November 2021 (6) South African Law Reports (pp 1 – 320); November 2021 (2) South African Criminal Law Reports (pp 451 – 564)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.
CC: Constitutional Court
GJ: Gauteng Division, Johannesburg
GP: Gauteng Division, Pretoria
SCA: Supreme Court of Appeal
WCC: Western Cape Division, Cape Town
Restrictions applicable to financial assistance by a company to a related or interrelated company, and whether applying to foreign related or interrelated companies: The matter reported as Trevo Capital Ltd and Others v Steinhoff International Holdings (Pty) Ltd and Others 2021 (6) SA 260 (WCC), heard before Bozalek J in the WCC, was one of several that came before the courts out of claims brought against the Steinhoff Group of companies after the discovery of irregularities in its financial statements and the resulting financial losses it suffered.
In this application claimants against Steinhoff – Trevo Capital Ltd (the first applicant) and two foreign companies, Hamilton BV and Hamilton 2 BV (the second and third applicants) – argued that in two instances the first respondent, Steinhoff International Holdings (Pty) Ltd (Steinhoff) – a private SA company, and at relevant times the holding company in the Steinhoff Group – had granted financial assistance in contravention of the requirements of s 45(3) of the Companies Act 71 of 2008 (the Act).
The applicants argued that both the 2014 guarantee and the 2019 CPU constituted financial assistance by Steinhoff to related or interrelated companies or corporations (SFHG and Lux Finco) as intended in s 45(2) read with s 45(1). This meant that under s 45(3), Steinhoff’s board of directors could have only authorised such assistance if –
The applicants argued that, in respect of the 2014 guarantee, Steinhoff had breached the terms of s 45(3) because a reasonable board in its position would not have thought that the company would satisfy the solvency-and-liquidity test; and further, in respect of the 2019 CPU, Steinhoff had not even purported to comply with s 45(3).
The applicants sought orders declaring the guarantee and CPU and the preceding board resolutions void under s 45(6) of the Act.
In addressing a preliminary point raised by Steinhoff, the WCC confirmed that the wording of s 45(3) showed that the legislature intended that foreign companies should fall in the class of persons to whom financial assistance could be extended by local companies only on compliance by the latter with s 45(3). In addition, the purpose of s 45 – preventing directors from abusing their powers by providing financial assistance to external entities or persons on terms contrary to the interests of the company’s creditors and shareholders – would be served by broadening the class of persons to which s 45 applied in this way.
The WCC went on to consider whether Steinhoff had satisfied the requirements of s 45 with respect to the 2014 guarantee. As to the injunction that, before granting financial assistance to a related company, a board had to be satisfied that immediately post-loan the company would be solvent, the requisite standard was ‘subjective satisfaction based on reasonable grounds’. A purely subjective belief was thus not enough. The WCC found, however, that in the light of the facts, information, and documentation available to it, the board – while mistaken – had been justified in concluding that the conditions set out in s 45(3)(b) had been met and was accordingly not in breach of s 45.
Turning to the 2019 CPU, the WCC rejected the contention by Steinhoff that it was merely a restatement of its debt under the previous 2014 guarantee; in fact, the judge held, the debt restructuring arrangement mentioned above served to discharge Steinhoff’s debt under the 2014 guarantee, and the 2019 CPU indeed constituted the giving of new financial assistance by Steinhoff to a company or corporation related or interrelated to it, namely, Lux Finco 1. And Steinhoff had failed to comply with the requirements of s 45 in this regard, rendering the resolution of Steinhoff’s board authorising the conclusion of the CPU, as well as the CPU itself, void, by virtue of s 45(6) of the Act. The WCC granted a declaration to such effect.
Vulnerability of older persons highlighted in confirmation of sentence imposed for rape: The matter of S v IT 2021 (2) SACR 494 (GP) concerns an appeal against the sentence of ten years’ imprisonment imposed on the appellant for the rape of his 65-year-old neighbour.
