November 2023 (6) South African Law Reports (pp 1 – 325); November 2023 (2) South African Criminal Law Reports (pp 427 – 540)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.
GJ: Gauteng Local Division, Johannesburg
GP: Gauteng Division, Pretoria
KZP: KwaZulu-Natal Division, Pietermaritzburg
SCA: Supreme Court of Appeal
WCC: Western Cape Division, Cape Town
Is statutory loss of citizenship on acquisition of foreign citizenship legal? Section 6(1)(a) of the South African Citizenship Act 88 of 1995 (the Act) provides that a person shall cease being a South African citizen if ‘he or she … by some voluntary and formal act … acquires the citizenship … of another country’. In Democratic Alliance v Minister of Home Affairs and Another 2023 (6) SA 156 (SCA), the Democratic Alliance (DA) successfully challenged the GP’s finding that the provision was rational and valid. The SCA (per Zondi JA) ruled that the automatic loss of citizenship provided for in s 6(2) was irrational in that there was no good reason for it, particularly since the holding of dual citizenship was allowed under ss 7(1) and 8(2) of the Act. In addition, the deprivation of citizenship was unconstitutional under s 20 of the Constitution. The SCA accordingly declared
s 6(1)(a) unconstitutional.
Under s 354 of the Companies Act 61 of 1973: In Commissioner, South African Revenue Service v Nyhonyha and Others 2023 (6) SA 145 (SCA), a creditor obtained an order for the final winding-up of a company. Thereafter, the respondents procured an order from the GP under s 354 of the (old) Companies Act 61 of 1973 setting aside the winding-up and ordering the company to pay its creditors in a certain manner.
Section 354 allows the court to make an order setting aside liquidation proceedings ‘on such terms and conditions as [it] may deem fit’. In an appeal to the SCA, the respondents argued that the court that granted the s 354 order, the GP, had had a range of options available to it and that its decision to set aside the winding-up, therefore, amounted to the exercise of a true discretion, which would in turn limit grounds on which the SCA could interfere with the order. It was the respondents’ case that, since none of the recognised grounds for interference were present, the appeal had to fail.
The SCA ruled that s 354 did not give a court a true discretion because it did not involve a choice between a range of permissible alternatives. All s 354 did was to confer on the court the power to determine whether the facts showed that proceeding with the winding-up would be unnecessary or undesirable. The test was either satisfied or not: There was no range of options that would limit the grounds on which the SCA could interfere. But even if s 354 did confer a true discretion, the GP misdirected itself on the facts and the law by failing to apply the correct test and instead ordered a sort of court-designed winding-up after having found that the company was unable to pay its debts, the touchstone for its liquidation in the first place. This was a wholly impermissible course for the GP to take, for a finding that the company was commercially insolvent could not be the basis for a decision to set aside the winding-up under s 354.
Since the company’s factual and commercial insolvency meant that there was no basis for the GP’s finding that the winding-up was unnecessary or undesirable, the SCA replaced the GP’s order with one dismissing the respondents’ s 354 application.
On review where a default order was granted: In HR Computek (Pty) Ltd v Dr WAA Gouws (Johannesburg) (Pty) Ltd and Others 2023 (6) SA 268 (GJ), Computek, acting through its sole director, applied for the setting-aside of provisional and final liquidation orders granted against it by default (that is, in its absence). Computek relied on the common law, alternatively r 42 of the Uniform Rules of Court, for its rescission application, contending that the orders made against it were obtained not only in its absence, but without proper notice and fraudulently. In opposing the application, the first respondent, a creditor, denied Computek’s allegations of malfeasance, and sought its dismissal. In a point raised in limine, it questioned Computek’s standing on the ground that the setting-aside of a liquidation order was available only under s 354 of the Companies Act 61 of 1973, which disqualified a company from seeking it without the cooperation of its liquidators.
The GJ (per Coppin J) dismissed the respondent’s point in limine, ruling that while it was true that s 354(1) excluded a company in liquidation from itself bringing the rescission application, it could clearly do so under the common law or, presumably r 42, and that it followed that Computek was indeed entitled to bring the rescission application without the cooperation of its liquidators.
Criminal records: Orders under s 156 of Children’s Act 38 of 2005 inadmissible: The accused in S v TO 2023 (2) SACR 507 (WCC) pleaded guilty, in a magistrates’ court, to housebreaking with intent to steal and theft. After conviction, the prosecutor presented the presiding magistrate with accused’s previous convictions as shown on his SAP69 form. These included a children’s court referral to a child and youth care centre under s 156 of the Children’s Act 38 of 2005. The magistrate, who happened to be the same magistrate who had convicted the accused in the children’s court, noted, before imposing a sentence of two years’ imprisonment, that he knew the accused because he had previously appeared before him in the children’s court.
