The Law Reports – May 2022

May 1st, 2022
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March 2022 (1) South African Law Reports (pp 1 – 318); March 2022 South African Criminal Law Reports (pp 229 – 338)

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.

Abbreviations

CC: Constitutional Court

ECG: Eastern Cape Division, Grahamstown

GP: Gauteng Division of the High Court in Pretoria

KZD: KwaZulu-Natal Local Division, Durban

KZP: KwaZulu-Natal Division, Pietermaritzburg

SCA: Supreme Court of Appeal

WCC: Western Cape Division, Cape Town

Children

The constitutionality of the prohibition on unmarried fathers giving notice of birth of children born out of wedlock under their own surnames in absence of or without consent of the mother: The matter of Centre for Child Law v Director-General, Department of Home Affairs and Others 2022 (2) SA 131 (CC) concerned an application to confirm an order by the Full Court of the ECG declaring the provisions of s 10 read with s 9 of the Births and Deaths Registration Act 51 of 1992 unconstitutional. Section 9(2) provided that notice shall be given ‘under the surname of either the father or the mother of the child concerned, or the surnames of both the father and mother joined together as a double-barrelled surname’. This section was made ‘[s]ubject to the provisions of section 10’. Section 10 in effect regulated the giving of notice of birth of a child born ‘out of wedlock’: it permitted the mother, without qualification, to give notice of such birth under her surname, yet, in contrast, allowed the father to give notice under his surname only if it was done in the presence of the mother or with her consent. According to the Full Bench of the ECG, this differentiation made the section unconstitutional.

The matter arose out of an application brought before a single judge of the ECG by Mr Naki, a South African and Ms Ndovya, a citizen of the Democratic Republic of Congo (DRC), to compel the Department of Home Affairs (the Department) to register the birth of their child born in South Africa (SA). The Department refused on the grounds that the parents did not meet the requirements of the regulations in respect of children born of foreign nationals: The mother did not have a valid visa or permit, and the Department refused to recognise the validity of Ms Ndovya and Mr Naki’s marriage because it took place in accordance with the customs of the DRC. The Department accordingly regarded the child was born out of wedlock.

The Centre for Child Law successfully intervened in the application, seeking an order impugning the constitutionality of, inter alia, s 10 of the Act. While Ms Ndovya and Mr Naki were successful in their application, the Centre for Child Law was not, and so appealed to the Full Court, achieving success there. The Centre for Child Law was the applicant in the present application before the CC. The Director General of the Department of Home Affairs and the Minister of Home Affairs were, respectively, the first and second respondents.

The majority of the CC (per Victor AJ, with Jafta J, Khampepe J, Madlanga J, Majiedt J, Mhlantla J, Theron J and Tshiqi J concurring) found that s 10 unfairly discriminated against an unmarried father on the basis of sex, gender and marital status, by prohibiting him from registering the birth of his child without the mother’s consent or presence. The CC ruled that this was a barrier to unmarried fathers’ full participation as parents and perpetuated harmful gendered narratives about caregiving, such as that child-care was inherently a mother’s duty. The CC also found that s 10 infringed the unmarried father’s dignity by deeming his bond with his child to be less worthy simply based on his marital status.

The majority declared s 10 to be unconstitutional. The appropriate remedy, they found, was to sever ss 10 and 9(2) (which made s 9 subject to s 10) from the Act.

In a dissenting judgment Mogoeng J (Mathopo AJ concurring) acknowledged that s 10 discriminated against unmarried fathers. He found, however, that the discrimination was justifiable under the limitations clause of the Constitution. He held that it was rational to require, when a person sought to register the birth of his child born out of wedlock under his surname as father, the presence of consent or the mother. This was crucial to confirm the fatherhood of the person claiming it, and whether he indeed was committed to the welfare of the child; this, given the undocumented, informal and unevidenced nature of relationships other than a marriage. Mogoeng J added that a regulatory framework requiring such assurances from the mother could not be said to impair the dignity of the unmarried father.

Criminal law

Police must follow the correct procedures in cases of alleged shoplifting: In S v Elgin 2022 (1) SACR 325 (WCC) the accused was arrested on a charge of theft of a mini hair-straightener and a box of Calmettes from a Clicks store and taken to the local police station. There she was told that she would be released if she paid an admission-of-guilt fine of R 300. She duly paid the fine and was released. This also led to a previous conviction being entered on her record.

