July [2024] 3 All South African Law Reports (pp 1 – 317); August [2024] 3 All South African Law Reports (pp 319 – 651); Judgments Online (JOL) – July, August 2024| 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. |
ECB: Eastern Cape High Court, Bhisho
ECG: Eastern Cape Division, Makhanda (formerly Grahamstown)
GJ: Gauteng Local Division, Johannesburg
SCA: Supreme Court of Appeal
WCC: Western Cape Division, Cape Town
Application for recusal of judge/prohibition of hate speech: In AfriForum v Economic Freedom Fighters and Others (Rule of Law Project – Free Market Foundation as amicus curiae) [2024] 3 All SA 319 (SCA), the appellant (AfriForum) lodged a complaint in the Equality Court, alleging that the respondents had committed hate speech in terms of s 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act). The complaint centered on the words in a song sung by the respondents, translating to ‘Kill the Boer – the farmer’.
Before addressing the merits, the court had to consider an application by AfriForum for the recusal of one of the judges, based on perceived bias against AfriForum from comments made in a previous case. The court held that the test for recusal is objective, and the applicant bears the onus of establishing bias or a reasonable apprehension of bias. In this case, the court found that the test for recusal was not met, and there was no reason to apprehend bias from the judge in question.
On the hate speech complaint, the court outlined the legal principles regulating the prohibition of hate speech, which balance the fundamental rights to freedom of expression, dignity, and equality. Hate speech is expressly prohibited under s 10 of the Equality Act, which requires a two-stage inquiry:
The court found that a reasonably well-informed person would understand the context in which the song was sung, and the Constitution requires a measure of tolerance. The singing of the song was considered an exercise of the right to freedom of expression.
Consequently, the appeal was dismissed.
Administration of national bursary scheme: In National Student Financial Aid Scheme and Others v Moloi and Others [2024] 3 All SA 86 (SCA), the first applicant (NSFAS) was responsible for managing a bursary scheme established under the National Student Financial Aid Scheme Act 56 of 1999. The objective was to provide financial aid to eligible students for higher education programmes, based on guidelines issued by NSFAS in consultation with the minister.
In March 2021, the minister announced changes to the 2020 Guidelines due to a budget shortfall, effectively excluding funding for second or postgraduate university qualifications for 2021. The first to third respondents, pursuing a postgraduate LLB degree (as a second qualification), challenged the defunding of the LLB under the 2021 Guidelines, contending they had a legitimate expectation of funding as the LLB was a ‘professional requirement’ for employment as lawyers. The High Court set aside the decision, finding it irrational and inconsistent with NSFAS’s objectives.
The central issue was whether the decision to exclude the postgraduate LLB from funding was lawful and reasonable. The court held that the decision was an exercise of executive powers, not administrative action under the Promotion of Administrative Justice Act 3 of 2000. The guidelines were regulatory in nature, providing the framework for implementing the bursary scheme.
The court found that the 2021 Guidelines were adopted for a legitimate government purpose, given the financial constraints, to fund as many beneficiaries as possible for their first undergraduate degree. The exclusion of the second degree LLB was rational and reasonable, and the respondents had not established a legitimate expectation of funding.
Consequently, the appeal was upheld, and the decision to exclude the postgraduate LLB from funding under the 2021 Guidelines was found to be lawful and reasonable.
Claim for damages arising from repudiation of agreement: In On Farm Holdings (Pty) Ltd v Van den Heever NO and Others [2024] 3 All SA 629 (ECG), the plaintiff (On Farm) claimed that an agreement provided for two trusts, of which the defendants were trustees, to make three farming properties available to a company (Bridge Farm) for a dairy farming enterprise. On Farm alleged that Bridge Farm had appointed On Farm as the sole and exclusive manager of the enterprise, and that On Farm would pay the two trusts collectively R 1 million per annum.
The defendants denied the material terms of the agreement as detailed by the plaintiff. They contended that the agreement was for a lease of the farm properties to Bridge Farm for not less than ten years but excluded portions of the properties from the lease. The defendants argued that the lease was unlawful and void under the Sub-Division of Agricultural Land Act 70 of 1970, as it involved agricultural properties leased for ten years without the required ministerial consent.
The central issue was whether the agreement constituted a lease subject to the Act, and if so, whether it was struck by the Act’s requirements. The court had to determine if there was sufficient evidence on which a reasonable court could find for the plaintiff on the interpretation of the agreement.
The court, per Lowe J, held that absolution from the instance should be refused unless the proper interpretation appears beyond question. Where an agreement is contrary to legislation, its validity must be sought primarily in the wording of the legislation itself. The court found that it could not be said beyond question that a reasonable court would not find for the plaintiff on the nature of the agreement.
