May 2022 (3) South African Law Reports (pp 1 – 320); May 2022 (1) South African Criminal Law Reports (pp 447 – 556)This column discusses judgments as and when they are published in the South African Law Reports, the All South African Law Reports, the South African Criminal Law Reports and the Butterworths Constitutional Law Reports. Readers should note that some reported judgments may have been overruled or overturned on appeal or have an appeal pending against them: Readers should not rely on a judgment discussed here without checking on that possibility – Editor.
CC: Constitutional Court
ECG: Eastern Cape Division, Grahamstown
MM: Mpumalanga Division, Mbombela (Nelspruit)
GP: Gauteng Division, Pretoria
SCA: Supreme Court of Appeal
WCC: Western Cape Division, Cape Town
Hague Convention on the Civil Aspects of International Child Abduction – assessment of art 13(b) defence to application for return of unlawfully abducted child: LD v Central Authority (South Africa) and Another 2022 (3) SA 96 (SCA) dealt with an appeal to the SCA against the dismissal, by a Full Court of the GP, of an application under art 12 of the Hague Convention on the Civil Aspects of International Child Abduction. The application was brought by the appellant, LD, for the return of his minor child, E, to her place of habitual residence in Luxembourg after her abduction to South Africa (SA) by her mother, PH, in October 2018. The SCA was asked to decide whether PH should succeed in her art 13(b) defence to E’s return on the ground that there was a grave risk that it would expose her ‘to physical or psychological hardship or otherwise place [her] in an intolerable situation’.
E was born in Belgium in August 2014. At the time LD, who was Belgian and PH, who was French, were living together in Belgium with S, PH’s son from a previous marriage. They then moved to Luxembourg, but shortly afterwards PH and LD separated. E’s primary residence was with PH in Luxembourg. During 2016 to 2018 Luxembourg courts steadily increased LD’s rights, eventually granting him joint parental authority, including the right to determine E’s place of residence.
In 2018, PH married a South African man and applied to a Luxembourg court for leave to take E with her to live in SA. The court refused PH’s application and increased LD’s visitation and accommodation rights. Then, in open violation of the court’s orders, PH removed E from Luxembourg to SA without LD’s consent. LD obtained an order in the Luxembourg court that PH return to Luxembourg with E.
LD’s Hague Convention application was launched in the GP in January 2019. Collis J ordered E’s return to Luxembourg but a Full-Bench appeal by PH was successful. LD was then granted special leave to appeal to the SCA.
A majority of the SCA Bench (Plasket JA and Gorven JA, with Saldulker ADP and Hughes JA concurring) rejected the appeal. While describing PH’s abduction of E as ‘deplorable’, they pointed out that the focus nevertheless had to be on the best interests of E. If this had the effect of rewarding PH for her bad behaviour, that was an unfortunate but unavoidable result.
The judges went on to state that it would indeed be in the best interests of E that she remains in SA, because returning her to Luxembourg would likely have a profound adverse effect on her. She had a strong bond with PH, her half-brother S, and PH’s new husband. There was a grave risk that breaking these bonds and dismantling the family unit would expose E to the ‘psychological hardship’ and ‘intolerable situation’ referred to in art 13(b).
In her dissenting judgment, Mocumie JA pointed out that the focus of art 13(b) was the risk of harm to the child in the event of return. PH had failed to prove her case in this regard, the crux of which was that she herself faced the risk of harm in that she might be arrested on her return to Luxembourg. PH had in any event failed to prove any such risk since the Central Authority for Luxembourg had confirmed that there was no warrant out for her arrest and undertaken to ensure that she would not be prosecuted.
