs – general damages: The plaintiff in Marshall v Pillay [2023] JOL 58851 (WCC) was attacked by the defendant’s dog and instituted action under the actio de pauperie, for past and future medical expenses and general damages. She sustained physical and psychological damage.
Kusevitsky J held that an owner of a dog that attacks a person at the place he or she was injured, and who neither provoked the attack nor by his or her negligence contributed to their own injury, is liable, as owner, to make good the resulting damage. For liability to attach to a defendant, the only proof required under this action is that the defendant was at the time the owner of a domesticated animal, that the animal injured the plaintiff without provocation, and that in so inflicting injury, the animal acted contra naturam sui generis.
In assessing the claim for future damages, the court held that it was not bound by the recommendations of an expert who had deposed to evidence of her medical report via an affidavit in terms of r 38(2) of the Uniform Rules of Court.
An assessment of an appropriate award of general damages, is a discretionary matter and has as its objective to compensate an injured party fairly and adequately. General damages are awarded for bodily injury, which includes injury to personality. Its object is to compensate loss, not to punish the wrongdoer.
Plaintiff was entitled to the amount of R 37 567,61 in respect of past medical expenses, and R 4 620 for future medical treatment in the form of six physiotherapy sessions.
Customary law marriage – validity of marriage certificate: In Mgenge v Mokoena and Another [2023] 2 All SA 513 (GJ), the applicant sought an order cancelling the marriage certificate recording that her son (the deceased) and the first respondent had entered a customary marriage. She stated that as mother of the deceased, she had not consented to his marriage, and was unaware of the existence thereof. She averred that in terms of customary law, she, as the mother of the deceased, was required to have participated in any pre-marriage negotiations between the families of the first respondent and the deceased.
The requirements for the conclusion of a valid customary marriage are contained in s 3 of the Recognition of Customary Marriages Act 120 of 1998. The prospective spouses must both be older than 18; must both consent to be married to each other under customary law; and the marriage must be negotiated and entered into in accordance with customary law.
In countering the applicant’s assertions that no marriage had come about, the first respondent referred to the customary negotiations between the two families and produced a copy of the resultant lobola agreement. The applicant’s contention that the lobola document did not indicate the successful negotiation of a customary marriage was negated both by the wording of the agreement and the part-payment of the agreed lobola.
The court addressed the matter of the integration of the bride into the groom’s family (the ‘handing over’ of the bride). Instead of deciding the issue based on which particular customary traditions applied, the court decided the question of whether the requirement of handing over was met on the basis of more general considerations.
A marriage certificate stands as prima facie proof of the marriage. The applicant’s contentions did not suffice to cast any doubt on the validity of the marriage certificate. The court confirmed that the marriage certificate correctly recognised the existence of a marriage between the first respondent and the deceased during the lifetime of the deceased. The application was dismissed with costs.
Duties of support in permanent opposite-sex life-partnership: The eight- to nine-year-long relationship between the parties in EW v VH (Women’s Legal Centre Trust as Amicus Curiae) [2023] 2 All SA 404 (WCC) ended, leading to the applicant instituting an action seeking a declaration that they had been in a permanent life-partnership and an order of maintenance in her favour. The respondent disputed the allegation that the relationship was a permanent life-partnership in terms of which they had undertaken reciprocal duties of support towards each other.
While the action remained pending, applicant launched the present urgent application. She ultimately sought development of the common law to recognise the existence of a duty of support between partners in unmarried opposite-sex permanent life-partnerships, entitling such parties to claim maintenance from one another.
The three central issues were whether the applicant was entitled to final relief (development of the common law) to ground a claim for interim maintenance when substantially the same final relief was sought in the pending action between the parties; whether development of the common law was required and appropriate; and whether the applicant should succeed in her claim for interim maintenance and a contribution towards her costs.
