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
ECG: Eastern Cape Division, Makhanda (Grahamstown)
FB: Free State Division, Bloemfontein
SCA: Supreme Court of Appeal
WCC: Western Cape Division, Cape Town
Hunting and exporting of trophy animals: The first applicant in Trustees for the time being of the Humane Society International – Africa Trust and Others v Minister of Forestry, Fisheries and the Environment and Others [2022] 3 All SA 616 (WCC) (HSI-Africa) was the local chapter of an international organisation dedicated to the protection of animals. It sought an urgent interdict pending the review of a decision taken by the first respondent (the Minister) to fix a quota for the number of leopard, elephant and black rhinoceros that may be lawfully hunted in South Africa (SA) and later exported abroad as trophies by foreign hunters during 2022. The Minister was the National Management Authority responsible for the allocation of quotas in terms of regulation 3(2)(k) of the Regulations published under the National Environmental Management: Biodiversity Act 10 of 2004 (NEMBA) in respect of ‘The Convention on International Trade in Endangered Species of Wild Fauna and Flora’ (CITES Regs). CITES is a multilateral international treaty which was adopted by 21 countries in 1973. The overall purpose of CITES is to regulate the worldwide trade in endangered species of, inter alia, wild animals and plants. In terms of Article XI of CITES, the signatory parties meet from time to time in conference and take decisions, which then become binding on such member states affected thereby.
In terms of regulations issued under NEMBA, the black rhinoceros, leopard and elephant were respectively listed as ‘endangered’, ‘vulnerable’ and ‘protected’ species. A second set of regulations, the ‘Threatened or Protected Species Regulations’ (the TOPS Regs) aimed to address a wide range of issues relating to the protection of listed fauna and flora as contained in GN R151 GG29657/23-2-2007, including the control of the captive breeding of wild animals, the issuing of a host of permits for the control of, inter alia, game farms and hunting associations, and the hunting and protection of the wild populations of protected species. Thus, the permissible hunting of black rhinoceros, leopard and elephant for trophy purposes is strictly controlled within SA via a permit system. The Minister fixes the quotas for such hunting, while the MEC’s have the authority to issue individual permits. All such hunting must comply strictly with the hunting methods listed in the TOPS Regs.
HSI-Africa submitted that in terms of reg 6(3)(c) of the CITES Regs, a permit may only be granted for the export of any protected specimen once the scientific authority has evaluated the proposed quota, and, importantly, has made a non-detriment finding (NDF). Regarding the 2021 quota for leopards, HSI-Africa was critical of the evaluation of the scientific authority report. Regarding black rhinoceros, HSI-Africa stated that while a draft was circulated, no final NDF was submitted by the scientific authority for the 2021 quota.
Gamble J held that the requirements for the granting of an interim interdict pendent lite are establishment of a prima facie right to the relief sought; a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing his right; the balance of convenience favours the granting of the interim relief; and that the applicant has no other remedy.
HSI-Africa argued that the Minister’s advertising for consultation in relation to the fixing of a quota in a particular year and then applying the determination of the outcome of that consultative process in a subsequent year was impermissible. The court agreed that it was manifestly unfair to invite a party to consult on an issue in which the decision-maker is statutorily time bound and then for her to apply that participative process to a time period in respect of which there has been no consultation. HSI-Africa thus established a prima facie right to the relief sought. The remaining requirements for the interim interdict were also established, and such relief was granted.
Customer and banker relationship: In 2016, Nedbank requested certain information in respect of Houtbosplaas and TBS Alpha (its customers at the time) ostensibly pursuant to the provisions of the Financial Intelligence Centre Act 38 of 2001 (FICA). The bank sought to be provided with copies of the trust deeds of four trusts, each holding one preference and ordinary shares in the companies. The companies’ reluctance to provide one of the trust deeds on grounds of invasion of privacy led to an impasse causing the companies to instruct Nedbank to close the accounts and transfer all funds held therein to another bank. Nedbank refused and froze the accounts until the trust deed was furnished, and only closed the accounts in July 2017. The companies then successfully sued Nedbank for damages (ie, mora interest) for failing to give immediate effect to their instructions.
The High Court held that Nedbank was not justified in law to require a copy of the withheld trust deed, as none of the trusts exercised 25% voting rights at the companies’ general meetings. The court held that nowhere does the Act require bank clients to provide verification documents to a bank when requested to do so.
In Nedbank Limited v Houtbosplaas (Pty) Ltd and Another [2022] 3 All SA 361 (SCA), the issue revolved around the sole question of whether Nedbank was entitled, under FICA, to certified copies of the trust deeds of the four trusts, which were not customers of Nedbank. If that question was answered in the negative, a secondary issue would be whether Houtbosplaas and TBS Alpha were entitled to damages by way of mora interest because they were deprived of the use of their funds, withheld by Nedbank in the face of unequivocal instructions by the two companies to release the funds, for some five months.
