October [2022] 4 All South African Law Reports (pp 1 – 293); September 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.
ECLD: East London Circuit Local Division
GJ: Gauteng Local Division, Johannesburg
GP: Gauteng Division, Pretoria
LP: Limpopo, Polokwane
MM: Mpumalanga Division, Mbombela
WCC: Western Cape Division, Cape Town
Default judgment – referral to registrar: The Auditor-General of South Africa applied for default judgment in an undefended action against the defendants. The court questioned whether the application should not have been referred to the registrar for consideration. The applicant’s counsel responded in the negative, on the basis that the claim was for audit fees, which is not a debt or liquidated demand as required by r 31(5)(a) of the Uniform Rules of Court.
The court in Auditor-General of South Africa v Accounting Officer of Gateway Airports Authority (Ltd) and Another [2022] JOL 54182 (LP) held that r 31(5)(a) provides that: ‘Whenever a defendant is in default of delivery of notice of intention to defend or of a plea, the plaintiff, who wishes to obtain judgment by default, shall where each of the claims is for a debt or liquidated demand, file with the registrar a written application for judgment against such defendant’.
The question to be determined was whether the claim was ‘a debt’ or a ‘liquidated demand’. The term can be equated with a claim for a fixed, certain, or ascertainable amount.
In this case, the basis for the calculation of the audit fee was determined by the plaintiff in terms of s 23(1) of the Public Audit Act 25 of 2004 after consultation with the oversight mechanism and the national treasury. Thus, the amount claimed was to be ascertained by mere calculation. The amount, which could promptly and speedily be determined was not premised on a quantum meruit and was not determined by the court or what the court might regard as reasonable. It was thus ‘a debt’ or ‘liquidated demand’ and the application for default judgment, therefore, should have been referred to the registrar in terms of r 31(5)(a).
The application was struck from the roll.
Urgent application – stay of execution – interim interdict: A group of 116 persons in Ndevu and Another v Westonaria South Property Holding (Pty) Ltd t/a Westonaria South and Others [2022] JOL 53978 (GP) occupying a government sector housing development brought an urgent application to stay the execution of an eviction order pending the finalisation of an application for leave to appeal. As the application for the leave to appeal was delivered about four days after the 15-day period prescribed by r 49 had expired, the applicants applied for condonation for the late filing of the application for leave.
The applicants’ submissions satisfied the court that the matter qualified as urgent.
The requirements for a stay of execution were set out by the court. A court will grant a stay of execution where real and substantial justice requires it or where injustice would otherwise result. The court will be guided by factors usually applicable to interim interdicts, except where the applicant is not asserting a right, but attempting to avert injustice. The court must be satisfied that the applicant has a well-grounded apprehension that the execution is taking place at the instance of the respondents and irreparable harm will result if execution is not stayed and the applicant alternatively succeeds in establishing a clear right. The court is not concerned with the merits of the underlying dispute.
Considering each of the requirements for the interdict sought, the court found that the applicants had made out a case for the relief in question.
Right of accused to choose where trial is held: The applicant in Davids v S [2022] 4 All SA 67 (WCC) sought an order that the criminal proceedings against him and his co-accused be heard at the Western Cape Division of the High Court rather than at the circuit court at Pollsmoor Correctional Centre.
The applicant’s objections related to the stigma attached to the Pollsmoor Circuit Court as it was part of the prison complex. The fact that members of the public would sit in another building viewing the trial proceedings via CCTV was said to give rise to an aura of a secret court and undermined the right to be tried in an open court.
The critical questions were whether the hearing of the trial in the Pollsmoor Circuit Court would infringe on the applicant’s right to a fair trial. The second question was whether the architectural design of the court created a perception of bias against the applicant and compromised the fairness of the trial. Section 35(3)(c) of the Constitution provides that every accused has the right to a fair trial, which includes the right to a public trial before an ordinary court.
Section 7(1) of the Superior Courts Act 10 of 2013 deals with a Judge President’s power to establish circuit districts for the adjudication of civil or criminal matters. The respondent submitted that the circuit courts, such as that at Pollsmoor, were meant to assist with the speedy finalisation of cases. The sitting of a court in a building, which has the aesthetics of a courtroom, and which is resourced with adequate offices, which are independent from each other to house the court officials, cannot be said to be offending against the right to a fair trial merely because it is situated in a correctional facility. The fact that a court is held in a building situated within a prison complex does not compromise the institutional and individual independence of the court and/or the judge. Judicial officers are obliged to conduct criminal trials fairly, impartially and with open minds.
