INDEX1

EDITORIAL

SOUTH AFRICAN LAW REPORTS NOVEMBER 2015

SA CRIMINAL LAW REPORTS NOVEMBER 2015

All SOUTH AFRICAN LAW REPORTS NOVEMBER 2015

EDITORIAL

1 A reminder that these Legal Notes are my summaries of all reported cases as are set out in the Index. In other words where I refer to the June 2015 SACR , you will find summaries of all the cases in that book. It is for private use only. It is only an indication as to what was reported, a tool to help you to see if there is a case that you can use!

LEGAL NOTES VOL 12/2015

Compiled by: Adv M Klein

SA LAW REPORTS NOVEMBER 2015

SAVAGE AND OTHERS v SISTERS OF THE HOLY CROSS, CAPE PROVINCE AND OTHERS 2015 (6) SA 1 (WCC)Land — Transfer — Interdict — Interdict pendente lite — Tenants of church property in historic district seeking interim interdict to bar transfer — Loss of protection afforded by canon law justifying granting of interim relief.Church — Catholic Church — Church property — Transfer — Protection of tenants — Tenants seeking to bar transfer of church property in historic district pending institution of action — Loss of protection afforded by canon law justifying granting of interim relief.The applicants were the tenants of six cottages in a historic quarter of Cape Town. The cottages, which were themselves of historical significance, were owned by the Convent of the Holy Cross (the church). The tenants, who were paying a nominal monthly rental, applied for an interdict prohibiting the transfer of the property to a buyer (the third respondent), pending the institution of final proceedings of an undetermined nature. The tenants alleged that their tenancy was based on cessions of lifelong leases which the church had concluded with their forebears. They argued that the property was under the umbrella of the church, and that canon law and common-law principles precluded the church from alienating it. They also relied on the humanistic and communitarian principles of ubuntu. The church invoked economic necessity, arguing that it had to sell because the property was an untenable drain on strained financial resources. The court approached the matter as an application for an interim or interlocutory interdict, to be decided on the tenants' version. Hence it assessed whether the tenants established a prima facie right and a threatened or actual injury, where the balance of convenience lay, and whether there was a satisfactory alternative remedy.HeldWhile the courts would not interpret property rights without regard to principles of ubuntu, they were not compromised by the church's effort to address its financial woes by selling the cottages. Though the alleged cession agreements could not be construed on the affidavits, the tenants were able to establish prima facie rights emanating from the lifelong lease. While there was no looming eviction, the tenants would lose the protection afforded by canon law when the property was transferred to the third respondent, thus establishing a well-grounded apprehension of irreparable harm. The balance of convenience also favoured the tenants because an interim interdict would ensure, among other things, that the tenants' existing rights were protected pending the trial. Since the transfer of the property to the third respondent was imminent and their action in the main claim would otherwise be defeated, there was no satisfactory alternative remedy. Interdict granted. 

LARRET v COEGA DEVELOPMENT CORPORATION (PTY) LTD AND OTHERS 2015 (6) SA 16 (ECG)Company — Oppressive conduct — Relief — Ambit — Provision not incorporating power to authorise institution of action by company against third party in absence of proper company resolution to that effect — Companies Act 71 of 2008,s 163(2).

The broad powers granted to the court by s 163(2) of the Companies Act 71 of 2008 do not incorporate the power to authorise the institution of an action against a third party in the absence of a proper company resolution to that effect.

ENGEN PETROLEUM LTD v GOUDIS CARRIERS (PTY) LTD (IN LIQUIDATION) 2015 (6) SA 21 (GJ)Company — Winding-up — Unlawful alienations and preferences — Void disposition — Whether court may validate disposition made after grant of final winding-up order — Companies Act 61 of 1973, s 341(2).

This case concerns s 341(2) of the Companies Act 61 of 1973, which provides:    'Every disposition of its property (including rights of action) by any company being wound-up and unable to pay its debts made after the commencement of the winding-up, shall be void unless the court otherwise orders.'In issue was whether a court could validate dispositions made between presentment of the application for winding-up and deregistration, or only those made between presentment and the final winding-up order.Held, following North Gauteng authority that the latter interpretation was to be preferred. This was on the basis that a company could not after the final winding-up order — which established the concursus creditorum — validly dispose of property.

BAKGATLA-BA-KGAFELA COMMUNAL PROPERTY ASSOCIATION v BAKGATLA-BA-KGAFELA TRIBAL AUTHORITY AND OTHERS 2015 (6) SA 32 (CC) 

Land — Communal property — Provisional communal property association —Loses right to use and occupy land on expiration of provisional registration period but does not cease to exist — Communal Property Association Act 28 of 1996, s 5(4).

The Bakgatla-Ba-Kgafela Communal Property Association (the Association) was created in terms of s 5(4) of the Communal Property Association Act 28 of 1996 by members of a traditional community occupying 32 villages in the Moses Kotane Municipal Area, North West Province. During apartheid this community was dispossessed and forcibly removed from its land, on which a game reserve was established.After lodging a successful claim in terms of the Restitution of Land Rights Act the community attempted to register the Association to take possession of the restored land. This failed due to disagreement between the community and the Tribal Authority (and its chairman, Kgosi Pilane) over the legal entity through which the land was to be held. At the suggestion of the Minister of Rural Development and Land Reform a provisional association was registered for a period of 12 months pending permanent registration and the land was transferred to the Association.When the matter remained unresolved on expiration of the 12-month period, and permanent registration had still not taken place, the applicant turned to the Land Claims Court (LCC) for assistance. The main issues there were whether the Association was properly established under the Act so as to institute the proceedings and whether it was entitled to be registered as a permanent association. The LCC found for the applicant and directed the Director-General of the Department of Rural Development and Land Reform to affect permanent registration.

Dissatisfied, the traditional authorities appealed to the Supreme Court of Appeal (SCA). The SCA overruled the LCC, holding that in terms of s 5(4) the Association had ceased to exist on expiration of the 12-month period and therefore lacked legal standing to institute proceedings.The Constitutional Court, in an appeal by the Association, considered a proper construction and application of the impugned provision. Section 5(4) provides:   'Upon registration of a provisional association —(a)   the provisional association may acquire a right to occupy and use land for a period of 12 months from the date of registration. . . provided that the Director-General may extend the period of 12 months for a further period of 12 months . . . .'In a unanimous judgment the court held that, in the context of s 5(4), reference to the period of 12 months was in relation to the exercise of the right to occupy and use land and not the provisional association's life span. Consequently the SCA had misconstrued the meaning of the provision and, as a result, its conclusion that the Association did not have legal standing to institute the proceedings. Further, on the evidence, the requirements for registration as a permanent association had been met. Accordingly the decision of the SCA was set aside and that of the LCC reinstated.

SOCIETY OF ADVOCATES OF KWAZULU-NATAL v LEVIN 2015 (6) SA 50 (KZP) 

Costs — Counsel's fees — Taxation — Senior counsel — Generally — Reasonableness H to be assessed on time-spent basis using existing fee structures — Fees for drafting of heads of argument — Necessary consultation fees.

The respondent was directed to pay the applicant's costs on the attorney and client scale. The applicant, having presented his bills for taxation, was unhappy with the taxing master's deduction of R246 000 from its (senior) counsel's fees of R403 000, and requested the taxing master to state a case in respect of the disputed rulings. According to a survey by the Society of Advocates of KwaZulu-Natal, the fee spectrum for senior counsel ranged from R2400 to R4500 per hour and from R19 200 to R36 000 per day for consultations.Attorney and client costs are intended to ensure that a successful party will J recoup all reasonable expenses, including counsel's fees, incurred as a result of litigation. Rule 70(3) and rule 70(5)(a) give the taxing master a discretion in this regard. (See [7] for the wording of rule 70 and [8] – [20] for an exposition of the legal principles relating to attorney – client costs and their taxation.)The taxing master's stated case and final report were placed before the court for a determination. The applicant's main objection to the taxing master's ruling was that, although the court had ordered attorney and client costs, specified the necessary witnesses and directed that counsel's preparation and consultation fees be included in the order, the fees in question (which were necessary and reasonable) were in many instances disallowed. The applicant also listed several specific objections to the taxation (see [25]). The respondent argued that the taxing master had complied with the court order and that no interference with the taxed bill was warranted. HeldWhile the decisive criterion remained the value of the work done, it was permissible to charge counsel's fees on a time-spent basis. The taxing master had to assume that the agreed fees were reasonable unless there were compelling grounds for

thinking otherwise. In the present case counsel's rate of R2400 per hour and R24 000 per day were at the lower end of the senior counsel's fee spectrum (see above) and hence reasonable. Counsel's fees would in the present case be allowed at a rate of R2400 per hour, except for travelling, which would be allowed at half that rate. Applicant was correct in arguing that the taxing master should have assessed counsel's fees for the drafting of the heads of argument on a time-spent basis, which ought to be standard practice in KwaZulu-Natal. Although advice on evidence and consultations with necessary witnesses might be considered attorney and client costs, they would nevertheless be allowed in an attorney and client bill, even when payable by the unsuccessful party. The taxing master should in the present case have found that the impugned witness consultations were reasonable and necessary, though their duration and number were susceptible to assessment. While clients were expected to attend consultations between instructing attorneys and counsel, their absence did not necessarily mean that the costs incurred were unreasonable. In the present case the taxing master should not have disallowed the consultation costs. The allowance of a perusal fee to the attorney did not, moreover, preclude a consultation or preparation fee by counsel, nor did it mean that a fee was debited twice for the same service. The court proceeded to deal individually with each of the items in dispute and ordered that the changes allowed on review be substituted for the amounts allowed by the taxing master.

OSMAN v ROAD ACCIDENT FUND 2015 (6) SA 74 (GP) 

Delict — Specific forms — Loss of support — Dependant's action — Extension — Action by parent for loss of support from deceased child — Duty of child to support needy parent under African customary law — Extending also to other cultures, such as Muslim and Hindu, with similar societal mores in respect of taking care of parents and elderly.

A child's duty to support a needy parent, as recognised under African customary law, must be extended to cultures — like Muslim and Hindu — which share African culture's societal norms iro parents and the elderly, and impose a similar duty on children to support their parents. The Gauteng Division, Pretoria, so held in finding that the plaintiff, the mother of a son who was killed in a motor vehicle accident, was dependent on his support and awarded her damages for its loss. 

SOUTH ATLANTIC JAZZ FESTIVAL (PTY) LTD v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE 2015 (6) SA 78 (WCC)

Revenue — Tax court — Jurisdiction — Whether extending to appeal against Commissioner's exercise of administrative discretion — Tax Administration Act 28 of 2011, s 117.

Revenue — Value-added tax — Input tax — When deductible — Whether vendor in possession of acceptable documentary proof substantiating entitlement to deduction — Value-Added Tax Act 89 of 1991, s 16(2)(f).

Section 16(2)(f) of the Value-Added Tax Act 89 of 1991 (the VAT Act) allows the deduction of input tax if —

 'the vendor . . . is in possession of documentary proof, as is acceptable to the Commissioner, substantiating the vendor's entitlement to the deduction at the time a return in respect of the deduction is furnished'.The taxpayer invoked s 16(2)(f) in an objection against an assessment for value-added tax (VAT) liability which disallowed the deduction of input tax on the basis that no VAT invoices had been provided to the taxpayer iro the relevant supplies as required by s 16(2)(a) of the VAT Act. As 'documentary proof . . . of [its] entitlement to the deduction' the taxpayer submitted A certain sponsorship agreements concluded in the course of its enterprise as the organiser of an annual music festival, and in terms of which the sponsors — also registered vendors in terms of the VAT Act — paid money towards and provided goods and services for the festival, in return for which the taxpayer supplied goods and services to the sponsors in the form of branding and marketing. The objection having been disallowed, and having unsuccessfully appealed to the special tax court, this case concerned the taxpayer's further appeal to a full bench of a High Court. One of the Commissioner's contentions as to why s 16(2)(f) should not be applied was that its decision on the acceptability of the documentary proof 'substantiating the vendor's entitlement to the deduction' constituted 'administrative action' as defined in the Promotion of Administrative Justice Act 3 of 2000 (PAJA), and as such could only be impugned by way of a review application in terms of s 6 of that Act and not by way of an appeal in terms of the VAT Act. The taxpayer's appeal, so the argument went, amounted to a review of an administrative action, but the tax court had no jurisdiction to entertain review applications in terms of PAJA. HeldThe appellant in the current matter was exercising a right of appeal to the tax court against the assessments; it was not seeking the review and setting- aside of a decision in terms of s 16(2)(f) of the VAT Act. The fact that the determination of the appeal might entail the tax court considering the legality of an administrative decision that was integral to the making of the assessment, did not deprive the court of its jurisdiction to decide the appeal. To interpret and apply the legislation as requiring the dichotomous procedures enjoined in the argument advanced on behalf of the Commissioner would in many cases defeat the very purpose of the establishment of the specialist tax court. The jurisdiction of the tax court to determine tax appeals is conferred without any limitation in s 117(1) of the Tax Administration Act 28 of 2011; the court must be taken to have been invested with all the powers that are inherently necessary for it to fulfil its expressly provided functions. The Commissioner was able to assess the sum of the appellant's liability for output tax on the basis of the information contained in the respective sponsorship contracts. In an ordinary arm's-length-barter transaction the value that the parties to it attributed to the goods or supplies that were exchanged, in the absence of any contrary indication, was a reliable indicator of their market value. Therefore, the value of the goods and services provided to the taxpayer by the sponsors was equally determinable from the sponsorship contracts. By virtue of its counter-prestation in terms of the barter transaction, the appellant must be taken to have paid the tax and it should have been issued with the relevant tax invoices by the sponsors. If the documents were good enough for the Commissioner to assess the appellant's output tax liability, it was impossible to conceive, having regard to the character of the particular transactions, why they should not also have been sufficient for the purpose of computing the input tax which should have been deemed to have been levied by the sponsors. The Commissioner could, in the circumstances, not reasonably have

decided that the information in the contracts did not, in the circumstances, provide sufficient proof substantiating the appellant's entitlement to the deductions claimed. The appeal must therefore succeed.

