The law reports – December 2023

December 1st, 2023
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September [2023] 3 All South African Law Reports (pp 613 – 921); October [2023] 4 All South African Law Reports (pp 1 – 276); September – October 2023 Judgments Online

This 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.

Abbreviations:

CC: Constitutional Court

ECB: Eastern Cape Division, Bhisho

ECM: Eastern Cape Division, Mthatha

FB: Free State Division, Bloemfontein

GJ: Gauteng Local Division, Johannesburg

GP: Gauteng Division, Pretoria

KZD: KwaZulu-Natal Division, Durban

LC: Labour Court

SCA: Supreme Court of Appeal

WCC: Western Cape Division, Cape Town

Administrative law

Judicial Service Commission (JSC) not justified in rejecting findings and conclusion of the Judicial Conduct Tribunal that judge’s conduct constituted gross misconduct: Judge Nkola Motata was arrested after he drove into the boundary wall of a residential property and became involved in a verbal altercation with the property owner. He was subsequently charged and convicted of driving a motor vehicle while under the influence of intoxicating liquor. The incident led to three complaints being lodged against him with the first respondent, the JSC. All three complaints were considered by the Judicial Conduct Committee (the JCC) of the JSC, which decided in terms of s 16(4)(b) of the Judicial Service Commission Act 9 of 1994 that the complaint, if established, would prima facie indicate gross misconduct by Judge Motata and accordingly recommended that it be investigated by a Judicial Conduct Tribunal (the Tribunal). The Tribunal concluded that Judge Motata’s conduct constituted gross misconduct and recommended to the JSC that the provisions of s 177(1)(a) of the Constitution be invoked. The majority of the JSC, however, rejected the Tribunal’s recommendation. It found Judge Motata guilty of misconduct simpliciter and imposed a fine of R 1 152 650,40 to be paid to the South African Judicial Education Institute.

The appellant, Freedom Under Law (FUL) applied in the High Court, to review and set aside the JSC’s decision and to substitute that decision with a finding that Judge Motata was guilty of gross misconduct as contemplated in s 177(1)(a) of the Constitution, alternatively, for the matter to be remitted to the JSC to be decided afresh taking into account the findings of the court. The court’s dismissal of the review application relating to one of the complaints led to the appellant’s appeal in Freedom Under Law (RF) NPC v Judicial Service Commission and Another [2023] 3 All SA 631 (SCA).

The majority decision of the JSC did not offer reasons for rejecting the factual findings of the Tribunal in respect of the relevant complaint, including the findings on the credibility of the witnesses. The evidence showed that Judge Motata had alleged that he had been provoked by the property owner whom he also alleged had used a racial slur against him. That was proven not to be true. The High Court should have inquired whether the JSC was entitled to simply disregard the Tribunal’s factual findings in the manner that it had. It did not do so. Had the court undertaken that task, it would have realised that no justifiable warrant existed for the JSC to have rejected the Tribunal’s findings. The court did not consider remittal of the decision to the JSC to be acceptable. It considered itself as well placed as the JSC to make a decision and decided, therefore, on substitution of the order.

The appeal was upheld, and the matter was remitted to the JSC – not for a finding to be made, but to be dealt with in terms of s 20(4) of the Judicial Service Commission Act.

 

Application for review of decision of Financial Services Tribunal: On finding the applicant to have contravened its Listings Requirements, the Johannesburg Stock Exchange (JSE) decided that the transgressions warranted a R 2 million fine and a ‘public censure’ as provided for in the Listing Requirements. The applicant applied for the reconsideration, by the Financial Services Tribunal, of the JSE’s finding and the Tribunal decided to suspend the payment of the fine imposed but declined to suspend the publication of the censure. That led to the present application for the review and setting aside of the Tribunal’s decision not to suspend the publication of the censure in Abdulla v Johannesburg Stock Exchange Limited and Others [2023] JOL 60716 (GJ).

