INDEX1

SOUTH AFRICAN LAW REPORTS AUGUST 2015

SA CRIMINAL LAW REPORTS AUGUST 2015

All SOUTH AFRICAN LAW REPORTS AUGUST 2015

EDITORIAL

Congratulations to Adv Cassim Moosa who is now acting judge in the South Gauteng High Court!

This made me ponder a bit, when lawyers2 come to the judge’s chambers and matters are discussed then the rule is that “what is said in chambers stays in chambers”. The expression was well-marketed for Las Vegas, although a comedian said "...great to be back here in Vegas....you know how they say 'what happens in Vegas stays in Vegas'....? Well I have a new saying....if it happens in Vegas, and I see it....I'm telling EVERYBODY!!"

Unfortunately this has a ring of truth as the judges are more sceptic to divulge certain information to lawyers, there were two incidents in the newspapers recently where “what was said in chambers” did not stay in chambers. One was where Judge Cathy Satchwell made a comment about a litigant and the other one was about Judge Traverso in the Dewani trial. Also, a judge told me in the tea room that he no longer entertains lawyers in his chambers. Sad! I always liked the idea of going to a judge’s chambers as we could at least then be informal and we could sort out issues, i.e. estimated duration of the trial or whatever. But the opposite could also ring true: I once told a judge something confidentially which was then repeated by the judge in court! Perhaps we should agree beforehand “what is now discussed stays in chambers”….and do not tell client, next it will be in the newspapers.

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!

2 The term is used as it comprises attorneys and advocates

LEGAL NOTES VOL 9/2015

Compiled by: Adv M Klein

SOUTH AFRICAN LAW REPORTS AUGUST 2015

ABSA BANK LTD v SNYMAN 2015 (4) SA 329 (SCA)

Magistrates' court — Civil proceedings — Judgments — Superannuation — Occurs three years after judgment — Execution to be effected within those three years — Magistrates' Courts Act 32 of 1944, s 63.Absa Bank Ltd loaned Snyman a sum which it secured with a bond over his home. When he defaulted on payment Absa obtained default judgment from a magistrates' court as well as a warrant of execution of the property. Both were obtained on 18 December 2007. Nothing then occurred until 18 December 2010 when the warrant was reissued. The property was sold in execution on 6 December 2011. Ultimately Snyman sought the review inter alia of the sale in execution, which the Western Cape Division of the High Court held was void. Absa appealed this finding to the Supreme Court of Appeal, where the question was whether a reissue of a warrant of execution could postpone superannuation of a magistrates' court's judgment.

Held, that a magistrates' court's judgment superannuated after three years (s 63 of the Magistrates' Courts Act 32 of 1944); and that execution of the judgment had to take place within the three-year period. Reissue of a warrant within that period would not postpone superannuation. Here, the sale in execution had taken place more than three years after the date of judgment, and would on that basis be invalid. (As it happened, the High Court overlooked the possibility that the sale might have taken place within three years of the last payment in respect of the judgment — the alternative date from which superannuation may be calculated. The Supreme Court of Appeal consequently referred this issue back to the High Court for it to determine.) Appeal upheld, with referral as aforesaid.

KNIPE AND ANOTHER v NOORDMAN NO AND OTHERS 2015 (4) SA 338 (NCK)

Company — Winding-up — Liquidator — Provisional liquidator — Powers — Power to sell company assets after final liquidation order granted — Not curbed by supervening business rescue application — Interdict refused — Companies Act 61 of 1973, s 386(5); Companies Act 71 of 2008, s 131(6).Business rescue — Liquidation proceedings already initiated — Final liquidation order granted — Application for business rescue not suspending liquidation — Provisional liquidators may continue carrying out their functions — May apply to sell company assets — Companies Act 61 of 1973, s 386(5); Companies Act 71 of 2008, s 131(6).

Section 386(5) of the old Companies Act 61 of 1973 allows the court to grant a liquidator 'in a winding-up by the court' leave to 'raise money on the security of the assets of the company . . . or do any other thing which the court may consider necessary for winding up the affairs of the company'. Section 131(6) of the new Companies Act 71 of 2008, which provides that business rescue proceedings will suspend liquidation proceedings, does not apply where a final liquidation order has been granted, and will hence not hamstring liquidators who wish to sell company assets.

DEMOCRATIC ALLIANCE v SPEAKER OF THE NATIONAL ASSEMBLY AND OTHERS 2015 (4) SA 351 (WCC)

Constitutional law — Legislation — Validity — Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2000, s 11 — Arrest and removal of any person creating or joining disturbance during parliamentary, house or committee sittings — Provision violating Constitution by allowing arrest of members for what they may say at such sittings — Constitution, ss 58(1) and 71(1).Parliament — Members — Privileges — Constitutional right to freedom from arrest for anything said in National Assembly or Council of Provinces or any of their committees — Violated by provision in s 11 of Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2000 allowing arrest and removal of any person for what they may say at such sittings — Constitution, ss 58(1) and 71(1).

Section 11 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2000 (the Act) allows the Speaker or the Chairperson of the National Council of Provinces (or a person designated by them) to order 'a staff member or a member of the security forces' to arrest and remove any person creating or taking part in a disturbance during parliamentary, house or committee sittings.Section 58(1)(a) of the Constitution affords cabinet members, deputy ministers F and members of the National Assembly (the NA) a right to freedom of speech in the NA and its committees; and s 58(1)(b) protects such members against inter alia arrest or imprisonment or damages 'for anything they have said in, produced before or submitted to the Assembly or any of its committees'. Delegates to the National Council of Provinces, participating local government representatives and members of the national executive are afforded the same privileges and powers by s 71 of the Constitution.These constitutional privileges are violated by s 11 of the Act to the extent that it permits a member to be arrested for what he or she may say on the floor of a House. Because a member may not be arrested under s 11 if the conduct that led to the arrest is protected under ss 58(1)(b)and 71(1)(b), the most appropriate remedy to bring s 11 within constitutional bounds would be notional severance — leaving the text unaltered but limiting the extent of its application by subjecting it to a condition. The Western Cape Division of the High Court so held in an application challenging the constitutional validity of s 11 of the Act. Accordingly it declared s 11 of the Act inconsistent with the Constitution and invalid 'to the extent that it [permitted] a member to be arrested for conduct that [was] protected by ss 58(1)(b) and 71(1)(b) of the Constitution'. (This declaration was suspended for a period of 12 months in order for Parliament to remedy the defect, and was referred to the Constitutional Court for confirmation.)

ABSA BANK LTD v COLLIER 2015 (4) SA 364 (WCC)

Act of insolvency — Failure to satisfy judgment debt or indicate sufficient disposable property to do so — Disposable property — Mortgaged property — Qualifying as disposable if judgment creditor holds first mortgage bond — Order of special execution not required — Insolvency Act 24 of 1936, s 8(b).

Under s 8(b) of the Insolvency Act 24 of 1936 a debtor who fails to satisfy a judgment or point out sufficient 'disposable property' to do so commits an act of insolvency.The question here was whether Mr Collier's undivided half-share in immovable property mortgaged to Absa, the judgment creditor, was disposable property as intended in s 8(b). The sheriff had rendered a nulla bona return after Mr Collier allegedly failed to point out sufficient disposable property to satisfy Absa Bank's judgment against him. Absa, the holder of a first mortgage bond over the property in question, argued that this was an act of insolvency under s 8(b) and applied for Mr Collier's sequestration. Mr Collier resisted on the ground that the sheriff's return was factually incorrect because he had advised the sheriff of his ownership of the property, the value of which was sufficient to satisfy the judgment Absa had obtained against him. A single judge of the High Court dismissed the application on the ground that Absa was, as mortgagee, able to dispose of Mr Collier's half-share in property without a special execution order and that in the circumstances it had failed to establish an act of insolvency. In an appeal to a full bench —Held:Mortgaged immovable property was disposable only at the instance of the judgment creditor as first mortgagee regardless of whether it had been declared specially executable. Since Mr Collier's undivided half-share in the property was 'disposable' under s 8(b), and since its value was sufficient to satisfy Absa's judgment, no act of insolvency was committed. Hence a final order of sequestration would not issue. Appeal dismissed. 

SELEKA AND OTHERS v MINISTER OF POLICE AND OTHERS 2015 (4) SA 376 (LP) 

Prescription-Extinctive prescription — Interruption — By service of process — Letter of demand or notice of intention to sue state — Neither constituting service of 'process' affecting running of prescription — Prescription Act 68 of 1969, s 15(1); Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002, s 3.

The defendants raised a special plea of prescription against actions for damages instituted by the plaintiffs (for their alleged unlawful arrest, detention and assault by members of SAPS) on the basis that said actions were instituted I and summons served more than three years after their respective causes of action had arisen. The plaintiffs contended that the running of prescription was interrupted as contemplated in s 15(1) of the Prescription Act 68 of 1969 by the service of their respective letters of demand and/or notices in terms of s 3 of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002. In issue was whether the letters of demand and/or notices constituted 'processes' in terms of the aforementioned provision of the Prescription Act and consequently affected the running of prescription. The court held that they did not and the claims had accordingly prescribed

WINDRUSH INTERCONTINENTAL SA AND ANOTHER v UACC BERGSHAV TANKERS AS THE ASPHALT VENTURE 2015 (4) SA 381 (KZD) 

Shipping — Admiralty law — Maritime lien — Seaman's lien for wages — Lien for wages for crew captured and abducted by pirates — Claim falling within scope of maritime lien for wages — Lien transferable by cession or assignment — Admiralty Jurisdiction Regulation Act 105 of 1983, s 1(1)(s).

On 28 September 2010 the Asphalt Venture was hijacked by Somali pirates off the Kenya coast. Though a ransom was paid and the ship released on 15 April 2011, the pirates retained seven Indian crew members as hostages. Their employer, Concord Worldwide Inc, the subcharterer, made payments equivalent to their wages to their dependent families until October 2011, when it ran into financial difficulties. It was common cause that the specified periods of employment of the abducted crew had expired by the time the ship was released.Bergshav, the respondent in the present case, acting as cessionary of the wage claims of abducted crew, procured the arrest of Asphalt Venturein Durban in September 2012. The claims were ceded to Bergshav under a settlement agreement concluded between Bergshav and the families, which was approved by the Indian High Court, Mumbai. In its summons in rem in the South African court Bergshav claimed payment of what it had paid to the families. The present application was for the release of the Asphalt Venture from its deemed arrest and for the return of the security furnished. The applicants were Windrush, the original bareboat charterer, and the ship itself. The question for the court was whether, given the termination of the employment contracts and the absence of service to the ship after April 2011, there was a valid claim for unpaid wages capable of supporting a maritime lien. An ancillary question was whether, even if the claims and the maritime liens existed, their transfer by cession or assignment was valid, at least without the sanction of the Mumbai High Court. It was common cause that the abducted crew's employment contracts were governed by Indian law.Held: Although the employment of the abducted crew had ended in April 2011, Bergshav was able to show, if only at prima facie level, that Indian law would recognise their wage claims at all material times to date of repatriation. Whether the claims were supported by maritime liens enforceable by an action in rem had to be determined with reference to the lex fori, ie South African law. The issue was in effect settled by the applicants' concession that the claims were 'maritime claims', for in South African law the liens would follow the claims. The critical factor, therefore, was not the time when a claim arose, but whether it fell within the scope of a maritime lien. It could for present purposes be concluded that crew's prima facie wage claims did give rise to maritime liens, which were, moreover, by their nature capable of being transferred by cession or assignment. And since the Mumbai High Court had, on the applicants' version, indeed sanctioned the assignment, the court would recognise Bergshav's title. Application dismissed.

STEYN v HASSE AND ANOTHER 2015 (4) SA 405 (WCC)

Cohabitation — Rights — Reciprocal duty of support — Though none arising by operation of law, it may be regulated by agreement — Universal partnership may come into being — Requirements — Both parties must contribute or bind themselves to do so; it must be carried on for joint benefit of both parties; and object must be to make profit. Cohabitation generally refers to people who, regardless of their gender, live together without being validly married to each other. Although cohabitation is a common phenomenon and widely accepted, cohabitants generally do not have the same rights as partners in a marriage or civil union. While no reciprocal duty of support arises by operation of law, this may be regulated by agreement. An express or implied universal partnership may arise between cohabitants. A universal partnership exists when parties act like partners in all material respects without explicitly entering into a partnership agreement. The three essential elements are, first, that each contributes something to the partnership or binds himself to contribute something to it; second, that the partnership should be carried on for the joint benefit of the parties; and, third, that the object should be to make profit.

Mr Hasse, a married German businessman residing chiefly in Germany, was involved in a romantic relationship with Ms Steyn during a series of interludes he spent at his house in Somerset West, Western Cape. Steyn ended up living there rent-free. But when the relationship soured Mr Hasse wanted Steyn out and sent her an eviction notice. Steyn resisted on the ground that she was living in the house at Hasse's invitation and, moreover, as his partner. She alleged that he had promised to provide her with a secure home for 10 years. A magistrates' court, having found no reciprocal rights and duties of support, held that the withdrawal of Hasse's consent meant that Steyn's occupation was unlawful and granted an eviction order. In an appeal to the High Court —HeldGiven the nature of the relationship between the parties, there would have been no express or tacit universal partnership nor any other legal basis for a finding that there were reciprocal rights and duties of support. It was moreover highly unlikely that Hasse would have given Steyn an undertaking to provide her with a home for 10 years, and the averment could be rejected out of hand. Steyn would be given three months to vacate the premises. 