It appears that the appellant had decided, after a drinking session at home, to go to the complainant’s home to rape her. To this end, he armed himself with a panga and went to her house, where he – after threatening her and forcing her into a bedroom – violently raped her. During the commission of the crime the complainant’s daughter called her name from outside, interrupting the appellant and causing him to flee. He confessed that he was at all relevant times able to comprehend the unlawfulness of his act and its consequences, despite having consumed alcohol prior to its commission.
The appellant was 59 years old at the time, unemployed, and living with a female partner. He pleaded guilty, and, despite having previous convictions for crimes of dishonesty, his probation officer reported that all who knew him were stunned to hear of his actions and recommended a short-term period of imprisonment as an appropriate sentence. His counsel contended that the term of imprisonment was shockingly inappropriate given the totality of the mitigating factors placed on record and did not take account of the appellant’s advanced age. The sentencing court had misdirected itself in finding that the appellant would not serve the entire minimum term of imprisonment prescribed and, therefore, a deviation from the minimum sentence was not warranted; and said court had erred in having the appellant’s name entered into the register for sexual offenders in terms of s 50(1)(a)(i) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, given that the conviction was not related to a sexual offence against a child or person who was mentally disabled as provided by the legislation.
The GP (per Matthys AJ, Khumalo J concurring) noted that the offence was a serious one and that the age of the complainant brought into play the often-overlooked plight of older persons in the context of abuse. The unsuspecting complainant had been an easy target for the appellant’s violent conduct and the personal circumstances of the appellant were outweighed in such a situation by society’s demands for protection and the complainant’s age remained an aggravating circumstance as provided for in s 30(4) of the Older Persons Act 13 of 2006. Further, the consideration by the magistrate, that the deviation from the prescribed sentence was not warranted due to prospects of early release on parole, was indeed misguided, but it could not be said that she had in any material manner misdirected herself in the execution of her judicial discretion. The judge concluded that there was no justification for deviating from the prescribed minimum term of imprisonment and the sentence was accordingly confirmed. He agreed, however, that the jurisdictional facts were not present for an order that the appellant’s name be entered into the register of sexual offenders, and that it had to be set aside. Instead, the prosecution was ordered to facilitate for the appellant to be brought before the sentencing court and for the consequences of s 31 of the Older Persons Act to be explained to him by the court and for the crime and his personal details to be reported and entered in the prescribed form in the Register of Abuse of Older Persons held by the Department of Social Development.
Apart from the cases and material dealt with or referred to above, the material under review also contained cases dealing with –
The protection of intellectual property (IP): Application for interim interdict to compel access to applicant’s IP on respondent’s servers: In Vital Sales Cape Town (Pty) Ltd v Vital Engineering (Pty) Ltd and Others 2021 (6) SA 309 (WCC) the WCC, per Wille J, had to deal with an application for the restoration of ‘possession’ of information housed on communal servers and a system hosted by the first respondent. Alternatively, it sought an interim interdict to restore its access to the servers and system pending the institution of contractual proceedings.
The applicant was in the business of the manufacturing and supply of mainly steel products throughout South Africa. It relied on the information it possessed and its access to the communal servers and systems administered by the first respondent. The servers and systems housed the applicant’s IP, including its employees’ e-mails relating to the applicant’s business.
The applicant enjoyed peaceful and undisturbed access to its IP until 16 February 2021, when access was summarily interrupted by the respondents, who claimed that they were entitled to this obstruction because the applicant had breached an ‘arrangement’ between them by accessing the first respondent’s proprietary and confidential information on the servers and systems. The first respondent claimed that it was entitled to take this step to protect its own proprietary and confidential information on the servers and systems.
In denying spoliatory relief the WCC pointed out that the spoliation remedy (the mandament van spolie) required possession and that it could not be seriously argued that the applicant had ever been in physical possession of the servers on which the information was stored.
But the WCC was more sympathetic to the notion of interim relief by way of interdict. It pointed out that the applicant required access to its IP to continue to effectively run its business activities and that the balance of convenience accordingly favoured the granting of the interim relief contended for in the alternative to the spoliatory relief. In contrast, no harm would be suffered by the first respondent if the interim relief fell to be granted. The WCC pointed out that irreparable harm was being suffered by the applicant and that its business could face imminent closure if it was not afforded urgent interim relief. The WCC accordingly granted interim relief restraining the first respondent from blocking the applicant’s undisturbed access to the communal server, e-mails and systems administered by the first respondent.
