The Law Reports – September 2021

September 1st, 2021
x
Bookmark

July 2021 (4) South African Law Reports (pp 1–322); July 2021 (2) South African Criminal Law Reports (pp 1–114)

This column discusses judgments as and when they are published in the South African Law Reports, the All South African Law Reports and the South African Criminal Law Reports. Readers should note that some reported judgments may have been overruled or overturned on appeal or have an appeal pending against them: Readers should not rely on a judgment discussed here without checking on that possibility – Editor.

Abbreviations

CC: Constitutional Court

GP: Gauteng Division, Pretoria

KZD: KwaZulu-Natal Local Division, Durban

KZP: KwaZulu-Natal Division, Pietermaritzburg

SCA: Supreme Court of Appeal

WCC: Western Cape Division, Cape Town

Abuse of process

Strategic litigation against public participation (SLAPP) defence recognised for first time in South Africa: The SLAPP defence, was raised in the WCC in Mineral Sands Resources (Pty) Ltd and Another v Redell and Others and Two Related Cases 2021 (4) SA 268 (WCC). It was raised in the form of a special plea by three environmental attorneys and three community activists (the defendant) against Australian mining company Mineral Sands Resources and its local subsidiary, Mineral Commodities (collectively, the Companies), after the companies had sued the defendants for defamation. The companies were involved in the exploration and development of major mineral-sands projects in South Africa: The Tormin Mineral Sands Project on the West Coast and a proposed operation on the Wild Coast region of the Eastern Cape.

The Companies’ case against the defendants was that public statements made by them in which they criticised the environmental impact of the Companies’ operations were false and defamatory. They sued the defendants for damages in an amount of R14,25 million or, alternatively, the publication of apologies.

In a SLAPP defence, raised in the form of a special plea, the defendants argued that the suit was an abuse of process and violated the constitutional right to freedom of expression. They alleged that they were brought for the ulterior purposes of –

  • discouraging, censoring, intimidating, and silencing the defendants; and
  • intimidating and silencing members of civil society, the public and the media in relation to public criticism of the Companies.

The term SLAPP, coined by academics in the United States (US), referred to typically meritless or exaggerated lawsuits brought by powerful companies to intimidate civil society advocates, human rights activists, journalists, academics, and the like, acting in the public interest. The aim was to litigate them into silence and to drain their resources. In the US anti-SLAPP statutes were enacted to provide a quick, effective, and inexpensive mechanism to discourage such suits.

The Companies argued that the defendants were impermissibly relying on the Companies’ motives and not the merits of their claims. They claimed that the SLAPP defence amounted to a request that the court shut its doors to them without investigating the merits of their defamation suit against the defendants.

The WCC, per Goliath DJP, emphasised that South African courts have often referred to the purpose or motive of the litigation as being relevant to the question of abuse of process. The Companies were claiming exorbitant amounts that they knew the defendants could ill afford to intimidate them. The litigation was oppressive and mala fide.

Goliath DJP pointed out that, in the absence of specific legislative mechanisms to deal with SLAPP suits, the courts had limited powers to cure the symptoms of SLAPP suits. Goliath DJP, therefore, dismissed the Companies’ exception to the defendants’ pleas, reiterating that the interests of justice should not be compromised due to a lacuna in South African legislation.

Births and deaths

Burial consequences of still birth: The case of Voice of the Unborn Baby NPC and Another v Minister of Home Affairs and Another 2021 (4) SA 307 (GP) concerned a challenge to the constitutional validity of provisions of Births and Deaths Registration Act 51 of 1992 (BADRA) relating to the burial consequences of a ‘still birth’. ‘Still birth’ is defined in BADRA as ‘at least 26 weeks of intra-uterine existence but show[ing] no sign of life after complete birth’. The effect of these provisions is that the foetal remains of a pregnancy loss due to natural causes, which occurs before 26 weeks of gestation, or the foetal remains of a voluntary induced termination under the Choice of Termination of Pregnancy Act 92 of 1996 (CTOPA) were excluded from burial. Section 20(1) provides that no burial may take place in the absence of a burial order, and ss 18(1) to 18(3) and reg 1 issued under it provide for the issuance of a burial order only in the event of a still-birth certificate or declaration. These were treated as pathological or anatomical waste and disposed of through incineration with other medical waste, denying the prospective parent(s) the opportunity of burial. The applicants sought a declaratory order that these provisions were inconsistent with the constitutional rights to dignity, privacy, religion and equality of such prospective parents.