The court confirmed that the grounds for review were that the Tribunal had failed to attach sufficient weight to particular considerations, and that it had attached too much weight to others. The two factors, which the Tribunal was said to have weighed inappropriately, in this case were the capacity of publication of the censure to cause the applicant harm, and the applicant’s prospects of success in securing a more lenient sanction from the Tribunal than that imposed by the JSE. Neither was weighed in a manner that deprived the decision of its underlying rationality, or of a logical connection to the surrounding facts. The application was dismissed.

Civil procedure

Evaluation of expert opinion in determining its probative value and the considerations relevant thereto are determined by the nature of the conflict in the opinion: In Jayiya v Member of Executive Council for Department of Health, Eastern Cape [2023] 4 All SA 72 (ECB), the appellant had instituted a medical negligence claim against the respondent (MEC). The claim was brought in the appellant’s own name and on behalf of her newborn child, who had suffered cerebral palsy as a consequence of a hypoxic-ischemic encephalopathy during the birth process. The appellant alleged that the employees of the respondent, including the medical practitioners who had treated her at the clinic, were negligent. The court a quo found against the appellant. On appeal, the appellant contended that the court had erred in not attaching enough weight to the joint minutes of experts. It was submitted that the court had erred in not finding that, in view of the agreement reached by the experts in the joint minutes, it was not necessary for the appellant to call further witnesses on the agreed issues and that the court was bound to adjudicate the matter based on such agreement by experts because there was no valid repudiation or withdrawal of the agreement by any of the parties. The appellant also submitted that the court erred in its assessment of expert evidence and by substituting the direct uncontradicted expert evidence with its own logic and in that regard, it had committed a misdirection.

In a claim for delictual damages, the plaintiff must prove, on a balance of probabilities, that the acts or omissions of the defendant were wrongful and negligent, and caused loss. The appellant had to establish that the wrongful and negligent conduct of the respondent’s nursing and medical staff, acting within the course and scope of their employment, had caused her harm. The correct approach for establishing the existence of negligence involves reasonable foreseeability and the reasonable preventability of damage.

The court was required to evaluate and resolve the conflict in the testimony of the expert witnesses called for the appellant and the respondent. The evaluation of expert opinion in determining its probative value and the considerations relevant thereto are determined by the nature of the conflict in the opinion, and the context provided by all the evidence and the issues which the court is asked to determine. An expert witness must not omit to consider the material facts that should detract from his concluded opinion. It is not expected of the court to simply accept the opinions of experts. The expert’s evidence must be logical and his conclusions must be reached with knowledge of all the facts.

Having regard to the evidence, the court a quo erred in rejecting the evidence of the appellant solely based on contradictions in her evidence and where no version was put to her by the respondent. The present court upheld the appeal.

 

Access to information: In terms of the Promotion of Access to Information Act 2 of 2000, the applicant (HJI) sought access to copies of documents relating to the negotiation and conclusion of agreements by the respondents, the Minister of Health, and the National Department of Health (NDOH) for the supply of COVID-19 vaccines. The NDOH refused the request, and the present application in Health Justice Initiative v Minister of Health and Another [2023] JOL 60444 (GP), was for reconsideration of the request de novo.

The court refers to s 25(3)(a) of the Act, requiring adequate reasons for a refusal of access. The court stated that: ‘It is not open to the respondents to conclude agreements which include a confidentiality clause and then seek to rely on the confidentiality clause to circumvent their obligations of accountability and transparency’. Disclosure in the public interest was discussed. Finding no merit in the respondents’ arguments that the information and records sought should not be disclosed, the court ordered that the requested records be provided.

Constitutional law

Effect of misdirection by court in straying beyond separated issue: In Koch & Kruger Brokers CC and Another v Financial Sector Conduct Authority and Others [2023] JOL 60538 (CC), application was made to the CC for leave to appeal the judgment of the High Court on a separated issue. According to the applicants, the question of negligence did not form part of the separated issue and was not argued. They complained that the High Court decided the issue of negligence without considering any of the evidential material put up in their affidavits and without hearing the applicants’ counsel on that issue.

