The Law Reports – June 2021

June 1st, 2021
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April [2021] 2 All South African Law Reports (pp 1 – 322); April 2021 (4) Butterworths Constitutional Law Reports (pp 349 – 448)

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.

Abbreviations

CC: Constitutional Court

ECP: Eastern Cape Local Division, Port Elizabeth

GP: Gauteng Division, Pretoria

SCA: Supreme Court of Appeal

WCC: Western Cape Division, Cape Town

Civil procedure

Abuse of court processes: Two mining companies, involved in the exploration and development of major mineral sands projects in South Africa, sued three environmental attorneys and three community activists for defamation and damages in the sum of R 14,25 million, alternatively the publication of apologies. The plaintiffs alleged that each of the defendants had made defamatory statements relating to the plaintiffs’ mining operations. The defendants raised two substantially identical special pleas in each of the three separate actions, and in response, the mining companies raised exceptions to the special pleas. The court held at the outset that the second special plea was not sustainable and, therefore, it was necessary to determine only the exception to the first set of special pleas.

In the first special plea, the defendants in Mineral Sands Resources (Pty) Ltd v Reddell [2021] 2 All SA 183 (WCC) averred that in bringing their actions, the plaintiffs’ conduct amounted to –

  • an abuse of process;
  • the use of court process to achieve an improper end and to use litigation to cause the defendants’ financial or other prejudice in order to silence them; and/or
  • violated the constitutional right to freedom of expression.

The special pleas thus introduced a novel Strategic Litigation Against Public Participation (SLAPP) defence.

Common law affords the courts the inherent power to stop frivolous and vexatious proceedings when they amount to an abuse of its processes. South African courts have repeatedly referred to the purpose of litigation as being relevant to the question of abuse of process. Litigation, which is brought for an ulterior purpose is impermissible.

The court, per Goliath DJP, held s 16 of the Constitution protects the concept of freedom of expression. An order preventing a person from making allegedly defamatory statements is a drastic interference with that right, and is granted only in extremely circumscribed circumstances, and only after considering the prejudice to the public.

SLAPPs are strategic lawsuits or litigation against public participation, meritless or exaggerated lawsuits intended to intimidate civil society advocates, human rights defenders, journalists, academics and individuals, as well as organisations acting in the public interest. SLAPPs are designed to turn the justice system into a weapon to intimidate people who are exercising their constitutional rights, restrain public interest in activism; and convert matters of public interest into technical private law disputes. Distinguishing a SLAPP suit from a conventional civil lawsuit involves competing policy considerations in determining which activities should be protected from legal action.

It became evident that the plaintiffs’ strategy was that the more vocal the opponent was, the higher the damages amount claimed. Public participation is key in environmental activism, and the effect of SLAPP can be detrimental to the enforcement of environmental rights. The court was satisfied that the defamation suit was not bona fide, but merely a pretext with its only purpose to silence its opponents. It was confirmed as a SLAPP suit, and the first set of special pleas was a valid defence to the action. The first set of exceptions was dismissed with costs.

 

Appealability of interim orders: In June 2018, the appellants in United Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd and Others [2021] 2 All SA 90 (SCA) sent the President of South Africa a letter in which it was alleged that the respondents had conducted themselves unlawfully in various ways in relation to the Public Investment Corporation. The letter was also published on the website of the first appellant, the United Democratic Movement (the UDM).

Pending an action for damages for alleged defamation, the respondents sought interim relief in the High Court. The court granted an interim interdict against the appellants forbidding the repetition of certain remarks they had made publicly about the respondents. Leave to appeal was granted but when the appeal was heard, the matter was struck off the roll on the ground that the interim order was not appealable.

In the majority judgment, the crux of the dispute was whether the order was final in effect and was, therefore, appealable, or, if its true nature was in fact interim, whether the interests of justice warranted an appeal against it to be entertained.

