The Law Reports – January/February 2023

February 1st, 2023
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November 2022 (6) South African Law Reports (pp 1 – 321); November 2022 (2) South African Criminal Law Reports (pp 459 – 568)

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
ECP: Eastern Cape High Court, Port Elizabeth (now Gqeberha)
FB: Free State Division, Bloemfontein
GJ: Gauteng Local Division, Johannesburg
GP: Gauteng Division, Pretoria
LP: Limpopo Division, Polokwane
SCA: Supreme Court of Appeal
WCC: Western Cape Division, Cape Town

Arbitration

‘Accidental slips’ by arbitrator: The matter of Kruinkloof Bushveld Estate NPC v Chairperson, Panel of Appeal Arbitrators and Others 2022 (6) SA 236 (GJ) concerned an application for the review and setting-aside, under s 33 of the Arbitration Act 42 of 1965, of an arbitration award. The applicant was a homeowners’ association, Kruinkloof Bushveld Estate NPC. It had been involved in a dispute with the third respondent, Ms Adlam, concerning the latter’s liability to pay Kruinkloof an amount of R 1,4 million in monthly levies, penalty levies and interest arising from its membership for Kruinkloof. That dispute went to arbitration, at the conclusion of which, the appointed arbitrator, Mr Amm, found in favour of Kruinkloof. An appeal panel partially reversed Mr Amm’s finding, holding that Ms Adlam was only liable for payment of ‘monthly levies’, and not penalty fees. Presently, Kruinkloof sought to set aside the Appeal Panel award. Inter alia, Kruinkloof argued that the Appeal Panel, in also ordering Kruinkloof to pay costs of previous arbitration proceedings to which it was not a party, namely those in which Ms Adlam had sought to cancel the purchase of the property (falling within the Kruinkloof estate), exceeded its powers. Ms Adlam, for her part, argued that the Appeal Panel’s ruling in this regard constituted a ‘clerical mistake or [. . .] patent error arising from [an] accidental slip’ envisioned in s 31(2) of the Arbitration Act, and accordingly could be corrected.

The GJ (per Opperman J), in addressing the above, considered in detail the concept of an ‘accidental slip’ insofar as it related to arbitral awards, and looked closely at both South African and English law for guidance. ‘Accidental slip’ by an arbitrator, the court ruled, were those ‘affecting the expression of the tribunal’s thought, not an error in the thought process itself’. The ‘accidental slip’ rule could be relied on to ‘to give effect to the original intention’ of the tribunal; it could not be used, however, to permit the revision of a judgment on the grounds of the presiding officer having ‘second thoughts’, or to correct errors arising from a tribunal’s incorrect assessment of the evidence before it, or its misconstruing or failing to appreciate the law. The court found that the Appeal Panel’s ruling that Kruinkloof pay the costs of unrelated arbitration proceedings to which it had not been party amounted to an accidental slip and could indeed be corrected to reflect the true intention that Kruinkloof be liable only for the costs of the hearing under consideration, that is, the appeal.

The court accordingly dismissed the review application and allowed for a correction under s 31(2) of the Appeal Panel’s award to correctly reflect its intention.

Criminal law

Jail time for bribe-taking traffic officer: S v Ramphelo 2022 (2) SACR 560 (LP) concerns the appeal of a traffic officer against her conviction for contravening s 4(1) of the Prevention and Combating of Corrupt Activities Act 12 of 2004 and sentence of two years’ imprisonment.

The police service had received many complaints of traffic officers demanding gratification from road users to ignore traffic offences and decided to conduct an operation to weed out the practise. During a trap the appellant and a colleague (her erstwhile co-accused) accepted a sum of R 150 to ignore a traffic offence committed in their presence. The entire incident was digitally recorded.

The LP (per Kganyago J, Naude-Odendaal J concurring) could find no grounds to interfere with the conviction and dismissed the appeal on this score. As to the sentence, the court noted that the appellant was a single mother of three children for whom she was the primary caregiver but emphasised that a high degree of professionalism, morals and honesty was expected of law-enforcement officers. If they were also involved in corrupt activities the campaign against reducing accidents on the roads and getting road users to obey the rules of the road, would never be won. Consequently, despite the presence of mitigating factors, the sentence had to be confirmed.

 

Intimidation Act 72 of 1982 not intended for trivial incidents: The case of S v White 2022 (2) SACR 511 (FB) concerns a review of a conviction and sentence for contravening of s 1(1)(a) of the Intimidation Act 72 of 1982.

The accused had pleaded guilty to the charge and was sentenced to a fine of R 1000 or six months’ imprisonment, wholly suspended for a period of five years. It appeared that the conviction had been based on a threat to kill if the complainant did not stop dating a certain named woman.

The FB (per Daffue J, Molitsoane J concurring) criticised the use of the Intimidation Act for such a trivial matter, indicating that the section ought to be used only in deservingly serious matters. The crime of intimidation was never intended to be applicable to the usual threats that appeared every day between members of the public, but with no real consequences or harm. The purpose was rather to punish people who intimidated others to conduct themselves in a certain manner, such as not to give evidence in court, not to support a certain political organisation, not to pay their municipal accounts or to support a strike action. A further issue was the application of the provision where English was clearly not the mother tongue of any of the role players. This led to problems with the interpretation of the charge-sheet and the allegation contained therein. In such circumstances there was ample opportunity for confusion, not only about language, but more importantly, legal principles such as whether the accused really understood the offence of intimidation. The conviction and sentence were, therefore, set aside.