Consequently, the defendants’ claim for absolution from the instance was dismissed, as the court could not conclude that the plaintiff’s case on the interpretation of the agreement was hopeless.
Default judgment: In Hamze Trading (Pty) Ltd v Alf’s Tippers CC [2024] 3 All SA 248 (GJ), the applicant and the respondent had entered into a written agreement for the respondent to provide tipper trucks with drivers to the applicant at an hourly rate. The agreement was subsequently amended orally, despite a non-variation clause. The relationship between the parties ended, and the respondent terminated the contract due to the applicant’s failure to make proper payment. The respondent obtained a default judgment against the applicant, and the applicant sought rescission of the default judgment.
The central issue was whether the applicant had shown good or sufficient cause for rescission of the default judgment, as required by r 31(2)(b) of the Uniform Rules of Court or at common law. The court examined the requirements for good cause, including a reasonable explanation for the default, a bona fide application, and a bona fide defence with prima facie prospects of success.
Regarding the explanation for default, the court considered whether service of the summons by affixing at the applicant’s registered office was valid or precluded by the respondent’s standard terms and conditions. The court, per Meiring AJ, found that while r 4(1)(a)(v) permits service by affixing at the main door of a registered office, the service in this case was ineffective as it was not affixed to the main door.
However, despite the finding on ineffective service, the court was not satisfied that the applicant had raised any bona fide defence. Consequently, the application for rescission of the default judgment was dismissed, as the applicant failed to establish good or sufficient cause.
The court dismissed the application for rescission, holding that the applicant did not meet the requirements for good cause, despite the ineffective service, as the applicant did not raise a bona fide defence with prima facie prospects of success.
Jurisdiction in action where parties were peregrini of court: In April 2021, the respondent published a report on its website, containing allegations that the appellant considered defamatory. The appellant’s South African attorney, acting on instructions, accessed the respondent’s website and downloaded the report in Johannesburg. The appellant, on the basis that the report was accessed in Johannesburg, launched an urgent application in the High Court seeking interim relief. Both parties were peregrini of the court and owned no immovable property in South Africa. The court held that it did not have jurisdiction to entertain the application and that South Africa
was not a forum of convenience. The dismissal of the application led to the present appeal in IRD Global Ltd v The Global Fund to fight AIDS, Tuberculosis and Malaria [2024] JOL 65393 (SCA).
The court found that where a judgment debtor has immovable property in South Africa, a court can order its attachment and so give effect to its judgment. Jurisdiction is also exercised where litigants submit to the court’s jurisdiction. The respondent in this matter had not submitted to the court’s jurisdiction. The facts established that neither party had any real connection to South Africa. Adequate connecting factors for jurisdiction were absent and the court would be unable to give effect to its judgment. The appeal was accordingly dismissed.
Prescription of claim for contractual and delictual damages: After he was dismissed by Transnet for misconduct, the applicant (Mr Jeewan) instituted action claiming damages arising from the premature termination of his employment contract. The central issue on appeal against a High Court order dismissing his claim was whether the claim had prescribed within a period of three years from his alleged unfair dismissal in terms of s 11(d) of the Prescription Act 68 of 1969, as contended for by Transnet, or whether, the debt only arose when the arbitration award was issued, as contended for by Mr Jeewan.
In Jeewan v Transnet SOC Ltd and Another [2024] JOL 65394 (SCA), the court confirms that Mr Jeewan’s claim, which was located in the common law, fell within the ordinary jurisdiction of the High Court. The court explains the running of prescription and what constitutes a debt that is due. Mr Jeewan was not prevented from approaching the High Court sooner for purposes of pursuing his common law claim. None of the arguments advanced by him regarding the issue of prescription was sustainable. The appeal on that point was dismissed.
Eviction orders sought through application procedure: In an ex parte application in DNN Technologies (Pty) Ltd v Mdwara [2024] JOL 65338 (GJ), the applicant, who was the plaintiff in an action for the eviction of the defendant, sought the court’s approval of a notice to be delivered in terms of s 4(2) of the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998. The application was preparatory to the hearing of an application for summary judgment for the eviction. The question was whether it is open to a person seeking eviction under the Act to do so by way of action or whether such a case is one which must, necessarily, be brought by way of application.
The court decides that the only procedure which allows the court access to evidence when it considers an application for eviction is the application procedure. If the eviction is sought by way of action, the allegations do not constitute evidence on which a court can exercise its discretion. It is inherent in the procedure laid down in the Act that an application in terms of the Act must be instituted by way of application in terms of r 6 read with the procedural requirements in the Act and an action may not be brought for such relief. The application for approval of the s 4(2) notice was consequently dismissed.