Freedom of expression and the Public Protector’s findings on Helen Zille’s ‘colonialism’ tweets: In March 2017, Helen Zille, then Premier of the Western Cape, created her infamous tweets regarding the benefits of colonialism, for which she duly apologised. The Public Protector (PP), acting on a complaint by a member of the provincial legislature, found that they violated the right to dignity in s 10 of the Constitution and in addition constituted incitement to violence contrary to s 16(2)(b) of the Constitution. When the WCC refused to set aside the PP’s findings, Ms Zille appealed to the SCA. In its judgment, reported as Premier, Western Cape v Public Protector and Another 2022 (3) SA 121 (SCA), the SCA (per Molemela JA in a unanimous judgment) ruled that the PP’s finding on the violation of s 10 was based, irrationally, on Ms Zille’s apology rather than on the tweets themselves. As to the finding on incitement, the judge pointed out that the PP had failed to adopt the required objective approach in the interpretation of the tweets or to provide a basis for her conclusion that they were likely to incite violence. The SCA, therefore, set aside the PP’s findings against Ms Zille.
Lex non cogit ad impossibilia (the impossibility principle) in constitutional context: In Van Zyl NO v Road Accident Fund 2022 (3) SA 45 (CC) the parties were Ms Phillipa Susan van Zyl, the curatrix ad litem of one Jacobs, who had been mentally incapacitated by brain injuries he sustained in a motor vehicle accident. Crucially, he was unable to lodge his claim for compensation against the Road Accident Fund (RAF). His mother had lodged it on his behalf, but only some seven years after the accident, in January 2017. Subsequently, in November 2017, Ms Van Zyl (the appellant in the CC) was appointed Mr Jacobs’ curatrix ad litem. So, when, in March 2018, the appellant instituted an action for damages in the ECG, the RAF (the respondent in the CC) predictably responded by pleading prescription under s 23(1) of the Road Accident Fund Act 56 of 1996 (the RAF Act). The plea was upheld, and Mr Jacobs claim duly dismissed.
It appeared that, despite the debilitating effects of his injuries, Mr Jacobs did not fall in any of the classes of persons s 23 expressly protected against prescription, namely minors, persons detained under mental-health legislation and persons under curatorship. The appellant’s invocation of ss 12(3) and 13(1)(a) of the Prescription Act 68 of 1969, under which the running of prescription would have been suspended, floundered because s 23 explicitly excluded the operation of ‘any law’ that would allow for a prescription period different to that specified in s 23.
In an appeal, the SCA ruled that s 23 of the RAF Act exclusively governed the prescription of claims against the RAF and that the invoked provisions of the Prescription Act could, therefore, not save Mr Jacobs’ claim from prescribing. The SCA never addressed the appellant’s impossibility argument, namely that the maxim lex non cogit ad impossibilia (the impossibility principle) should operate to rescue Mr Jacobs’ claim from prescription. Instead, it invoked Road Accident Fund and Another v Mdeyide 2011 (2) SA 26 (CC), in which the CC held that s 12(3) of the Prescription Act did not apply to RAF claims, pointing out that prescription could have been avoided if Mr Jacobs had been timeously detained under mental health legislation or if a curator had been appointed and instituted his claim in time.
In a further appeal to the CC, a majority of the judges agreed with the appellant’s argument that since Mr Jacobs’ injuries had made it ‘impossible’ for him to have instituted his action within the three years required by the RAF Act, it could not have been the intention of the legislature to visit it with prescription. The respondent in turn argued that the exclusion of persons like Mr Jacobs (called ‘affected persons’ in the judgment) from protection against prescription was justified, since to include them would result in an intolerable economic and administrative burden on the RAF. The respondent further argued that the expeditious, cost-effective finalisation of claims was a legitimate governmental purpose to which s 23 was rationally connected.
The CC delivered three judgments –
Pillay AJ wrote that the common law should, by means of the impossibility principle, protect affected persons like Mr Jacobs from the prescription of their road accident claims. He pointed out that the Mdeyide judgment did not deal with affected persons or deny them protection against prescription if the common law, in the guise of the impossibility principle, were to come to their rescue. The impossibility principle – which was grounded in nature, science, and reality – had been recognised in our courts as the appropriate instrument to excuse non-compliance with the impossible. To conclude that the ‘any law’ exclusion in s 23(1) excluded the application of the impossibility principle would amount to an unconstitutional perversion of justice, contrary to the rights to human dignity and access to the courts. Hence the appeal should succeed.
