September [2024] 3 All South African Law Reports (pp 653 – 942); October [2024] 4 All South African Law Reports (pp 1 – 331); Judgments Online (JOL) – September, October 2024| 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. |
ECB: Eastern Cape High Court, Bhisho
FB: Free State Division, Bloemfontein
GJ: Gauteng Division, Johannesburg
GP: Gauteng Division, Pretoria
NWM: North West Division, Mahikeng
SCA: Supreme Court of Appeal
WCC: Western Cape Division, Cape Town
Amending pleadings and the right to plead: The plaintiff in Qhamakoane v Road Accident Fund [2024] JOL 66256 (GP) brought a claim against the defendant for injuries sustained in a motor vehicle collision. The defendant’s plea was not served in time, leading the plaintiff to serve a notice of bar. After filing an application for default judgment, the plaintiff filed a notice of intention to amend the particulars of claim to increase the amount claimed. The defendant was given ten days to object, but the matter was placed on the default judgment roll five days after serving the notice of intention to amend, and the amended pages were also served on the same day.
The court held that, according to r 28(7), an amendment is effected by delivering the amended pages within ten days after the ten-day objection period has lapsed without objection. In this case, the amendment had not been effected since the ten-day period for the defendant to object had not yet lapsed, and the amended pages were delivered prematurely.
When a party has been barred from pleading, they are barred from filing a plea to the plaintiff’s particulars of claim as they stand at the time of the bar. However, a barred party has the option to apply under r 27 to uplift the bar, or the bar can be uplifted by agreement between the parties. This does not apply when the plaintiff, by amending the particulars of claim, invites the defendant back into the litigation by reopening the pleadings. In such a case, the defendant would be barred from the pre-amendment pleadings but not the reopened and amended pleadings, negating the need for an application to uplift the bar.
Consequently, the plaintiff’s amendment was granted, and the defendant was afforded 15 days from the date of service of the judgment to file a plea.
Jurisdictional limitations in matrimonial property disputes: The plaintiff in Gross v Modlin [2024] JOL 66259 (GJ) sought the dissolution of her marriage with the first defendant, Mr Modlin, and claimed an amount equivalent to one-half of the difference in the net accruals of their respective estates under the Matrimonial Property Act 88 of 1984. Additionally, the plaintiff sought a declaratory order that certain immovable property (the Clifton Property) was beneficially owned by Mr Modlin.
The legal issue centred around the jurisdiction of the court over the third defendant (the excipient), who raised an exception against the plaintiff’s third amended particulars of claim, arguing that the court lacked jurisdiction over the excipient under s 21 of the Superior Courts Act 10 of 2013. The plaintiff, in turn, sought a declaratory order that s 21(2) of the Act was inconsistent with the Bill of Rights, impacting her rights to dignity, equality, property, and access to justice.
The court held that s 21(1) of the Superior Courts Act granted jurisdiction over all persons residing or being within its area of jurisdiction and all matters it may take cognisance of according to law. However, s 21(2) limited the court’s jurisdiction over foreign peregrines (non-residents) except in certain specified instances. The excipient, being a foreign peregrine and the registered owner of the Clifton Property, fell within this limitation.
While the common law in certain jurisdictions required the arrest or attachment of a foreign peregrine’s property to establish jurisdiction, South African High Courts have jurisdiction in actions against foreign entities even without such attachment in certain circumstances. The court found that the plaintiff’s particulars of claim raised a triable issue, as s 21(2) would preclude her from enforcing her accrual claim against the excipient in its current form, potentially disadvantaging divorcing spouses, particularly women, whose husbands register property in the hands of foreign peregrines to conceal wealth and diminish accrual claims.
Ultimately, the court dismissed the exception, allowing the plaintiff’s claim to proceed and potentially challenge the jurisdictional limitations imposed by s 21(2) of the Superior Courts Act.