Jurisdiction in cases of divorce: The need for a ‘flexible approach’: In OB v LBDS 2021 (6) SA 215 (WCC) a Full Bench of the WCC (Cloete J, Saldanha J and Henney J) had before it an appeal against a decision of a single judge (Binns-Ward J) of the same division. The facts were that the parties, both foreign nationals of the same gender, had decided to get married in South Africa (SA). They had decided to get married in SA because same-sex marriages were not recognised in either Russia or Namibia, respectively the appellant’s and respondent’s countries of birth. They had before their marriage travelled to SA to look for a suitable place to live and, according to the appellant, settled on Caledon after they met one Mr Kleyn, who suggested that the parties stay on his farm in the district.
Having decided to remain in Caledon indefinitely, the parties on 6 December 2017 entered into a civil union under the Civil Union Act 17 of 2006 in Cape Town. However, while on honeymoon in Germany in late December 2017, the appellant became convinced that the marriage was a major mistake, and the parties separated. The appellant, who claimed that at this point it had still been her intention to live and work in Caledon, travelled to Moscow, her birthplace, to make certain urgent work arrangements. She returned to Caledon in April 2018. On 18 October 2018 the parties concluded a settlement agreement in anticipation of divorce. The appellant issued summons out of the WCC on 7 November 2018, claiming she was ‘ordinarily resident’ in Caledon. By this time the respondent had returned to Namibia, and service was affected on her there in April 2019. By this time, however, the appellant had returned to Russia. Binns-Ward J concluded that the appellant’s ‘sojourn’ in Caledon was insufficient to meet the ‘ordinarily resident’ jurisdiction requirement in s 2(1)(b) of the Divorce Act 70 of 1979 (the Act).
The appeal court found that it was incumbent on it to raise the issue of domicile under s 2(1)(a), which was not relied on by the appellant’s counsel. The issue was, therefore, whether, for purposes of jurisdiction, the appellant was ‘domiciled in the area of jurisdiction of the court on the date on which the action [was] instituted’ as intended in s 2(1)(a) of the Act. Section 2(1) further provides that: ‘For the purposes of [the] Act a divorce action shall be deemed to be instituted on the date on which the summons [was] issued …’.
The WCC pointed out that the date of issue of the appellant’s summons by the registrar – in the present case 7 November 2018 – was, in the light of the wording of s 2(1), crucial. It emphasised that this was a ‘hard case’ on domicile that called for a flexible approach and that to lean on legal certainty alone would undermine the interests of justice. The WCC ruled that the appellant had established on a balance of probabilities that she was, at the time of the institution of the divorce proceedings, domiciled in Caledon, that is, in the WCC’s area of jurisdiction, and that the court a quo, therefore, did have jurisdiction to grant the divorce. The WCC accordingly upheld the appeal and replaced the order of the court a quo with one granting divorce.
Does the Public Protector (PP) have to grant a hearing before making a decision on remedial action? In the case of Public Protector and Others v President of the Republic of South Africa and Others 2021 (6) SA 37 (CC) it was held that during question time in Parliament, the leader of the opposition had posed a question to the President. Although the question had not been submitted beforehand as required by parliamentary procedure, the President decided to answer. The question involved an alleged transfer of funds from a company to a trust and from there to the President’s son and questioned its propriety. In his answer the President acknowledged the payment and assured Parliament of its legality. Shortly thereafter, however, the President addressed a letter to the Speaker of Parliament informing her he had been mistaken in his answer and that the beneficiary of the payment had in fact been a campaign established to support his then candidacy for the presidency of the country.
This caused the leader of the opposition (and later the second applicant, the Economic Freedom Fighters) to file a complaint with the PP that stated that the President had breached the Executive Ethics Code. The complaint was that the President had wilfully misled Parliament in violation of provision 2(3)(a) of the Code, which states that: ‘Members of the Executive may not … fully mislead the legislature to which they are accountable’. On receipt of the complaint the PP notified the President, inviting his response, which he then provided.
