LEGAL NOTES VOL. 6 OF 2005 Compiled by Adv. M Klein INDEX 1. SA Law Reports May 2005 2. SA Criminal Law Reports – January 2005 3. All SA Law Reports Vol. 2 April 2005 4. All SA Law Reports Vol. 2 May No. 1 2005 5. All SA Law Reports Vol. 2 May No. 2 2005 6. Industrial Law Journal January 2005 THE SOUTH AFRICAN LAW REPORTS MAY 2005 Zondi v Mec for Traditional and Local Government Affairs and Others  3 SA 25 NPD Animal – Pounds – Pound Ordinance 32 of 1947 (KZN). Provisions (which, inter alia, authorize landowner to decide whether trespass occurred and to seize livestock; provide for destruction of impounded animals; provide for levying of fees and charges and sale of impounded livestock without court order; and deny stockowners equal protection and benefit of the law) declared to be inconsistent ss (c), 9 (1), 25, 33 and 34 of Constitution read with ss 3(1) and 3(2) of Promotion of Administrative Justice Act of 2000. The applicant was an unemployed 53-year-old widow who was the owner of livestock threatened with seizure and impoundment. She was dependent on her livestock, which she used to convert to cash when needed. The applicant denied that there had been any trespass. In her application the applicant contended that nine provisions of the Pound Ordinance 32 of 1947 were inconsistent with the Constitution of the Republic of South Africa. Four Tower Investments (Pty) Ltd v Andre’s Motors  3 SA 39 NPD Magistrate‟s court – Civil proceedings – Practice – Pleadings – Summons – Amendment of – Plaintiff close corporation wrongly cited in summons and particulars of claim as company – Application for amendment always in order unless made mala fide or prejudicial to other party – Courts gradually moving away from overly formal approach – Courts should, in line with this approach, be careful not to find prejudice where none existing – Mere fact that citation or description of party happening to be non-existent entity not per se rendering summons void – Citation of plaintiff nothing more than misdescription – Application for amendment allowed. Ntuli v Zulu and Others  3 SA 49 NPD Costs – Against a judicial officer. It must be borne in mind that s 34 of the Constitution of the Republic of South Africa Act 108 of 1996 provides: “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum‟. In the result the order that I make is : The second respondent is ordered, in her official capacity, to pay the applicant‟s costs in these proceedings under case No 4540/2003. Ripoll-Dausa v Middleton No and Others  3 SA 141 CPD Practice – Applications and motions – Dispute of fact – Referral for hearing of oral evidence. Disputes of fact arising on affidavits – Applicant nevertheless seeking final relief without resort to oral evidence – Respondent seeking resort to oral evidence – Court restating general rule – Semble: Two exceptions existing to general rule, namely where respondent‟s denial not raising bona fide or genuine dispute of fact and where respondent‟s denial far-fetched or untentable – Respondent disputing crucial fact – Probabilities not favouring responding and reasonable prospect of oral evidence tipping balance in favour of applicant – Accordingly, Court referring matter to oral evidence. Earth life Africa (CT) v DG: Dept of Environ Affairs & Tourism  3 SA 156 CPD Administrative law – Administrative function – Principles of natural justice – Audi alteram partem rule. Domestic remedies – Exhausting of before taking legal proceedings – Exemption from said requirement in „exceptional circumstances‟ as intended in s 7(2)(c) of Promotion of Administrative Justice Act 3 of 2000. K v Minister of Safety and Security  3 SA 179 SCA Delict – Liability for – Vicarious liability – The appellant had been raped by three policemen who had offered her a lift home late at night – They had all three been in uniform The appellant had sought damages against the respondent Minister in a Local Division of the High Court, but the Court ordered absolution from the instance. Leave to appeal to the Supreme Court of Appeal was, however, granted. The point at issue was whether the respondent could be held vicariously liable for the conduct of the policemen. The conduct relied upon was (a) the actual rape of the appellant by each of the three policemen, and (b) the failure of each to intervene when one or the other of their co-rapists was raping the appellant. The appellant relied, inter alia, on Minister van Polisie v Ewels 1975 (3) 590 (A). It was conceded on behalf of the appellant that under the common law no vicarious liability could attach to the Minister. It was argued, however, that because the case involved an infringement of the appellant‟s constitutional rights, the common law relating to the vicarious liability of the State for delicts, committed by police officers had to be developed so as to render the Minister liable. Held, applying the standard test for vicarious liability in „deviation‟ cases, that it could not be said that the policemen were, while raping the appellant, still exercising the functions to which they were appointed or carrying out some instruction of their employer. They were motivated by nothing more than self- gratification. Acting in concert, they deviated from their functions and duties as policemen to such a degree that it could not be said that in committing the crime of rape they were in any way exercising those functions or performing those duties. Minister of Home Affairs v Nicro and Others  3 SA 280 CC Constitutional law – Human rights – Protection of – Justification of limitation of in term of s 36 of Constitution – Onus – Nature of onus on State discussed – Where justification depending on factual material, party relying on justification to establish facts on which justification depends – But where justification depends on policies directed to legitimate governmental concerns, party relying thereon should place before Court sufficient information as to policy being furthered, reasons that policy and why is was considered reasonable in pursuit of that policy to limit a constitutional right – Failure to place such information before Court might be fatal to justification – Possible, however, that in some cases absence of such information might to be fatal and Court able to uphold justification