Service of process on corporate entities: In Ex parte Sheriff Bloemfontein West [2024] JOL 65425 (FB), the Sheriff of Bloemfontein West sought a declaration regarding the lawful and sufficient service of process under r 9(5) of the Magistrate’s Court Rules. The issue arose when a close corporation or company’s registered address or place of business remained closed or had no employees present, hindering the service of legal proceedings. The court acknowledged the fundamental principle of audi alteram partem, which requires providing affected persons or entities with an opportunity to be heard before making an order against them. However, the law recognises that personal notice is not always feasible, and thus, the rules of court provide various forms of notice.
The crux of the matter centred on how to serve process on a close corporation or company that has closed its doors, discontinued business activities, or changed its registered address without informing the Companies and Intellectual Property Commission (CIPC). In such cases, the court held that service at the registered address according to the CIPC’s records should be deemed appropriate.
The CIPC maintains records of registered offices for all close corporations and companies, and it is a mandatory requirement for these entities to have a registered address and promptly notify the CIPC of any changes. Failure to do so renders the originally registered address as the legally recognised address for practical purposes.
While cautious about potential abuse by sheriffs, the court emphasised the need for a sensible interpretation of the rules to avoid absurd and unbusinesslike results. The court found that sub-rule 9(3)(e) was worded broadly enough to accommodate the problem at hand, and the sheriff had established a proper case for declaratory relief.
Striking the balance: Urgency in multiple applications: In response to a notice filed by the applicants in terms of r 49(1)(c) of the Uniform Rules of Court, requesting reasons for the court’s having struck the application off the roll for lack of urgency, such reasons were furnished in the present judgment. The applicants in Appolus and Others v Naledi Local Municipality and Others [2024] JOL 65267 (NWM) had sought on an urgent basis, orders declaring the first to fifth respondents in contempt of court orders granted against them, declaring the said respondents to be vexatious litigants as contemplated in s 2(1)(b) of the Vexatious Proceedings Act 3 of 1956, and ancillary relief.
It was held that an applicant who approaches the court for urgent relief is required to set forth explicitly, the circumstances, which it averred, rendered the matter urgent and the reasons why it was claimed that the applicant would not be afforded substantial redress at a hearing in due course. Urgent applications must be brought in accordance with the provisions of r 6(12) of the Uniform Rules of Court.
The applicants assumed that having obtained urgent relief in previous applications in the matter, the current application would also qualify as urgent. That was incorrect as a finding that an application is urgent is confined to the particular application in which such finding is made, and urgency does not extend to multiple applications. The striking of the application from the roll occurred because of the above.
Sequestration of a joint estate: Navigating the Matrimonial Property Act: In Investec Bank Limited v Singh and Another [2024] 4 All SA 150 (GP), the respondents, a married couple, found themselves embroiled in a complex financial dispute. The applicant bank, Investec, sought to sequestrate the respondents’ joint estate, alleging that it owed the bank debt exceeding R470 million arising from various guarantees provided by the first respondent, Singh, for her business entity, BIG.
The crux of the matter revolved around the interpretation of the Matrimonial Property Act 88 of 1984 (MPA) and its provisions governing spousal consent in certain transactions. The second respondent, Killick, maintained that while they were estranged, Singh had provided numerous guarantees to Investec without his consent, which he argued was required under s 15(2) of the MPA.
The court’s decision, per Cowen J, hinged on determining whether Investec had established a prima facie case for sequestration, including a liquidated claim against the joint estate, insolvency, and the potential advantage to creditors. After assessing the evidence, the court accepted Investec’s valuation of the joint estate’s assets and liabilities, including the indebtedness under the agreements with BIG.
The pivotal issue centred on the applicability of s 15(6) of the MPA, which exempts certain transactions performed by a spouse ‘in the ordinary course of his profession, trade or business’ from the spousal consent requirement. Killick argued that the guarantees could not be considered within the ordinary course of Singh’s business, necessitating his consent.
Applying the relevant legal test, the court ruled in favour of Investec, concluding that the guarantees fell within the scope of s 15(6) and did not require Killick’s consent. Consequently, the court found that Investec had established a prima facie case for the joint estate’s liability and placed the respondents’ joint estate under provisional sequestration.
