May 2023 (3) South African Law Reports (pp 1 – 326); May 2023 (1) South African Criminal Law Reports (pp 447 – 564)This column discusses judgments as and when they are published in the South African Law Reports, the All South African Law Reports, the South African Criminal Law Reports and the Butterworths Constitutional Law Reports. Readers should note that some reported judgments may have been overruled or overturned on appeal or have an appeal pending against them: Readers should not rely on a judgment discussed here without checking on that possibility – Editor.
GJ: Gauteng Local Division, Johannesburg
GP: Gauteng Division, Pretoria
LCC: Land Claims Court
MM: Mpumalanga Division, Mbombela
SCA: Supreme Court of Appeal
WCC: Western Cape Division, Cape Town
An opposed overseas relocation of a minor child: MH, a Dutch mother living in South Africa (SA), wanted to return to her homeland permanently with her five-year-old son, K, who was born in SA in May 2013. The boy, over whom MH had in 2015 been granted full parental rights and responsibilities, had a Dutch passport, and spoke that language. But his biological father, OT, also Dutch, with whom MH had been involved in an acrimonious relationship while they were both living in SA, opposed the relocation on the ground that it would destroy his relationship with K.
The discord between MH and OT was the primary reason why MH wanted to leave SA for the Netherlands. It was in her view detrimental to both her and K’s wellbeing to live here under such stressful circumstances. She also cited better employment prospects and an improved lifestyle for her and K in the Netherlands, where they would have the support of her nuclear family. OT argued that none of this was a sufficient reason for relocation and that, given the level of distrust between the parents, the odds were that his close and burgeoning relationship with K would be ruined if MH and K left SA. OT had by this time acquired permanent residence in SA and was involved in a stable relationship with a South African woman. An agreement, which was made an order of court provided that OT had contact rights with K and that his consent was required for MH and K to relocate permanently from SA.
This was the situation that the WCC was confronted with in MH v OT 2023 (3) SA 159 (WCC), an opposed application by MH for an order that would allow her to relocate to the Netherlands permanently with K.
In its judgment the WCC (per Cloete J) pointed out that when a court sat as upper guardian of a minor child, there was no ‘onus’ in the conventional sense, so that in relocation matters the courts had to take an overall view of the situation to determine whether the parent’s decision to relocate was a reasonable one. Not every relocation should be approached only from the child’s perspective, nor would the child’s best interests always trump all other rights.
While there was little doubt in the WCC’s mind that K wished to maintain frequent contact with his father, it had to weigh this against K’s rights to –
The WCC emphasised that MH’s reasons for wishing to relocate were clearly
bona fide and reasonable, that there were no compelling reasons to override her decision, and that the bond between K and the OT was such that it could withstand separation. In the light of these considerations, the WCC on 4 July 2018 authorised WH to remove K permanently to the Netherlands.
The legality of the ‘on the road fees’ charged in car sales: In National Credit Regulator v National Consumer Tribunal and Another 2023 (3) SA 225 (GP) the GP in four interrelated appeals dealt with the legality of the ‘on the road fees’ (OTR fees) customarily added to the financed prices of cars sold through dealerships. In issue was not the legality of the fees themselves, but rather whether they were legal under the National Credit Act 34 of 2005 (the Act).
The National Credit Regulator (NCR) had in 2017 issued compliance notices against three vehicle finance houses – Volkswagen Financial Services SA (Pty) Ltd (VWFS), Mercedes-Benz Financial Services SA (Pty) Ltd (MBFS) and BMW Financial Services SA (Pty) Ltd (BMWFS) – containing findings that they had charged consumers OTR fees disguised as service and delivery fees in contravention of various stipulations of the Act. The NCR ordered the finance houses to reimburse the affected consumers. The finance houses then successfully approached the National Consumer Tribunal to have the compliance notices set aside and the OTRs refunded (back) to them.
