July 2020 (4) South African Law Reports (pp 1 – 318); 2020 (2) South African Criminal Law Reports (pp 1–112)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.
CC: Constitutional Court
GJ: Gauteng Local Division, Johannesburg
GP: Gauteng Division, Pretoria
SCA: Supreme Court of Appeal
WCC: Western Cape Division, Cape Town
The test for the remittal of decisions that have been reviewed under the Promotion of Administrative Justice Act 3 of 2000 (PAJA): In Kalisa v Chairperson, Refugee Appeal Board 2020 (4) SA 256 (WCC), the applicant, a Burundian, had applied to the second respondent, the Refugee Status Determination Officer, for asylum. The application was, however, refused and the applicant’s subsequent appeal to the Refugee Appeal Board was dismissed. The applicant then applied to the WCC to review the Board’s decision and to substitute it with a grant of asylum.
The WCC, per Binns-Ward J, determined that the decision had to be set aside on review because the Board was non-quorate at the time of its decision-making and had, in addition, failed to properly apply its mind to the merits of the matter.
The WCC ruled, in regard to substitution of an administrator’s decision, that this was only possible in exceptional cases and where it would be just and equitable, in the context, to substitute the decision. There were two distinct steps: The court first had to determine if it was an exceptional case, and then whether substitution was a just and equitable solution. In the latter inquiry, the paramount factors were whether the court was in as good a position as the administrator to make the decision and whether the decision was a foregone conclusion. Subordinate factors included delay, bias or incompetence on the functionary’s part.
The WCC also pointed out in passing that where a court was not in as good a position as the administrator but the administrator’s bias or incompetence rendered it unjust to remit, the court might be required to devise a remedy not identified in s 8 of PAJA.
The WCC further held that in asylum matters the prejudicial consequences of a delay did not of itself justify the granting of asylum unless it was clear that the applicant qualified for it. If this was unclear, then any substituted order might fall short of the requirement of lawfulness applying to the decision being replaced.
The court held that substitution was not justified in the present case because the court was not in as good a position as the functionary to decide and because the decision was not foregone.
The WCC, therefore, ordered that the matter be remitted to the responsible authorities and that the applicant be allowed to make a new application for asylum.
The doctrine of common purpose and the common-law crime of rape: In S v Tshabalala and Another 2020 (2) SACR 38 (CC) the two applicants, in separate cases relating to the same incidents, applied for leave to appeal to the CC from their convictions in the GJ for rape. Their convictions arose from a violent rampage embarked on late one night in September 1998 when nine young men attacked nine separate homes, broke down doors and assaulted the occupants they found inside. They raped eight female occupants, some of them repeatedly by several members of the group. The youngest of the victims was 14-years-old and another was visibly pregnant. While some of the men raped the victims, other members were posted outside to act as lookouts. The members of this group, including the applicants, were also arrested and subsequently convicted of rape on the application of the doctrine of common purpose.
In the GJ, the applicants contended that the common-law crime of rape was not an offence for which an individual could be convicted through the application of the doctrine of common purpose, but the court rejected that argument in convicting the applicants who were sentenced to effective life sentences.
One of the members of the lookout group appealed to the SCA, which found that, to convict him based on his mere presence, was to subvert the principles of participation and liability as an accomplice in criminal law. The SCA ruled that it could not be proved that said member had been present at the scene of violence where rapes, assaults, housebreakings and robberies were committed, other than at one particular household, and therefore, concluded that no common purpose with the other members of the group had been established.
In the present application, the respondent supported the findings of the GJ and that the group responsible for the attacks had acted as a cohesive unit. It contended that applying the doctrine was not out of the ordinary, but was in keeping with modern international standards. The first amicus curiae, the Commission for Gender Equality, also contended that the instrumentality approach adopted by the SCA was fundamentally flawed. It argued that it was both artificial and unprincipled as there was no reason why the use of one’s body should be determinative in the case of rape, but not in the case of assault or murder. That approach sought to carve out crimes of a sexual nature and to exclude the application of common purpose to such crimes, and that this in turn inhibited the state’s ability to prevent and combat gender-based violence.