The court found that the separated issue was never precisely defined. Although the complaint that the High Court had strayed beyond the separated issue and thereby violated the applicants’ s 34 rights, the court still had to decide whether it was in the interests of justice to grant leave to appeal, the separation on which the parties and the High Court embarked was misconceived. The High Court’s findings were ineffective for resolving any of the grounds of review. Consequently, it was not in the interests of justice to grant leave to appeal.

Criminal procedure

Constitution of trial court in terms of s 93ter(1) of the Magistrates’ Courts Act 32 of 1944: In Director of Public Prosecutions, KwaZulu-Natal v Pillay [2023] 3 All SA 613 (SCA), the Director of Public Prosecutions, KwaZulu-Natal appealed against the High Court’s setting aside of the respondent’s conviction and sentence on a charge of murder. The appeal dealt with the proper interpretation of s 93ter(1) of the Magistrates’ Courts Act. The High Court’s judgment dealt only with the constitution of the trial court. It held that the peremptory requirements of s 93ter(1) had not been satisfied and it set aside the respondent’s conviction.

Section 93ter(1) provides that in a trial involving a charge of murder, the magistrate shall be assisted by assessors unless the accused requests that the trial proceed without assessors. The court held that s 93ter(1) did not confer on an accused person a right to be tried by a properly constituted court. The language employed in the section confers only a right to request that the trial proceed without assessors. Once the request is made, the magistrate has a discretion to summon one or two assessors to assist, notwithstanding the request. The fact that the court has a discretion to summon assessors despite the request, effectively negates the notion of any kind of election by the accused. Where an accused is represented, it must be established that the representative and the accused were aware of the provisions of the section, and whether the accused, as represented, has made a request as envisaged. It is incumbent on the presiding officer to ensure that the court is constituted in accordance with s 93ter(1). The High Court erred in respect of the law relating to the section and in its application to the facts, with the result that the appeal had to succeed.

Employee benefits and retirement

Whether the Pension Funds Adjudicator has jurisdiction where a complainant lodges a complaint directly with the Adjudicator instead of a pension fund: On the death of a member of the appellant pension fund, a dispute arose concerning the allocation of the death benefits to his dependents. Ms Mutsila, the deceased’s widow, was dissatisfied with the approach by the fund in allocating the death benefits to certain beneficiaries whom she considered not to qualify for the death benefits. She lodged a complaint with the Pension Funds Adjudicator, who set aside the fund’s determination and ordered it to pay R 300 000 to Ms Mutsila. The fund was unsuccessful in setting aside the Adjudicator’s determination in the High Court, and the present appeal was brought in Municipal Gratuity Fund v Pension Funds Adjudicator and Another [2023] 4 All SA 1 (SCA).

Section 30P of the Pension Funds Act 24 of 1956 states that any party who feels aggrieved by a determination of the Adjudicator may, within six weeks after the date of the determination, apply to the applicable division of the High Court for relief. The court is not limited to a decision on whether the Adjudicator’s determination was right or wrong and is not confined to the evidence, or the grounds on which the Adjudicator’s determination was based, as the court can consider the matter afresh and make any order it deems fit.

The first leg of the fund’s challenge was that Ms Mutsila should have approached the fund before lodging a complaint with the Adjudicator, and therefore, the relevant jurisdictional requirement was absent. Second, the fund contended that when the Adjudicator informed it about the complaint, it was not granted an opportunity to deal with the merits of the complaint, and therefore, the audi alteram partem principle had not been complied with.

The jurisdictional objection was without merit, as Ms Mutsila had in fact complained to the fund about the proposed distribution of the deceased’s death benefit. She was dissatisfied with the fund’s response and was advised by the fund to refer a dispute to the Adjudicator. However, the second point raised by the fund was upheld, as it was clear that the audi alteram partem rule had not been complied with. The next question was whether the Adjudicator’s ruling should stand. Setting out the applicable provisions of the Pension Funds Act regarding the distribution of death benefits, the court referred to the delay in finalising the matter. The parties and the beneficiaries in particular, were entitled to finality and would not achieve that if the Adjudicator’s determination was allowed to stand. The court was satisfied that the fund’s determination should prevail. The appeal was upheld.

