The law reports – March 2020

March 1st, 2020
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January 2020 (1) South African Law Reports (pp 1 – 326); January 2020 (1) South African Criminal Law Reports (pp 1 – 112)

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
  • GJ: Gauteng Local Division, Johannesburg
  • GP: Gauteng Division, Pretoria
  • KZP: KwaZulu-Natal Division, Pietermaritzburg
  • LP: Limpopo Division, Polokwane
  • SCA: Supreme Court of Appeal

Advocates

Standing of General Bar Council and its constituent member societies of advocates to participate in readmission applications: In Pretoria Society of Advocates and Others v Nthai 2020 (1) SA 267 (LP) the Johannesburg Society of Advocates (the JSA) and the South African Legal Practice Council applied for leave to appeal against the court’s decision to admit the respondent – who had previously been struck from the roll of advocates for misconduct – as a legal practitioner to be enrolled as an advocate. One of the grounds of appeal, taken up by the JSA, was a finding in the main judgment that ss 4 and 5 of the Legal Practice Act 28 of 2014 (the LPA) had the effect that the General Council of the Bar (the GCB) and its constituent members no longer had any role to play as custos morum of the legal profession. The JSA argued that if this view was upheld or was left as a precedent, it would deprive the GCB and its constituent members of their formal standing to participate in readmission applications by their members who had been struck off the roll at their application.

The court, per Makgoba JP and Mabuse J, was not persuaded that it had erred in its interpretation. The court held that the fact that the legislature intended regulating the legal profession by a single statute (the LPA) and furthermore that it had repealed the Admission of Advocates Act 74 of 1964 in its entirety, meant that there was no residual power for the JSA to act in such matters. It accordingly concluded that there was no reasonable prospect of success if leave to appeal against this finding was granted.

Children

A court’s discretion to allow a parent to leave its jurisdiction with a child and to relocate to another part of the country, where the other parent refuses to agree to this: In LW v DB 2020 (1) SA 169 (GJ) the applicant and respondent were, respectively, the unmarried mother and father of a minor child (the child). The parties had separated, and by order of court the child’s primary residence was with the mother. At this point, everyone involved in the matter lived in Gauteng. Then the mother applied for the court’s permission to relocate, with the child, to the Western Cape in order to take up a job there. The issue before the GJ was whether the court should allow the mother to do so. The GJ, per Satchwell J, considered the factors bearing on its discretion to permit the proposed relocation, beginning with the child’s best interests. The GJ cautioned, however, against considering just the child’s best interests and described its role in assessing competing interests. Emphasising that no single factor was to receive pre-eminence, the court considered the right of children to have contact with their parents and the parents’ responsibility to maintain it. It held that when a relocation decision was reasonable and bona fide, permission should not be lightly withheld, and that sensitive consideration should be given to the situation of the parent left behind. The GJ proceeded to grant the mother’s relocation application but subjected it to various provisions for reasonable contact between the child and his father.

Criminal law

Conduct constituting domestic violence for the purposes of a protection order and the requirement of unlawfulness: In KV v WV 2020 (1) SACR 89 (KZP) the husband (appellant) sought to overturn the confirmation by the magistrates’ court of an interim protection order issued under the Domestic Violence Act 116 of 1998 (the Act). He argued that unlawfulness was a necessary requirement to determine whether the alleged conduct constituted domestic violence.

The court a quo had rejected this argument, concluding that this was not what was contemplated in the Act and the Constitution. It had further found that since the appellant had admitted to pushing and pulling the respondent, leading to her falling to the floor, his conduct constituted domestic violence in the form of physical abuse. There was, however, insufficient evidence to conclude that there was verbal abuse and the order was discharged in that regard.

The court, per Masipa J (Chetty J concurring), found that there was no need to interfere with this interpretation. It pointed out that in defining domestic violence the Act had specifically excluded the word ‘unlawfulness’ and referred only to conduct that ‘harms, or may cause imminent harm to, the safety, health or well-being of the complainant’. The legislature, in enacting the Act, had been alive to the criminal and delictual principles dealing with abuse, but had emphasised the rights protected in the Constitution, more particularly, the right to equality, freedom and security of the person, and violence against women and children. It had introduced a wider form of protection by making a reference to ‘harm’ and a more restrictive interpretation to the provisions of the Act would be to defeat the purposes for which it was passed. The appeal was accordingly dismissed.

