The law reports – December 2020

December 1st, 2020

October [2020] 4 All South African Law Reports (pp 1 – 318); October 2020 (10) Butterworths Constitutional Law Reports (pp 1173 – 1296)

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

ECG: Eastern Cape Division, Grahamstown

ECP: Eastern Cape Local Division, Port Elizabeth

GJ: Gauteng Local Division, Johannesburg

GP: Gauteng Division, Pretoria

ML: Mpumalanga Division, Middelburg

WCC: Western Cape Division, Cape Town


Legal status – interpretation of statutes: The applicants in Chisuse and Others v Director-General, Department of Home Affairs and Another 2020 (10) BCLR 1173 (CC) were persons born outside of the Republic of South Africa (RSA) to a South African parent before 1 January 2013, the date when the South African Citizenship Amendment Act 17 of 2010 came into effect. The 2010 Amendment amended the South African Citizenship Act 88 of 1995, inter alia, by effecting amendments to its s 2(1). At the instance of the applicants a High Court had declared s 2(1)(a) and (b) of the amended Citizenship Act unconstitutional and invalid. Those provisions read:

‘(1) Any person –

(a) who immediately prior to the date of commencement of the South African Citizenship Amendment Act, 2010, was a South African citizen by birth; or

(b) who is born in or outside the Republic, one of his or her parents, at the time of his or her birth, being a South African citizen,

shall be a South African citizen by birth.’

The High Court ordered that the words ‘or by descent’ were to be read-in following the word ‘birth’ in s 2(1)(a) and the words ‘or was born’ were to be read-in following the word ‘born’ in s 2(1)(b). This order was made to address two alleged constitutional infringements, which the applicants pointed out. The first was that the provisions in question automatically stripped away the citizenship of those persons who were entitled to acquire citizenship ‘by descent’ under s 3 of the Citizenship Act in its pre-amendment form. The second was that the amendment had the effect of depriving of citizenship to those persons who had a vested right to citizenship by descent, that is, persons who fulfilled the requirements set out in s 3 in its pre-amendment form, but who, for reasons beyond their control could not register their birth to a South African parent in terms of the relevant legislation. The High Court’s order also directed the Director-General of the Department of Home Affairs to issue the necessary documents recognising the first and the third to fifth applicants’ citizenship. The High Court found that evidence established that those applicants were indeed born to a South African parent outside of the RSA.

The matter came before the CC for confirmation of the High Court’s declaration of invalidity.

The CC, per Khampepe J (Jafta, Madlanga, Majiedt, Mhlantla, Theron, Tshiqi JJ, Mathopo and Victor AJJ concurring), declined to confirm the declaration of invalidity, because it found that the provisions in question could be construed in a constitutionally compliant manner.

The judgment set out a comprehensive exposition of the proper approach to and the principles applicable to the interpretation of statutes.

The court found that on a proper interpretation of s 2(1) of the Citizenship Act, those provisions retained citizenship for those who were citizens by birth on 31 December 2012. Apart from the narrow category of citizens by descent who were also citizens by birth in terms of s 2(1)(c) of the Citizenship Act, citizens by descent generally would not have been considered to be citizens by birth as at 31 December 2012. This, however, did not necessarily render the provisions unconstitutional, as long as s 2(1)(b) could be interpreted so as to include the remaining categories of persons who had previously acquired South African citizenship. In regard to s 2(1)(b), a purposive interpretation of the words ‘who is born’ construed those words as applying to those born both before and after the commencement of the 2010 Amendment. It was incorrect to interpret the words ‘who is born’ as operating prospectively only. The court accordingly declined to confirm the High Court’s declaration of invalidity. However, it made an order declaring that first and third to fifth applicants were South African citizens; and directing the Director-General of the Department of Home Affairs to register their births; enter their details into the population register; assign them South African identity numbers and cause identity documents and birth certificates to be issued to them.

