April [2020] All South African Law Reports (pp 1 – 352)This column discusses judgments as and when they are published in the South African Law Reports, the All South African Law Reports and the South African Criminal 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.
ECG: Eastern Cape Division, Grahamstown
ECM: Eastern Cape Local Division, Mthatha
GJ: Gauteng Local Division, Johannesburg
KZP: KwaZulu-Natal Division, Pietermaritzburg
SCA: Supreme Court of Appeal
WCC: Western Cape Division, Cape Town
Termination on notice: In Old Mutual Limited and Others v Moyo and Another [2020] 2 All SA 261 (GJ), the first appellant (Old Mutual) terminated the contract of employment of its Chief Executive Officer (CEO), the first respondent (Moyo). The court a quo granted an interim interdict reinstating Moyo. It found him to have established the existence of a prima facie right to reinstatement, which, if not protected by the interim interdict, would cause him to suffer irreparable prejudice. It found that Old Mutual had repudiated the contract of employment by terminating it in terms of clause 24.1.1 of the employment contract, and in not following the disciplinary inquiry procedure contemplated in clause 25.1.1 in circumstances where it had accused Moyo of having had a conflict of interest and of having committed gross misconduct.
The position and scope of Moyo’s duties required him to faithfully and diligently perform such duties and exercise such powers consistent with his position. At the time of Moyo’s appointment as the CEO of Old Mutual, he was a shareholder and director of an investment holding company (NMT), in which Old Mutual was a 20% shareholder. Because of Moyo’s interest in NMT and that of Old Mutual, they concluded protocols, which set out the way in which any potential conflict of interest that might arise would be dealt with. The appellants were of the view that Moyo had not conducted himself in line with the terms of the protocols and that he had not acted in Old Mutual’s best interests in his involvement as a non-executive director of NMT, which was the cause of the termination of the employment relationship.
Despite Moyo’s express disavowal of any reliance on his rights under the Labour Relations Act 66 of 1995, the court, per Meyer J (Matojane and Keightley JJ concurring), viewed the interdict application through a labour law prism. There is no self-standing common-law right to fairness in employment contracts. The contract simply provided for termination by either party on six months’ notice. Old Mutual’s written notification of termination on six months’ notice did not require any justification. The court a quo’s conclusion that Moyo had established that Old Mutual repudiated the contract when terminating it by providing him with six months’ written notice to that effect was wrong. Since Moyo had failed to establish the first requisite for an interim interdict, viz a prima facie right to reinstatement that requires protection pending the finalisation of the action in which he claimed reinstatement as a contractual remedy, the court a quo should not have granted the interim interdict reinstating him in the position as CEO of Old Mutual.
Although it is generally considered not in the interests of justice to permit an appeal against an interim interdict since it will defeat the interim nature of the order, it is now settled that there are limited circumstances where the interests of justice dictate that an interim interdict be appealable. The present matter was one of those exceptional cases where the interests of justice demanded that the interim interdict be appealable. The appeal was upheld with costs.
Universal partnerships: Arising from their cohabitation as a couple, the plaintiff sought an order declaring that she and the defendant concluded an agreement of partnership (societas omnium bonorum), on equal shares, in Allner v Werner [2020] 2 All SA 49 (ECG). She also sued for the dissolution of the partnership and for its liquidation. She alleged that the universal partnership emanated from the parties’ cohabitation and conduct, thus relying on the existence of a tacit agreement, while the defendant asserted that their relationship was merely one of cohabitation as lovers.
According to the plaintiff, the parties had commenced their cohabitation during 1996 when they, either tacitly or by implication, entered into a universal partnership in equal shares. They conducted a farming business in respect of which they took joint decisions and contributed equally through their labour and business skills. The plaintiff alleged further that she had effectively acted as the defendant’s wife and companion and had sacrificed her own career prospects in order to support the defendant.
In South African law, cohabitation does not have special legal consequences. Generally, the proprietary consequences and rights flowing from a marriage are not available to unmarried couples, regardless of the length of their cohabitation. However, if a cohabitee can establish that the parties were not only living together as husband and wife but that they were partners, they can invoke that remedy. The party seeking to invoke this private law remedy must prove that each of the parties brought something into the partnership, or bound themselves to bring something into it, whether it be money or labour skills; the business had been carried on for the joint benefit of both parties; the object was to make a profit; and the partnership contract was legitimate. A universal partnership does not require express agreement but, like any other contract, can come into existence by way of tacit agreement. The contributions by the parties do not necessarily have to be confined to the profit-making entity.
The court, per Smith J, held that South African law recognises two types of universal partnerships, namely –
In order to establish the existence of a tacit contract the plaintiff must establish that –
A court will find the existence of a tacit contract where by a process of inference it concludes that the most plausible conclusion from all the relevant proved facts and circumstances is that a contract came into existence.