The NCR appealed to the GP, which proceeded to hear four consolidated statutory appeals involving the Tribunal, the finance houses, and the NCR, which appealed the Tribunal’s order for the refunding of the OTRs. The parties provided the GP with a joint practice notice in which they asked the GP to determine whether the charging of the OTR fees was contrary to ss 100, 101 and 102 of the Act, which between them prescribe the types and nature of fees, or services that credit providers may charge consumers under instalment sale agreements. Section 100 deals with prohibited charges and provides that a credit provider may not charge a consumer fees, charges or commissions prohibited by the NCA. Section 101 deals with the cost of credit and prohibits a credit agreement from requiring from the consumer payment for anything but the principal debt, interest and certain specified fees and charges, ‘plus the value of any item contemplated in section 102’ (our italics). Section 102, which contains a list of these items (fees or charges that may form part of the transaction: initiation fees, connection fees, delivery fees etcetera). It provides that the credit provider may not charge for them unless the consumer appoints the credit provider as his or her agent in arranging for the service concerned. OTR fees are never mentioned.
In a split judgment, the majority of the GP (per Malungana AJ, Millar J concurring) pointed out s 100 prohibits the credit provider from charging or imposing monetary liability on the consumer in respect of prohibited fees or charges, and that the credit provider imposes no obligation or financial liability when it finances the principal debt predetermined by the dealer. And s 101 is triggered only if the credit provider charges for the goods or services prohibited in s 100 as that would increase the cost of credit. Dealers and credit providers thus perform separate, complimentary roles during the ‘pre-agreement’ stage that culminates in the conclusion of the credit agreement. Therefore, the finance houses do not charge OTR fees when they include them in credit agreements: they are added to the purchase price during the initial negotiations between consumers and dealers, that is, during the pre-agreement stage. The finance houses then financed the principal debt, consisting of the purchase price and the other extras, including the OTR fees. There was, therefore, no merit in the NCR’s argument that in VWFS and the other finance houses had charged the consumers OTR fees in contravention of the Act. The dealers had imposed them at the initial stage of the sale process. In the premises, the GP ruled in favour of the finance houses that they did not contravene ss 100, 101 or 102 of the Act, upheld their appeals and dismissed the NCR’s appeal.
In a firm dissent Moshoana J argued that the view that the value of items contemplated in s 102 is not part of the principal debt because it is ‘charged’ by the dealer, is absurd and contrary to aims of the NCA. Logically, if a sum including an OTR is charged by the dealer and then imposed on the consumer as part of the deferred amount, then the credit provider effectively ‘charged’ or ‘imposed a monetary liability’ on the consumer, thereby violating ss 100(1)(a) and 102 of the Act. Moshoana J would, therefore, have ruled against the financiers, dismissing their appeals, and upholding the NCR’s appeal.
What do they look like? In TM obo MM v MEC for Health, Mpumalanga 2023 (3) SA 173 (MM), an action against the Member of the Executive Council (MEC) for Health on behalf of a child who was diagnosed with cerebral palsy arising from alleged medical negligence at childbirth, Legodi JP was presented with a draft order of settlement, submitted to be made an order of court by agreement between the parties. Accompanying the draft order was an affidavit from the plaintiff’s attorneys, which stated that ‘neither the plaintiff nor plaintiff’s legal representatives entered into a [CFA] as is contemplated in terms of section 4(1) of the Contingency Fees Act No 66 of 1997’ (the Act).
Concerned that the fee agreement amounted to a CFA without complying with s 4 of the Act, the MM issued several directives to the plaintiff’s attorneys requiring more information on the exact nature of the fee agreement. They replied that there was no success fee involved, but that, having ascertained that it was a prosecutable claim, they agreed to recover reasonable attorney and own client fees, as well as all disbursements not recovered in the party and party bill of costs. It was common cause that the plaintiff was indigent and unable to pay fees upfront.
The MM disagreed with their reply, holding that it was common cause that payment of legal fees was dependent on the success of the litigation and was to be paid from the capital amount that may be recovered in the litigation. All was, therefore, dependent on a ‘no win, no fee’ model or on the so-called ‘success fee’. An agreement where fees and disbursements were paid out of the capital amount on favourable finalisation of the matter could be nothing else but a CFA.
The MM further held that agreements –
Any entitlement to fees for services in respect of proceedings payable in the event of the success would be unlawful at common law unless there was compliance with the Act. Accordingly, one may not enter into a fee agreement based on a specific or implied agreement that fees would only be paid in the event of the success of the litigation, without complying with the Act. Neither can one dodge the Act by specifically or impliedly providing that a legal practitioner would only be entitled to charge their normal fees, or less, if the litigation was successful. The agreement in question clearly constituted a CFA and was illegal for non-compliance with the Act.