Interim interdict against unlawful use of confidential and proprietary information belonging to company: In Omni Software Solutions (Pty) Ltd and Another v Koekemoer and Others [2024] 3 All SA 604 (WCC), the applicants (Omni) sought a temporary interdict against the first, second, and sixth respondents to prevent them from unlawfully competing with Omni by using Omni’s proprietary and confidential information, poaching Omni’s clients, and passing off their products and services as those of Omni.
The first respondent (Ms Koekemoer) was the sole director of the second applicant (Omni SA) and held a 20% ownership interest. The fifth respondent (Mr Bekker) started the second respondent (ASV) while employed by Omni SA, directly competing with Omni SA. The sixth respondent (Epicode), directed by Ms Koekemoer’s husband, was alleged to be used as a front to conduct ASV’s business and compete with Omni.
The central issue was whether Omni had satisfied the requirements for an interim interdict against Ms Koekemoer and Epicode for unlawful competition through the use of Omni’s confidential information, soliciting Omni’s clients, and passing off their products as Omni’s. The court found that Ms Koekemoer, as Omni SA’s director, had fiduciary duties under the Companies Act 71 of 2008 and common law to act in Omni SA’s best interest and not in conflict. The court was satisfied that Ms Koekemoer and her brother-in-law were involved in misappropriating Omni’s client lists and licensing agreements, and that Epicode competed with Omni using products developed by Omni, passing them off as Omni’s or affiliated with Omni.
The court, per Mahomed AJ, held that Omni had established a prima facie right to the relief sought, as it had a right to protect its goodwill against unlawful infringement. The prejudicial nature of Ms Koekemoer’s conduct created a well-grounded apprehension of harm, and the balance of convenience favoured the relief sought. Consequently, an interim interdict was granted against Ms Koekemoer and Epicode.
Assessment of evidence in medical negligence claim: In NK obo UK v Member of the Executive Council for the Department of Health, Eastern Cape [2024] JOL 64033 (ECB), the trial court dismissed the appellant’s medical negligence claim but granted leave to appeal against its findings that the appellant had failed to prove that the damage done to her child’s brain had been caused by the negligence of medical staff at a hospital. On appeal, the appellant took issue with the trial court’s failure to find that the negligence of the medical staff had caused the injury to the child’s brain. Laing J states that where there has been no misdirection on fact by a trial court, the presumption is that its conclusions are correct. It had to be decided what factually was the cause of the ultimate harm; whether negligence on the part of the respondent caused or materially contributed thereto in the sense that the respondent by the exercise of reasonable care and skill could have prevented it from developing; and if liability on the part of respondent was established, what amount should be awarded to the appellant by way of damages. The court was not persuaded that any negligence on the part of the staff caused or materially contributed to the injury where that could have been prevented by exercising reasonable care and skill. There was no causal link.
The appeal was dismissed.
Justification for removal of child from parent’s care: In Bessinger v NN [2024] JOL 64371 (ECB), the applicant was a self-employed medical social worker who had been appointed by a case manager and assigned to the respondent’s minor girl child, AN, who was diagnosed with spastic quadriplegic cerebral palsy at birth due to the negligence of employees of the Member of the Executive Council for Health, Eastern Cape. An award of R12 million had been paid into a trust for AN’s benefit, in settlement of a claim for damages. Contending that the respondent was neglecting AN and did not have her interests at heart, the applicant obtained an ex parte order in terms of which the child was removed from her home and placed in a care facility. She then sought to be appointed as curatrix personam to AN with immediate effect and on an interim basis, and to have the respondent’s right to care for AN, to consent to any medical treatment, which AN might require and to determine the child’s place of residence, terminated.
The court found that the applicant lacked standing to bring the application for the removal of the child. On that basis alone, the order obtained for the removal of AN had to be set aside. The allegations of neglect were not corroborated. The order removing AN from parental care and the one being sought for appointment of a curator ad personae were not only drastic but invasive, and did not consider the feelings of AN.
An order aimed at AN’s return to her home with the respondent was made, and the applicant’s application was dismissed.
Status and rights of sperm donor: The applicants (AV and NZ), a same-sex couple, required a sperm donor so that AV could have a child. AV found the respondent (DC) on a social media platform, and the parties entered into an agreement. DC contended that the agreement granted him co-parenting rights, while the applicants disputed that. After the birth of the child (Z), DC played an active role and contributed financially to various expenses. However, whereas he insisted on full parenting rights and obligations, and requested a parenting plan, the applicants contended that it was always intended that he have only limited contact with the child. They approached the court in AV and Another v DC and Others (Thaldar and Another as Amici Curiae) [2024] JOL 65545 (GJ) for an order confirming that DC was a sperm donor as envisaged in s 40 of the Children’s Act 38 of 2005, removing his surname as that of Z on her birth certificate, and declaring DC’s limited rights and responsibilities in respect of Z.
