January 2024 (1) South African Law Reports (pp 1–329); January 2024 (1) South African Criminal Law Reports (pp 1–119)
This column discusses judgments as and when they are published in the South African Law Reports, the All South African Law Reports, the South African Criminal Law Reports and the Butterworths Constitutional Law Reports. Readers should note that some reported judgments may have been overruled or overturned on appeal or have an appeal pending against them: Readers should not rely on a judgment discussed here without checking on that possibility – Editor.
CC: Constitutional Court
ECGq: Eastern Cape Division, Gqeberha
ECM: Eastern Cape Division, Mthatha
FB: Free State Division, Bloemfontein
GJ: Gauteng Local Division, Johannesburg
GP: Gauteng Division, Pretoria
LCC: Land Claims Court
SCA: Supreme Court of Appeal
WCC: Western Cape Division, Cape Town
Advocate disbarred for deceiving the elderly and breaching the referral rule: In Legal Practice Council v Mkhize 2024 (1) SA 189 (GP) the Legal Practice Council (LPC) asked the GP to disbar the respondent on the strength of six complaints received from members of the public – most of them elderly – that he had failed to assist them despite being paid. The GP was faced with two applications:
The first complaint, which was illustrative of the accusations levelled against the respondent, was that, despite having been paid, he failed to assist the complainant, Ms Nkala, which resulted in the loss of her home. The respondent accused Ms Nkala of being vindictive and claimed that the money paid by her in any event received by an ‘administrator’ in the employ of the respondent acting on his own initiative. In April 2021, the LPC instituted proceedings against the respondent based on Ms Nkala’s complaint. The LPC’s central allegation was that the respondent had breached the referral rule by accepting instructions and deposits directly from a client without the interposition of an attorney, contrary to s 34 of the Legal Practice Act 28 of 2014.
The respondent did not file a notice of intention to oppose or an answering affidavit, and the LPC set the matter down on the unopposed roll. Then, in May 2022, the respondent launched an urgent application seeking to interdict the LPC form proceeding against him. He accused the LPC of tainting his reputation with lies and handling the matter in an unfair manner. He filed an interlocutory application that was characterised by the GP as being devoid of merit and riddled with irregularity. During these proceedings the respondent had falsely represented himself as a silk.
In its judgment the GP, per De Vos AJ, pointed out that the referral rule was central to the legal profession, clear, and longstanding, and that its breach amounted to serious misconduct. The respondent’s defence that his ‘administrators’ acted of their own volition when they accepted clients’ money on his behalf, was, apart from being fanciful, also insufficient to avoid a finding of misconduct based on the breach of the referral rule as codified in s 34 of the Act.
Having found the respondent guilty of misconduct, the GP proceeded to the next stage of the proceedings, the fit-and-proper inquiry. It ruled that the respondent’s unfitness was obvious: He had shown contempt for the proceedings by making unwarranted accusations against the LPC and obstructing proper scrutiny of his conduct, to the point of abuse of process. The GP, having set out in detail the extent of the respondent’s intransigent and opprobrious conduct, pointed out that his failure to comply with court orders and his lie about being a silk by themselves disqualified him from being an advocate. What made things even worse was that his misconduct was directed against elderly and vulnerable members of society. The GP concluded that, given the gravity of the respondent’s offences, the appropriate sanction was the removal of his name from the roll of advocates.
Private prosecution proceedings by former President, against current President, set aside: Former President Zuma (the first respondent) issued two summonses instituting a private prosecution against President Ramaphosa (the current President and applicant) in his private capacity, charging him, inter alia, with being an accessory after the fact to criminal conduct. The applicant sought in President of the Republic of South Africa v Zuma and Others 2024 (1) SACR 32 (GJ) to have the private prosecution instituted against him by former President Zuma set aside.
The applicant contended that the nolle prosequi certificates issued did not relate to a charge against him or, to the extent they were interpreted to relate to a charge against him, were unlawful, unconstitutional and invalid; that it was unlawful and an abuse of process that the first respondent had subjected him to two summonses in respect of the same offence, for which he had to appear in court on the same day; and that the purported private prosecution was pursued for an ulterior purpose, in breach of s 1(c) of the Constitution. The first respondent contended in limine that the applicant lacked locus standi as President to bring the application; that a civil court lacked jurisdiction to review the institution of private prosecution proceedings; and that challenge was being brought prematurely.
The Full Bench (per Ismail J, Baqwa J, and Modiba J), on the facts, agreed with the applicant that the certificates did not relate to him and found them unlawful, invalid, and unconstitutional. Further, that the first respondent had instituted the prosecution for an ulterior purpose, and that this constituted an abuse of process.