Other criminal law cases

Apart from the cases summarised above, the November SACR also contained cases dealing with –

  • licensing of arms and ammunition;
  • seat of the High Court;
  • hearsay evidence;
  • evidence at trail-within-trial; and
  • separation of trials.
Divorce

Accrual – declared value conclusive proof of commencement value unless attacked on common-law grounds: In the case of DM v CM 2022 (6) SA 255 (GJ) the GJ (per Strydom J) dealt with whether an accrual was payable by the defendant to the plaintiff in their divorce action. The parties were married out of community of property, in terms of an antenuptial contract incorporating the accrual system as provided for in ch 1 of the Matrimonial Property Act 88 of 1984. Plaintiff had declared a commencement value of nil, and defendant one of R 68 746 000.

It was common cause that the declared commencement value of the defendant’s estate, adjusted with the consumer price index, exceeded the value of his estate at the time of divorce, so that it showed no accrual. Plaintiff’s case was she was entitled to prove that the defendant had overstated his estate’s commencement value. In this regard she initially claimed (in her plea to the defendant’s later abandoned counterclaim) that the declared commencement value was ‘false’, but later amended her plea to a denial that it was ‘accurate’. She also claimed that he had alienated assets with the sole purpose of reducing her accrual claim. From these contentions arose the following issues –

  • under what circumstances a party may challenge a declared commencement value; and
  • proof that alienation of assets affected the accrual calculation at the date of dissolution of the marriage.

As to the first issue, the GJ held that the commencement value was not merely prima facie proof but conclusive – unless attacked on common-law grounds. For that reason, a court would not consider evidence which was led to prove the inaccuracy of such value, unless a case were made out on common-law grounds such as for contractual remedies pursuant to misrepresentation, fraud, duress, or undue influence, etcetera. The remedy of rectification would also be available if the requirements for such a rectification of an antenuptial contract were met. The plaintiff, not having pleaded any of these recognised common-law grounds, the declared commencement value was conclusive.

As to the second, the GJ held that the intention with which the alienation took place was the determining factor. If it were made to frustrate the accrual claim of a spouse, the value of the asset would be deemed to be part of the alienating spouse’s estate. In this case, the GJ concluded, the plaintiff had failed to prove that defendant deliberately and intentionally disposed of assets to negatively affect the plaintiff’s accrual claim.

Domestic violence

Man accused per SMS of being responsible for breakdown of his marriage, infidelity and not loving his child was not victim of domestic violence: If you are involved in a fiercely contested divorce and your spouse sends you a few SMSs in which she accuses you of being the cause of the breakdown of the marriage, of not loving your child, of withholding her medication and of infidelity, you are not by dint of them a victim of the sort of activity the Domestic Violence Act 116 of 1998 seeks to supress. This was confirmed by the SCA on appeal from the FB in DVT v BMT 2022 (6) SA 93 (SCA). The SCA (per Smith AJA (Dambuza JA, Nicholls JA, Hughes JA and Savage AJA concurring)) agreed with the FB’s findings that the intermittency of their sending and their relative innocuousness meant that the SMSs could not be said to amount to the emotional, verbal or psychological abuse or harassment the Act required for a finding of domestic violence and the making of a protection order. The SCA pointed out that the complainant was acting not bona fide and guilty of abusing his superior economic position to harass his spouse and ordered him to pay the costs of the appeal.

Execution against the state

Attaching state assets – whether state money can be attached to satisfy court orders against it: The present matter, cited as MEC, Department of Public Works and Others v Ikamva Architects and Others 2022 (6) SA 275 (ECB), heard before a Full Bench of the Bhisho High Court constituted by Van Zyl DJP (Tokota J and Govindjee J concurring), concerned the interpretation of s 3 of the State Liability Act 20 of 1957, which deals with the satisfaction of final court orders against the state sounding in money. The provision was recently amended, in light of constitutional court authority, to eradicate the blanket restriction that previously prevented a judgment creditor from being able to execute against the state in the manner provided in the Uniform Rules of Court. Section 3 now permitted the attachment of ‘movable property’ belonging to the state if certain preliminary steps had been taken. The first and second applicants were, respectively, the Member of the Executive Council (MEC) for the Department of Public Works and Infrastructure and the MEC for the Department of Health. Presently, they sought, as a matter of urgency, an order for the setting-aside of inter alia writs issued against them in satisfaction of a default judgment in the sum of R 41 031 279,58 granted in favour of the first respondent, Ikamva Architects; alternatively for the stay of the writs, pending the final determination of a self-review application they had launched previously. One writ in question directed the sheriff to attach the Department of Health’s bank account. The applicants argued for the unlawfulness of the writ on the grounds that s 3 of the State Liability Act did not in their view permit the attachment of state money in execution of a money judgment. That question formed the focus of dispute between the parties.