FIRSTRAND BANK LTD v NKATA 2015 (4) SA 417 (SCA)

Credit agreement — Consumer credit agreement — Reinstatement of agreement in default — Not possible after execution of court order enforcing agreement — Meaning of 'execution' — Sale in execution at public auction — National Credit Act 34 of 2005, s 129(4)(b). 

A consumer brought an application in the High Court for the rescission of a default judgment and cancellation of the sale in execution of her property after she had made good her arrears. The court did not rescind the judgment but, relying on s 129(3)(a) of the National Credit Act 34 of 2005 (NCA), declared that the loan agreements had been reinstated — the default judgment and the writ in execution had accordingly, by operation of law, ceased to have any force and effect. The central issue in an appeal by the credit provider to the Supreme Court of Appeal

(SCA) was the meaning of 'execution' in s 129(4)(b) of the NCA. The section provides that 'a consumer may not re-instate a credit agreement after . . . the execution of any other court order enforcing that agreement'. The High Court concluded that 'execution' only took place when the proceeds of the sale in execution were paid over to the judgment creditor. In contrast the SCA —Held, that reinstatement could only occur before a sale in execution at a public auction. The debtor (consumer) had fallen foul of this provision and the order of the High Court had therefore been wrongly made. Appeal upheld. Since the matter was decided on the basis of s 129(4)(b), it was not necessary to deal with the High Court's reasons and findings in respect of s 129(3)(a).

RAHIM AND OTHERS v MINISTER OF HOME AFFAIRS 2015 (4) SA 433 (SCA)

Immigration — Illegal foreigners — Detention pending deportation — Place of detention — To be determined by director-general of Home Affairs — Determination need accord with international best practice and be publicly proclaimed — Immigration Act 13 of 2002, s 34(1).

Mr Rahim and 14 other foreign nationals sued the Minister of Home Affairs for damages as a result of what they alleged were their unlawful arrest and detention. Rahim and the others had applied for asylum but had been unsuccessful and their appeals had later been refused. Thereafter they had been arrested at the instance of officials of the Department of Home Affairs, and detained variously at police stations, prisons and the Lindela holding facility. The arrests and detention had been on the basis of s 34(1) of the Immigration Act 13 of 2002, which provides that 'an immigration officer may arrest an illegal foreigner or cause him . . . to be arrested, and shall . . . deport him . . . and may, pending his . . . deportation, detain him . . . or H cause him . . . to be detained in a manner and at a place determined by the director-general . . .'.Rahim and the others asserted in the High Court that their places of detention had not been so determined and that this rendered their detention unlawful. The court, however, found against them, interpreting the Act to provide that prisons and police stations were places that had been so determined.

On appeal, the Supreme Court of Appeal held that (1) any place used to detain illegal foreigners pending deportation had to be determined to be a place of detention by the director-general (the places requiring such determination including prisons and police stations); (2) that any determination had to accord with international best practice, which was to the effect that illegal foreigners had to be detained separately from persons detained for criminal offences; and (3) that no such determinations had been made here. The court also suggested (the issue not arising for final decision) that any determination would have to be publicly proclaimed. Appeal upheld, the detentions found to be unlawful, and the minister ordered to pay damages.

ORESTISOLVE (PTY) LTD t/a ESSA INVESTMENTS v NDFT INVESTMENT HOLDINGS (PTY) LTD AND ANOTHER 2015 (4) SA 449 (WCC)

Company — Winding-up — Application — By creditor — Abuse of process — Rule that court will refuse application as constituting abuse of process where company bona fide disputing debt on reasonable grounds (Badenhorst rule) — Ambit — Provisional and final stages — Burden of proof.Company — Winding-up — Grounds — Inability to pay debts — Discretion of court to refuse winding-up — When it arises — Competing application for business rescue — Difference of opinion among creditors on need for liquidation — Company solvent and misguidedly but genuinely disputed applicant's claim — Companies Act 61 of 1973, s 345(1) read with s 344(h). 

NDFT and Essa concluded an agreement under which Essa was to earn a commission for helping NDFT to obtain an overdraft. When a dispute arose as to whether Essa had earned its commission, it made a demand for payment under s 345(1)(a) of the (old) Companies Act 61 of 1973 and followed it up with an application for the provisional liquidation of NDFT. The provisional order was granted and the second respondent (the Trust) — NDFT's sole shareholder and largest creditor by virtue of its loan-account claim — given leave to intervene to oppose final liquidation. The issues on the return date were —   (i)   whether Essa was a creditor of NDFT;   (ii)   whether NDFT genuinely (bona fide) disputed its claim on reasonable grounds;    (iii)   whether NDFT was factually or commercially insolvent; and   (iv)   whether the court should, if these questions were answered in Essa's favour, nevertheless refuse to grant a winding-up order.

The Badenhorst rule states that a court will refuse an application for the liquidation of a company if the company bona fide disputes the applicant's claim on reasonable grounds. Though its object is to prevent the abuse of the liquidation process for the enforcement of debts, it is now treated as an independent rule not requiring proof of actual abuse of process. Hence disputes relating to liability must be distinguished from disputes about the other requirements for liquidation. Since the court will refuse the application even where the applicant proves its claim, the Badenhorst rule is more appropriate in provisional applications, when an onus may be cast on the company to explain the basis of the claimed dispute (ie its bona fides and reasonability). At the final stage, however, Plascon-Evans will apply and proof of the claim will leave little scope for a finding that the debt is nevertheless genuinely disputed. The requirement of bona fides is satisfied if the company genuinely wishes to contest the claim and believes it has reasonable prospects of success. Lack of bona fides will usually go hand-in-hand with an intention to delay, which would in turn indicate that the company is unable to pay its debts and militate against the exercise of a discretion in its favour (see below).While a company's deemed inability — in terms of s 345(1) — to pay its debts does not give rise to a rebuttable presumption, the court has a residual discretion to deny the application for liquidation, and the reason the company gives for its refusal to pay (eg bona fides and reasonability: see (c) below) might result in the court exercising it in the company's favour. The ambit of the discretion is debated, but whatever its limits, there must be a valid reason why the liquidation order should be withheld if the applicant complied with the applicable statutory requirements. Such reasons would include —

   (a)   that there are competing applications for liquidation and business rescue;   (b)   that there is a difference of opinion among the creditors on the need for liquidation — in particular, opposition by a major creditor; or   (c)   the company is commercially solvent and a presumption of commercial insolvency arose merely because it misguidedly but genuinely disputed the claim and therefore refused pay it.Held: As to (i): Although the facts tended to show that Essa's claim was duly established, it was, in the light of the findings below, not necessary to decide this point.As to (ii): While it was similarly unnecessary to decide this point, any reliance by NDFT on the Badenhorst rule would have failed, not for lack of bona fides, but because its grounds for disputing the claim were not reasonable.As to (iii) and (iv): The clear evidence that NDFT was commercially solvent and the fact that its largest shareholder opposed liquidation would compel the court to exercise its discretion against the granting of a final order.Provisional order accordingly discharged.

ABSA BANK LTD v KEET 2015 (4) SA 474 (SCA)

Prescription — Extinctive prescription — Debt — Claim for rei vindicatio not constituting debt — Accordingly, not prescribing after three years — Prescription Act 68 of 1969, s 10.

The appellant bank brought an action in the High Court seeking confirmation of its cancellation of an instalment sale agreement and recovery of the vehicle when the respondent defaulted on payments. Respondent's special plea of prescription was upheld on the basis that appellant's claim for repossession of the vehicle was a 'debt' as contemplated by s 10 of the Prescription Act 68 of 1969 and had thus prescribed after three years. The main issue on appeal was whether a claim under rei vindicatio became prescribed after three years by virtue of s 10. The Supreme Court of Appeal, after reviewing various authorities, held that this view was contrary to the scheme of the Act. The High Court had accordingly erred in upholding the special plea on this basis. Appeal upheld.

ELIAS MECHANICOS BUILDING & CIVIL ENGINEERING CONTRACTORS (PTY) LTD v STEDONE DEVELOPMENTS (PTY) LTD AND OTHERS 2015 (4) SA 485 (KZD)

Business rescue — Moratorium on legal proceedings against company — Leave to institute proceedings to be obtained before commencement of proceedings and not as part of relief in main application — Companies Act 71 of 2008, s 133(1)(b). 

Applicant company sought an order directing first respondent to produce certain documentation regarding a joint venture. First and second respondents (the latter was also a party to the venture) were in business rescue proceedings at the time. Leave to institute proceedings, as required in terms of s 133(1)(b) of the Companies Act 71 of 2008, was not obtained prior to commencement but incorporated as part of the relief in the main application. Counsel for respondents contended that it should have been obtained before the launch of proceedings. In issue was whether leave

could indeed be sought in the same application in which the substantive relief was sought. The court held that, on a proper construction of s 133(1)(b), it could not. The applicant had therefore commenced the present application when it was not entitled to do so. Such application was not competent and accordingly had to be dismissed. 

SARRAHWITZ v MARITZ NO AND ANOTHER 2015 (4) SA 491 (CC)

Housing — Right to housing — Protection of vulnerable purchasers — Seller's supervening insolvency — Statute failing to give cash purchasers same protection (right to transfer) as instalment purchasers — Statute amended to provide equal protection to all vulnerable purchasers in event of insolvency of seller — Alienation of Land Act 68 of 1981, s 21 and s 22. 

In September 2002 Mr Posthumus entered into a contract for the sale of a house to Ms Sarrahwitz. She paid cash and took occupation in October 2002. But Mr Posthumus did not transfer the house into her name, and in April 2006 his estate was sequestrated. The first respondent, who was appointed trustee of Posthumus' insolvent estate, refused to transfer the house to Ms Sarrahwitz on the ground that it formed part of the insolvent estate.

Ms Sarrahwitz approached the High Court for an order for transfer but her application was refused on the ground that the common law and not the Act regulated the transfer of the house and that the common law supported the trustee's position. Her subsequent approaches to the full bench of the High Court and the Supreme Court of Appeal failed for the same reason. 

Ms Sarrahwitz's problem was that, as a cash buyer, she did not enjoy the protection afforded to instalment-sale buyers under s 21 and s 22 of the Alienation of Land Act 68 of 1981. The Act provides that a buyer of residential property who pays the purchase price in two or more instalments over a period of one year or longer is entitled to demand transfer if the seller becomes insolvent. In an application for leave to appeal to the Constitutional Court Ms Sarrahwitz for the first time raised constitutional principles, arguing that the common law and the Act unconstitutionally failed to protect vulnerable cash buyers like her.

Majority judgment (per Mogoeng CJ): This case was about the protection of the poor and vulnerable from homelessness. Given the absence of the exceptional circumstances required for the development of the common law, the court would instead approach the matter through a proper interpretation — premised on the constitutional rights to housing, dignity and equality — of s 21 and s 22 of the Alienation of Land Act. The purpose of the Act — to protect vulnerable buyers of residential property — was beneficial, yet its failure to extend its protection to buyers other than instalment buyers impaired the abovementioned constitutional rights in an unjustified and irrational manner. Cash buyers and those who paid within a year should also be protected. Hence the appropriate remedy would be to read into the Act words that conferred a right on vulnerable buyers who paid cash or who paid in less than one year to take transfer of the property in the event of the seller's intervening insolvency, which right would only arise if the buyer were likely to

become homeless if transfer did not take place. In the event the first respondent would be ordered to transfer the house to Ms Sarrahwitz.

Concurring minority judgment (per Cameron J and Froneman J): The order in the main judgment would be concurred in with the reservation that it might lead to the striking-down of beneficial consumer-protection legislation because it failed to protect everyone equally. This would intrude too far into legislative territory. It was also difficult to assess the limits of vulnerability that would entitle buyers who paid the full purchase price to the same protection as instalment buyers. The Constitution, moreover, did not protect against homelessness in absolute terms. Rather, it provided that no one could be evicted from his or her home without an order of court made in consideration of all relevant circumstances. Hence the less intrusive and more appropriate remedy in the present case would have been to protect Ms Sarrahwitz's possessory rights by refusing an eviction order. 

PRIMEDIA BROADCASTING LTD AND OTHERS v SPEAKER OF THE NATIONAL ASSEMBLY AND OTHERS 2015 (4) SA 525 (WCC)

Parliament — Proceedings — Broadcasting — Limitations on broadcasting of unparliamentary conduct and grave disorder — Jamming of electronic signals during turmoil in Parliament — Invocation of parliamentary rules and policy — Constitutionality of such measures — Whether limitations reasonable and justifiable in open and democratic society — Constitution, ss 57(1), 59(1)(b), 70(1) and 72(1)(b).