It also dismissed all points in limine. As to locus standi, it noted that the President had a direct interest in the potential impact of the impugned private prosecution on the performance of his duties. He, therefore, had locus standi and was entitled to be represented by the state attorney. In respect of jurisdiction, although the dispute had its genesis in criminal proceedings, the relief sought was civil in nature and the court, therefore, had jurisdiction. As to the challenge being premature, frontal challenges were generally disallowed, but there was no rule against them. Here it had been brought to enforce the individual right not to be subject to an unlawful private prosecution process, thus protecting and vindicating the rule of law. The summonses and private prosecution proceedings were set aside.
Senior public prosecutor rebuked for making written complaint about conduct of presiding magistrate to head of court: S v Khomo and Others 2024 (1) SACR 73 (FB) came before the FB by way of special review in terms of s 304(4) of the Criminal Procedure Act 51 of 1977 (CPA). The accused had been granted bail and an unhappy senior public prosecutor (SPP) wrote a letter to the judicial head of the court with a litany of complaints. She charged the magistrate, inter alia, with not following the procedure prescribed by the CPA; not giving the state the opportunity to address the court; not understanding criminal procedure; and of having committed ‘blunder after blunder’. For good measure, she added that this case was just the tip of the iceberg.
Matshaya AJ, supported by Molitsoane J, proceeding in terms of the High Court’s inherent powers of review – s 304(4) was not applicable as no sentence had been passed yet – found the SPP’s contentions without merit and the matter non-reviewable. The judge cautioned, however, that the correct route for the state to have pursued the matter was by way of an appeal and that High Court was not to be burdened with unmeritorious matters, which were not properly brought before them. The tone of the letter by the SPP was also concerning. The community expected a certain level of professionalism from prosecutors, and treating other stakeholders, like the judiciary, with the respect that they deserved. The SPP had no right to cast aspersions on the competency or otherwise of the magistrate in the manner she did, which was unbecoming and had to be rebuked. The Code of Conduct for members of the National Prosecuting Authority imposed a positive obligation on prosecutors to conduct themselves professionally, with courtesy and respect for all, and in accordance with the law, and to recognise standards and ethics of their profession.
The magistrate’s conduct did not escape censure either. It appeared from the record that the magistrate thought that it was in order for the court to adjourn early on a Friday afternoon. The judge considered this a cause for concern and that the magistrate’s remarks displayed little or no appreciation to utilise available court time optimally. It was generally accepted that court time was 9am – 4pm each court day, and her conduct was in breach of para 5.1(vi) of the norms and standards applicable to judicial officers issued by the Chief Justice. The registrar was accordingly ordered to forward a copy of the judgment to the relevant Director of Public Prosecutions and chief magistrate, for the appropriate attention.
Apart these cases the November SACR also contained ones dealing with –
Is a statement published in a newspaper disclosing that a complaint of rape had been made against someone to the police was defamatory of that person? In Ndlozi v Media 24 t/a Daily Sun and Others 2024 (1) SA 215 (GJ) the applicant, Dr Ndlozi – a leader of one of South Africa’s largest political parties and a member of Parliament – brought a claim of defamation in the GJ against the Daily Sun newspaper, its editor Ms Nkosi, and one its columnists, Mr Manayetso (the first to third respondents). The statements forming the subject-matter of the charge stemmed from a tip-off received on 11 April 2021 by Mr Manayetso from a confidential source in the South African Police Service (SAPS) to the effect that a woman had made a complaint to the police in which she stated that Dr Ndlozi had raped her and that the SAPS had then opened a case of rape. This tip-off formed the basis of an article published in the Daily Sun on the same day under Mr Manayetso’s byline stating that a complaint of rape had been made against Dr Ndlozi. The article included Dr Ndlozi’s denial of the charges but contained no comment from the police; attempts to secure comment before going to press had been unsuccessful. However, on 12 April 2021 the police released a statement confirming that they had indeed received a complaint but pointed out that Dr Ndlozi was not a suspect and that the details of the complaint must have been unlawfully leaked. This prompted the Daily Sun to publish an article dated 13 April 2021 in which it noted that Dr Ndlozi was not a suspect. It declined to comment on the charge of unlawfulness. Dr Ndlozi claimed that the articles and a related billboard with the words ‘Mbuyiseni Ndlozi raped me!’ were defamatory of him.
The GJ, per Wilson J, emphasised that it was permissible for the applicant to have approached the court, on motion, to seek a so-called ‘hybrid procedure’ claiming immediate relief in the form of a declarator that he had been defamed and an interdict, and at the same time requesting the referral of the question of damages to oral evidence for determination at a later stage.
The GJ ruled on the merits that the first article and the billboard were defamatory of Dr Ndlozi: The claim that someone had accused him of rape would tend to lower him in the estimation of ordinary members of society. The GJ declined to uphold the respondents’ defence of truth and in the public benefit because public interest in knowing the truth about public figures such as the applicant was outweighed by public interest in the confidentiality of police investigations in their early stages. The GJ stressed in this regard that Mr Manayetso had named the complainant to Dr Ndlozi and informed him of the details of the complaint before the police had been able to contact him, thereby interfering with the police investigation.