The GP (per Mngqibisa-Thusi J) held that no rational reason existed why there should be a differentiation in the burial consequences of a still-birth and those of a pregnancy loss other than a still-birth. It was about the emotional loss and the pain felt by the expectant parent(s), as well as the intensity of the pain felt by both types of parent who have suffered a loss must be the same; in both instances no child was born alive. The impugned provisions should be adapted to cater for a loss of pregnancy other than a still-birth for those who wish to perform the last rites for the prospective baby and conduct a burial. Allowing them to bury the foetal remains would ameliorate the pain caused by the loss and assist in the process of healing and the dignity of the parents who have suffered loss would be restored. The GP accordingly declared the impugned provisions were inconsistent with the Constitution and invalid to the extent that they excluded the issuance of a still-birth notice in the case of a pregnancy loss other than a still-birth. The GP, however, limited the declaration of invalidity so as not to apply in the case of a pregnancy loss due to an inducement, given concerns raised on the effect of such relief on the rights of pregnant women who chose to terminate their pregnancies in terms of the provisions of CTOPA.

Criminal law

Fresh applications for firearm licences permitted where terminated by the operation of law: Fidelity Security Services (Pty) Ltd v Minister of Police and Others 2021 (2) SACR 1 (SCA) concerns the efforts by the appellant, a company providing security services, to restore certain expired firearm licences. Given the nature of its core business, lawful possession of these firearms was indispensable for it to operate effectively.

The appellant was the owner of approximately 8 500 firearms and had a dedicated employee responsible for maintaining the licences. Their problem arose when that employee left the appellant’s service, and it was discovered that the licences of some 700 firearms had not been renewed timeously. These licences had consequently terminated by the operation of law, as contemplated by s 28 of the Firearms Control Act 60 of 2000 (the Act). The appellant belatedly attempted to renew the licences, but the designated firearms officer at the local police station refused to accept these applications in compliance with a directive issued by the Commissioner of the South African Police Service. The appellant had then instructed its attorneys to write to the Minister of Police and the Commissioner, the respondents, explaining why they were late in applying for the renewal of the firearm licences and offering to submit application forms for new licences. After failing to receive a response to these communications, the appellant launched an application in the High Court for an order, inter alia, directing the Commissioner as Registrar of Firearms to accept late renewal applications, alternatively, that it may apply for new firearm licences in respect of those firearms the licences of which had terminated.

After the application was dismissed, the appellants filed the present appeal to the SCA seeking an order declaring that it be entitled to obtain new licences for those licences that had terminated by operation of law – attempts at renewal were abandoned. The respondents opposed the appeal. Their primary main contention was that a party whose licence had terminated by the operation of law was simply precluded from applying under the Act for a new licence to possess a firearm.

The SCA (in a unanimous judgment), per Petse AP, accepted that there was nothing in the Act nor the regulations that even remotely suggested that someone whose licence had terminated by the operation of law was, as a result, forever precluded from applying for a new licence. Indeed, such an interpretation, in terms of which such firearm owners were prevented from applying for a new licence and were required to buy new firearms only for the same application to be considered, was considered neither sensible nor business like (in such cases the firearm, in respect of which the licence had expired, would also have to be destroyed in terms of s 149 of the Act – in this case some 700 firearms). Thus, first-time applicants and repeat applicants alike were eligible to apply for a firearm licence.

The appeal was accordingly upheld, and the appellant declared entitled to apply afresh for new licences for the firearms in question.

Other criminal law cases

Apart from the case dealt with above, the material under review also contained cases dealing with –

  • admissibility of hearsay evidence;
  • prevention of crime – forfeiture order;
  • prisoner rights;
  • trial record; and
  • traffic offences.
Delict

The defence of volenti non fit injuria: The case of Jackson v Road Accident Fund 2021 (4) SA 244 (GP) concerned a stuntwoman, Ms Jackson, who while filming ‘Resident Evil 6’ was required to drive a motorbike, bareheaded, at an oncoming vehicle with a camera attached to it which extended from a boom arm. For the scene the boom arm would hold the camera at a level close to the road surface and then, just before Jackson reached it, it would be raised, and she would be filmed passing under it. On 5 September 2016 the day in question the boom was lifted too late, and the camera struck Jackson on the head and shoulder, severely injuring her.

