January 2021 (1) South African Law Reports (pp 1 – 323); January 2021 (1) South African Criminal Law reports (pp 1 – 120)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.
AD: Appellate Division
ECP: Eastern Cape Division, Port Elizabeth
FB: Free State Division, Bloemfontein
GJ: Gauteng Local Division, Johannesburg
GP: Gauteng Division, Pretoria
KZP: KwaZulu-Natal Division, Pietermaritzburg
LAC: Labour Appeal Court
LC: Labour Court
SCA: Supreme Court of Appeal
Request state organ for review of decision of another state organ: In Compcare Wellness Medical Scheme v Registrar of Medical Schemes and Others 2021 (1) SA 15 (SCA) the South African Council for Medical Schemes, avowedly acting in the public interest, sought to review the Appeal Board of the Council for Medical Schemes’ endorsement of the name change sought by the appellant medical scheme. An interesting question arose: Could an organ of state like the Council or the Registrar for Medical Schemes apply – in the public interest – for the review of an administrative decision of another state organ? And if so, would it be reviewable under the Promotion of Administrative Justice Act 3 of 2000 (PAJA) or the principle of legality?
The SCA per Plasket JA (Cachalia and Schippers JJA, Ledwaba and Matojane AJJA concurring) ruled that, because they were stepping into the shoes of a member of the public, the Council and the Registrar had the required standing to seek review, and that the review would fall under PAJA.
In coming to this conclusion, the SCA went on to discuss the judgment in State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd 2018 (2) SA 23 (CC), in which the CC ruled, controversially, that organs of state were not bearers of the fundamental right to just administrative action and that they, therefore, had to use the principle of legality when seeking the review of their own decisions. But the SCA pointed out that in that case the CC was concerned with an organ of state acting in its own interest and reviewing its own decision. It was not concerned with a scenario where an organ of state that is in a position akin to that of a private person (natural or juristic) may be seeking to review the decision of another organ of state or with a situation where – in seeking a review of its own decision – an organ of state is purporting to act in the public interest in terms of s 38 of the Constitution. Here, however, the decision of the Appeal Board was an administrative action as defined in PAJA, as it was a decision of an administrative nature, taken in the exercise of a public power by an organ of state in terms of empowering legislation that had the potential to adversely affect rights, had a direct, external legal effect and was not excluded by any of subss (aa) to (ii) of s 1 of PAJA.
When the Registrar and the Council brought their application in the public interest, they did so in order to safeguard the fundamental right of each member of the public to just administrative action. That being so, they stepped into the shoes of the members of the public on whose behalf they litigated and, in this sense were, despite being organs of state, bearers of fundamental rights to just administrative action. PAJA consequently applied to the review of the Appeal Board’s decision. While a legality review would in this case have the same result, this would not always be the case. For instance, the common law that applied to legality reviews differed from PAJA in respect of the exhaustion of internal remedies, and there were some differences between the common-law delay rule and PAJA’s delay rule.
The SCA went on to hold that the court a quo, the GP, had correctly set aside the Registrar’s decision to allow the name change because he had no power to approve once he had formed the view that it was likely to mislead the public. On this topic, the SCA went on to reiterate that all administrative law rested on the principle of legality such that the legislature and the executive in every sphere were constrained by the principle that they may exercise no power and perform no function beyond that conferred on them by law.
The pauperien action: A defence of non-custodian third party negligence? ‘Many people in South Africa choose to own animals for companionship and protection. That is their choice, but responsibilities follow in its wake. … People are entitled to walk our streets without having to fear being attacked by dogs and, where such attacks occur, they should in most circumstances be able to look to the owner of the dog for recompense.’
So ends the judgment in Van Meyeren v Cloete 2021 (1) SA 59 (SCA), in which the SCA had to deal with the question of whether it should extend pauperien principles by allowing the owner to escape liability on the ground of the negligence of a ‘non-custodian’ third party. The court a quo, the ECP, had refused to do so, leading to the present appeal by the owner.
The facts serve to illustrate the dilemma faced by the SCA. The respondent, Mr Cloete, an itinerant gardener and refuse collector, was on his way to the shops one afternoon, pulling his trolley down a street in suburban Port Elizabeth when – for no reason and without any warning – he was attacked by three dogs owned by the appellant, Mr Van Meyeren. The dogs, pit bull cross-breeds, savaged Mr Cloete to such an extent that neighbours who came to the scene thought he was dead. He survived, but his left arm was amputated because of his injuries.