The outcome of the appeal hinged on the proper interpretation of s 21(2) of FICA, which states that: ‘If an accountable institution had established a business relationship with a client before this Act took effect, the accountable institution may not conclude a transaction in the course of that business relationship, unless the accountable institution has taken the prescribed steps –
(a) to establish and verify the identity of the client’.
The court found that s 21(2), properly construed consistently with its manifest purpose, did not, on the facts of this case, apply at the time when Nedbank sought to invoke it.
The sole question to decide insofar as the respondents’ claim for mora interest was concerned was whether there was any lawful justification for Nedbank to restrict the accounts. Nedbank was shown to have been wrong in its reasons for restricting the accounts, and the respondents were entitled to mora interest. The appeal was dismissed.
Substantive requirements for lawful secondary strike: After the Labour Court interdicted numerous secondary strikes at ten mining companies in support of a primary strike at Sibanye Gold, application was made by the Association of Mineworkers and Construction Union (AMCU) and its members for leave to appeal. AMCU argued that the interpretation of s 66(2)(c) of the Labour Relations Act 66 of 1995 (LRA) by the Labour Courts, which imputes a proportionality assessment that considers the harm suffered by secondary employers, does not accord with the language of the provision.
In the majority judgment in Association of Mineworkers and Construction Union and Others v AngloGold Ashanti Ltd t/a AngloGold Ashanti and Others 2022 (8) BCLR 907 (CC), the appeal turned on the substantive requirements for lawful secondary strikes in terms of s 66(2)(c), the dispute related primarily to the interpretation and application of that section, which provides that: ‘No person may take part in a secondary strike unless –
…
(c) the nature and extent of the secondary strike is reasonable in relation to the possible direct or indirect effect that the secondary strike may have on the business of the primary employer.’
The analysis of s 66(2)(c) began with an appreciation that the LRA seeks to give effect to s 23 of the Constitution. Apart from undertaking an interpretation and application of s 66(2)(c), the court examined the provisions of s 23 of the Constitution and discussed the role of collective bargaining in labour relations. Also traversed was the way South Africa gives effect to the constitutional right to strike in the LRA.
While emphasising the importance of collective bargaining, the court warned that no right, including the right to strike, is absolute. Limitations on the right to participate in a secondary strike arise from both the Constitution and the LRA, although any limitation must comply with s 36 of the Constitution. The scheme of the Act, in regulating strikes, aims to provide clear procedural requirements. Once they are met, employees may lawfully embark on peaceful strikes. Secondary strikes replicate the pre-eminence of collective bargaining and the right to strike. Once a trade union fulfils the formal requirements prescribed in s 66(2)(a) and (b), para (c) stipulates the substantive requirements. Unlike the broad scope of common law interdicts, the text of s 66(3) narrows the grounds for interdicts. The procedural requirements for a strike are far more onerous than for a secondary strike.
The court found that s 66(2)(c) imports a proportionality analysis as the requirements of proportionality and reasonableness in respect of secondary strikes provide safeguards for secondary employers. In this case, the secondary strike was not reasonable.
Limitation on constitutional rights by ban on sale of tobacco during the National State of Disaster: Part of the government’s response to the COVID-19 pandemic was a series of regulations made by the Minister of Co-operative Governance and Traditional Affairs under s 27(2) of the Disaster Management Act 57 of 2002 (the Act) – including a prohibition on the sale of tobacco products, e-cigarettes, and related products.
The respondents were farmers, processors, manufacturers, retailers, and consumers, situated at every level of the supply chain for tobacco and related products. In June 2020, they launched an urgent application in the High Court for an order declaring that reg 45 published in GN608 GG43364/28-5-2020, which prohibited the sale of tobacco and related products, except for export, unconstitutional and invalid. The prohibition applied during Alert Level 3 of the National State of Disaster. According to the respondents, reg 45 limited the constitutional rights to dignity, privacy, freedom and security of the person, choice and practice of a trade or occupation freely, and protection against deprivation of property.
The respondents’ challenge to the regulation was upheld in the High Court, which found that reg 45 did not reduce the strain on the health system, and was, therefore, not shown to further the objectives in s 27(2)(n) of the Act.
That led to an appeal in Minister of Co-operative Governance and Traditional Affairs and Another v British American Tobacco South Africa (Pty) Ltd and Others [2022] 3 All SA 332 (SCA).