Jafta J agreed with Pillay AJ that Parliament could not have intended that affected persons should do the impossible. The s 23 exclusions amounted to an absurdity that could not have been contemplated by Parliament. While it was true that s 23 superseded other laws on prescription, it did not exclude the impossibility principle because that principle did not regulate prescription but rather relieved a person from complying with the requirements of a law in circumstances where it was impossible to comply. Nor was it clear what legitimate government purpose would be served by a provision that required individuals to do the impossible, something no sensible parliament would ever do. Jafta J, therefore, agreed with Pillay AJ that the appeal should succeed.
In her dissenting judgment, Theron J argued that the majority failed to explain why the impossibility principle was not expressly excluded by the ‘any law’ exclusion of s 23. The majority judgments did not suggest that the impossibility principle was not a law or that it did not operate contrary to s 23 but failed to then adequately explain why it did not fall within the exclusion. Section 23 unequivocally excluded the operation of any law allowing for a prescription period different to that which it specified, and there was no authority for the proposition that Parliament could not exclude the impossibility principle – in fact, it had to enjoy such power. While the Constitution might require that the relevant common-law principles should be applicable in a situation such as the present, the proper place for such an argument was a frontal challenge of the constitutional validity of s 23(1). For these reasons Theron J would have dismissed the appeal.
Life partnership – the constitutionality of the omission of the surviving partner from the categories of ‘spouse’ and ‘survivor’ in respectively the Intestate Succession Act 81 of 1987 and Maintenance of Surviving Spouses Act 27 of 1990: The CC’s decision in Bwanya v The Master of the High Court and Others 2022 (3) SA 250 (CC) arose from the WCC’s dismissal of a challenge to the constitutionality of the definition of ‘survivor’ under s 1 of the Maintenance of Surviving Spouses Act. The definition of a surviving ‘spouse’ in a ‘marriage’ dissolved by death effectively excluded partners in a permanent heterosexual life partnership in which the partners had undertaken reciprocal duties of support from an entitlement to claim maintenance in terms of the Maintenance of Surviving Spouses Act.
The facts were that the applicant, Ms Jane Bwanya and Mr Anthony Ruch had been involved in a relationship that comprised most, if not all, characteristics of a marriage. They met and became romantically involved in 2014. Later that year Ms Bwanya permanently moved in with Mr Ruch. From then on, they split their time between Mr Ruch’s Camps Bay and Seaways properties. Ms Bwanya retained her own place at The Meadows, where she was employed as a domestic worker. The couple’s friends were aware of the relationship. At social gatherings Mr Ruch would introduce Ms Bwanya as his wife, and they often hugged and kissed in the presence of others. By October 2015, they were contemplating cementing the relationship with a baby. In November 2015, Ms Bwanya accepted a marriage proposal from Mr Ruch. Mr Ruch died in April 2016, before the proposed marriage could be consecrated.
Ms Bwanya then lodged two claims against Mr Ruch’s intestate estate (a will left by Ruch had failed) –
Ms Bwanya’s claim was, however, rejected by the executor on the ground that neither the Maintenance of Surviving Spouses Act nor the Intestate Succession Act made provision for a claim by a surviving partner of the kind of relationship Mr Ruch and Ms Bwanya had enjoyed. This prompted Ms Bwanya to institute the WCC proceedings, in which she alleged that the Maintenance of Surviving Spouses Act’s omission of a partner such as herself was a violation of her constitutional rights to equality and dignity.
Before the matter was heard, the parties settled, but Ms Bwanya persisted nonetheless for declarators that the omissions were indeed unconstitutional and invalid. She met with mixed success, the WCC finding that while it was precluded from any invalidation of s 2(1) of the Maintenance of Surviving Spouses Act by established precedent, she was entitled to an order declaring the Intestate Succession Act omission in its s 1(1) invalid. Ms Bwanya applied for leave to appeal the finding in respect of the Maintenance of Surviving Spouses Act and for confirmation of that in respect of the Intestate Succession Act.