In a subsequent affidavit, provided to the magistrates’ court, the accused alleged that the South African Police Service (SAPS) did not follow correct procedures and that the ones followed amounted to an injustice. She had entered the store ‘in a daze’ while emotionally fragile and did not understand the steps in the process before she paid the fine. She suffered from depression and anxiety and used anti-depressant and anti-psychotic medication which affected her mental state and made her feel ‘spaced out’. She was told that if she did not pay, she would be detained overnight, for up to 48 hours or until the court hearing. She was terrified and did not want to go back to the cells. The payment of a fine was presented to her as the only option for her release, and it was never explained that she could be released on warning or on bail and pay a fine later or appear later in court.

The admission of guilt was confirmed by a magistrate, but in the light of the new facts the senior magistrate in Wynberg Magistrate’s Court sent the matter on review in terms of the provisions of s 304(4) of the Criminal Procedure Act 51 of 1977.

Thulare AJ, the reviewing judge, found that the import of the consequences of the accused paying the admission-of-guilt fine had not been explained to her, and that this deficiency had resulted in a failure of justice. The certifying magistrate had not been apprised of the facts set out in the affidavit at the time of certification and justice required that these new facts be considered. An alleged erroneous admission of guilt and/or a probable or an arguable defence, had been sufficiently demonstrated in the affidavit.

In coming to his conclusions, Thulare AJ noted that the accused was not issued with a summons or written notice, but arrested and detained for a minor offence, contrary to the spirit and purport of the provisions of s 57. Alluding to low-hanging fruit, he cautioned against the practice, pointing out that justice ought not be buried in the cemetery of statistics on convictions for the state to look good on paper in the fight against crime.

The conviction and sentence were accordingly set aside, and the amount paid refunded to the accused who could still be prosecuted in the ordinary course.

Other criminal law cases

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

  • amendment of bail conditions;
  • bail;
  • domestic violence protection orders;
  • drunk driving: Driving with excessive concentration of alcohol in blood;
  • mental health: Assisted-care, treatment and rehabilitation services;
  • permanent stay of prosecution;
  • prevention of crime: Restraint order – company in business rescue;
  • search and seizure;
  • sentence: Non-parole period; and
  • the putting into operation of a suspended sentence.
Education

Was the discontinuation of Afrikaans as a medium of instruction at Unisa, the country’s principal distance-learning university, constitutional? The background to Chairperson, Council of the University of South Africa and Others v Afriforum NPC 2022 (2) SA 1 (CC) (Majiedt J writing for a unanimous court), was that before 2006 all undergraduate courses at the University of South Africa (Unisa) were in English with an Afrikaans component that ranged in its extent. Such courses could be fully bilingual in their teaching and materials or could provide for Afrikaans in lesser degree, such as in materials only. In 2016 this changed when Unisa adopted a policy phasing out Afrikaans as a language of instruction. Displeased with this state of affairs, Afriforum approached the GP for the review and setting aside of Unisa’s decision on the bases that it infringed Afrikaans-speaking students’ right to receive education in the language of their choice, that it was irrational, and that it was also unlawful.

The High Court ruled against Afriforum, finding that there was no violation of the right to language-of-choice education and that Unisa’s decision was a sound balancing of the interests of practicability, equity, and redress, particularly when viewed against the background of declining demand for Afrikaans teaching and a need to devote resources to other official languages. The High Court also found that the decision was a rational employment of Unisa’s powers under the Higher Education Act 101 of 1997 and the National Language Policy, and that despite procedural shortcomings, it met the standard of legality.

With the High Court’s leave, Afriforum appealed to the SCA, which ruled that Unisa had not established that practicability, redress and equity militated for Afrikaans’s removal. Factors bearing on this were the diminishment of a presently enjoyed right, the insufficiency of resources, and the absence of risk that continued instruction in Afrikaans could foment the racially based ills that it had at two other universities. The SCA consequently ordered the reinstatement of Afrikaans modules on the back of a declaration that the language policy was unconstitutional.

Unisa then sought leave to appeal to the CC, which was granted, though the court ultimately dismissed the appeal. In essence, the CC found that Unisa had taken insufficient cognisance of the factors listed in s 29(2) (practicability, redress, equity, alternatives) before taking its decision, and that, in any event, assessment of these factors weighed against the discontinuation of Afrikaans tuition. The CC specifically found that:

Continuation of Afrikaans did not pose the threat it had in the previous university cases (segregation, marginalisation, access), in large part because the students did not attend the Unisa campus for teaching.

There was no evidence that Afrikaans teaching was or would be a retardant of the development of other African languages.