The importance of a complete trial record: The applicant in Labuschagne v Director of Public Prosecutions [2024] JOL 66136 (FB) was convicted in the regional court (the court a quo) on several charges pertaining to contravention of the Sexual Offences Act 32 of 2007. After sentencing, the applicant’s legal representative sought leave from the court a quo to appeal to the High Court against the convictions and sentences. The application was dismissed. The applicant failed to apply to the court a quo for bail pending a petition for leave to appeal in terms of s 309C(2)(a)(iii) of the Criminal Procedure Act 51 of 1977. A subsequent application for bail failed, as the regional magistrate struck the matter from the roll on the grounds that he did not have legislative authority to consider the bail application pending the petition; and he had already dismissed the application for leave to appeal the convictions and sentences and was accordingly functus officio. The applicant’s bail application then came before the present court.
It was held by Daffue J that as the trial record was incomplete, the applicant could not proceed with an application for leave to appeal in terms of s 309C(2)(a)(iii), read with s 309C(4)(c) of the Criminal Procedure Act. A complete trial record is the foundation of an appeal process. It is the duty of all parties, including the presiding judicial officer, to ensure that proper trial records are kept. In addition, the presiding regional magistrate was the only person who could appropriately consider and adjudicate a bail application on the evidence presented to him as the court of first instance. A reconstruction of the trial record would have to be embarked on before the applicant could apply to the present court for leave to appeal. Without the benefit of the court a quo’s judgment in respect of the convictions, the sentence, the judgment dismissing the application for leave to appeal, and the trial record, the present court lacked jurisdiction to adjudicate the bail application as a court of first instance and the bail application was struck from the roll.
Appeal and review of extradition order and dual criminality and procedural safeguards: The appellant in Wares v Additional Magistrate and Others [2024] 4 All SA 287 (WCC) an 84-year-old self-confessed paedophile, was sought by Scottish authorities to stand trial on various sexual offences involving teenage boys at elite schools in Edinburgh during the 1970s. The High Commissioner for the United Kingdom requested the South African authorities to extradite the appellant under the Extradition Act 67 of 1962. After a warrant of arrest was executed, the appellant appeared before a magistrate, where he made certain admissions, purportedly under s 220 of the Criminal Procedure Act 51 of 1977. Based on these admissions, the magistrate found the appellant liable for extradition and ordered accordingly. Despite the appellant’s representations to the Minister, citing the severity of punishment and interests of justice, the Minister decided to surrender him to the UK for trial. The appellant appealed the magistrate’s decision and sought a legality review, contending errors in recording admissions, dual criminality issues, and prescription of charges. He also reviewed the Minister’s decision, arguing the failure to commit him to prison under s 10(1) while awaiting the surrender decision.
The court held that only the first four charges were affected by prescription, and the extradition was considered on the remaining counts. The magistrate’s consideration of the appellant’s admissions was deemed appropriate. Regarding dual criminality, the court adopted a conduct-based approach, finding the requirements satisfied, and the appellant liable for extradition to face the relevant charges.
However, the court found the infringement of the right to freedom under s 10(1) of the Act to be an unjustifiable limitation, as it did not empower the magistrate to extend or grant bail pending the Minister’s decision under s 11.
Challenging matrimonial property regimes in customary marriages: The plaintiff and the first defendant in JRM v VVC and Others (Pretoria Attorneys Association as Amicus Curiae) [2024] 3 All SA 853 (GP) entered into a customary marriage in August 2011 without an antenuptial agreement, making the default matrimonial property regime of community of property applicable. In February 2019, they signed a purported antenuptial contract, providing that the civil marriage they agreed to enter into would be out of community of property subject to the accrual system.
The legal issues centred around the validity of the purported antenuptial contract, which enabled the parties to change their matrimonial property regime years after their customary marriage. Additionally, the constitutionality of s 10(2) of the Recognition of Customary Marriage Act 120 of 1998 (the Recognition Act) was questioned, as it allowed spouses in a monogamous customary marriage to change their property regime from community of property to out of community of property when entering a civil marriage, without judicial oversight, potentially prejudicing the economically weaker spouse.