PRINSLOO v ROAD ACCIDENT FUND 2015 (6) SA 91 (WCC)

Motor vehicle accident — Compensation — Claim against Road Accident Fund — Quantum — Loss of future earnings — Pre-existing vulnerability — Thin-skull rule — Claimant's psychological fragility making her less resistant to chronic pain — Forced into early retirement — RAF liable for resultant loss of earnings. Motor vehicle accident — Compensation — Claim against Road Accident Fund — Quantum — Loss of future earnings — Consequential benefits — Disability pension — Accruing under contract of employment — Intended as compensation — Not deductible.Delict — Elements — Causation — Legal causation — Thin-skull rule — Frailty of victim no defence — Victim's psychological make-up making her less resistant to chronic pain — Forced into early retirement — Road Accident Fund to compensate victim for resultant loss of earnings.

In August 2007 the plaintiff, Ms Prinsloo, suffered a whiplash injury in a car crash. She developed chronic pain syndrome. A subsequent crash in May 2009 caused the 2007 symptoms to flare up, but after surgery they reverted to the same level. After battling to maintain her level of work functioning for five years, she took early retirement in August 2012, at age 56. She would otherwise have retired at 60 in February 2016. In a claim against the Road Accident Fund Ms Prinsloo quantified her damages resulting from the early retirement at R1 995 700. She claimed that she was forced into early retirement by the chronic pain that resulted from the 2007 accident. The RAF's stance was that there were no objective facts from which it could be concluded that the 2007 accident caused Ms Prinsloo to take early retirement, and that the 2009 collision and work stress were the real culprits. The RAF also argued that the disability benefits received by Ms Prinsloo upon her early retirement should have been deducted from her claim. HeldNeither work stress nor the 2009 collision was a novus actus interveniens:Ms Prinsloo's chronic pain, which developed over time, was triggered by the 2007 collision, which was the sole cause of her early retirement. The fact that she was psychologically frail and incapable of dealing with the results of that injury with normal fortitude did not change this: the thin-skull rule applied and Ms Prinsloo's reaction could not be regarded as a supervening cause. Since Ms Prinsloo did not, moreover, receive a disability pension in lieu of her pension, but had been paid out money saved under a compulsory scheme provided for in her employment contract, she was entitled to the entire loss of income caused by her early retirement, without the deduction of disability benefits received.

PROVINCIAL MINISTER FOR LOCAL GOVERNMENT, WESTERN CAPE v OUDTSHOORN MUNICIPAL COUNCIL AND OTHERS 2015 (6) SA 115 (CC)

Constitutional law — Legislation — Validity — Local Government: Municipal Structures Act 117 of 1998, s 30(4) — Casting vote by speaker where council

deadlocked — Provision unconstitutional and invalid to extent allowing speaker casting vote in matters listed in s 160(2) of Constitution — Reading-in of 'other than a matter mentioned in s 160(2) of the Constitution' after 'question' curing invalidity — Declaration effective prospectively — Constitution, s 160(3)(b) read with s 160(2). 

This case concerned the constitutional validity of s 30(4) the Local Government: Municipal Structures Act 117 of 1998. The section provides that '(i)f on any question there is an equality of votes, the councillor presiding must exercise a casting vote in addition to that councillor's vote as a councillor'. The matter arose out of a dispute between the Provincial Minister for Local Government, Environmental Affairs and Development Planning, Western Cape (Provincial Minister), and speaker of the Oudtshoorn Municipal Council over the use of his casting vote to secure the approval of the council's 2014/15 deadlocked budget — he had already voted in favour of the budget. The Provincial Minister took the view that s 30(4) did not allow the speaker a deciding vote in matters listed in s 160(2) of the Constitution, which included approval of budgets. Section 160(3)(b) of the Constitution provides that all questions concerning matters mentioned in s 160(2) require a supporting vote of the majority of the council members. Unable to resolve the matter, the Provincial Minister approached the Western Cape High Court for a declarator regarding the interpretation of s 30(4). 

The High Court found s 30(4) unconstitutional and invalid to the extent that it allowed a presiding councillor to exercise a casting vote, in addition to his vote as councillor, in respect of any matter referred to in s 160(2) of the Constitution. As a remedial measure, the court declared that the words 'other than a matter mentioned in s 160(2) of the Constitution' be inserted after the word 'question' in the impugned section. The orders were to operate prospectively.

On application, the Constitutional Court unanimously confirmed the High Court's order of constitutional invalidity. It further endorsed the reading-in remedy and prospective operation of the orders.

SHOPRITE CHECKERS (PTY) LTD v MEC FOR ECONOMIC DEVELOPMENT, EASTERN CAPE AND OTHERS 2015 (6) SA 125 (CC)

Constitutional law — Human rights — Right to property — What constitutes property — Grocer's wine licences — Constitution, s 25(1); Liquor Act 27 of 1989. Constitutional law — Human rights — Right to property — Deprivation of property — What constitutes — Act terminating grocer's wine licences — Deprivation not arbitrary — Constitution, s 25(1); Liquor Act 27 of 1989; Eastern Cape Liquor Act 10 of 2003, ss 71(2) and 71(5). 

Shoprite Checkers (Pty) Ltd held grocer's wine licences under the Liquor Act 27 of 1989. These permitted it to sell both wine and groceries from its supermarket premises. The Eastern Cape Liquor Act 10 of 2003 changed the regulatory environment, such that liquor could only be sold from premises exclusively selling liquor. The Eastern Cape Act did, though, provide that grocer's wine licences continue for 10 years; and that after five years they could be converted to registrations permitting the sale of liquor from dedicated liquor-sale premises.

Shoprite did not, however, convert its licences. Then shortly before the lapsing of the 10-year period, it engaged with the liquor board and the Premier with a view to preserving its rights. It was unsuccessful. It then applied to the High Court to declare that the provisions of the Eastern Cape Act replacing its rights were constitutionally invalid.

The High Court duly declared ss 71(2) and (5) of the Eastern Cape Act invalid, holding that the grocer's wine licences were property under s 25(1) of the Constitution; that Shoprite was deprived of this property; and that the deprivation was arbitrary.

Shoprite then applied to the Constitutional Court for confirmation of the declaration.The court's judgment (Froneman J)The court prefaced its consideration of the issues with a discussion of the nature of property and its protection. It noted the county's contested conversation about the protection of property, and suggested that the contrasting perspectives could be effectively addressed only by seeking a conception of property within the rights-and-values framework of the Constitution. A conception according with those values ought to illuminate the kinds of property deserving protection. (Considerations relating to this were that the type of property deserving protection could not be restricted to private-law notions of property; that an individual's right to property was not absolute, but subject to societal considerations; that property ought to serve the public good; and that neither the subjective interest of the owner nor the economic value of the right could determine the characterisation of the right.) The sought-after conception would have to allow for individual self-fulfilment in the holding of property, while at the same time recognising that the holding of property entailed an obligation not to harm the public good. The first issue was whether a grocer's wine licence was property under s 25. Held, that it was. (So too was a registration under the Eastern Cape Act.) This because it was clearly definable and identifiable; of value; transferable; sufficiently permanent; and holding it could facilitate an individual's self-fulfilment and dignity. The second issue was whether the Eastern Cape Act had deprived holders of their property. Held, that it had. Holders of grocer's wine licences had after 5 or 10 years lost the right to sell wine and groceries on the same premises. The last issue was whether the deprivation was arbitrary. Held, that it was not. The means (conversion and ultimately elimination of grocer's wine licences) used to achieve the end (simplification of the licensing system) was quite rational. Moreover, that the Act gave the opportunity to convert the entitlement after five years, and only effected the deprivation after 10, was both reasonable and non-arbitrary. Confirmation of constitutional invalidity withheld. Moseneke DCJ's judgmentMoseneke DCJ concurred that the Eastern Cape Act was not inconsistent with the Constitution and that the order of constitutional invalidity should not be confirmed. But it had been unnecessary to decide that the licences were property — the same conclusion could have been reached by testing the Eastern Cape Act for rationality. The licences themselves were not property. As to what Shoprite had been deprived of, Moseneke DCJ held that it had lost the opportunity to sell table wine alongside groceries. It had not lost the ability to conduct a liquor business: the legislation had given it the opportunity to convert its licences; and it could still apply for licences to sell liquor from dedicated liquor-sale premises.

Concerning what constituted property in s 25, Moseneke DCJ made the following comments:   (1)   The section used the word in a broad sense and did not give a definition. Thus whether an interest was property had to be decided on a case-by-case basis.    (2)   Not all government largesse was property — a right was only property if it possessed characteristics justifying such a classification.    (3)   It was unnecessary to develop a wide idea of property in order to protect interests from legislative or executive interference. The Constitution already provided other protections.    (4)   Change of government policy — which required withdrawal of entitlements — might be inhibited, if such entitlements were characterised as property, and requiring compensation. Moseneke DCJ was doubtful that a liquor licence could be property. This was because:   (1)   Such a characterisation would limit the ability of the legislature to regulate the industry.   (2)   A licence did not fit the constitutional idea of property: academic authority was to the effect that only vested rights could constitute such property; and rights acquired under state regulation did not vest in their holder.    (3)   To recognise liquor licences as property would overly widen the definition of property, and require a narrowing of the definitions of deprivation and arbitrariness.    (4)   A characterisation of liquor licences as property would limit the provinces' constitutional competence to legislate on the sale of liquor.    (5)   An interest's vulnerability to interference would be influential in a decision to characterise it as property. Here administrative law provided ample remedies against executive interference. Held, ultimately, that grocer's wine licences were not property. Madlanga J's judgmentMadlanga J held that the licences were property. This was supported by the fact that they: endured indefinitely; could not be suspended or cancelled at whim; were of commercial value; and transferable. Moreover the deprivation was total. Given this, the test for arbitrariness was stricter. The means would have to be rationally connected to — or justify — the end; and the end would have to be compelling. Here there was no evidence that the ends allegedly sought had been on the minds of the legislation's drafters. Accordingly, the deprivation was arbitrary. Ultimately, Madlanga J would have confirmed the order of constitutional invalidity. 

ROAD ACCIDENT FUND v SWEATMAN 2015 (6) SA 186 (SCA)

Motor vehicle accident — Compensation — Claim against Road Accident Fund — Limits — Limit in respect of loss of income or support — Calculation — Section not altering conventional method of calculating those losses — Limit applying to case remains same for each year after accident —Road Accident Fund Act 56 of 1996, s 17(4)(c).

This case concerns s 17(4)(c) of the Road Accident Fund Act 56 of 1996, which sets a monetary limit on plaintiffs' claims for loss of income or support. The case holds that the section does not alter the conventional method of calculating those losses. It

also holds that the limit applying in a given caseremains the same for each year after the accident: it is not adjusted upward to take account of inflation. 

NZIMANDE v MEC FOR HEALTH, GAUTENG 2015 (6) SA 192 (GP)

Medicine — Medical practitioner — Negligence — Proof — Res ipsa loquitur — Application of doctrine where prima facie case of grave negligence made out against personnel at government hospital and defence one of bare denial.Evidence — Witness — Calling — Failure to call — Intervention by court — Plaintiff's legal representative failing to call expert witness to testify to potential consequences of medical negligence — Claim endangered — Court intervening in interests of justice to prevent its derailment — Expert report procured.

Ms Nzimande claimed damages, both in her own capacity and on behalf of her child, arising from their treatment during and after a caesarean birth at a hospital administered by the defendant (Gauteng's Health MEC). Ms Nzimande claimed that both she and her newborn daughter endured unnecessary pain and suffering as a result of the negligence of doctors and nurses E at the hospital. It emerged from the evidence of Ms Nzimande that her child — who was cut on an arm during the procedure — was afterwards taken to the neonatal ward without Ms Nzimande having been allowed to see her. When, after three days, Ms Nzimande was finally taken to her child, she found her in a non-functioning incubator, unfed and with her wounds untreated. In the meantime Ms Nzimande herself had been left untreated, in pain, and ridden with anxiety about the welfare of her child. Medical experts stated the cut on the child's arm was 'undoubtedly due to the negligence of the surgeon'; that she thereafter 'suffered pain and discomfort for three months'; and that she was left with scarring that would require further treatment and, eventually, surgery. According to expert evidence procured by the court (see below) the whole ordeal left Ms Nzimande with mild post-traumatic stress disorder characterised by feelings of dismay, fear and anxiety.For his part the defendant offered no more than a bare denial of liability, and counsel for Ms Nzimande submitted the doctrine of res ipsa loquitur should therefore apply to her claim. Counsel for Ms Nzimande failed, however, to offer expert evidence on the potential consequences of the negligence, and the court, acting in the interests of justice, allowed her to be assessed by a gynaecologist, who prepared a report stating that she was severely traumatised by her experience and would require psychological treatment.HeldWhile res ipsa loquitur seldom applied in medical negligence cases, the present circumstances were unusual enough to justify its application. The evidence established a strong prima facie case of grave negligence in the treatment of both patients. The defendant, having decided to oppose the action without leading evidence to dispel the allegation that the conduct of the personnel involved was substandard, had only himself to blame if the doctrine found application. Without refutation, the strong prima facie case became proof on a balance of probabilities. While the issue of the potential consequences of the negligence was not properly addressed by counsel for Ms Nzimande, this unfortunate mistake would not be allowed to derail the claim: expert evidence would, in the interests of justice, be obtained by the court. In A addition to the mother and child's future medical expenses, R300 000 and R200 000 would be awarded as general damages for the

child and mother, respectively. Attorney and client costs would be awarded against the defendant as a mark of the court's disapproval of his uncompassionate and obstructive conduct.

