July 2024 (4) South African Law Reports (pp 1–330); July 2024 (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, 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.
ECMk: Eastern Cape Division, Makhanda
GP: Gauteng Division, Pretoria
KZD: KwaZulu-Natal Local Division, Durban
LP: Limpopo Division, Polokwane
NCK: Northern Cape High Court, Kimberley
NWM: North West High Court, Mahikeng
SCA: Supreme Court of Appeal
WCC: Western Cape Division, Cape Town
Lost and unrecoverable appeal record: Remittal for hearing de novo? In October 2017, Mr Muravha appealed to a Full Court of the LP against the trial court’s dismissal of a damages claim he had instituted against the Minister of Police for harm incurred when police shot him during a riot in August 2014. The entire record of the trial court proceedings was lost, but according to the trial court’s summary of the evidence, the location of the shooting and whether the appellant participated in the riot were disputed. Faced with mutually destructive versions, the trial court dismissed the appellant’s claim. In his notice of appeal, Muravha argued that the trial court had misdirected itself on the facts. He also disputed the trial court’s summary of the evidence. But the LP Full Court, having ruled that it could hear the appeal on what was before it and that Mr Muravha’s right to a fair trial would not be affected thereby, dismissed the appeal on the facts. The Full Court held that since Mr Muravha had done all he could to secure the missing record, he ought not to be mulcted in costs.
Mr Muravha obtained special leave to appeal to the SCA. The SCA judgment was reported as Muravha v Minister of Police 2024 (4) SA 84 (SCA). At the inception of the proceedings, the SCA directed counsel to attend to the reconstruction of the record. Counsel reported that reconstruction was impossible because the notes of the presiding judge, as well as counsel’s trial notes were no longer available.
The SCA, per Carelse JA, ruled that the attempts to retrieve the record were unsatisfactory, pointing out that, while it was not surprising that the judge no longer had his trial notes, it was unlikely that counsel would have disposed of or lost theirs where an appeal was likely. Their alleged loss constituted a dereliction of duty. In addition, the LP Full Court’s assumption that the facts were undisputed was wrong: They clearly were, and the absence of a trial court record meant that Mr Muravha was deprived of a fair trial on appeal to the Full Court, whose reliance on the trial court’s summary of the evidence constituted a serious misdirection.
The SCA, therefore, upheld the appeal and remitted the matter back to the LP trial court for a rehearing before a different judge.
Execution of an interdict pending appeal: Cash Crusaders fails to obtain interim execution order against rebel franchisees: Disillusioned by policy changes foisted on them, 40% of pawn emporium Cash Crusaders’ franchisees revolted, cancelling their franchise agreements and setting up a rival business, in defiance of an interdict granted in favour of Cash Crusaders in October 2023 (the October order). Cash Crusaders responded by appealing to the SCA and asking the WCC for an order declaring the October interdict operative, despite the appeal, due to its interim nature. Alternatively, it sought execution of the order pending appeal under s 18(1) and (3) of the Superior Courts Act 10 of 2013. The rebel franchisees filed a counter-application for its suspension under s 18(2). They argued that the enforcement of the franchise agreements would cause them irreparable harm because they had already bought stock and begun trading independently. Cash Crusaders argued in turn that it would be irreparably harmed by the franchisees’ departure. The matter was reported as Cash Crusaders Franchising (Pty) Ltd v Cash Crusaders Franchisees 2024 (4) SA 141 (WCC).
The WCC (per Lekhuleni J) ruled that the October order, though cast as an interim one, was, in its effect, final. By seeking to restore the status quo ante, it was determinative of the dispute between the parties, and hence appealable. And, given the breakdown in trust between the parties, it was also in the interests of justice to treat the October order as a final decision. As to its execution pending appeal, the WCC held that the parties’ anterior agreement to have the cancellation issue independently decided by arbitration went against the granting of execution. In addition, the franchisees, who had already bought stock for sale, would suffer immediate harm from execution, whereas Cash Crusaders’ harm would be ameliorated by the fact that the dispute was going to arbitration. In the result, the WCC ruled that the October order fell under s 18(1) and was appealable, and that its execution had to be stayed.
The prohibition on the early termination of a fixed-term lease: In Venter and Another v Els and Another 2024 (4) SA 305 (WCC) the applicants and the respondent concluded a written lease during September 2020 which stipulated that the respondent would lease the applicant’s property from 1 December 2020 to 31 December 2023. During February 2023 the respondent approached the first applicant to renew the lease beyond 31 December 2023. The applicants, who had by this time decided to sell the property, were reluctant to conclude a further lease, and informed the respondent that any lease would be subject to a three-month notice period. Clause 29.2 of the lease stated that ‘[t]he Landlord shall be entitled to terminate this Agreement on 3 (three) months written notice to the Tenant before termination date’.