Sections 57(1) and 70(1) of the Constitution provide that the National Assembly (the NA) and the National Council of Provinces (the NCOP) may determine and control their internal arrangements, proceedings and procedures, and make rules and orders concerning their business. Sections 59(1)(b)(i) and 72(1)(b)(i) of the Constitution provide that the NA and the NCOP must conduct their business in an open manner and hold their sittings in public, but that they may regulate public access (including the media) if it 'is reasonable and justifiable to do so in an open and democratic society'. Parliament's standing rules relating to the broadcasting of parliamentary proceedings (the Rules) provide that during incidents of disorder or unparliamentarily conduct the camera must focus on the occupant of the chair, ie the Speaker of Parliament or the Chairman of the NCOP. This measure is repeated for incidents of 'grave disorder' in Parliament's later Policy on Filming and Broadcasting (the Policy), but '(o)ccasional wide-angle shots of the chamber are acceptable' in the case of unparliamentarily behaviour.The applicants challenged these measures on the basis that they were not reasonable and justifiable limitations of the open and public nature of parliamentary sittings as contemplated in ss 59(1)(b) and 72(1)(b) of the Constitution; alternatively, that the Policy and the Rules as a whole were irrational for lack of public consultation before they were adopted, and were therefore unconstitutional. An order was also sought declaring the continued use of a device jamming electronic signals in Parliament unconstitutional and therefore unlawful. This arose from a 'jamming incident' which had prevented cellphone use during the first part of the same joint sitting of the NA and the NCOP in which the impugned measures where

invoked to limit coverage of the proceedings when it was deemed to have descended into 'grave disorder'. The full bench (by a majority) rejected the alternative ground on the basis that it was sufficient that the measures were devised for Parliament's functioning by Parliament itself, on a fully cross-party deliberative basis. It also rejected the declaratory relief sought in relation to the jamming incident as 'serving no purpose whatsoever'. As to the main issue — the reasonableness of the impugned measures —HeldThe public's right to know what was happening in Parliament was not absolute. The question was whether these limitations were reasonable — regard being had to what they sought to achieve and their context. The measures protected the dignity of Parliament by tempering the especially strong impact that visuals of disorderly conduct, if broadcast to the world, would have. They were designed to discourage disorderliness and unparliamentarily behaviour; indeed they were essential for its ordered operation. Thus, regard being had to all relevant factors, the measures under discussion in the instant matter are 'reasonable measures' employed to regulate public access, including access of the media, to Parliament.Conduct obstructing or disputing Parliament's proceedings, or unreasonably impairing Parliament's ability to conduct its business in an orderly and regular manner acceptable in a democratic society, was (in any event) not legitimate parliamentary business, and accordingly there was no obligation on Parliament to broadcast such conduct.Unreasonableness must be a high standard, particularly when an independent constitutional institution had, through its own internal cross-party processes, drawing on the experience of its own members and with regard to the practice under other constitutional democracies elsewhere, done exactly what ss 59(1)(b) and 72(1)(b) of the Constitution contemplated.Parliament was constitutionally entitled to ensure its functioning and to protect its own dignity. The challenged measures were reasonable, justifiable and proportionate, striking a balance between the right to be informed about Parliament and the duty to maintain the dignity of parliament. 

ZA v SMITH AND ANOTHER 2015 (4) SA 574 (SCA)

Delict — Elements — Unlawfulness or wrongfulness — Liability for omission — Failure to warn paying visitor to nature reserve of danger of slipping on ice concealed by snow and sliding over edge of gorge.

In this matter Federica Za sued the owner of a farm (Smith) and a corporation that carried on the business of a private nature reserve on the farm, for loss of support as a result of the death of her husband Pieralberto. Za alleged that their omission had resulted in his death. The background was that the corporation allowed members of the public to use certain amenities on the farm, including a four-wheel drive track, for a fee. On the winter day in question Pieralberto had paid the fee and driven his four-wheel drive to the terminal point of the track, which was a parking area at the top of a mountain. There he had alighted and walked across the apparently snow-covered ground to look into the gorge that was close by. Near to, but not at the edge of the gorge, Pieralberto had slipped on ice concealed by the snow, had slid over the edge and fallen to his death.

Federica's action in delict was based on Smith and the corporation's failure to take steps to avoid the incident. (Those steps would be: (i) briefing members of the public — inter alia — on the danger of slipping on ice concealed by snow and sliding over the edge of the gorge ('the danger'); (ii) moving the parking area lower down, to cause visitors to have to walk some distance on the snow toward the outlook over the gorge, in order to familiarise them with the surface; (iii) fencing the parking area, leaving an opening through which the visitors would have to pass, and at which warning signs would be placed; (iv) warning, by means of those signs, of the danger; (v) and marking out with poles the edge of the safe area and the unsafe area beyond.) Za was unsuccessful in the High Court and appealed to the Supreme Court of Appeal. In issue there was the following.   (1)   Whether the omission was wrongful (ie whether it was reasonable to impose liability for the omission).      Held, that it was. This on the basis of the following considerations:      (a)   the law's policy, as reflected in the common-law duty of a person in control of a property containing a danger, to render the property safe for visitors;      (b)   that Smith and the corporation were indeed in control of a property containing a danger to visitors; and      (c)   that the corporation and Smith allowed the public onto the property to, for a fee, use a four-wheel drive route that led directly to the danger.    (2)   Whether Smith and the corporation had been negligent. Specifically, whether a reasonable person in their position would have taken steps to warn and protect a person in the position of Pieralberto against the danger. (They contended that a reasonable person would not have done so, because the danger would have been clear to a person in Pieralberto's position.)       Held, that a reasonable person would have taken such steps. This because the danger would not have been clear, and the proposed remedial steps (listed above) would have been effective, affordable and sustainable.   (3)   Whether the omission to take the steps outlined above was the cause of the harm. (Smith and the corporation argued that Pieralberto had in fact been aware of the danger, but had nonetheless proceeded to walk to the edge, and thus that even if they had taken any of the proposed measures, the incident would still have occurred.)      Held, that Pieralberto had not been aware of the danger and that the warning measures would probably have been effective, and consequently that the omission had been the cause of the incident. Appeal upheld. 

MBATHA AND OTHERS v JOHANNESBURG CITY AND OTHERS 2015 (4) SA 591 (GJ)

Local authority — Housing — Temporary emergency accommodation — Municipality offering flood-affected residents of informal settlement temporary shelter in community hall — Facilities inadequate in circumstances — Temporary accommodation to be provided in terms of emergency housing programme contained in National Housing Code — Housing Act 107 of 1997, s 9(1). The impoverished residents (applicants) of an informal settlement on a flood- line — the area was earmarked for upgrading — had been severely affected by excessive

flooding. The City of Johannesburg (the City) had offered to provide temporary shelter in a local community hall. Dissatisfied, the applicants brought an urgent application seeking, inter alia, immediate relocation to a site identified by the City in terms of its emergency housing programme contained in the National Housing Code 2009 (NHC). The City was sceptical of the need for emergency flood relief and resisted the application, suggesting that the main goal was permanent relocation. Held, that, a proper scrutiny and reading of the provisions of the NHC — clause 2.3.1 plainly refers to 'emergency situations of exceptional housing' — was in favour of the applicants. In addition, the City was obliged, in terms of s 9(1) of the Housing Act 107 of 1997, to ensure that conditions not conducive to the health and safety of inhabitants, like the applicants, were I prevented or removed. To provide the applicants with temporary emergency accommodation at the community hall until the development was completed would create issues relating to their constitutional rights. This was untenable. In terms of both the emergency housing programme and Disaster Management Act government institutions were anyway supposed to have the appropriate mechanisms in place. The application was accordingly successful.

GB MINING AND EXPLORATION SA (PTY) LTD v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE 2015 (4) SA 605 (SCA)

Revenue — Assessment to tax — Objection — Whether competent if assessment based on incorrect information supplied by taxpayer — Burden of proof when objecting against such assessment — Income Tax Act 58 of 1992, s 81(1).

Section 81(1) of the Income Tax Act 58 of 1992 (the Act) provided that any taxpayer 'aggrieved by any assessment' may object to such assessment in the prescribed manner. Here the taxpayer had raised objections in terms of this section to revised assessments over four tax years, contending that they were based on incorrect information that the taxpayer itself had supplied to the Commissioner of the South African Revenue Service (the Commissioner) in its tax returns. The objections having been disallowed by the Commissioner — one in full and the others partially — the taxpayer unsuccessfully appealed to the tax court. In the taxpayer's further appeal to the Supreme Court of Appeal, the issues were —   (1)   whether, given that s 79(A) of the Act specifically dealt with reduction of assessments based on incorrect information provided in the taxpayer's return, it was permissible for the taxpayer to object in terms of s 81(1) rather than relying on s 79(A); and   (2)   whether, given that s 81 of the Act placed the burden of proof on the taxpayer, the onus of satisfying the Commissioner that the information supplied by the taxpayer was incorrect (and that the reduction was therefore justified) had been discharged.Held as to (1):A taxpayer who had been the cause of an incorrect assessment by the Commissioner could, as an alternative to relying on s 79A, claim to be 'aggrieved' thereby and object to the assessment in terms of s 81. This was because a taxpayer whose taxable income had been determined on an erroneous basis was always 'aggrieved' even if the source of error was entirely attributable to him; and also because the powers of the Commissioner under s 79A could be exercised 'notwithstanding the fact that no objection [had] been made', suggesting that an

alternative route for the taxpayer to follow was by way of objection and, if necessary, appeal. Held as to (2):The onus of satisfying the Commissioner that the information furnished was incorrect and that a reduction in the assessment was justified was on the taxpayer. In order to discharge this onus, additional evidence would have to be placed before the Commissioner, the nature of which would depend upon the facts of each case and particularly the nature of the erroneous information supplied to the Commissioner. Such evidence would have to explain the precise nature and extent of the incorrect information and how it was included, and all relevant supporting documentation to verify the correct information would have to be submitted. So where the contested determinations were based upon incorrect information supplied to the Commissioner by the taxpayer — whether in the form of balance sheets and accounts or otherwise — the taxpayer must show that it provided credible and reliable evidence to explain the error and substantiate what it maintained was the true position.This the appellant taxpayer had failed to do, and the appeal was accordingly dismissed insofar as it related to the Commissioner's determinations based on incorrect information furnished by the taxpayer.

ONE STOP FINANCIAL SERVICES (PTY) LTD v NEFFENSAAN ONTWIKKELINGS (PTY) LTD AND ANOTHER 2015 (4) SA 623 (WCC)

Company — Contracts — Authority — Internal formalities — Presumption of compliance (Turquand rule) — Codification of rule in Act — Provision to be construed consistently with conventional scope of Turquand rule — Companies Act 71 of 2008, s 20(7). Company — Contracts — Authority — Interplay between actual authority, ostensible authority, constructive notice of company articles to third parties, and Turquand rule — Turquand coming to outsider's aid, subject to implications of constructive knowledge of articles, once he makes out case for ostensible authority — Companies Act 71 of 2008, s 20(7) not changing common law on ostensible authority I

In an application for the provisional liquidation of Neffensaan the issue was whether the applicant, OSF, had locus standi as creditor by virtue of claims under three agreements it had concluded with Neffensaan. Since OSF was unable to show on the affidavits that the directors who signed the agreements on Neffensaan's behalf, M and C, had actual authority to bind Neffensaan, the question became whether Neffensaan was nevertheless bound by ostensible authority and the Turquand rule, or by s 20(7) of the Companies Act 71 of 2008 (the Act). OSF stated that it had acted in good faith and under the impression that M and C were, as directors of Neffensaan, duly authorised to conclude the agreements, and for the rest it relied on the Turquand rule. (The application was opposed by CRL, an intervening creditor.)The Turquand rule (also known as the indoor-management rule) provides that an outsider transacting with a company may assume that its officers have the powers ordinarily associated with their positions, thus relieving him from having to investigate whether the company's acts of internal management were regular. The Turquand rule has an ameliorative effect, from the perspective of the outsider, on the rule of constructive notice, under which knowledge of the contents of the company's

articles is imputed to him. The rule of constructive notice was abolished by s 19(4) of the Act.Section 20(7) of the Act provides that an outsider may presume that the company has complied with any 'formal and procedural requirements' unless he knew or ought to have known of a failure to do so.Since the first of the agreements — a suretyship agreement — was concluded before the coming into force of the Act, and the others — two loan agreements — thereafter, the court had to consider the applicable law under both regimes.The law before the ActThe Turquand rule would come to an outsider's aid only once he had, subject to the implications of his constructive knowledge of the company's articles, made out a case for actual or ostensible authority.The law after the ActSection 20(7) was not intended to change the law governing the circumstances in which a company would be bound on the basis of ostensible authority. Hence the expression 'formal and procedural requirements' must be construed consistently with the conventional scope of Turquand. But the abolition of constructive notice means that a company may now be so bound even if the official went beyond the potential scope of his authority under the articles.