The application was dismissed.
Customary marriage – validity of marriage: The court in Segone v Minister of Home Affairs and Others [2022] JOL 54179 (GJ) was called on to decide whether the purported customary marriage between the applicant and the deceased should be declared valid as per s 3(1) of the Recognition of Customary Marriages Act 120 of 1998. The applicant regarded herself as the lawful and only surviving spouse of the deceased. She claimed that she and the deceased had satisfied all the requirements for the conclusion of a valid customary marriage. She later discovered that he had married someone else (Ramakgolo). The lawfulness of that marriage was disputed by the applicant.
Ramakgolo pointed out that despite the applicant’s knowledge of the deceased’s last will and testament, and the appointment of an executor, she omitted to join the latter in the proceedings and that was said to constitute a material non-joinder fatal to her application.
The requirements for the conclusion of a valid customary marriage are provided under s 3 of the Act. Prospective spouses must both be older than 18 and they must both consent to be married to each other under customary law. Under s 4(8), a certificate of registration of a customary marriage issued under this section or any other law providing for the registration of customary marriages constitutes prima facie proof of the existence of the customary marriage. However, even if it is obligatory to register a customary marriage, s 4(9) provides that a failure to do so will not affect the validity of that marriage.
In the absence of anything to gainsay that an executor had been appointed, the court agreed that the failure to join the executor constituted a material non-joinder. The applicant’s version was incompatible with that of Ramakgolo. The court was unable to fairly determine the issues as to which version was true and accurate and acceptable.
In accordance with the provisions of r 6(5)(g) of the Uniform Rules of Court, the material disputes of fact were referred for oral testimony.
Permanent residence permits: The applicants in Hoque and Others v Minister of Home Affairs and Another [2022] 4 All SA 129 (WCC) were Bangladeshi nationals seeking permanent residence in South Africa. The first applicant had obtained a general work permit. On expiry of that permit in 2019, he applied for a critical skills visa. In 2015, the first applicant had applied for a permanent residence permit in terms of s 26(a) of the Immigration Act 13 of 2002. The second applicant, applied for a permit in terms of s 26(b) on the basis that she was married to the first applicant, and two of the minor children, applied for permits in terms of s 26(c). The refusal of the applications gave rise to the litigation. The applicants sought –
Did the Minister act lawfully when he rejected the first applicant’s application for a permanent residence permit? The court found that the respondents had failed to place sufficient evidence before the court to justify the impugned decisions, and the review relief sought by the applicants had to succeed.
Section 8(1)(c)(ii)(aa) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) allows a court in proceedings for judicial review to grant any order that is just and equitable, including orders setting aside the administrative action and varying it, instead of remitting the matter for reconsideration by the original decision-maker. The court decided that this was a matter in which it should substitute a decision.
Section 7(1) of PAJA requires applications for judicial review to be brought within 180 days of the impugned decision. The court was satisfied that it would be in the interests of justice to extend the 180-day period prescribed to allow for the consideration of the review relief sought by the applicants. It was declared that the first applicant was not a prohibited person (s 29(1) of the Immigration Act), and the second respondent was directed to issue permanent residence permits to the applicants.
Permissibility of deductions from employees’ salaries: The applicants in Gqithekhaya and Others v Amathole District Municipality [2022] 4 All SA 106 (ECLD) participated in an unprotected strike, they continued to receive their ordinary remuneration. Five months later, the respondent (the employer) decided to make deductions against their salaries over a two-month period to give effect to its ‘no-work no-pay’ rule.
Seeking interdictory relief, the applicants claimed they were not afforded any opportunity to show cause why the deductions should not be made or to make representations concerning how the recovery strategy was to be implemented. The applicants obtained an interim interdict preventing the employer from making the deductions and to pay back money deducted. The applicants challenged the lawfulness of the respondent’s decisions and sought declaratory relief. They contended that the respondent had not followed the provisions of s 34 of the Basic Conditions of Employment Act 75 of 1997 (BCEA) in implementing the recovery strategy, alternatively s 67(3) of the Labour Relations Act 66 of 1995. Section 34 deals with deductions that are lawfully permissible against the remuneration of employees.