The WCC (per Henney J, Gamble J concurring) found that the entry of a s 156 order on an accused’s criminal record was unlawful, and that proof of it as a previous conviction was inadmissible in a subsequent criminal matter. In a case such as the present, where knowledge of an offence committed by a minor was considered as an aggravating factor in a later criminal case, the accused would suffer prejudice, which would be worse if the same magistrate that had presided in the children’s court matter was the primary source of the information. The WCC noted that this amounted to a gross misdirection that vitiated the proceedings. The WCC accordingly set aside the conviction and sentence for housebreaking and directed the Office of the Director of Public Prosecutions to request the removal of any order under s 156, recorded against the name of the accused, purporting to be a previous conviction.
The effect of a conviction for murder of a spouse on matrimonial-property benefits: The accused in S v Ntamehlo 2023 (2) SACR 518 (WCC) was convicted of the premeditated murder of his spouse and sentenced to life imprisonment. He had, after viciously assaulting and strangling her, buried her body in a shallow grave. It appeared that the motive had been to obtain the victim’s rights to a house that had been allocated to her. After her death, unknown persons from the Eastern Cape arrived to claim her body, and the final whereabouts of her grave remained unknown.
During the sentencing proceedings the WCC (per Thulare J) noted that a spouse in divorce proceedings could obtain an order for the forfeiture matrimonial property benefits, but a murdered spouse not. According to the WCC, considerations of reasonableness, equity and fairness demanded that this should change. The WCC, therefore, made an order for the forfeiture of the patrimonial benefits of the marriage between the accused and the deceased, in respect of the property in question, in favour of their only child. The WCC in addition directed the Mayor of the City of Cape Town to ensure the establishment of a trust for the benefit of the minor child to assist him in upholding his rights to freehold ownership of the property. The court also directed the Premier of the Province of the Eastern Cape to take steps to trace the remains of the deceased so that the child and the deceased’s family could visit her grave as part of their emotional and psychosocial therapy.
Apart from the cases discussed above, the material under review also contained cases dealing with –
Leave to sue as joint wrongdoer in terms of s 2(4)(a) of Apportionment of Damages Act 34 of 1956: Can it be sought after action has already been instituted? Broadhurst v Gearhouse Splitbeam (Pty) Ltd and Another 2023 (6) SA 232 (GJ) concerned the correct interpretation of s 2(4)(a) of the Apportionment of Damages Act 34 of 1956. This provision states that, where a plaintiff had failed to give notice of an action for damages to a joint wrongdoer who was not sued in that action, they may not later again sue the same joint wrongdoer except with the leave of the court on good cause shown as to why notice was not given.
The facts were that the applicant, Mr Broadhurst, had previously launched an action for damages in the GJ for injuries sustained when a mirror ball fell on his head at a music concert. In that first action, the applicant had sued the owner of the theatre, the event management company, and the company that the plaintiff claimed was the rigger of the equipment for the show. During the exchange of pleadings in that matter, the applicant learnt of further potential joint wrongdoers, namely the theatre equipment specialist company Gearhouse and the engineer who attended to the installation of the mirror ball, Mr Hussey, who were, respectively, the first and second respondents in the subsequent matter. The applicant did not join Gearhouse and Mr Hussey in the first action but instituted a second action for damages against them in the GJ. The applicant failed to notify the respondents of the first action and failed to obtain the GJ’s leave before launching the second action. Mr Hussey raised these failures in a special plea, contending that the applicant’s claim was precluded by s 2(4)(a).
Acting under s 2(4)(a), the applicant sought leave from the GJ to proceed with the second action. The issues before court were whether leave to sue a joint wrongdoer under s 2(4)(a) could be sought after the action had already been instituted against the joint wrongdoer.
The GJ (per Gilbert AJ) ruled that s 2(4)(a) did allow the court to grant a plaintiff leave to sue a joint wrongdoer in a further action after the action had already been instituted. The wording did not strictly prohibit such an approach, and furthermore, the purpose of s 2 – to avoid a multiplicity of actions arising from a single loss-causing event – would not be defeated. A court should, however, only grant leave in such circumstances if the plaintiff offered a satisfactory explanation as to why leave was not sought before the institution of proceedings and if the joint wrongdoer would be prejudiced. The GJ held that these conditions had been met, ruling that the applicant had shown ‘good cause’ and that leave should be granted to him to proceed with the action against the respondents.
The relevance of heirs’ views in master’s exercise of his discretion to approve the sale of estate assets confirmed: In Bester NO v Master, High Court and Another 2023 (6) SA 199 (WCC), the WCC considered an application by an executor of a deceased estate to set aside the master’s failure to make a decision on the executor’s request for its authorisation (as contemplated in s 47 of Administration of Estates Act 66 of 1965) to sell an estate asset, and for the WCC to replace it a decision granting the requested authorisation.
At issue was the nature and extent of the master’s powers under s 47 – the broadness of the discretion to approve the manner and conditions of sale – because, in substituting the master’s decision as it was requested to do, the court would have to ensure that it was exercising the same power that the master had been given under the statute.