As it was clear that the rights implicated were limited, the appellants argued that reg 45 was reasonable and justifiable under s 36 of the Constitution. The determination of the constitutionality of reg 45 involved a two-stage analysis. The respondents were required to establish that the regulation limited one or more fundamental rights and if they did so, the burden shifted to the appellants to justify the limitation in terms of s 36(1) of the Constitution. The s 36 limitation inquiry requires a balancing of two sets of interests. On the one hand, there is the right that is limited. To be considered are its nature; its importance in an open and democratic society based on human dignity, equality, and freedom; and the nature and extent of the limitation. On the other hand, there is the importance of the purpose of the limitation. What must be assessed overall, is whether the limitation is proportional and whether it is reasonable having regard to its purpose and effect.
The court considered the concerns raised by the appellants in justification of the tobacco ban and found that the ban was not shown to effectively address those concerns. There was no scientific justification for the continued ban on the sale of tobacco products. Furthermore, the purpose behind reg 45 was found not to outweigh the limitation of the rights. Instead, reg 45 was an unjustifiable limitation of the rights to dignity, and bodily and psychological integrity. The extent to which reg 45 limited the rights in issue, particularly given the lack of factual and scientific evidence to support its promulgation, was disproportionate to the nature and importance of the rights infringed. The appeal was accordingly dismissed.
Rape of minor – applicability of prescribed minimum sentence: Alleging that between 11 and 13 October 2021 the accused unlawfully and intentionally committed acts of sexual penetration with a ten-year-old girl, the Director of Public Prosecutions (DPP) for the Eastern Cape Division, prosecuting for and in the name of the state, preferred a rape charge against the accused. As the complainant in S v SN [2022] 3 All SA 497 (ECG) was under the age of 16 and had been raped more than once, the DPP sought to have the prescribed minimum sentence of life imprisonment imposed in terms of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.
The accused pleaded guilty to the charge and signed a statement in terms of s 112(2) of the Criminal Procedure Act 51 of 1977, admitting the facts surrounding the rape of the complainant.
The court (per Norman J) having satisfied itself that the accused understood the importance of his statement, convicted him as charged.
On the issue of sentence, the accused testified in mitigation of sentence and requested a sentence of 20 years’ imprisonment instead of life imprisonment. Seeking the court’s mercy, he expressed remorse and apologised for his actions. On the other hand, the state advanced aggravating factors including the age of the complainant, and the breach of the trust she had placed in the accused.
Section 51 of the Criminal Law Amendment Act 105 of 1997 provides for discretionary minimum sentences for certain serious offences. In terms of s 51(3)(aA), the complainant’s previous sexual history; an apparent lack of physical injury to the complainant; the accused’s cultural or religious beliefs about rape; and any relationship between the accused person and the complainant prior to the offence being committed shall not constitute substantial and compelling circumstances justifying the imposition of a lesser sentence. The court also referred to the constitutional protection offered to children, which is echoed in the Children’s Act 38 of 2005.
Finding that the accused had displayed genuine remorse, the court held that substantial and compelling circumstances existed, which warranted deviation from the imposition of life imprisonment. One of the factors undergirding that conclusion was the fact that the accused had been stabbed by his brother and assaulted by the community on his crime being discovered.
As the accused had a clean criminal record for the previous 15 years, he was found to be a candidate for rehabilitation.
The court made an order facilitating the complainant receiving therapy for her trauma and sentenced the accused to 25 years’ imprisonment.
Defamation – defence of qualified privilege: In Rapp van Zyl Incorporated and Others v FirstRand Bank and Others [2022] 3 All SA 437 (WCC), a firm of attorneys and its two directors claimed damages from the first defendant bank (FirstRand) and one of its employees, arising from alleged defamatory statements made. The defendants denied that the statements were defamatory and, in the alternative, pleaded that the statements were not unlawful having been made on a privileged occasion.
The fourth defendant (Meintjies) was an attorney employed by the third defendant. He regularly advised FirstRand on insolvency applications, including applications for voluntary surrender, which were brought by debtors who had mortgage loans with it. He became suspicious about certain notices of intended surrender of debtors’ estates and became convinced that these were part of a concerted and deliberate stratagem to frustrate judgment creditors, such as the bank from being able to execute against their debtors, and he suspected that the notices emanated from a common, organised source. On discovering the identity of that source, he informed them that they were utilising the machinery of the Insolvency Act 24 of 1936 for purposes for which it was never intended, by causing surrender notices to be published whereby creditors were being notified that applications would be made for the voluntary surrender of debtors’ estates, without any actual intention of applying for such surrenders. Based on information before Meintjies, he concluded that the defendants were complicit in that.