Application of the law to the present caseAuthority to conclude the suretyship agreement: The absence of evidence regarding the contents of Neffensaan's articles precluded OSF's reliance on the Turquand rule. This left only ostensible authority, without the refinements of constructive knowledge and the Turquand rule being brought to the enquiry. But OSF was, by virtue of its denial of actual knowledge of Neffensaan's articles, precluded from relying on the ostensible authority of M or C to bind Neffensaan to the suretyship agreement. OSF was, moreover, unable to point to conduct of Neffensaan by which it held out that M or C was authorised to conclude this sort of agreement on its behalf. In the result OSF's reliance on the suretyship agreement would fail. Authority to conclude the loan agreements: Given the overlap between the Turquand rule and s 20(7), the absence of evidence regarding the contents of Neffensaan's articles similarly precluded a reliance on s 20(7). As was required under the former regime, the outsider had to establish that he was dealing with someone who had actual or ostensible authority to bind the company, for only in those circumstances would he be able to say that he was dealing with the 'company' as intended in s 20(7). Given the lack of ostensible authority on the part of M and C, OSF's reliance on the loan agreements would fail as well. Application for provisional liquidation accordingly dismissed.

SACR AUGUST 2015

DIRECTOR OF PUBLIC PROSECUTIONS, WESTERN CAPE v PARKER 2015 (2) SACR 109 (SCA)

Theft — What constitutes — Misappropriation of VAT — Whether misappropriation by VAT vendor of VAT collected on behalf of Sars sustaining charge of common-law theft — Value – Added Tax Act 89 of 1991, ss 28(1)(b) and 58. 

A VAT vendor who misappropriates an amount of VAT which it collected on behalf of the South African Revenue Service (Sars) cannot be charged with the common-law crime of theft.This is because the Value-Added Tax Act 89 of 1991 is a scheme with its own directives, processes and penalties, and does not confer on the vendor the status of a trustee or a tax-collecting agent of Sars — the basis advanced for such misappropriation constituting theft. Instead, the Act creates a sui generis debtor – creditor relationship which entitles Sars to sue a non-paying vendor for payment and/or to have such vendor charged with s 58 offences which, significantly, does not include common-law theft.

S v COCK;S v MANUEL 2015 (2) SACR 115 (ECG)

Rape — Sentence — Life imprisonment — Minimum sentence in terms of Criminal Law Amendment Act 105 of 1997 — Gang rape — Different treatment accorded to first participant to be convicted for participation in gang rape to that of subsequent participants convicted — Court pointing out anomaly but holding that it was bound by Supreme Court of Appeal authority — Sentence of life imprisonment imposed under prescribed minimum sentence legislation accordingly set aside but, in exercise of court's common-law discretion, new sentence of life imprisonment imposed.

In two separate appeals to the full division against sentences of life imprisonment imposed upon the two appellants arising from their having raped the complainant in the execution or furtherance of a common purpose, the court felt obliged to comment on the anomalous situation brought about by the judgment of the Supreme Court of Appeal in the matter of S v Mahlase [2011] ZASCA 191. The anomaly that arose in the present situation was that in terms of this decision the appellant in the Cock matter, being the first accused to be convicted and sentenced, was liable to a minimum prescribed sentence of only ten years' imprisonment, whereas any other accused who was thereafter convicted as having been part of the gang which raped the complainant (the appellant in the Manuel matter) would be liable to the prescribed minimum sentence of life imprisonment, it now having been established that the complainant had indeed been raped more than once, ie by two men. The court held that it was bound by this decision and that the sentence of life imprisonment imposed on the appellant in the Cock matter had to be set aside. The court held, however, that in the exercise of its common-law jurisdiction it was free to impose any sentence in excess of the prescribed minimum sentence of ten years' imprisonment and, having regard to all the circumstances, including the fact that the complainant was gang raped, the only appropriate sentence was that of life imprisonment. In respect of the appellant in the Manuel matter the court held that there were no substantial or compelling circumstances which would justify the imposition of a lesser sentence than life imprisonment and the appeal in respect of this appellant was accordingly dismissed. As a new sentence of life imprisonment was imposed on the appellant in the Cock matter, that sentence had to be backdated to the date of the imposition of the original sentence. 

S v MOTSEPE 2015 (2) SACR 125 (GP)

Defamation — Elements of offence — Unlawful and intentional publication of matter concerning another which tended to injure his or her reputation — Journalist appealing conviction of defamation — Published story defamatory of magistrate — Based on incorrect facts which journalist believed to be true — Lacking intention — Appeal succeeding. Defamation — Whether offence consonant with Constitution — — Various amici seeking to have common-law crime of defamation declared unconstitutional in regard to media — Not succeeding — Whilst existence of criminal defamation undoubtedly limited right to freedom of expression, such limitation was reasonable and justifiable in open and democratic society and was consistent with criteria laid down in s 36 of Constitution. 

The appellant appealed against his conviction in a magistrates' court for criminal defamation. The circumstances of the conviction were that the appellant, a journalist, had written an article for a major newspaper dealing with two sentences imposed by a white magistrate, one on a black man and the other on a white woman, which suggested that the magistrate was biased. It was common cause that the articles were published and, on a proper reading, it clearly injured the reputation of the magistrate, and only intention and unlawfulness were in issue. The evidence was to the effect that the appellant had relied on information received from an attorney and that he had not verified the information. On appeal the court held that, on the evidence, the appellant was clearly negligent in not taking further measures to ensure that the information he received was correct. The court held, further, that the court a quo was correct in holding that the appellant had acted hastily and had thrown all caution to the wind and in this regard the finding that he had acted recklessly was correct. Recklessness, however, did not equate to intention. Held, further, that from the evidence it appeared that the appellant had relied on the truth of the statement and deemed it in the public interest to publish the facts. Once a person thought that the published words were covered by one of the recognised defences to a claim for defamation, such person lacked the necessary intention required for a conviction on criminal defamation. In the premises the state had failed to prove intentional publication beyond a reasonable doubt and the conviction could not stand. Fourteen institutions applied to intervene in the appeal as amici curiae in the interests of the media and their concern regarding the effect of criminal defamation laws on the freedom of the media and the constitutionality of criminal defamation laws. They contended that the civil remedy for defamation provided adequate means to deter and prevent defamation by the media. They relied on a number of international instruments and international case law to support their argument in favour of the repeal of criminal defamation laws against the media. They contended that the common-law crime of defamation was not consistent with the Constitution and amounted to an unjustifiable limitation on the right to freedom of the media. They requested that the court should develop the common law to limit the crime to the publication of defamatory statements by persons who were not members of the media.Held, that there could be no doubt that the right to freedom of the media was of critical importance and the media stood in a distinct position relative to the general right to freedom of expression. Held, further, that the request that the criminal defamation law be declared unconstitutional undermined the Constitution and the Promotion of Equality and

Prevention of Unfair Discrimination Act 4 of 2000. Almost all of the international instruments and international case law referred to by the amici in support of their argument involved the condemnation of extreme situations of governmental abuse of journalists. These examples did not find application in South Africa where journalists and citizens enjoyed the benefit of the law and the Constitution. Held, further, that freedom of expression did not have a superior status to other rights under the Constitution. Held, further, that a criminal sanction was indeed a more drastic remedy than the civil remedy but that disparity was counterbalanced by the fact that the requirements for succeeding in a criminal defamation matter were much more onerous than in a civil matter and these onerous requirements in the case of criminal defamation would probably be the reason for the paucity of prosecutions for defamation compared to civil defamation actions. Held, further, that prosecution of media journalists who committed a crime of defamation was not inconsistent with the Constitution. In exercising their rights under s 16 of the Constitution, the media should also guard against rights of others, as freedom of expression was not unlimited and had to be construed in the context of other rights, such as the right to human dignity.Held, further, that the amici failed to make out a case for the decriminalisation of defamation. Even though the defamation crime undoubtedly limited the right to freedom of expression, such limitation was reasonable and justifiable in an open and democratic society and was consistent with the criteria laid down in s 36 of the Constitution. The appeal was accordingly upheld and it was declared that the common-law crime of criminal defamation as pertained to the media was consistent with the Constitution.

LAPANE v MINISTER OF POLICE AND ANOTHER 2015 (2) SACR 138 (LT)

Arrest — Without warrant — Further detention of accused — Constitutional duty on police officers and public prosecutors handling case to ascertain reasons for further detention — Such reasons or lack thereof to be placed before court — Housebreaking implements found 'near' plaintiff not justifiable reason — Acted mala fide — First and second defendants liable to plaintiff.Prosecution — Prosecutor — Powers and duties of — Prosecutor unable to assist court to assess whether prosecution and detention were justified in circumstances — Housebreaking implements found 'near' plaintiff not justifiable reason to refuse bail — Aware that without proof of presence of implements conduct would amount to mala fides — Prosecutors did not apply their minds, rubber-stamped requests of first defendant — Acted mala fide — First and second defendants liable to plaintiff.

The plaintiff instituted action against the first defendant, the Minister of Police, and the second defendant, the Director of Public Prosecutions, for damages arising out of an unlawful arrest, detention and prosecution. He was detained for 2 years and 13 days without being granted bail before the charges were withdrawn against him without going to trial. The plaintiff testified that he was on his way home from a nearby tavern when he was arrested. He alleged that he was denied any information as to the reason for his arrest and that he was subsequently tortured and questioned about a housebreaking and robbery. He was denied bail based on the submissions made by the investigating officer and the prosecutor that he had been found in the

company of three other men and that housebreaking instruments were found near him. The other men were released on bail or on a warning but he was continually denied bail. It appeared that on the night in question an informer had tipped off the police that another robbery was to be committed that night in the area where there had recently been a spate of robberies. Despite the fact that the plaintiff had an alibi that was very easy to check, the police relied entirely on the information of an informer. The arresting officer could not say how close the alleged housebreaking instruments were to the plaintiff and his fingerprints were not found on them. The control prosecutor who took the decision to oppose bail relied entirely on the contents of the docket in this regard and to inform the decision that the plaintiff should be charged. She was unable to answer or explain why the plaintiff was treated differently — at the time of his bail application — from the others who were given bail or allowed to go on a warning.Held, that the prosecutor's reliance on the alleged presence of housebreaking implements near the plaintiff was not a justifiable reason to prosecute him and refuse bail. This was not simply an error of judgment. Her conduct and those of the prosecutors who took over were activated by mala fides, as they must have known that without the proof of the presence of housebreaking implements, as well as a failure to follow up on the plaintiff's explanation about his presence at the tavern, their conduct would amount to mala fides. Held, further, that the prosecutor and the relevant prosecutors seeking the many postponements were responsible for the unfortunate and lengthy incarceration of the plaintiff. Not one of the prosecutors had applied their minds to the case facing the plaintiff but simply rubber-stamped the request by the police. In the circumstances, the employees of the first and second defendants did not exercise their powers in a bona fide manner and the first defendant was liable to the plaintiff for the unlawful arrest and detention, while the second defendant was liable for the prosecution and continued withholding of bail. 

HO t/a BETXCHANGE AND ANOTHER v MINISTER OF POLICE AND OTHERS 2015 (2) SACR 147 (GJ)Search and seizure — Search warrant — Warrant issued in terms of Counterfeit Goods Act 37 of 1997 — Founding papers — Application for copies of documents or statement that led to warrant being issued — Person entitled to such information as part of judicial oversight of state's intrusion into individual's privacy — Form of such application not necessarily by way of rule 53 review but any procedure that was orderly and conducive to expeditious litigation acceptable — Relief justified in order to take steps to protect dissemination of private information to prejudice of applicant.

The two applicants were related companies whose businesses had been subjected to a search by the South African Police Service in terms of a search warrant that had been issued by a magistrate under the Counterfeit Goods Act 37 of 1997. The applicants operated a bookmaking business at two premises which were licensed to sell alcohol which the patrons apparently consumed while betting and watching horse racing screened by MNet on television sets via satellite signals fed through a decoder. The complaint which led to the issue of the search warrant had been initiated by the twelfth respondent, Tellytrack, which filmed the horse races and streamed the images to MNet. Tellytrack had recently changed its conditions of

supply to MNet by confining its open viewing to the home market and requiring businesses to pay for a separate licence to screen the races to their customers in pubs and clubs. This change related to a dispute between the applicants and Tellytrack which was being litigated separately. The applicants applied in the present proceedings, pending the application to set aside the search warrants, to order the respondents to deliver a copy of the complaint affidavits or statements used in support of the applications for the warrants of search and seizure. The applicants had requested that the affidavits or statements be supplied to them but the respondents had refused to supply them and contended that the applicants' approach to the court was the wrong way to compel disclosure, and until they were compelled in the appropriate form they would refuse to disclose the documents. They argued that the applicants would be entitled to the documents upon the bringing of a review application in terms of rule 53 of the Uniform Rules to set aside the magistrate's decision to issue the warrants.Held, that if, as it seemed to be conceded, the applicants had a right to the documents and the only real dispute was the procedure by which they had to be disgorged, it followed that unless the procedure adopted by the applicants could be faulted as being inimical to orderly litigation, no reason existed to proscribe it. It seemed that a rule 53 approach was appropriate when the decision-maker had to go to the trouble to compose a 'record', but a rule 6 application was appropriate when the documents sought were unequivocally described and were already in existence, on the shelf, so to speak, awaiting only the photocopier's caress, to be produced and handed over as in the instant case. Held, further, that the very purpose of requiring judicial oversight over the issue of the warrant to enter, search and seize was to protect a person's right to privacy and to subject to judicial scrutiny and oversight a belief by the police, however bona fide, that they really had a need to invade a person's privacy and that they had shown a cogent basis for a lawful invasion to be authorised, because not every alleged crime justified a search warrant to procure evidence. Such considerations pointed towards any person having a right of access to the founding papers in respect of a search warrant, as part and parcel of the broader right to privacy and freedom from arbitrary state action, values which permeate the Constitution. Held, accordingly, in any exercise to assert the right to privacy and freedom from arbitrary power, where a procedure that was orderly and conducive to expeditious litigation was selected, it was improper to resist disclosure. The insistence on the use of a rule 53 procedure was inappropriate, and the idea of awaiting a prosecution misdirected, and the relief had to be granted. The court ordered accordingly.