ABOOBAKER NO AND OTHERS v SERENGETI RISE BODY CORPORATE AND ANOTHER 2015 (6) SA 200 (KZD)

Local authority — Buildings — Demolition — Of portion of building based on deviation plan, approval of which set aside on review — Such portion illegally constructed — Court bound by doctrine of legality to order its demolition.Local authority — Town planning — Town-planning and zoning schemes — Rezoning — Review of approval — Setting aside of rezoning on review — Effect on deviation plan approved pursuant to rezoning — Whether demolition appropriate remedy.

This case concerned an application by and on behalf of property owners to review and set aside decisions of the second respondent, the eThekwini Municipality (the Municipality), to rezone a neighbouring property and to approve building plans deviating from the original approved plans of the building in question. These decisions enabled the first respondent, the developer of the property, to increase the size of the building by more than 500% and its height from four storeys to nine at the time of the application. The applicants challenged the legality of the rezoning process and the approval of the deviation plan, and its fairness as administrative action in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

HeldAs to the rezoning processThe rezoning application required notice of the intended rezoning to the affected parties. The notification given was, however, not in accordance with the applicable law (s 47bis of the Town Planning Ordinance 27 of 1949), and this non-compliance rendered the rezoning process invalid. It could not be regarded on any level as due compliance or fair process: not only did the notices lack particularity but the absence of informing all concerned created an illusory right. Neither of the respondents could convincingly show that the rezoning was rational or lawful. There could be no doubt that the conduct of the respondents regarding the rezoning amounted to administrative action, and that the rezoning process affected the legal rights of the applicants in a manner that was neither fair nor just. The conduct of the respondents also violated the principle of legality. Accordingly, the Municipality's approval in terms of the Ordinance for rezoning the property was unlawful and invalid, and set aside on review. As to approval of the deviation plansThe deviation plan cannot be separated from the rezoning, since it was only after the rezoning that the deviation plan could be approved and the nine-storey structure be erected. Also, it had not been shown that the Municipality had satisfied itself that none of the undesirable outcomes would be triggered as envisaged by s 7(1) of the National Building Regulations and Building Standards Act 103 of 1977. Accordingly, the approval of the deviation plan in respect of the development was unlawful and invalid, and set aside on review. As to the appropriate remedy 

Once a ground of review under PAJA has been established, then, in terms of s 172(1)(a) of the Constitution, the administrative action by the Municipality had to be declared unlawful. The building in question was based on unlawful and invalid rezoning. Without such rezoning the developer had erected an illegal structure because the plan authorising the building could not have been authorised in terms of the original zoning which permitted a building no higher than four storeys. What remained valid was that part of the building that was built in accordance with the original zoning and approved plan. Once a court made a finding that a structure was illegal, the jurisdictional basis for a demolition order was proved. The relief should be in line with the finding. There was an obligation on this court to uphold the law; by the operation of the legality doctrine the court was duty-bound to order that the part of the structure that was illegal be demolished. 

EXPRESS MODEL TRADING 289 CC v DOLPHIN RIDGE BODY CORPORATE 2015 (6) SA 224 (SCA)

Company — Winding-up — Creditors — Locus standi — Whether lost — After grant of provisional winding-up order, third party paying rental arrears that were basis for winding-up.Close corporation — Liquidation — Application — Locus standi of applicant — Whether lost — After grant of provisional winding-up order, third party paying rental arrears that were basis for winding-up.

Express Model Trading 289 CC (Express) was the owner of units in a sectional title development. Over a long period it either did not pay its levies or paid them late and ultimately it owed substantial arrears. This caused the body corporate to obtain a provisional winding-up order; where after an undisclosed third party settled the arrears. However, the proceedings continued and a final winding-up order was granted. Express appealed to the Supreme Court of Appeal, but its appeal lapsed when it failed to file heads of argument in time. It then applied for condonation. The question was whether there were prospects of success on appeal.Express' contentions were that (1) payment of the arrears — the basis of the winding-up application — caused the body corporate to lose its locus standi; (2) its ability to pay its debts could be inferred from it being able to procure the third party to pay the arrears; and (3) it had assets — which it could liquidate — which covered all its liabilities.Held, as to (1), that the body corporate retained locus standi. This because the levies were an ongoing obligation which, even after the payment, Express continued to breach. Held, regarding (2), that while a debtor's ability to raise a loan might demonstrate its creditworthiness and thence its ability to pay its debts, it might also demonstrate the opposite. It depended on the facts. Here it emerged that the third party was ultimately controlled by Express's sole member. Thus creditworthiness could not be inferred. Held, as to (3), on the basis of a report by the liquidator, that the liabilities exceeded the assets. Held, accordingly, that absent an adequate explanation for the delay and prospects of success on appeal, condonation could not be justified. Application dismissed.

MAHANO AND OTHERS v ROAD ACCIDENT FUND AND ANOTHER 2015 (6) SA 237 (SCA)

Motor vehicle accident — Compensation — Claim against Road Accident Fund  — Injury — Assessment whether 'serious' — Whether minister had to publish guidelines before American Medical Association's Guides could be used in assessment — Road Accident Fund Regulations, 2008, reg 3(1)(b)(iv).

The issue raised in this case was whether the Minister of Transport was required to publish 'operational guidelines' before the American Medical Association's Guides to the Evaluation of Permanent Impairment could be applied in assessing whether an injury was serious. (Road Accident Fund Regulations, 2008, reg 3(1)(b)(iv).) 

KILBURN v TUNING FORK (PTY) LTD 2015 (6) SA 244 (SCA)

Suretyship — Deed of suretyship — Interpretation — Conflict between heading and body.

Kilburn Auto Enterprises (Pty) Ltd and Tuning Fork (Pty) Ltd were parties to an agreement allowing Kilburn Auto to buy products from Yamaha Distributors, a division of Tuning Fork. Kilburn Auto was also a customer of another of Tuning Fork's five divisions, After Market Products, with which Kilburn Auto had a credit facility, secured by a suretyship given by Kilburn.The suretyship provided as its heading 'Deed of Suretyship — Tuning Fork (Pty) Ltd t/a After Market Products'; and in its body: 'I . . . Kilburn . . . hereby bind myself . . . as Surety . . . with Kilburn Auto Enterprises (Pty) Ltd . . . (the Creditor) . . . —   1.   For . . . due fulfilment by the Debtor of all its obligations to the Creditor . . . in terms of . . . any agreement between the Creditor and . . . Debtor.'Ultimately, Kilburn Auto failed to pay invoices issued by Yamaha Distributors, causing Tuning Fork to claim payment from Kilburn Auto, and also from Kilburn as surety.Kilburn opposed, asserting he was not liable by way of the suretyship, as Kilburn Auto had settled its debts to After Market. Tuning Fork contended the suretyship covered debts arising between Kilburn Auto and any of its divisions. The High Court found for Tuning Fork, and Kilburn appealed to the Supreme Court of Appeal.In issue was the interpretation of the suretyship — whether it allowed Tuning Fork to recover from Kilburn, for a debt originating in Kilburn Auto's purchases from Yamaha Distributors. This turned on what had been intended by the inclusion of the trading name in the heading of the deed. Held, that the established principles of interpretation were to be applied. Also to A be noted was that divisions of an entity were not regarded as having separate legal personalities. Held, further, that Kilburn's liability under the deed was limited to debts arising from Kilburn Auto's purchases from After Market. This on the following grounds:   (1)   Where a contract's heading and body could be read together, that should be done. It could be done here — and this eliminated any apparent conflict of the two.   (2)   Every word had to be given meaning, and it could only be concluded that words were superfluous or tautologous if there were good reason. Here there was no reason to conclude that the words 't/a After Market Products' were

superfluous. (3)   The factual context, including the document's purpose and the circumstances in which it came to be prepared, had to be taken into account — and here shed light on its intended meaning. The deed was drafted because After Market required security from Kilburn Auto for its purchases on credit — it was intended to secure debts arising from those purchases only. Appeal consequently succeeding, and the High Court's holding that Kilburn was liable to Tuning Fork for debts arising from Kilburn Auto's purchases from Yamaha Distributors, reversed.

MA v STATE INFORMATION TECHNOLOGY AGENCY (PTY) LTD 2015 (6) SA 250 (LC)

Labour law — Unfair discrimination — Gender, sex, family responsibility and sexual orientation — Maternity leave — Male employee in civil union refused paid maternity leave following birth of child through surrogacy — Amounting to unfair discrimination — Basic Conditions of Employment Act 75 of 1997, s 25; Employment Equity Act 55 of 1998, s 6(1).

The applicant, a male employee in a civil union, was refused paid maternity leave by the respondent on the basis that he was not the biological mother of his child under a surrogacy agreement. He contended that this constituted unfair discrimination on grounds of gender, sex, family responsibility and sexual orientation, in violation of s 6(1) of the Employment Equity Act and sought a declaration, amongst other things, to this effect.The court found that there was no reason why an employee in the position of the applicant should not be entitled to 'maternity leave' and for the same duration to which a natural mother was entitled. Accordingly it held that the refusal amounted to unfair discrimination and directed the respondent, when applying its maternity-leave policy, to (i) recognise the status of civil unions; and (ii) not discriminate against the rights of commissioning parents in surrogacy agreements. 

L'OREAL SOUTH AFRICA (PTY) LTD v KILPATRICK AND ANOTHER 2015 (6) SA 256 (LC)

Labour law — Labour Court — General principles and rules — Importation of provisions and rules governing other jurisdictions — Selective importation permissible to fill lacunae in processes of Labour Court and Labour Appeal Court — Labour courts may selectively import provisions from Superior Courts Act 10 of 2013.Labour law — Labour Court — Appeal — Appeal process — Interim enforcement of order — No appeal against order for interim enforcement — Superior Courts Act 10 of 2013, s 18(4) not applicable to Labour Court appeals.Labour law — Labour Court — Execution — Application for leave to execute pending appeal — Appeal against interdict enforcing restraint of trade — Irreparable harm — Suspension would defeat restraint and render interdict nugatory — Court directing that interdict remain executable — Uniform Rules of Court, rule 49(11).

The issue in this case was whether an application for leave to appeal from the Labour Court to the Labour Appeal Court would have the effect of suspending the Labour Court's order enforcing a restraint of trade agreement.

On 16 September 2014 the Labour Court granted L'Oreal, Mr Kilpatrick's former employer, an interdict enforcing a restraint of trade agreement they had concluded during Mr Kilpatrick's employment. The interdict specifically prohibited Mr Kilpatrick form working for his current employer, Henkel SA (the second respondent). The interdict also enforced a payment provision which obliged L'Oreal to pay Mr Kilpatrick 66% of his salary for the duration of the restraint. The following day Mr Kilpatrick (who throughout the present proceedings remained in the employ of Henkel SA) filed an application for leave to appeal to the Labour Appeal Court. L'Oreal then made the present application, under rule 49(11) of the Uniform Rules, for the enforcement of the interdict pending appeal. L'Oreal argued that a suspension would render any appeal relief useless because the term of the restraint would by then have run out.H Both parties addressed the issue of the applicability, in the Labour Court, of s 18 of the Superior Courts Act 10 of 2013, which has no equivalent in the statute that governed the Labour Court and the Labour Appeal Court, the Labour Relations Act 66 of 1995. Section 18(1) provides that an appeal will, absent 'special circumstances', entail the suspension of the lower court's order. Section 18(3) provides in essence that the party seeking enforcement must show irreparable harm, to the exclusion of irreparable harm to the other party. Section 18(4) provides that the other party has an automatic right of appeal to the next-highest court.It was common cause (and the court agreed — see [25] – [26] and [32]) that rule 49(11) of the Uniform Rules applied in the Labour Court. The rule provides that the noting of an appeal or an application for leave to appeal suspends a judgment unless the court, on the application of a party, 'otherwise directs'. According to precedent its critical component is a judicial discretion to rule in accordance with the equities. HeldThe Labour Court and the Labour Appeal Court had the power to import procedures that were of general application in other jurisdictions to fill lacunae in their own procedures (paras [16] – [19]). Section 18(1) – (3) of the Superior Courts Act provided a novel and useful way to implement rule 49(11), and would be so imported (para [37]), but not s 18(4), which did not fill a lacuna and was in conflict with the existing appeal process between the Labour Court and the Labour Appeal Court (para [45]). Hence a respondent like Mr Kilpatrick would not have an automatic right of appeal to the Labour Appeal Court (nor the associated benefit of a further suspension of the order) (para [46]).In applying rule 49(11) and s 18(1) – (3) to the present case, the court pointed out that the present enquiry and the one made when the court originally decided to enforce a restraint were similar, with each involving a discretion as to what would be reasonable (para [48]). The court emphasised that restraint-of-trade interdicts were all about the protection of the applicant's protectable interest, and that the elimination of continued risk could, where the protectable interest consisted in confidential information, be achieved only by interdicting the respondent's employment with the competitor (para [49]).The court held that it would for the following reasons grant the application and refuse to suspend its order of 16 September —•   a respondent like Mr Kilpatrick should not be allowed to defeat the restraint and thwart the interdict by the simple expedient of noting an appeal against its enforcement ;•   L'Oreal's harm was irreparable (suspension would entail the steady erosion of its protectable interest), while Mr Kilpatrick's harm was capable of redress (enforcement

would, despite costing him his job with Henkel SA, still leave him with 66% of his former salary and the freedom to look for other work) ; •   the appeal had ulterior purpose: Mr Kilpatrick wanted to ensure, by alternative means, that the repudiation of his employment agreement with L'Oreal had a favourable outcome ;•   the prospects of success on appeal were low);•   it was clear, overall, that without enforcement pending appeal, the restraint, despite having been successfully enforced, had no value, and never would.