Ms Jackson sued the South African film company, the stunt coordinator, her employer, the driver of the boom vehicle (the driver) and the camera boom operator. She also instituted a separate action against the Road Accident Fund (RAF). The two actions were then consolidated. The GP found in a judgment on a special plea that the vehicle with the camera boom was a motor vehicle for the purposes of the Road Accident Fund Act 56 of 1996. When the matter came before the GP again (before Davis J), the RAF denied that the driver was negligent, and that even if he was, Ms Jackson, as a stunt driver, had consented to risk of damage – that is, it raised the defence of volenti non fit injuria.

Each party called an expert, who in joint minutes agreed that the ‘boom up’ call during the incident happened at least three seconds past the location where it was given at the trial run and that the incident would have been avoided if the incident run had been aborted in time. The boom operator testified that he was under the driver’s instructions when it came to lifting the boom, and that when the driver said, ‘boom up’, it was too late. Both the driver and the operator tried to blame Ms Jackson for the incident, claiming that she was going too fast and did not keep a proper lookout.

Davis J concluded from the experts’ opinion that the driver was negligent. The director had given an instruction that ‘boom up’ had to come one second later than the incident run to get a more exciting shot, and the driver miscalculated the margin for error on the command. Ms Jackson had no opportunity, either time- or distance wise, to take evasive action, and there was no room for a finding of contributory negligence on her part.

Davis J then dealt with the volenti issue. Ms Jackson explained in her evidence, which was uncontroverted, that everyone on the movie set had a specific job to do and that hers had been to ride the motorcycle in a straight line at a constant speed. The insured driver had the job to drive the freedom arm vehicle similarly in a straight line at a (lesser) constant speed and to lift the boom with the camera over the plaintiff at a given point or at least at a safe and opportune moment. She did not consent to any other risk, and she was unaware that the director had given the insured driver instructions to decrease the safety margins from the rehearsal run to the incident run. She was never given the opportunity to consider this or to consent thereto.

Davis J found that it could not be said on this evidence that Ms Jackson had consented to a specific risk. She accepted the mishaps that might happen in the normal course if everyone did their job, but not to a driver not doing his job, not starting from where he should have started, not making any proper calculations, and decreasing the safety margin without telling her. Even if she had voluntarily assumed the risk of harm of riding a motorcycle as a stunt rider, she did not assume the risk of a diminishing of the safety margin without her knowledge. The RAF, therefore, failed to prove the volenti defence.

Insolvency

The petitioning creditor’s liability for costs: In FirstRand Bank Ltd v Master of the High Court Pretoria and Others 2021 (4) 115 (SCA) the second respondent, a body corporate, was the petitioning creditor (for arrear levies) in the sequestration of the owner of a sectional unit within the scheme it administered. No concurrent creditors proved any claims. The free residue in the estate having been insufficient to cover the estate’s administration costs, the third and fourth respondents, trustees of the insolvent estate, levied a contribution for the shortfall against two secured creditors who relied solely on the proceeds of the property, which constituted its security. One of these were the appellant bank (FirstRand Bank), the other the fifth respondent, Nedbank. The body corporate did not prove a claim. Instead, to collect the arrear levies, it relied on the statutory obligation to settle arrear levies as prerequisite for the registration of transfer when the properties constituting FirstRand Bank and Nedbank’s security were sold in execution. When the first respondent, the Master, would not entertain FirstRand Bank’s objection to the contribution raised, it took the Master’s decision to include such contribution in the estate accounts on review in the GP.

The present case concerned FirstRand Bank’s appeal to the SCA against the GP’s order, which had held FirstRand Bank (and Nedbank) pro rata liable for the contribution together with the petitioning creditor. There the correct interpretation of following sections of the Insolvency Act 24 of 1936 (the Act) were at issue –

  • section 89(2) of the Act, that where creditors rely for the satisfaction of their claim solely on the proceeds of the property, which constitutes their security, they shall not be liable for any costs of sequestration other than the costs specified in s 89(1), and other than costs for which they may be liable under paras (a) and (b) of the proviso to s 106;
  • section 106(a) that if all the creditors who have proved claims against the estate are secured creditors, who would not have ranked on the surplus of the free residue if there were any, they shall be liable to make good the whole of the deficiency, each in proportion to the amount of his claim; and
  • section 14(3), that ‘in the event of a contribution by creditors under [s 106], the petitioning creditor, whether or not he has proved a claim against the estate … shall be liable to contribute not less than he would have had to contribute if he had proved the claim stated in his petition.’