The WCC, per Hofmeyr AJ, ruled that the language of s 47 indicated that the sale would be authorised in such manner and subject to such conditions as the master determined, signifying a broad but not unguided discretion, which meant that it had to be exercised in the light of its purpose, namely, to obtain the best possible price for the benefit of the heirs. Hence the views of the heirs about the manner of sale and the conditions proposed by the executor were relevant and had to be taken into account by the master.
The WCC concluded that, while the review of the master’s failure to take a decision under s 47 had to succeed, it was not an appropriate case for an order of substitution since it was not in as good a position as the master to decide on the manner and conditions of sale. The WCC accordingly remitted the matter to the master with a requirement that a decision be made within two months.
Mandament van spolie no longer an appropriate remedy to obtain eviction: In Communicare v Apolisi and Others 2023 (6) SA 250 (WCC), the WCC was confronted with three consolidated urgent spoliation applications, alternatively applications for eviction under s 5 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE).
They arose as follows. Early in 2021, the applicant found out that the respondents were unlawfully occupying its properties in Brooklyn, Cape Town. It immediately launched proceedings for a mandament van spolie to evict the respondents. Later, in April 2021, the applicant began additional eviction proceedings under s 5 of PIE. Ultimately, it sought an order ejecting the respondents either under the mandament or, alternatively, s 5.
The WCC (per Fortuin J) ruled that PIE was the appropriate remedy because, unlike the mandament, it gave constitutional protection to both parties. In an aside the WCC lamented the fact that PIE did not go even further by requiring the provision of alternative accommodation. The WCC, however, granted the application for the eviction of the respondents under s 5 of PIE.
Personal or praedial? The question of the ‘utilitas’ of a view: At issue in Berzack v Huntrex 277 (Pty) Ltd and Others 2023 (6) SA 120 (SCA) was the registrability of a servitude to develop and maintain a garden on a servient tenement, considering prohibition on registration of personal servitudes of usufruct, usus or habitatio in s 66 of the Deeds Registries Act 47 of 1937.
The servitude in question originated when Ms Berzack subdivided her residential property into two erven. To reserve her rights to her garden, of which a significant piece fell into the subdivided portion, she and the first purchaser agreed to a servitude that was later endorsed on the title deed of the subdivided portion. The servitude was stated to be ‘in favour of [Ms Berzack] and her successors in title as owner of the [remainder]’. Clause P of the servitude set out several conditions, including that: ‘No wall or fence of any description shall be erected on the servitude boundary except extension of existing type of fencing (wooden pole fencing)’.
The dispute before court arose when Huntrex, a successor in title to the subdivided portion, wished to replace the existing fence. When Ms Berzack refused, Huntrex approached the WCC for relief on the basis that the servitude was not praedial but a personal servitude of usus, and as such not registrable under s 66 of the Deeds Registries Act, which provides that: ‘No personal servitude of usufruct, usus or habitatio purporting to extend beyond the lifetime of the person in whose favour it is created shall be registered … ’.
The WCC, having considered the requirements for the registration of a praedial servitude, held that the element of utilitas was missing and that clause P had, therefore, established a personal servitude of usus that could not be rectified or cured by acquisitive prescription due to the prohibition in s 66 of the Deeds Registries Act. The WCC also found that the title deed of the Huntrex property should be rectified by replacing the original clause with a clause designed to convert the praedial servitude into a personal one.
In an application by Ms Berzack for leave to appeal to the SCA, the majority (per Nhlangulela AJA, Petse AP and Molemela JA concurring) granted leave on the basis that important questions of law were raised.
The majority found that the WCC had incorrectly interpreted clause P since the expressed intention was that the garden should be reserved on the subdivided property for Ms Berzack’s benefit and that of subsequent owners, in perpetuity. Clause P, read as a whole, showed that the element of utilitas was present. The servitudal rights created served as a guarantee that no structure could be constructed on the grounds designated as the garden area. In this fashion, the dominant tenement’s poolside entertainment area would always be an area with a view. The majority emphasised that it was undeniable that a view added utilitas and enhanced the value of residential property, and that the fact that Ms Berzack was in the process able to pursue her personal pleasure did not detract from the advantages provided to the dominant tenement. Accordingly, the majority ruled that the registration of the servitude by the Registrar of Deeds could not be faulted, and the appeal should be upheld.
In a dissenting judgment, Plasket JA and Goosen AJA held that a personal servitude of usus was in fact created and that it failed to meet requirements of perpetual cause and utilitas. The dissenting judges felt that there was no feature or attribute of the servient tenement, which could be said to provide an advantage to the dominant tenement, and that the ‘increased market value’ that might emanate from a beautiful garden on a servient tenement did not establish utility as required by the common law. The utility in a view, if it were to serve as a basis for recognition of a praedial servitude, required more than the mere assertion of the existence of a ‘view’. There being no prospects of success, the dissenting judges refused leave to appeal.