An application for leave to appeal is regulated by s 17(1) of the Superior Courts Act 10 of 2013. In terms thereof, leave to appeal may only be given where the judge is of the opinion that –

  • the appeal would have a reasonable prospect of success;
  • there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;
  • the decision sought on appeal does not fall within the ambit of s 16(2)(a); and
  • where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.

Case law shows that the general principles on the appealability of interim orders have been adapted to accord with the equitable and more context-sensitive standard of the interests of justice favoured by the South African Constitution.

In the High Court, the question to be decided was simply whether, prima facie, the appellants’ published remarks were defamatory and whether an interim interdict inhibiting the repetition of those remarks pending a trial was appropriate. The order then granted could not plausibly be interpreted as having final effect. The court confirmed that the order was interim in effect as well as in form, and that the interests of justice did not require that an appeal be entertained.

In two dissenting judgments as per Molemela JA and Makgoka JA, it was pointed out firstly that there is no absolute bar against subjecting interim orders to an appeal. An interim order may be appealed if the interests of justice, based on the specific facts of a particular case, so dictate. The dissenting opinions found that the High Court was aware of the fact that interim interdicts are not ordinarily appealable but exercised its discretion to grant the appellants leave to appeal on the basis that the interests of justice warranted that its interim order be the subject of an appeal. The dissenting opinions agreed that such decision was correct.

Corporate and commercial

Restraint of trade: In 2019, the first respondent (Kuhn), who had been previously employed by the applicant (Value Logistics), again assumed employment with the company. Kuhn’s contract of employment in Value Logistics Limited v Kuhn and Another [2021] 2 All SA 298 (ECP) contained a restraint of trade and a confidentiality policy. However, in 2020, he resigned from his employment with Value Logistics and took up employment with Jungheinrich. On the day he handed in his letter of resignation, his manager brought to his attention the restraint and confidentiality policy. When Kuhn went ahead and assumed employment with Jungheinrich, Value Logistics brought the present application to enforce the restraint of trade agreement and confidentiality undertaking. It also sought to enforce a non-solicitation undertaking given by Jungheinrich to Value Logistics in a contract (the FML Agreement) between them.

Value Logistics stated that Jungheinrich was its competitor, and a customer until the FML Agreement was terminated. It discovered that Kuhn had e-mailed a service manual to himself before leaving employment, leading to the suspicion that he intended to use it to Jungheinrich’s benefit. According to Value Logistics, the pool of customers in Port Elizabeth was limited and due to the close customer connection, which Kuhn had established, and extensive confidential information which he was privy to during the eight years he was employed by Value Logistics, he was in a position to solicit business away from the company in favour of Jungheinrich.

It was not in dispute that Jungheinrich was a competitor of Value Logistics, and that Kuhn’s employment in each company had overlapping elements. Having regard to Kuhn’s own version of his employment with Value Logistics, the court found that he had breached the restraint. It referred to case authority, which established that the party wishing to enforce a restraint needs no more than to invoke the provisions of the contract and prove the breach. The party seeking to avoid enforcement must then prove on a preponderance of probability that in all the circumstances of the particular case it will be unreasonable to enforce the restraint.

The court, as per Mullins AJ, found that Value Logistics had made a case for the relief sought.

The next question was whether the duration and geographical extent of the restraint were reasonable. It had to be considered whether the restraint was wider than necessary to protect the protectable interest. In this case, the restraint was unreasonable in respect of both time and extent. The duration was reduced from two years to 12 months, and the geographic restriction was adjusted.

As against Jungheinrich, the court pointed out that at common law, it is not unlawful to solicit the services of another business’s employee. In any event, there was no suggestion on the papers that Jungheinrich’s motives in offering Kuhn a job was anything but legitimate. Moreover, the FML Agreement was a temporary arrangement intended to be of relatively short duration. To prohibit all Value Logistic’s employees for a period of two years after the termination of the FML Agreement from taking up employment with Jungheinrich was indefensible and the clause was unenforceable.