LESTER v NDLAMBE MUNICIPALITY AND ANOTHER 2015 (6) SA 283 (SCA)

Local authority — Buildings — Demolition — Of building erected without approved building plans — Whether court vested with discretion not to order demolition — National Building Regulations and Building Standards Act 103 of 1977, s 21. 

Section 4(1) of the National Building Regulations and Building Standards Act 103 of 1977 (the Act) provides that '(n)o person shall without the prior approval in writing of the local authority in question, erect any building in respect of which plans and specifications are to be drawn and submitted in terms of this Act'. Section 4(4) renders the contravention of s 4(1) a criminal offence, and s 21 provides that —'a magistrate shall have jurisdiction, on the application of any local authority or the Minister, to make an order . . . authorising such local authority to demolish such building if such magistrate is satisfied that such erection is contrary to or does not comply with the provisions of this Act or any approval or authorisation granted thereunder'. The language of s 21 gave a magistrate no latitude not to order the demolition once the jurisdictional fact, namely that the building was erected contrary to the Act, was established. The conclusion that s 21 did not lend itself to such a discretion was unassailable. The law could not and did not countenance an ongoing illegality which was also a criminal offence; to do so would be to subvert the doctrine of legality and to undermine the rule of law. 

SW v SW AND ANOTHER 2015 (6) SA 300 (ECP)

Marriage — Divorce — Jurisdiction — High Court — Where divorce action pending before regional court, parties cannot invoke jurisdiction of High Court to secure relief in terms of Uniform Rule 43 — Court can, however, exercise inherent jurisdiction where interests of minor child require urgent protection — Such discretion not lightly exercised to avoid jurisdictional conflict and multiplicity of actions — Uniform Rules of Court, rule 43.

A litigant who is a party to a divorce action pending before another court cannot invoke the jurisdiction of the High Court to secure relief in terms of rule43 of the Uniform Rules of Court. The court can, however, exercise its inherent common-law jurisdiction to act in appropriate circumstances in the interests of minor children to make an order, notwithstanding such proceedings. To invoke such inherent jurisdiction the applicant must establish (a) that considerations of urgency justify the intervention; and (b) that intervention is necessary to protect the best interests of the minor. It is not a jurisdiction that will be lightly exercised. The court retains an

inherent discretion not to exercise such jurisdiction to avoid a multiplicity of suits with the concomitant risk of jurisdictional conflict.

MEDOX LTD v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE 2015 (6) SA 310 (SCA)

Revenue — Income tax — Assessment — Finality of assessment — Absent objection, assessment becoming final and conclusive — Commissioner precluded from reopening assessments after three years — Income Tax Act 58 of 1962,ss 81(2)(b) and 81(5).

The taxpayer (Medox) incurred an assessed loss for the 1996 tax year but did not submit a tax return for the 1997 tax year due to an oversight which the taxpayer alleged it only detected in 2009. The assessed loss was therefore not set off against its income from the 1997 tax year. This case concerns the effect of the respondent (the Commissioner) not setting off the taxpayer's 1996 assessed loss against income from any of the subsequent tax years — from 1998 up to and including 2010, but excluding 2003 — for which Medox did submit tax returns. The High Court dismissed Medox's application for a declaratory order that these income-tax assessments were void as the Commissioner had acted ultra vires by issuing them in disregard of the mandatory provisions of s 20(1)(a) of the Income Tax Act 58 of 1962, requiring him to set off the assessed losses of a taxpayer against income derived by the taxpayer in subsequent years.In Medox's appeal the Supreme Court of Appeal did not reconsider the High Court's reason for its order, ie that it did not have the necessary jurisdiction to entertain the application. Instead, assuming (without deciding) that it did have such jurisdiction, the SCA —HeldThe appeal was without merit because the taxpayer had failed to show that it had an existing, future or contingent right to have the assessments for the 1998 and subsequent tax years declared null and void. Section 81(5) of theAct expressly provided that absent any objection to an assessment, such assessment would be final and conclusive. Medox not having objected to the assessments in question, it would fly in the face of this provision for it to assert a right to have the assessments set aside. In addition more than three years had elapsed from the date of each of these, with the result that by virtue of the provisions of s 81(2)(b) of the Act, the Commissioner was precluded from reopening the assessments.

SA CRIMINAL LAW REPORTS NOVEMBER 2015

S v SEROBA 2015 (2) SACR 429 (GJ)

General principles of liability — Criminal capacity — Temporary pathological incapacity — Proof of — Psychiatric evidence — Assessment of — Court to analyse logical reasoning — Conflict between evidence for state and evidence for accused — Court preferring evidence of state in circumstances where it had difficulty with defence psychiatrist's diagnosis that accused was probably psychotic when he committed crimes a number of years earlier.

The accused was standing trial in the High Court on inter alia two counts of murder. The defence raised by the accused was one of pathological incapacity and it was suggested that the court should proceed in terms of s 78(6) of the Criminal Procedure Act 51 of 1977 and find the accused not guilty and detain him in a psychiatric hospital pending the decision of a judge in chambers. The crimes were allegedly committed in 2007, and when the accused was arraigned he was sent for observation to a psychiatric hospital, where he was examined by three psychiatrists. The accused was granted leave to see a psychiatrist of his choice, who after an evaluation drew up a report. The matter was then set down for hearing in June 2010. The state then requested that the accused be sent to the psychiatric hospital for further evaluation and a further report was drawn up by three psychiatrists. Because the accused's psychiatrist had emigrated to Canada, he saw another psychiatrist of his choice, who evaluated him and drew up a report. After this another judge ordered that he be sent to a different psychiatric hospital for further report, which was compiled in 2015 by three other psychiatrists. It was the unanimous finding of all the psychiatrists at the psychiatric hospitals that the accused was fit to stand trial. At the trial the state led the evidence of a professor of psychiatry and the defence led the evidence of a psychiatrist. Both agreed that the accused was able to appreciate the wrongfulness of his actions. The professor was of the opinion that the accused was also able to act in accordance with such appreciation of the wrongfulness of his actions, whereas the psychiatrist for the accused stated that if the accused had on the day of the incident been suffering from a delusional disorder, he would not have been able to appreciate the wrongfulness of his actions.Held, that the court needed to assess whether the varying opinions advanced were founded on logical reasoning. If the expert opinion could not logically be supported, then it had to fail. Held, further, that there was a problem with the diagnosis in 2010, of the accused's psychiatrist that he was probably psychotic when he committed the offences. She had not consulted with the accused in 2010 and had based her finding on the report of two other doctors. The psychiatrist herself agreed that the accused may also not have been psychotic in 2007. Due to the fact that neither the professor nor the eight other psychiatrists who observed the accused at the two psychiatric hospitals in 2007, 2011 and 2015 detected any delusional disorder or paranoia, the court was inclined to follow the findings of the professor rather than the findings of the accused's psychiatrist. Held, further, that the accused was able to appreciate the wrongfulness of his actions and that he had acted wilfully and with the intention in the form of dolus directus to shoot the two deceased.

S v JEZILE 2015 (2) SACR 452 (WCC)

Rape — Defences — Customary practice of ukuthwala — Practices associated with aberrant form of ukuthwala that sanctions abduction and rape not protected under our law — Belief in such cannot justify rape.

General principles of liability — Defences — Justification — Customary practice — Ukuthwala — Practices associated with aberrant form of ukuthwala that sanctions abduction and rape not recognised or protected under our law.

The appellant was convicted in a regional magistrates' court on one count of human trafficking, three counts of rape, one count of assault with intent to cause grievous bodily harm, and one count of common assault. The offences were all committed against a 14-year-old schoolgirl. He was sentenced to 10 years' imprisonment on the human-trafficking count; 20 years' imprisonment on the three rape counts (taken together for purposes of sentence); 6 months' imprisonment on the count of assault with intent to cause grievous bodily harm; and 30 days' imprisonment on the count of common assault. Eight years of the sentence for human trafficking, as well as the sentences imposed for the two assaults, were ordered to run concurrently with the sentence imposed for the rapes. The appellant was 28 years old at the time of the offences and had departed from his residence in the Western Cape for his home village in the Eastern Cape with the specific intention of finding a girl or young woman there in order to conclude a marriage in accordance with his custom. His stated requirements were that the girl or young woman should be younger than 18 years old. He wanted a virgin. According to the appellant the ideal age for his chosen wife was 16 years old. He noticed the complainant and decided that she would make a suitable wife. He asked his family to start the traditional lobola negotiations with the complainant's family. Lobola of R8000 was paid by the appellant to the complainant's maternal grandmother, who subsequently gave it to the complainant's mother. She ran away from her new marital home a few days into the marriage. She was found and promptly returned. The appellant took the complainant to Cape Town by taxi and after their arrival resided with his brother and his wife in their shared home. Although the complainant testified about seven rapes, all of which occurred after her arrival in Cape Town, the appellant was only H charged with three rapes. Furthermore, on his own version, sexual intercourse occurred on two occasions. According to the appellant, sexual intercourse took place once before they left the Eastern Cape and once after their arrival in Cape Town. The magistrate, mindful of the cautionary rules pertaining to a single, youthful witness such as the complainant, found her testimony to be both honest and reliable. The trial court also found that the appellant's version of events leading up to the departure for Cape Town was not supported by the objective facts. The appellant raised as one of his defences and grounds of appeal that he was in a customary marriage with the complainant at the time of the incidents. The magistrate was, however, of the view that the matter was not about the practice of ukuthwala or forced arranged marriages and its place, if any, in our constitutional democracy, but was rather about whether the state proved that the accused J committed the offences he was charged with and, if so, whether he acted with the knowledge of wrongfulness and the required intent. On appeal the A appellant contended that the approach adopted by the magistrate to the relevance of customary law amounted to a misdirection and that this demonstrated a lack of understanding. Apart from that relating to the two assaults, his essential contention was that the trial court had misdirected itself in not proceeding from the premise that the merits should have been determined within the context of the practice of ukuthwala, or customary marriage. It was submitted that 'consent' within the practice of ukuthwala was a concept that had to be determined in accordance with the rightful place which customary law had in our constitutional dispensation, because it was an integral part of ukuthwala that the 'bride' may not only be coerced, but would invariably pretend to object (in various ways), since it was required, or at least expected, of her to do so.Held, that it was apparent from the expert evidence and the submissions of the amici that, because the trafficking and sexual assaults took place after the customary

'marriage', the offences for which the appellant was charged took place after a 'traditional' ukuthwala would have occurred. Therefore the appellant could not in any event have placed reliance on the practice of ukuthwala (in the traditional sense) as justification for his conduct. What he did, however, attempt to do was to rely on the aberrant form of ukuthwala as being the living form of customary law, to justify his conduct. Held, further, that the trial court had correctly found that the appellant had not asserted any customary law precept to have justified his conduct, or that he had acted in the belief that he had entered into a customary marriage that permitted sexual coercion. However, it could not be countenanced that the practices associated with the aberrant form of ukuthwala could secure protection under our law. The court could not therefore, even on the rather precarious ground of the assertion by the appellant of a belief in the aberrant form of ukuthwala as constituting the 'traditional' customs of his community, which led to a 'putative customary marriage,' find that he had neither trafficked the complainant for sexual purposes (as defined) nor committed the rapes without the necessary intention. The court could furthermore find no fault with the trial court's credibility findings, nor with its reasoning and conclusions in respect of the convictions on both the trafficking and rape counts. Insofar as the two convictions for assault were concerned, these amounted to a duplication of convictions. To this extent only was the appeal successful.

S v ZW 2015 (2) SACR 483 (ECG)

Indictment and charge — Charge — Putting of charge to accused — Provisions of Criminal Procedure Act peremptory — Prosecutor must put charge to accused, not his legal representative — Criminal Procedure Act 51 of 1977, s 105.

Indictment and charge — Defective charge — Amendment of — Resort to be had to provisions of Criminal Procedure Act as soon as it becomes clear charge defective — Complainant raped repeatedly over period of six years but appellant only charged with two counts of rape — But for irregularities in charge-sheet, accused could have been sentenced to life imprisonment — Prosecutor should have realised at outset charge-sheet defective — Criminal Procedure Act 51 of 1977, s 86. 

