March 2019 (2) South African Law Reports (pp 1 – 328); [2019] 1 All South African Law Reports February (pp 291 – 584); [2019] All South African Law Reports April (pp 1 – 305); 2019 (1) Butterworths Constitutional Law Reports – January (pp 1 – 163)
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
GJ: Gauteng Local Division, Johannesburg
GP: Gauteng Division, Pretoria
KZD: KwaZulu-Natal Local Division, Durban
SCA: Supreme Court of Appeal
WCC: Western Cape Division, Cape Town
Civil procedure
Conflicting versions of expert evidence – balance of probabilities: In Batohi v Roux [2019] 1 All SA 390 (KZD) the defendant was a practising neurosurgeon in private practice and the plaintiff was his patient. During 2004, the defendant successfully operated on the plaintiff to alleviate a nerve-related problem. The plaintiff was almost immediately, rendered pain-free. In 2011 the pain recurred. The defendant performed a revision operation. This time, the procedure was less successful. The plaintiff sustained permanent and irreversible nerve damage.
The plaintiff sought damages from the defendant in delict on the ground that the latter was negligent in that he failed to allow for a sufficiently meaningful period of conservative treatment before advising the plaintiff to undergo the surgery in question. The plaintiff also averred that he was not sufficiently informed of the risks attached to the surgical procedure.
Vahed J held that the material issues for determination were as follows:
The plaintiff bore the onus of proof on all the issues.
The two versions placed before the court were conflicting and irreconcilable. The test, in such circumstances, is that the plaintiff can only succeed if he satisfies the court on a preponderance of probabilities that his version is true and accurate and, therefore, acceptable. The plaintiff must further prove that the other version advanced by the defendant is, therefore, false or mistaken and falls to be rejected. In deciding whether that evidence is true or not, the court will weigh up and test the plaintiff’s allegations against the general probabilities.
Both expert medical witnesses shared the view that, in the circumstances of this case, it was not unreasonable for the defendant to have recommended surgery without further conservative treatment. Even if it could be established that the defendant was negligent in not treating the plaintiff conservatively before resorting to surgery, the plaintiff had not succeeded in establishing that further conservative treatment would have resulted in a recovery. The plaintiff had thus not discharged the onus of proving causal negligence on the part of the defendant.
The court accordingly found in favour of the defendant.
Competition law
Unlawful use of confidential information and trade secrets: In Pexmart CC and Others v H Mocke Construction (Pty) Ltd and Another [2019] 1 All SA 335 (SCA) the first respondent (Mocke Construction) was a pipeline construction company that specialised in lining steel pipes used in the mining industry with a plastic high density polyethylene liner. Before the material events that gave rise to the present litigation, both the second respondent, Mr Mocke, and the third appellant, Henn, had developed experience in the plastic lining of steel pipes.
In furtherance of his ambition to revolutionise the pipe-lining industry by rehabilitating old pipes through placing a plastic liner inside the steel pipe, Mr Mocke began discussions with one Gish, an American, who sold Mr Mocke the exclusive and irrevocable licence to the process needed for plastic-lining steel pipes. In turn, Mr Mocke, with Gish’s consent, permitted Mocke Construction use of the intellectual property rights that flowed from the licence.
In 2011, Henn was employed by Mocke Construction. During his employment with Mocke Construction, he became involved in the plastic-lining process, but as revolutionised by Mr Mocke.
In 2013, Henn’s services with Mocke Construction were terminated and, he almost immediately thereafter, took up employment with the first appellant (Pexmart). Mocke Construction contended that Pexmart and Henn then became their competitors in the pipe-lining industry through the alleged unlawful actions of Henn. It alleged that the appellants had unlawfully made use of their confidential information and trade secrets.
Navsa ADP pointed out that the principles on which liability for unlawful competition rests are that every person is entitled to carry on their trade or business in competition with their rivals. But the competition must remain within lawful bounds. If it is carried on unlawfully, in the sense that it involves a wrongful interference with another’s rights as a trader that constitutes an injuria for which the Aquilian action lies if it has directly resulted in loss. The protection of confidential information is not always absolute nor is the protection always permanently available.