Education – administrative law

Breach of university disciplinary code by student: Having been involved in the conceptualisation and production of racially divisive posters, which were subsequently erected on the campus of the fourth respondent university, the applicant in Dart v Chairperson of the DAC of Stellenbosch University and Others [2021] 2 All SA 141 (WCC) was charged with breaches of the university’s Disciplinary Code. The university’s Central Disciplinary Committee (CDC) found him guilty of contravening two rules of the Disciplinary Code and imposed a sanction of 100 hours of community service and completion of a restorative assignment.

The applicant appealed the CDC’s decision to the Disciplinary Appeal Committee (DAC), which dismissed the appeal, and increased the sanction imposed by the CDC to one of immediate expulsion from the university.

In terms of the provisions of the Promotion of Administrative Justice Act 3 of 2000, the applicant sought to review the DAC’s decisions.

It was held that in applications for review, the question is not whether a court agrees with the decision made by the decision maker, but whether it was one that the decision maker could reach.

The applicant’s grounds for review included –

  • allegations of bias;
  • failure by the DAC to comply with the provisions of the Disciplinary Code; and
  • taking into account irrelevant considerations while ignoring relevant considerations.

The arguments made in support of the allegations of bias were held to be unfounded.

The challenge based on contentions that the DAC failed to take relevant considerations into account and took irrelevant considerations into account was also unfounded, and failed.

The final ground of review was that the decision of the DAC to dismiss the appeal in the first instance was not rationally connected to the information before it, and the decision was so unreasonable that no reasonable decision maker could have so exercised the function of deciding the appeal. The court was not influenced by the contentions made in that regard.

The applicant raised two specific grounds of review in respect of the increase of sanction, viz that the decision of the DAC to increase the sanction was not rationally connected to the information before it, and that the decision was so unreasonable that no reasonable decision maker could have so exercised the function of deciding the appeal. The fact that the DAC did not give the applicant notice of the possibility of the increase in sanction could not be relied on by the applicant as he had not raised it in the founding papers. The same applied with regard to the alleged disparity between the sanctions imposed on the applicant and two fellow students.

The application was dismissed.

Legal practice

Application for readmission as advocate: Mr Nthai, the applicant in Johannesburg Society of Advocates and Another v Nthai and Others [2021] 2 All SA 37 (SCA) was an advocate appointed to act as lead counsel on behalf of the South African government before the International Arbitration Tribunal in a dispute with Italian nationals on a mining-related issue. Before the arbitration hearing could commence, the claimants expressed a willingness to withdraw the claim, but the issue of costs stood in the way. During meetings with the Chief Executive Officer of one of the claimant companies, Mr Nthai attempted to solicit a bribe of R 5 million, in return for which he undertook to ensure that the South African government would agree to settle the dispute on the basis that each party would pay its own costs, thus potentially saving the claimants millions, at the expense of his client, the government. When that came to light, a complaint was lodged with the Pretoria Society of Advocates in which Mr Nthai was a member. At the end of disciplinary proceedings, Mr Nthai’s name was struck from the roll of advocates.

In October 2018, Mr Nthai applied ex parte to the Limpopo Division of the High Court, Polokwane, to be readmitted as an advocate. His application was successful and the appellants obtained leave to appeal.

The court explained the nature of such proceedings; the onus to be discharged by an applicant seeking readmission; and the role of professional bodies in an application of this kind.

In the readmission application, the court had to be satisfied that the applicant was a fit and proper person and that his readmission would involve no danger to the public or the good name of the profession.

Mr Nthai’s misconduct was not a casual or momentary lapse of judgment, but was carefully calculated and zealously pursued. He pursued personal enrichment at the expense of his client. He deliberately downplayed the full extent of the allegations and showed no true cognitive appreciation of their seriousness.

The High Court failed to appreciate the full import of the transgression. The appeal against its order was upheld with costs.