Pleading his claim under the actio de pauperie and, alternatively negligence, Cloete instituted action to recover damages from Van Meyeren. Van Meyeren and his family had been away from home on the day in question. The garden could be accessed from the street through a gate through which the dogs had escaped. While it was usually padlocked, the SCA accepted in favour of Van Meyeren (but with reservations) that on the fateful day, the padlocks were damaged by an unknown intruder so that the dogs were able to escape.
The SCA per Wallis JA (Cachalia and Mocumie JJA and Ledwaba and Weiner AJJA concurring) cited the pauperien law on dog attacks as it was summarised by the AD in O’Callaghan NO v Chaplin 1927 AD 310. If the owner of a dog that attacks another person who was lawfully at the place where he was injured, and who neither provoked the attack nor by his negligence contributed to his own injury, is liable, as owner to make good the resulting damage. Liability was based on ownership alone, providing a remedy where it was impossible to impute negligence to the owner.
The SCA pointed out that the actio had an element of anthropomorphism in that, for the owner to incur liability, the animal had to have acted from vice, or contra naturam sui generis. That is, there had to be something equivalent to culpa in its conduct. If it was merely frightened, in pain or provoked, then it had not acted contra naturam and the owner was not liable. Nor would the owner be liable if the injured party had been in a place where he should not have been, for example where an intruder was bitten by a watchdog, or where the animal was restrained and the injured party ventured within reach.
However, in Lever v Purdy 1993 (3) SA 17 (A) the AD recognised a third exception. Such as where the owner had appointed someone to look after the animal in his absence and the negligence of that person (the custodian) was the cause of the harm. Van Meyeren argued that the defence recognised in Lever v Purdy had to be extended to exempt the owner from liability where the harm would not have occurred but for the negligent conduct of a third party, irrespective of whether the third party had had custody or control of the animal.
After carefully analysing Lever v Purdy, the SCA ruled that there was nothing in that judgment to provide any support for the exception for which Van Meyeren contended. Roman-Dutch law provided no clear authority in favour of extending an owner’s exemption from liability for harm caused by their animal to instances where a third party’s negligence is involved without the third party having the custody or control of the animal.
The SCA then proceeded to the question of whether the common law should be developed by extending the exception in Lever v Purdy under s 39 of the Constitution. Counsel for Van Meyeren alluded to the high level of crime in South Africa and the right of people to protect their homes against criminals. The SCA parried this line of argument by asking why, if it was only in extreme circumstances permissible to shoot and kill an intruder in self-defence, it should be permissible to keep a dog that – irrespective of the level of threat – might kill or maim them? Moreover, Van Meyeren’s dogs did not harm an intruder but an innocent passer-by. The ambit of the right to keep dogs for protection at home was irrelevant where the dog had caused harm outside the home.
The SCA emphasised that Van Meyeren was seeking to escape liability on the basis that what had occurred here was not his fault. However, the absence of fault has never been a basis for avoiding pauperien liability. It proceeded on the basis of strict liability arising from ownership of the animal that caused the harm. Absence of fault was a ground for resisting aquilian liability, not a claim under the actio. Where the actions of the victim or third parties had been held to exonerate the owner from pauperien liability, it was because those actions directly caused the incident in which the victim was harmed in circumstances where the owner could not prevent that harm from occurring. Responsibility for the dogs had not passed from Van Meyeren to the intruder in the way it had passed in Lever, it still resided squarely with him as the owner.
Stripped of everything extraneous, Van Meyeren’s argument was nothing more than that he was not liable because the harm was not his fault. The SCA rejected the argument that control by the person whose negligence allowed the animal to escape was not a requisite for the extended exception to operate. It ruled that it would be inappropriate to undermine the principle of strict liability for harm caused by domestic animals by extending the exception in Lever v Purdy. The SCA accordingly dismissed the appeal with costs.
Debt enforcement and enforcement notice requirements: FirstRand Bank Ltd t/a First National Bank v Moonsammy t/a Synka Liquors 2021 (1) SA 225 (GJ) was another in a series dealing with the notice requirements in s 129 of the National Credit Act 34 of 2005 (the NCA). In an application for summary judgment on a credit agreement subject to the provisions of the NCA, the respondent’s defence was that the contract required a prior demand before the debt became payable but no such notice had been given, and if such notice was necessary, it had to be given, and it had to be alleged as having been given, before a default notice could be given under s 129. Counsel for the applicant, relying on High Court authority of that division, contended that there would have been proper compliance with the NCA if the s 129 default notice was attached to the summons. The contract did contain notice terms that the plaintiff had to comply with before the loan became repayable but those terms were not pleaded.