The court confirmed the reasoning and conclusion of the court below that in this case, the processes adopted by Pexmart and Henn were dissimilar to those employed by the Mocke Construction. Henn’s failure to testify was another factor that counted against Pexmart and Henn. He was at the centre of the dispute. The affidavits he filed were emphatic in their denial of material aspects of the respondents’ case. The material assertions by him in the answering affidavit filed on his behalf ought to have been testified to during the trial. His failure to testify was rightly held against Pexmart and Henn.
The court held that Pexmart and Henn made unlawful use of Mocke Construction’s confidential information and trade secrets. The appeal was dismissed with costs.
Constitutional law
Upgrading of Land Tenure Rights Act: In Rahube v Rahube and Others 2019 (2) SA 54 (CC); 2019 (1) BCLR 125 (CC) the court had to confirm an order of invalidity from the High Court with regards to s 2(1) of the Upgrading of Land Tenure Rights Act 112 of 1991 (the Upgrading Act). The High Court declared it invalid to the extent that it automatically converted the holders of land tenure rights into owners of the property, without providing other occupants or affected parties with an opportunity to make submissions.
Ms Rahube (applicant) was the sister of Mr Rahube (respondent). Ms Rahube moved into the property in question, and lived there with her family (grandmother, uncle, children, brothers). Ms Rahube, once married moved out, but moved back after divorce. Mr Rahube was elected as the holder of a certificate of occupation in 1987, and a deed of grant was issued in terms of proclamation R293 under the Black Administration Act 38 of 1927. The Upgrading Act automatically converted rights in property to ownership rights, which led to the respondent automatically becoming owner of the property, whether he was residing on the property or not.
The High Court held that this conversion was inherently gender biased because, in terms of the proclamation, women could not be the head of the family and, therefore, could not have a certificate or deed of grant registered in their name. The internal appeal procedure in s 24D of the Upgrading Act could not rescue the section, and it was, therefore, declared unconstitutional.
The order of invalidity was to apply retrospectively to 27 April 1994 but did not apply to cases where property has been sold to a third party or where the property had been inherited by a third party in terms of the laws of succession. The order was suspended for 18 months to allow Parliament to rectify the defect. Mr Rahube was precluded from transferring or encumbering the property.
On appeal the CC confirmed the order of the High Court. Goliath AJ held that the purpose of the Upgrading Act is to provide recognition and security of rights that had been previously ignored or systemically devalued. The Upgrading Act sought to address the pre-existing inequitable access. The automatic upgrading did not achieve this purpose since it effectively excluded African women from the benefit of the legal protection.
The court further held out that it is clear from the historical context of the provision, coupled with the wording (that referred only to ‘he’/‘his’ with regard to the holder), had a discriminatory impact on women, and is therefore against s 9 of the Constitution.
Customary law
Requirements of a customary marriage: The facts in Sengadi v Tsambo; In re: Tsambo [2019] 1 All SA 569 (GJ) were as follows: The applicant and the deceased agreed to marry in terms of customary law. On 28 February 2016 the families met to negotiate lobolo. They agreed on lobolo of R 45 000. On signature of the agreement the deceased paid R 30 000. The balance was to be paid in two instalments in future.
After the negotiations both the deceased and the applicant dressed up in wedding attire. The deceased’s family intended to conclude the wedding on the same day as the lobolo negotiations. The applicant was introduced as the deceased’s wife and she was welcomed into the deceased’s family. The event was captured by way of a video recording.
Due to the deceased’s infidelity and substance addiction the applicant moved out of the matrimonial home and stated that she will only return if the deceased goes for rehabilitation. When the deceased died the applicant moved back to their matrimonial home to mourn his death but was informed that she is not welcome, and the family did not recognise her as the customary-law wife of the deceased.
The respondent argues that the applicant was not handed over and that this is the most crucial part of the customary marriage.