Civil procedure

Exception to particulars of claim: In an application in terms of r 23(1) of the Uniform Rules of Court, the defendants in the main action sought an order that the plaintiffs’ particulars of claim be struck out and the plaintiffs be offered an opportunity to deliver amended particulars of claim failing which the claim be dismissed with costs. The plaintiffs in Cape Concentrate (Pty) Ltd (in liquidation) and Others v Pagdens Incorporated and Others [2020] 4 All SA 61 (ECP) had claimed payment in the sum of R 23 000 000. The defendants raised various grounds of exception, claiming that the particulars of claim were vague, embarrassing and lacking in averments necessary to sustain a claim against them.

Case law makes it clear that when a question of insufficient particularity is raised on exception, the excipient undertakes the burden of satisfying the court that the declaration as it stands, does not state the nature, extent, and grounds of the cause of action. The excipient must make out a case of embarrassment by reference to the pleadings alone. The pleading must be embarrassing in that it cannot be gathered from it what ground is relied on by the pleader. A pleader’s initial duty is to allege the facts on which they rely on, and their second duty is to set out the conclusions of law which, according to them follow from the pleaded facts.

The first exception averred that the particulars of claim lacked the averments necessary to sustain a cause of action against the second to seventh defendants. The joint and several liability of the second to seventh defendants was premised on the basis that the second to seventh defendants were attorneys and directors of the first defendant (a private company). The Attorneys Act 53 of 1979 was applicable at the time the payments of the amount claimed were allegedly paid into the trust account of the first defendant. Section 23(1)(a) of the Act was peremptory and stipulated that the directors of a private company are only held jointly and severally liable with the company for the debts and liabilities of the company, which were contracted during their periods of office. In this matter, there were no allegations or averments made by the plaintiff as to whether the second to seventh defendants were directors of the first defendant at the time the money was deposited.

The next three exceptions, dealing with lack of particularity around the impugned payments were also sustained. The court, per Makaula J, held that relevant information should have been pleaded to enable the defendants to know which case they had to plead to.

The final exception was that the plaintiffs did not plead any basis, arising from fact or law, creating an entitlement to mora interest. The payment date relied on by the plaintiffs was found not to be proven. The exception was accordingly upheld.

The particulars of claim were struck out and the plaintiff was given an opportunity to deliver amended particulars of claim within 15 days, failing which the claims were dismissed with costs.

Consumer law – consumer rights

Credit providers and court jurisdiction: In FirstRand Bank Ltd v Mostert and Another and related matters [2020] 4 All SA 126 (ML) there were several cases before the court and the question to be considered was whether the matters should have been instituted by the plaintiffs in the present court, or in the relevant magistrates’ courts that had jurisdiction over the persons of the respective defendants/respondents in the matters.

Brauckmann AJ held that the many defendants who are sued by credit providers and financial institutions out of the present court lived in the countryside towns and on farms surrounding the seat of the Mpumalanga Division in Middelburg, as well as the main seat in Mbombela. When the financial institutions decide to take to the courts to enforce its rights in terms of the agreements, the defendants are normally in arrears with their obligations for some reason. Some defendants were indigent people, and often very poor.

The court stated that everybody should have access to the courts and the protection it offers through the capable judicial officers manning it, applying the law and upholding the Constitution. However, many citizens were being deprived of equal access to the courts by credit providers instructing their attorneys to institute legal proceedings in matters based on the National Credit Act 34 of 2005 in the country’s High Courts as court of first instance, and not in the lower courts as was the intention of the legislator when it drafted the Act. When sitting as unopposed, the present court was inundated with cases, issued by the Registrar, falling within the monetary jurisdiction of the magistrates’ courts, most of which had its cause of action to be found in the Act. In some of the matters the quantum involved was far below R 50 000, matters that could more cost effectively have been dealt with by the magistrates’ courts. The court stated that the National Credit Act and the Magistrates’ Courts Act 32 of 1944, with reference to jurisdiction, had in mind that, in as far as matters involving the National Credit Act are concerned, such matters should be issued, and tried in the magistrates’ courts. The court highlighted the difficulties posed for consumers, particularly indigent persons, in expecting them to access the High Court instead.