The CC per Mathopo AJ (Mogoeng CJ, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Theron J and Victor AJ concurring), held that it was difficult to conclude that the rapes were unexpected, sudden or independent acts of one or more of the perpetrators, which the others neither expected nor were aware of, even after they had happened. The perpetrators had overpowered their victims by intimidation and assault, and the manner in which the applicants and the other co-accused had moved from one household to the next indicated meticulous prior planning and preparation. They made sure that any attempt at escape would be impossible.
As to whether the doctrine of common purpose indeed applied to the common law crime of rape, in reaching their decision, the court considered the relationship between rape and power. It held that to characterise rape simply as an act of a man inserting his genitalia into a female’s genitalia without her consent was unsustainable in instances of group rape, where the mere presence of a group of men resulted in power and dominance being exerted over the victims. The instrumentality argument, which was embedded in the system of patriarchy, had no place in a modern society founded on the Bill of Rights, and had to be discarded. A contrary view ignored the fact that rape could be committed by more than one person when the others had the intention of exerting power and dominance over the women just by their presence. The GJ conclusion that the applicants and their co-accused had acted in the furtherance of a common purpose could therefore not be faulted.
In a separate but concurring judgment Khampepe J (Froneman J, Jafta J, Madlanga J, Mothapo AJ, Mhlantla J, Theron J and Victor AJ concurring) found it necessary to add that addressing rape and other forms of gender-based violence required the efforts of the executive, the legislature and the judiciary, as well as communities. The structural and systemic nature of rape emphasised that it would be irrational for the doctrine of common purpose not to be applicable to the common-law crime of rape, while being applicable to other crimes.
Victor AJ, also in a separate but concurring judgment, considered that the common-law crime of rape was one that had to be developed to meet the obligations imposed by international law whose protocols placed an obligation on the state, including the court, to develop the domestic laws to ensure that women were protected from sexual violence. These international obligations and their constitutional duty provided the legal and logical basis to confirm the application of the doctrine of common purpose to the common-law crime of rape.
The applications for leave to appeal were granted, but the appeals dismissed.
Termination of service and reinstatement to service after quashed rape conviction: In Maswanganyi v Minister of Defence and Military Veterans and Others 2020 (4) SA 1 (CC), the applicant, Mr Maswanganyi, a member of the South African National Defence Force (SANDF), was convicted of rape and sentenced to life imprisonment. Mr Maswanganyi, however, obtained to have the conviction and sentence set aside on appeal, after which he applied to the respondent, the SANDF, for reinstatement to his former position. The SANDF refused, relying on s 59(1)(d) of the Defence Act 42 of 2002, which stipulates that a member’s service terminates if they are sentenced to imprisonment.
This prompted Mr Maswanganyi to apply to the GP for reinstatement retrospective to the date of termination of his service, being the date of sentence. He was successful, and the court ordered that Mr Maswanganyi be reinstated retrospectively, but the SANDF obtained leave to appeal from the SCA, which upheld the appeal, causing Mr Maswanganyi to seek leave to appeal from the CC.
The CC, per Tshiki (Khampepe ADCJ, Froneman J, Jafta J, Madlanga J, Mathopo AJ, Theron J and Victor AJ concurring), found that it had jurisdiction, it granted leave to appeal, and it upheld the appeal. It ruled that once the jurisdictional fact of sentence was removed by successful appeal, that termination of service was reversed retrospectively by operation of law. The CC pointed out that if the GP’s sentence was conclusive in the sense that even on successful appeal the termination would remain extant, this would negate the right of appeal to a higher court in s 35(3)(o) of the Constitution.
The CC set the SCA’s order aside and replaced it with an order declaring that Mr Maswanganyi’s service did not terminate under s 59(1)(d) and that he continue in the position he had been in on the date of sentence.
The requirements for informed consent: In Beukes v Smith 2020 (4) SA 51 (SCA), the respondent, Dr Smith, performed a laparoscopic hernia repair on the appellant, Mrs Beukes. In the course of the surgery, her bowel was perforated. This required several further operations and a lengthy convalescence.