Based on the evidence, the court found that a universal partnership existed between the plaintiff and the defendant of all assets acquired by them up to June 2018. The plaintiff was shown to have a 30% share in such partnership. It was declared that the partnership was dissolved with effect from June 2018.
Urgency: In Marcé Projects (Pty) Ltd and Another v City of Johannesburg Metropolitan Municipality and Another [2020] 2 All SA 157 (GJ), Marcé brought an urgent application for an interim interdict, preventing the first and second respondents from implementing the contract entered into between them for the supply of fire engines and water trucks pursuant to the award of a tender by the first respondent (the city). The respondents took issue with the urgency of the application, and opposed the application on the merits.
Marcé alleged that the awarding of a tender was unlawful, unreasonable, procedurally unfair and inconsistent with the Constitution because the city had failed to follow proper procurement procedures and to adhere to relevant specifications.
The central issue was whether Marcé, as an unsuccessful tenderer, had the right to interdict the further implementation of the tender and whether such an interdict, if granted, would encroach on the city’s executive functions to the prejudice of the second respondent (TFM).
The court, per Modiba J, confirmed the locus standi of Marcé, as a bidder, to challenge the award of the tender to TFM.
Regarding the issue of urgency, r 6(12) of the Uniform Rules of Court (the Rules) provides for the abridgment of the times for the service and filing of process and documents prescribed by the Rules. The test for urgency is whether the applicant brought the application with the requisite degree of urgency; and whether, not hearing the application on the basis of urgency will deny the applicant substantial redress in due course. On the common cause facts, Marcé did not bring the application promptly after it learnt that the city had awarded the tender to TFM. The court found that the city had dragged its feet in providing information sought by Marcé, and Marcé’s delay in bringing the application was justified.
For an interim interdict to be successful, it must establish –
An interim interdict restraining the exercise of statutory powers is not an ordinary interdict. Courts grant it only in exceptional cases and when a strong case for that relief has been made. In this case, the requirements were met. The order granted was, therefore, confirmed.
Offensive odours: The appellants in Jacobs NO and Others v Hylton Grange (Pty) Ltd and Others [2020] 2 All SA 89 (WCC) were the trustees of a trust, which owned a farm (MD93). The first and third respondents were companies, which owned or leased grape farms bordering on MD93. The second and fourth respondents were individuals associated with the first and third respondents and resided on the grape farms. They were ordered by the court a quo, to cease all composting activities on MD93. The composting activities mentioned in the order were carried out by the trust as part of commercial mushroom farming. The compost (or substrate) was the material in which the mushrooms grew. It was not in dispute that the making of mushroom substrate can emit gases with offensive odours, particularly ammonia and hydrogen sulphide.
It was held that the case was about alleged unlawful nuisance in the form of offensive odours. Although the term ‘nuisance’ continues to be used in this country under the influence of English law, the question is whether the conduct of the person causing the alleged nuisance is, in the delictual sense, wrongful in relation to the party complaining of the nuisance. Since the applicants sought an interdict, and not damages, the question of fault was not relevant.
In a case of nuisance, the neighbour complains that his right to enjoy the undisturbed use of his property with reasonable comfort and convenience is impaired. Because the offending conduct does not cause physical damage to body or property, wrongfulness is not presumed. Wrongfulness must be determined regarding the particular circumstances of the case. The question is whether the harm-causing conduct, assessed in accordance with public policy and the legal convictions of the community, constitutionally understood, is or is not acceptable; in short, whether it is objectively reasonable to impose liability.
The court, per Rogers J (Allie and Cloete JJ concurring), held that balancing the right to an environment that is not harmful to health or well-being against the right to choose a trade, occupation or profession freely, and found that on the evidence it ought to be possible, by taking reasonable steps, for the trust to abate the nuisance. The appeal was, therefore, dismissed.
Interdict by neighbour: In Kruger and Another v Rayner and Others [2020] 2 All SA 138 (KZP) the first applicant lived on a farm, and was the sole member of the second applicant, which owned the farm. The first and second respondents (the Rayners) owned an adjoining farm (the third respondent). The fourth respondent was the municipality within which the farm was located. The Rayners operated a school on their farm but were not authorised to do so under the South African Schools Act 84 of 1996.
The applicants sought to interdict the Rayners from operating the school on their farm until the municipality granted the required permission in terms of the Spatial Planning and Land Use Management Act 16 of 2013 and the KwaZulu-Natal Planning and Development Act 6 of 2008 – and a certificate of occupation in terms of the National Building Regulations and Building Standards Act 103 of 1977.