The PP and President later met, and there the PP raised, in addition to the opposition’s complaint, an alleged failure to declare that the donations to the campaign were ‘personal sponsorships’ requiring disclosure under the Code. In his response the President disputed any obligation to disclose these donations, on the basis that they were not made to him.
Some months later the PP furnished the President with her preliminary report and afforded him an opportunity to respond, which he again did. The PP then released her final report, in which she found the President –
As remedial action the PP directed the Speaker to refer the violations to a Parliamentary Committee and to –
She also ordered these parties to submit plans to her of how these actions would be implemented. In response the President instituted and obtained the review of these findings and remedial actions in the GP and their setting aside. The PP then applied to the CC for leave to appeal directly to it. The CC granted leave but dismissed the appeal, and in doing so raised the following points of law.
Though unnecessary to decide the issue, the SCA’s characterisation of the PP’s decision as not being administrative in nature was open to some doubt: This characterisation appeared contrary to case law to be based on the identity of the functionary concerned rather than on the nature of the power as required.
Implicit in s 7(9) of the Public Protector Act 23 of 1994 was that, where the PP contemplated taking remedial action against an individual, that individual was entitled to make representations on the contemplated action. To this end the PP was required to sufficiently describe the envisaged action as to allow a meaningful response thereto. Consequently here, where the President was afforded no hearing at all, the decision as to remedial action was fatally flawed. The CC gave leave to appeal but dismissed the appeal.
Temporary suspension of certain writs of execution and attachments: In Road Accident Fund v Legal Practice Council and Others 2021 (6) SA 230 (GP), a Full Bench of that division (per Meyer J, with Adams J and Van der Westhuizen J concurring) considered an application by the Road Accident Fund (the RAF) for the suspension of all writs of execution and attachments against it based on court orders already granted or settlements already reached with claimants, for a period of 180 days, so that it could make payment of the oldest claims first by date of court order or date of settlement agreement a priore tempore.
According to the evidence presented by the RAF’s Chief Executive Officer, it was experiencing severe financial difficulties, exacerbated by the COVID-19 pandemic, and its implosion was imminent. He further testified that the RAF’s policy and avowed intention to address this situation was to pay a priore tempore claims first, but that execution steps were bringing the RAF’s operations to a standstill, causing it irreparable damage, and debilitating any progress made towards bringing stability to the RAF’s operations and financial position.
The relief that it sought, so it was contended, was therefore, a necessary short-term solution to stabilise the RAF’s precarious financial position, and to prevent the imminent danger that attachments against its essential assets (including its bank account) would render it unable to comply with its constitutional obligation to pay compensation traffic accident victims. It was also necessary to prevent the crisis that would ensue if s 21(2)(a) of the Road Accident Fund Act 56 of 1996 (the RAF Act) were triggered. Section 21(2)(a) provides that no claim for compensation in respect of loss or damage resulting from bodily injury or the death of any person caused by or arising from the driving of a motor vehicle shall lie against the owner or driver of a motor vehicle or against the employer of the driver unless the RAF or an agent is unable to pay any compensation.
Most of the opposing respondents argued that the relief sought was unconstitutional because it would infringe on successful claimants’ constitutional rights to equal protection and benefit of the law, and access to courts. The GP did not agree, stating an important purpose of s 34 of the Constitution (access to courts) was to guarantee the protection of the judicial process to persons who had disputes that could be resolved by law, but that execution was incidental to the judicial process – it was regulated by statute and the Rules of Court and was subject to the supervision of the court, which has an inherent jurisdiction to stay the execution if the interests of justice so required.
The GP concluded that, on the peculiar facts of the case, exceptional circumstances existed: The granting of a temporary stay in order to prevent the RAF’s financial implosion and the triggering of s 21(2)(a) was necessary and in the interests of justice so as to avoid the constitutional crisis that would ensue were the RAF would no longer be able to fulfil its constitutional obligation to provide social security and access to healthcare services for road accident victims taking. Accordingly, and exercising its inherent power to regulate its procedures under the common law and s 173 of the Constitution, it ordered temporary suspension for a period of 180 days.