The appellant was charged in a regional magistrates' court on two counts of the rape of his daughter who was between the ages of 12 and 16 at the time. The two counts were separated by a period of two years. He was convicted on both counts and was sentenced to life imprisonment. He appealed against the convictions and the sentence imposed. During the course of the trial it became apparent that it was not only on the two occasions that the appellant had raped his daughter but that he had done so repeatedly over a period of six years, continually and practically on a daily basis. It appeared furthermore that the charge had not been put to the accused by the prosecutor, and the magistrate elected to leave the putting of the charges to the appellant's legal representative. 

Held, as regards the putting of the charge to the appellant, that s 105 of the Criminal Procedure Act 51 of 1977 was peremptory not only in respect of the stating of the charges in open court, but also particularly with respect to the party who had the duty to do so, namely the prosecutor who was the official representative of the state,

being the accused's accuser. The magistrate's failure to intervene to ensure that the charge was properly put to the accused amounted to a misdirection.

Held, further, that resort ought to have been had to the provisions of s 86 of the Criminal Procedure Act as soon as it became clear that the acts of sexual intercourse had been ongoing and frequent for a period of at least six years. Indeed, it ought to have been resorted to at the commencement of the trial, when the charges were being put to the appellant, which was the time that any prudent prosecutor ought to have realised that the charge-sheet was defective in at least three respects: it referred to portions of the minimum sentence legislation which had long since been repealed; it described a scenario which was not consistent with the facts; and it referred to minimum sentence provisions which did not apply to the offences in respect of which the appellant had been charged nor the offences borne out by the evidence.

Held, further, that, but for the problems, irregularities and misdirections, a sentence of life imprisonment would, in the light of the applicable minimum sentence provisions, have been an appropriate sentence. The interests of justice, however, dictated that the sentence imposed could not be permitted to stand in the circumstances. No case had been made out for the existence of substantial or compelling circumstances to dictate why a minimum sentence of 10 years' imprisonment on each of the rape counts should not be imposed. The sentences were altered accordingly.

S v LR 2015 (2) SACR 497 (GP)

Juvenile offenders — Sentence — Diversion — Requirements of s 52(1)(e) of Child Justice Act 75 of 2008 — Court's acceptance of child's acknowledgement of guilt, without taking into account that prosecutor had not agreed to diversion, vitiating order of diversion.

Juvenile offenders — Diversion of — From criminal justice system — Requirementsof — Preliminary enquiry to consider diversion: (1) child acknowledging responsibility; and (2) prosecutor indicating matter may be diverted in terms of Child Justice Act 75 of 2008 — Magistrate erred and acted irregularly — Provisions of s 52(1) of Act were not complied with — Reviewed and set aside. 

The accused was a 16-year-old boy who was charged with culpable homicide. The offence arose out of his driving of a motor vehicle without a licence, overtaking two vehicles while it was unsafe to do so, and colliding head-on with a third vehicle, killing one of its occupants. His legal representative brought an application for the diversion of the matter in terms of s 69(1) of the Child Justice Act 75 of 2008. The application was opposed by the prosecutor, but the magistrate, after considering the defence's submissions and the probation officer's recommendation, ordered diversion of the matter for the accused to attend a life-skills programme.

Held, on review, that the presiding officer had misdirected himself by accepting the child's acknowledgement of responsibility for the offence without considering the provisions of s 52(1)(e) of the Act, in that the prosecutor had not given his assent to

the diversion. In the circumstances the order had to be set aside and the matter referred to the child justice court for trial. 

S v GCAM-GCAM 2015 (2) SACR 501 (SCA)

Evidence — Confession — Admissibility of — Approach of court to assessmentof confessions made by suspects in police custody — Courts need to be especially vigilant — In addition courts need to be sceptical when suspect repudiates confession at first opportunity.

General principles of liability — Common purpose — Common purpose arising from agreement — Requirements — Explicitly abandoned plan to rob first paypoint — Appellant not aware of and played no role in decision to rob second paypoint — Could not have foreseen robbery of second paypoint and loss of lives during course of robbery.

The appellant appealed against his conviction in the High Court on a charge of conspiracy to commit robbery in contravention of s 29 of the Transkei Penal Code Act 9 of 1983; robbery; five counts of murder; and the unlawful possession of automatic firearms, other firearms and ammunition. He was one of four accused at the trial, all of whom were convicted on all counts. He was, however, the only appellant. The convictions arose from the robbery at a paypoint for social grants and pensions, and the deaths of four fellow conspirators and a police official in a subsequent shoot-out in a forest. The evidence against the appellant was that of a co-conspirator who became a state witness, and a confession made by the appellant. The admissibility of this confession was challenged in a trial-within-a-trial, but the presiding judge admitted the confession. From the evidence of the co-conspirator it appeared that the 10 conspirators (allegedly including the appellant) met on the evening before the robbery and put the finishing touches to the plan to rob the pension paypoint after two of the conspirators had reconnoitred it. The next morning the conspirators travelled to the selected paypoint in two vehicles. When they arrived at the scene, those in the leading vehicle became alarmed by the presence of police at the paypoint and abandoned the plans to commit the robbery. They then decided to return home, but fortuitously came across another paypoint, which they robbed. They fled from the scene and drove to a forest, where they split up into two groups of four each. The appellant was allegedly in the other vehicle and had no role in this robbery. The police pursued the conspirators into the forest and fired on them, killing four robbers who were in one group. One police official was shot and killed in the shoot-out. The other group emerged from the forest later that evening and called the appellant to fetch them, which he did. The state argued that, even though the first paypoint was the agreed target of the robbery, the second paypoint was located in the same area and was robbed at about the same time. In the circumstances it was submitted that the second robbery fell within the ambit of the original common purpose to rob. The court also requested the parties on appeal to make written representations on whether the appellant should nevertheless have been convicted as an accessory after the fact, either on the robbery count or the five counts of murder, on the ground that he may unlawfully and intentionally, after the completion of the crimes, have associated himself with the commission of the crimes by helping the perpetrators to evade justice.

Held, as to the convictions on the robbery and murder counts, that the submission of the state in regard to the common purpose was devoid of merit, as the state had not established that the second paypoint was anywhere near the first one. Furthermore, even if they were in the same vicinity, the group's mandate was to rob the first paypoint and not any other one: that group explicitly abandoned the plan to rob the first one and the appellant was not aware of and played no role in the decision to rob the second paypoint, or in any way actively associated with the group in carrying out the robbery, much less the events later in the forest when the police officer and the four robbery suspects lost their lives. The convictions on the robbery and murder counts therefore could not stand. Held, further, as to the possession of the ammunition, that it was not alleged in the indictment that the group had a common purpose to possess the arms and ammunition, and the common purpose or conspiracy pertained to the robbery. The fact that parties planning a robbery shared a common state of mind that some of them would carry or use arms to achieve their objective, was not sufficient to make them joint possessors under the Firearms Control Act 60 of 2000. This could only be established by inference, and it had to be the only reasonable inference. This had not been established in the present case. Held, further, that the judge a quo misdirected himself by approaching the evidence of the appellant, as regards the admissibility of the confession, on the basis that he needed 'to put up credible versions' to refute the 'overwhelmingly strong and convincing evidence' of the police. All that was required of the appellant was to present a version that was reasonably possibly true, even if it contained demonstrable falsehoods. Held, further, that, when confronted with confessions made by suspects to police officers while in custody — even when those officers were said to be performing their duties independently of the investigating team — courts had to be especially vigilant. This was because such persons were subject to the authority of the police, vulnerable to the abuse of such authority, and often not able to exercise their constitutional rights before implicating themselves in crimes.The experience of courts with police investigations of serious crimes had shown that police officers were sometimes known to succumb to the temptation to extract confessions from suspects through physical violence or threats of violence rather than engage in the painstaking task of thoroughly investigating the case. This was why there were safeguards against compelling an accused to make admissions and confessions that could be used against him in a trial. In addition courts had to be sceptical when the state sought to use a confession against an accused where he repudiated it at the first opportunity he was given. This was because ordinary human experience showed that it was counter-intuitive for a person facing serious charges to voluntarily be conscripted against himself. Often it was said that the accused confessed because he was overcome with remorse and penitence, 'a desire which vanishes as soon as he appears in a court of justice'. That was sometimes true, but was usually not. Held, further, that the appellant had raised a concrete verifiable alibi, the details of which he disclosed during the state case. The prosecution failed to adduce any evidence to disprove the alibi and it could and should have applied for an adjournment to investigate it and, if necessary, it could have applied to reopen the state case once the appellant had furnished more detail of the alibi during his cross-examination. Its failure to do so meant that the appellant's alibi could not have been

summarily rejected and the court erred in doing so. The conspiracy conviction therefore also fell to be set aside.

S v MGCWABE 2015 (2) SACR 517 (ECG)

Evidence — Witnesses — Competence and compellability of — Of spouse or former spouse of accused — Accused's wife testifying that she had not been told that she could elect not to testify and had agreed to testify because she was already at court — Witness should be informed of rights before testifying and this should be placed on record — Fact that relationship between spouses 'severely damaged' not a ground justifying wife being called as prosecution witness without being informed of rights — Conviction set aside.

The appellant was a court clerk employed at a magistrates' court, who was convicted in that court of the theft of a police docket and the attempt to obstruct the course of justice by stealing the docket. He was sentenced to four years' imprisonment on each count, the sentences to be served concurrently. The third state witness at the trial was the appellant's estranged wife, who was not living with him at the time. She testified that she had been away for the weekend and was not aware that the appellant had slept at her home. On that Monday the appellant went to his wife and asked her for his bag, which was inside her house. He made repeated attempts to get the bag from her but she was unwilling to hand it over. The appellant even resorted to calling the police to accompany him in his quest to get the bag. After the appellant eventually left without having succeeded in his quest, his wife then called the police and handed over the bag to them. It contained the police docket. After testifying in chief, she stated undercross-examination that she was still married to the appellant and that it had not been explained to her that she did not have to come to court, but that she had decided that since she was already there, she might just as well testify. On appeal it was argued that the magistrate had committed a serious misdirection in failing to properly investigate the circumstances under which the appellant's wife testified and, at the very least, by permitting her to continue giving evidence after she had already indicated that she would not have testified, had she been aware that she was not obliged to do so.Held, that the apparent view of the magistrate that because the marriage relationship between the appellant and his wife was 'severely damaged', she could be called to testify without being informed of her right to refuse to give evidence, was clearly incorrect. Section 195(1) of the CPA did not provide that a spouse would not be compellable to give evidence only if this H were necessary to preserve the marriage relationship, but it afforded that spouse an absolute right to make an election not to testify. Held, further, that it did not assist the state that the appellant's wife elected to continue with her evidence after she had been made aware of the provisions of s 195(1). The decision to do so was taken because she was already in court and was not a decision taken after a proper consideration, before she was called as a witness. Where a witness was competent but not compellable, such witness should be informed by the prosecutor of his or her rights prior to them being called and this should also be placed on record at the outset of the proceedings. In any event the presiding judicial officer should ascertain whether or not that witness was aware of the provisions of s 195(1) and if this were only brought to the attention of the witness

for the first time at that stage, the judicial officer should afford the witness an opportunity to come to a decision after proper consideration. Held, further, that, as the magistrate had relied on the appellant's wife's evidence and the appellant had been cross-examined on his wife's evidence, in all the circumstances the convictions of the appellant could not be allowed to stand and had to be set aside. 

S v JWARA AND OTHERS 2015 (2) SACR 525 (SCA)

Evidence — Admissibility — Evidence of cellphone communications monitored and intercepted in terms of Interception and Monitoring Prohibition Act 127 of 1992, s 2(2) — Whether fact that Act predating and therefore not referring to cellphone communications meaning that judge's direction authorising interception and monitoring of cellphone communications invalid for being ultra vires Act.

Evidence — Admissibility — Evidence of cellphone communications monitored and intercepted in terms of Interception and Monitoring Prohibition Act 127 of 1992, s 2(2) — Circumstances in which evidence still admissible, even though application for direction did not strictly comply with formalities — Procedure followed as closely as possible and evidence could not be obtained in any other manner as accused were police officials and endemic corruption therein — Evidence admissible.

Whilst carrying out investigations into the activities of a suspected illegal drugs E manufacturer, the investigating officer came upon references to what appeared to be corrupt behaviour on the part of the first appellant, a superintendent in the South African Police Service (SAPS) who was the head of the West Rand Organised Crime Unit. Because of the sensitivity of the situation and the difficulty of obtaining further evidence, the investigating officer obtained a direction under the Interception and Monitoring Prohibition Act 127 of 1992 (the Interception Act) to monitor cellphone calls made to and from the first appellant's phone. As a result of the information obtained by this monitoring, an extension of the direction was obtained in respect of the cellphones of the second and third appellants. The three appellants were subsequently tried in the High Court on inter alia numerous charges under the Prevention of Organised Crime Act (POCA), and with fraud and dealing in drugs. They were convicted on some of the counts and the first appellant was sentenced to an effective 25 years' imprisonment, the second appellant to an effective 22 years' imprisonment and the third appellant to an effective 20 years' imprisonment. On appeal against their convictions they attacked the admissibility of the evidence obtained under the Interception Act and contended inter alia that the Act did not provide for the interception of cellphone communications, as cellphones were not operative in South Africa when the Act was promulgated. The appellants also contended that the court a quo had erred in finding that, even if the application for the monitoring direction did not strictly comply with the provisions of the Interception Act, the evidence obtained as a result of the direction was nevertheless admissible. They contended that the failure to obtain evidence within the strict confines of the Interception Act meant that the evidence fell outside the protective umbrella provided by the Act and resulted in a violation of the right to privacy under s 35(5) of the Constitution.Held, as regards the applicability of the Interception Act to cellphone communications, that the appellants' submissions in this regard had been dealt 

with in the matter of S v Cwele 2011 (1) SACR 409 (KZP) and the court did not disagree with the finding in that matter that this form of communication was included in the Interception Act. Held, further, that, in the circumstances where the procedure in the Interception Act had been followed as closely as possible and the monitoring of the conversations was the only means to investigate the crime, as the suspects were all members of the SAPS, and because of the endemic corruption therein no other investigative tools could be used without jeopardising the investigation, the exercise of the discretion by the judge was not only a proper one, but to have excluded that evidence would also have led to a failure of justice. The provisions of s 35(5) of the Constitution therefore did not serve as a basis to exclude the evidence obtained pursuant to the directions, and the admission of the evidence by the court a quo could not be impugned. 