The court, per De Villiers AJ, held that the plaintiff did not plead a completed cause of action. The cause of action was not verified and the particulars of claim were therefore, excipiable. In the circumstances, summary judgment would be refused. However, the applicant, having alleged that it had complied with ss 129 and 130, could amend its particulars of claim. Therefore, the court had to consider whether there was indeed compliance with those sections.
The court further held that non-compliance with s 129 could not be cured by attaching proof of purported compliance with s 129 to a summons, an application for default judgment or one for summary judgment. Compliance with ss 129 and 130 was not elective but compulsory. The NCA made no provision for the curing of the non-compliance with s 129, other than a stay of proceedings until a court order in terms of s 130(4) was given effect to. Therefore, the application for summary judgment had to be dismissed and the defendant granted leave to defend. The action proceedings would be stayed until ten business days after the plaintiff, in due compliance with ss 129 and 130 of the NCA, had served a notice as contemplated in s 129(1)(a) on the defendant.
In reaching the above finding, the court refused to follow a line of Gauteng cases, originating with SA Taxi Development Finance (Pty) Ltd v Phalafala 2013 JDR 688 (GSJ), which held that non-compliance with s 129 could be cured by attaching a s 129 default notice to the summons.
Review of decision not to prosecute: Panday v National Director of Public Prosecutions 2021 (1) SACR 18 (KZP) arose out of the 2010 FIFA World Cup soccer tournament hosted in South Africa. The applicant, Mr Panday, had applied for an order setting aside the decision of the National Director of Public Prosecutions (the NDPP) to prosecute him on charges of fraud and corruption relating to the provision of accommodation for members of the South African Police Service (the SAPS) during the World Cup. This decision came after the Director of Public Prosecutions in KwaZulu-Natal (the DPP) had declined to prosecute him. The applicant attacked the rationality of the decision, contending that the NDPP had failed to consult the DPP before taking the decision, as was required by s 22(2)(c) of the National Prosecuting Authority Act 32 of 1998 (the Act). He also contended that the decision was irrational in that after requesting the intercepted communications from the SAPS, the NDPP had not waited for the provision of the material but had gone ahead and taken the decision to prosecute anyway.
In examining s 22(2)(c) of the Act the KZP, per Gorven J, held that the phrase ‘after consulting’ in the provision had to be construed in context and in the present context, it meant giving serious regard to the views of the DPP. In assessing whether provision was satisfied, the KZP found that in circumstances where the DPP had had the opportunity to motivate her decision to decline to prosecute by addressing a memorandum to the NDPP (giving as her reasons those in the report of a subordinate), it could not be said that she had not had the opportunity to explain her reasons to the NDPP. It could also not be said that he was unaware of her reasons or had made his decision in ignorance of them.
As to the failure by the NDPP to wait for the arrival of the intercepted material, prior to making the decision, the NDPP had before him a record running to some 3 790 pages including thousands of pages of invoices, many statements of witnesses, and a forensic report. That being the case, it could not be said that the NDPP ought to have insisted on receiving the intercepted material prior to making the impugned decision.
The KZP accordingly rejected the attack on the legality of the impugned decision, and based on the accepted prosecution policy, found that the NDPP could conclude that the decision to prosecute the applicant was ‘well-founded upon evidence reasonably believed to be reliable and admissible’.
Apart from the cases and material dealt with above, the material under review also contained criminal law cases dealing with –
May a special needs school refuse to readmit a troubled and misbehaving learner until she was ‘cured’? Young R, just 12 years old, diagnosed with foetal alcohol syndrome, cognitive impairments behavioural disorders and epilepsy, was admitted as a learner at a special needs school but later refused entry. She had started using snuff, alcohol and the respondents were willing to allow her to attend school and reside in the school hostel once her ‘issues’ were attended to. She was effectively barred from school until such time as the respondents were satisfied that she had been ‘cured’. These were the sad facts the FB, per Mathebula J, had to deal with in Cassim NO v MEC, Department of Social Development, Free State and Others 2021 (1) SA 184 (FB). The applicant, R’s curator ad litem, had applied on a semi-urgent basis for an order compelling the school to admit her. The participating respondents, the school and its governing body, in the first place denied urgency on the ground that the country was in COVID-19 lockdown, requiring the closure of schools, and argued that there was therefore no compelling reason for the court to urgently consider the matter.