The validity of r 49(13) of the Uniform Rules of Court obliging an appellant to furnish security for costs of the respondent in an appeal: The applicant in Jeanru Konstruksie (Pty) Ltd v Botes 2023 (6) SA 305 (GP) was a construction company that had obtained summary judgment in the GP against the respondent, Botes, for payment for services rendered in terms of a written building contract. The SCA subsequently granted Botes leave to appeal to a full court of the GP. Botes proceeded to prosecute the appeal by delivering the record and thereafter applying for a hearing date. In an application under r 30 of the Uniform Rules of Court Jeanru claimed that Botes’ prosecution of the appeal was an irregular step because he failed to provide security for Jeanru’s costs of appeal as required by r 49(13) of the Uniform Rules of Court. Rule 49(13) provided that an appellant had to furnish ‘good and sufficient’ security for the respondent’s costs of appeal unless the respondent had waived its right to security or the court had released the appellant from the obligation to provide security.
In view of this, Jeanru sought the setting-aside of Botes’ application for a date of hearing. Botes opposed the application purely on the basis that r 49(13) was invalid because the Rules Board for Courts of Law went beyond the empowering legislation by determining whether security was required, not just its form and the way it was to be provided.
The GP (per Davis J) dismissed Botes’ argument, pointing out that the requirement to furnish security for costs was a procedural matter which emanated from the court’s inherent right to regulate its own processes. Rule 49(13) was an ancillary rule that described how a procedural matter had to be dealt with, and as such, it was not ultra vires the powers of the Rules Board. It followed that Botes’ failure to provide security as required by the rule was an irregular step and that Jeanru’s application had to be granted.
Overstepping its powers: In Afriforum v South African Human Rights Commission and Others 2023 (6) SA 188 (GJ) the court was faced with review applications initiated by two civil rights organisations (the FW de Klerk Foundation and AfriForum). The organisations had lodged a complaint with the South African Human Rights Commission (SAHRC) that a 2016 statement made by Julius Malema, leader of the Economic Freedom Fighters political party, namely that he would not ‘for the present’ call for the slaughter of whites, contravened the injunction against hate speech in s 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA). The SAHRC concluded that it was not hate speech. When the two organisations brought review proceedings in the GJ, the SAHRC initially argued that the Promotion of Administrative Justice Act 3 of 2000 (PAJA) applied to its decision, but then reversed its stance, arguing that it was not a ‘decision’ susceptible to PAJA review.
The GJ, per Sutherland DJP, ruled that while the SAHRC is entitled to conduct a fact-finding exercise to arrive at an opinion on whether there is substance to a claim that a human right has been violated, it cannot make a definitive ‘decision’ on whether s 10 of PEPUDA was violated. It is not required or permitted to conclude that an allegation of fact was proved. What it is permitted to do under s 13 of the South African Human Rights Commission Act 40 of 2013 is to investigate complaints for the purpose of deciding whether to bring the conduct complained of before a court. The SAHRC’s view that it was empowered to make a reviewable decision was indicative of confusion and a certain hubris on its part. As a High Court, even the GJ itself lacked jurisdiction to ‘decide’ whether Mr Malema’s statement constituted hate speech: Under PEPUDA, this was a matter reserved for the Equality Court. The GJ accordingly set aside the SAHRC’s purported ‘findings’ as unlawful.
The money in your bank account: In Bright Idea Projects 66 (Pty) Ltd t/a All Fuels v Former Way Trade and Invest (Pty) Ltd and Others 2023 (6) SA 214 (KZP) the KZP (per Mossop J), faced with an unhappy trader that wanted the return of funds that had been reversed out of its bank account, reiterated the principle that money in a bank account was neither owned nor possessed by the account holder. This meant that the mandament van spolie was not available to an account holder who wanted to retrieve money taken from its account.
The pertinent facts were that the first respondent (Former Way) from time to time paid the applicant (All Fuels) by debit order for fuel supplied in terms of a wholesale fuel-supply agreement. The cost was calculated by a formula. When the relationship between the parties soured, Former Way, contending that All Fuels had failed to adhere to either the agreement or the formula in charging for the fuel, reversed the last two debit-order payments it had made, thereby extracting the sum paid – R 5,6 million – from All Fuels’ bank account. All Fuels, claiming that it had complied with its contractual obligations, sought relief by way of the mandament van spolie, alleging that the funds in question were despoiled by Former Way and demanding its restitution ante omnia.
The KZP pointed out that while the mandament was an ancient remedy for lost possession, it was settled law that funds held in a bank account belonged to the bank and were also ‘possessed’ by it, so that the account holder had a mere personal right over them. Since personal rights were not protected by the mandament, All Fuels’ claim for spoliatory relief was in vain.
Other civil cases
Apart from the cases discussed 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.