S v JR AND ANOTHER 2015 (2) SACR 162 (GP)Child — Offences against — Deliberate neglect of a child — Ambit of section in respect of persons who may commit offence — Legislature having cast net wide and section covers any person who may even temporarily or partially and voluntarily be caring for the child — Children's Act 38 of 2005, s 305(3)(a).Child — Offences against — Deliberate neglect of a child — Sentence — Biological mother of child treated more severely than actual abuser as she F had greater responsibility to child — Children's Act 38 of 2005, s 305(3)(a).Rape — Sentence — Rape of minor — Mother convicted as accessory after fact — Sentenced to seven years' imprisonment on this count — Mother's boyfriend, convicted of having raped child, sentenced to life imprisonment. 

The two appellants were convicted in a regional magistrates' court of assault with intent to do grievous bodily harm (count 1); deliberately neglecting to attend to the injuries of the 13-month-old child (D) in contravention of s 305(3)(a) of the Children's Act 38 of 2005 (count 2); and a contravention of s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 by raping (count 3). The first appellant, the biological mother of the child, was sentenced to ten years' imprisonment in respect of count 1; eight years' imprisonment for count 2; and seven years' imprisonment as an accessory to rape in respect of count 3. Five years of the sentence for count 2 was ordered to run concurrently with the sentence on count 1. The second appellant, the first appellant's boyfriend, was sentenced to 10 years' imprisonment for the first count, five years' imprisonment for count 2; and to life imprisonment in respect of count 3. After considering the evidence the court upheld the findings of the court a quo that both appellants were guilty on all three counts. In coming to this conclusion the court had to inter alia consider a submission by the second appellant that he was not in any way responsible for D and that therefore the conviction brought out against him on count 2 was wrong in law as s 305(3)(a) did not apply to him. As regards sentence, the first appellant contended that the magistrate had erred in not taking counts 1 and 2 together for the purpose of sentence as the offence of abuse stemmed directly from the assault. She also submitted that the disparity between the sentence of eight years' imprisonment imposed on her for count 2, as compared to the sentence of five years' imprisonment imposed on the second appellant, was unfair. She furthermore contended that the sentence of seven years' imprisonment imposed on her for being an accessory to rape was excessive. It was contended for the second appellant, with respect to the appeals against the sentences imposed, that there was no evidence that the child had suffered any psychological trauma; that the appellant showed remorse; and that he had limited intellectual capacity; and that these factors cumulatively justified a sentence less than the minimum sentence of life imprisonment.Held, as to the application of s 305(3)(a) to the second appellant, that the provisions of the section were clear and that even a person who voluntarily cared for a child, whether temporarily or partially, may be guilty of the offence of deliberately neglecting a child. It was clear that the legislature had sought to spread the net cast by the subsection as widely as possible in relation to who was deemed to be a caregiver. It seemed that even if a person were a guest at the house of another who had a small child and the guest voluntarily cared for the child for a few minutes while the parent absented him- or herself, that guest fell within the ambit of the section and this was not strange if one had regard to the constitutional imperative in s 28(2) of the Constitution, which provided that a child's best interests were of paramount importance in every matter concerning the child. Held, further, as to the sentence imposed on the first appellant for counts 1 and 2, that the magistrate had taken into consideration the fact that the convictions on those counts stemmed from one continuous criminal transaction, and that was reflected in the order that those sentences be served, in part, concurrently. In doing so, the magistrate had not erred in any way.Held, further, as to the disparity in sentences for count 2, that the magistrate had correctly taken into account the different positions held by the respective appellants over the child, in that she was the biological mother of the child whereas the second appellant was not D's father, and that she had a greater responsibility towards the child.

Held, further, as to the first appellant's argument that the sentence on count 3 was excessive, given that her liability was only that of an accessory, that the crime of being an accessory after the fact was one that was entirely sui generis and its seriousness did not depend on the nature of the crime which the main perpetrator committed, but on the manner in which an attempt was made to enable the perpetrator to escape liability. The sentence imposed was appropriate. Held, further, that the child could not express herself verbally so no psychological profile could be drawn, but it appeared from the victim impact report that the child still experienced nightmares from time to time and that this could be a consequence of the abuse she had suffered. The court a quo had correctly rejected the submission that the second appellant showed remorse, and the suggestion that he had limited intellectual capacity was not his defence, nor did he tender it in mitigation as an explanation for poor judgment, which may have been a substantial and compelling circumstance, but instead he refused to take responsibility and showed no remorse. The second appellant's personal circumstances were outweighed by the seriousness of the offence and the need to protect society from any possible repetition of this kind of abuse. The appeal against the sentence was accordingly dismissed. 

S v SEBOFI 2015 (2) SACR 179 (GJ)

Police — Duties of — Duty to investigate — Police officer involved in investigation ought to appreciate that axiomatic line of enquiry was circumstances which might offer corroboration or throw suspicion on truth or accuracy of complaint — Similarly, any response by accused is relevant and must be taken seriously and investigated — Investigating officers should ideally participate in running and presentation of evidence to court and should be active in assisting prosecution.Trial — The prosecution — Duties of — Presentation of evidence — Case cannot be presented by pouring out jumble of random facts — Fair trial needs to be coherent and orderly — In matters as serious as rape charge, active role for investigating officer ought to be mandatory in terms of standard prosecutorial and police procedures.Appeal — Powers of court on appeal — Remittal to court a quo in terms of s 304(2)(c)(v) of Criminal Procedure Act 51 of 1977 — Court not satisfied on appeal that fair trial had taken place and expressing no view on guilt or innocence of appellant — Highly relevant aspects not pursued in court a quo — Matter remitted and regional magistrate required to call for evidence in terms of s 167 and s 186 of CPA.

The appellant was convicted in a regional magistrates' court of two counts of rape and was sentenced to life imprisonment. He appealed against the convictions as well as the sentence. After evaluating the evidence the court held that it could not be satisfied that a fair trial had taken place but expressed no view on the guilt or innocence of the appellant. The court remarked that the calibre of the case presentations, both prosecution and defence, was unacceptable for a case of this seriousness. A prosecutor could not present a case by just pouring out a jumble of random facts. This was unfair to a court and it retarded the aim of a fair trial which, apart from other factors, needed to be coherent and orderly. The defence fared little better: the cross-examination hardly plumbed the body of evidence and appeared to have no plan or objective and was either blind or inattentive to several material or

potentially material details. The narrative of the testimony referred to relevant aspects which were ignored or overlooked. An adversarial process was founded on proper preparation and commitment to testing the testimony available. It was not served by treating the process as a clerical chore. These disturbing features troubled the court and if the forensic standards exhibited in this trial were typical of the regional court, it begged the question whether the regional court was a fit forum to hear matters of such a serious nature. Victims of rape, as a class of vulnerable people in our society, ought to have a reasonable expectation that their cases were taken seriously enough to be investigated properly and tried at a standard so that the guilty did not wriggle free because of superficial attention to detail by those who were responsible to protect them. In rape cases the most familiar scenario would be that the victim was a single witness and it was therefore a foreseeable and generic aspect of such cases. Accordingly any police officer who was involved ought to appreciate that an axiomatic line of enquiry was the circumstances which might offer corroboration or throw suspicion on the truth or accuracy of the complaint. Similarly, when a person accused of rape was confronted, what he said in response, whether a flat denial, an explanation or alibi, or whether he said nothing whatever, was relevant. Whatever rebuttal he offered had to be taken seriously and investigated and reported on in evidence to demonstrate whether it supported or destroyed the denial. Medical forensic tests had to be properly processed and reported on when they could resolve critical issues which might exclude a suspect from culpability.

The court remarked further that investigating officers should, ideally, participate in the running and presentation of the evidence to court and should be active in assisting the prosecution. Often versions were disclosed for the first time during cross-examination of state witnesses, or aspects of a witness's evidence required amplification, qualification or simply explanation. These matters needed to be followed up and, if necessary, postponements sought to investigate the correctness or otherwise of the facts in question. A matter as serious as a rape charge, carrying the drastic sanctions which followed upon a conviction, fell into the category of matters in which an active role for the investigating officer ought to be mandatory in terms of standard prosecutorial and police procedures. In the circumstances the court held that the interests of justice required remedial action in the present matter in the form of setting aside the conviction and remitting the matter for further evidence. The verdict of guilty was set aside and the case remitted to the trial magistrate in terms of the provisions of s 304(2)(c)(v) of the Criminal Procedure Act 51 of 1977, and the trial was to be reopened and the magistrate was to call for evidence in terms of ss 167 and 186 of the Criminal Procedure Act 51 of 1977 about the specimens taken at the medical examination and the laboratory test results, as well as alleged cellphone communications of the appellant and such records thereof that might exist.

S v SEHOOLE 2015 (2) SACR 196 (SCA)

 Prosecuting authority — Prosecutor — Authority of — Charge — State having discretion regarding prosecution and pre-trial procedures and could decide inter alia whether or not to institute prosecution — No statutory provision compelling state to charge for more serious offence where more than one option.

Arms and ammunition — Unlawful possession of ammunition in contravention of s 90 of Firearms Control Act 60 of 2000 — Proof that items are ammunition — Although ballistics report would provide proof, no authority compelling state to produce such evidence — Where ammunition had been found inside properly working firearm, it could be deduced to be ammunition related to firearm.

The respondent was convicted in a regional magistrates' court of contravening ss 3 and 90 of the Firearms Control Act 60 of 2000, in that he was found in unlawful possession of a firearm and ammunition. He was sentenced to ten and five years' imprisonment, respectively, for the possession of the firearm and ammunition. The sentences were ordered to run concurrently. He appealed to the High Court against the convictions and sentences. The High Court set aside the convictions and sentences on the ground that the respondent should have been charged with the more serious offence of a contravention of s 4 of the Act, having been in possession of a firearm, the serial number of which had been filed off. As regards the conviction for being in possession of the ammunition, the High Court held that there was no evidence before the court that the items found in the possession of the respondent constituted ammunition. The state appealed against the judgment of the court on questions of law in terms of s 311(1) of the Criminal Procedure Act 51 of 1977, with the leave of the court a quo.Held, as to the issue of the correct charge, that the state, as dominus litis, had a discretion regarding prosecution and pre-trial procedures. The state could elect to charge a person with a less serious offence. In the present case the state had so elected under that general prohibition of possession of a firearm without a licence in terms of s 3, rather than under s 4 of the Act. There was no statutory provision which compelled the state to charge a person with the more serious offence. Held, further, that, ordinarily, courts were not at liberty to interfere with the prosecutor's discretion unless there were truly exceptional circumstances for doing so. In the present case the state's decision to prosecute the respondent under s 3 of the Act did not fall into any category warranting the court to interfere and to be prescriptive regarding the charge that was preferred.  Held, further, as to the charge of the possession of ammunition, that, whilst it was undoubtedly so that a ballistics report would provide proof that a specific object was indeed ammunition, there was no authority compelling the state to produce such evidence in every case. Where there was acceptable evidence disclosing that ammunition had been found inside a properly working firearm, it could, in the absence of any countervailing evidence, be deduced to be ammunition related to the firearm. It followed that the High Court had erred in finding that a ballistics report was the only manner of proving that the offence had been committed. The appeal was accordingly upheld and the order of the High Court was set aside in its entirety, and the convictions and sentences of the regional court were reinstated, and the matter was remitted to the High Court for a de novo hearing on the respondent's appeal.

S v MALIGA 2015 (2) SACR 202 (SCA)

Trial — Presiding officer — Duties of — Discharge of accused at end of state's case — State not making out prima facie case — Presiding officer must raise this question mero motu, irrespective of whether accused represented or not.

Prosecuting authority — Prosecutor — Powers and duties of — Paramount duty of prosecutor not to secure conviction but to assist court to ascertain truth and dispense justice — Prosecutor has duty to alert court to possible inadmissibility of evidence that state wished to lead and in appropriate circumstances to request trial-within-a-trial in order to determine admissibility of statements.