An urgent application was launched where the applicant sought the following relief –
Mokgoathleng J held that the requirement of handing over the bride (integration) is discriminatory on the ground of gender and infringes on the right of dignity. Handing over (integration) cannot be regarded as an essential requirement in terms of s 3(1)(b) of the Recognition of Customary Marriages Act 120 of 1998. The applicant is the customary wife of the deceased.
Although the applicant is entitled to bury the deceased in terms of customary law, the deceased’s family can bury him on consideration of ubuntu. The deceased was a public figure of national importance and was to be accorded a civil funeral by the provincial government of the North West, which was funding the funeral.
The court refrained from making a ruling on the spoliation request.
Execution
Instance when a creditor may execute against debtor’s immovable property: In Nkola v Argent Steel Group (Pty) Ltd 2019 (2) SA 216 (SCA) the parties had been locked in litigation for several years. The respondent, Argent, had obtained judgment against Nkola, a particularly evasive and tricky debtor, for payment of a debt of R 914 712. Argent applied for two immovable properties owned by Nkola to be declared specifically executable since Nkola failed to point out sufficient movables to satisfy the judgment debt. The application was granted in the court of first instance.
Nkola appealed against this order, arguing that he has substantial movable assets in the form, largely, of shares in companies that he controls, but also expensive motor cars, and that Argent should have obtained execution in respect of these before seeking execution in respect of the immovable properties.
Lewis JA pointed out that it is correct that in executing a judgment, a debtor’s movable property must be attached and sold to satisfy the debt, before the creditor can proceed to execute against immovable property.
Only if the movables are insufficient to fulfil the debt may a creditor proceed against immovable property. The common-law rule is confirmed in rr 45 and 46 of the Uniform Rules of Court.
Rule 45(3) requires the officer of the court executing the order to demand payment of the debt by the debtor, and failing payment, ‘demand that so much movable and disposable property be pointed out as he may deem sufficient to satisfy’ the writ of execution, and failing such pointing out, search for such property.
There was no evidence before the court that any movable assets were pointed out by Nkola to the Sheriff, despite Nkola subsequently claiming in court papers that he had sufficient movable assets to satisfy the judgment debt.
The common law and the court rules place no obligation on a creditor to execute against movable assets where a judgment debtor has failed to point these out and make them available. In Silva v Transcape Transport Consultants and Another 1999 (4) SA 556 (W) the court held that r 45 did not remove the court’s discretion in this regard.
In the present case the fact that one of the properties was the family home, is irrelevant as the debtor had the means to avert the sale of the home, but deliberately chose not to do so.
The appeal was dismissed with costs.
Land law
Expropriation grounds for review: In Staufen Investments (Pty) Ltd v Minister of Public Works and Others 2019 (2) SA 295 (ECP); [2019] 2 All SA 258 (ECP) the applicant, Staufen, approached the court for an order to set aside a decision taken by the Minister of Public Works to expropriate certain rights over a portion of Staufen’s farm (in favour of Eskom). Since the decision to expropriate is an administrative act, Staufen also relied on s 6 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).
The existing electrical substation was built on the farm, and remained there in terms of an unregistered servitude with previous owners. Eskom tried to negotiate registering the servitude against payment of compensation to Staufen, but this was refused.
When Eskom failed to register the servitude, the Minister of Public Works instituted expropriation proceedings in terms of s 26(1) of the Electricity Regulation Act 4 of 2006 and the Expropriation Act 63 of 1975.
Staufen argued that the uncontrolled access to the power station posed a security risk, that the power station was on a large part of his quality arable land, that the land underneath the power lines had become sterilised, that the land’s value was diminished due to the building rubble and that the vehicles moving around was inconvenient. Staufen wanted the station moved. Eskom refused, stating that it would be too expensive, and that the power interruption on the surrounding communities and farms would be too disruptive. Eskom also provided reasons why it thought the state should, instead, expropriate the property.
Staufen, in turn, argued that Eskom was trying to regularise and legalise their occupation ex post facto, and that the expropriation was not for a legitimate public purpose as it was trying to regulate unlawful unconstitutional conduct as ulterior purpose.
Revelas J confirmed that the state may expropriate property within the parameters of the law, against the payment of compensation.