Customary law

Whether bridal transfer was an absolute requirement for a valid customary marriage: The matter of Mbungela and Another v Mkabi and Others 2020 (1) SA 41 (SCA), heard before the SCA, highlighted and reaffirmed the flexible and pragmatic nature of customary law, as well as the obligation of courts to recognise the living law truly observed by communities. The background was as follows: Mr Mkabi – who was Swati – had successfully launched action proceedings in the High Court for an order declaring that he had entered into a valid customary marriage with the late Ms Mbungela (the deceased) – who was Shangaan. The defendants – the deceased’s brother, Mr Mbungela, and daughter, Ms Mkhonza – brought an appeal to the SCA. They argued that, according to customary law, there was no marriage unless there had been a ‘handing-over of the bride’ ceremony. According to the defendants that had not taken place. Accordingly, there was not a valid customary marriage as envisaged by s 3(1)(b) of the Recognition of Customary Marriages Act 120 of 1998, because the union between the deceased and Mr Mkabi had not taken place in accordance with customary law.

The SCA, per Maya P (Zondi JA, Molemela JA, Mokgohloa JA and Dlodlo JA concurring) found that, in the circumstances of the present case, there had indeed been a valid customary marriage despite the absence of the handing-over of the bride, which requirement, the SCA found, had been waived. The SCA, while acknowledging the importance of the bridal transfer custom, stressed, however, that it was ‘not necessarily a key determinant’ of a valid customary marriage. In the SCA’s view it could not be placed above a couple’s clear intent to marry under customary law, where, as it happened here, their families (who came from different ethnic groups) were involved in, and acknowledged, the formalisation of their marital partnership, and did not specify that the marriage would be validated only on bridal transfer. The SCA added that to insist on an inflexible rule that there could be no valid customary marriage in the absence of this ritual in these circumstances, would be contrary to customary law’s inherent flexibility and pragmatism. The SCA ruled that the requirements of a valid customary marriage had been met and dismissed the appeal.

Delict

Vicarious liability of an employer for the acts of its employee: Vicarious liability of an employer for the acts of its employee: Stallion Security (Pty) Ltd v Van Staden 2020 (1) SA 64 (SCA) was an appeal against a finding in the GP that a security company (the appellant) was vicariously liable for the conduct of one of its employees, one Khumalo. Khumalo was a site manager who oversaw security at an office block in which the deceased, Mr van Staden often worked late. Khumalo had been issued with an override key to bypass the biometric security at the office block. Sometime later Khumalo was placed on sick leave.

In trouble with loan sharks, Khumalo decided to rob the safe he knew to be in the office block. Having armed himself with a firearm, he used his bypass key to gain access to Van Staden’s office, where he proceeded to demand cash at gunpoint. Van Staden told Khumalo he did not have the safe keys but persuaded him to accept an electronic transfer of
R 35 000 from his personal bank account. Khumalo then escorted Van Staden out of the building and to Van Staden’s car. On Khumalo’s instruction Van Staden drove to a nearby shopping centre, where Khumalo, allegedly under the impression that Van Staden was about to phone the police, shot and killed him. Khumalo ran away but was apprehended shortly afterwards.

Van Staden’s wife sued both the appellant and Khumalo for loss of support. Her claim against the appellant was founded only on vicarious liability for the wrong committed by Khumalo. The GP found the appellant vicariously liable for the Khumalo’s act and awarded damages.

The appellant appealed to the SCA. The SCA, per Van der Merwe JA (Leach JA, Mbha JA, Dambuza JA and Hughes AJA concurring), considered the test for an employer’s vicarious liability, namely that an employer was liable if the employee committed a wrongful act while wholly or partly going about the employer’s business. It also considered the qualification to the test, namely that an employer will not be liable where the employee committed the act while wholly about his own purposes, unless there was a sufficiently close link between the employee’s act and the business. The SCA then considered the strength of the link in the present case. Going against sufficient closeness was that Khumalo had carried out the actions described while on sick leave, outside the workplace, and with a firearm unconnected to the business. But in favour of sufficient closeness was that, by employing Khumalo, the appellant had enabled him to enter the office, thereby creating the risk that he might abuse his powers. It was, moreover, the appellant’s business to protect Van Staden’s safety and to safeguard his constitutional right thereto. And it had put the guard in charge of doing so. Having weighed all this up, the SCA concluded that a sufficiently close link was established to hold the employer liable.