Meintjies did not contradict himself in any material respect and stuck to his version in cross-examination and it could not be said that there were any material improbabilities in the evidence which he gave. On the other hand, the second and third plaintiffs were not satisfactory witnesses. The court expressed scepticism about their alleged ignorance of the true intention of the voluntary surrender applications.
The test in determining whether a statement is defamatory is an objective one. In the first place the court is required to establish the ordinary or natural meaning thereof, being the meaning which the reasonable reader of ordinary intelligence would attribute to the words under scrutiny, in their context. Thereafter, it must be determined whether the ascribed meaning of the words used would have the effect of injuring the plaintiff’s reputation by lowering her in the estimation of right-thinking members of society. Confirming that Meintjies’ statement was defamatory of the plaintiffs it was rebuttably presumed that the publication was made intentionally (animo iniuriandi) and that it was wrongful/unlawful. The sole defence, which was raised was one of qualified privilege. Any protection, which is extended on a so-called privileged occasion, is qualified and not absolute.
Applying the legal principles, the court found that the defendants, particularly Meintjies, did not do what was reasonably expected of them and acted recklessly. Their joining the plaintiffs as respondents on the basis that, as of June 2012, they were participants in the unlawful scheme, was not reasonably appropriate. Defendants were held liable for plaintiffs’ damages.
Appointment of managers to municipality under administration: By virtue of ss 154 and 155 of the Constitution, the applicant (the Member of the Executive Council (MEC)) in Member of the Executive Council for the Department of Co-Operative Governance and Traditional Affairs: Free State v Maluti-A-Phofung Local Municipality and Others [2022] 3 All SA 403 (FB), as the executive authority of the Free State Provincial government, was responsible for co-ordination, monitoring and support of municipalities in the province. In this case, the MEC sought to have the court review and declare on the alleged unlawful appointment of the second and third respondents on alleged unlawfully increased remuneration packages and the resultant unlawful drawing of the salaries.
The first respondent was a municipality, which had been placed under administration by mandatory intervention. Consequently, only the administrator had the authority to contract on behalf of the municipality with the second and third respondents.
The respondents acknowledged the standing of the MEC to bring a matter concerning the appointment of a municipal manager to court but complained about the unreasonable delay in doing so in this case.
It was held that, s 152 of the Constitution sets out the minimum standards applicable to a municipality in the execution of its duties.
In explaining the delay in bringing the present application, the MEC referred to attempts to afford the respondents sufficient opportunity to remedy the situation, and to the obstructive conduct of the respondents regarding the administrator’s attempts to discharge his duties. The allegations against the respondents were serious and the conduct of all the parties in dragging their feet in bringing the matter to court brought the administration of justice into disrepute. In that light, the court was constitutionally obliged to excuse the delay and hear the matter.
The first issue addressed by the court was whether the contracts entered by the respondents were legal on the facts and the applicable legal framework. At the relevant time, the municipality had been experiencing a financial crisis and was in serious and persistent breach of its obligations to provide basic services or meet its financial commitments. The administrator was required to scrutinise all budgetary matters. He had investigated the appointments of the second and third respondents and fixed a salary range for such appointments. However, the second and third respondents were appointed without the knowledge, involvement, or ratification of the administrator – and at variance with the remuneration scale determined by him. That was illegal and ultra vires the intervention. Even after realising that their contracts were not legal, the second and third respondents allowed the unlawfulness to persist without seeking to rectify the situation. The consequence of the finding that the contracts were unlawful was that any salary or remuneration pursuant thereto were also ultra vires and falling to be set aside.
That left for the court’s determination, the question of the remedy in law for the illegal contracts concluded by the respondents.
Applicable to a public interest case, such as this, was the local government legislative regime, regulating the powers and function of the municipal council and its resolutions, which were subject to salary determinations by the Minister of Co-operative Governance and Traditional Affairs. In terms of the rule of law and the Constitution, the fixing and payment of exorbitant salaries, which were ultra vires and in defiance of the needs of the people and constitutional governance, will be illegal in terms of s 2 of the Constitution.
Having regard to s 41 of the Constitution, which vests a court with a discretion to hear a matter even if not satisfied that the parties have made every reasonable effort to settle the dispute, the MEC could not be said to be non-suited by the provisions of the Intergovernmental Relations Framework Act 13 of 2005.
Both impugned contracts were set aside and the payment in excess of that permitted was to be repaid by the second and third respondents.
Apart from the cases and material dealt with above, the material under review also contained cases dealing with –
Merilyn Rowena Kader LLB (Unisa) is a Legal Editor at LexisNexis in Durban.
This article was first published in De Rebus in 2022 (Oct) DR 23.