The applicants then sold the property in October 2023. The sale agreement stipulated that the applicants would give the purchasers vacant occupation on 1 April 2024. The applicants then notified the respondent to vacate in accordance with clause 29.2. The respondents, however, argued that, since the lease was a fixed-term agreement, it was subject to prohibition against the early termination of fixed-term agreements in s 14 of the Consumer Protection Act 68 of 2008 (the CPA). When it became clear that the respondent would not vacate the property, the applicants approached the WCC on an urgent basis for the eviction of the respondent and anyone holding title under him if they failed to vacate the property by 31 March 2024. The urgency resided in the applicant’s obligation to give purchasers vacant occupation by 1 April 2024.
In issue was whether an early cancellation clause in a written lease was subject to the prohibition in s 14(2) of the CPA against early termination of fixed-term agreements. The WCC (per Slingers J) held that it was not. The lease was not done on a continuous basis or in the applicants’ ordinary course of business. Properly interpreted, s 14(2) was not directed at fixed-term agreements where the period of the agreement was open for negotiation between the parties and the consumer enjoyed the freedom to determine the duration to suit his or her needs. Accordingly, the WCC concluded that clause 29.2 of the lease agreement was valid and binding on the respondent, and validly cancelled. In the result, it directed the respondent and all those holding title under him to vacate the property on or before 31 March 2024.
Arrest and detention following positive breathalyser test permissible: Two applicants applied for special leave to appeal against a decision of the ECMk dismissing their claims for damages for unlawful arrest and detention in Syce and Another v Minister of Police 2024 (2) SACR 1 (SCA) – only the first applicant is relevant here.
Police officers had stopped the first applicant’s vehicle while on the lookout for the transporting of illicit drugs in the area, but none were found. Suspecting that he was under the influence of alcohol, however, they performed a breathalyser test on him. This proved positive. He was then arrested and taken to a hospital for the drawing of a blood sample. He was detained and released the following day. He disputed the lawfulness of his detention and contended that his rights had been violated in that he had not been promptly informed of his right to bail as required by s 50(1)(b) of the Criminal Procedure Act 51 of 1977, to enable him to exercise it before his first appearance in court.
Weiner JA and Goosen JA (Carelse JA and Tokota AJA concurring) concluded that the provisions of s 65 of the National Road Traffic Act 93 of 1996 envisaged detention as a means of obtaining evidence of prohibited conduct, and that the arrest and detention were in all respects in order. The first applicant should, however, have been advised by the police of his right to bail and there was no evidence that this was done. In its absence, his continued detention was unlawful. An order was made appropriately.
No provision for oral plea-and-sentence agreement in plea-bargain process: The accused in Uchechukwu v Govuza and Another 2024 (2) SACR 51 (ECMk) sought to review criminal proceedings against him in a regional magistrate’s court wherein he was charged with dealing in a dangerous dependence-producing drug, namely Tik, and sentenced to 10 years’ imprisonment. He contended he had been sentenced to a heavier sentence than one allegedly agreed to in an oral plea-and-sentence agreement by his attorney with the state. He also contended that, since he had also not admitted in his plea that the substance was ‘a dangerous dependence-producing substance’, but rather a dependence-producing substance, the peremptory requirements of s 105A of the Criminal Procedure Act 51 of 1977 had not been met. And this was irregular.
The ECMk (per Norman J) criticised the prosecutor for not following the correct procedure, and noted that s 105A made no provision for an oral plea-and-sentence agreement. It also appeared that the attorney was unaware of conduct that might have unfairly influenced the accused to plead guilty.
The ECMk also referred to the discrepancy between the charge and plea, which meant that there had been no meeting of the minds between the applicant and state and that the oral agreement was, therefore, in itself invalid. There ECMk, therefore, set aside the conviction and sentence.
Effect of belief in witchcraft on sentence for murder: The accused in S v Tyolo 2024 (2) SACR 39 (ECMk) was convicted of the brutal murder of his elderly aunt and the imputation of witchcraft in contravention of s 1(a) of the Witchcraft Suppression Act 3 of 1957. He believed that she had put a curse on his brother, causing him to suffer a debilitating illness. In sentencing the accused to an effective term of life imprisonment, the ECMk (per Govindjee J) discussed in some depth the extent to which a belief in witchcraft could affect sentence.