The court further confirmed that Staufen is entitled to administrative action that is lawful, reasonable and procedurally fair. A decision to deprive someone of their property will be arbitrary if there is not sufficient reasons for the deprivation, or if it is procedurally unfair. If there are less restrictive means to achieve the same purpose, this needs to be taken into account.
If Eskom’s current occupation is not regularised and they are subsequently expropriated, this will have a substantial negative impact on the electricity infrastructure. Eskom also bona fide believed that it did so in terms of a legal entitlement.
The obligation to pay compensation is a condition of expropriation, and not a prerequisite for its operation. Even if there was no determination of compensation, this does not affect the validity of the application.
Staufen’s application to review Eskom’s decision to expropriate the substation area on its farm was dismissed with costs. Staufen was ordered to pay 80% of the costs of the application, including the costs of two counsel.
Deprivation of informal land rights: The decision in Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Ltd and Another 2019 (2) SA 1 (CC); 2019 (1) BCLR 53 (CC) concerned the rights of a community who are living on a land on which the respondent mining company, Itereleng, enjoyed mining rights.
The title deed of the land on which the mine is situated is registered in the name of the Minister of Rural Development and Land Reform, who owns the farm in trust of the Bakgatla-Ba-Kgafela community. It is not disputed that the community holds right in the land (informal land rights) in terms of the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA).
Maledu and the other appellants (on behalf of the community) claim that they occupy and own the farm in question. Itereleng is the holder of the rights to mine. The mining right was awarded to Itereleng in terms of s 23 of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA), which included an environmental management programme in terms of s 39 of the MPRDA. A surface lease agreement was concluded with the Bakgatla-Ba-Kgafela Tribal Authority, which enabled the mining company to start full-scale mining operations on the farm, infringing the applicants’ peaceful and undisturbed occupation. The community obtained a spoliation order against the mining company, which prompted the mining company to apply for an eviction order and an interdict to prevent them from re-entering the land.
The community opposed this eviction application, claiming that they were not consulted by the mining company as is required in terms of s 2(1) of IPILRA. They have also not consented to being deprived of their informal rights to the farm, and the rights were not validly extinguished. They argued that in terms of s 25(2)(d) of the MPRDA, the mine did not comply with all the applicable laws. They also question the validity of the mining right, stating that they were never consulted during the process of the award of the mining right. Finally, the community argued that the interdict should fail, as there was a mechanism in the MPRDA in s 54 to resolve disputes in respect of the surface rights, which had not yet been exhausted.
The court a quo rejected the community’s arguments and granted an eviction order and an interdict against them.
The CC, per Petse AJ (Zondo DCJ, Dlodlo AJ, Froneman J, Goliath AJ, Jafta J, Khampepe J, Madlanga J and Theron J concurring), pointed out that the core issue turned on s 54 of the MPRDA and s 2 of IPILRA. The question was whether s 54 of the MPRDA is available to Itereleng, and if so, whether the section precludes Itereleng from obtaining an interdict before exhausting the mechanisms in s 54. The question that hinges on this is then also whether the community consented to being deprived of their informal land rights or interests in the farm.
The objects of the MPRDA are set out in s 2, which recognises the custodianship of the country’s minerals vesting in the state. The state must ensure that the resources are exploited for the benefit of the nation as a whole.
A mining right confers on its holder certain limited rights with respect to the mineral and land to which it relates. It gives the holder a right to enter onto the land and to do what is necessary to exercise the mining right. It mimics the common law in that respect. The exercise of these rights is subject to other provisions of the MPRDA.
Section 22(4)(b) of the MPRDA imposes a duty on a person applying for a mining right to consult with the landowner, lawful occupier or any interested or affected party, and to include the outcome of such consultation in the relevant environmental reports. This then places an obligation on obtaining consent from the affected person(s).
Section 2 of IPILRA protects people with any informal right in land from the deprivation of such a right, unless there was consent in terms of the customs and usages of the community or where the right is expropriated (and compensation paid).