Mining, minerals and energy

Responsibilities of holder of mining rights: The applicant Ezulwini Mining Company (EMC) in Ezulwini Mining Company (Pty) Ltd v Minister of Mineral Resources and Energy and Others [2021] 2 All SA 160 (GP) had acquired the underground and surface operations of a gold and uranium mine in 2014. In September 2016, EMC ceased underground mining operations at the mine (Ezulwini) as the underground mine was no longer economically viable. Surface mining-related operations, including, gold metallurgical processing operations, were however ongoing at the mine. In order to undertake the underground mining operations at Ezulwini, EMC and its predecessors pumped groundwater from the underground workings, which resulted in the dewatering of the Gemsbokfontein West Dolomitic Compartment. In its founding affidavit, EMC stated that notwithstanding the cessation of underground operations at Ezulwini, EMC continued to pump and treat water from the underground workings at a cost of approximately R 21,1 million per month. It wished to cease the pumping of water from the defunct underground workings, and in 2017, it applied for two authorisations to cease the pumping. The authorisations having been refused, EMC brought the present application for a declaration that neither an environmental authorisation in terms of the National Environmental Management Act 107 of 1998 and the Environmental Impact Assessment Regulations, nor an amendment to the water use licence issued to EMC in terms of the National Water Act 36 of 1998, was required to cease the pumping of water from the defunct underground workings.

A counter-application was brought by the sixth respondent (Goldfields) for a declaration that EMC remained responsible for the pumping and treatment of extraneous water from the underground workings of the Ezulwini mine until at least the Minister issued a closure certificate in terms of s 43 of the Mineral and Petroleum Resources Development Act 28 of 2002 to EMC or such longer period as contemplated in s 24R of the National Environmental Management Act. Further relief sought was for EMC to maintain the shafts and pumping infrastructure required for the pumping and treatment of water from Ezulwini’s underground workings and to allow the fifth and sixth respondents access to the Ezulwini mine for purposes of inspection.

Fabricius J held that in respect of the latter two prayers mentioned above, Goldfields had not established that it had a clear or even prima facie right to the relief sought, nor had it demonstrated a reasonable apprehension of any harm should the relief not be granted. There was no basis for granting those orders.

Section 43(1) of the Mineral and Petroleum Resources Development Act provides that the holder of a mining right ‘remains responsible’ for the pumping and treatment of extraneous water until the Minister has issued a closure certificate in terms of the Act to the holder. In other words, where pumping was actually being conducted in order to mine, the holder of the mining right remains responsible for pumping and treatment of water until a closure certificate is issued, in order to maintain the status quo until such time as the cessation of pumping can be properly regulated. Goldfield’s application for declaratory relief as set out above was thus granted.

Privacy

Right not to have the privacy of one’s communications infringed: In the case of AmaBhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others (Media Monitoring Africa Trust and Others as amici curiae) and a related matter 2021 (4) BCLR 349 (CC), the applicants, AmaBhungane Centre for Investigative Journalism NPC and Mr Stephen Sole, a journalist who had been the subject of state surveillance, brought an application in the High Court challenging the constitutionality of the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (RICA) in several respects.

The CC, by a majority as per Madlanga J (Khampepe, Majiedt, Mhlantla, Theron, Tshiqi JJ, Mathopo and Victor AJJ concurring) confirmed the declaration of unconstitutionality made by the High Court but only to the extent that RICA failed to –

  • provide for safeguards to ensure that a judge designated in terms of s 1 is sufficiently independent,
  • provide for notifying the subject of surveillance of the fact of her or his surveillance as soon as notification can be given without jeopardising the purpose of surveillance after surveillance has been terminated,
  • adequately provide safeguards to address the fact that interception directions are sought and obtained ex parte;
  • adequately prescribe procedures to ensure that data obtained pursuant to the interception of communications is managed lawfully and not used or interfered with unlawfully, including prescribing procedures to be followed for examining, copying, sharing, sorting through, using, storing or destroying the data, and failed to provide adequate safeguards where the subject of surveillance is a practising lawyer or journalist.

The CC ordered that the declaration of unconstitutionality would take effect from the date of the court’s judgment and be suspended for 36 months to afford Parliament an opportunity to cure the defects causing the invalidity. It ordered that during the period of suspension RICA would be deemed to include additional sections (the wording of which was set out) numbered 23A and 25A dealing respectively with ‘disclosure that the person in respect of whom a direction, extension of a direction or entry warrant is sought is a journalist or practising lawyer’ and ‘post-surveillance notification’.