Mrs Beukes approached the GP with a delictual claim for damages, contending that Dr Smith’s negligence was responsible for the injury and that he had failed to obtain her informed consent to the laparoscopic procedure. This consisted in his failure to fully inform her of the treatments available and of their risks and benefits. Dr Smith testified that during the consultation he informed Mrs Beukes of the nature of each of the two medical procedures open to her and the attendant material risks and benefits. He told Mrs Beukes that his opinion was that the laparoscopic procedure would be better. Thereafter, Mrs Beukes gave oral consent to the proposed laparoscopic procedure. The oral consent was confirmed in writing in the early morning of the following day, the day of the operation.
Mrs Beukes was high risk for wound infection because of her morbid obesity. At the age of 41 she at the time weighed 125,9 kg, was 1,65 m tall and, therefore, had a body mass index (BMI) of 46. She was also a smoker. Dr Smith was of the opinion that performing the hernia repair laparoscopically was the better option for Mrs Beukes because of her excessive weight, the likelihood of adhesions due to her previous operations and because she was a smoker.
Mrs Beukes alleged that Dr Smith negligently decided to perform laparoscopic surgery instead of a laparotomy despite the higher risk of bowel and vascular injury posed to obese patients by the former procedure. Mrs Beukes also alleged that Dr Smith’s removal of the ovarian cyst had been unindicated and unnecessary.
In his defence, Dr Smith testified that he explained the risks and benefits of a laparoscopy as opposed to open surgery to Mrs Beukes.
The GP dismissed Mrs Beukes’ claim, accepting Dr Smith’s version that he had indeed sufficiently explained matters to Mrs Beukes. The GP found Mrs Beukes not to be a reliable witness, and had rejected her version that Dr Smith had already made up his mind to operate on her before the consultation.
Mrs Beukes, with the GP’s leave, appealed to the SCA. There the matter turned mainly on the issue of informed consent.
The SCA, per Dambuza JA (Navsa AP, Zondi and Mocumie JJA and Mokgohloa AJA concurring), pointed out that an appeal court had limited power to overturn factual findings by a trial court. The SCA found that Dr Smith’s demeanour and diligence were more consistent with the version that he would have explained the contemplated treatment than not. The medical records tendered in evidence also supported his version. In the light of all this, Mrs Beukes’ allegation that Dr Smith had from the onset decided to perform the laparoscopy was improbable.
The SCA ruled that where a patient was informed of a treatment and its material risks but consented to the treatment, and injury resulted, wrongfulness would be excluded. The consent Mrs Beukes gave for the laparoscopy was consistent with what a reasonable person would have opted for immediately prior to the surgery.
The SCA concluded that Dr Smith had in fact informed Mrs Beukes of the material risks of laparoscopy (bowel perforation) and laparotomy (infection) before she consented to the former procedure. The information imparted by Dr Smith met the applicable standard, covering the range of options available to Mrs Beukes and the associated benefits and risks. It could therefore, not be said that there was negligence in relation to the obtaining of the informed consent from Mrs Beukes. The SCA accordingly dismissed the appeal.
Who owns your personal information? In the judgment of Discovery Ltd and Others v Liberty Group Ltd 2020 (4) SA 160 (GJ) Keightley J dismissed Discovery’s attempt to block the Liberty Group from awarding wellness bonuses to its members based on their vitality status. The third applicant, Discovery Life, Discovery’s insurance arm, and respondent Liberty are top rivals in the South African insurance industry. The judgment dealt, inter alia, with unlawful competition and trademark infringement under s 34 of the Trade Marks Act 194 of 1993.
Proceedings commenced when Discovery applied for an interdict prohibiting Liberty from what it alleged to be an unlawful infringement of its (‘Discovery Vitality’ and ‘Discovery’) trademarks. Discovery also sought damages related to unlawful competition by Liberty’s use of Discovery’s ‘Vitality’ programme.
Discovery Vitality (the second applicant) is also a subsidiary of Discovery. Its members can earn Vitality points toward obtaining a ‘Vitality status’: The more points, the higher the status. In this way Vitality members are encouraged to lead a healthier lifestyle, receiving in return the benefits associated with their status. To make the system work, Discovery collects pertinent information on members’ lifestyle, including their exercise and food-purchasing habits. Discovery’s Life insurance arm, Discovery Life, then links its clients’ Vitality status to their insurance risk, allowing it to give discounts to the healthier ones. This feature made Discovery a very popular insurer, forcing competitors to create similar offerings to compete.