November [2023] 4 All South African Law Reports (pp 277 – 588); December [2023] 4 All South African Law Reports (pp 589 – 908)GJ: Gauteng Local Division, Johannesburg
GP: Gauteng Division, Pretoria
KZP: KwaZulu-Natal Division, Pietermaritzburg
NCK: Northern Cape Division, Kimberley
NWM: North West Division, Mahikeng
SCA: Supreme Court of Appeal
WCC: Western Cape Division, Cape Town
Application for judicial review in terms of s 6 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA): An application for review in terms of s 6(1) of PAJA was brought by the applicant because of the second respondent’s failure to follow his instructions which led to a complaint being lodged with the Legal Practice Council (LPC). In Keele v Legal Practice Council and Another [2023] 4 All SA 422 (GP), the LPC averred that the applicant had failed to provide prima facie evidence of misconduct on the part of the second respondent, and that he should pay the costs of the present application on the attorney and client scale as the application was ill-advised, constituted an abuse of the court process, was vexatious, and had not been brought bona fide.
Section 6 of PAJA sets out the circumstances in which a person may institute proceedings for the judicial review of administrative action. Because administrative decision must be taken on an accurate factual basis, a material mistake of fact renders an administrative decision subject to review. Section 33(1) of the Constitution guaranteed the right to administrative action that is procedurally fair. Section 6(2)(c) of PAJA provides for review of administrative action on the ground that the action was procedurally unfair. Furthermore, the principle of legality requires rational decision-making. Both the process by which the decision is made and the decision itself must be rational.
Relying on s 6(2)(e)(iii), the applicant in Keele contended that the LPC’s decision was taken because irrelevant considerations were considered, but he failed to explain what those irrelevant considerations might be. The averment that the decision was arbitrary and capricious as it was not based on the true facts, as contemplated in s 6(2)(e)(vi) was also unsubstantiated. Satisfied that there was no evidence of misconduct on part of the second respondent and that the LPC had not acted irrationally, arbitrarily, or capriciously, the court dismissed the application for review.
Judicial review of decision of Correctional Services authorities not to admit prison inmate to parole: In Block v Upington Correctional Supervision and Parole Board and Others [2023] 4 All SA 295 (NCK), the applicant was serving a 15-year sentence on a charge of corruption. The first respondent (the Parole Board) was responsible for the consideration of reports of offenders serving sentences and the determination of their parole (s 75 of the Correctional Services Act 111 of 1998).
The applicant sought the review and setting aside of the decisions by the relevant respondents in respect of his application for parole. The issues were whether the decision to deny him recognition for meritorious service in terms of s 80 of the Act, was justified; whether the applicant was placed on a list of offenders who qualified to be released and his name subsequently removed arbitrarily; and whether he should have been released under the COVID-19 special dispensation.
The interpretation of the proclamation established that the applicant fell outside the COVID-19 remission period by approximately 18 days, and he was not a qualified sentenced offender, in terms of the criteria mentioned in the Proclamation, unless he qualified for special remission of sentence for highly meritorious service.
The applicant contended that the Parole Board had wrongly applied s 80 by limiting itself to an internal document developed as a guide that referred to a closed list of factors that might be regarded as deserving for special remission. Thus, when the applicant’s application for special remission was considered, it was found that while his actions were commendable, they did not meet the criteria in the guide, to qualify for special remission. The Parole Board wrongly limited itself to a document intended to serve as a mere guide. No rational basis existed for the respondents’ conclusions and the application for review was granted.
Test for determining whether delay may be overlooked is a flexible one based on the proven facts of each case and other objectively available considerations: In Eskom Holdings SOC Ltd v Silicon Smelters (Pty) Ltd [2023] 4 All SA 661 (GP), the applicant (Eskom) was an organ of state conducting its business under authority of licences granted to it by the National Energy Regulator of South Africa. Its main business was the generation, transmission, and distribution of electricity in bulk within South Africa and neighbouring countries. In terms of Electricity Supply Agreements, Eskom supplied the respondent with electricity for its ferro-alloy smelter. Eskom introduced a programme called the Offer Sales Incentive Programme (OSIP) where customers who became part of the programme were incentivised to consume more electricity. The respondent agreed to participate in the OSIP. Subsequent thereto, Eskom allowed the respondent to participate in its Demand Response Programme (DRP). In terms of the agreement, the respondent on any day during the subsistence thereof, within 30 minutes of receiving an instruction from Eskom, would reduce its electricity consumption by the amounts agreed. In exchange, Eskom would credit respondent’s electricity account at a rate of R 1 485 per megawatt hour. Thus, the OSIP was a mechanism to incentivise the respondent to increase electricity consumption, while the DRP operated contrarily to reduce electricity consumption to protect the technical integrity of the electricity network.