The FB ruled that the arguments raised in opposition to urgency lacked merit since courts would always come to the aid of the vulnerable where their welfare and life were under threat and were ignored by those tasked with the responsibility to protect them. It would, in the light of this, be an absurdity to put the matter in abeyance until the COVID-19 lockdown was lifted.
The FB then observed that the conditions imposed by the respondents for R’s admission were unlawful since they effectively barred her from school until the respondents were satisfied that she had been cured. This attitude tended to perpetuate exclusivity and was unlawful because every child who had been admitted to school had to be allowed to attend school. The FB accordingly upheld the curator’s application.
Firing a worker who was suffering from depression: Section 187(1)(f) of the Labour Relations Act 66 of 1995 (the LRA) provides that a dismissal will be automatically unfair if the reason for the dismissal is that the ‘employer unfairly discriminated against an employee, directly or indirectly’, inter alia on grounds of ‘disability’.
In Legal Aid South Africa v Jansen 2021 (1) SA 245 (LAC), the LAC considered the nature of the enquiry where the claimed disability was depression. This in an appeal against the LC’s finding in favour of the respondent, one Mr Jansen, that his dismissal for misconduct – which misconduct that court accepted was caused by his depression, as claimed by Mr Jansen – amounted to discrimination against him on the grounds of ‘disability’; and that his dismissal was therefore automatically unfair as contemplated in s 187(1)(f) of the LRA.
On appeal, the LAC held that in an automatically unfair dismissal claim based on depression, the inquiry was whether the reason for the dismissal was depression, and differential treatment on that basis. An applicant seeking to establish that a dismissal was automatically unfair on any of the grounds listed in s 187(1) of the LRA must show causation, and produce sufficient evidence raising a credible possibility that the dismissal amounted to differential treatment on the alleged ground. The LAC, setting aside the LC’s decision, concluded that Mr Jansen had failed to adduce cogent evidence, medical or otherwise, showing that his acts of misconduct were caused by his depression and that he was dismissed for being depressed.
Abuse of interlocutory court process: In Munyai v Road Accident Fund and Related Matters 2021 (1) SA 258 (GJ), in eight matters that came before the interlocutory court in terms of the Judge President’s Directive 2 of 2019, the court felt itself obliged to comment on –
The court, per Thompson AJ, held that the interlocutory court was intended to be an easily approachable court, its purpose being to assist parties to obtain procedural relief against recalcitrant litigants who are delaying matters from becoming trial-ready.
While the court would assist litigants by ensuring that their cases were trial ready and by calling to order recalcitrant litigants that were preventing it, legal procedure and protocol nevertheless had to be followed.
Practitioners were taking the stance that item 20 allowed them to negate their professional obligations and submit affidavits containing largely unsubstantiated allegations, leaving the judge the unenviable task of making assumptions. This was noticeable in matters where an applicant sought an order to compel the other party to discover. In the applications before the present court, no allegations were made that either a r 35(1) notice had been delivered or that the other party had received notice of the trial date – the court was expected to assume that such a notice had been served.
Practitioners were also misconstruing item 25.5 of the Directive as giving a licence to applicants to ask the interlocutory court to direct a respondent to appoint experts and to do so within specified time periods. The Directive was never intended to confer any power on the courts to order a litigant to appoint experts but was merely intended to enable an applicant to approach the court for an order to place a respondent on terms to decide how it wished to conduct and/or present its case. Similarly, practitioners had taken to interpreting item 25.5 to mean that the court could compel a defendant to cause a plaintiff to submit to a medical examination. That interpretation was only partially correct. If the defendant had given notice, in terms of r 36(9)(a), of its intention to call a particular expert, the court could be approached to compel the defendant to cause the plaintiff to submit to a medical examination in terms of r 36(1).
Community members’ right of access to application for mining rights: In Baleni and Others v Regional Manager, Eastern Cape Department of Mineral Resources and Others 2021 (1) SA 110 (GP) the applicants, community members living and working on the land in respect of which the fifth respondent (TEM) had applied for mining rights under s 22(1) of the Mineral and Petroleum Resources Development Act 28 of 2002 (the MPRDA), sought a declaratory order that they had a right under ss 10(1) and 22(4) of the MPRDA to be furnished with a copy of a s 22 application for a mining right on request to the relevant Regional Manager of the Department of Mineral Resources (the Department), subject to the Department redacting financially sensitive aspects of the application.