The ECB held that, contrary to the Departments’ argument, s 3 of the State Liability Act, properly interpreted, did indeed allow for the attachment of incorporeal movables belonging to the state, such as a bank account, in satisfaction of a money judgment against it. In explanation the ECB held that the legislature, in enacting changes to s 3, must be taken to have been aware that the execution of a money judgment took place in terms of the Uniform Rules of Court, and that those rules authorised the attachment of both corporeal and incorporeal movables in satisfaction of a money judgment. If the legislature intended to limit the notion of ‘movable property’ in the Act to corporeal movables, one would have expected it to say so expressly. The court stressed that the section permitted the attachment of ‘any movable property’ owned by the state, and there was no reason why the phrase should be limited to corporeal movables. As to the potential disruption of the functioning of state departments through the attachment of bank accounts, the ECB referred to the safeguards built into s 3, in particular that the sheriff and a department official may agree in writing on movable property that may not be removed; and an interested party may, before the attached movable property was sold in execution of the judgment debt, apply for a stay.

Ultimately, the court still found the writ relating to the bank account to be invalid, for want of compliance with other aspects of the Uniform Rules of Court. The other writs were found to be valid. The court nevertheless elected to stay further execution pending final determination of the self-review application.

Gambling

Compulsive gambling grief – the delictual liability of a casino owner for losses incurred by a compulsive gambler and ‘excluded person’: In Essack and Another v Sun International South Africa (Pty) Ltd and Others 2022 (6) SA 221 (GJ) the GJ (per Bester AJ) was confronted with the following factual situation: The first plaintiff, Essack, a problem gambler and designated ‘excluded person’, sustained gambling losses to the tune of R 5,2 million when he was, despite his excluded status, allowed to gamble at the defendant’s Sun City casino (although this was not specifically pleaded, he claimed that the exclusion was done at his own request). It appeared that the casino allowed him to use his wife’s (the second plaintiff’s) card on the basis that his own card was banned. Essack claimed his losses as damages from the defendant, arguing that the casino had, instead of complying with its duty to stop him, encouraged him to gamble and lose a fortune.

Essack advanced two causes of action –

  • the casino’s breach of its statutory duties under the Northwest Gambling Act 2 of 2001; and
  • its breach of common-law duty of care (Aquilian liability). The alleged common-law duty allegedly breached by the casino was that of ensuring that Essack did not enter the casino to gamble. The casino excepted to the claim on the ground that it did not disclose a cause of action.

In upholding the exception, the court ruled that the statutory duties imposed on the casino were for the benefit of the community, not compulsive gamblers like Essack, who was the author of his own misfortune. The proposition that the regulations imposed a duty on the casino implied that a compulsive gambler could retain his winnings when transgressing the regulations but hold the casino liable for his losses, which would not serve neither the purpose of the provision nor the public interest. In respect of the Aquilian claim the GJ pointed out that none of the authorities relied on by Essack, showed that there had been a shift in the boni mores in favour of recognising a claim as pleaded by him. So Essack failed to plead sufficient allegations to sustain either his statutory or his Aquilian claim. (Plaintiffs’ counsel conceded that the allegations did not support the second plaintiff’s claim that the casino should have safeguarded her card against abuse by the first plaintiff.)

Local authority

Scope of municipal legislative competence: Govan Mbeki Local Municipality and Another v Glencore Operations South Africa (Pty) Ltd and Others 2022 (6) SA 106 (SCA) concerned the legality of similarly crafted municipal by-laws, promulgated by three different municipalities, each barring transferors of property from applying to the registrar of deeds to register transfer, without the municipality’s prior certification of compliance with municipal by-laws on spatial planning, land-use management and building regulation conditions or approvals. In an appeal by two of the municipalities against a High Court decision declaring these restrictions unconstitutional and invalid, the SCA held that the by-laws exceeded the legislative competence – in the context of municipal planning and within the framework legislation of the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA) – of the respective municipalities, and thus offend the principle of legality. In this regard, it was held that SPLUMA, as the framework legislation authorising by-laws to regulate, control and enforce municipal planning in land-use schemes, laid down the limits within which municipalities may legislate; and although it afforded a municipality a wide discretion to invoke enforcement for non-compliance, the system of enforcement envisaged in s 32 of SPLUMA did not provide for imposing a restriction of the transfer of land. A further reason, it was held, was that the competence with regards to deeds registration was not a municipal function but that of national government. The appeals were accordingly dismissed.

Practice

Mass prison assaults – can the 138 victims join to sue the responsible minister: In a summons sued out of the ECP, 138 prisoners claimed damages from the Minister of Justice and Correctional Services stemming from alleged assaults on them by warders at St Albans Medium B Correctional Centre on two consecutive days late in March 2014. Different injuries and sequelae were pleaded for each plaintiff and each plaintiff claimed R 500 000 in general damages. The plaintiffs annexed 138 separate sets of particulars to the summons. This prompted the Minister to enter a special plea that the plaintiffs were guilty of a fatal misjoinder because the individual claims did not depend on the determination of substantially the same question of law or fact. The Minister argued that precedent suggested that under the common law several plaintiffs with separate causes of action could jointly sue the same defendant. The ECP upheld the special plea and dismissed the plaintiffs’ claim. The plaintiffs appealed to the SCA.