Second respondent, the Minister of State Security, sought to appeal against the High Court’s finding that the state’s practice of bulk interception of communications was not authorised by law. This appeal was dismissed with costs.

The fifth respondent, the Minister of Police, sought to appeal against the High Court’s finding on the issue of notification. The fifth respondent argued for the retention of the blanket non-availability of notification. He contended that the Constitution conferred no right to notification, neither pre- nor post-surveillance. This appeal was also dismissed with costs.

Applicants also appealed against the costs order made by the High Court. The High Court had held that there would be no order as to costs. Applicants’ appeal against this was upheld with costs. The High Court’s order in respect of costs was set aside. The Minister of Justice and Correctional Services, the Minister of State Security, the Minister of Defence and Military Veterans, the Minister of Police, the Office for Interception Centres, the National Communications Centre and the State Security Agency were ordered to pay the applicants’ costs of the application before the High Court.

A dissenting judgment as per Jafta J (Mogoeng CJ concurring) set out reasons for agreeing with much of what was contained in the first judgment, except its conclusion that RICA empowered the Minister of Justice to designate a judge for the purposes of the Act. The minority would simply have declared the impugned provisions invalid without granting any additional remedies.

Property

Cancellation of lease agreement due to breach of contract and obtaining of order of eviction: In terms of a lease agreement entered into with the first respondent, the appellant (Shevel) took occupation of a flat on 1 February 2013. In 2019, he fell into arrears with three months’ rent due. The first respondent gave him notice and cancelled the agreement on 30 April 2019. The applicant failed to vacate the property, causing the first respondent to obtain an eviction order.

In his appeal against the eviction order, the appellant claimed that he had not had a fair trial in the court a quo, that the magistrate had erred in relation to his earning capacity, and that if the present court confirmed the order, he would be rendered homeless.

In contending that he had not had a fair trial, the appellant complained that his legal representative failed to prepare adequately for the hearing and, further, did not adhere to his instructions. Having considered the record of proceedings in the court a quo, and in particular the detail traversed in the submissions to the court, the present court held that the appellant’s complaint was unfounded.

On the evidence around the appellant’s income in Shevel v Alson Development Sea Point (Pty) Ltd and Another [2021] 2 All SA 260 (WCC), the court accepted that he might not have earned the amount pointed to in the lower court, as the said amount was made up of earnings and money obtained from friends of the appellant. The alleged misdirection was not material, and the court confirmed the correctness of the finding that there was sufficient money available to the appellant every month to enable him to find alternative accommodation. The court’s view that the appellant was unlikely to be rendered homeless, based on the evidence, was also confirmed on appeal.

The magistrate had properly exercised his discretion under s 4(6) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 in evicting the appellant and giving him just more than a month to vacate. There was no reason to interfere with the order of eviction or its terms.

As the date stipulated in the eviction order had come and gone, the court had to affix a new date by which the appellant had to be out of the property. It was pointed out that the country was under a Level 3 Lockdown under the Disaster Management Act 57 of 2002, which made the eviction of persons from their places of residence subject to ministerial regulation. Having regard to the circumstances of this matter, the court held that it would not be just and equitable to suspend the operation of the eviction order until the suspension of the current State of Disaster. The court was satisfied that it would be just and equitable to order the appellant to vacate the flat within four weeks of its order.

Other cases

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

  • application for removal of advocate from the roll – whether striking off or suspension would be appropriate sanction;
  • arbitration – application for award to be made order of court;
  • children – right not to be detained except as matter of last resort;
  • freedom of expression and speech;
  • interpretation of statutes and parliamentary material;
  • oral evidence – whether court may raise point of law mero motu at oral-evidence hearing; and
  • search and seizure – powers under National Prosecuting Authority Act 32 of 1998.

This article was first published in De Rebus in 2021 (June) DR 26.

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