Discovery argued that Liberty was infringing on its ‘Discovery’ and ‘Vitality’ trademarks in marketing its Wellness Bonus product. It saw Liberty’s awarding of wellness bonuses on the basis of their vitality status as an attempt to take advantage of Discovery’s ‘back office’ work without Discovery’s permission. Discovery was particularly irked by the fact that Liberty was using its trailblazing efforts in linking insurance to wellness rather than sickness as a shortcut to making its own offering. It appeared that Liberty clients could, by attaining a high Vitality status, get up to 40% of their life insurance premiums back.
Liberty believed it was doing nothing wrong, claiming that it openly acknowledged the fact that its clients could be rewarded based on their status in outside wellness programmes. Liberty also acknowledged that it was using Discovery’s trademarks without permission in advertising and selling its Lifestyle Protector Plan. Liberty denied, however, that this amounted to trademark infringement, arguing that any information its clients chose to reveal, that was relevant to their risk profile, was their choice.
In its judgment the GJ pointed out that Vitality members paid for their membership and that there was no restriction on a member voluntarily disclosing their Vitality status, even if it was to a competitor of Discovery such as Liberty. It was their personal information, which they were free to make public and to disclose to anyone they wanted. Asking for that status was, moreover, not a trademark infringement or unfair competition.
As to the alleged trademark infringement, the GJ pointed out that it had to weigh the rights of Discovery as the proprietor against those of Liberty as a competitor while at the same time considering also the rights of the public. The GJ stressed that ‘deceptive-use’ trademark protection (under s 34(1)(a) of the Trade Marks Act) was not designed to stifle commercial speech, particularly where the external providence of marks was made clear. Where unfair or detrimental use of a well-known mark (under s 34(1)(c) of the Act) was relied on, a complainant had to show unfair advantage to the user or significant harm to its own reputation. The GJ ruled that Discovery had not adduced case-specific facts that pointed to unfair advantage to Liberty. And Discovery’s broad assertion that Liberty’s use of its mark would be to Discovery’s detriment because it would lead to the sale of Liberty policies, was insufficient since it ignored Liberty’s relatively limited, descriptive reference to Discovery trademarks and the prominent use of its own trademark in the same documentation. Since Discovery had failed to establish an unfair advantage to it or significant harm to Discovery’s reputation that warranted the stifling of the competition between them, the applicants’ complaint of an infringement under s 34(1)(c) failed.
The GJ held that although Discovery had with its Vitality programme launched a major innovation in the South African insurance industry, this did not give it a license to stifle competition. Misappropriation of a rival’s performance and appropriation of goodwill did not, per se, constitute unlawful competition. To find Liberty’s use of publicly available information to be to the detriment of a non-competitor like Discovery would entail extending the current common-law understanding of boni mores, which was not called for. In fact, Liberty’s competition with Discovery protected Vitality members against a Discovery monopoly, which was to the benefit of the members.
The court held that no reasonable person and certainly no professional intermediary could mistake Vitality for a Liberty product. And using third-party information to calculate mortality and morbidity rates had been (known as risk proxies), has for a long time been a common feature of the life insurance industry in South Africa.
In conclusion, the GJ found, that Liberty’s conduct was indeed consistent with the boni mores of South African society, and not wrongful. In so finding the GJ took into consideration not only Discovery’s right to property and Liberty’s right to trade, but also the public interest in doing with personal information as it wished.
Given its finding that Liberty’s conduct neither constituted trademark infringement nor unlawful competition, the GJ dismissed Discovery’s application for an interdict.