ALL SA LAW REPORTS NOVEMBER 2015

PART ONE

MEC: Department of Police, Roads and Transport, Free State Provincial Government v Terra Graphics (Pty) Ltd t/a Terra Works and another[2015] 4 All SA 255 (SCA)

Contract – Claim by sub-contractor for payment by provincial government that benefited from sub-contractor’s services – Work done and services rendered both by principal contractor and by subcontractor – Defence of lack of contractual privity – Where sub-contractor performed work for the benefit of province, and the province approved appointment of such sub-contractor, defence relating to privity of contract rejected.

Pursuant to the award of a tender by the Free State provincial government (“the Province”), represented in this matter by the appellant, a written agreement was concluded with the second respondent for the supply by it of engineering services. The province also sanctioned the appointment of the first respondent as sub-contractor to provide environmental protection services. However, after the respondents had completed the work, and received some payment, the Province refused to pay the balance due. It maintained that the work had not been budgeted for and that the failure to budget for the project amounted to contraventions of applicable regulatory statutory provisions, entitling the Province to refuse to be held to its obligations in terms of the agreements. It thus relied on the principle of legality to avoid honouring agreements that it had authorised.

The second respondent instituted action in the High Court – an action that was still pending at the time of the present litigation. The Province’s failure to pay the second respondent meant that the latter could not pay the first respondent the balance due to the latter in terms of the sub-consultancy agreement. The first respondent therefore applied to the High Court for an order requiring the appellant to pay the amount owing to it.

In defending the claim, the appellant argued that the first respondent’s claim lay against the second respondent and not against the Province as there was no contractual privity between the Province and the first respondent. The second ground of resistance was that the Province had made no budgetary allocation for the works, and it was unable to withdraw the requisite funds from the Provincial Treasury to meet the financial obligations it had undertaken in terms of the agreement with the second respondent.

The High Court’s upholding of the claim was appealed against.Held – The evidence established that the agreements at the centre of the litigation were approved by the Department. The Court held that the explanation by the Province that the work had not been budgeted for was highly improbable and clearly contrived. Even if the amount budgeted for the works was insufficient to cover the Province’s payment obligations that did not mean that it would be free to simply avoid its contractual obligations. It is important that governmental institutions respect the rights of those with whom it transacts.

Regarding the appellant’s averment of lack of contractual privity between the first respondent and the Province, the Court held such defence to be diversionary and unhelpful. The first respondent performed work for the benefit of the Department, for which it invoiced the second respondent, which, in turn invoiced the Department in respect of the same work. The Province knew that environmental services could only be provided by a sub-consultant, and approved the appointment of that particular sub-consultant. The appellant had failed to raise any justification for its failure to pay the first respondent through the conduit of the second respondent.

The appeal was dismissed with costs.NDV v S [2015] 4 All SA 268 (SCA)

Criminal law – Sentence – Fraud on employer when in position of trust – Principles to be applied where a person convicted of an offence is the primary caregiver of children – Failure to consider the best interests of an offender’s young children, when imposing a sentence, constitutes a grave misdirection – Court held that a custodial sentence is appropriate even though appellant was primary caregiver because of the seriousness of the crime.The appellant was convicted on 31 counts of fraud and one count of contravening section 4(b)(i) of the Prevention of Organised Crime Act 121 of 1998. She was sentenced to eight years’ imprisonment, three years of which were suspended on the usual conditions. She had, before being sentenced, repaid the full amount which she had personally taken from her former employer’s trust account and various assets that she had acquired were forfeited to the State under the Prevention of Organised Crime Act.

On appeal, the issue before the court was the weight to be attached to the fact that the appellant was the primary caregiver of her two children.

Held – The sentencing court failed to have regard to any of the psychological and medical evidence before it, and did not, as it should have done, consider the interests of the children. That was a grave misdirection. Further misdirections were that the presiding officer did not read the report of the probation officer fully and none of the reports before him were examined for accuracy. The State conceded that the trial court and the Full Bench were guilty of grave misdirections, and that the sentence of eight years’ imprisonment, only three of which were suspended, was unjustified in all the circumstances.

In considering an appropriate sentence, the present Court considered the principles to be applied where a person convicted of an offence is the primary caregiver of children. The rights of children as set out in section 28 of the Constitution is central to such an enquiry. Having regard to case law, the Court noted the question which had been raised, as to whether, in sentencing a primary caregiver, a child’s interests should be one of the factors considered with the established triad of the crime, the offender and the interests of society.

When determining whether a sentence involving imprisonment is required in the circumstances, while sentences imposed in similar cases is always useful, each person to be sentenced must be considered against her own background and in her own circumstances.

Weighing up all the factors in this case, the Court decided that the fraud committed by the appellant warranted a custodial sentence. At the same time, taking into account the best interests of the very young children, the period of imprisonment should not be lengthy and should take into account the period for which she was incarcerated after her appeal to the Full Bench failed and before she was again released on bail. It was also deemed fair that the appellant be given an opportunity to make arrangements for the children’s care and support before she was incarcerated.

Upholding the appeal, the Court sentenced the appellant to three years’ imprisonment from which she might be placed under correctional supervision.BR and another v TM; In re: LR [2015] 4 All SA 280 (GJ)

Civil procedure – Divorce action – Paternity dispute – Motion proceedings – Motion proceedings are not permissible in matrimonial causes since it is undesirable for a court to grant a divorce without hearing oral evidence of the parties, first because not only is the status of the parties themselves involved, but also those of children, and second because of the interests of the State in the preservation of the binding nature of marriage – Question of paternity of the child in casu, and the rights and responsibilities of the parties were raised in the divorce action and were as such integral to the matrimonial cause between the second applicant and the respondent.The applicants sought an order declaring that the first applicant was the biological father of the minor child.

The respondent and the second applicant married each other in terms of customary law, as envisaged by the Recognition of Customary Marriages Act 120 of 1998 in March 2004. The child in question was born of that marriage. In September 2013, an order was obtained by the respondent in terms of which he was awarded interim contact in respect of the child on certain specified terms and the second applicant was granted interim maintenance for the child. The respondent brought a rule 43 application on the basis that the parties were married; that he was the biological father of the child and had full parental responsibilities and rights in respect of the child. That was not disputed by the second applicant and the court awarded care and guardianship jointly to the respondent and the second applicant.

The applicants contended that despite the above, the respondent failed to maintain and have contact with the child, and that since 2008, the first applicant had been supporting her. The applicants also alleged that it had belatedly emerged, that the biological father of the child was in fact the first applicant and not the respondent.

Held – Motion proceedings are not permissible in matrimonial causes since it is undesirable for a court to grant a divorce without hearing oral evidence of the parties, first because not only is the status of the parties themselves involved, but also those of children, and second because of the interests of the State in the preservation of the binding nature of marriage. The question of paternity of the child in this case, and the rights and responsibilities of the parties were raised in the divorce action and were as such integral to the matrimonial cause between the second applicant and the respondent. A court rarely grants a divorce without having had the opportunity to hear the evidence of at least one of the parties in a divorce action, particularly if there are minor or dependent children involved. Thus, where, as in the current case, the issue of the respondent’s paternity and parental rights and responsibilities in

respect of the minor child were placed in issue in the divorce action, it would be inappropriate for the parties to then seek to resolve these issues in application proceedings that fell outside those applications which might permissibly be launched pending finalisation of a divorce action.

The issues in the application were referred for determination to the divorce court in the pending divorce action.Business Partners Limited v World Focus 754 CC [2015] 4 All SA 294 (KZD)

Civil procedure – Application – Pleadings – Founding and replying affidavit – New facts impermissible – General rule is that the court will not permit an applicant to assert new facts in his replying affidavit which should have been set out in his founding affidavit – Court’s discretion to allow new matter to remain in a replying affidavit – Court held that no prejudice had been shown to have been suffered by the applicant in consequence of the respondent’s subsequent reliance on section 347(1A) of the Companies Act 61 of 1973 as the statutory basis for the relief that it sought.In May 2010, the respondent was placed under a provisional winding-up order pursuant to an application brought by the applicant. The winding-up proceedings were initiated on the ground that the respondent was unable to pay its debts as envisaged by section 68(c) of the Close Corporations Act 69 of 1984. The provisional order was subsequently made final.

The respondent’s appeal was upheld. It then approached the court, contending that in consequence of the provisional and final winding-up orders being set aside the liquidator was obliged to restore the property of the respondent to it but that the liquidator was no longer in a position to do so as the property had already been sold and transferred to a third party. The respondent contended that it had suffered damages being the difference in the market value of the property as at the date when the property should have been restored to it by the liquidator less the amount owing to the applicant in respect of the respondent’s indebtedness, if any, plus loss of rentals and other expenditure.

The applicant drew to the attention of the court and the respondent the applicability of section 347(1A) of the Companies Act 61 of 1973 as thecausa for the respondent’s claim. The respondent filed a supplementary affidavit in which it conceded that section 347(1A) was applicable to its claim and acknowledged that it ought to have brought its claim under that section. In the supplementary affidavit, the respondent indicated that it was thenceforth relying on section 347(1A) as the statutory basis for the relief that it sought. The applicant raised a preliminary point to the effect that as the respondent’s cause of action was founded on section 15 of the Insolvency Act 24 of 1936, its founding affidavit did not make out a cause of action, and the application was therefore, fatally defective.

Held – In application proceedings, the affidavits constitute not only the pleadings but also the evidence. An applicant must make out his case in his founding affidavit and that he must stand or fall by the allegations contained therein. The applicant must set out sufficient facts in his founding affidavit which will entitle him to the relief sought. The general rule is that the court will not permit an applicant to assert new facts in his replying affidavit which should have been set out in his founding affidavit.

However, there are exceptions to the rule, and the court has a discretion to allow new matter to remain in a replying affidavit.

In this case, no prejudice had been shown to have been suffered by the applicant in consequence of the respondent’s subsequent reliance on section 347(1A) as the statutory basis for the relief that it sought.

The Court referred respondent’s claim for damages to trial.

Treatment Action Campaign NPC and others as amici curiae) [2015] 4 All SA 302 (WCC)

Civil procedure – Leave to intervene – Standing – Right of access to courts – Section 34 of the Constitution of the Republic of South Africa, 1996 – Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum – Court held that it would not be rational or equitable to limit the right of access to the courts in a case of competing litigants to the party who is the first to institute the proceedings in question.The applicant (“Genesis”) was a medical scheme seeking, in the main application, the review and setting aside of regulation 8 of the regulations made in terms of the Medical Schemes Act 131 of 1998. A number of parties applied for leave to intervene in the main application in order to oppose it. The present judgment dealt with those applications.

Held – The applications of the third and fourth applicants to intervene and the applications of the amici curiae were unopposed. The Court was satisfied that each of those parties had made out a proper case to intervene or be admitted as an amicus curiae.

The opposed applications were then addressed. Genesis’ opposition appeared to rest on two legs. The first was that a mere financial interest or another form of an indirect or derivative interest is not sufficient to confer locus standi on a proposed respondent. The second was that a person only has a legal right to intervene as a respondent if it is required as a matter of law that it be joined. Genesis argued that the applicants to intervene did not satisfy either of the requirements. However, the Court disagreed. In terms of section 34 of the Constitution everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. Genesis’ contentions would result in a situation which is in conflict with section 34. It would not be rational or equitable to limit the right of access to the courts in a case of competing litigants to the party who is the first to institute the proceedings in question.

The Court set out the numerous material considerations which supported the applicants’ right to intervene as respondents. It held that it would be in the interests of justice to grant leave to all the applicants to intervene in the main application.

Great Force Investments 124 (Pty) Ltd v Surveyor-General, Cape Town and others [2015] 4 All SA 322 (WCC)

Administrative law – Property title deed – Incorrect recording of servitude – Review – Owner of small holding’s knowledge was that the use of the servitude was infrequent

and not particularly onerous on the dominant tenement – Recordal of servitude was clearly incorrect – In casu, Court held that remittal was the prudent relief.The second respondent owed a farm which abutted a small-holding owned by the applicant. The latter’s property was utilised for lifestyle and recreational purposes while the second respondent’s farm was largely uninhabited and undeveloped farm land. For some 70 years, access to the farm was obtained through a right of way over surrounding properties. The owner of the applicant, a medical doctor, was vaguely aware of that fact when he bought his small-holding. In 2011, the doctor was informed of the second respondent’s intention to produce charcoal on a commercial basis from the abundance of trees on the property. It intended to exercise the right of way purportedly granted in favour of the farm over the applicant’s property for purposes of removing such charcoal from the farm in large trucks.