A dispute arose between the parties after Eskom took the view that its decision to allow the respondent to also participate in the DRP resulted in the making of a double payment to the respondent. That led to the respondent cancelling the agreement under OSIP and the present application.
The court had to determine whether the applicant’s delay in seeking review was unreasonable and, if so, whether it should nevertheless be condoned. Reviews must, as a rule, be instituted without undue delay. The court exercises a narrow discretion in deciding whether to grant or refuse a delay. The test for determining that aspect is a flexible one, based on the proven facts of each case and other objectively available considerations. The delay was condoned.
On the merits of the review application, the court found that the OSIP did not amount to fruitless and wasteful expenditure as defined in the Public Finance Management Act 1 of 1999, and therefore, there was no violation of s 51(1)(b)(ii) of that Act. There was a financial benefit to both parties. The application was dismissed.
Application for leave to amend notice of motion and for condonation: In Robert Ross Demolishers (Pty) Ltd v All Persons Listed on “RJR1” Portion 20 of Farm 7787 Cape Division and Others [2023] 4 All SA 521 (WCC), the applicant sought leave to amend its notice of motion so as to obtain a declarator that various of the respondents had failed to protect its constitutional proprietary rights, and that the City of Cape Town be ordered to purchase the property, with the purchase price to be paid by the third to ninth respondents. The eighth respondent (the Minister of Police) opposed the application for amendment on the basis that the applicant could not be allowed to introduce several claims and prayers against it by means of a declarator in relation to events which had occurred more than a decade ago. Among other objections, it was said that such claims had prescribed. It was contended that the period of prescription provided for in the Prescription Act 68 of 1969 was completed by the end of 2015, and the Minister was only joined in March 2022. In light thereof, it was stated that the alleged claim, which the applicant might have against the Minister had become prescribed in terms of ss 11 and 12 of the Prescription Act, and the applicant was, therefore, precluded from effecting its intended amendments, insofar as they sought to implicate or potentially implicate the Minister.
According to the notice of amendment, the applicant knew in 2012 that it had a constitutional claim against the respondents. For over a decade, nothing was done to ensure that the respondents were made aware of the alleged claim. The applicant had not shown any entitlement to condonation, and condonation was refused, as was the application for leave to amend as against the Minister. The applicant asked the court to condone its failure to observe the time periods as stipulated in rule 28(4) of the Uniform Rules of Court. That application was not opposed by the respondents.
The courts have an oversight role in all matters that come before it, and exercise a discretion as to whether or not to grant condonation. A party seeking condonation must make out a case entitling it to the courts indulgence. It must show sufficient cause why condonation should be granted. That required the applicant to give a full explanation for the non-compliance with the rules of court. The applicant’s explanation failed to address the degree of lateness, or to establish the reason for the lateness, the actual prejudice to the minister and a triable case against the minister. Condonation was refused.
Duties of person employed to record criminal proceedings: The accused in S v PM [2023] 4 All SA 845 (NWM) was convicted of murder and assault with intent to do grievous bodily harm, committed when he was 16 years old and accordingly sentenced to imprisonment. The case was submitted for review as he had exceeded his sentencing jurisdiction in terms of s 276(1)(i) of the Criminal Procedure Act 51 of 1977. The review court, faced with an incomplete record, raised a query. However, the query was not brought to the attention of the regional magistrate. In explanation thereof, the clerk of the court filed an affidavit.
Section 4(1) of the Magistrates’ Courts Act 32 of 1944 provides that a court is a court of record and, therefore, a presiding officer is required to keep notes of proceedings in their court. The primary responsibility of ensuring that there is a court record, therefore, rests on the magistrate. In respect of the magistrates’ courts in particular, rule 66 of the Rules regulating the Conduct of the Proceedings of the Magistrates’ Courts of South Africa is very clear in respect of the duties of the person employed to record criminal proceedings by mechanical means or who may be required to note same in shorthand. The rule places the responsibility for keeping of the official court record on the person employed for such purpose (the custodian of the record). Rule 66(1) makes it clear that criminal proceedings may be noted in shorthand either verbatim or in narrative form or recorded by mechanical means. Rule 66(2) refers to every person employed for the taking of shorthand notes in terms sub-rule (1) or for the transcription of notes so taken by another person. That implies that stenographers (the correct designation being clerk of the court) are employed not only for recording proceedings by mechanical (digital) means but also to keep shorthand notes. The regional magistrate’s conduct of the matter was criticised. Although the accused had now been released, he had served four years of an incompetent sentence. The entire proceedings demonstrated a myriad of misdirections in the conduct of the matter, which either individually or cumulatively, constituted gross irregularities. The conviction and sentence were set aside. The seriousness of the failures required the judgment to be brought to the attention of the relevant authorities.