The GJ accordingly granted an order declaring the first article and billboard to be unlawful and defamatory, directed the respondents to remove them from all their media platforms. The question of the determination of damages was referred to oral evidence.
Whether it was competent to make an application to compel absent further notice: In GN obo KN v MEC, Department of Health, Eastern Cape Province 2024 (1) SA 258 (ECM), the applicant, relying on r 35(7) of the Uniform Rules of Court, sought an order directing the respondent to comply with discovery notices served by her in terms of subrules 35(1), 35(8) and 35(10). No notice in terms of r 30A, or any other form of notice, was issued prior to the application to compel. This raised the issue of whether a litigant seeking to enforce compliance with notices under subrules 35(1), 35(3), 35(6), 35(8), must first provide notice under r 30A, or any other form of notice, prior to launching a r 35(7) application to compel.
The ECM, per Notyesi AJ, held that rs 35(7) and 30A were not in conflict since they were both designed to allow litigants to come to grips, as expeditiously and as inexpensively as possible, with the real issues between them. No default exists when notice is given for the delivery of documents within a prescribed period: It arises only when the period given expires without a response or delivery of the requested documents. At that point the defaulting party must be warned about the consequences of default and be afforded an opportunity to comply with the notice or request made. Since the object of the rules was to achieve justice without the incurrence of unnecessary expenses, an aggrieved party cannot demand compliance without notice to the defaulting party that an application to compel will be resorted to. Rule 30A(1) provides affords a defaulting party a reasonable period to purge the default complained about. There are no grounds for the argument that notice is not required before the institution of an application to compel.
The ECM further noted, however, that non-compliance with r 30A does not absolutely preclude relief from being granted since r 35(7) gives the court had a discretion whether to enforce discovery or inspection with due regard to potential abuse of the discovery process.
May a party apply to the Land Claims Court (LCC) for a declarator as to whether the Extension of Security of Tenure Act 62 of 1997 (ESTA) applied to an eviction application? The facts in Stellenbosch University v Retolla and Others 2024 (1) SA 284 (LCC) were that the applicant (the university) was the owner of a property in Stellenbosch on which the first and second respondents resided. The university brought proceedings for their eviction, and as a preliminary point sought a declarator from the LCC as to whether the ESTA applied to the matter. Crucially, the LCC has jurisdiction over ESTA evictions but not those governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). The two Acts operated in a mutually exclusive way.
The LCC, per Cowen J, ruled that there was no impediment to such declaratory relief, provided that all parties intended to be bound thereby were notified, joined and afforded a fair opportunity to participate (the latter including access to legal representation). Since the land in question was ‘in a township’, and as such specifically excluded from ESTA, ESTA did not apply to the university’s eviction proceedings against the respondents. Since the matter was thus governed by PIE and belonged in the High Court, and the LCC lacked jurisdiction to transfer it, the matter would have to be instituted afresh there.
The Community Schemes Ombud’s jurisdiction in respect of financial issues: Kobi v Trustees, De La Rey Body Corporate and Others 2024 (1) SA 174 (FB) concerned an appeal in terms of s 57 of the Community Schemes Ombud Service Act 9 of 2011 (the Act) against an adjudicator’s order dismissing Ms Kobi’s claim for relief relating to alleged incorrectly calculated levy account statements. The adjudicator took the view that the relief sought required the Community Schemes Ombud (the CSO) to determine the reasonableness of the amounts claimed, a discretionary power it lacked, and which properly fell within the ambit of the body corporate represented by the trustees.
The FB (per Reinders J and Van Zyl J) considered the following sections of the Act –
The FB ruled that there could be no doubt that she was a person materially affected by a dispute as contemplated in s 38(1). It was clear from the documents before the adjudicator that the dispute concerned financial issues as contemplated in s 39(1)(c). The GJ pointed out that the adjudicator should have made use of its powers of investigation under s 51 of the Act. It concluded that since the adjudicator had erred in finding that the application did not fall within the ambit of s 39, the adjudicator’s had to be set order aside.
Is the death of the party against whom prescription is running a ‘superior force’ that interrupts it? In Katha v Pillay NO and Others 2024 (1) SA 159 (GJ) the facts were that party A in 1986 took possession of immovable property owned by party B. In 2014 B died. In 2017 – 31 years from 1986 – executors were appointed to B’s estate. A claimed acquisitive prescription. The GJ had to determine, as a separated issue, whether B’s death constituted a ‘superior force’ that prevented the person against whom it was running (B) from interrupting it, as intended in s 3(1)(a) of the Prescription Act 68 of 1969. If it was, the running of prescription would be suspended until the executors’ appointment in 2017, after which they would be able to interrupt prescription by serving process on A claiming ownership of the land (see ss 4(1) and 4(4) of the Act).