On the basis that the recordal by the first respondent (“the SG”) initially in 1999 and finally in 2000, on the relevant diagram of the location of the servitude in favour of the second respondent’s farm was without a proper factual or legal basis, the applicant brought the present review application.

Held – The doctor’s knowledge after taking occupation of his property seemed to have been that the use of the servitude was infrequent and not particularly onerous on the dominant tenement. He therefore did not scrutinise the title deed. Had he done so, he would have discovered nothing in the title deed itself. The first respondent’s recordal of the servitude was clearly incorrect. The Court held that remittal was the prudent relief to grant in this case.

The application for review succeeded with costs – other than costs for an application for condonation of the late filing of the replying affidavit.

Law Society of the Northern Provinces and others v Ronald Bobroff & Partners Inc and others [2015] 4 All SA 347 (GP)

Civil procedure – Counter-application – Applicants requesting necessary and ancillary relief aimed at giving proper effect to order already granted – Court found no bar to the remedies sought by the applicants – Relief was permissible in terms of rule 6(7) of the Uniform Rules of Court which imposed no limitation on a litigant, preventing him from seeking more extensive relief than that sought in the main application.In the main application before the court, the applicants were a couple who had instructed the second respondent law firm to lodge a claim with the Road Accident Fund after the second applicant was injured in a car accident. The third and fourth respondents were directors in the firm, and the first respondent was the relevant law society. The second to fourth respondents were referred to in the judgment as “the respondents”. The applicants’ claim against the fund was settled in the amount of R1 979 952. The respondents deducted R858 689 in respect of their fees, and paid the applicants R1 187 971. After filing a complaint of over-reaching with the law society, the applicants brought the main application seeking relief against the respondents. The order issued in that application, inter alia, required the law society to investigate the matter. It proceeded to take steps towards that end, but had to resort to filing an application for the extension of the time limits set out in the order and for clarification and extension of the scope of the order.

Not satisfied with the steps being taken by the law society in that regard, the applicants brought a counter-application to give better effect to the original order by seeking urgent and more extensive relief than that sought by the law society.

In the present proceedings, the respondents sought to have the applicants’ counter-application set aside as an irregular step in terms of rule 30.Held – The respondents’ objections to the counter-application were without merit. The court found no bar to the remedies sought by the applicants. The relief was permissible in terms of rule 6(7) or (11) of the Uniform Rules of Court. Rule 6(7) imposed no limitation on a litigant, preventing him from seeking more extensive relief than that sought in the main application. The applicants were requesting necessary and ancillary relief aimed at giving proper effect to the order already granted.

Believing the respondents to be acting tactically to frustrate scrutiny of their practice, the court saddled them with a punitive costs order.

Mbena and another v Minister of Justice and Correctional Services [2015] 4 All SA 361 (ECP)

Delict – Claim for damages – Alleged assault on prison inmates – Onus of proof – Matter to be determined on facts presented – Issue whether a party has discharged the onus is invariably dependent upon whether such party’s version is more probable than the other’s – Question of whether the plaintiffs had discharged the onus resting upon them on a balance of probabilities, was, ultimately, dependent on whether their testimony was truthful and reliable.

In July 2005, a correctional officer at a correctional services centre was stabbed to death whilst on duty. His murderer was an inmate. The murder precipitated a lock down of the centre the next day and the introduction therein of the correctional services department’s emergency support team (the “EST”), for several days. Its deployment, and in particular the conduct of its personnel, founded delictual actions for damages by two hundred and thirty-one inmates (the “plaintiffs”) against the defendant.

The plaintiffs alleged that they were victims of a mass assault perpetrated upon them by members of the EST.Held – In determining the question upon whom the overall onus of proof rests, the pleadings generally provide the answer. The form of the pleadings in this case saddled the plaintiffs with the onus. The question whether a party has discharged the onus is invariably dependent upon whether such party’s version is more probable than the other’s. The question of whether the plaintiffs had discharged the onus resting upon them on a balance of probabilities was, ultimately, dependent on whether their testimony was truthful and reliable.

Examining the evidence adduced, the Court found the versions of the plaintiffs to be riddled with inconsistencies, improbabilities and fabrications. Their claims were dismissed.

Patel v S [2015] 4 All SA 382 (GJ)

Criminal law – Extradition – Appeal against extradition order – Extradition Act 67 of 1962 – Whether the offences in respect of which the appellant was sought were “extraditable offences” – Whether the certificate furnished by the Prosecuting

Authority of USA in support of the appellant’s extradition complied with section 10(2) of the Extradition Act – Court confirmed that even though the offences for which extradition was sought were not offences in South Africa, because of the date on which the relevant provisions of the relevant statutory regime came into operation, at the time of their commission in the USA, they were extraditable because they were offences in South Africa at the time of the request for extradition.The United States of America (“the USA”) requested the extradition of the appellant, an American citizen currently in South Africa, with the intent to prosecute him for offences he was alleged to have committed in the USA. Pursuant to the extradition request, the appellant was arrested and he appeared in the magistrate’s court in terms of the provisions of the Extradition Act 67 of 1962. A committal order in terms of section 10(1)was issued.

The present appeal was against the committal order.

Held – There were two core issues for resolution. They were whether the offences in respect of which the appellant was sought were “extraditable offences”; and whether the certificate furnished by the Prosecuting Authority of USA in support of the appellant’s extradition, which stated that his prosecution was justified on the basis of evidence contained in the extradition documents and under the laws of the Requesting State, complied with the requirements of the Act, in particular, those in section 10(2). The Court confirmed that the magistrate was correct in finding that even though the offences for which extradition was sought were not offences in South Africa, because of the date on which the relevant provisions of the relevant statutory regime came into operation, at the time of their commission in the USA, they were, nevertheless, extraditable because they were offences in South Africa at least at the time of the request for extradition.

On the second issue, the Court found no merit in the appellant’s argument that the offences had not been described sufficiently in the certificate and that that did not meet the requirements of the Act.

The appeal was dismissed.

ALL SA LAW REPORTS NOVEMBER 2015 PART 2

Chetty t/a Nationwide Electrical v Hart NO and another [2015] 4 All SA 401 (SCA)

Business rescue proceedings – Proceedings instituted or continued without business practitioner’s consent are a nullity, but the provisions in that regard are for the exclusive benefit of the company in business rescue and not a creditor.

Business rescue proceedings – Whether arbitration proceedings fall within the general moratorium on legal proceedings against a company under business rescue in section 133(1) of the Companies Act 71 of 2008 – Court held that it would be incongruous not to construe proceedings in which legal disputes are resolved privately through arbitration as legal proceedings simply because they take place outside of the formalities of the court system.

Words and phrases – “legal proceeding” – Dictionary meaning – Any proceeding authorised by law and instituted in a court or tribunal to acquire a right or to enforce a remedy.

A dispute between the appellant and a company (“TBP”) was referred to arbitration. The arbitrator made an award substantially upholding the appellant’s claims against TBP and also TBP’s counterclaims against her. The upshot of that was that while TBP was liable to the appellant, that was exceeded by the latter’s liability to TBP. As a result, the appellant approached the High Court for the review and setting aside of the arbitration award.

The award was made while TBP was under business rescue. When the litigation commenced, TBP was no longer under business rescue, but in liquidation. The first respondent was the liquidator.

The High Court was required to decide separately, the following point of law: whether the arbitration award made while TBP was under business rescue was precluded by the general moratorium on legal proceedings against companies under business rescue under section 133(1) of the Companies Act 71 of 2008.

Section 133(1)(a), which lay at the heart of this dispute, provides for a moratorium on any “legal proceedings” against a company during business rescue proceedings except with the written consent of a business rescue practitioner appointed to oversee the affairs of a financially distressed company. The arbitration award was made in circumstances where the appellant, as a creditor of TBP, was not aware of the business rescue proceedings and therefore did not seek the practitioner’s consent to pursue the suit against TBP.

The appellant contended in the court a quo that the arbitration was a “legal proceeding” as envisaged in the section and that the moratorium therefore applied to her claim. She contended that her failure to apply for consent – through no fault of her own – thus nullified both that part of the award in her favour as well as the other part arising from the counterclaim in favour of TBP.

The rejection by the High Court of the appellant’s submission led to the present appeal.Held – The first issue on appeal concerned the interpretation of the phrase “legal proceeding” as it is used in section 133 of the Act. The method of attributing meaning to the words used in legislation involves, as a point of departure, examining the language of the provision at issue, the language and design of the statute as a whole and its statutory purpose.

Arbitration involves a practice whereby parties voluntarily resolve disputes over their rights privately, outside of the public process of the courts. Although there is a distinction between the nature of proceedings to resolve disputes over rights in the courts and those through arbitration, the courts nevertheless exercise a supervisory function over arbitration. While the term “legal proceeding” was not defined in the Act, its dictionary meaning refers to “any proceeding authorised by law and instituted in a court or tribunal to acquire a right or to enforce a remedy”. The Court held that it would be incongruous not to construe proceedings in which legal disputes are resolved privately through arbitration as legal proceedings simply because they take place outside of the formalities of the court system.

Section 128(1)(b) of the Act defines “business rescue” to mean proceedings that facilitate the rehabilitation of a financially distressed company by providing, amongst

other things, for the temporary supervision and moratorium on the rights of claimants, and the development and implementation of a plan to rescue the company. The obvious purpose of placing a company under business rescue is to give it breathing space so that its affairs may be assessed and restructured in a manner that allows its return to financial viability. The requirement for the practitioner’s consent to be obtained is to give him the opportunity, after his appointment, to consider the nature and validity of any existing or pending claim and how it is to be dealt with. A general moratorium on the rights of creditors enforcing their rights against the company is therefore crucial to achieving this objective. As arbitrations are commonly resorted to in order to resolve commercial disputes, an interpretation of section 133(1) that excludes them from the moratorium on legal proceedings against financially distressed companies would significantly hinder its attainment.

The next question was whether the failure by the appellant to seek and obtain the practitioner’s consent before continuing with the arbitration was fatal to its outcome and should for that reason be invalidated. It was held that section 133(1)(a) was enacted exclusively for the benefit of the company in business rescue (and not a creditor or other third party instituting action against the company under business rescue). The appellant was thus not entitled to invoke the protection sought in this regard. The appeal could therefore not succeed.

Novartis South Africa (Pty) Ltd v Maphil Trading (Pty) Ltd [2015] 4 All SA 417 (SCA)

Contract – Existence of agreement – Effect of written agreement being followed and supplemented by oral agreement and emails – Critical factor was the intention of the parties – Evidence demonstrating intention to conclude contract in this way, as well as actual authority of representatives to bind the appellant, rendering the contract valid.In 2004, the Medicines and Related Substances Act 101 of 1965 was amended to introduce, amongst other provisions, a prohibition on the supply of medicines according to a bonus or rebate system, or any other incentive scheme. Regulations under the amended Act provided stringent controls for the pricing of medicines and the marketing, sale and distribution of pharmaceutical products. As a result, the appellant, a subsidiary of a pharmaceutical drug manufacturer and supplier, was forced to change its marketing strategy.

Representatives of the appellant met with a company (Hiline) which subsequently sold its shares to the respondent to agree on marketing activities to be undertaken by Hiline. The representatives signed a written document, termed a “‘marketing agreement”, which they presented to Hiline in October 2004. The precise details of the marketing plan could not be confirmed on that date, so the agreement was confirmed in a series of emails exchanged on 30 November 2004. By March 2005, the appellant had a change of heart and informed Hiline that there was no contract between them and that the invoice that Hiline had submitted for the first monthly payment would not be paid. Hiline treated the appellant’s conduct as a repudiation of the contract between them, and instituted action for damages for breach of contract. The upholding of the claim led to the present appeal.

The High Court had found that the contract pleaded had been proved.

On appeal, the Court identified the critical issue as being whether there was a contract at all on the terms alleged by Hiline. Nevertheless, the Court considered the appellant’s contention that the trial court did not properly apply the rules relating to the interpretation of contracts.Held – The interpretative process is one of ascertaining the intention of the parties. In so doing, the Court must consider all the circumstances surrounding the contract. There is no real distinction between background-and surrounding-circumstances, and a court should always consider the factual matrix in which the contract is concluded – the context – to determine the parties’ intention.

Having regard to the appellant’s submissions, the Court found the principles of interpretation espoused by the appellant to be incorrect. It was held that the material terms of the contract had in fact been agreed, and that the contract pleaded and relied on by Hiline was concluded by 30 November 2004 as the trial court found. The appellant’s further attempt to challenge the authority of its representatives to conclude a contract on its behalf was also dismissed by the court.

It was concluded that the trial court correctly found that there was an enforceable contract between the parties, repudiated by the appellant. The appeal was, accordingly, dismissed.

Griessel and another v Lizemore and others [2015] 4 All SA 433 (GJ)

Business rescue – Resolution by director of company passed without the knowledge of the other shareholders – Setting aside of resolution – Requirements for business rescue – Proof that the company is financially distressed as required under section 129(1)(a) of the Companies Act 71 of 2008 – Not reasonably likely (or perhaps possible) for the company to be rehabilitated and continue in existence on a solvent basis as contemplated in section 128(1)(b)(iii) of the Companies Act – Development and implementation of a plan to rescue the company would result in a better return for creditors or shareholders than would occur from its immediate liquidation.