Government procurement

Effect of corruption on awarded tenders: In Swifambo Rail Leasing (Pty) Ltd v Prasa 2020 (1) SA 76 (SCA) the facts were as follows: In July 2012 Prasa, the state entity responsible for commuter rail services, selected Swifambo, a recently incorporated black-owned company, as the approved bidder to provide Prasa with a series of new locomotives. The resulting contract between Prasa and Swifambo was concluded in March 2013. The locomotives were to be manufactured by Vossloh, a Spanish company that was, according to the bid, regarded as Swifambo’s subcontractor. Swifambo and Vossloh then, in July 2013, concluded their own contract for the supply of the locomotives, however, the delivered locomotives exceeded the maximum height suitable for South Africa’s rail network.

It appeared that Prasa’s award of the tender to Swifambo was marred by a number of material irregularities, primarily the dishonest and corrupt conduct of Prasa officials. Swifambo claimed that it was an innocent tenderer and unaware of Prasa’s dishonesty.

Having belatedly discovered the full extent of its former officials’ wrongdoing, a reconfigured Prasa board in November 2015 approached the GP to rescind the award and Prasa’s subsequent contract with Swifambo. Prasa alleged that Swifambo was a mere  ‘front’ for Vossloh, which was itself disqualified from bidding because it lacked the required broad-based black economic empowerment (B-BBEE) credentials. Swifambo, by contrast, had a high B-BBEE rating. According to Prasa, Vossloh – the real bidder – was hiding behind Swifambo. While Swifambo agreed that the bidding process was shot through with irregularities, it took issue with Prasa’s allegation of ‘fronting’.

The GP agreed with Prasa. It found that the award of the tender and the ensuing contract were tainted by corruption, fraud and fronting, and declared them invalid.

Steadfastly proclaiming its innocence, Swifambo appealed to the SCA. It argued that it was in the circumstances inequitable to set aside the contract.

In its judgment the SCA (per Lewis JA (Ponnan JA, Zondi JA, Makgoka JA and Schippers JA concurring)) confirmed the GP’s findings that the tender and contract were tainted by pervasive corruption and that Swifambo was a front whose only role was to enable Vossloh to become the real bidder. It accordingly left the GP’s order rescinding the tender award and the contract between Prasa and Swifambo intact. The SCA ruled that Prasa’s delay in bringing its application before court was, in the circumstances, reasonable, and that it was in any event in the public interest to condone it.

The appeal was dismissed.

Interdicts

Interim or final? In Andalusite Resources (Pty) Ltd v Investec Bank Ltd and Another 2020 (1) SA 140 (GJ) the applicant approached the GJ for an interim interdict to secure the release by the respondent of funds to pay its staff. The respondent argued that although the applicant had cast the interdict it sought in the form of an interim interdict, the application was actually one for a final interdict. The applicant conceded that it would establish only prima facie right, not the clear right required for a final interdict.

This case was important because there were two competing lines of authority in the GJ on the classification of interdicts, namely –

  • BHT Water Treatment (Pty) Ltd v Leslie and Another 1993 (1) SA 47 (W), in which the Witwatersrand Local Division (now the GJ) held that the court had to look at the substance and not the form of the relief; and
  • Radio Islam v Chairperson, Council of the Independent Broadcasting Authority and Another 1999 (3) SA 897 (W), in which the same court concluded that an interdict was final when the order stated it to be so.

The respondent suggested that the court a quo follow BHT to find in its favour.

The parties had in 2011 entered into a suite of agreements that included a loan and an account cession agreement. The respondent argued that the sums advanced to the applicant were due and applied for a money judgment. It advised the applicant that it was exercising its right under the account cession, so that all deposits into the applicant’s bank account would vest in the respondent. In response, the applicant applied for what it termed interim relief to secure the release of money from its bank account. Specifically, the interdict was to restrain the respondent from preventing the applicant from accessing its bank account and from enforcing the account cession pending the decision in the main application. While the respondent argued that the interdict was final in its effect because it would finally and irreversibly deprive it of the security it held over the money in the account, the applicant insisted that it sought no more than a common-or-garden interim interdict that would operate only until the final determination of the issues in the main application.