In a unanimous decision, the SCA, per Mabindla-Boqwana, held that the proviso in s 106(a) meant that only if all creditors relied solely on their security – namely, there were no concurrent portions to their claims – would they be liable for the whole deficiency, each in proportion to their claims. Section 14(3) sought to avoid a situation where a creditor would petition for the sequestration of the estate and not prove a claim, only for other creditors ‘to pick up the costs’. In terms of  s 14(3) that petitioning creditor would always have to contribute (the section contained no exceptions). The petitioning creditor was placed in the same position as it would have been in had it proved its claim. Section 106, while not deeming the petitioning creditor to have proved a claim, read together with ss 14(3) and 89(2), meant that the provisions of s 106 applied to the petitioning creditor ‘whether or not [it] has proved a claim’. It should be treated in the same manner as a creditor who had proved its claim. So, it concluded, when there was no free residue or it was insufficient, the first port of call would be to look to the petitioning creditor to contribute along with concurrent creditors who have proved their claims, and secured creditors who would have ranked upon the surplus of the free residue; only if there were no other proved and concurrent creditors (including the petitioning creditor) able to contribute, would the secured creditors who relied solely on their security be called upon to pay (s 106(a) read with s 89(2)).

In this case the other two creditors (FirstRand Bank and Nedbank) were secured creditors who relied solely on their security and, therefore, the body corporate, as the petitioning creditor, was solely liable to pay the costs of sequestration. The appeal accordingly succeeded.

Labour law

Is a ‘picket’ a ‘gathering’? In NUMSA and Others v Dunlop Mixing and Technical Services (Pty) Ltd and Others 2021 (4) SA 144 (SCA), the National Union of Metalworkers of South Africa (NUMSA) had, pursuant to the Labour Relations Act 66 of 1995 (LRA), organised a protected strike during which, its members conducted a picket outside their employers’ (Dunlop’s) premises. The picket became violent and resulted in damage to Dunlop’s property. Dunlop claimed compensation, asserting that the damage was ‘riot damage’ and that NUMSA was deemed liable for it under the Regulation of Gatherings Act 205 of 1993 (the Gatherings Act). The Gatherings Act defined ‘riot damage’ as the injury or death of any person, or damage to property ‘caused directly or indirectly by, and immediately before, during or after, the holding of gathering’. NUMSA met this claim with the contention that the LRA, which in s 69 allowed picketing (which was not defined), governed the matter to the exclusion of the Gatherings Act. Determinative of this was whether a picket under the LRA was a ‘gathering’ under the Gatherings Act. The KZP (per Van Zyl J) ruled that it was.

In an appeal the SCA (in a unanimous decision) per Goosen JA examined the governing provisions of the LRA (ss 68 and 69) and the Gatherings Act (s 11). Goosen JA pointed out that the Gatherings Act gave expression to the constitutional right to assemble and gather by providing a procedure for the convening of gatherings and demonstrations. Pickets were conduct to which employees could legitimately resort to further the objects of strike action but, in accordance with s 69 of the LRA, they had to be peacefully conducted in the furtherance of a protected strike.

Goosen JA pointed out that the obstacle to Dunlop’s construction was that it required a finding that a picket as a particular type of gathering or demonstration, while not otherwise regulated by the Gatherings Act, nevertheless fell within the ambit of s 11 of the Gatherings Act for purposes of liability for ‘riot damage’. To so hold, said Goosen JA, would require that the SCA ignore both the detailed regulation of gatherings in terms of the GA and the comprehensive regulation of conduct in furtherance of strike action by the LRA. There was no basis for such a strained interpretation of the Acts, and the appeal should be upheld.

Vexatious proceedings

The common law and the Vexatious Proceedings Act 3 of 1956: In MEC, Department of Co-Operative Governance and Traditional Affairs v Maphanga 2021 (4) SA 131 (SCA) the MEC applied for an order that Mr Maphanga be prohibited from instituting proceedings against her, her department or any past or present member of the public service, except with the leave of the court. The MEC argued that s 2(1)(b) of the Vexatious Proceedings Act, alternatively the common law, entitled her to the relief claimed. Section 2(1)(b) allows courts to prohibit vexatious litigants from proceeding if certain prerequisites are met.