Inquests – magistrate holding informal instead of formal inquest constituting irregularity but not vitiating findings: Todd v Magistrate, Clanwilliam and Others 2023 (1) SACR 481 (WCC) concerns an application for the review of the findings of an inquest arising from an incident in which the deceased died in a fall from a cliff. When she fell, the deceased was in the presence of her husband, the applicant and only witness. The magistrate found in terms of s 16(2)(d) of the Inquests Act 58 of 1959 (the Act) that, although there were no direct witnesses to the incident, the available circumstantial evidence strongly indicated foul play on the applicant’s part. The magistrate, therefore, ruled that her death was brought about by an act or omission that prima facie involved or amounted to an offence on the applicant’s part. Aside from challenging these findings, the applicant contended that the magistrate had erred in holding a non-public inquest into the deceased’s death based solely on affidavits and without recourse to oral evidence, and despite the recommendations of the Director of Public Prosecutions and the request by the daughter of the deceased.
The WCC (per Lekhuleni J, Allie J concurring), agreed that the magistrate’s decision to hold an informal inquest was wrong and that inquest magistrates were ordinarily under an obligation to call for oral evidence. The WCC was nevertheless of the view that this did not mean that the magistrate’s decision had to be reviewed. More was required. The applicant had to satisfy the court that the exercise of the magistrate’s discretion was so unreasonable and capricious that it infringed his fundamental rights. But the applicant did not show that he had suffered any prejudice pursuant because of the magistrate’s decision to hold an informal inquest.
As to the findings on the facts, the WCC was not persuaded that the applicant had given a plausible explanation of what really caused the deceased, an accomplished sportswoman, to fall. She was an accomplished cyclist and was medically sound and physically fit. The circumstances were such that they demanded an answer, which only the applicant could provide and which he had failed to do. Since there were no grounds for setting-aside of the magistrates’ decision, the WCC dismissed the application.
Murder – a finding of premeditation does not require that death was premeditated or planned: In S v Dube 2023 (1) SACR 513 (MM) the accused was convicted of housebreaking with the intent to assault and murder. Intention in the form of dolus eventualis was found to be present. The only remaining issue to be considered was whether the murder could be considered premeditated in circumstances where the accused had only intended to inflict bodily harm on the deceased. If so, the matter fell within the ambit of s 51(1) of the Criminal Law Amendment Act 105 of 1997 and the accused faced the prospects of a prescribed sentence of life imprisonment.
The facts were that the accused had been celebrating his birthday at a tavern when he was phoned by his brother who asked him where he was. On being informed, his brother said that he would join him there, but failed to do so. After leaving the tavern the accused passed his girlfriend’s home. He stopped there and discovered his brother and girlfriend engaging in sexual activities. He broke down the door, entered the house and stabbed his girlfriend at least five times, one of which severed her carotid artery, causing her death.
The MM took the view (per Roelofse AJ) that it was not the death that had to be premeditated or planned, but rather the aim of the criminal act. The judge illustrated the principle as follows: If A had premeditated an assault on B, and carried out the assault, while foreseeing that the assault might cause B’s death, B’s murder was premeditated despite that the original plan was only an assault. Applying the principle to the facts, the accused was guilty of murder as contemplated by s 51(1).
Apart from the cases discussed above, the material under review also contained criminal cases dealing with –
Does the path to review for an organ of state wishing to review the decision of another organ of state fall under PAJA, or the principle of legality? Mapholisa NO v Phetoe NO and Others 2023 (3) SA 149 (SCA) was an application against an order of the GP dismissing an application to review a decision of the Professional Conduct Committee (the PCC) of the Health Professions Council of South Africa (the HPCSA). After the GP refused leave to appeal, Mr Mapholisa, a pro forma complainant appointed by the HPCSA, petitioned the SCA. The SCA referred his application for oral argument and directed that the parties should prepare to argue the merits if called on to do so.
The facts were that a doctor, Dr Miller, had treated a patient, and a third party had complained to the HPCSA that Dr Miller had conducted himself unprofessionally. The Council conveyed the complaint to one of its constituent boards, the Medical and Dental Professions Board, which appointed a Committee of Preliminary Inquiry to investigate the allegations. The Committee’s finding (and resultant resolution) was that Dr Miller was guilty. The Registrar of the HPCSA then appointed Mr Mapholisa as a pro forma complainant. Mr Mapholisa prepared charges and conveyed these to Dr Miller, who declined an admission of guilt fine.