The land was zoned primarily for agricultural purposes and the applicants contended that the increased traffic caused by the school impeded access to their property. They contended that their clear right to apply for an interdict was based on the unlawful operation of the school.
The court, per Chetty J, held that the building and structures constituting the school had not been approved for such use by the municipality. However, neither the applicants’ nor the Rayners’ property fell within any town planning scheme. The applicants had to prove that a violation by the Rayners had caused or would cause damage. They relied on the Rayners’ failure to adhere to the by-laws and to obtain a certificate of occupation. The applicants had to show that the alleged contravention of the by-laws would impact their interests. The high-water mark of their case was that the school disturbed the sense of peace in their agricultural environment. The first to third respondents were ordered to apply for approval of the use of the relevant buildings as a school, and for permission by the provincial Department of Education, to operate an independent school.
Application in dispute over town name change: In terms of s 10 of the South African Geographical Names Council Act 118 of 1998 (the Act), the first respondent decided to approve the change of name of the town of Grahamstown to ‘Makhanda’. The present application was for the review of that decision.
In Ndumo v Minister of Arts and Culture NO and Others [2020] 2 All SA 225 (ECG) it was held that the court, in considering the review application, was not required to comment on the appropriateness or merits of the name change issue. The sole inquiry was whether irrelevant considerations were taken into account or relevant considerations not considered in the impugned decision. In the alternative, the court had to address a rationality challenge.
As distinct from an appeal, a review is generally about illegality, procedural irregularity or irrationality, which is such as to justify intervention by the court. Where the Promotion of Administrative Justice Act 3 of 2000 is applicable, it forms the foundation of such administrative review.
At the heart of the application for review was whether, in the statutorily prescribed process, adequate consultation with communities and stakeholders took place. The crucial inquiry was thus whether the second respondent (the Names Council) had correctly informed the minister that a proper consultation process had been followed.
The court, per Lowe J, held that the Act sets out the process to be followed in the change of geographical names. The Act requires the minister to issue regulations as to the criteria to be followed when deciding whether or not a geographical name should be regarded as a national, provincial or local competence. In terms of those regulations, the change of geographical names of towns are geographical names of ‘national concern’ (national competence) and not of local concern. Section 9(1) of the Act refers to the guidelines, which require that the Names Council ensures that proper consultation has taken place.
The general rule that the words in a statute must be given their ordinary grammatical meaning, unless to do so would result in an absurdity, is subject to three important interrelated riders, namely –
On a purposive interpretation of the Act, standardisation and transformation are key factors in effecting name changes.
Accepting that the Act clearly envisages and provides for a consultative process as to name changes, the court found that such process did in fact occur. There was, therefore, no material misstatement of fact in the recommendation to the minister in that regard. Further grounds of review raised by the applicant were all found to lack merit and were also dismissed. The review application was dismissed, and each party was ordered to pay its own costs.
Delays in legality review: A post advertised by the applicant municipality was filled by the appointment of the first respondent. The advertisement had specified the minimum requirements for the position. Alleging that the first respondent failed to meet the minimum experience requirement, the applicant sought to review and set aside its own decision to appoint her to the post. The appointment was said to be null and void and in contravention of s 56 of the Local Government: Municipal Systems Act 32 of 2000.
In Sakhisizwe Local Municipality v Tshefu and Others [2020] 2 All SA 299 (ECG) the parties were in dispute about the extent of the first respondent’s experience at middle management level. It is generally undesirable to decide an application on affidavit where the material facts are in dispute. In such a case it is preferable that oral evidence be led to enable the court to see and hear the witnesses before coming to a conclusion. On the other hand, it is equally undesirable for a court to take all disputes of fact at their face value. If this were done a respondent might be able to raise fictitious issues of fact and thus delay the hearing of the matter to the prejudice of the applicant. Whether a factual dispute exists is not a discretionary matter, but a question of fact and a jurisdictional prerequisite for the exercise of the court’s discretion. The court, per Lowe J, found no genuine dispute of fact in this case.
It was common cause that this was a legality review and not one subject to the Promotion of Administrative Justice Act 3 of 2000. A critical issue was that of delay in bringing the review application. Legality reviews must be brought within a reasonable time. The court is required to determine –
The delay inquiry is a factual one calling for a value judgment. A condonation inquiry requires the exercise of a judicial discretion considering all relevant circumstances.
The applicant correctly conceded that the delay in this matter, viewed factually, was unreasonable. The court found no basis on which to condone the delay. The application was dismissed.
Request for bids – requirement for compliance with s 217 of the Constitution: The Airports Company (ACSA) published a Request for Bids (RFB) calling for bids for the hiring of car rental kiosks and parking bays at airports operated by it. The RFB indicated that each successful applicant would be granted car rental concessions for ten years. The first respondent (Imperial), a car rental company, submitted a bid in response to the RFB.