The CC (per Madlanga J, with Khampepe J, Majiedt J, Pillay AJ, Theron J and Tlaletsi AJ concurring), having found that the maintenance issue plainly engaged its jurisdiction, granted leave to appeal, upheld the appeal, and confirmed the declaration of invalidity. In coming to its decision, the CC found that while the maintenance matter would be, as between the parties, of no practical effect and thus moot, it was nonetheless in the interests of justice to hear it on account of the importance of the point implicated – it affected substantial numbers of South Africans – and on the further ground that comprehensive arguments had been advanced. However, standing in the way of an inclusion of heterosexual life partnerships in s 2(1) of the Maintenance Act was Volks NO v Robinson and Others 2005 (5) BCLR 446 (CC), in which the CC itself had concluded that the section’s omission of such partnerships was discriminatory, but not unfairly so – a finding that CC now considered wrong, though not clearly so. However, the Volks no-unfairness finding could be bypassed and a finding of unfairness made. The Volks finding rested on the assumption that couples who had not married had refrained from doing so out of a mutual choice to that end. However, the female partner often had no choice in this regard even where she was desirous of marriage. Volks’ finding that it was inappropriate to burden a partner’s estate with a maintenance duty had been eroded by the subsequent common-law recognition of a claim for loss of a partner’s support.
There was no convincing justification for excluding surviving partners from s 2(1)’s benefit. Its purpose would not be thwarted by the inclusion of the survivor and doing so would not undermine the institution of marriage.
When it came to the Intestate Succession Act, its exclusion of opposite sex life partnerships amounted to unfair discrimination. Pertinent in this regard was that same sex life partners already enjoyed the benefits of the section and the vulnerability of the female partner in an opposite sex life partnership.
The CC accordingly made an order declaring unconstitutional the omission, from ‘survivor’ in s 1 of the Maintenance of Surviving Spouses Act and ‘spouse’ in s 1 of the Intestate Succession Act, of surviving life partners in the position of Ms Bwanya.
Trials can be conducted in any official language, but any record submitted to High Court must be translated into English: In S v Ndlangamandla 2022 (1) SACR 546 (MM) the accused was convicted in a magistrates’ court of a contravention of s 31 of the Maintenance Act 99 of 1998 for having failed to pay maintenance, and sentenced to one year imprisonment, suspended for five years. Unfortunately, the interpreter failed to interpret parts of the trial, which were in isiZulu, and the missing parts of the record could not be retrieved from the recording system.
On review, Ratshibvumo J (with Greyling-Coetzer AJ concurring) noted that the trial appeared to have been fully conducted in one or two of the official languages, except in those instances where the magistrate would communicate with either the witnesses and/or the accused in isiZulu, and those parts of the trial had not been interpreted into English. He noted further that there was nothing wrong in having a trial conducted in any of the official languages, as all of them were equal and needed to be given equal treatment, but where the trial was conducted in any language other than the court language of record, the presiding officer had a duty to see to it that the record that was submitted to the High Court was translated into English. It was also incumbent on every judicial officer, before embarking on a trial in any other language, to make sure that there were resources to take care of the translation, without causing the wheels of justice to grind to a halt, and thereby prejudicing any of the parties involved.
The court ruled that, in the circumstances, the proceedings were not in accordance with justice where there was no proper trial record to be reviewed, and the conviction and sentence had to be set aside.
Apart from the cases and material dealt with or referred to above, the material under review also contained cases dealing with –
Prescription of maintenance obligations in consent paper made order of court: In SA v JHA 2022 (3) SA 149 (SCA), Ms JHA had issued a writ of execution against Mr SA in respect of arrear maintenance going back to July 1993, the date of their divorce. The divorce order incorporated a consent paper setting out the applicant’s cash maintenance obligations. Although Mr SA failed to pay the maintenance stipulated in the consent paper, Ms JHA did not make any attempt to recover the arrear maintenance until December 2018.
Mr SA approached the WCC for a declaratory order that maintenance obligations under the consent paper which accrued before 1 March 2017 – the due date for payment of maintenance three years prior to the date of service of the writ – had been extinguished by prescription.
At issue was whether such obligations amounted to a ‘judgment debt’ prescribing after 30 years as contemplated in s 11(a)(ii) of the Prescription Act 68 of 1969 or amounted to ‘any other debt’ prescribing after three years (s 11(d)). The High Court rejected the application, holding that s 11(a)(ii) applied.