It was held that an employee has no legal entitlement to be remunerated and should in principle pay back the money if he was paid for his cessation in services rendered while participating in an unlawful strike.
The court held further that the common law doctrine of set-off would only be applicable where the employee had admitted the debt and payment terms, or if a judgment debt already existed, as provided for in s 34(1) because only then could it be said that the applicants and the respondent were mutually indebted to each other.
Harassment – definition of conduct: In Moos v Makgoba [2022] JOL 54225 (GP) the appellant appealed against the dismissal of her application for a protection order in terms of the Protection from Harassment Act 17 of 2011. Her challenge to the order appealed against centred around the question of what constitutes harassment.
It was held that the Protection from Harassment Act was enacted to, inter alia, give effect to the rights of privacy, dignity, freedom and security of the person and the right to equality as enshrined in the Constitution. It affords victims of harassment the opportunity to an effective remedy against the various forms of harassment they may face.
For conduct to be considered as harassment, the respondent must have directly or indirectly engaged in harmful conduct and must have known or ought to have known that his conduct causes harm or inspires the belief that harm may be caused. The applicant must have believed that the conduct of the respondent would cause harm or have the reasonable believe that it would cause harm. No support could be found for the appellant’s contention that the magistrate should have given a subjective interpretation to what the appellant believed harassment was and what her fear of irreparable harm was. The court held that a subjective interpretation would leave the scope too wide, and courts would be inundated with harassment claims where even the slightest conduct could be subjectively interpreted as harassment. It would also stifle engagements and interactions with one another.
The appellant’s evidence fell short of showing how the respondent’s conduct had caused her emotional, psychological, economic, or mental harm.
The appeal was dismissed with costs.
Shooting by police – claim for damages: In Ndlovu v Minister of Police and a related matter [2022] JOL 53977 (MM) the Minister of Police was sued by two plaintiffs in the wake of a shooting by a police officer. The first plaintiff claimed compensation in the form of damages, having been unlawfully shot and wounded in his leg, below his right knee. The Minister’s defence was that the police officer had acted in self-defence. The second plaintiff claimed damages for emotional shock because of witnessing the shooting of the first plaintiff, his stepfather, and having directly thereafter been ordered by a police officer to handcuff the first plaintiff.
The court held that the defendant bore the onus of proof in respect of the claim of the first plaintiff. On the facts before the court, without making a finding as to credibility of any of the witnesses, the court found that the version of the first plaintiff was more probable than that of the defendant. The defendant, therefore, failed in discharging the onus resting on the police to prove on a preponderance of probabilities that the shooting of the first plaintiff was justifiable.
A claim for nervous or emotional shock is recognised in our law where the plaintiff shows that the nervous shock is associated with a detectable psychiatric injury. However, in this case, the second plaintiff failed to prove the requisite elements to sustain a claim of delictual liability against the defendant. The second plaintiff’s claim was accordingly dismissed.
The defendant was held liable for the proven damages of the first plaintiff and was ordered to pay the first plaintiff’s costs.
Termination of employment rendering continued occupation unlawful: The East London Hebrew Congregation in Trustees for the Time Being of the East London Hebrew Congregation v Galperin and Others [2022] 4 All SA 224 (ECLD) sought the eviction of the first and second respondents from premises owned by it. The first respondent was appointed to serve the Congregation as its Rabbi, and the right to occupy the property was an incident of his employment.
According to the applicant, the respondents’ occupation of the property became unlawful when it terminated the first respondent’s services. Despite notice to vacate, the respondents remained in occupation.
While the applicant stated that it had complied with the requirements for eviction in the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE), the respondents opposed the application on procedural and substantive grounds. One of the issues related to the appropriate forum in which the first respondent could challenge his dismissal. The applicant averred that the dispute fell to be settled in terms of the Labour Relations Act 66 of 1995. The respondents asserted that the dispute fell to be resolved before the Jewish Ecclesiastical Court.