Section 54(1) of the MPRDA obliges the Regional Manager appointed by the Director-General (Minerals and Energy) to be notified if the holder is prevented from commencing mining operations because the lawful occupier refuses entry. This section aims to balance the rights of the mining right holder and those whose surface rights are affected.
The mining company must take all reasonable steps to exhaust the s 54 process before it can apply for an interdict or eviction. It also cannot rely on the common law.
The MPRDA must be read together with the IPILRA as far as possible. The awarding of the mineral right does not nullify the occupation rights under IPILRA. Since the community have rights in the land, they need to be consulted before their rights can be taken away.
The appeal was upheld with costs.
Trusts
Whether ‘children, issue and descendants’ include adopted children: In Harvey NO and Others v Crawford NO and Others 2019 (2) SA 153 (SCA) the court was asked to consider whether the words ‘children’, ‘descendants’, ‘legal descendants’ and ‘issue’ in a trust deed, include ‘adoptive children’. In January 1953 one Druiff (the donor) executed a notarial deed of trust and on the same day executed a Will. The provisions of the trust deed determined that the income from the trust must be applied to the benefit of the four biological children of the donor and their children. On the death of the donor the trust income must be divided between the children of the donor or, if any child has died, the descendants of the child.
At the time of the execution of the trust deed the donor had four children of which three had children of their own. One of the donor’s daughters was married but did not have any children. She did fall pregnant on more than one occasion prior to the execution of the deed but was unable to carry the baby full term. She had informed the donor that she intended to adopt, and he responded that she should not rush into anything and rather wait to see what the future held.
She did, however, adopt two children after the donor’s death. There was uncertainty whether her adopted children would inherit her share in the trust after her death. The daughter approached the WCC for declaratory relief. The trustees opposed the application. Relief was denied, but permission to appeal granted. After the appeal was granted the first applicant died and was substituted by the executor of her estate (Harvey).
Harvey argued that the donor had the intention to include the adopted children.
In a majority decision Ponnan JA (Tshiqi JA, Zondi JA and Dambuza AJ concurring) held that the trust deed speaks from the time it was executed and must be interpreted as at that time. The intention of the donor must be determined from the ordinary grammatical meaning of the language used in the circumstances that existed then. Subsequent events cannot be used to alter the intention.
The Children’s Act 31 of 1937 (the 1937 Act) was still in force at the time of the execution of the deed. Under s 71(2)(a) of the 1937 Act, adopted children were not entitled to any property if the instrument was executed prior to the adoption, unless the instrument clearly conveyed the intention that property should devolve on an adopted child.
The donor was aware that the first applicant might not be able to bear children when he executed the deed. He made express provision for the eventuality that one or more of his children might die without issue, but did not make any provision for adoptive children. The deed was drafted by a professional person, probably a legal practitioner, and they would have advised the donor that he specifically needed to include adopted children in the deed. The donor’s omission is indicative that he had no such intention.
By employing the words ‘children’, ‘descendants’, ‘issue’, and ‘legal descendants’ the donor did not intend to benefit adopted descendants.
A clear distinction must be drawn between public and private trusts when determining freedom of testation. In the public sphere a trust may not be allowed to discriminate, however, in the private sphere emphasis should be placed on freedom of testation. The freedom of testation is guaranteed in the Constitution. Freedom of testation protects an individual’s right not only to unconditionally dispose of his property but also to choose his beneficiaries.
Where a beneficiary has been excluded he cannot challenge the disinheritance on constitutional grounds. However, this does not apply where a beneficiary has been included subject to a condition attached to the benefit if such a condition is contrary to public policy. The deed was executed in 1953 and was not against public policy at the time.
The appeal was dismissed with costs.
Other cases
Apart from the cases and topics that were discussed or referred to above, the material under review also contained cases dealing with: Administration of estates, Legal Practitioners’ Fidelity Fund, civil procedure, constitutional law, contracts, criminal law, delict, development of land, family law, loss of income, medicine, minerals, motor-vehicle accidents, land reform, prescription, property, provisional sentence and servitudes.
This article was first published in De Rebus in 2019 (May) DR 19.