The GJ, per Moultrie AJ, ruled, having considered the text of s 3(1)(a) and context and purpose of the words ‘superior force’, that the expression ‘superior force’ had to be interpreted to include the death of the owner of the property. The GJ pointed out in this regard that there is no relevant distinction between death and other impediments – being a minor or insane or under curatorship – mentioned in s 3(1)(a). There was also no reason why the death of a person against whom prescription is running should suspend extinctive prescription – as it did under s 13(1)(h) of the Act – but not acquisitive prescription.
Therefore, on B’s death in 2014, the running of prescription was suspended until the executors’ appointment in 2017, when it recommenced to run for three years until 2020. The defendants were, therefore, correct in contending that the period of acquisitive prescription had not been completed by 18 April 2019 (the date on which the particulars of claim were signed).
The amended r 32, however unsatisfactory, is substantive in its requirements: The summary judgment procedure in r 32 was recently amended to –
Rule 32(2)(b) requires the affidavit to ‘verify the cause of action and the amount, if any, claimed, and identify any point of law relied upon and the facts upon which the plaintiff’s claim is based, and explain briefly why the defence as pleaded does not raise any issue for trial’ (our italics). In Hennie Ehlers Boerdery CC v APL Cartons (Pty) Ltd 2024 (1) SA 149 (ECGq) the court (per Ronaasen AJ) was faced with an objection to an application for summary judgment that was underpinned by a 22-page affidavit. The respondent in a separate application argued that the affidavit should be set aside under rule 30 as an irregular step because it failed to meet the brevity requirement contained in rule 32(2)(b).
The ECGq pointed out that, while the amended rule 32 was not a model of clarity and would likely increase judges’ workload and parties’ costs, the requirements set out in rule 32(2) were substantive, not merely procedural. Hence disputes about what was permissible in such affidavits was best dealt with by the court’s hearing the summary judgment application instead of in a separate rule 30 procedure. The ECGq, therefore, dismissed the defendant’s rule 30 application with costs.
The constitutionality of the AARTO Acts: In Organisation Undoing Tax Abuse v Minister of Transport and Others 2024 (1) SA 21 (CC) the CC dealt with an application by the applicant, Organisation Undoing Tax Abuse (OUTA), to confirm an order by the GP that declared the Administrative Adjudication of Road Traffic Offences Act 46 of 1998 (the AARTO Act) and the Administrative Adjudication of Road Traffic Offences Amendment Act 4 of 2019 (AARTO Amendment Act) to be unconstitutional. Under AARTO, traffic laws would no longer be enforced through criminal law but through a national system of administratively imposed fines and demerit points. OUTA argued that the AARTO Act was unconstitutional because Parliament had passed it in circumstances in which it fell within the list of functional areas – in particular ‘provincial roads and traffic’ – set out in sch 5 of the Constitution in respect of which provincial legislatures had exclusive legislative competence. OUTA further argued that the AARTO Act was unconstitutional because it fell into functional areas – ‘municipal roads’ or ‘traffic and parking’ – over which municipalities had exclusive executive competence under sch 5 of the Constitution. OUTA raised the alternative argument that s 17 of the AARTO Amendment Act was unconstitutional because it allowed the service of documents such as infringement notices and orders via ordinary postage or e-mail. The Minister of Transport and the Road Traffic Infringement Agency – the first and third respondents – opposed the relief sought, arguing that the AARTO Act in fact fell within the functional area of ‘road traffic regulation’ set out in sch 4 of the Constitution, with the result that Parliament and the provincial legislatures had concurrent legislative competence. They further argued that the AARTO Act did not take away any executive functions or powers from the local sphere of government.
The CC held that the adjudication of, and penalisation for, the contravention of road traffic laws was for matters that necessarily called for national or inter-provincial regulation, explaining by way of example that people may violate traffic laws in any number of municipalities, or provinces, even on the same day. It concluded that the subject-matter of the AARTO Act fell within the functional area of ‘road traffic regulation’ in part A of sch 4, and the AARTO Act, therefore, fall within the concurrent legislative competence of the national and provincial spheres of government. The CC stressed that the AARTO Act did not in any way usurp municipalities’ executive or administrative functions and that they would still be required to administer municipality-made bylaws. Finally, the CC rejected the contention that the AARTO Amendment Act, by permitting service of documents through e-mail or ordinary postage, was unconstitutional.
The CC accordingly declined to confirm Basson J’s order declaring the AARTO and AARTO Amendment Acts unconstitutional.
Apart from these cases, the November issue of the SALR 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 2024 (March) DR 35.