Corporate and commercial

Provision in insurance policy for indemnification against business interruption: In Café Chameleon CC v Guardrisk Insurance Company Ltd [2020] 4 All SA 41 (WCC) the applicant, which conducted the business of a restaurant, sought a declaratory order that the respondent insurance company was obliged to indemnify it as policyholder, in terms of the ‘Business Interruption’ section of the policy, for the loss suffered as a result of the interruption caused by the COVID-19 pandemic and the resultant promulgation and enforcement of the Lockdown Regulations made by the Minister of Cooperative and Traditional Affairs under the Disaster Management Act 57 of 2002. In seeking the relief in question, the applicant explained how the regulatory regime put in place to counter the pandemic impacted on its business.

The court, per Le Grange J, held that an insurance policy has to be interpreted so that its provisions receive fair and sensible application, and a restrictive consideration of words without regard to context has to be avoided. The policy under consideration could not be interpreted with reference to other policies or on the basis of generalised concerns about the impact of COVID-19 on the insurance industry at large, of which the applicant had no knowledge. The policy instead had to be considered on the contractual terms to which both parties had assented, in a sensible manner, which underpinned sound commercial sense, and not have an un-business-like result.

The main points taken by the respondent were that the applicant’s loss, if any, was not insured under the Infectious Diseases Extension clause in the policy; and that there was no causal link between the Lockdown Regulations and the Infectious Diseases Extension. Properly interpreted, insofar as the indemnity, it was conditioned upon a ‘human infectious or human contagious disease, an outbreak of which the competent local authority has stipulated shall be notified to them’, COVID-19 fell substantially within the ambit of the Notifiable Disease Extension.

The court then turned to the issue of causation. A claim in terms of an insurance contract requires a claimant to prove not only the peril and the loss or occurrence as described in and covered by the contract, but also a causal nexus or link between the two. The question was whether the applicant had established that the regulatory regime that was imposed on its business from 27 March 2020 was directly caused by the COVID-19 outbreak, within the permitted radius of its premises, and as a result thereof it suffered a loss. The court accepted that there was a clear nexus between the COVID-19 outbreak and the regulatory regime that caused the interruption of the applicant’s business. Factual causation was thus established by the applicant. In determining the presence of legal causation, the question was whether, having regard to the considerations alluded to, the harm was too remote from the conduct or whether it was fair, reasonable and just that the respondent be burdened with liability. That question was answered against the respondent.

The respondent was, therefore, liable to indemnify the applicant in terms of the Business Interruption section of the policy.

Criminal law and procedure

Housebreaking with intent to rob and robbery – sentencing: The State alleged that on 25 January 2016 the appellant in Bam v S [2020] 4 All SA 21 (WCC) broke into the home of the complainant and robbed him of a television set, a cell phone and an amount of cash. The appellant pleaded not guilty to the charge and elected not to provide any plea explanation. At the end of the trial, he was convicted as charged. The trial court imposed a sentence of seven years’ imprisonment in respect of the housebreaking, and 15 years in respect of the robbery. The latter sentence was the prescribed minimum sentence applicable to a first offender who is convicted of robbery with aggravating circumstances, unless there are other substantial and compelling circumstances present. In order to ameliorate the cumulative effect of the sentences, the magistrate directed that the sentence, which was imposed in respect of the housebreaking, was to run concurrently with that which was imposed in respect of the robbery. Effectively therefore, the appellant was sentenced to 15 years’ imprisonment.