The appellant was charged in the Venda Provincial Division in January 2000 with the murder of his wife. The state produced in evidence a statement made by the appellant to the effect that he had shot his wife during an argument. The statement was elicited by the investigating officer, a sergeant in the South African Police Service and another sergeant (who were accordingly not I commissioned officers as envisaged by s 334 of the Criminal Procedure Act 51 of 1977), who did not warn the appellant of his constitutional rights as envisaged in s 35 of the Constitution. The statement was not confirmed or reduced to writing in the presence of a magistrate or justice. Despite this, there was no objection on the part of the appellant's legal representative to the introduction of what amounted to inadmissible evidence. An application was brought in terms of s 174 for the discharge of the appellant at the end of the state's case but this was refused. The appellant was convicted and was sentenced to 48 years' imprisonment. He appealed against his conviction and sentence and the appeal came before the court only in 2014 without any explanation being offered for the delay of 12 years between conviction and appeal.Held, that the court had a duty to ensure that the accused was properly defended and that his or her constitutional rights were not negatively affected, either by commission or omission. If at the end of the state's case, the state had not made out a prima facie case, the presiding officer had to raise the question of a discharge mero motu, especially in the absence of an application for discharge. This duty was not dependent on whether the accused was represented or not.Held, further, that even more important was the role of the prosecutor. A prosecutor stood in a special position in relation to the court. The paramount duty of a prosecutor was not to procure a conviction but to assist the court in ascertaining the truth. In the instant case the prosecutor was duty-bound to alert the presiding officer of the possible dangers which were lurking in admitting the warning statement. The prosecutor, who was the only person likely to know exactly what evidence he was about to place before court, ought to have at least sought a ruling on the admissibility of the warning statement and the statement allegedly made by the policeman who arrested him. The written statement introduced to the court was a confession and could not have been admitted as it did not comply with the legal formalities. If the prosecutor were intent on having the evidence admitted, at the very least he should have requested a trial-within-a-trial in order to determine the admissibility of the statement. Held, further, that the appellant had clearly been lured into testifying and consequently did not receive a fair trial as envisaged in s 35 of the Constitution. The conviction accordingly had to be set aside. 

S v GROBLER 2015 (2) SACR 210 (SCA)

Fraud — Sentence — Correctional supervision — Generally — Fraud committed by misrepresenting that investments were going into JSE listed company whereas misappropriated for himself — Sentence of three years' correctional supervision with

strict supervision regime, entailing community service, monitoring and house arrest, appropriate sentence where 13 years had elapsed since accused charged — Accused first offender with tertiary qualification who had at all times been economically active — Sentence appropriate.

The appellant was convicted in a regional court of 11 counts of fraud involving an amount of approximately R1,5 million. The fraud had been committed by the appellant misrepresenting to investors that their money was being invested in a JSE listed company whereas he was taking the money for himself. The counts were all taken together for the purposes of sentencing and he was sentenced to three years' correctional supervision in terms of s 276(1)(h) of the Criminal Procedure Act 51 of 1977 and, in addition, was sentenced to five years' imprisonment suspended in its entirety for five years on certain conditions. The conditions included the reimbursement of the complainants to the full extent of their financial loss. When he appealed to the High Court against his conviction his legal representative was given notice that, in the event of the appeal against the conviction failing, he had to be prepared to address the court on the suitability of the sentence. On appeal the High Court confirmed the conviction and set aside the sentence and replaced it with one of five years' direct imprisonment. He appealed against this sentence. It appeared that the appellant was a first offender. He was an educated man with a tertiary qualification and was married with three dependent children. The charges had been laid against him in 2000 and he had endured emotional and mental suffering since then. On appeal,Held, that there was no indication in the judgment of the High Court why it saw fit to interfere with the sentence imposed by the regional court. In arriving at what it thought was an appropriate sentence, the regional court had been aided by a comprehensive correctional supervision report with a strict correctional supervision regime, entailing inter alia community service, monitoring by the commissioner, and included rehabilitative programmes and house arrest for three years. Held, further, that it was difficult to understand how the High Court had come to the conclusion that direct imprisonment was suitable in the light of the carefully reasoned judgment of the trial court. The reasoning of the High Court that because another person would be making the payments for the reimbursement of the complainants this would mean that the appellant would get off 'scot-free', was flawed. Should the appellant fail to make any payment, he would be in breach of the conditions imposed and the sentence of five years' direct imprisonment would then come into operation. There was no evidence before the High Court to suggest that he would not have to repay his benefactor. Held, further, that, pragmatically, it would be unreasonable to incarcerate the appellant, who had been an economically active member of society for the past 13 years since he was charged, and who had not committed any other offences during this period. His circumstances provided a compelling case for a non-custodial sentence and the regional court had clearly not misdirected itself when it imposed a finely tuned sentence without resorting to imprisonment. The appeal accordingly succeeded and the conviction and sentence imposed by the regional court were confirmed.

All SA LAW REPORTS August 2015

Part One

Boost Sports Africa (Pty) Ltd v South Africa Breweries (Pty) Ltd [2015] 3 All SA 255 (SCA)

Civil procedure – Security for costs – Whether an incola company can be compelled to furnish security for costs in light of the fact that the new Companies Act 71 of 2008 did not contain a similar provision to section 13 of the previous Companies Act 61 of 1973 which used to cater for that – Although no corresponding provision to section 13 in the new Companies Act, a court does have the inherent power to regulate its own proceedings and an incola company, like an incola natural person, may accordingly be compelled to furnish security for costs, but only if the court is satisfied that the contemplated action is vexatious or reckless or otherwise amounts to an abuse.

Words and phrases – “abuse” – Con a misuse, an improper use, a use mala fide, a use for an ulterior motive.

Words and phrases – “vexatious” – Having dictionary meaning of “frivolous, improper: instituted without sufficient ground, to serve solely as an annoyance to the defendant”.

Based on an alleged breach of contract by the respondent, the appellant instituted action in the High Court.

Concerned that the appellant would not be able to meet an adverse costs order should it fail in the contemplated action, the respondent launched an application for security for its costs. The present appeal was against the granting of the order.

Held – An application for security for costs is governed by rule 47 of the Uniform Rules of Court. The rule, which deals with the procedure to be followed, applies to all cases where security is sought in the High Court. It deals with procedure and not with substantive law. It is the common law and the relevant statutory provisions that govern the substantive right.

The general rule of our law is that an incola plaintiff cannot be compelled to furnish security for costs, but a peregrinus may be called upon to do so, unless he can prove that he is possessed of immovable property of adequate value within the country. In the case of a company, until recently, there existed a statutory exception to the general rule that an incola plaintiff cannot be compelled to furnish security. Section 13 of the Companies Act 61 of 1973 sought to protect persons against liability for costs in regard to any action instituted by bankrupt companies. Its main purpose was to ensure that companies, who were unlikely to be able to pay costs and therefore not effectively at risk of an adverse costs order if unsuccessful, did not institute litigation in circumstances where they had no prospects of success thus causing their opponents unnecessary and irrecoverable expenses. So, if a company ordered to provide security for costs was unable to do so, it could have been prevented from proceeding with its action. The approach adopted had been that although the court was not bound to order security to be furnished, it should nevertheless do so unless special circumstances exist. The Companies Act 71 of 2008, which repealed the 1973 Act, does not contain an equivalent provision to section 13. As a result, the High Courts have recently had occasion to consider whether, absent a counterpart to section 13 in our new Act, an incola company can be ordered to furnish security

for costs. The courts have not been in agreement on that question. The present Court therefore approached the question as if the matter was res nova.

The starting point was the fact that the courts have the inherent power, derived from the Constitution, to regulate their own process as well to develop the common law. Secondly, it is a well-established principle of statutory construction that the Legislature must be taken to be aware of the nature and state of the law existing at the time when legislation is passed. The omission of a similar provision to section 13 from the 2008 Act, must therefore be taken (prima facie at least) to import a change of intention on the part of the Legislature.

Section 39(2) of the Constitution states that, when a court embarks upon a course of developing the common law, it is obliged to promote the spirit, purport and objects of the Bill of Rights. The court must undertake a two-stage enquiry. It should ask itself whether, given the objectives of section 39(2), the existing common law should be developed beyond existing precedent, and if so, how the development should occur and which court should embark on that exercise.

The onus is on the party seeking security to persuade a court that security should be ordered. In the absence of section 13, there can no longer be any legitimate basis for differentiating between an incola company and an incolanatural person. And as our superior courts have a residual discretion in a matter such as this arising from their inherent power to regulate their own proceedings, it must follow that the former can at common law be compelled to furnish security for costs. Accordingly, even though there may be poor prospects of recovering costs, a court, in its discretion should only order the furnishing of security for such costs by an incola company if it is satisfied that the contemplated main action (or application) is vexatious or reckless or otherwise amounts to an abuse.

In this case, the appellant had failed to show that an order compelling it to furnish security would have the effect of it being forced to terminate its action. The lack of candour by its shareholders, who were funding its litigation but were unwilling to assist it in putting up security for the respondent’s costs, was found to be telling. The appellant did not trade and had no assets. Moreover, it would not be in a position to meet an adverse costs order should one ultimately be granted against it. Therefore, the High Court was correct in making the order it did.

The appeal was dismissed.

Panamo Properties (Pty) Ltd and another v Nel NO and others [2015] 3 All SA 274 (SCA)

Business rescue proceedings – Effect of non-compliance by company with procedural requirements of sections 129(3) and (4) of Companies Act 71 of 2008 – Non-compliance does not automatically result in the business rescue being terminated, but constitutes a ground for bringing an application to court to set aside the resolution in terms of section 130(1)(a)(iii) – A court will only set aside such resolution if it is otherwise just and equitable to do so in terms of section 130(5).

The sole shareholder of the first appellant (“Panamo”) was a trust in which the first and second respondents were trustees. Panamo was a property-owning company owning a large property on which the trustees’ home was situated. The property was mortgaged in favour of the sixth respondent, but Panamo fell into arrears and judgment was taken against it. The hypothecated property was declared executable. In order to prevent a sale of the property and afford the trustees time to resolve Panamo’s financial problems, the trust resolved to place Panamo in business rescue. However, two years later, the trust sought an order declaring that the original resolution to place Panamo in business rescue had lapsed and consequently that the entire business rescue process was a nullity. The trust relied on its failure to comply with various requirements prescribed by sections 129(3) and (4) of the Companies Act 71 of 2008. The High Court upheld that argument, resulting in the present appeal.

Held – The appeal involved a determination of the correctness of the High Court’s construction of section 129(5).

Business rescue is a process aimed at avoiding the liquidation of a company if it is feasible to do so. There are two routes through which a company may enter business rescue, namely, by way of a resolution of its board of directors or by way of a court order. The Court was concerned with the former. Under section 129(1), the board of a company may resolve to begin business rescue proceedings if it has reasonable grounds for believing that the company is financially distressed and there appears to be a reasonable prospect of rescuing the company. Once a resolution is taken it only becomes effective when it is filed with the Companies and Intellectual Property Commission, Republic of South Africa. After the resolution has been filed, the company is obliged to take certain steps set out in sections 129(3) and (4) of the Act. The termination of business rescue proceedings is specifically dealt with in section 132(2). That provision does not say that the lapsing of the initiating resolution will cause the business rescue to terminate. Instead, it says in section 132(2)(a)(i) that business rescue is terminated when the court sets the initiating resolution aside. That focuses on the provisions of section 130 of the Act, which provide for an affected party to apply to court for the initiating resolution to be set aside in certain circumstances, including non-compliance with the procedural requirements of section 129. The court will only grant an order setting aside the initiating resolution if it is satisfied on a consideration of all the circumstances that it is just and equitable to do so. It was common cause that in this case there was a degree of non-compliance with those provisions. The Court held that non-compliance with the procedural requirements of sections 129(3) and (4) does not automatically result in the proceedings becoming a nullity.

Although the statutory provisions were poorly drafted, the Court pointed out that once it is appreciated that the fact that non-compliance with the procedural requirements of section 129(3) and (4) might cause the resolution to lapse and become a nullity, but does not terminate the business rescue, the legislative scheme of the sections becomes clear. The company may initiate business rescue by way of a resolution of its board of directors that is filed with CIPCSA. The resolution and the process of business rescue that it commenced, may be challenged at any time after the resolution was passed and before a business rescue plan is adopted on the grounds that the preconditions for the passing of such resolution are not present. If there is non-compliance with the procedures to be followed once business rescue

commences, the resolution lapses and becomes a nullity and is liable to be set aside under section 130(1)(a)(iii). In all cases, the court must be approached for the resolution to be set aside and business rescue to terminate.

Finding that the High Court had erred in its approach and should have dismissed the application, the court upheld the appeal.

Za v Smith and another [2015] 3 All SA 288 (SCA)

Claim for damages – Loss of support – Liability of owners of property where deceased fell to his death – Concepts of wrongfulness, negligence and causation discussed – Fact that danger might be clear and apparent does not excuse those in control from taking steps to avoid risk of harm to visitors using property.

In operating a private nature reserve, the second respondent invited and allowed members of the public, for a fee, to make use of the recreational facilities available in the reserve. It did so with the full knowledge and approval of the first respondent, who was the owner of the property on which the reserve was located.

The appellant’s husband, and father of her three children, was killed when he slipped on a snow covered mountain slope and fell over a 150 metre sheer precipice to his death at Conical Peak, one of the highest mountain peaks in the Western Cape. Conical Peak was situated in the first respondent’s private reserve.