The court held that all monogamous customary marriages are regulated by s 7(2) of the Recognition Act and are in community of property unless an antenuptial contract is executed before the marriage, specifically excluding community of property. The February 2019 agreement was deemed a post-nuptial contract that changed the parties’ property regime without leave of the court, as required by s 21 of the Matrimonial Property Act 88 of 1984, rendering it invalid.
Furthermore, the court found that s 10(2) was unconstitutional to the extent that it allowed the matrimonial property regime to be changed from community of property to out of community of property without judicial oversight, prejudicing economically weaker spouses. The declaration of invalidity was suspended for 12 months to allow the Legislature to correct the defect.
Exceeding the statutory cap for a minor’s maintenance and education: The Assistant Master of the High Court, Pretoria, brought an in-chambers application under the Administration of Estates Act 66 of 1965, seeking permission to exceed the statutory cap determined by the Minister of Justice regarding payments made to a minor child from money held in the Guardian’s Fund for her benefit. The Master had received R 950 000 for the child, which was paid into the Guardian’s Fund. The funds were utilised for the child’s school fees, stationery, uniforms, clothing, swim training, extra classes, transport, and allowance at the request of her mother and guardian (NS). To date, the Master had paid out a total of R 876 198.70 since 2013. NS had now sought payment of an additional R 108 444 for school fees. Section 90(1) of the Administration of Estates Act stipulated that the amount disbursed for the child’s needs could not exceed R 250 000 above the R 950 000 paid into the Guardian’s Fund. While the cap had not yet been reached, it would soon be exceeded. The court in Master of the High Court, Gauteng Division; In Re: NS obo RN [2024] JOL 66273 (GP) held that the past disbursements and the child’s school fees, and monthly maintenance needs were reasonable and necessary. Recognising the Master’s actions in the child’s best interest, the court authorised the Master to utilise the funds standing to the minor’s credit in the Guardian’s Fund, exceeding R 250 000 if necessary, for the child’s proper maintenance and education.
Unravelling trust disputes: Accountability and termination: The appellant, who had sustained bodily injuries in a motor vehicle accident, received compensation from the Road Accident Fund. A trust was created under the Trust Property Control Act 57 of 1988, with the respondents appointed as trustees and the appellant as the sole income beneficiary. However, shortly after the trust’s creation, the appellant expressed concerns about various issues related to the trust’s income, expenditure, and management, including the trustees’ duty to account to her.
In Snyman v De Kooker and Others NNO [2024] 4 All SA 47 (SCA) the appellant made an application in the High Court, seeking an order directing the trustees to account to her, terminating the trust, and directing the trust proceeds to be paid into her attorney’s trust account pending the creation of a new inter vivos trust. While the High Court granted the order, the Full Court overturned it on appeal, leading to the present appeal.
The court clarified that the termination of a trust and the removal of trustees are separate remedies that should not be conflated. The appellant had sought the termination of the trust or an amendment to the trust deed, but the removal of trustees was not raised.
Addressing the merits, the court emphasised that a plaintiff is entitled to an account only if the defendant stands in a fiduciary relationship or if a statute or contract imposes a duty to render the account. The trustees undoubtedly had a fiduciary relationship with the appellant, who was both an income and capital beneficiary. As the appellant deemed the account rendered insufficient, the court inquired into its sufficiency and found that the trustees’ accounting fell short of the required standards.
Invoking s 13 of the Trust Property Control Act, which provides for the variation or termination of trust provisions, the court identified provisions in the trust deed that prejudiced the appellant’s interests. Consequently, the court established grounds for termination under s 13(c).
The appropriate remedy was to terminate the trust as soon as possible and create a new one, preceded by a full, proper accounting by the trustees to the appellant from the trust’s establishment date.
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 2024 (December) DR 39.