The Department had earlier referred their request for information regarding the application to TEM, but they refused it, only doing so after the application was launched. The state respondents did not oppose the application but TEM did. This on the bases that the relief sought had become moot; and that ss 10 and 22 did not confer the right of access contended and that instead the applicants must instead utilise the procedures of the Promotion of Access to Information Act 2 of 2000 (PAIA).
The GP, exercising its discretion to adjudicate otherwise moot issues when it would have a practical effect on the parties or on others, held that this was such a case because the applicants were clearly persons interested in an existing, future or contingent right or obligation.
As to the relief sought, the GP held that they were entitled to it: Interested parties had a right to raise environmental objections as the basis for objecting to an application for a mining licence and were entitled to be heard before a decision was made. A meaningful consultation process was intended, to advance the objects of the MPRDA. The applicants, unlike the general public, would be affected by the environmental impact of the mining operations. The information was requested for the specific purpose of facilitating meaningful consultation, that is, the applicant’s inputs intended to inform the outcome of the application. The way in which the applicants obtained a copy of the mining right should not be restricted to the request processes in terms of PAIA. The Department had to deal directly with the issues that would determine the application. The relevant sections (ss 10 and 22(4)), properly interpreted, meant that they were entitled to a copy on request from the Regional Manager.
Interruption of prescription by acknowledgement of liability: In Investec Bank Ltd v Erf 436 Elandspoort (Pty) Ltd and Others 2021 (1) SA 28 (SCA) the appellant, Investec, had advanced a loan to the first respondent company Erf 436, secured by the passing of a notarial mortgage bond over a 50-year long notarial lease, in respect of a commercial property, concluded by Erf 436 as lessee and the South African Rail Commuter Corporation (SARCC) as lessor. The further respondents stood as sureties for Erf 436’s debt under the loan. It was a term of the loan agreement that Investec had an option to replace Erf 436 as lessee in the event of Erf 436 defaulting on its obligations to SARCC. Erf 436 did default, and so, as it was entitled to, Investec demanded, on 10 September 2002, payment within seven days of the full outstanding amount. The commencement of prescription of the debt was thus 17 September 2002, being the due date of payment.
When payment was not forthcoming, Investec elected to exercise its option and conclude a lease with SARCC. Despite this, an agreement was reached between Investec and Erf 436 that the latter would continue to manage the property, collect monthly rental from subtenants, and pay those amounts over to Investec to be credited to its loan account. The parties so conducted themselves until around mid-2003, when another agreement was reached between Investec and Erf 436 providing that the former would take over management of the property, itself collect rental from subtenants and credit the Erf 436 account with the amounts collected each month. It was further understood that endeavours would be made to find a purchaser for Investec’s rights in the property and the purchase price would be credited to Erf 436’s loan. Investec so managed the lease until July 2009, when it sold its rights as lessee to the entity Johnny Prop, and credited Erf 436’s loan account with the purchase price, as agreed.
Investec subsequently, in a summons issued in the High Court served on 21 January 2011, claimed the outstanding amount it alleged was owing in terms of the loan agreement – R 3 979 184,50 – from Erf 436, as well as the sureties. Erf 436 and the sureties raised a special plea of prescription. Investec, in response, pleaded that, on the basis of the number of payments made to reduce its loan, as well as various statements made in letters on behalf of it, Erf 436 had made a series of acknowledgments of liability, the effect of each acknowledgment being to interrupt prescription against Erf 436, and hence against the sureties too. The High Court, however, upheld the special plea of prescription. Investec appealed to the SCA to press its case.
The court first stressed that, in order to determine whether the various payments and statements amounted to acknowledgments of debt for the purposes of interrupting prescription in terms of s 14 of the Prescription Act 68 of 1969, they had to be viewed holistically and in their broader context. Here in particular, the two agreements referred to above relating to the management of the property.
The SCA, per Plasket JA (Petse DP, Saldulker JA, Dambuza JA and Poyo-Dlwati AJA concurring), held that the following acts, given the context in which they took place, constituted acknowledgments of debt by Erf 436, each of which had the effect of interrupting prescription:
The court concluded that, at the time of service of summons, the claim in question had not prescribed, given the series of interruptions of prescription. The court upheld Investec’s appeal.
Apart from the cases and material dealt with above, the material under review also contained cases dealing with –
Gideon Pienaar BA LLB (Stell) is a Senior Editor, Joshua Mendelsohn BA LLB (UCT) LLM (Cornell), Johan Botha BA LLB (Stell) and Simon Pietersen BBusSc LLB (UCT) are editors at Juta and Company in Cape Town.
This article was first published in De Rebus in 2021 (March) DR 23.