Apart from the cases referred to above, the May 2024 Criminal Law Reports also contained cases dealing with –
Disallowance of attorneys’ fees in respect of mindless or frivolous litigation: Strydom and Others v Coomans and Others 2024 (4) SA 302 (NWM) serves as a warning to attorneys who undertake unnecessary work while representing their client in litigation, highlighting the risk of punitive costs orders against them. The applicants unsuccessfully sought a spoliation order in the NWM against the respondents to restore their use of a road passing through the respondents’ farms. The applicants sought leave to appeal. The NWM (per Reid J) dismissed the application with costs and provided reasons for doing so in a detailed written judgment. Despite this, the applicants’ attorneys asked the court for written reasons for its decision to refuse leave to appeal.
The NWM described the applicants’ attorneys’ decision, in the face of a written judgment, to apply for reasons as ‘knee-jerk’ conduct. They had not applied their minds to the matter and had either not bothered to read the judgment or failed to request it from the registrar or the judge’s registrar. Whatever the reason, the consequence was actual prejudice. On the one hand, it meant more costs for the litigant because litigation would be protracted. On the other hand, it meant unnecessary allocation of court resources, adding to the ever-increasing workload of the judiciary. The NWM stressed that ‘judicial time [was] valuable and should not be wasted’. The actions of the attorneys, the NWM held, amounted to mindless or frivolous litigation.
Noting that the attorneys conduct formed part of a wider pattern in its division of attorneys requesting reasons without good causa, the NWM made a punitive costs order to deter such conduct in the future. It was also aimed at curing the injustice done to the applicants as clients, who could not be expected to pay fees charged for frivolous, thoughtless or mindless litigation by their attorneys. An appropriate order in the circumstances, the NWM concluded, would be one depriving the applicants’ attorneys of their fee for either the drafting and filing of the request for reasons, the perusal of the reasons given, or any other actions in relation to the request for reasons for the judgment.
Disclosure of medical records in divorce proceedings: A husband, in the throes of an acrimonious divorce, brought an interlocutory application for the disclosure of his wife’s medical records, which, he claimed, would show that she was unfit to be the primary caregiver of their children. The guardian of the records, a hospital where the wife was treated for bipolar disorder, refused to disclose them on the ground of their confidentiality. The wife opposed the application, alleging that disclosure would violate her right to privacy and that her husband was motivated not, as he insisted, by the best interests of their children, but by their utility as ammunition in the looming divorce proceedings. The matter was reported as WB v RB and Another 2024 (4) SA 316 (KZD).
The KZD (per Henriques J) ruled that it had a discretion to order disclosure, provided the records were relevant to the issues before it, which was not disputed. While the court was tasked, above all, with ensuring that the best interests of the children were served, this did not mean that the wife’s interests, in particular her right to privacy, were not worthy of protection, which could be achieved by excluding from disclosure the results of any psychological or psychometric testing. The KZD accordingly ordered that the hospital disclose the following: the wife’s diagnosis and treatment plan, the results of any alcohol or drugs tests, her prognosis and the recommendations in respect of her future treatment.
Knowledge of debt and the prescription of claims against legal practitioners for breach of mandate or the giving of bad legal advice: The facts in Le Roux and Another v Johannes G Coetzee & Seuns and Another 2024 (4) SA 1 (CC) were that Mr Steenkamp granted Mr and Ms Le Roux an option to purchase his farm. The option could be exercised within two months of Mr Steenkamp’s death, Mr Steenkamp died in September 2003.
After Mr Steenkamp’s death, the Le Rouxs met with an attorney, Mr Coetzee, mandating him to provide them with legal advice and to exercise the option on their behalf. He agreed to do so. Before leaving his office, Ms Le Roux asked Mr Coetzee if they were required to sign anything. Mr Coetzee said no. In late September 2003, Mr Coetzee wrote to Mr Steenkamp’s executor and exercised the option. It was then discovered that, prior to his death, and in breach of the option, Mr Steenkamp had sold and transferred the property to a Mr Nel. This caused the Le Rouxs to institute proceedings against Mr Steenkamp’s executor and Mr Nel to enforce the option and claim transfer.
It was only during those proceedings, in November 2007, the Le Rouxs found out that Mr Coetzee’s exercise of the option had been defective and had resulted in a nullity. The NCK dismissed the action early in September 2009. Later, in September 2009, the Le Rouxs served summons on Mr Coetzee for breach of mandate. He responded with a special plea of prescription. It relied on s 12 of the Prescription Act 68 of 1969, which provides that ‘prescription shall commence to run as soon as the debt is due’ but that it will ‘not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises’.
Mr Coetzee argued that his non-compliance with the Alienation of Land Act 68 of 1981 was a conclusion of law, and accordingly, unlike a fact giving rise to the claim, the Le Rouxs were not required to have knowledge of it, for prescription to begin to run. The Le Rouxs in turn argued that the non-compliance was a fact that they were required to have knowledge of for prescription to be triggered.