The court, per Keightley J, held that courts had to distinguish between the effect of the interdict on the ‘disputed right itself’ and its effect on the ‘object of that right’. It held that it was not, however, necessary to decide whether BHT was correctly decided since in the present case the interdict would not have a final effect on the respondent’s underlying right. And the prejudice it would suffer – lack of access to the money and the curtailment of its ability to preserve it – could be properly addressed during the balance of convenience inquiry typical of interim interdicts. The GJ accordingly found that the application was for an interim interdict, and the normal test pertaining to interim interdicts would apply.

The GJ proceeded to decide the application principally on the balance of convenience, which, given the applicant’s parlous financial state, favoured the respondent. It was clear from the applicant’s financial state that releasing the account would not enable it to pay its creditors, but instead deprive the respondent of security in respect of a debtor (the applicant) in financial straits. The GJ accordingly dismissed the application for an interim interdict.

Medical law – action for damages

The National Health Act 61 of 2003 prohibition on disclosure of information: In Thabela v Nedgroup Medical Aid Scheme and Another 2020 (1) SA 318 (GJ) the first defendant, a medical aid scheme, conveyed medical information regarding one of its members, the plaintiff, to the second defendant, the plaintiff’s employer. (The plaintiff claimed the information was confidential and that he did not consent to its disclosure and sued for damages based on the infringement of his constitutional right to privacy, the breach of the duty contained in s 14(2) of the National Health Act 61 of 2003, and under the actio iniuriarum. In dismissing the claim, the GJ, per Modiba J, found that the information was no longer confidential at the time of its provision. It then considered the ambit of s 14(2) of the Act, which, with s 14(1), provides that: ‘All information concerning a user, including information relating to his or her health status, treatment or stay in a health establishment, is confidential’ and that in subs (2) ‘no person may disclose any information contemplated in subsection (1) unless –

(a) the user consents to that disclosure in writing;

(b) a court order or any law requires that disclosure; or

(c)non-disclosure of the information represents a serious threat to public health’.

The GJ held that the prohibition in s 14(2) was not, as contended, confined to health care providers or workers and dismissed the action.

Practice

Does the service of an application for joinder interrupt prescription? In the Nativa Manufacturing (Pty) Ltd v Keymax Investments 125 (Pty) Ltd and Others 2020 (1) SA 235 (GP) case, the applicant sought the joinder of the third respondent in a pending action for damages. The third respondent opposed the relief, arguing that the joinder would serve no purpose because the applicant’s claim against it had prescribed: At the time the application came before the court, more than three years had passed since the applicant acquired the knowledge that it had a potential claim against it, and without summons in the action having ever been served. Of significance was that the joinder application had been served within the requisite three years. Section 15(1) of the Prescription Act 68 of 1969 provides that the ‘running of prescription shall … be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt’. The critical question, then, was whether service of an application for joinder of a party, without more – namely, service of summons on the joined party – interrupted the running of prescription for the purposes of s 15(1) of the Act? If the answer was yes, it would mean that the applicant’s claim had not prescribed.

The present facts and the legal issue were on all fours with the recent decision in Huyser v Quicksure (Pty) Ltd and Another 2017 (4) SA 546 (GP). The GP, per Keightley J, pointed out that it was bound by that decision unless it was clearly wrong. Of particular relevance was Huyser’s treatment of the SCA’s decision in Peter Taylor & Associates v Bell Estates (Pty) Ltd and Another 2014 (2) SA 312 (SCA). In that case the SCA ruled that the service of a joinder application did not interrupt the running of prescription. In Huyser the GP, however, distinguished the case before it from Peter Taylor. It drew a distinction between so-called ‘preliminary-type joinders’ – where the notice of motion sought relief in the form of a prayer that ‘leave be granted to join’ the respondent, along with a request that the court give further directions regarding amendment of pleadings and service of summons, and ‘straightforward joinders’ – where an order was sought simply ‘joining’ the respondent. The former was akin to the relief sought in Peter Taylor, while the latter was what was sought in Huyser. The GP ruled that the notice of motion before it qualified as a process for purposes of s 15(1) the Act, and that its service had interrupted prescription.