Cost considerations had not been raised at all in the meetings before the language policy was adopted and the argument that continuing with Afrikaans favoured the historically privileged was fallacious because it was based on an inaccurate picture of who Afrikaans speakers were, it was unsupported by evidence, and contrary to the commitment to heal societal divisions.

As far as remedy was concerned, the CC, mindful of overreach and the need to afford leeway to the University to determine the language policy going forward, ordered as follows –

  • the SCA’s order was suspended (it had, inter alia, declared the language policy unconstitutional, set aside the decisions adopting it, and ordered the presentation in Afrikaans of courses that had been in that language);
  • that were the University to continue with the policy, it was to be adapted to comply with section 29(2); and
  • that were the University to adopt a new policy the SCA’s order would fall away.
Interest

The application of the in duplum rule to mora interest claimed on liquidated debt as contemplated in s 1(1) of Prescribed Rate of Interest Act 55 of 1975 (the Act): This matter, cited Da Cruz v Bernardo 2022 (2) SA 185 (GJ), concerned an application before the GJ, heard by Turner AJ, for an order declaring that the in duplum rule did not apply to the moratory interest on a liquidated debt awarded in a previous order of the same court (per Foulkes-Jones AJ). The latter had been confronted with a claim for damages brought by the applicant, Da Cruz, against the respondent, Bernardo, in which the former sought repayment of money the latter promised, in terms of an agreement between the parties, to invest in one of the respondent’s businesses. Those investments collapsed, which prompted the applicant to litigate. Foulkes-Jones AJ ordered the respondent to pay to the applicant the capital sum of R 812 500, plus interest on the amount a tempore mora calculated from date on which the applicant had initially demanded repayment. At a date subsequent to judgment, the applicant had sought payment from the respondent of capital, plus interest in the amount of R 1 590 952,91. The respondent paid the capital sum, but, as to interest, agreed only to pay the equivalent of the capital amount, refusing to pay the interest claimed. It justified this action based on the in duplum principle, which provides that arrear interest ceases to accrue once the sum of the unpaid interest equals the amount of the outstanding capital. That response prompted the present proceedings, in which the applicant sought the declarator above, as well as orders declaring the respondent to remain indebted to the applicant in the amount of R 785 008,56, being the balance due in respect of moratory interest awarded in the judgment; and seeking interest on the amount of R 785 008,56 a tempore morae to date of final payment.

The legal issue to be decided was whether the in duplum rule applied to liquidated debts which, in the absence of any law or agreement regulating interest, bore mora interest in terms of the common law, to which s 1(1) of the Prescribed Rate of Interest Act 55 of 1975 consequently applied. The court reached the conclusion that it did not. Critical to its finding was that a survey of South African authorities revealed that the judgments that had held the rule applicable concerned contractual claims where the interest rate was agreed. Mora interest was, however, fundamentally different to contractual interest, because it was not payable in terms of an agreement but regarded as fair compensation for loss or damage arising from default by the debtor. Also relevant was the fact that there could be significant delays in litigation concerning claims for liquidated debts to which mora interest applied. In addition, the Prescribed Rate of Interest Act itself did not set a limit on the interest claimable or specifically incorporate the in duplum principle.

The GJ in view of the above found for the applicant and ordered the respondent to pay the applicant the balance due in respect of moratory interest awarded by Foulkes-Jones AJ.

Landlord and tenant

Remission of rental for loss of beneficial occupation by subtenant due vis maior: In Trustees, Bymyam Trust v Butcher Shop and Grill CC 2022 (2) SA 99 (WCC) the facts were that the respondent (BSG) had leased premises from the applicant (BT), on which it, inter alia, ran a restaurant business. BSG, later sublet the premises, with BT’s written consent, to a closely related entity, Apoldo Trade (Pty) Ltd (Apoldo), which continued the business, ‘trading as’ BSG.

Then lockdown regulations under the Disaster Management Act 57 of 2002 intervened. Aimed at combating the COVID-19 pandemic, they imposed an initial lockdown period that initially forced restaurants to close completely and, thereafter, severely limited their maximum seating capacity, crushing their profitability. In response BSG stopped paying BT rental and resisted BT’s application in the WCC to collect outstanding rental – in arrears since the initial lockdown period – on the basis that the regulations constituted vis maior or casus fortuitus, which deprived it of beneficial occupation and exempted it from having to pay the full rental. BSG also brought a counter-application for a stay and dismissal of the main application and for a declaratory order that it was entitled to a remission of rental on the same basis for the period April – August 2020. In issue was whether a lessee may claim rental remission based on loss of beneficial occupation by the sublessee which occupied the leased premises, namely, where the lessee was not in beneficial occupation or physical control of the leased premises.