Apart from the cases and material dealt with or referred to above, the material under review also contained cases dealing with –
Gideon Pienaar BA LLB (Stell) is a Senior Editor, Joshua Mendelsohn BA LLB (UCT) LLM (Cornell), Johan Botha BA LLB (Stell) and Simon Pietersen BBusSc LLB (UCT) are editors at Juta and Company in Cape Town.
December [2021] 4 All South African Law Reports (pp 619 – 917)GP: Gauteng Division, Pretoria
SCA: Supreme Court of Appeal
WCC: Western Cape Division, Cape Town
Validity of dispositions made by company being wound-up: Four payments for goods sold and delivered were made to the appellant (Pride Milling) by a company, which was in the process of being liquidated. As joint liquidators of the company, the respondents contended that the payments were void and prohibited in terms of s 341(2) of the Companies Act 61 of 1973. They maintained that the payments were liable to be set aside because they were made after the effective date of the winding-up application. The High Court upheld the respondents’ contentions, leading to Pride Milling’s appeal.
In Pride Milling Company (Pty) Ltd v Bekker NO and Another [2021] 4 All SA 696 (SCA), the appeal hinged on the proper interpretation of s 341(2), read with s 348. The text, context and purpose of the legislation must be considered together when interpreting a statutory provision. The predominant purpose of s 341(2) is to decree that all dispositions made by a company being wound-up are void. That provision had to be read with s 348, which provides that the winding-up of a company by a court shall be deemed to have commenced at the time of the presentation of the application for winding-up to the court. The effect is that the payments are potentially invalid at the moment they are made, because the granting of a winding-up order will render s 341(2) operative.
Petse AP (with Carelse, Mokgohloa, Ponnan and Wallis JJA concurring) looked at whether a court may validate dispositions made after a provisional winding-up order has been granted but prior to the granting of a final order. Once a court grants a provisional order a concursus creditorum is established. The effect thereof is that the claim of each creditor falls to be dealt with as it existed at the time when the provisional order was granted.
Regarding the High Court’s discretion in such applications, the court confirmed that a court exercising such a discretion may properly come to different decisions having regard to a wide range of equally permissible options available to it. Thus, a court exercising a wide discretion should not fetter its own discretion. An appellate court may interfere with the exercise of a discretion in the true sense by a court of first instance only if it can be demonstrated that the latter court exercised its discretion capriciously or on a wrong principle or has not brought an unbiased judgment to bear on the question under consideration or has not acted for substantial reasons.
The provisions of s 341(2) decree that every disposition of its property by a company being wound-up is void. Thus, the default position ordained is that all such dispositions have no force and effect in the eyes of the law, namely the disposition is regarded as if it had never occurred. A rider in s 341(2) aims to give a court an unfettered discretion to decide whether or not to direct otherwise and thus depart from the default position decreed by the Legislature. That discretion is only exercisable in relation to payments made between the date of lodging of the application for winding-up and the granting of a provisional order.
Finding no reason to interfere on appeal with the manner in which the High Court exercised its discretion, the court dismissed the appeal with costs.
Application for discharge: A shooting incident that took place in Atlantis, Cape Town, led to the accused in S v Booysen and Others [2021] 4 All SA 859 (WCC) being charged with murder, attempted murder, and contravention of the Prevention of Organised Crime Act 121 of 1998 and the Firearms Control Act 60 of 2000. They pleaded not guilty on all counts.
After the state closed its case, the accused applied to be discharged in terms of s 174 of the Criminal Procedure Act 51 of 1977. The court refused the applications and provided its reason for doing so in the judgment.
It was held that an accused was entitled to their discharge at the close of the prosecution’s case if at that stage there was no evidence on which a reasonable court could convict them. A court seized of the question of the possible discharge of an accused at the close of the state’s case is concerned with whether there was prima facie evidence that could, not would, sustain a conviction. As there was eyewitness testimony identifying all accused as having been involved in the gang-related shooting incidents that gave rise to the charges brought against them, that evidence could not be rejected out of hand without the need to properly weigh its credibility.
After the dismissal of the applications in terms of s 174, the accused chose to adduce evidence in their defence, with each maintaining that they were somewhere else when the shootings happened.