However, the court held that there was no underlying basis for the distinction sought to be drawn in Huyser between ‘straightforward’ and ‘preliminary-type’ joinders. It added that the same fundamental issue arose in Huyser and Peter Taylor, in other words, whether the service of the joinder application interrupted the running of prescription. It followed that the findings and conclusion reached in Huyser, that it was not bound by Peter Taylor, were clearly wrong. As such, the court could depart from such a decision. In conclusion, it held that, on the authority laid down by the SCA, the service of the application for the joinder on the third respondent did not constitute service of process for the purposes of s 15(1) of the Act. The applicant’s claim against the third respondent had prescribed, and it would, therefore, serve no purpose to grant the joinder. The court, therefore, dismissed the application with costs.

Surety

Liability: Invalid principal agreement settled by acknowledgment of debt. In Shabangu v Land and Agricultural Development Bank of South Africa 2020 (1) SA 305 (CC), Mr Shabangu and the fourth to ninth respondents stood surety for the indebtedness of a company under a loan agreement with the Land Bank. After it transpired that the Land Bank was not empowered to make the loan and that the loan agreement was, therefore, invalid, the company signed an acknowledgment of debt accepting liability for a lesser amount in full and final settlement of its indebtedness. When the company failed to make payment under the acknowledgment of debt, the Land Bank instituted proceedings against it and its sureties. Shortly after proceedings were instituted, the company was liquidated, and the Land Bank then proceeded only against the sureties – not directly based on the original principal debt under the loan agreement, but on the sureties’ alleged liability under the acknowledgement of debt.

The CC, having granted leave to appeal, held that if the terms of the accessory suretyship agreement were wide enough to cover an enrichment claim, the sureties may well also be liable, but that here it was common cause that they did not. In effect it perpetuated the original invalidity so that it remained tainted and could not found suretyship liability.

Trusts

The removal of a trustee on the ground of the breakdown in the relationship between trustees: In McNair v Crossman and Another 2020 (1) SA 192 (GJ) a court dealing with the fallout from the breakdown in the relationship between co-trustees had to decide whether it could remove one of them.

The facts were as follows: Before his death, the deceased created a trust operated by himself, his wife the appellant and the first respondent. The deceased was replaced as trustee by his friend, the second respondent. Another trustee was the deceased’s brother, who ran a business with the first respondent.

The relationship between the appellant, the first respondent and the deceased’s brother ran aground, and the second respondent was soon enmeshed in the conflict. As a result, the trust’s business suffered. The appellant, under the impression that the second respondent was acting in cahoots with the first respondent and deceased’s brother, the appellant bought and application to have the first and second respondents discharged from their duties as trustees. They both opposed the application, which was dismissed by the GJ.

In an appeal to a full bench of the GJ, the court noted that the relationship between the appellant, the first respondent and deceased’s brother had clearly broken down irretrievably. The breakdown was rooted in competing business interests. During the course of the litigation the first and second respondents levelled some very serious allegations against the appellant, including –

  • that she was engaged in a corporate power grab;
  • had unlawfully enriched herself; and
  • was responsible for the destruction of her family unit.

The appellant in turn alleged that the second respondent’s conduct, in particular, had jeopardised the administration of the trust, and that his continuance in office was detrimental to the welfare of the beneficiaries.

By the time of the appeal hearing the appellant had settled her dispute with the first respondent, who fell out of the picture. But the second respondent elected to resist the appellant’s quest to overturn the GJ’s order.

In its judgment the GJ, per Vally J (Wepener J and Mahalelo J concurring) pointed out that, while courts have tended to remove trustees only on the grounds of misconduct, incapacity or incompetence, they could do so also on another, more unusual, ground: A breakdown in the relationship between co-trustees to the extent that there was no longer any mutual respect and trust. Having found such a situation to exist, the GJ ordered the removal of the second respondent as trustee.

Other cases

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

  • agency and representation: Termination of mandate;
  • animal welfare and protection of the environment;
  • constitutional damages and homeless persons;
  • contracts: Notice to offeror not required;
  • costs against the Road Accident Fund;
  • defence of moderate and reasonable chastisement of children;
  • engineering and construction law – dispute resolution;
  • interception of communication;
  • private security provider registration;
  • sale of land – option consisting of offer and agreement to keep it open;
  • summary judgment – amended r 32 of the Uniform Rules of Court; and
  • the winding-up of a company and the termination of employee contracts.

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 2020 (March) DR 26.

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