The objects of the MEC’s ire were a series of suits filed by Mr Maphanga against the MEC. They included –

  • a review and appeal proceedings launched in the Labour Court;
  • a delictual action in the High Court for damages relating to the sale in execution of his property (in which he alleged the MEC’s department was involved); and
  • a complaint in the General Public Service Sectoral Bargaining Council concerning severance pay.

The KZD ruled that the MEC had failed to establish vexatious conduct on the part of Mr Maphanga, either under the Act or the common law.

In an appeal to the SCA the MEC argued that the KZD had overlooked the fact that Mr Maphanga had filed five suits against her and had misconstrued the common-law powers of the courts to address abuses of their process.

The SCA, per Maya P, dismissed the appeal. She pointed out, in respect of s 2(1)(b), that the Labour Court proceedings had multiplied merely because Mr Maphanga had incorrectly identified the correct forum in which to vindicate his claim. The proceedings in the KZD, on the other hand, were based on an entirely different cause of action. Since it could, in addition, not be said that the Labour Court or KZD proceedings were instituted without reasonable grounds, the MEC had failed to establish a right to relief under s 2(1)(b).

Maya P also dismissed the MEC’s attack under the common law. She emphasised that courts would exercise their inherent power to stop frivolous or vexatious proceedings only if it could be shown that the litigant in question had habitually and persistently instituted vexatious legal proceedings without reasonable grounds. Proceedings were vexatious and an abuse of process if they were obviously unsustainable as a certainty and not merely on a preponderance of probability, and this requirement applied to all litigation that amounted to an abuse of process. This had not been the case with Mr Maphanga, against whom no case had been made out under the common law either.

Maya P concluded that the declaratory relief was correctly refused by the KZD and dismissed the appeal.

Wills

Discriminatory provisions of fideicommissum declared void: The case of King and Others NNO v De Jager and Others 2021 (4) SA 1 (CC) concerns a will executed in 1902 by certain testators. The will included a fideicommissum under which immovable property would devolve to the testators’ children, thereafter only to their male grandchildren, and thereafter from the male grandchildren only to male great grandchildren. In an instance where a child did not produce a male grandchild, the property would pass to the other male grandchildren.

A grandson (Mr Kalvyn de Jager) had died. He had only granddaughters (second to sixth applicants), and in his will he bequeathed the property concerned to his daughters. Kalvyn, however, had a brother, Mr John de Jager, who had produced great-grandsons (first to third respondents).

The executor of Kalvyn’s estate (first applicant, Mr King) received three claims on the property: In the first instance by Kalvyn’s daughters under Kalvyn’s will; in the second by John’s sons under the fideicommissum in the testators’ will; and in the third, by the daughters’ sons (the testators’ great-great grandsons, fourth to eighth respondents).

Confronted with these claims, Mr King applied to the WCC for a declarator of the appropriate heirs. His view was that the clause of the testators’ will creating the fideicommissum (clause 7) was unfairly discriminatory, and on public policy grounds should not be enforced. He was joined in this view by the daughters, who added that the clause violated their right to equality and should be altered in inclusive terms.

Neither contention was accepted, the WCC finding no clash with public policy and that the discrimination concerned was reasonable and justifiable. A subsequent appeal to the SCA was unsuccessful.

In an application for leave to appeal to the CC, the court (per Jafta J for the majority), held the discrimination in the fideicommissum to be contrary to public policy, unconstitutional and contrary to the prohibition of unfair discrimination based on gender in s 8 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA). Nor, was the fideicommissum saved by s 36 of the Constitution. The fact that the will was executed in 1902 was immaterial: The Constitution and PEPUDA applied by virtue of the attempt to enforce the offending condition now. Hence it would be regarded as never having been written, and the property bequeathed unconditionally to the applicants’ father. Like all his assets, it became the subject of his will when he died in 2015.

Other cases

Apart from the cases dealt with above, the material under review also contained cases dealing with –

  • constitutional law (duties of state);
  • curators (power to ratify contract);
  • delict (slip and fall);
  • leave to appeal (costs);
  • legal practitioners (enrolment of attorney as advocate);
  • medicine (confidential information);
  • mortgage (judicial execution); and
  • revenue (customs and excise).

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 2021 (Sept) DR 23.

X
South African COVID-19 Coronavirus. Access the latest information on: www.sacoronavirus.co.za