Determination of correct tariff for import: Three cases which raised the same question of law and fact were dealt with in a composite judgment. They primarily concerned the classification, for purposes of customs duty, of certain bicycle parts imported into the country for use in assembling bicycles in order to determine the appellants’ liability for import duties. The appeal raised the question of whether the goods, namely, bicycle parts bore the essential character of a bicycle or were merely parts of a bicycle. The significance of the distinction lay in the fact that bicycle parts that bear the essential character of a bicycle are liable, under tariff heading 8712.00 of Part I of Schedule I to the Customs and Excise Act 91 of 1964, for import duties of 15% of their value. By contrast, parts and accessories that lack the essential character of a bicycle are exempt from customs duty.
The appellants were importers of bicycles and their parts for local distribution. The respondent in each case was the Commissioner for the South African Revenue Service (SARS). The High Court decided that SARS was correct in determining that the goods were liable for import duty, leading to the present appeal in Silverback Technologies CC and Others v Commissioner for the South African Revenue Service [2023] 4 All SA 629 (SCA).
Classification of goods for purposes of import duties as between different tariff headings is a three-stage process. The first stage involves interpretation. Second, is a consideration of the nature and characteristics of the goods, and, finally, the selection of the heading, which is most appropriate to such goods must be decided on. The expression ‘the essential character of a bicycle’ must be interpreted purposively and contextually.
The court held that while bicycle wheels, in combination with other parts, collectively make up a bicycle as a finished or complete article, their absence did not have the consequence that the remaining parts would necessarily lack the essential character of a bicycle. The appeal was dismissed.
Appeal against granting of final protection order granted ex parte: The respondent in LW v KCA [2023] 4 All SA 769 (GJ) obtained an interim protection order against the appellant in terms of s 3(2) of the Protection from Harassment Act 17 of 2011 (PHA) on gender-based violence and rape against him and had threatened to make those allegations public. The magistrate held that she had no jurisdiction to adjudicate whether the allegations of rape were true or false, and confined her inquiry to whether the appellant’s conduct constituted harassment as defined in the PHA, finding that it did.
The magistrate’s decision could not stand, as she had misdirected herself in finding that she had no jurisdiction to inquire into the veracity of the rape allegations. That finding impacted her inquiry into whether there was harassment, as she implicitly conducted it on the assumption that the rape allegations were false. What then remained to be decided was whether the appeal should simply be upheld, as the appellant requested, or whether the further forms of relief sought by the respondent should be granted. Ultimately the respondent wished to have the veracity of the rape allegations determined by way of oral evidence in proceedings on remittal in the magistrate’s court, based on the full replying affidavits that he wished to introduce.
In order to arrive at a final decision on the referral for hearing of oral evidence, it was necessary to resolve the dispute of fact about the veracity of the rape allegations. The resolution of that dispute of fact would not be necessary if there was no harassment found, or if the respondent had a duty of utmost good faith under the PHA, requiring full disclosure at the interim protection order stage, and it appeared that he had breached it in circumstances warranting refusal of final relief on the return date. A party seeking relief ex parte has a duty of the utmost good faith to the court. All material facts impacting on the court’s decision must be disclosed. The respondent failed to make full disclosure in seeking the protection order. His non-disclosures, dishonesty and the likelihood that the magistrate would have refused relief in the event of full disclosure had to result in the discharge of the interim protection order, and the denial of a final protection order. On that basis alone, the appeal was allowed, the cross-appeal dismissed, and the magistrate’s order overturned and replaced with one discharging the interim protection order and dismissing the application for a final protection order.
Contravention of Subdivision of Agricultural Land Act 70 of 1970, s 3(d) rendering lease agreement void: The respondent was the owner of two adjacent agricultural properties held under a single title deed. The properties were agricultural land as defined in s 1 of the Subdivision of Agricultural Land Act. A written commercial lease agreement was concluded between the parties in terms of which specified portions of the farm were leased by the appellants. It was common cause that the lease agreement and an option contained therein were void for being in contravention of s 3(d) of the Act. The required written consent of the Minister of Agriculture was not obtained in respect of either the lease agreement or any of its renewals. Despite conceding the voidness of the agreement, the appellants contended that the respondent had failed to make out a case for the relief sought, which was the appellants’ eviction. In that regard, the appellants relied on the par delictum rule, alleging that the respondent was barred from claiming the return of possession of the property under a turpid agreement. The court a quo was not persuaded that the respondent had acted with turpitude or dishonourably, as neither of the parties were aware of the need to obtain the Minister’s consent and that the failure to do so rendered the agreement null and void.
The issues in Hanekom and Another v Lombard [2023] 4 All SA 381 (WCC) were whether the par delictum rule applied on the facts of the present application, where the lease agreement by virtue of which the appellants occupied portions of the respondents’ farm was admittedly void for contravention of the Act; if the par delictum rule did not apply, then whether the appellants had any defence to the application for the ejectment; and if the par delictum rule did apply, whether its application should be relaxed in casu.
The gist of the appellants’ case on appeal was that there was no fragmentation of the agricultural capacity of the farm on a factual level, and therefore, the Act found no application and no ministerial consent was required. On that basis the relevant lease agreement would be valid.