The applicant stated that the lack of legal recourse for life partners to claim maintenance from one another following the termination of their partnership was constitutionally unacceptable since it discriminated based on marital status and gender and constituted unequal protection before the law. Contrary to her assertion that nothing was being done to protect individuals in her position, there has been clear recognition by the legislature of the need to protect vulnerable life partners on termination of their partnerships.
The claim for interim maintenance and a contribution towards costs was based on a finding in applicant’s favour for final declaratory relief. The application was dismissed.
In a dissenting judgment, it was held that where constitutional issues are raised in a matter, application of the law should be more generously approached. The issue of prejudice to the applicant was emphasised and the dissenting judgment favoured provision of a limited right in specified circumstances to allow for the applicant and those in similar situations to claim interim financial relief from their permanent life partners.
Striking of advocate from roll: First respondent in Legal Practice Council (KwaZulu-Natal Provincial Office) v Manana and Another [2023] JOL 58956 (KZP) was a trust account advocate who allegedly unlawfully misappropriated money from his clients trust account and failed to repay him.
The applicant sought and obtained a rule nisi against the first respondent, with interim relief, which, in essence, suspended the first respondent from his practice as an advocate and installed a curator to administer his practice. The applicant sought confirmation from the rule which, inter alia, will result in the name of the first respondent being removed from the roll of advocates, the basis being that the first respondent is not a fit and proper person to continue acting as an advocate.
In considering the first respondents conduct Mossop J referred to General Council of the Bar of South Africa v Jiba and Others [2016] 4 All SA 443 (GP) in which the court listed qualities a lawyer should possess namely –
The first respondent had failed to demonstrate these qualities.
The rule nisi was confirmed and first respondents name was ordered to be removed from the roll.
Eviction application: Appellants in Skog NO and Others v Agullus and Others [2023] 2 All SA 631 (SCA) appealed against the dismissal by the Land Claims Court (LCC) of their application for eviction of the first to 26th respondents (the occupiers) from a farm owned by the third respondent. The latter was a trust with the first two appellants its trustees. The occupiers resided in nine cottages on the farm, with the trust’s consent, each cottage being occupied by a former employee and his or her family.
Despite being ordered to vacate after the employment relationship ended, none of them left the farm leading to the trust bringing an application for eviction, based on the Extension of Security of Tenure Act 62 of 1997. The trust asserted that the lease agreements concluded with the occupiers clearly stipulated that their tenure as residents was subject to the employment relationship continuing to exist. In approaching the LCC for the respondents’ eviction, the trust relied on the unacceptable way the occupiers had allegedly conducted themselves on the farm, which the trust said had led to the breakdown of the relationship between it and the occupiers. The court declined to order the mass eviction of all the occupiers where it was not shown who exactly had been responsible for the conduct complained of.
An applicant who seeks final relief in motion proceedings must, in the event of a dispute of fact, accept the version set up by his opponent unless the latter’s allegations are, in the opinion of the court, not such as to raise a real, genuine or bona fide dispute of fact or are so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers.
Section 8 of the Extension of Security of Tenure Act prescribes a two-stage procedure before an eviction order may be granted.
There must be termination of the right of residence of an occupier, which must be on lawful grounds and just and equitable. The decision to terminate the right of residence must then be communicated to the occupier. As the trust had sent separate notices to all the occupiers, terminating their rights of residence, and giving them notice of its intention to evict them, the only question was whether the termination of their right to reside on the farm was lawful and whether it was, given all the circumstances, just and equitable.
The court was satisfied that the termination of the right of residence was just and equitable in this case. Once an occupier’s right to reside has been duly terminated, his refusal to vacate the property is unlawful. The relevant considerations in considering whether an eviction order is warranted include the availability of suitable alternative accommodation, the effect of an eviction on the constitutional rights of affected persons, and any hardship that an eviction may cause the occupiers. Another relevant consideration was the comparative hardship to the occupiers and the owner of the property.
An eviction order was granted, and the local municipality ordered to provide suitable emergency housing for occupiers.
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 (Aug) DR 27.