Thereafter, the inquiry proceeded before the PCC. Dr Miller raised a preliminary point that the third party who had lodged the complaint lacked locus standi because he was not his patient and was, therefore, unable to give evidence as to what had transpired. This PCC upheld the point.
Mr Mapholisa then brought proceedings in the GP to review the PCC’s decision. Dr Miller met them with a point in limine that the Promotion of Administrative Justice Act 3 of 2000 (PAJA) required Mr Mapholisa, as the pro forma complainant, to first exhaust his right of appeal to an appeal committee of the PCC before approaching a court.
The GP upheld the point and dismissed the application. It also found that the PCC had been correct in finding that Mr Mapholisa lacked standing. The GP refused leave to appeal, and on Mr Mapholisa’s petition, the SCA referred the dispute to oral argument.
The issue before the SCA was whether Mr Mapholisa ought to have exhausted its internal remedy as PAJA required. This raised the further issue of whether PAJA applied, which narrowed down to whether PAJA applied where one organ of state reviewed the decision of another organ of state as in this case.
The SCA (per Mali AJA in a unanimous judgment), adopting the reasoning in State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd 2018 (2) SA 23 (CC), ruled that it did not. (In Gijima the CC held that PAJA availed only private persons because it gave effect to the constitutional right to just administrative action, which was enjoyed only by private persons).
Consequently, the principle of legality enabled the review, and the common law, not PAJA, regulated the procedure. Under the common law there was no duty to exhaust internal remedies.
This raised the question whether the Health Professions Act 56 of 1974 or the regulations governing misconduct inquiries created such an obligation. The SCA ruled that they did not, with the result that there had been no obligation on Mr Mapholisa to approach the appeal committee before proceeding in the GP. Accordingly, the GP had erred in finding such a duty and in dismissing the review on that basis.
As to the merits, the question was whether the PCC (and the GP) had been correct in their findings that the third party who had lodged the complaint with the HPCSA had lacked standing to do so. This turned on the breadth of the term ‘complainant’ in the regulations, and whether it accommodated a person in the third party’s position. The SCA ruled that it did because the term was very broadly defined and reading it broadly would allow the PCC to attain its objective of exercising its powers in the public’s best interests. Such wide reading would also best promote the protection of the public.
The SCA accordingly granted leave to appeal and granted and upheld the appeal, setting aside the GP’s order and replacing it with an order that the PCC’s decision on the absence of locus standi be set aside and substituted with an order dismissing the doctor’s preliminary point that the third-party complainant lacked standing.
Application of the ‘foreign act of state doctrine’ and principle of state immunity by a South African court: In East Asian Consortium BV v MTN Group Ltd And Others 2023 (3) SA 77 (GJ), the GJ (per Wepener J) had to consider a number of issues separated in terms of r 33(4) of the Uniform Rules of Court from an action that the plaintiff, East Asian Consortium BV (EAC) – a company incorporated in the Netherlands – had instituted against the MTN Group Ltd (the first defendant) and associated entities (second to fourth defendants). In the particulars of claim to that action, EAC claimed that after responding to an international tender invitation issued by the Iranian government, it was granted a private licence for the purposes of implementing and operating a GSM-type cellular phone system public network in Iran. EAC claimed that MTN, through the bribery of Iranian officials, persuaded Iran to break its agreement with EAC and replace it with MTN. EAC claimed delictual damages flowing from MTN’s wrongful interference in its contractual rights, alternatively competition with EAC for those rights. Various preliminary issues relating to jurisdiction had to be decided first, including the question of the choice of law applicable in determining whether a claim for damages flowed from the particulars of claim and whether MTN should succeed in special pleas claiming lack of jurisdiction because –
The GJ held that the choice of law should be guided by the lex loci delicti commissi principle, which stated that the applicable law is that of the place where the delict was committed. This would point to Iran since the pleaded facts suggested that that was where the delictual conduct took place.
On the question of jurisdiction, the GJ proceeded and agreed with MTN that the reference in the tender documents to ‘any dispute relative to these present regulations or the call for competitive bids to which they relate’ – in respect of which it was provided that Iranian courts had exclusive jurisdiction – encompassed the present litigation.