In Mr SA’s appeal to the SCA, he contended that the maintenance order did not constitute a final judgment for the purposes of the Prescription Act because it could be varied by the court which granted it for sufficient reason or good cause. He also relied on the fact that the ss 24(1) and (2) of Maintenance Act 99 of 1998 drew a distinction between maintenance orders and orders for a once-off payment of a specified sum of money, with only the latter being described as a civil judgment.
The SCA (per Smith AJA (Dambuza JA and Hughes JA concurring)) held that authoritative case law on the nature of a ‘judgment debt’ and settlement agreements made orders of court, made it clear that maintenance orders possessed the essential nature and characteristics of civil judgments. That a maintenance order was subject to variation did not detract from the fact that the court granting the maintenance order did so on a consideration of the facts placed before it at the time. Its decision, either by way of a reasoned judgment or by agreement between the parties, disposed of the lis, which was in existence between the parties at that point in time. An application for variation of that order, thus introduced a new lis, the party applying for such an order having to show changed circumstances justifying a reconsideration of the original decision. The matter was, therefore, res judicata on the facts before the court that made the original maintenance order. An aggrieved party who wished to challenge the soundness of the original decision without establishing changed circumstances, could only do so by way of an appeal.
As to Mr SA’s attempt to draw a distinction between an ‘order’ and a ‘judgment’, the SCA held that it was contrived and did not find support in decided cases. Section 24(1) of the Maintenance Act provided that a maintenance order had the effect of an order or direction of the court made in a civil action. This meant that a maintenance order had the same legal consequences which flowed from an order made in a civil action. There could be no clearer declaration of the legislature’s intention to visit on a maintenance order the legal characteristics of a civil judgment. The court a quo was found to have made the correct order, and the appeal was accordingly dismissed.
What is ‘voluntary disclosure’ for tax purposes? In Purveyors South Africa Mine Services (Pty) Ltd v Commissioner, South African Revenue Service 2022 (3) SA 139 (SCA) the taxpayer had requested a meeting with the South African Revenue Service (Sars) to regularise its value-added tax (VAT) liability, after its auditors advised it that it was supposed to have paid over VAT on the import of an aircraft. The South African Revenue Service confirmed liability, also for penalties. Further correspondence between the taxpayer and Sars followed but the taxpayer took no further steps to regularise its liability for VAT and penalties until 4 April 2018 when it applied for voluntary disclosure relief in terms of s 226 of the Tax Administration Act 28 of 2011 (the TAA).
The South African Revenue Service rejected the taxpayer’s application for voluntary disclosure relief on the grounds that the disclosures were not ‘voluntary’ as contemplated in s 227(a); it did not contain the facts of which Sars was unaware as those facts had already been disclosed to it prior to the voluntary disclosure application. The taxpayer subsequently approached the High Court for relief which include a prayer for a declaratory order to the effect that its disclosures were voluntary for the purposes of s 227(a). The High Court agreed with Commissioner.
In the taxpayer’s appeal to the SCA, it held (per Mathopo JA (Petse AP, Schippers JA, Mokgohloa JA and Molefe AJA concurring)) that whether a voluntary disclosure was prompted by a compliance action was question of fact, to be determined by examining the circumstances in which it was made. The facts showed that from the outset – and well before the submission of its voluntary disclosure application – the taxpayer knew that it was liable for the import value-added tax on the aircraft and penalties, which were not going to be waived. It was prompted by Sars’ compliance action, not motivated by any desire to come clean but rather to avoid the payment of fines and penalties. The taxpayer’s disclosure to Sars was not made in the context of a voluntary disclosure relief application, and it would, therefore, be unconscionable to treat it any different. Granting the relief sought would be at odds with the purposes of the voluntary disclosure programme – to enhance voluntary compliance with the tax system by enabling errant taxpayers to disclose defaults of which Sars is unaware, and to ensure the best use of Sars’ resources. The taxpayer’s application did not pass the test. It was not voluntarily made and did not disclose information of which the Commissioner was unaware. The appeal was accordingly dismissed.
Apart from the cases and material dealt with 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.
This article was first published in De Rebus in 2022 (July) DR 24.