The fundamental issues to be weighed in determining whether the state had proved its case against the accused beyond reasonable doubt were whether their identification by the eyewitnesses who gave evidence for the prosecution was credible and reliable and whether there was a reasonable possibility that their alibi defences could be true. There is nothing exceptional or special in the assessment of the evidence required in alibi cases, and the proper approach is that the court’s judgment must be founded on a holistic consideration in an integrated manner of all the evidence adduced at the trial.
Identification evidence must always be weighed with some caution, due to the danger of honest but mistaken identification. The court was satisfied with the reliability of the identification evidence adduced in this case.
Despite it being unclear who exactly had fired the shots causing the deaths and injuries, the evidence established the requirements for the doctrine of common purpose to apply. The evidence also established so-called dolus indeterminatus or general intention to kill.
Turning to the charges brought under s 9 of the Prevention of Organised Crime Act, regarding gang-related criminal activity, the court, per Binns-Ward J, held that a person charged with s 9(2)(a) must be shown to have intended their act to cause, bring about, promote, or contribute towards a pattern of criminal gang activity. That could not be said to be the case in this instance, and the accused could be found guilty of contravening s 9(2).
Based on the above findings, the second and third accused were acquitted on all counts due to insufficient evidence against them. The first accused was, however, convicted of two counts of murder, two counts of attempted murder, and of unlawful possession of a firearm and ammunition.
Criminal proceedings: A trial, which had been set down to run from 3 August 2021 until 31 August 2021, was plagued by postponements and was still not complete by 9 September 2021. After the court had heard only three witnesses. Counsel for the third and fourth accused, Mr Gladile, in S v Kwaza and Others [2021] 4 All SA 906 (WCC) requested the court’s permission to withdraw from the matter. He relied on alleged lack of financial instructions from the clients, and a prior commitment to attend a part-heard matter in the Eastern Cape Circuit Court.
The court decided to conduct an inquiry in terms of s 342A of the Criminal Procedure Act 51 of 1977 to investigate whether there had been an unreasonable delay on the part of Mr Gladile in the completion of the proceedings.
In accordance with s 342A(2), the court listed the various postponements in the matter, the causes therefore, and the explanations furnished in relation thereto.
The court harboured serious reservations about the bona fides of the application. However, it was of the view that allowing Mr Gladile to withdraw was likely to significantly enhance the pace at which the trial progressed, which would be to the benefit of the court and the accused. Leave to withdraw was thus granted.
In terms of s 342A(1), a court before which criminal proceedings are pending, shall investigate any delay in the completion of proceedings, which appears to the court to be unreasonable and which could cause substantial prejudice to the prosecution, the accused or their legal advisor, the state or a witness. In considering whether any delay is unreasonable, the court shall consider the factors set out in s 342A(2).
Mr Gladile was found to have been responsible for a significant part of the delays in this matter. The court referred to the time lost due to his poor timekeeping, and to delays, which were entirely attributable to Mr Gladile’s misconduct, and blatant dishonesty in advancing false explanations to explain absences from court. Emphasising duty of absolute honesty which Counsel owes to the court, the court held that Mr Gladile’s behaviour warranted the attention of the Legal Practice Council (LPC).
Having regard to the criteria set out in s 342A(2), the court found that there had been an unreasonable delay in the proceedings caused by Mr Gladile’s unauthorised absences, and that the wasted costs to the state occasioned by such delays amounted to an aggregate of not less than R 4 551,24. An order was made under s 342A(3)(f), referring the matter to the LPC for consideration of appropriate steps to be taken against Mr Gladile.
Expert evidence: The appellant was convicted of the murder of his wife and obstructing the course of justice and was sentenced to an effective term of imprisonment of 20 years. On appeal in Rohde v S [2021] 4 All SA 710 (SCA), the central question was whether the state had proved beyond reasonable doubt that the deceased had been killed or whether there was a reasonable possibility that she might have committed suicide. The deceased was found dead in the bathroom of the hotel room she was staying at with the appellant.
Four specialist pathologists testified at the trial, explaining to the court the nature and likely cause of the injuries found on the deceased. The trial court concluded that the appellant and deceased had had a physical altercation in which the appellant had struck the deceased, smothered her to death and then set it up to look as if she had committed suicide.