In its judgment, reported as Alberts and Others v Minister of Justice and Correctional Services 2022 (6) SA 59 (SCA), the SCA (per Gorven JA (Saldulker JA, Zondi JA, Makgoka JA and Plasket JA concurring)) ruled that there was no reason why the annexure of several documents containing the particulars of each plaintiff’s claim should result in the dismissal of all the claims  after all, if a single, composite set of particulars had been annexed, the action would simply have included paragraphs describing each plaintiff’s claim in turn. The SCA pointed out that the Minister’s reluctance to press this point on appeal made sense, particularly since an overly formal approach to pleadings had consistently been discouraged by the courts. If there was an irregularity, it was not a fatal one that warranted the dismissal of the claims. The SCA emphasised that while the default position at common law was that plaintiffs could not join to sue a defendant on separate causes of action, an exception was made where convenience dictated that they be heard together. Since the legal issues were the same for each action, the only remaining question was whether the pleaded facts amounted to ‘substantially’ the same questions of fact, which would arise in the notionally separate actions. This required a significant overlap, which was present. The SCA accordingly found that the joinder of the plaintiffs in one action was appropriate and inoffensive, and that the ECP should have dismissed the special plea.

Prescription

Negligent auditor – when prescription begins to run: In WK Construction (Pty) Ltd v Moores Rowland and Others 2022 (6) SA 180 (SCA) the court, per Gorven JA (Petse DP, Nicholls JA, Hughes JA and Tsoka AJA concurring) held that the appellant construction company (WK) had employed as financial director one Mr Maartens, who between 2006 and 2013 defrauded WK by posting fraudulent entries in its books. Over that same period the respondents, a partnership of auditors (then known as Mazars) was retained by WK, and in each year failed to detect the transactions, issuing clean audits.

On 23 August 2016, WK served summons on Mazars, alleging breach of their auditing contract. Mazars raised a special plea of prescription, which was upheld by the KZD. WK appealed to the SCA. The appeal involved the application of s 12(1) and s 12(3) of the Prescription Act 68 of 1969, which provides, respectively, that ‘prescription shall commence to run as soon as the debt is due’ and that ‘a debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises: Provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care’.

The question was when WK had acquired actual or deemed knowledge of the facts giving rise to the debt. If this was before 23 August 2013, then debt had prescribed on 23 August 2016, that is, before the commencement of the action. This required an assessment of what comprised sufficient knowledge in cases of professional negligence.

WK, while conceding that it was aware of Mr Maartens’ fraud before 23 August 2013, nevertheless argued that it at this point lacked knowledge of the facts giving rise to liability on the part of Mazars, which according to WK included the knowledge that the money could not be recovered from the primary debtor, Maartens. WK argued in this regard that Mazars did not prove that WK knew it could not recover from Maartens.

The SCA began by rejecting WK’s argument that, for prescription to begin, knowledge of the primary debtor’s inability to pay was required. The SCA ruled that a claim for indemnification was triggered when the loss for which the indemnity was obtained had occurred, and not before that. The SCA also rejected WK’s second argument, namely that knowledge of the applicable accounting standard and of its breach was required, pointing out that the facts required to be known were merely those objectively grounding a suspicion of negligence, and that WK was already aware of such facts before 23 August 2013. The SCA accordingly confirmed KZD’s finding that the claim had prescribed.

 

Trucking accident claim: When prescription of a claim to an indemnity began to run: Magic Eye Trading 77 CC t/a Titanic Trucking and Another v Santam Ltd and Another 2022 (6) SA 120 (SCA) dealt with the right of an insured to claim indemnity from its insurer. The SCA (per Nicholls JA (Cachalia JA, Zondi JA, Gorven AJA and Hughes AJA concurring)) had to decide when prescription began to run in respect of the claim brought by the second respondent, Imperial Cargo (Pty) Ltd, for damage caused to its truck by an employee of Magic Eye Trading 77 CC t/a Titanic Trucking (Magic Eye Trading). When the accident occurred, the insured held an insurance policy with Santam, which provided for indemnity insurance against loss suffered by way of liability to third parties. In the WCC Magic Eye Trading joined Santam as a third party, seeking a declaratory order stating that if Imperial Cargo succeeded in its claim, Santam would have to indemnify Magic Eye Trading. Santam argued that Magic Eye Trading’s claim for indemnity had prescribed because its cause of action had arisen when the accident occurred, which was more than three years before Sanlam was joined. The WCC agreed and found in favour of Santam. On appeal to the SCA, Magic Eye Trading argued that its right to approach the court for a declaratory order could not have prescribed before its liability to Imperial Cargo had been finally determined and quantified. The SCA agreed with Magic Eye Trading, ruling that a claim for indemnification had to be for a fixed or specific amount: If the amount had not yet been determined (either by agreement or court order), the claim did not exist. Magic Eye Trading’s claim for indemnification, contingent as it was on it being found liable, had in fact not arisen and prescription had not even begun to run. In view of this, the SCA upheld the appeal and substituted the WCC’s order with one dismissing Santam’s special plea.