In her personal capacity and in her capacity as mother and natural guardian of her three children, the appellant sued the respondents for damages representing the loss of support they had suffered through the death of her husband. Her claim was based on delictual liability arising from the wrongful and negligent failure by the first and second respondents to take reasonable steps to avoid the incident which led to the death of the deceased.

The High Court held that the appellant had failed to discharge the onus of proving a causal connection between the alleged wrongful and negligent omission of the respondents, on the one hand, and the death of the deceased, on the other. In consequence, her claims were dismissed with costs. The appeal against that judgment was with the leave of the court a quo. There was also a cross-appeal by the respondents, aimed at the failure by the court a quo to award the costs of the respondents’ expert witness.

Held – The respondents denied wrongfulness, arguing that owners and others in control of property, are under a duty to warn and protect those who visit the property against hidden dangers of which the latter are unaware, but not against dangers which are clear and apparent. The present Court did not believe that the concept of a clear and apparent danger, on which the respondents relied for their line of defence, had anything to do with wrongfulness. The Court pointed to the often-confused discrete concepts of wrongfulness and negligence in delictual liability. It also confirmed that the correct test for negligence is that of the diligens paterfamilias, and involves whether a diligens paterfamilias in the position of the person concerned would take any guarding steps at all and, if so, what steps would be reasonable.

The Court was satisfied that the element of wrongfulness had been established by the appellant. In determining wrongfulness, the other elements of delictual liability are usually assumed. Hence the enquiry is whether, on the assumption that the

respondents in this case could have prevented the deceased from slipping and falling to his death and that he had died because of their negligent failure to do so, it would be reasonable to impose delictual liability upon them for the loss that his dependants had suffered through their negligence. The Court noted that the respondents were in control of a property which held a risk of danger for visitors. The second respondent, with the knowledge and consent of the first respondent, allowed members of the public, for a fee, to make use of a four-wheel drive route, designed to lead directly to the area which proved to be extremely dangerous. The Court held that the respondents should have warned and protected the unwary visitor against the danger of slipping and sliding over the precipice. The failure in that regard was negligent.

The test for causation is whether, but for the defendant’s wrongful and negligent failure to take reasonable steps, the plaintiff’s loss would not have ensued. In the circumstances of the present matter, the Court found that but for the respondents’ wrongful and negligent failure to take reasonable steps, the harm that befell the deceased would not have occurred.

The appeal was therefore upheld, and the cross-appeal dismissed.

Kgomo and another v Standard Bank of South Africa and others [2015] 3 All SA 305 (GP)

Default judgment – Erroneous granting of – Rescission – Uniform Rules of Court – Rule 42(1)(a) – Main contention that the judgment was erroneously sought and granted, was the bank’s failure to comply with section 129(1) read with section 130 of the National Credit Act 34 of 2005 – Issue was whether non-compliance with section 129(1) and the relevant parts of section 130 was merely a dilatory defence that did not give rise to an erroneous seeking or granting of default judgment – Court proceeded in terms of section 130(4)(b)(i) and (ii) by adjourning the proceedings and directing what steps the bank must take before the proceedings were resumed.

Judgment was granted against the applicants, together with an order declaring certain immovable property to be specially executable, and an order authorising the Registrar to issue a warrant of execution against the property. The grant of default judgment followed on the applicants’ default on their mortgage loan with the first respondent bank.

Rescission of the default judgment was sought in terms of rule 42(1)(a) of the Uniform Rules of Court on the basis that it was erroneously sought and erroneously granted in the absence of the party affected by it. The main basis for the applicants’ contention that the judgment was erroneously sought and granted was the bank’s failure to comply with section 129(1) read with section 130 of the National Credit Act 34 of 2005.

Held – In terms of the above provisions, delivery of a notice is required before legal proceedings are commenced. The notice draws the debtor’s attention to his default and invites him to consider using one of the non-judicial mechanisms provided for in the Act with a view to agreeing on a plan to bring the payments up to date. It was common cause that the notice was sent to an address which was not in fact the

address of the applicants. Therefore, the notice did not reach the applicants before the bank issued summons.

Based on relevant case law, the Court had to establish the implications of the admitted failure to deliver the notice in this case. The question was whether non-compliance with section 129(1) and the relevant parts of section 130 was merely a dilatory defence that did not give rise to an erroneous seeking or granting of default judgment. If so, rescission of judgment had to be refused.

It was clear from the pleadings that the bank’s particulars of claim averred delivery of the notice to the applicants. That was clearly incorrect and judgment was therefore granted erroneously. The flawed section 129(1) notice, reflecting the incorrect address for the applicants, was an annexure to the particulars of claim. That the address was incorrect was apparent by comparing it with the correct address reflected in the particulars of claim. That address reflected a street number that did not coincide with the erf number. The error was thus apparent on the record when default judgment was granted. In those circumstances, the Court was required to proceed in terms of section 130(4)(b)(i) and (ii) by adjourning the proceedings and directing what steps the bank must take before the proceedings were resumed. The applicants were therefore entitled to rescission of the judgment granted against them.

Land and Agricultural Development Bank of South Africa v Factaprops 1052 CC and another [2015] 3 All SA 319 (GP)

Amendment of plea – Special plea of prescription – Nature of notarial bond – Distinction from mortgage bond – Issue was what the period of prescription is in respect of a debt secured by a notarial bond envisaged insection 1 of the Securities by Means of Movable Property Act 57 of 1993 – Section 11 of the Prescription Act 68 of 1969 stipulates that the period of prescription of debts is thirty years in respect of any debt secured by mortgage bond; six years in respect of a debt arising from a bill of exchange or other negotiable instrument or from a notarial contract, unless a longer period applies in respect of the debt, and three years for any other debt – A notarial bond when executed or registered, hypothecates corporeal movable property specified in the bond, cannot constitute a mortgage bond, and accordingly, prescription of the debts secured by such divergent bonds, ought to differ both in effect and interpretation.

The applicants (the defendants in the main action) sought leave to amend their plea in terms of rule 28(4) of the Uniform Rules of Court. The plea sought to be amended incorporated a special plea of prescription. Upon delivery of the relevant notice in terms of rule 28(1) referred to, the respondent served a notice of objection to the proposed amendment, contending that its cause of action is for payment of a debt secured by a notarial bond, and that the applicable prescription period in terms of section 11(a)(i) of the Prescription Act 68 of 1969 is therefore 30 years. Consequently, the special plea sought to be inserted by the proposed amendment was not only bad in law, but also did not disclose any defence, and would accordingly be excipiable if allowed to stand.

As a result of that objection, the applicants now approached the court for leave to amend their plea by introducing the special plea of prescription of the claims against them.

Held – The question for consideration was two-fold: whether a registered notarial mortgage bond, for a debt, falls within the ambit “mortgage bond” in terms of the provisions of section 11(a)(i) or a debt arising from a “notarial contract” in terms of section 11(c) or a written loan contract in terms of sec-tion 11(d) of the Prescription Act, 1969 – or put differently, what the period of prescription is in respect of a debt secured by a notarial bond envisaged insection 1 of the Securities by Means of Movable Property Act 57 of 1993.

A debt shall be extinguished by prescription after a lapse of the period which in terms of the relevant law applying in respect of the prescription of such debt. The period of prescription of debts is governed by the provisions of section 11 of the 1969 Prescription Act which stipulates that the period of prescription of debts is thirty years in respect of any debt secured by mortgage bond; six years in respect of a debt arising from a bill of exchange or other negotiable instrument or from a notarial contract, unless a longer period applies in respect of the debt, and three years for any other debt. Prescription begins to run as soon as the debt becomes due. A notarial bond which in its nature, when executed or registered, hypothecates corporeal movable property specified and described in the bond, cannot constitute a mortgage bond, and accordingly, prescription of the debts secured by such divergent bonds, ought to differ both in effect and interpretation. Accordingly, the period of 30 years does not apply to the notarial bond because it is not a mortgage bond.

Setting out the principles applicable to amendment of pleadings, the Court found no reason not to allow the amendment to the plea, introducing the special plea of prescription.

Primedia Broadcasting, A Division of Primedia (Pty) Ltd and others v Speaker of the National Assembly and others [2015] 3 All SA 340 (WCC)

Broadcasting – Internal arrangements, proceedings and procedures of National Assembly – Sections 57 and 59(2) of the Constitution of the Republic of South Africa, 1996 – Media not to be excluded unless it would be reasonable and justifiable to do so in an open and democratic society – Rules laid down by Parliament regulating the televising of proceedings in Parliament – Challenge to provisions of paragraph 8.3.3.2 of the Policy on Filming and Broadcasting – Challenge failing as impugned rules held to be reasonable and justified.

Constitutional law – Proceedings of Parliament – Rules laid down by Parliament regulating the televising of proceedings in Parliament – Challenge to provisions of paragraph 8.3.3.2 of the Policy on Filming and Broadcasting – Televising during continued incidents of grave disorder or unparliamentary behaviour – Challenge failing as impugned rules held to be reasonable and justified.

Events which occurred during the 2015 State of the Nation Address (“SONA”) were at the heart of the present matter. The State Security Agency employed a device that jams mobile telecommunication signals. Consequently, journalists and MPs attending SONA were rendered unable to use their cell-phones in order to inform members of the public not in attendance about the happenings in Parliament. It was also averred by the applicants in this matter that members of the public were denied the right to see for themselves events of national importance occurring on the floor of the Parliamentary Chamber when the following took place.

The applicants challenged the constitutional validity of paragraph 8.3.3.2 (a) of Parliament’s Policy on Filming and Broadcasting (“the Policy”) and raised the question of whether any order was to be made regarding the jamming incident that occurred shortly before the SONA. The premise of the applicants’ case was that all South Africans have a right to know what happens in Parliament and that includes a right to see and hear for themselves disruptions by members of Parliament.

Held – The provisions of sections 57(1) and 70(1) of the Constitution empower Parliament to make rules and orders concerning its business. The various rules and policies adopted and approved by Parliament are essential for its ordered operation. There is no obligation on Parliament to broadcast conduct that clearly obstructs or disrupts its proceedings and conduct that unreasonably impairs its ability to conduct its business in an orderly and regular manner acceptable in a democratic society because such conduct is not legitimate Parliamentary business. Thus, the challenge levelled against the policy had to fail.

ALL SA AUGUST 2015 PART TWO

Commissioner for the South African Revenue Service v Van der Merwe [2015] 3 All SA 387 (SCA)

Appeal – Lapsing of – Whether condonation should be granted and the appeal revived – In cases of flagrant breaches of the rules, especially where there is no acceptable explanation therefor, the indulgence of condonation may be refused whatever the merits of the appeal – In casu, breaches of the rules were of such a nature and explanation offered so unacceptable and wanting that condonation refused irrespective of the applicant’s prospects of success on appeal.

Tax – Appointment of curator bonis – Tax Administration Act 28 of 2011 – Section 163(7)(b) – A court granting a preservation order, may make any ancillary orders regarding how the assets must be dealt with including appointing a curator bonis in whom the assets must vest – Pointing to the respondent’s sudden acquisition of extraordinary wealth, the Court was of the view that an investigation was called for which required the appointment of a curator bonis.

In the context of a long-running dispute with the respondent’s father (“Mr Van der Merwe”) about his tax liability, the appellant (“SARS”) formed the opinion that Mr Van der Merwe had been associated with certain juristic entities that had fraudulently claimed VAT refunds from SARS. SARS asserted that those entities were collectively liable to it for tax, additional tax, penalties and interest, and therefore applied to the High Court against a total of 22 respondents, including Mr Van der Merwe, the applicant and a host of corporate entities for a preservation order, and the appointment of a curator bonis in terms of section 163(4)(a) of the Tax Administration Act 28 of 2011. The High Court issued a provisional preservation order but did not appoint the curator bonis sought by SARS. In terms of the order, the respondents were interdicted from dealing with, disposing of, encumbering or removing from the country any of the assets listed in the order.

Leave was granted to the respondent to appeal to the present Court against the grant by the High Court of the preservation order, and to SARS to cross-appeal against the failure of the High Court to appoint the curator sought by it. However, the respondent failed to take any steps whatsoever to prosecute her appeal with the

result that it lapsed. Therefore, the first question before the Court was whether her default should be condoned and the appeal revived.

Held – Condonation is not to be had merely for the asking. Factors which usually weigh with this Court in considering an application for condonation include the degree of non-compliance, the explanation therefor, the importance of the case, a respondent’s interest in the finality of the judgment of the court below, the convenience of this Court and the avoidance of unnecessary delay in the administration of justice.

In this case, the Court found the explanation proffered for the default to be woefully inadequate. It therefore found it impossible to hold that the delay in bringing the present application was explained in a satisfactory manner. The Court was also not convinced of the prospects of success on appeal. The Court did not deal with the applicant’s prospects of success on appeal because the circumstances of the present case were such that the application for condonation had to be refused irrespective of the prospects of success. It was pointed out that in cases of flagrant breaches of the rules, especially where there is no acceptable explanation therefor, the indulgence of condonation may be refused whatever the merits of the appeal.