In evaluating the divergent opinions of the pathologists, the court had to make a determination of whether, and to what extent their opinions were founded on logical reasoning or were otherwise valid. The court found that the acceptable expert evidence showed that the trial court had erred in its finding of smothering of the deceased. It was concluded instead that the deceased’s neck injuries were caused by manual strangulation and that the ligature found around her neck was applied post-mortem.
Based on the conclusion that the appellant had unlawfully and intentionally killed the deceased by manual strangulation but did not assault her in any other way (as suggested by the trial court), the court had to reconsider sentence on the first count. Section 51(2)(a) of the Criminal Law Amendment Act 105 of 1997 prescribes a minimum sentence of 15 years’ imprisonment in respect of murder unless there are substantial and compelling circumstances that justify a departure from the prescribed sentence. There were no such circumstances to depart from the prescribed minimum sentence, and the court imposed a sentence of three years’ imprisonment on the second count, which was to run concurrently with the sentence on the murder count.
Duties of refugee status determination officers and Refugee Appeal Board: In Somali Association of South Africa and Others v Refugee Appeal Board and Others [2021] 4 All SA 731 (SCA), the first appellant was a registered non-profit organisation, which had among its objectives, defending the rights, and advancing the welfare of the Somali community in South Africa. The second to ninth appellants were asylum seekers. They brought appeals against the refusal of refugee status by Refugee Status Determination Officers (RSDOs). Their appeals were dismissed by the Refugee Appeal Board (the Board), and the High Court then dismissed their application for review of the Board’s decision.
On appeal, the appellants challenged the legality and fairness of the process adopted by the Board. The issues were whether the Board had complied with its duty to assist an asylum seeker to procure evidence and information on which the decisions were to be based. It was also alleged that the Board misapplied the statutory requirements for refugee status.
The Refugees Act 130 of 1998, as it stood at the time of this matter being decided, deals with the state’s interests to ensure that refugee status is granted to only those who qualify. In dealing with such applications, state authorities are required to ensure that constitutional values, including those that embrace international human rights standards, are maintained. Section 2 of the Act, in recognition of the aforesaid values, entrenches the international principle of non-refoulement.
The court took note of the conditions in Somalia leading up to the flight by the eight asylum seekers from that country before turning to consider the refugee status determination process that each had been subjected to. The RSDOs, the Board and the High Court were mistaken in their view of how the statutory process leading up to the adjudication of an application for refugee status or an appeal was designed to unfold. In terms of s 21(2)(b) of the Act, a Refugee Reception Officer (RRO) must, at source, in accepting an application form from an asylum seeker, see to it that the application form is properly completed, and, where necessary, must assist the applicant in that regard. In terms of s 21(2)(c) a RRO may conduct such enquiry as they deem necessary to verify the information furnished in the application. Section 24(1)(a) requires, that on receipt of an application for asylum, the RSDO, in order to make a decision, may request any information or clarification he deems necessary from an applicant or RRO. Section 24 provides that the RSDOs must, in dealing with an application, bear in mind the provisions of the Promotion of Administrative Justice Act 3 of 2000, and ensure that an applicant fully understands the procedures, his responsibilities, and the evidence presented.
While the High Court was correct about an asylum seeker having to ultimately show that they meet the statutory standard, it erred in holding that the Board was confined to the record before it and to the evidence thus presented. An asylum seeker should be assisted to present as full a picture as the circumstances permit. The High Court ought to have concluded that the RSDOs and the Board failed in that duty. There was also a failure to afford the asylum seekers an opportunity to respond to what the Board considered adverse to their case. The appeal was upheld.
Mining charter: In Minerals Council of South Africa v Minister of Mineral Resources and Energy and Others [2021] 4 All SA 836 (GP) the Minerals Council of South Africa sought to review and set aside certain clauses of the Broad-Based Socio-Economic Empowerment Charter for the Mining and Minerals Industry, 2018. Alternatively, it sought a declaration that the challenged clauses were inconsistent with the principle of legality and should be set aside. At issue in the application was whether the 2018 Mining Charter was a formal policy document setting out a policy developed by the first respondent, the Minister of Mineral Resources (the Minister), in terms of s 100(2) of the Minerals and Petroleum Resources Development Act 28 of 2002 (the Act), or a sui generis form of subordinate legislation.