The WCC, per Pangarker AJ, held that a sublease entailed two contracts:

  • a lease between landlord and tenant (lessor and lessee); and
  • a sublease between tenant and subtenant (sublessee).

The lessor’s obligations were toward the lessee and not the sublessee. BT’s written consent to the respondent subletting the premises in no way created an agreement in terms of which BT was obliged to provide beneficial occupation to the sublessee (Apoldo), nor did it create obligations and rights between them.

Pangarker AJ noted that BSG was not occupying the leased premises, nor was it in physical possession or control thereof. It further held that a lessee could not avail itself of the common-law claim for an abatement or remission of rent in circumstances where its use, enjoyment and beneficial occupation were not denied or disturbed. BSG’s lack of physical occupation of the leased premises had the result that it was not entitled to claim rental remission from the applicant, and its counter-application would, therefore, be dismissed. Pangarker AJ concluded that BSG was, therefore, still bound by the lease agreement and would be required to comply with its terms and pay the full rental.

Legal practitioners

Where a client’s attorney moves to a new firm, may the new firm be interdicted from acting against the client? What happens when one of the legal practitioners dealing with your divorce moves to the firm representing your spouse? Can you get an interdict? These were the issues in WDL and Others v Gundelfinger and Others 2022 (2) SA 272 (GJ) (per Windell J). The attorney in question, Ms Steyn, had done work for the husband (the first applicant) while in the employ of the firm (Clarks Attorneys) and then joined the firm representing the wife (BL Attorneys). When the husband became aware of this, he, and the other applicants, citing conflict of interest, demanded that BL Attorneys withdraw from the divorce proceedings. They sought a final interdict based on the right to protection of the confidential information imparted to Clarks Attorneys when they represented the husband. The issue before the GJ was whether the information imparted to Ms Steyn was still confidential and relevant to the issues in the subject-matter and, therefore, worthy of protection. The applicants claimed that an interdict was the only viable remedy available for the protection of the husband’s right to information confidentiality and that he had a well-founded fear that it would be compromised because of Ms Steyn’s employment with BL Attorneys. The respondents (the wife, the attorney representing her and Ms Steyn) did not dispute that Ms Steyn received confidential information from the husband but contended, nonetheless, that the applicants failed to sufficiently identify the information sought to be protected, and as a result failed to establish that the information remained confidential and relevant to the issues in the divorce proceedings.

In her judgment, Windell J pointed out that a legal representative owes a fiduciary duty to their current client to act in their best interests, which duty precludes a legal representative from simultaneously acting for two clients with conflicting interests. The only duty that survives the termination of the legal representative’s mandate, is the duty to preserve the confidentiality of information imparted to him through his professional relationship with a former client. To obtain the interdict, the applicants had to show, inter alia, that the information imparted to Ms Steyn remained confidential and relevant to the divorce.

As to the degree of particularity required in respect of the information, Windell J emphasised that this always depended on the facts. She pointed out that it was not sufficient for an applicant to make a general allegation that the attorney was in possession of confidential information. Indeed, the more general the description of the information that the applicant sought to protect, the more difficult it would be to decide, which information to protect.

After considering the relevant facts, Windell J concluded that the applicants had failed to sufficiently identify the information they claimed to be confidential, which was a fatal deficiency. Over and above that, the applicants failed to show that the information imparted to Ms Steyn remained confidential or that it was memorable and not forgettable. This was also fatal to the application.

Windell J, therefore, refused the application for a final interdict: The right foundational to the relief sought had not been established.

Windell J then considered whether she should engage the court’s inherent jurisdiction to bar the respondent attorneys from acting in the matter. The test was whether a reasonable person in possession of the relevant facts would think that judicial process and the administration of justice would be threatened if respondents continued to act for the wife. Windell J concluded that this requirement was not established, and that it was not in the public interest to disqualify respondents from continuing their services to the wife. In the light of all this, she dismissed the application.

Sectional title

Compromising body corporate’s claim for arrear levies, interest and costs: The matter of Zikalala v Body Corporate, Selma Court and Another 2022 (2) SA 305 (KZP) concerned an appeal against the dismissal of a counter-application by the appellant, the owner of sectional title unit in the Selma Court sectional title scheme, in an application by the Selma Court’s body corporate to declare his unit specially executable. This was after Selma Court’s body corporate had taken default judgment against the appellant for, inter alia, arrear levies. The appellant subsequently made an offer – for less than the full outstanding amount, interest and costs – which was at first accepted, in error, by the body corporate’s attorneys and then rejected. The appellant’s counter-application was for an order declaring that this ‘settlement agreement’ was valid and enforceable. The issue before the KZP was whether it was competent in law for the first respondent to have accepted an offer less than what had been claimed against the appellant, namely, whether the trustees could do so given their powers in terms of the Sectional Title Schemes Management Act 8 of 2011 and the Regulations.