Power to subpoena confidential taxpayer information and adverse costs orders: At issue in Commissioner, South African Revenue Service v Public Protector and Others 2020 (4) SA 133 (GP) was whether the powers of the Public Protector (the PP) extended to subpoena confidential taxpayer information; and whether the PP’s conduct in this case warranted a costs order against her de bonis propriis. The PP, who was after taxpayer information relating to an investigation she was conducting, purported to exercise her powers to subpoena under s 11 of the Public Protector Act 23 of 1994 (the PPA) when she directed the Acting Commissioner of Sars (the Commissioner) to appear before and provide her with requested taxpayer information. The Commissioner refused, citing non-disclosure obligations under s 69(1) of the Tax Administration Act 28 of 2011 (the TAA), which provides that ‘current or former [South African Revenue Service] official[s] must preserve the secrecy of taxpayer information and may not disclose [it] to a person who is not a [South African Revenue Service] official’.
Sars and the PP agreed to jointly seek legal opinion on this issue. This opinion confirmed that there was no conflict between the two Acts – that, properly interpreted, the PP’s powers to subpoena did not include the power to compel disclosure of Sars’ confidential taxpayer information. The PP, who was an advocate herself, nonetheless continued to insist that her powers to subpoena under the PPA trumped the confidential status of the taxpayer information under the TAA. The PP then obtained her own legal opinion and to that effect subsequently issued the Commissioner with a second subpoena relating to the same investigation and taxpayer information. In response the Commissioner launched the present application in the GP. It was for a declaratory order that s 69(1) of the TAA constituted ‘just cause’ for his refusal as contemplated in s 11(3) of the PPA and that the PP’s conduct in this matter warranted that the PP pay 15% of the costs de bonis propriis.
As to the declaratory relief, the GP emphasised that its duty was to hold the scales evenly between the PP and the Commissioner and to declare invalid any practice, which in the absence of an Act of Parliament resulted in one Chapter 9 trying to coerce another Chapter 9 institution to act in contravention of the Constitution and the law. Confrontations between such institutions had to be avoided at all costs and civil means to resolve them, fashioned.
The GP, per Mabuse J, ruled that the phrase ‘just cause’ as intended in s 11(3) of the PPA simply meant ‘valid grounds’ or ‘reasonable grounds’ or ‘valid reasons’. ‘Just cause’ existed if the underlying reason for doing or not doing something was based on or was consonant with the Constitution or the law, which meant that a person who was prevented by the law from disclosing any information, had a ‘valid reason’ or reasonable ground to refuse to cooperate with the PP. Here, Sars was prevented by the provisions of s 69(1) from complying with the PP’s subpoena, and the PP’s power to subpoena a witness to give evidence or to produce a document could not be invoked to coerce that witness to violate the law under which such a witness operated. The PP was required to act in accordance with the law. Her powers of subpoena emanated from the PPA (and not from the Constitution) and were accordingly subject to the law. They did not trump the provisions of s 69(1) of the TAA or ‘just cause’ as set out in s 11(3) of the PPA. The presence of the phrase ‘just cause’ in s 11(3) of the PPA was evidence enough that her powers were not limitless. The Constitution itself required that the PP’s powers be regulated by national legislation.
The GP then dealt with the issue of costs. It pointed out that it was expected of the PP, as a public litigant, to never act in bad faith or in a grossly negligent manner. In the present matter the PP’s conduct – agreeing to seek counsel’s opinion on an issue, then taking part in the identification of counsel whose opinion on the matter would be sourced and presiding over the identification of the topic, only to ultimately reject counsel’s opinion and obtain a different one without involving Sars – was a textbook example of negotiating and acting in bad faith. The PP had also acted recklessly in issuing the second subpoena contrary to clear advice and without making any attempt to verify it. The GP concluded that, all things considered, the circumstances under which public officials may be ordered to pay costs out of their own pockets existed in the present case.
The court accordingly made an order proclaiming that Sars officials are obliged to withhold taxpayer information under the ‘just cause’ provision and that the PP’s subpoena power did not extend to taxpayer information. The PP was ordered to pay the costs in the application.
Apart from the cases and material dealt with or referred to above, the material under review also contained cases dealing with –
Gideon Pienaar BA LLB (Stell) is a Senior Editor, Joshua Mendelsohn BA LLB (UCT) LLM (Cornell), Johan Botha BA LLB (Stell) and Simon Pietersen BBusSc LLB (UCT) are editors at Juta and Company in Cape Town.
This article was first published in De Rebus in 2020 (Sept) DR 37.