Evidence

Assessment of evidence in claim for damages arising from assault: The plaintiff in Tutshana v Kentucky Fried Chicken (Madeira Drive Thru – Mthatha) and Another [2023] JOL 60635 (ECM) sued the defendants for damages arising from his alleged unlawful assault by the second defendant at the first defendant’s premises. The second defendant (Mr Jola) was an employee of the first defendant (KFC), and was alleged to have been acting in the course and scope of his employment at the time, rendering KFC vicariously liable for his conduct.

Notyesi AJ states that a defendant who pleads self-defence in an action against him based on assault, has to prove that the force used in defending himself was in the circumstances reasonable and commensurate with the plaintiff’s alleged aggression. The test for determining self-defence is objective.

The parties adduced conflicting versions regarding the circumstances leading to the assault of the plaintiff. The court found that the plaintiff and his companions were the main cause of the squabble at the KFC outlet and that Mr Jola, in his capacity as a supervisor, was obliged to intervene. Rejecting the plaintiff’s evidence, the court dismissed his claim.

Insolvency

Final winding-up of commercially insolvent companies: Investec Bank in Investec Bank Limited v Personify Investments (Pty) Ltd and related matters [2023] JOL 60652 (KZD) applied for the final winding-up of three companies (referred to collectively as ‘the respondents’). In terms of a provisional winding-up order granted against the respondents, the parties were called on to show cause, if any, as to why the provisional order should not be made final.

Nkosi J describes the onus and degree of proof required of an applicant when an application is made for a final winding-up order. The court can exercise its discretion not to grant a final winding-up order if it can discern from the evidence before it, on a balance of probabilities that the company concerned does not appear to be insolvent. Highlighting the respondents’ inability to pay their debts, the court referred to the interest that was continuously accruing on the cumulative amount of their debts. Considering the prospects of financial recovery to be bleak, the court grants the final winding-up order.

Labour law

Application for consolidation of proceedings: In terms of rule 23(1) of the Labour Court Rules, the applicant sought the consolidation of the separate disputes referred by the respondents. The respondents had been employed by the applicant, and were both dismissed for the applicant’s operational requirements. In SAICA Enterprise Development (Pty) Ltd v Brown and Another [2023] JOL 60649 (LC) the court referred to rule 23(1) which provides that a court may ‘make an order consolidating any separate proceedings pending before it if it deems the order to be expedient and just’. The court accepted the applicant’s argument that consolidating the trials would be expedient because it would lead to an expeditious finalisation of both trials. However, should the trials be consolidated, the first respondent’s legal insurance would not cover the costs of her legal representation. Justice required that she enjoy the benefit of having her legal representation funded, and the benefit of the expedience of the consolidation did not justify a decision, which would see her lose her benefit. The application was dismissed.

Property

Nature and scope of lien: In Springs Car Wholesalers (Pty) Ltd t/a No Finance Cars v F and H Motors CC [2023] JOL 60665 (FB) the respondent was in possession of a vehicle owned by the applicant, and which the applicant had leased to a third party. On discovering that the vehicle had suffered a mechanical breakdown and that the lessee had the vehicle towed by the respondent for repairs, the applicant applied for an order directing the respondent to hand the vehicle over to the sheriff for delivery to the applicant, and for an amount of R 17 739,28 to be held by applicant’s attorney as security for the respondent’s alleged claim. The respondent opposed such relief, contending that it was entitled to retain possession of the vehicle because it had a ius retentionis lien arising from, what was referred to as a ‘repair lien’.

Van Rhyn J explained that a right of retention (ius retentionis) or lien is the right to retain physical control of another’s property as security for payment of a claim for money or labour expended on that property. Two main kinds of lien are described. The protection afforded by a lien is limited – namely, the retentor merely has a defence against the rei vindicatio of the owner. A debtor and creditor lien, on the other hand, can be enforced only against the other contracting party, in this case, the lessee.

As the applicant had been deprived of possession of its vehicle and, of rental income in terms of the lease agreement, return of the vehicle was ordered.