After ACSA published a document addressing bidders’ queries, Imperial contended that the pre-qualification criteria and several provisions of the RFB contravened s 217 of the Constitution and legislative prescripts relating to procurement. Imperial launched a two-pronged urgent application in the High Court. In Part A, it successfully sought the joinder of all entities having an interest in the matter as co-respondents in the application. In Part B, Imperial sought an order reviewing and setting aside ACSA’s decision to issue and publish the RFB on the basis that it was unlawful, unreasonable, inconsistent with the Constitution and invalid.
The High Court held that the RFB and the decision to publish it were unlawful, inconsistent with the Constitution and invalid. It reviewed and set aside the RFB and the decision to publish the RFB based on the principle of legality, alternatively in terms of ss 6(2)(a)(i), and/or 6(2)(b), and/or 6(2)(e)(i), and/or 6(2)(f)(i), and/or 6(2)(i) of the Promotion of Administrative Justice Act 3 of 2000.
On appeal in Airports Company South Africa SOC Ltd v Imperial Group Ltd and Others [2020] 2 All SA 1 (SCA) the main issues were the interpretation and applicability of s 217 of the Constitution together with the relevant statutes falling under its legislative scheme; and, the rationality of several provisions of the RFB (impugned provisions), as well as the process leading to the decision to publish the RFB culminating in its publication. Two ancillary issues were whether the terms of the RFB were vague and whether ACSA committed an error of law that impacted negatively on the RFB.
The SCA held that the disqualification of Imperial at the first hurdle of the evaluation process would have an external effect and adversely affected Imperial’s rights. It was not reasonable to expect Imperial to wait for the outcome of the entire process before launching a challenge. The RFB constituted an administrative action that was ripe for a judicial challenge.
Section 217 of the Constitution provides that when an organ of state in the national, provincial or local sphere of government, or any other institution identified in national legislation, contracts for goods or services, it must do so in accordance with the system, which is fair, equitable, transparent, competitive and cost-effective. The RFB was subject to s 217.
The principle of legality dictates that there must be a rational connection between the decision taken and the purpose for which the decision was taken. ACSA’s preferential procurement policy as reflected in its RFB bore no relation to the requirements of s 217 of the Constitution or the Broad-Based Black Economic Empowerment Act 53 of 2003 and the Preferential Procurement Policy Framework Act 5 of 2000. The appeal was dismissed.
Incumbency of kingship of traditional community: The case of King Phahlo Royal Family and Another v Molosi and Others [2020] 2 All SA 111 (ECM) concerned the incumbency of the kingship of AmaMpondomise. An earlier court decision, in the case of Matiwane v President of the Republic of South Africa and Others [2019] 3 All SA 209 (ECM), saw the kingship of AmaMpondomise restored, but the question of incumbency remained unresolved.
In the present application, the applicants sought a declaration that the resolution dated 31 May 2019, issued by the third respondent in terms of which it identified the second respondent as the King or Queen of AmaMpondomise was unlawful and void ab initio, and accordingly fell to be set aside. A further declaration was sought that the third respondent was not a royal family entitled and responsible for the identification of any person and making recommendations to the fourth respondent in terms of s 9 of the Traditional Leadership and Governance Framework Act 41 of 2003 to assume kingship or queenship of AmaMpondomise. In addition, an interdict was sought preventing the first to third respondents from identifying a person to assume kingship or queenship and making recommendations to the fourth respondent in terms of s 9 of the Act. Finally, an order was sought directing the fourth respondent to recognise the second applicant as King of AmaMpondomise.
The respondents’ basis for opposing the application was that the second respondent was the descendant of Dosini who was the heir of King Ngcwina.
The court, per Jolwana J, held that the second applicant was properly identified by the first applicant to the extent that he came from the Cira lineage and was a direct descendant of Mhlontlo. What the respondents disputed was the entitlement to the throne of AmaMpondomise of not only the second applicant but also King Mhlontlo and all those who reigned before him up to King Cira, the first king in the Cira lineage. That challenge or allegation of non-compliance with the customary law prescripts was premised in the disinheritance of Dosini by his father King Ngcwina. It was the compliance of King Ngcwina with customary law and custom in disinheriting Dosini and handing over the kingship to the minor house of Cira in or around 1300 that was in dispute.
Invalid administrative action may not simply be ignored but may be valid and effectual and may continue to have legal consequences, until set aside by proper process. That is known as the Oudekraal principle. The recognition of the second applicant could not affect the respondents in taking whatever steps necessary to prosecute their claim for the throne of AmaMpondomise in future. The application was granted.
Apart from the cases and material dealt with or referred to 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 2020 (June) DR 25.