The court pointed out that it was not open to the respondents to dispute that the first respondent’s employment had been terminated, ending the contractual entitlement to remain in occupation of the property. That then brought the respondents within the purview of the PIE Act as ‘unlawful occupiers’, entitling them to the protection of the Act. The court was satisfied that the respondents were ‘unlawful occupiers’ within the meaning of the definition and that the applicant was entitled to an eviction order subject to s 4.
An eviction application will only be granted if it is just and equitable to make such an order. The expectation that the first respondent should be given the opportunity to have a labour dispute finally determined before being evicted accorded with the constitutional objectives of justice and equity. As the first respondent had not yet had a chance to state his case regarding his dismissal, the court decided to stay the eviction application pending the resolution of the contested issues surrounding the application.
Ownership of property by company: Duin-en-See was incorporated as a vehicle to acquire land. An agreement by the original shareholders set out how each would subscribe for a shareholding in the company and acquire a portion of the land. The plaintiffs, as shareholders, exercised their rights in respect of their parcel in accordance with the agreement. Alleging that Duin-en-See intended to dispose of their portion without their consent, the plaintiffs sought an order declaring the company to be operating a share block scheme in terms of s 4 of the Share Block Control Act 59 of 1980. Duin-en-See noted an exception to the particulars of claim.
In Trustees for the Time Being of the Hunter Family Trust v Duin-en-See (Pty) Ltd and Others [2022] 4 All SA 260 (WCC) the first ground of the exception was that the allegations pleaded were insufficient to trigger the presumption in s 4 and/or to satisfy the definition of ‘share block scheme’. A company shall be presumed to operate a share block scheme if any share of the company confers a right to or an interest in the use of immovable property. A share block scheme is defined to mean ‘any scheme in terms of which a share, in any manner whatsoever, confers a right to or an interest in the use of immovable property’. It would not be necessary for the relevant right/interest in the use of the immovable property to be provided for in the definition of the relevant class of shares in the company’s memorandum of incorporation for the alleged agreement to be effective. The essential requirement is some connection between the holding of shares in the company and the holder’s entitlement to a right/interest in the use of the company’s immovable property. The court dismissed the first ground of exception.
The second ground related to the validity of the transfer of rights to the plaintiffs. Duin-en-See maintained that the transfer of rights had to be in writing to be valid (as per the General Law Amendment Act 68 of 1957 or the Alienation of Land Act 68 of 1981). However, the transactions, which culminated in the trust’s acquisition of the shares were sale of shares agreements and not contracts for the sale of land. The agreements were not subject to the formalities in either the General Law Amendment Act or the Alienation of Land Act. This exception was dismissed.
Validity of will – disqualification from inheriting: The applicant’s husband in Smit v Master of the High Court, Western Cape and Others [2022] 4 All SA 146 (WCC) was murdered on their farm in June 2019. Pursuant to his death, the applicant sought an order that the first respondent (the Master) accept and register a document dated 12 January 2019 as the last will and testament of the deceased. The application was opposed by the second and third respondents (the daughters of the deceased from a first marriage) on the basis that such document was fraudulent. They contended that a 2018 will was the real will of the deceased.
A critical aspect of the case was the implication of the applicant in the murder of the deceased. The court was thus faced with the question of whether the applicant should be declared unworthy to inherit from the deceased’s estate.
It was held that the disputed 2019 will was found by a handwriting expert to have been forged. The only person who stood to benefit therefrom was the applicant. The court could find no fault with the witnesses called by the respondents who testified about the applicant’s plotting to have her husband killed, particularly after she gained access to his safe and discovered that she would not inherit in terms of the 2018 will kept there. The court found the witnesses in question to be credible.
That led the court to the question of whether the applicant was entitled to inherit in the estate of the deceased, having caused or participated in his murder. The court referred to the Roman-Dutch principle that there are classes of persons who are regarded as unworthy to inherit. The novel element in this case was that there had not yet been any judicial pronouncement on the guilt of the applicant in the murder case. The question then was whether murder was the only crime warranting exclusion from inheriting.
It was ascertained that the applicant had forged at least three documents and submitted one forged document purporting to be the deceased’s last will, public policy required that she forfeited all the benefits that arose from the deceased’s estate. The court ruled her unworthy to inherit and dismissed her application to recognise the 2019 document as the deceased’s will.
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 2022 (Dec) DR 28.