It was held that s 100(2) enjoins the minister to develop a charter that will set the framework for targets and a timetable for attaining the object in s 2(d) of the Act, which is essentially to expand opportunities for historically disadvantaged South Africans to enter into and actively participate in the mining industry, and to benefit from the exploitation of the mining and beneficiation of mineral resources. Section 100(2)(b) adds that the charter must set out how the objects referred to in ss 2(c), (d), (e), (f) and (i) of the Act can be achieved.
Section 4(1) of the Act provides that when interpreting its provisions, a court must prefer a reasonable interpretation, which is consistent with its objects over any other interpretation, which is inconsistent with such objects. The Legislature specifically chose to use the term ‘charter’ in s 100(2)(a). That on its own was not determinative of whether the Legislature intended it to be an instrument of law or policy. The use of the term ‘charter’ in s 100(2) had to be viewed in the context of the statutory provision in which it is used, as well as the context of the legislation as a whole. The terms used in the Act led the court to conclude that the charter was not subordinate legislation but a policy document.
It was also confirmed that the interpretation that the charter was not enforceable law was consistent with the values of the Constitution.
Having considered the language of s 100(2) in light of its ordinary meaning, the context in which it appeared and the apparent purpose for which it was directed, the court, per Kathree-Setiloane J, (Van der Schyff J and Ceylon AJ concurring) concluded that the section does not empower the minister to make law. The Minerals Council was, therefore, entitled to the relief sought.
Lawfulness of eviction order: In Nimble Investments (Pty) Ltd (formerly known as Tadvest Industrial (Pty) Ltd and Old Abland (Pty) Ltd) v Malan and Others [2021] 4 All SA 672 (SCA), Nimble appealed against the setting aside by the Land Claims Court (LCC) of an order for the eviction of the respondents.
The first respondent, Mrs Malan, was a long-term occupier living in a cottage on a farm owned by Nimble. When Nimble required her to move to another cottage on the farm, meetings were held with the first respondent, to get her to agree to relocate to the alternative cottage. She and her family eventually moved but during the relocation process the fourth respondent (the son of the first respondent) and some unidentified members of the first respondent’s household removed the roof tiles, roof sheets and trusses from the cottage they had first occupied and erected an illegal structure next to the new cottage using such building material. That led to termination of her right of residence and her being required to vacate the property.
The two issues on appeal were whether the termination of the right of residence was just and equitable both in substance and in procedure, and if so, whether the eviction would be just and equitable. The Extension of Security of Tenure Act 62 of 1997 envisages a two-stage eviction procedure:
If found that the termination of the right of residence was not just and equitable due to non-compliance with s 8(1)(e), then there would be no need to determine the second issue. Eviction proceedings can only commence after the right of residence is terminated.
The basis on which the appellant terminated the first respondent’s right of residence was that she had committed a fundamental breach of trust as contemplated in s 10(1)(c) of the Act by allowing the building materials to be removed.
In considering whether the termination of the right of residence was just and equitable, both procedurally and in substance, the court had regard to s 8(1) of the Act. Section 8(1)(e) provides that ‘the fairness of the procedure followed by the owner or person in charge, including whether or not the occupier had or should have been granted an effective opportunity to make representations before the decision was made to terminate the right of residence’.
As Mrs Malan had lived on the farm for at least ten years and had reached the age of 60 years, she qualifies as an ‘occupier’ under s 8(4) of the Act, and her right of residence could not be terminated unless she committed a breach contemplated in s 10(1)(c). Allowing unauthorised persons to occupy the farm by erecting an illegal structure on it and refusing to demolish the illegal structure and return the building materials, constituted a breach as contemplated in s 10(1)(c).
The court interpreted s 8(1)(e) and held that an opportunity for representations was not required in the circumstances of this case. The appeal was upheld, and the eviction order confirmed.
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 (Jan/Feb) DR 23.