Other civil cases

Apart from the cases and material dealt with above, the September SALR also contained cases dealing with –

  • costs on appeal;
  • curators’ accounts;
  • prescription of an enrichment claim;
  • own-share purchases by companies;
  • value-added tax;
  • housing for retirees;
  • High Court jurisdiction;
  • the Pension Funds Adjudicator;
  • Financial Intelligence Centre Act 38 of 2001 verification; and
  • enrolment of foreign legal practitioners.

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 [2022] 4 All South African Law Reports (pp 621 – 926); March – August Judgments Online

Abbreviations:

ECG: East Cape Division, Grahamstown
GJ: Gauteng Local Division, Johannesburg
GP: Gauteng Division, Pretoria
LC: Labour Court
SCA: Supreme Court of Appeal

Civil procedure

Requirements to successfully oppose summary judgment: The plaintiff (Nedbank) in Nedbank Limited v Uphuhliso Investments and Projects (Pty) Limited and Others [2022] 4 All SA 827 (GJ) had granted the first defendant (Uphuhliso) an overdraft facility, as well as a medium-term loan facility in the amount of R 1,6 million repayable over 60 months. Uphuhliso breached the agreement by exceeding the limit of the overdraft facility, alternatively by failing to meet its obligations in terms of the agreement. Nedbank directed a letter of demand calling on Uphuhliso to make payment of the excess on the overdraft facility within ten business days, failing which, the agreement would be cancelled, and the full outstanding amount would become immediately due and payable. It averred that it then did cancel the agreement. In the present application, it sought summary judgment against Uphuhliso as principal debtor and against the second to fourth defendants as sureties.

Apart from alleging that the agreement contained an implied or tacit term that the defendants would only need to repay the money to Nedbank if the business remained sufficiently profitable to enable them to do so, and that they were prevented from being profitable by the impact of the COVID-19 pandemic. For the rest, blanket denials containing no detail were advanced. There was also a marked divergence between the defences raised by the defendants in their affidavit resisting summary judgment and what was contained in their plea.

Legal principles applicable to determining summary judgment proceedings, particularly where there is a divergence between the plea and the affidavit resisting summary judgment in the defences were raised.

The court held that r 32(3) of the Uniform Rules of Court, before its amendment, required that the affidavit by the defendant or of any other person who could swear positively to the fact that the defendant had a bona fide defence to the action, fully disclose the nature and grounds of the defence and the material facts relied on. Notwithstanding the amendments to r 32 with effect from 1 July 2019, what is required of an affidavit in r 32(3)(b) remains the same. However, it could not be less than was required of the defendant previously as the defendant under the new rule must first have delivered a plea. The amendment does not now require of a defendant to necessarily plead in its plea more than it previously would have had to. But given the requirement of a resisting affidavit to disclose fully the nature and grounds of the defence and the material facts relied on therefore, which is now to be delivered after the delivery of a plea, a court will more closely scrutinise a denial in a plea, as read with what is set out in a resisting affidavit to substantiate or flesh out that denial, to ascertain whether there is a triable issue that would justify leave to defend being granted. The plea, as read with the resisting affidavit, and due regard being had to any divergence between them, would have to be considered in assessing whether it constitutes bald averments and sketchy propositions insufficient to stave off summary judgment.

The defendants did not amend their plea to ensure they met with the abovementioned requirements. They could not, at summary judgment stage, advance defences that were not raised in their plea. Their failure to raise a genuine triable issue led to summary judgment being granted.

Corporate and commercial

Enforcement of restraint of trade agreements: In Pronto Computer Solution (Pty) (Ltd) v Van der Merwe and Others [2022] JOL 54859 (MM), the applicant sought to restrain the first, third and fourth respondents from being employed by the second respondent and to compel them to comply with the confidentiality and restraint obligations in their employment agreements. An order was also sought preventing the respondents from soliciting business and/or employees from the applicant, and to deliver to the applicant all confidential information belonging to the applicant.

The first, third and fourth respondents were at one stage employees of the applicant, involved in the sale of the applicant’s products and services. During their employment they signed employment contracts that included restraint of trade undertakings. After his resignation, the first respondent approached companies that had been serviced by the applicant. His explanation for that was that the said companies were his customers before he had assumed employment with the applicant. He also alleged that there was no confidential information to protect.

The court held that all that an applicant needs to show is that there is secret information to which the respondent had access and which the respondent could transmit to the new employer should he desire to do so. Where the ex-employer seeks to enforce a restraint against an ex-employee, a protectable interest recorded in a restraint, the ex-employer does not have to show that the ex-employee has utilised information confidential to it; it is sufficient to show that the ex-employee could do so.

The applicant succeeded in establishing that it had trade connections requiring protection, that the employee respondents had access to those connections, and that the first respondent had approached the applicant’s clients after leaving the applicant’s employ. The respondents failed to show that the restraint of trade was unreasonable. The application succeeded.