The NCK agreed with the Le Rouxs and dismissed Coetzee’s plea, but later granted him leave to appeal to the SCA.
The SCA overruled the NCK, relying on a series of cases which provided that a claimant need only have knowledge of the facts, and not of any legal conclusion stemming from the facts, for prescription to commence. Those facts comprised the consultation, the mandate, the erroneous advice about signature and the letter to the executor. The SCA ruled that the Le Rouxs had knowledge of them when Coetzee wrote to the executor and when the option lapsed, thereby causing them loss. The SCA acknowledged that the cross-examination was the first time the Le Rouxs became aware of the statutory non-compliance, but it ruled that this, being a legal conclusion, had no relevance to when prescription began.
The Le Rouxs sought leave to appeal from the CC. The issue on appeal was whether, in an action for negligence against a legal practitioner, the facts contemplated by s 12(3) included knowledge of the legal conclusion that the mandate has been breached or erroneous advice furnished.
The CC (per Kollapen J) ruled that they could. This would equalise the position of legal practitioners to that of auditors and medical practitioners: in actions for medical and auditing negligence expert advice identifying the negligence was regarded for the purposes of s 12(3) as a ‘fact’. It would also be inconsistent with the ‘knowledge’ requirement for prescription to begin to run in the absence of knowledge of the erroneous advice or mis-exercise of the mandate. It would, indeed, be unjust.
The CC ruled in favour of the Le Rouxs, finding that knowledge of the final fact required to trigger prescription (the non-compliance with the Alienation of Land Act) was obtained in November 2007, with the result that the three-year prescription period had not been completed when the Le Rouxs served their summons on Mr Coetzee. The CC accordingly upheld the appeal and set aside the order of the SCA, substituting it with an order dismissing Coetzee’s appeal against the judgment of the NCK.
Review of public-school governing body’s decision to change school name: In Rautenbach and Others v Governing Body, Hoërskool DF Malan and Another 2024 (4) SA 191 (WCC), the applicant and others, alumni of Hoërskool DF Malan, challenged a decision by the school’s governing body (the SGB) to change the school’s name to DF Akademie.
The name changing process was initiated after the SGB was confronted with several complaints about the school’s name – after Dr Daniel Francois Malan, who, as Prime Minister from 1948–54, implemented and enforced racial segregation laws based on the policy of apartheid.
A number of review grounds were advanced under the Promotion of Administrative Justice Act 3 of 2000 (PAJA), including that the decision exceeded the powers and functions vested in the decision maker (s 6(2)(a)(i)), in that governing bodies’ powers were limited to those listed in s 16 of the South African Schools Act 84 of 1996 and did include the power to change a school’s name.
Another ground was that it had to comply with the PAJA’s fair-procedure requirements. The main complaint in this regard was that there was no proper consultation, and that people were not provided with a proper opportunity to discuss the question of the name change at meetings held.
As to whether the School’s Act permitted the SGB to change the school’s name, the WCC (per Henney J) held that it did: there was nothing in the Schools Act that prohibited a governing body from exercising such a power. Section 16 of the Schools Act confirmed that the power to govern a school only vested with the school governing body; and s 21 gave it broad powers to deal with a range of governance issues. The SGB’s power to change the name of the school derived from these provisions and the conduct of the SGB fell squarely within the powers given to it in terms of s 20(1) of the Schools Act.
The WCC further confirmed that the SGB’s decision amounted to administrative action in terms of PAJA, and held that the process embarked on by the SGB constituted fair administrative procedure, which included adequate consultation and a proper chance by all concerned to give their input. Accordingly, the WCC dismissed the applicants’ challenge.
Family trust shenanigans: In Steyn v Steyn NO and Others 2024 (4) SA 285 (GP) the GP was confronted with an application by a trustee, beneficiary and alleged creditor of a discretionary family trust. In the application, the applicant, wearing her creditor’s hat, sought the sequestration of the trust on the basis that it was ‘commercially insolvent’. The GP (per Marumoagae AJ), having pointed out that it was doubtful that commercial insolvency could be relied on to sequestrate a discretionary family trust, held that while trustees could also be trust beneficiaries, they were not permitted to abuse their powers to benefit themselves to the detriment of the other beneficiaries, which was what the applicant was guilty of. She was seeking to resolve a money dispute with one of the other beneficiaries in her favour by resorting to questionable litigation. It was a textbook example of conflict of interest, and her application would be dismissed, in particular since the trust had plenty of assets and did not appear to be insolvent at all.
Apart from the cases referred to above, the March 2024 South African Law Reports 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 2024 (September) DR 32.