It was held by Sher J (Bozalek J concurring) that the appellant’s explanation of events surrounding his conviction was correctly rejected by the trial court. In the absence of any credible explanation as to how he came to be dealing with the television set a day after the robbery, the obvious and only reasonable inference to be drawn was that the appellant was one of the persons who had robbed the complainant of it. In South African law housebreaking, per se, is not a crime on its own, unless it is accompanied by an intention to commit an offence. Where an offender commits a housebreaking in accordance with the requisite elements and, thereafter, proceeds to engage in further criminal conduct, which was facilitated by it, and which was the object of it, he commits a further, and separate offence. The consequences of an accused being indicted in one rolled-up, namely, composite charge of housebreaking with intent to commit an offence, and the offence itself, may in certain instances appear to be anomalous, or may at times result in what appears to be counter-intuitive or an inconsistent decision. But on analysis, this can best be understood if the underlying purpose of the practice in relation to the charging of housebreaking offences viz the avoidance of a duplication of convictions and punishments is borne in mind. The trial court correctly pointed out that housebreaking with intent to rob and robbery were two separate offences which, for practical reasons, are usually combined. However, the court erred in going on to state that as they were separate offences they should be punished separately, because the appellant was only convicted on a single, composite charge. In doing so the magistrate improperly split the charge in two, which effectively resulted in a duplication of convictions and punishments, for what essentially amounted to a single criminal course of conduct. The double sentence imposed constituted a material misdirection, warranting interference on appeal. The sentence was replaced with a sentence of 12 years’ imprisonment, antedated to 21 June 2017.


Constitutional rights of children in cannabis related offences: The case of S v LM and Others [2020] 4 All SA 249 (GJ) arose from an urgent review concerning four children, which came before magistrates for diversions in terms of s 41 of the Child Justice Act 75 of 2008. The children were alleged to have committed offences referred to in sch 1 of the Child Justice Act. They had all tested positive for cannabis, which tests had been performed at school. They were accordingly alleged to have been in possession of cannabis, which constitutes an offence in terms of sch 1 of the Child Justice Act. The children and their parents appeared before the magistrates who were all, individually and separately, handed draft court orders in terms of s 42(1) of the Child Justice Act, and agreements in terms of which the children and their parents agreed, among other things, to undergo diversion programmes. As the children had allegedly not complied with the diversion agreements, the prosecutor sought to invoke more onerous diversion programmes as contemplated in terms of s 58(4)(c) of the Child Justice Act. It was then ordered that the children undergo compulsory residence at youth centres. Those orders were subsequently set aside by the court.

The two issues which arose were whether it is still a criminal offence for children to use or be found in possession of cannabis, and whether it is permissible for a child to be referred to the criminal justice system after failing a drug test administered by the child’s school.

The court, per Opperman J (Mokgoatlheng J concurring), held that this case was not about the legalisation of cannabis for children, but about decriminalising its use and/or possession so that other, more appropriate assistance may be rendered to children. An offence that criminalises actions for only certain groups of people, most commonly because of their religion, sexuality or age, is referred to as a ‘status offence’. Status offences (and in this regard, the criminalisation of cannabis-related offences specifically) violate the constitutional rights of children in the South African context. Children are the individual bearers of rights and enjoy the right to have their best interests considered of paramount importance. Several children’s rights are directly violated by the criminalisation of cannabis-related offences on account of the (alleged) offender’s age. The criminalisation of the relevant offences infringed the right to equality and violated the best interests of the child.

Section 28(1)(g) of the Constitution guarantees the right of every child not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under ss 12 and 35, the child may be detained only for the shortest appropriate period of time and has the right to be kept separately from detained persons over the age of 18 years and treated in a manner, and kept in conditions, that take account of the child’s age.

It being established that the criminalisation of cannabis-related offences vis-à-vis children limited the rights of children, the next question was whether such a limitation was justifiable.

The court issued a declaration that s 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 was inconsistent with the Constitution and invalid to the extent that it criminalises the use and/or possession of cannabis by a child. A moratorium was declared, preventing any child from being arrested and/or prosecuted and/or diverted for contravening the impugned provision. It was also declared that s 53(2) read with s 53(3) of the Child Justice Act does not permit, under any circumstances whatsoever, for a child accused of committing a sch 1 offence to undergo any diversion programme involving a period of temporary residence.