The KZP, per Chetty J, dismissed the appeal, ruling that trustees may not conclude an agreement outside the ambit of the powers they were given under the Act. Neither the Act nor the Management Rules permitted a body corporate to compromise its obligation to collect levies or contributions. Absent any express or implied provision in the Act, trustees are not empowered to accept a settlement offer of a lesser amount than what is owing to the body corporate. The statutory obligation imposed on the body corporate is to collect the full amount of levies and contributions due, together with interest and legal costs. No latitude was afforded to trustees to deviate from this obligation.

Shipping

Limitation of the shipowner’s liability in case of damage caused to a foreign warship: In MV MSC Susanna: Owners and Underwriters, MV MSC Susanna and Another v Transnet SOC Ltd and Others 2022 (2) SA 85 (SCA), the SCA was faced with the current implications of the old principle of maritime law that a shipowner can limit their liability for damages arising from the operation of their ship to its value. In South Africa, this limitation is embodied in ch V Part 4 of the Merchant Shipping Act 57 of 1951, specifically s 261(1)(b), headed ‘Collisions, Accidents at Sea, and Limitation of Liability’ and which specifies ‘[w]hen owner [of harm-causing vessel is] not liable for whole damage’. The case dealt the interpretation of s 261(1)(b) in the light of s 3(6) of the Act, which states that the Act ‘shall not apply to ships belonging to the defence forces of the Republic or of any other country’.

The facts were that, during a severe storm in October 2017, MSC Susanna broke its moorings in the port of Durban and collided with the frigate Floreal of the French Navy (represented by the second respondent – the French Ministère des Armées) as well as with port infrastructure belonging to Transnet (the first respondent in the guise of the National Ports Authority of South Africa (the NPA)). The NPA sued the appellants – the owners and underwriters, and the demise charterer of Susanna – for damages of R 23 million. The appellants applied for a declaration of non-liability in relation to the damages to Floreal, for which the Ministère had lodged a counterclaim for € 10 million.

In November 2019 the appellants, invoking s 261(1)(b), instituted a limitation action against the NPA in the KZD, seeking at the same time to join the Ministère to the action. The Ministère resisted, arguing that the limitation in s 261(1)(b) did not apply to warships like Floreal by virtue of the above-mentioned s 3(6) of the Act. The appellants on the other hand argued the limitation did apply against the Ministère, as the party making the claim against them, as opposed to Floreal itself. They submitted that section 261(1)(b) conferred a wide right that could not be restricted in the way the Ministère wanted, that is, by inserting after the words ‘any property of any kind’ in s 261(1)(b), the words ‘save a naval vessel owned by the defence force of any nation’. The KZD refused to join the Ministère.

In an appeal the SCA, per Wallis JA (in a unanimous decision) held that the terms of s 261(1)(b) were clear and comprehensive: The right to limit was given to the owner of the ship in respect of all loss or damage to any property or rights of any kind, without qualification, and would include the loss or damage embodied in the Ministère’s claim. This meant that the focus had to be on the effect of s 3(6), which excluded the bulk of the provisions of the Act from application to both South African and foreign vessels forming part of their country’s defence forces. But ch V Part 4 (where s 261 was located) differed from the rest of these provisions since it was focused on the legal liability of owners and its limitation. This was important because s 3(6) did not say that the Act did not apply to owners of ships. It would, moreover, be linguistically inapt to exclude the invocation of limitation by the owners of Susanna.

Wallis JA then refuted the Ministère’s argument that the Act was not concerned with warships. He pointed out that the Susanna was a merchant ship that was engaged in merchant shipping at the time of the incident giving rise to the claims against the appellant and that an exemption from the right to invoke limitation in respect of claims by warships would be inconsistent with international practice. Wallis JA consequently upheld the appeal and joined the Ministère as defendant in the action instituted by the appellants.

Other cases

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

  • abandonment of default judgment;
  • class actions;
  • company: Resolution to amend its memorandum of incorporation;
  • company: Voidable dispositions made before liquidation;
  • Local government: Order to compel state to ensure that funds disbursed in line with earlier court order; and
  • pleadings: Requirement that copy of on written contract relied on be annexed to pleadings.

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 2022 (May) DR 24.

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