 

Suspension of running of acquisitive prescription against persons unable to assert their rights: The plaintiff in Khatha v Pillay NO and Others [2023] JOL 60570 (GJ) sought an order declaring that she had become the owner of immovable property through acquisitive prescription as contemplated in s 1 of the Prescription Act 68 of 1969. The defendants raised a special plea to the effect that, the required prescription period was not completed thirty years later at the end of May 2016 or on any date prior to the date pleaded in the particulars of claim. The special plea was based on the contention that the death of the deceased in August 2014 constituted ‘superior force’ as contemplated in s 3(1)(a) of the Act and prevented her from interrupting the running of prescription as contemplated in s 4, and that the earliest presumptive prescription date occurred before the day on which such impediment ceased to exist. The defendants’ further contention was that the impediment only ceased to exist on the date when they were appointed as executrixes and in a position to serve legal process claiming ownership.

Moultrie AJ considered whether the death of the party against whom prescription was running constituted ‘superior force’. Section 3(1)(a) concerns postponement of the completion of prescription in certain circumstances. Suspension of extinctive prescription is based on the principle that the person against whom prescription is running is not in a position to protect their rights. Proper interpretation of s 3(1)(a) favoured the defendant’s interpretation.

The special plea was upheld.

Tax

Exhausting of internal remedies before seeking judicial review: After conducting an audit, the respondent (the Commissioner) decided that the tax avoidance provisions in ss 80A-80L of the Income Tax Act 58 of 1962 were applicable, and that the applicant had engaged in an impermissible tax avoidance scheme. The applicant applied for review of the decision but the Commissioner raised a preliminary point that the application should not be entertained as the applicant had failed to exhaust his internal remedies. That led to the applicant seeking leave to amend his notice of motion, to include an order exempting him from exhausting his internal remedies prior to the hearing of the review in Erasmus v Commissioner for the South African Revenue Service [2023] JOL 60537 (WCC).

The court confirmed the duty to exhaust internal remedies before seeking review, contained in s 7(2)(a) of the Promotion of Administrative Justice Act 3 of 2000. Section 7(2)(c) allows a court to exempt a party from discharging that obligation in exceptional circumstances if deemed to be in the interests of justice. Adequate dispute resolution processes put in place by the Tax Administration Act 28 of 2011 meant that the applicant had an available alternative. The application for an order exempting the applicant from exhausting internal remedies was dismissed, and the application for review was struck from the roll.

Wills and estates

Exceptions to claim for recognition of document as will: The trustees of a trust in Roux NO and Another v Stemmet NO and Others [2023] JOL 60598 (WCC) instituted action against the defendants, seeking revocation of a will and recognition of a subsequent will. In 2018, the testator (the deceased) executed a will bequeathing his entire estate to his adult children, but while quarantined in hospital with the COVID-19 virus, he contacted a third party and indicated that he wished to revoke the 2018 will, and that his final instructions regarding the disposal of his estate were that his entire estate was be left to the trust. A will was drafted but the testator was unable to receive the document personally as he had been induced into a coma and died shortly after. The plaintiffs pleaded that it was thus impossible for the deceased to execute the will or to otherwise comply with the applicable formalities prescribed by the Wills Act 7 of 1953, but his intention was for that will to constitute his final instructions regarding the disposal of his estate.

Pangarker AJ addressed four exceptions raised by the defendants to the particulars of claim. The judgment outlines the court’s approach to exceptions and the test on exception. The court upheld the exceptions relating to absence of jurisdictional facts required by s 2A(c) of the Act and to plaintiffs’ failure to plead the basis on which they sought to have the 2021 document recognised as a valid will.

Other cases

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

  • alleged unlawful arrest, detention and malicious prosecution;
  • application for eviction of unlawful occupiers;
  • application for stay of proceedings on ground that order referring claim to trial was obtained through fraud;
  • aviation – lease of aircraft – breach of lease agreement;
  • claim for damages – malicious prosecution;
  • contempt of court application;
  • decisions to cancel permanent residence permits; and
  • release of accused on warning – cancellation of release.

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

This article was first published in De Rebus in 2023 (Dec) DR 38.

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