Between them, the applicants held 67% of the shareholding in the third respondent company, with the remaining 33% of the company’s issued share capital being held by the first respondent. In July 2015, the first respondent passed a resolution on behalf of the board of directors placing the company under business rescue. The second respondent was appointed the business rescue practitioner. The resolution was passed without the knowledge of the other shareholders and despite a meeting of shareholders, held three days earlier in which the suggestion that business rescue proceedings be considered was rejected. The first respondent contended that he did not have to notify the other shareholders of his intention to pass the directors resolution, since at that time he was the sole director of the company and could unilaterally resolve to begin business rescue proceedings and place the company under supervision in terms of section 129(1) of the Companies Act 71 of 2008.

In an urgent application, the applicants sought a declaration that the resolution to begin business rescue proceedings and to place the company under supervision had lapsed and was a nullity. They also sought the setting aside of the resolution, alternatively, of the appointment of the business practitioner; and the removal of the first respondent as director of the company.Held – The primary objective of business rescue is to prevent a viable company from closing down by allowing it an opportunity to regain solvency through the mechanism

of business rescue provided it can be achieved within a reasonable time. It is for the person who wishes to place a company under business rescue on this alternative ground to prove that the company is financially distressed as required under section 129(1)(a); that it is not reasonably likely (or perhaps possible) for the company to be rehabilitated and continue in existence on a solvent basis as contemplated in section 128(1)(b)(iii); and that the development and implementation of a plan to rescue the company would result in a better return for creditors or shareholders than would occur from its immediate liquidation.

The Court found that each of the requirements to set aside the resolution in terms of section 130(5)(a) read with 130(1)(a) had been met. The effect of setting aside the resolution under section 130(1)(a) meant that the business rescue proceedings had ended. The application succeeded.

Justice Alliance of South Africa and another v Minister of Social Development, Western Cape and others [2015] 4 All SA 467 (WCC)

Children – Youth centres – “Re-purposing” of former schools of industries and reform schools – Children’s Act 38 of 2005 – Section 196(3) – Interpretation of – Whether the youth centres in casu fell within the purview of section 196 of the Children’s Act – Centres had to be regarded from 1 April 2010 as having been established and/or maintained in terms of section 195 of the Children’s Act as secure care child and youth care centres, the responsibility for which remained with the Department of Education until 1 April 2012, thereafter the responsibility was transferred to, and remains with, the Department of Social Development – Obligation rested on the Education Department to provide education to children at the facilities.In December 2000, the Western Cape Government closed all former schools of industries and reform schools in the province, but retained, inter alia, four youth centres referred to in this judgment by re-establishing them in terms of section 18 of the Western Cape Provincial School Education Act 12 of 1997 as public schools. It was common cause that the centres nonetheless continued to operate and perform the same functions as they did before 31 December 2000. In 2013, the Western Cape government embarked on a process of closures or otherwise termed “repurposing” of those centres in order to utilise the current physical infrastructure of the centres to serve as schools for children with special educational needs in terms of the Schools Act. The applicant sought to prevent the repurposing of the four centres.

Held – In terms of section 196(3) of the Children’s Act 38 of 2005, centres which were the responsibility of the Department of Education on 1 April 2010 became the responsibility of the Department of Social Development as at 1 April 2012. However, the obligation to provide education to these children is vested in the Department of Education.

The main issue for determination by this Court was whether specifically the four centres in this case fell within the purview of section 196  of the Children’s Act. Section 196(1)(d)  and (e)  provided that from the date on which section 195  took effect, a government industrial school established in terms of section 33  of the Children’s Protection Act 25 of 1913  and maintained as a school of industries in terms of the Child Care Act must be regarded as having been established in terms of section 195  as a child and youth care centre providing a residential care programme referred to in section 191(2)(i); and a reformatory established in terms

of section 52  of the Prisons and Reformatories Act 13 of 1911  and maintained as a reform school in terms of the Child Care Act must be regarded as having been established in terms of section 195  as a child and youth care centre providing a residential care programme referred to in section 191(2)(j). The Court held that for there to be an arbitrary distinction between schools established under the 1911 and 1913 Acts and those established thereafter was contrary to the objects and purposes of the Children’s Act and the Bill of Rights.

Thus, the centres in this case fell within the ambit and transfer envisaged by the Children’s Act, and had to be regarded from 1 April 2010 as having been established and/or maintained in terms of section 195 of the Children’s Act as secure care child and youth care centres, the responsibility for which remained with the Department of Education until 1 April 2012. Thereafter the responsibility was transferred to, and remains with, the Department of Social Development. However, the obligation rested on the Education Department to provide education to children at the facilities.

Moto Health Care Medical Scheme v Muller NO and others [2015] 4 All SA 485 (GP)

Civil procedure – Prescription – Service of summons after liquidation – Companies Act 61 of 1973 – Section 359(2)(a) and (b) – Locus standi – Whether the third and fourth respondents had any legal interest in the fact that the liquidator had waived non-compliance with the statutory provision, condoned the non-compliance or whether the court should condone the applicant’s non-compliance in failing to give notice – Liquidator was the person to which section 359(2) of the 1973 Act applies and who was affected by non-compliance – Court held that prescription was interrupted by the action being instituted and the action had not yet been concluded and therefore the claim had not prescribed.

Civil procedure – Prescription – Service of summons after liquidation – Validity of summons – Applicant had served the summons on the chosen domicilium citandi et executandi and not on the liquidators – Test was whether the liquidators were prejudiced thereby – Court could not find that the proceedings were void ab initio due to the applicant’s non-compliance.The relief sought by the applicant concerned its failure to give written notice as required by section 359(2)(a) of the Companies Act 61 of 1973before it instituted action against a company (“Calabash”). A declaratory order was sought that the first two respondents had waived the requirement in question, alternatively that they had condoned the failure to give notice. The applicant sought the court’s leave to prosecute the action instituted against Calabash, to its final conclusion.

Calabash was liquidated in July 2009. The third and fourth respondents contended that the failure by the applicant to adhere to the provisions of section 359 of the 1973 Act rendered the institution of the action void ab initio.

Held – The issue was whether the applicant’s summons, which was served on Calabash after the date of liquidation, interrupted the running of prescription having regard to section 359(2)(a) and (b) of the Act. The reason for the failure to give notice in terms of section 359(2)(a) was that the applicant was unaware that Calabash was in liquidation when the summons was served.

The first issue in dispute was the third and fourth respondents’ locus standi in the matter. The subject matter of the application was whether the applicant had complied with section 359(2) of the Companies Act. It was significant that the applicant had cited the respondents as third and fourth respondents. According to the applicant, the said respondents had to show that they had a direct and substantial interest in the subject matter of the application. The question was whether the third and fourth respondents had any legal interest in the fact that the liquidator had waived non-compliance with the statutory provision, condoned the non-compliance or whether the court should condone the applicant’s non-compliance in failing to give notice. After considering all the facts and the circumstances of the present application, the Court held that the liquidator was the person to which section 359(2) of the 1973 Act applies and who was affected by non-compliance. In this instance, the liquidators made it clear that they were satisfied with the present state of affairs by not opposing this application. Therefore, the third and fourth respondents had no legal standing to oppose the application.

The next issue concerned the validity of the summons. The third and fourth respondents contended that the applicant had served the summons on the chosen domicilium citandi et executandi and not on the liquidators. The test was whether the liquidators were prejudiced thereby. Finding no prejudice to the liquidators, the Court could not find that the proceedings were void ab initio due to the applicant’s non-compliance.

On the issue of prescription, the Court held that prescription was interrupted by the action being instituted and the action had not yet been concluded. The claim had thus not prescribed.

S v Miller and others [2015] 4 All SA 503 (WCC)

Criminal procedure – Evidence – Police captain’s evidence – Analysis of cellular phone communications between the accused – Admissibility – Argument that certain cell phone records procured by the State under section 205 of the Criminal Procedure Act 51 of 1977 had been obtained unlawfully since the subpoenas presented to the issuing magistrate in terms of section 205 were allegedly fatally defective – Objection that the primary data which was loaded onto the police computer was unlawfully obtained in breach of section 205 – Court was not persuaded that the defence had established that the subpoena was wrongly issued or that it fell to be declared invalid.

Criminal procedure – Evidence – Police captain’s evidence – Analysis of cellular phone communications between the accused – Admissibility – Argument that the rights of the accused to privacy protected under section 14 of the Constitution of the Republic of South Africa, 1996 had been unlawfully breached when the police captain accessed the data on the cell phones lawfully seized by the police without prior authorisation – Court balanced the right to privacy against the interests of the administration of justice, and found that this defence failed.The accused were charged with a number of offences under the Prevention of Organised Crime Act 121 of 1998 and the Marine Living Resources Act 18 of 1998, it being alleged that they collectively ran an enterprise involving the unlawful processing, packaging and export of abalone. The trial proceeded in fits and starts for various reasons. On the 38th day of the trial, the State called a police captain

(“Capt Brink”) to the witness box to testify regarding, inter alia, his analysis of cellular phone communications between the accused inter se as well as with several of the State witnesses and other parties.

In the present application, the applicants sought to strike out all of the evidence of Capt Brink relating to cell phone traffic and usage. The challenge to Capt Brink’s evidence was founded on two bases. Firstly, it was alleged that certain cell phone records procured by the State under section 205 of the Criminal Procedure Act 51 of 1977 had been obtained unlawfully since the subpoenas presented to the issuing magistrate in terms of section 205 were allegedly fatally defective. Secondly, it was said that the rights of the accused to privacy protected under section 14 of the Constitution had been unlawfully invaded when Capt Brink had accessed the data contained on the cell phones of the accused, which cell phones had been lawfully seized by the police during their arrests.Held – The cell phones had been released to Capt Brink in terms of subpoenas issued in terms of section 205 of the Criminal Procedure Act. The objection of the defence was that the primary data which was loaded onto the police computer was unlawfully obtained in breach of section 205. In addition, it was said that Capt Brink breached the accused’s rights of privacy by interpreting the data furnished to him, and in particular that he should not have had access to any data on any cell phone lawfully seized by the police without prior authorisation. The Court was not persuaded that the defence had established that the subpoena was wrongly issued or that it fell to be declared invalid. The first attack by the defence on the admissibility of Capt Brink’s evidence, that the subpoenas were unlawfully issued, therefore failed.

On the second defence, the Court balanced the right to privacy against the interests of the administration of justice, and found that this defence also had to fail.

Unable to find the evidence of Capt Brink inadmissible, the Court dismissed the application.

Werksmans Incorporated v Praxley Corporate Solutions (Pty) Ltd [2015] 4 All SA 525 (GJ)

Civil procedure – Claim for legal fees – Whether a party is entitled to demand that fees and disbursements that had already been paid by it to its attorneys be subjected to taxation by the Taxing Master – Court upheld the applicant’s argument that it should not be compelled to tax bills that had already been paid.

Civil procedure – Claim for legal fees – Whether there is justification to proceed with liquidation proceedings against a client who withholds payment because of a dispute in respect of the fees and disbursements of Counsel – Whether an untaxed bill can be used to sue thereon or not – Court found that the dispute raised by the respondent regarding the amount claimed was not genuine and was not persuaded that in launching the liquidation proceedings, the applicant acted maliciously or vexatiously.

In terms of a verbal agreement, the respondent and the applicant law firm entered into an agreement in terms of which the applicant received instructions concerning arbitration proceedings between the respondent and a third party (“ODM”).

In October 2012, the respondent received a notice from ODM to the effect that its board of directors had passed a resolution to place ODM under business rescue in terms of section 129 of the Companies Act 71 of 2008. That would by law result in the staying or suspension of all legal proceedings against ODM in terms of the provisions of section 133 of the Act. The respondent did not instruct its attorneys, the applicants, to stop arbitration proceedings but it was agreed to await the appointment of a business rescue practitioner and only then stop the arbitration. A business rescue practitioner was appointed on 7 November 2012 thus causing the suspension or staying of the arbitration proceedings. At the end of November, the relevant attorney in the applicant firm sent his invoice to the applicant, claiming fees due to him for the period 1 November 2012 to 19 November 2012. The respondent continued to pay the applicant’s invoices up until October 2012, but in February 2013, it cancelled the respondent’s mandate to act for it. That led to the respondent sending a letter of demand for the balance owing (in respect of Counsel’s fees). A deadlock was reached solely on the insistence by the respondent that the applicant tax his whole fees past paid and present.Held – The issues before the Court were whether a party is entitled to demand that fees and disbursements that had already been paid by it to its attorneys be subjected to taxation by the Taxing Master; and whether there is justification to proceed with liquidation proceedings against a client who withholds payment because of a dispute in respect of the fees and disbursements of Counsel.

The Court upheld the applicant’s argument that it should not be compelled to tax bills that had already been paid. The Court was unpersuaded that the respondent had made out any case to compel the applicants to submit their paid invoices for taxation.

The next question was whether the applicant was justified in launching liquidation proceedings, or whether it was an abuse of the legal process. The respondent pointed out that it had already paid in excess of R1 million in fees and disbursements to the applicant and there was accordingly no reason to believe that the respondent would not be able to pay the sum claimed. The question to be answered firstly was whether an untaxed bill can be used to sue thereon or not. The court’s power to grant a winding up order is a discretionary power irrespective of the ground upon which the order is made. Similarly, the granting of an order declaring winding up proceedings as being vexatious and frivolous and thus amounting to an abuse of the court’s procedure is discretionary. The discretion must be exercised on judicial grounds. The Court found that the dispute raised by the respondent regarding the amount claimed was not genuine. The Court was also not persuaded that in launching the liquidation proceedings, the applicant acted maliciously or vexatiously.

The respondent was ordered to pay the amount claimed by the applicant.