Provisions for re-opening early childhood development services during national lockdown: The applicants in Skole-Ondersteuningsentrum NPC and Others v Minister of Social Development and Others [2020] 4 All SA 285 (GP) sought a declaration that in terms of the amendment to the Regulations issued by the Minister of Co-Operative Governance and Traditional Affairs (the second respondent) in terms of s 27(2) of the Disaster Management Act 57 of 2002 and published in GN608 GG43364/28-5-2020 (the Alert Level 3 Regulations), all private pre-school institutions offering Early Childhood Development services (Grade R and lower) were entitled to re-open immediately.

The application concerned the rights and interests of private preschool institutions, which were not affiliated with schools and which offered Early Childhood Development (ECD) education to children in Grade R and lower. By way of the GenN302 GG43372/29-5-2020, the Minister of Basic Education (the third respondent) gave directions to provide for arrangements for a phased return of educators, officials and learners to school and offices. That, however, only applied to a ‘school’ as defined in the South African Schools Act 84 of 1996.

The court, per Fabricius J, found no rational and justifiable ground, when interpreting the Regulations, on which it was envisaged that schools offering ECD programmes, including Grade R and lower, which formed part of schools as defined in the Schools Act (which include both public and independent schools), were permitted to re-open from 6 July 2020 in terms of the directions, but that other private preschools offering ECD education for children, in Grade R or lower were not permitted to open or simply left in a vacuum.

It is a requirement of the rule of law that the exercise of public power by the Executive and other functionaries should not be arbitrary. Decisions must be rationally related to the purpose for which the power was given, otherwise they are in effect arbitrary and inconsistent with this requirement. The question whether a decision is rationally related to its purpose is an objective one. The court held that the actions of the third respondent (and by implication the first respondent, who was following her lead) lacked legal certainty and caused trauma and distress to children, parents, teachers, employees, principals, and owners of educational and childcare facilities.

The court granted the relief sought by the applicants and ordered the first respondent to pay the costs of applicants and the amicus on an attorney-and-client scale.


Breach of constitutional and statutory duty in terms of National School Nutrition Programme: In Equal Education and Others v Minister of Basic Education and Others [2020] 4 All SA 102 (GP) the applicants, on an urgent basis, sought declaratory orders against the Minister of Basic Education and the Members of the Executive Council (MEC’s) of Education in eight provinces of South Africa declaring that they were in breach of their constitutional and statutory duty to ensure that the National School Nutrition Programme (NSNP) provided a daily meal to all qualifying learners whether they were attending school or studying away from school as a result of the COVID-19 pandemic.

The court, per Potterill ADJP, held that the first question was whether there was a factual basis for the application, as there had never been a refusal by the Minister and MEC’s to roll out the NSNP. In the replying affidavit, the applicants sought to establish a new factual foundation, that not all qualifying learners were yet receiving daily meals. The court described the change on tack as impermissible litigation by ambush. The purpose of pleadings, or in applications the affidavits, is for the opposition to know what case they are to meet.

The importance of the feeding programme was acknowledged by the court. The COVID-19 pandemic had the devastating effect of denying nine million school-going children of at least one nutritious meal a day, leaving many children hungry and unfed while attempting to learn. For many years the Department of Education had taken on the duty to educate children and addressed the right to basic nutrition through the NSNP. It was thus evident that the state, through the Department and the NSNP, had exercised it supplementary role to provide basic nutrition. In failing to roll out the NSNP from June 2020, the Minister and MEC’s had not complied with their constitutional and statutory duties.

The court granted the declaratory relief sought, as well as a supervisory interdict.

Other cases

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

  • delict and factual and legal causation;
  • gambling and wagering and the issue of casino licences;
  • insurance law and Bloodstock Insurance Policy;
  • international law and international agreements;
  • law of contract and interpretation of contracts;
  • medicine and the control of medicine and substances;
  • radio and television and the regulation of broadcasting services; and
  • rights and obligations of asylum seekers.

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

This article was first published in De Rebus in 2020 (Dec) DR 23.

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