Criminal law and procedure

Appeal against convictions – admissibility of hearsay evidence: The appellants were charged with –

  • contravention of s 9(1)(a) of the Prevention of Organised Crime Act 121 of 1998 (POCA);
  • two counts of robbery with aggravating circumstances;
  • five counts of murder;
  • kidnapping;
  • attempted extortion; and
  • contravention of s 18(2)(a) of the Riotous Assemblies Act 17 of 1956, being a conspiracy to commit kidnapping – a charge that was not preferred against the third appellant.

The first count related to the alleged participation of the accused in organised criminal gang activity in contravention of s 9 of the POCA. It was alleged that as part of a pattern of such activity, the accused either individually or collectively committed the various offences set out in the indictment.

The prosecution alleged that in November 2007, the four deceased in four of the murder counts were robbed of a motor vehicle, four cell phones and two firearms. They were then murdered and buried in a shallow grave. It was further alleged that in March 2008, the accused allegedly kidnapped another person and robbed him of his bakkie and a cell phone before killing him.

The appellants appealed against their convictions in Qurashi and Others v S [2022] 4 All SA 295 (SCA).

It was held that the breaking down of a body of evidence into its component parts is a useful aid to a proper understanding and evaluation of it, but in doing so, the court must guard against a tendency to focus too intently on the separate and individual parts.

The appeal rested on the following main foundations –

  • the admission of evidence, which was said to have been obtained unconstitutionally and which infringed the appellants’ right to privacy and to a fair trial;
  • the admission of hearsay evidence and the prominent role that such evidence played in the conviction of the appellants; and
  • the credibility findings made by the trial court in favour of the prosecution witnesses and against the appellants.

None of the defences were found to be sustainable. The court explained the principles of hearsay evidence. Section 3(4) of the Law of Evidence Amendment Act 45 of 1988 refers to statements either oral or written, whose probative value depends on the credibility of another independent person not testifying before court. There were sufficient safeguards in the evidence, viewed holistically, that satisfied the court as to the reliability of the hearsay evidence tendered by each of the witnesses.

Finding the evidence against the appellants to be damning, the court dismissed the appeal.

Family law and persons

Validity of maintenance order: The parties entered into an antenuptial contract (ANC) prior to their marriage, declaring their marriage to be out of community of property with the exclusion of the accrual system. After registration of that contract and before the marriage, they entered into another agreement providing, inter alia, for lifelong maintenance for the appellant in the event of divorce or the death of the respondent. On their divorce, the appellant sought to enforce that agreement. In Botha v Botha [2022] JOL 55412 (SCA), the appellant appealed against the High Court’s declaration that the agreement was unenforceable.

According to the appellant, there was no conflict between the terms of the ANC and the impugned agreement – they co-existed and remained valid as two distinct and separate legal instruments.

The primary objective of the ANC was not to create obligations, but to determine the matrimonial property system between spouses. In that context, the ANC was not a contract. The impugned agreement did not purport to vary the ANC. The two legal instruments could co-exist because an ANC regulates the matrimonial regime of the parties stante matrimonio only, whereas the agreement had no bearing at all on the nature of their matrimonial regime. Their estates remained separate. Thus, the provisions of the ANC would remain intact and would be applicable on their divorce despite the appellant’s entitlement to enforce the terms of the agreement.

The High Court’s finding that the second agreement constituted an impermissible attempt to vary the parties’ matrimonial regime contrary to s 21 of the Matrimonial Property Act 88 of 1984 was fundamentally flawed. The High Court also erred in finding that the agreement was not enforceable under s 7(1) of the Divorce Act 70 of 1979 in that it deprived the divorce trial court of its discretion in terms of s 7(2) of that Act. The court has no duty to protect the interests of parties in an agreement regulating payment of maintenance.

Insolvency

Dispositions without value: In Van Wyk Van Heerden Attorneys v Gore NO and Another [2022] 4 All SA 649 (SCA), three deposits were made into the trust account of the appellant, a firm of attorneys, from the account of a company (Brandstock). On the provisional winding-up of Brandstock, the respondents, as liquidators, applied to have the deposits set aside under s 26(1)(b) of the Insolvency Act 24 of 1936. The appellant appealed against the High Court’s granting of the order sought by the liquidators.

Section 26(1)(b) provides that every disposition of property not made for value may be set aside by the court if such disposition was made by an insolvent within two years of the sequestration of his estate, and the person benefited by the disposition is unable to prove that, immediately after the disposition was made, the assets of the insolvent exceeded his liabilities. As the deposits took place less than two years prior to the winding-up of Brandstock, they fell within the ambit of s 26(1)(b). The elements required to set aside a disposition under s 26(1)(b) were set out in the judgment.

The court referred to the legal principles concerning the position of bank accounts in general and trust bank accounts, in particular, of attorneys. General banking principles are clear that the bank owns the money deposited into accounts held with it. The bank owns the money but is obliged to comply with instructions of the account holder concerning a positive balance in the account. Account holders thus have the power of disposal over the credit balance of funds held by the bank on their behalf. Money deposited into attorneys’ trust accounts gives rise to the same relationship with the bank as with any account holder. The bank is indebted to the attorney and no other party. No one else is entitled to instruct the bank on how to deal with it. At the same time, the credit balance in trust accounts is held by the attorney on behalf of particular clients. Attorneys operate on their trust accounts as principals and not as agents. That is because only they can instruct a bank to dispose of amounts to the credit in that bank account since clients have no legal relationship with the bank concerning that account. Relevant for purposes of the present case, was that the power to operate a trust account does not determine whether a deposit into that account amounts to a disposition to the attorney.