The court noted that the applicants had not followed the regulations regarding the artificial fertilisation of AV, and now sought the implementation of s 40(3) of the Act. The evidence established that DC was not just a sperm donor as the applicants contended, and neither had a co-parenting agreement been concluded. Considering the best interests of Z, an order was made setting out DC’s rights of contact while confirming that Z was to be regarded as the child of the applicants.
Disciplinary proceedings against practitioner – part-heard proceedings: The applicant in Els v Health Professions Council of South Africa and Others [2024] 3 All SA 228 (WCC), a counselling psychologist in private practice, was facing disciplinary proceedings by the Health Professions Council of South Africa (HPCSA) for engaging in ‘multiple relationships’ while acting as a court-appointed facilitator. The applicant sought an urgent order for a permanent stay of the disciplinary inquiry, which was dismissed. The inquiry was repeatedly postponed, and the applicant then sought an interim order interdicting the continuation of the inquiry while pursuing an internal appeal against the HPCSA’s Conduct Committee’s ruling on the admissibility of documentary evidence.
The central issue was whether the applicant had established grounds for the court to intervene in the uncompleted disciplinary proceedings. The court held that the applicant displayed a ‘Stalingrad approach’ to litigation, seeking postponements and approaching civil courts to delay the proceedings. The court emphasised that a superior court will only intervene in uncompleted proceedings in exceptional circumstances, as reviews should ordinarily be brought at the end of proceedings to avoid undermining the effectiveness of tribunals and courts.
Applying the legal principles, the court found that the applicant had not established the requirements for final interdictory relief or exceptional circumstances warranting intervention in the disciplinary inquiry. The court concluded that the applicant had failed to make a case for intervention, and the application was dismissed.
The court, per Gamble J, refused to intervene in the ongoing disciplinary proceedings against the applicant, finding no exceptional circumstances justifying such intervention and emphasising the need to avoid undermining the effectiveness of tribunals and courts through premature interventions.
Power of Council for Medical Schemes to investigate complaint concerning a broker: In Optivest Health Services (Pty) Ltd v Council for Medical Schemes and Others [2024] 3 All SA 107 (SCA) the appellant, an accredited broker by the Council for Medical Schemes under the Medical Schemes Act 131 of 1998. Open Water was appointed by the Registrar to inspect Optivest after receiving an anonymous tip-off about alleged unlawful conduct. The central issue was whether the Council had the power to investigate a complaint concerning a broker under ss 7 and 44(4) of the Act, and whether the Council was obliged to give Optivest an opportunity to respond before investigating, as per s 47. Optivest argued that the Council could only investigate medical schemes, not brokers, under s 44. However, the court adopted a contextual and purposive interpretation, considering the Act’s regulation of brokers’ accreditation, de-accreditation, remuneration, and refunds. The phrase ‘any person’ in s 44(4) was interpreted to include brokers, and the Council was deemed to have an implied ancillary power to investigate brokers to monitor compliance with the Act and regulations. The majority held that the Council and Registrar’s conduct was lawful, not procedurally unfair or arbitrary, rationally connected to the Act’s purpose, and did not offend the principle of legality. Consequently, the appeal was dismissed, upholding the Council’s power to investigate brokers like Optivest.
Application by city to evict people living on pavements in city: In City of Cape Town v Various Occupiers and Another [2024] 3 All SA 428 (WCC), the City of Cape Town sought to evict approximately 200 people (the Occupiers) who lived on seven pavements or road reserves that the City owned around its central business district (CBD). The City offered the Occupiers alternative accommodation in ‘safe spaces’ it had developed in the City centre, but some of the Occupiers questioned the suitability of these spaces and wanted to explore alternative solutions with the City.
The central issues were whether the City had meaningfully engaged with the Occupiers, as required by s 26(3) of the Constitution, and whether there was a risk that the eviction order would render the Occupiers homeless. The court found that, while imperfect, meaningful engagement had occurred. Regarding the risk of homelessness, the court held that the safe spaces constituted adequate alternative accommodation, being better than the Occupiers’ current conditions and meeting the standard of adequacy, despite some restrictive rules that had since been relaxed.
Considering all relevant factors, the court concluded that eviction was just and equitable under the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998. However, to ensure the eviction did not impact unduly harshly on the Occupiers, the court regulated the conditions under which it would be carried out through a detailed order, ensuring the Occupiers’ rights were fully respected.
The court allowed the eviction while imposing safeguards to protect the Occupiers’ rights, finding that the City had engaged meaningfully and provided adequate alternative accommodation in the safe spaces.
Apart from the cases and material dealt with above, the material under review also contained cases dealing with –
This article was first published in De Rebus in 2024 (October) DR 30.