The appellants also sought to adduce new evidence on appeal. The court exercising appeal jurisdiction will allow the leading of further evidence on appeal, but only in special circumstances. The basic requirements for such an application have been set out in case law. The appellants had not established those requirements. The introduction of the new evidence would also result in their having proffered three different versions as the basis on which they opposed the respondent’s application. Leave to adduce further evidence was refused.
On the merits, the court held that although the farm consisted of two cadastral units, both were indivisible units of the farm. Legally, one portion could not be divided from the other unless the title deed was amended. The Act seeks to prevent the fragmentation of agricultural land into uneconomic portions. The appellants failed to convince the court that the lease agreement did not fall foul of the provisions of s 3(d) of the Act. The court a quo correctly held that at the conclusion of the agreement, no turpitude existed. The appellants failed to show that the par delictum rule applied. There was no other basis on which the appellants could assert a right to be in possession of the farm. The appeal was dismissed.
Failure by Commissioner of the South African Revenue Service to finalise audit or to keep taxpayer informed of progress: In Kusasa Refining (Pty) Limited v Commissioner for the South African Revenue Services [2023] 4 All SA 459 (GP) the respondent, the South African Revenue Service (Sars) did not finalise the applicants audit despite numerous requests to do so and failed to provide any feedback on the progress of the audit. Sars’ contention was that the applicant could only seek a finalisation of the audit in terms of the Tax Administration Act 28 of 2011, and that the application was circumventing the legal position that a decision to conduct an audit in terms of s 40 of the Tax Administration Act does not constitute administrative action. It, therefore, raised a point in limine that the relief sought was incompetent. It stated that there was no administrative action to be reviewed by the court.
Section 42 of the Tax Administration Act requires that a Sars official involved in or responsible for an audit must, in the prescribed form and manner, provide the taxpayer with a notice of commencement of an audit and, thereafter, a report indicating the stage of completion of the audit. The court considers the applicability of the rules of natural justice and the public interest, stating that the public interest necessarily comprehends an element of justice to the individual. The competing values of fairness and individual justice on the one hand, and administrative efficiency on the other hand, constitute the public and the private aspects of the public interest. The duty of the courts to uphold and vindicate the constitutional rights of the applicant to its good name cannot have the effect of precluding Sars from discharging duties and responsibilities exclusively assigned to it by the relevant legislation. However, such an inquiry may only proceed in a manner which strictly recognises the right of the applicant to have the inquiry conducted in accordance with natural justice and fair procedures.
Despite the duty imposed on Sars in terms of s 42 of the Tax Administration Act, it offered no explanation as to why the applicant was not kept informed of progress on the audit. Sars’s conduct constituted administrative action. Its failure to engage with the applicant or to furnish an explanation for the delay in finalising the audit until after the review application was brought, ran counter to the rules of natural justice. The failure to take a decision as to whether to finalise the audit was reviewed and set aside, and Sars was ordered to take such decision within ten days of the order.
Application for removal of trustees in terms of s 20(1) of the Trust Property Control Act 57 of 1988: In Vorster NO v Buthelezi and Others [2023] 4 All SA 889 (KZP), the applicant sought the removal of the first to fourth respondents as trustees of the trust. The main issue for determination was whether the trustees were entitled to pay or distribute certain amounts to, among others, the first to fourth respondents. Related to that question was whether the various payments authorised by the trustees fell within the wide discretion afforded to them in terms of the trust deed. The trust had received an amount of R 10 million from a donor and the first to fourth respondents had made various payments to themselves from the donated amount. The applicant pointed out that only the second and third respondents were beneficiaries of the trust. He contended that any payments made by the trustees had to be made bearing in mind the objectives of the trust. The respondents were shown to have paid amounts to themselves as a return on the investment of their time and effort spent in the execution of their duties as trustees. According to the applicant, those payments were to the detriment of all the other beneficiaries.
The application for the relevant trustees’ removal was brought in terms of
s 20(1) of the Trust Property Control Act. Section 20(1) did not specify any grounds for removal, other than that the court should be satisfied that the removal would be in the interests of the trust and its beneficiaries. Section 9(1) of the Act states that a trustee shall in the performance of their duties and the exercise of their powers, act with the care, diligence and skill which can reasonably be expected of a person who manages the affairs of another. The trustees were not entitled to pay or distribute the funds in the way they had, and the impugned payments had been made contrary to the objects of the trust and were prejudicial to the trust property and the beneficiaries. It was consequently concluded that the first to fourth respondents should be removed as trustees of the trust.
Apart from the cases and material dealt with above, the material under review also contained cases dealing with –
Merilyn Rowena Kader LLB (Unisa) is a Legal Editor at LexisNexis in Durban.
This article was first published in De Rebus in 2024 (Jan/Feb) DR 23.