The approach in our law to what constitutes an impeachable disposition is a matter of interpretation. A sensible meaning is to be preferred to one that leads to insensible or un-business like results or undermines the apparent purpose of the document. The point of departure is the language of the provision.

At the heart of s 26(1)(b) was the requirement that the party to whom the disposition was made is put to the proof that immediately after the disposition was made, the assets of the insolvent exceeded his liabilities. Only the person who benefited from the disposition bears that onus. The construction of the section does not allow for liability to attach to one who did not benefit by it. The first of the three deposits in this case did not benefit the appellant, as the firm simply acted on the instructions of its client and acted as a conduit in the onward transmission to the entity which did benefit. The appeal was upheld in respect of that deposit.

The remaining two deposits, however, insofar as they were used to settle amounts owed to the appellant, meant that the appellant attracted the onus of proving that Brandstock’s assets exceeded its liabilities at the time of deposits were made. As that had not been proved, the appeal in respect of those two deposits was dismissed.

Labour and employment

Fairness of dismissal: In Austin-Day v ABSA Bank Ltd and Others [2022] JOL 53109 (LAC), the first respondent was a branch manager employed by the applicant bank. She was dismissed on 30 November 2016, following allegations of misconduct. She lodged a complaint with the third respondent (the Commission for Conciliation, Mediation and Arbitration (CCMA)) alleging unfair dismissal. The second respondent, as arbitrator, found that the dismissal was substantively unfair and ordered the bank to reinstate her with back pay. The applicant launched the present application for review. On the day of the hearing, the parties presented the allocated judge with a consent order, which was ultimately made an order of the Labour Court. The order had the effect of remitting the dispute for a further hearing and postponing the present review application. The parties returned to arbitration and held a further hearing confined to what the parties referred to as the second charge. Subsequent thereto, the challenged award gave rise to a supplementary award. The parties then sought to supplement their respective cases. After hearing submissions, the court reserved judgment.

The CCMA and the appointed arbitrator become functus officio once a final and binding award is issued. The CCMA cannot revisit the process of attempting to resolve the dispute once an award, which is aimed at resolving the dispute, is issued. The Labour Court is empowered by s 145(4)(b) of the Labour Relations Act 66 of 1995 to make an order it considers appropriate about the procedure to be followed to determine the dispute.

The court declined to consider what happened in the so-called second arbitration, as the matter could have simply been postponed instead of being referred for a second arbitration.

Having regard to the evidence, and the arbitrator’s findings, the court found that the first respondent was clearly guilty of misconduct as alleged. The award was set aside and replaced with an order that the dismissal was substantively fair.

Legal practice

Striking of advocate’s name from roll – application by layperson: In Mavudzi and Another v Majola [2022] JOL 54975 (GJ), the applicants were both laymen, and were accused persons, held in custody, in a pending criminal trial. The first respondent (Majola) was the lead prosecutor in their case, which had been running since 2019. The second respondent was the Legal Practice Council (LPC), which is the primary regulatory body exercising disciplinary oversight of the legal profession, and with whom the first applicant lodged a complaint about Majola shortly before launching the present proceedings.

The court had to decide whether to strike the name of Majola, off the Roll of Advocates on the grounds of gross unprofessional conduct. The premise of the allegation was that another court had made a finding that Majola misled a court in the hearing into the lawfulness of the warrant of arrest issued against the first applicant. Majola denied having committed any such impropriety.

An act of deliberately misleading a court can be, if serious, a proper ground for a striking off. A court may not risk making material criticisms of a legal practitioner without a proper opportunity for that practitioner to be heard in respect of the allegations of misconduct. The court had regard to the statements made by the judge against Majola in the case relied on by the applicants. The judgment could not be relied on to find an application to strike off Majola’s name from the Roll of Advocates. Because the premise of the relief sought were those remarks or findings, the application had to fail for want of a proper foundation.

The court also found no known precedent for laymen bringing an application for the striking off of a legal practitioner. It is inappropriate for any lay person to apply ab initio to the courts for a striking off of the name of a legal practitioner from the roll, except in certain specified circumstances. A complaint of misconduct against a legal practitioner must be lodged with the LPC or any one of the voluntary regulatory bodies of legal practitioners. Only where a regulatory body is itself delinquent in performing its functions in addressing a complaint, would it be appropriate for a lay person to approach the court for appropriate relief.

The application was dismissed.

Personal injury/delict

Liability of Road Accident Fund: The respondent in Member of Executive Council for Roads and Public Works, Eastern Cape v Yeomans [2022] JOL 54991 (ECG) was driving a truck owned by his employer and was injured in an accident. Alleging that the cause of the accident was the negligence of the Department of Roads and Public Works of the Eastern Cape Government, he sued the appellant (the MEC) and the Road Accident Fund (the Fund) for damages as the accident was caused by the negligence of the owner of the truck and/or its employees. The owner failed to ensure that the truck was in a roadworthy condition, and instructed the respondent to travel without having taken reasonable steps to remedy a problem with the truck’s brakes.