The GJ confirmed the endorsement by South African courts of the foreign act of state doctrine, which demanded that courts should decline to exercise jurisdiction over acts done by foreign states ‘in the exercise of sovereign authority’. The GJ held that since it was being asked to sit in judgment of the implementation of Iranian government policy, it would decline to exercise jurisdiction.
The GJ further held that Iran in any event had immunity from the court’s jurisdiction by virtue of s 2 of the Foreign States Immunities Act 87 of 1981. The GJ accordingly upheld the special pleas raised by MTN.
The right of ESTA occupiers to graze cattle: In the matter of Moladora Trust v Mereki and Others 2023 (3) SA 209 (LCC) the applicant, the Moladora Trust, approached the LCC for an order against the first to third respondents, who occupied, in terms of the Extension of Security of Tenure Act 62 of 1997 (ESTA), part of the Trust’s farm situated in Dr Kenneth Kaunda district, North West Province, to remove all the grazing animals (presently nine cattle) under their control. The respondents, Magalone Mereki, Topies Mereki and Dikhotso Mereki, were the children of a former employee of the Trust, Mrs Meriam Mereki, who died, according to the applicant, sometime ‘before 2017’. The applicant acknowledged that Mrs Mereki had permission to graze cattle. It insisted, however, that the respondents (who had continued living on the farm since their mother’s death) did not and that their right of occupation was for residential or housing purposes only. The applicant alleged that the trustee, Mr Marius Nel, had sought to engage the respondents on the absence of consent, but was met by verbal abuse. The applicant served formal notice on the respondents in January 2018, calling on them to remove their cattle within one month, to no avail. In October 2020, it served similar notices, once again with no response. That prompted the present application to the LCC (heard before Cowen J).
A key question for consideration by the LCC was whether the security of tenure protected by s 25(6) of the Constitution and ESTA included rights of ESTA occupiers to graze cattle. The LCC held that it did not. An ESTA occupier derived any right to graze cattle on the land they occupied by consent, and not as an adjunct to any occupational rights conferred by s 6(2) of ESTA. However, the LCC added, once consent to graze cattle was obtained, that right formed part of an ESTA occupier’s right of tenure protected by s 25(6) of the Constitution and ESTA and was subject to the various protections provided by the latter, including those set out in ss 8 and 9, which imposed particular requirements for the termination of rights of residence, as well as eviction.
The LCC went on to hold on the facts that the respondents had tacit consent to graze cattle. This was because of the failure of the applicant to contest the respondents’ right to keep and graze cattle for more than a year after the respondents’ mother’s death and the significant delays that followed their response in January 2018 to send a formal notice. The LCC accordingly dismissed the application.
Undefended claims: Default judgment for order that future medical and hospital expenses be paid by s 17(4)(1)(a) undertaking: In K obo M and Another v Road Accident Fund 2023 (3) SA 125 (GP), a full Bench of the GP answered two questions referred to it by way of a directive issued under s 14(1)(a) of the Superior Courts Act 10 of 2013 by the Acting Judge President of that division, both arising from the RAF’s failure to defend or participate in the finalisation of actions against it.
The first question was whether it was competent for a court granting default judgment to order that a plaintiff’s claim for future medical and hospital expenses be compensated by the RAF by way of an undertaking issued in terms of s 17(4)(1)(a) of the Road Accident Fund Act 56 of 1996 (the Act) in the absence of a tender to that effect by the RAF. Section 17(4)(1) entitles the RAF to furnish an undertaking – as opposed to a once-off payment – to compensate a third party for costs of future medical expenses after the costs have been incurred and on proof thereof. Relevant to this question was that, in response to the directive, the RAF’s chief executive officer stated on affidavit that the RAF had, since the issuance of the directive, made a ‘blanket election’ to furnish undertakings in all matters where plaintiffs claimed future medical expenses under s 17(4)(a).
The GP held that the right to furnish the undertaking was specifically given to the Fund. A court had no jurisdiction to direct the Fund to furnish an undertaking where the Fund had made no such election. However, as result of the RAF’s blanket election, once a plaintiff proved its claim as contemplated in s 17(4)(a), it was entitled to claim an order catering for a direction to the Fund to furnish such an undertaking, and a court was entitled to grant such an order. This applied also where orders by default were sought.
Apart from the cases discussed above, the material under review also contained criminal 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 2023 (July) DR 22.