It was held further that the conduct encountered in this matter was deserving of an order of costs on the punitive scale. The conduct of the applicant and her father throughout generated costs that should not have been incurred. Those costs should not be borne by compliant taxpayers. An award of costs on the scale as between attorney and client was justified in this case.

The appeal by SARS was confined to a consideration of whether the order of the High Court should have made provision for the appointment of a curator bonis. In terms of section 163(7)(b) of the Tax Administration Act, a court granting a preservation order, may make any ancillary orders regarding how the assets must be dealt with including appointing a curator bonis in whom the assets must vest. Pointing to the respondent’s sudden acquisition of extraordinary wealth, the Court was of the view that an investigation was called for. That required the appointment of a curator bonis. The High Court should therefore have granted the order sought by SARS in that regard, and SARS appeal was thus upheld.

Minister of Mineral Resources and others v Mawetse (SA) Mining Corporation (Pty) Ltd [2015] 3 All SA 408 (SCA)

Mining and minerals – Prospecting right – Lapsing of – Mineral and Petroleum Resources Development Act 28 of 2002 – Untenable for a prospecting right to be granted and reserved indefinitely, and the period for which it endures must be calculated from the date on which the right holder was informed of the granting of the right – Right endures for the period for which it was granted, and then lapses irrespective of whether it still has to be executed and that it has not yet become effective.

In November 2006, the fifth appellant (“Dilokong”) applied for a prospecting right for chrome ore in respect of a farm (“Driekop”). On receiving the application, the fourth respondent (“the Regional Manager”) requested Dilokong to give effect to the objects of section 2(d) of the Mineral and Petroleum Resources Development Act 28 of 2002 (“the Act”) by submitting, amongst others, a signed shareholder agreement by

a certain date. Dilokong did not comply, and on the date on which the prospecting right was about to be notarially executed, it was informed that the execution could not take place, due to the failure to give effect to section 2(d) in relation to the required BEE shareholding.

Oblivious of the facts set out above, the respondent (“Mawetse”) applied in September 2009 for a prospecting right for various minerals (including chrome) in respect of Driekop. Its application was rejected in terms of section 16(2)(b)of the Act because that prospecting right had already been granted to Dilokong. Upon investigation Mawetse discovered that Dilokong’s prospecting right had not been executed, that its duration was for three years and had already lapsed.

In the High Court, Mawetse challenged the award of the prospecting right to Dilokong. The upholding of the award of the prospecting right to Dilokong led to Mawetse launching a review application culminating in the present appeal. Dilokong’s case was that its prospecting right had not lapsed and in fact the duration of its prospecting right had not yet commenced since it had not yet been notarially executed.

Held – The first issue raised in the matter was whether Dilokong could lawfully have been required to be BEE compliant. The Court found that the Regional Manager had made a legitimate request in that regard, and that the court below correctly concluded that Dilokong’s failure to meet the condition had the effect of barring Dilokong from implementing its right to prospect.

In deciding whether the right granted to Dilokong had lapsed, the Court considered Dilokong’s contention that the period for which the right had been granted had not started running since the prospecting right had never become effective and had not been executed. The Court found that it would be untenable for a prospecting right to be granted and reserved indefinitely. The period for which Dilokong’s prospecting right endured had to be calculated from the date on which it was informed of the granting of the right. The right then endured for the period for which it was granted, and then lapsed irrespective of whether it still had to be executed and that it had not yet become effective. The High Court’s ruling was, therefore, correct.

The appeal was dismissed with costs.

Rahim and others v Minister of Home Affairs [2015] 3 All SA 425 (SCA)

Claim for damages – Unlawful arrest and detention – Relevant factors are the circumstances under which the deprivation of liberty took place, the conduct of the defendants and the nature and duration of the deprivation.

Immigration – Detention of illegal foreigners pending deportation in terms of section 34(1) of the Immigration Act 13 of 2002 – Lawfulness – Detention of illegal foreigners can only take place as prescribed by section 34(1) ie in the manner and at a place determined by the Director-General – In terms of the principle of legality, it had to be shown that the Director-General had made the determinations contemplated in section 34(1) – Failure to establish that determination had been made rendered detentions unlawful.

The appellants were foreign nationals who had sought asylum in South Africa in terms of section 21 of the Refugees Act 130 of 1998, and had been granted asylum seeker permits. They thereafter attended at the Port Elizabeth office of the Department of Home Affairs at regular intervals to have their permits extended in contemplation of the finalisation of their applications.

According to the respondent, the appellants were each arrested after their appeals against their unsuccessful asylum applications failed.

The appellants sued for damages alleged to have been sustained as a result of their alleged unlawful arrest and detention at the instance of officials of the respondent. The dismissal of their claims led to the present appeal.

The power to arrest and detain the appellants was claimed in terms of sec-tion 34(1) of the Immigration Act 13 of 2002. The appellants disputed their status as illegal foreigners at the time of their arrest, and contended that at the time of their arrest they had not been provided with reasons. They also contended that their detention was rendered unlawful as their rights were not explained to them. Importantly, they invoked the principle of legality in relation tosection 34(1) of the Immigration Act, contending that they could only, as prescribed by that subsection, be detained in a manner and at a place determined by the Director-General of the Department, which they claimed had not occurred.

On appeal, the respondent contended that section 34(1) does not prescribe how the determination by the Director-General is to be made and therefore nothing more is required of the Director-General than a firm or conclusive decision about where illegal foreigners may be detained.

Held – The detention of illegal foreigners can only take place as prescribed by section 34(1) ie in the manner and at a place determined by the Director-General. The exercise of public power is constrained by the principle of legality which is foundational to the rule of law. The respondent was therefore required to show that the Director-General had made the determinations contemplated in section 34(1), which it failed to do. Consequently, the detention of all of the appellants was unlawful.

The next question related to the quantum of damages. In cases involving deprivation of liberty the amount of satisfaction is calculated by the court ex aequo et bono. Relevant factors are the circumstances under which the deprivation of liberty took place, the conduct of the defendants; and the nature and duration of the deprivation. Having regard to the limited information available and taking into account the factors referred to, the Court deemed it just to award globular amounts that varied in relation to the time each of the appellants spent in detention. The appeal was thus upheld.

Eskom Holdings Soc Limited v Khum MK Investments & Bie Joint Venture (Pty) Ltd and others [2015] 3 All SA 439 (GJ)

Arbitration – Arbitration award – Review application – Arbitration Act 42 of 1965 – Section 33(1) – Courts have maintained their lack of jurisdiction to enquire into the correctness of the conclusion arrived at by arbitrators on the evidence before them – Integrity of the arbitration process is preserved except where the arbitrator

himself has discredited it through mala fides, gross irregularity or the exercise of powers not conferred upon him.

 Contract – Tender contract – Illegality of contract – Estoppel by conduct – Employer estopped from denying tender contract with company – Court held that the arbitrator’s finding against the applicant on the issue of estoppel was found to be in keeping with the legal principles.

In terms of section 33(1) of the Arbitration Act 42 of 1965, the applicant sought to review and set aside a partial award made by the third respondent in respect of separated issues in an arbitration. The dispute referred to arbitration was of a contractual nature.

Held – As pointed out in case law, our law governing the review of arbitration awards has been underpinned and applied so as to provide only narrow grounds for review and these have been restrictively interpreted. Although the courts have demonstrated a willingness to assist parties deprived of a fair hearing by procedural wrongs, they have limited their reviews to those alone and have refused jurisdiction in cases that requested their reviews of the arbitrator’s legitimate exercise of discretion. The courts have therefore maintained their lack of jurisdiction to enquire into the correctness of the conclusion arrived at by arbitrators on the evidence before them. Consequently, the integrity of the arbitration process is preserved except where the arbitrator himself has discredited it through mala fides, gross irregularity or the exercise of powers not conferred upon him.

The applicant made allegations of gross irregularity, misconduct, bias and incompetence against the arbitrator. The Court found those allegations to be without any basis. The arbitrator’s finding against the applicant on the issue of estoppel was found to be in keeping with the legal principles on that issue. The applicant, as employer, was estopped from denying a tender contract involving the first respondent. The arbitrator was found to have correctly rejected the defences raised by the applicant.

The review application was thus dismissed.

Media 24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd[2015] 3 All SA 478 (WCC)

Final interdict – Requirements – Applicant had to establish a clear right by asking the court to make a final determination, firstly, of its rights of copyright in relation to its work, and, secondly, of a breach thereof by the respondent – Applicant had to prove on a balance of probabilities an “injury” committed by respondent ie an infringement of its copyright with resultant prejudice – Applicant had to establish that it had no adequate or alternative remedy available to it.

 Intellectual property law – Copyright – Compilation of dictionaries – Copyright Act 98 of 1978 – A court considering the claim for copyright infringement must draw an inference from all the facts before it, and the absence of a cogent explanation for the objective similarity between two works can lead to a strong inference that there has been copying – Court concluded that the dissimilarities in the competing works (from layout to typeface and example sentences) were so extensive that any true copying was regarded as lacking in sufficient similarity to warrant interdictory relief.

The respondent was a South African publisher of a variety of literary works including dictionaries, in this case for use by school learners. The applicant also published dictionaries for the local market through one of its trading arms.

Alleging that the respondent had copied certain of its earlier titles, thereby breaching its rights of copyright under the Copyright Act 98 of 1978, the applicant applied for interdictory relief restraining the respondent from infringing its copyright.

The claim for final relief was challenged by the respondent on two levels. Firstly, there was a general denial that it had directly copied the applicant’s work. Secondly, it said that the applicant had failed to establish the originality of its entire work, on the basis that, like the respondent, it had sourced the meaning and definition of some words and example sentences in other reference works to which both may have had access in the process of compilation, or that example sentences chosen by it were common practice and/or common explanations over which the applicant could not claim exclusivity.

Held – In seeking a final interdict, the applicant had to establish a clear right by asking the court to make a final determination, firstly, of its rights of copyright in relation to its work, and, secondly, of a breach thereof by the respondent. It also had to prove on a balance of probabilities what is customarily referred to as an “injury” committed by respondent. That was to be understood as an infringement of its copyright with resultant prejudice. Furthermore, the applicant had to establish that it had no adequate or alternative remedy available to it.

A court considering the claim for copyright infringement must draw an inference from all the facts before it, and the absence of a cogent explanation for the objective similarity between two works can lead to a strong inference that there has been copying. Regard was had in this case to the manner in which dictionaries are complied.

Given the technical nature of the issues involved, the Court deemed it not appropriate to decide the case on the strength of the expert reports on affidavit. The matter had to be determined in accordance with the Plascon-Evans rule with due regard for the onus which the applicant had attracted by moving for final interdictory relief.

Finding that the respondent had devoted a significant amount of time, effort, expense and expertise in the compilation and publication of its new work, which took a number of years to compete, the Court found that to fly in the face of an allegation of unbridled plagiarism.

The applicant was unsuccessful in establishing a clear right to the relief sought, and the interdict was refused.

Southern Africa Litigation Centre v Minister of Justice and Constitutional Development and others [2015] 3 All SA 505 (GP)

International law – Rome Statute of the International Criminal Court Act 27 of 2002 – South Africa’s obligations – Non-fulfilment of – Arrest and detention of President of the Republic of Sudan – As a ratifying State of the Rome Statute, South Africa was

enjoined to co-operate with the ICC, for example, to effect the arrest and provisional arrest of persons suspected of war crimes, genocide and crimes against humanity – Court confirmed that despite its order for the arrest and detention of the President, he was allowed to leave South Africa and his departure, in full awareness of the order demonstrated non-compliance with the order.

This matter concerned the duties and obligations of South Africa in the context of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (“the Rome Statute”). The question was whether a Cabinet Resolution coupled with a Ministerial Notice were capable of suspending South Africa’s duty to arrest a head of State against whom the International Criminal Court (“ICC”) had issued arrest warrants for war crimes, crimes against humanity and genocide.

The Court had issued an order declaring the respondents’ failure to take steps to arrest and/or detain the President of the Republic of Sudan Omar Hassan Ahmad Al Bashir (“President Bashir”) to be unconstitutional and invalid. The Court directed the respondents to take all reasonable steps to prepare to arrest President Bashir without a warrant in terms of section 40(1)(k) of the Criminal Procedure Act 51 of 1977. President Al Bashir was to be detained, pending a formal request for his surrender from the International Criminal Court. The Court provided its reasons for this order.

Arguing that where the ICC has made a request for the arrest and surrender of a person within a State party’s jurisdiction, the State party must comply with the request, the applicant maintained that South Africa became liable to arrest and surrender President Bashir as soon as he entered the country.

Held – As a ratifying State of the Rome Statute, South Africa was enjoined to co-operate with the ICC, for example, to effect the arrest and provisional arrest of persons suspected of war crimes, genocide and crimes against humanity. The respondents’ assertion that President Bashir would be protected by diplomatic immunity was shown to be without merit.

The Court ended by confirming that despite its order for the arrest and detention of President Bashir, he was allowed to leave South Africa. His departure, in full awareness of the order demonstrated non-compliance with the order. For that reason, the court invited the NDPP to consider whether criminal proceedings were appropriate.