The Fund raised a special plea that any liability it bore to compensate the plaintiff could only arise from a reliance on a wrongful act of the owner of the truck or its employees as contemplated in s 17(1) of the Road Accident Fund Act 56 of 1996 (RAF Act), and because the owner of the truck was also the employer of the plaintiff, and its liability to compensate the plaintiff in that capacity was excluded by the provisions of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA), the Fund was not liable to compensate the plaintiff for any damages arising from the accident. The respondent consequently obtained leave to withdraw his claims against the Fund. That left the MEC as the only remaining defendant in the action.

The present appeal was against the trial court’s finding that the Department’s negligence was the sole cause of the conduct. Contending that the conduct of the owner of the truck contributed to the accident, the MEC argued that the contributory negligence of the owner meant that the exclusive liability to compensate the respondent had to be found to lie with the Fund.

It was held that on an interpretation of ss 19(a) and 21 of the RAF Act together with s 35(1) of COIDA, the respondent’s acceptance that the Fund was not liable to compensate him for his injuries, was correct. Concluding that the respondent was entitled to choose to recover the full amount of his loss from the MEC, the court dismissed the appeal.

Property

Donations inter vivos of property which donor does not own: As executor of the deceased estate of Magana Ntoli, the applicant in Morewane NO v Rampoto NO and Others [2022] JOL 55151 (GJ) sought a declaration that certain immovable property had been validly donated to the deceased by a third party (Jacob Rampoto), and that the property be transferred to the deceased estate. The first respondent was the executor of Jacob Rampoto’s deceased estate. At the time the donation was made, Jacob Rampoto was not yet the owner of the property. The central question in the matter was whether the donation of the property by Jacob Rampoto was valid, even though he was not yet owner.

It was held that the relevant deed of transfer recorded that the property was transferred from the fourth respondent to Jacob Rampoto, in terms of s 13(1) of the Upgrading of Land Tenure Rights Act 112 of 1991. Transfer could only have been affected in terms of that section if the fourth respondent was satisfied that Jacob Rampoto held some type of land tenure right to the property, and that his right was capable of being converted to ownership. Therefore, Joseph Rampoto’s heirs could not have had any right to the property, and Jacob Rampoto was entitled to dispose of the property as he wished.

A donation is an agreement which is induced by pure benevolence whereby a person who has no legal obligation to do so, undertakes to give something to another person, and in respect of which gift the donor receives no consideration. Roman-Dutch authorities recognised that a person could donate property, which they will only own at some future moment in time. There is no impediment to a person donating something that he does not own at the time of donation.

The donation agreement was consequently declared valid, and transfer of the property was ordered as sought by the applicant.

Property

Sale of immovable property – lack of consent of spouse – marriage in community of property: At the time of the sale of immovable property from the first respondent to the fourth and fifth respondents, the written consent of the applicant, who was married to the first respondent in community of property, was not obtained. The present application was for an order declaring the sale and subsequent transfer unlawful for want of compliance with s 15(2)(a) of the Matrimonial Property Act 88 of 1984.

It was held in Matini v Matini and Others [2022] JOL 53972 (GP) that s 15(2)(a) requires a spouse married in community of property to obtain the written consent of the other spouse to alienate immovable property forming part of the joint estate. Section 15(9)(a) of the Act provides an exception to the rule. In terms of the section, when a spouse enters a transaction with a person contrary to the provisions of, inter alia, s 15(2)(a) and that person does not know and cannot reasonably know that the transaction is being entered into contrary to that provision, it is deemed that the transaction concerned has been entered into with the required consent.

The burden of bringing s 15(9)(a) into play rested on the first respondent, who was seeking to rely on the validity of the sale agreement. The question was whether it is reasonable to assume that the fourth or fifth respondents knew that consent for the proposed sale was lacking and could not reasonably have known that consent had not been given. The court found that since the fourth and fifth respondents knew that the applicant wanted nothing to do with the property, it was reasonable for them to have assumed that the applicant would have had no objection to the first respondent entering a transaction to dispose of the property. It was accordingly reasonable for the fourth and fifth respondents to have assumed that whatever consent the first respondent needed to deal with the property had been obtained. The court was satisfied that the sale agreement fell within the ambit of s 15(9)(a) and accordingly had to be deemed to have been entered into with the consent of the applicant.

The application was dismissed with costs.

Other cases

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

  • claims against an admiralty fund;
  • doctrine of ripeness;
  • extradition proceedings;
  • infringement of trademarks;
  • Islamic marriage – requirements for divorce;
  • litigation between government and private party seeking to assert a constitutional right;
  • obstruction of tax collection;
  • regulation of outdoor advertising; and
  • rights of minority shareholders – s 163 of the Companies Act 71 of 2008.

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

This article was first published in De Rebus in 2023 (Jan/Feb) DR 35.

 

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