based on common sense and judicial knowledge. Canon KZN (Pty) Ltd t/a Canon Office Automation v Booth  3 SA 205 NPD Contract – Legality – Restraint of trade – Reasonableness of – Protectable interest – Confidential information or trade secret – In order to qualify as confidential, information must (1) involve and be capable of application in tr ade and industry; (2) not be public knowledge and public property; and (3) be of economic value to person seeking to prove it – Ordinary general information about business not becoming confidential merely because proprietor chooses to call it so. Le Riche v PSP Properties CC and Others  3 SA 189 CPD Spoliation – Mandament van spolie – Delay bringing application – Delay of more than one year. Applicant having attempted to trigger mediation process and been party to settlement negotiations throughout period in question; having contacted spoliator on day after act of spoliation; having telephonically complained to spoliator two days later; and instructed attorney to demand restoration during following week – In such circumstances not possible to infer acquiescence on part of applicant – Mandament granted. S.A. CRIMINAL LAW REPORTS JANUARY 2005 (1) Director of Public Prosecutions, Cape of Good Hope v Robinson  2 SACR 1 CC Court – Constitutional Court – Jurisdiction – Constitutional matters – What constitutes – Extradition – Whether extradition magistrate or Minister having power to consider if and extent to which person‟s constitutional rights violated if she or he extradited a matter concerned with enforcement of person‟s constitutional rights violated if she or he extradited a matter concerned with enforcement of person‟s constitutional fair trial right – So, too, question whether extradition magistrate should discharge person and preclude Executive from making decision to extradite if there is some danger that fair trial rights of person would be violated upon extradition danger that fair trial rights of person would be violated upon extradition – Extradition of South African citizen raises constitutional matter because citizen will be formally removed from the country to stand trial or serve period of imprisonment which will have impact on constitutional rights of person – All people unlawfully extradited to serve sentence of imprisonment abroad will have constitutional rights infringed. S van Dyk  2 SACR 32 SCA Sentence – Correctional supervision – When a property sentence – Correctional supervision, in appropriate circumstances, may be imposed notwithstanding fact that penal provisional of particular enactment provides for other sentences, with no reference being made in such enactment to correctional. Conservation offences – Sentence – Marine living Resources Act 18 of 1998 – Contravention of regs 9, 36(1) and 38(3)(b) or regulations promulgated under Act – Accused, a second offender, possessing 378 abalone – Sentence of 18 months‟ imprisonment in terms of s 276(1)(i) of Criminal Procedure Act 51 of 1977 confirmed on appeal. S v Du Toit e.a.  2 SASV 47 TPA Trial – In camera hearing - Application by State for witness to give evidence in camera – Witness a self-confessed participant – Alleged that he would be prejudiced if his name published, inter alia because nobody where he worked or lived aware of his involvement in case or that he would give evidence and because testifying would place his employment at risk. Accused not getting same protection as that for which State asking for witness – Their identity published regularly – Accused having to be presumed innocent while witness a self-confessed perpetrator – Press freedom would be limited by such order. S v Orrie and Another  1 SACR 63 CPD Evidence – Admissibility – Statement made to police by suspect prior to being apprised of right to remain silent – Admission of statement obtained without warning that it may be used against maker would inevitably taint fairness of any subsequent trial – Statement obtained from accused in violation of constitutional duty to inform him that any statement he made could be used against him in later proceedings – Statement inadmissible against accused. Van Rooyen v Department of Korrektiewe Dienste  2 SASV 77 TPA Prisons – Prisoners – Rights of – Unsentenced prisoners – Right to prepare for trial – Correctional Services Act 111 of 1998, s 174(4) Court having authority to prescribe to Department of Correctional Services under what circumstances awaiting-trial prisoners to be detained – Decision of Department not to allow prisoners to make use of consultation facilities in section where they were detained being violation of right to prepare for trial in terms of s35(3)(b) of Constitution and in contravention of s17(4) of Correctional Services Act – Interim order compelling Department of Correctional Services to provide awaiting-trial prisoners access to consultation facilities in section where they were detained until 22:00 confirmed. THE ALL SOUTH AFRICAN LAW REPORTS 2005 VOLUME 2 APRIL NO 2 Magre Property Holdings CC v Jewula 2005 (2) All SA 119 (E) Land Claims – The High Court, it was submitted, lacked the jurisdiction even to enquire into the issue as to whether the order sought would in fact constitute an eviction as defined. The Court disagreed with this argument. In its opinion, in a case such as the present, the High Court is obliged to enquire into the issue and can only decline to exercise jurisdiction once it is satisfied that the relief sought by the applicant would constitute an eviction as defined in the Act, thus bringing the matter within the exclusive jurisdiction of a court as defined therein. S v Orrie and Another 2005 (2) All SA 212 CPD Evidence – Admissibility of statement where accused not warned that it may be used against him – Trial rendered unfair – Statement inadmissible. According to the accused, the statement was inadmissible as he had not been made aware that he was a suspect and had not been warned of his rights to silence and to legal representation. It was also contended that had he known that he was a suspect and had legal rights, he would have remained silent and waited for his lawyer. ALL SOUTH AFRICAN LAW REPORTS 2005 VOLUME 2 MAY NO 1 Imbali 13 and 15 Taxi Association and Others v KwaZulu-Natal Provincial Taxi Registrar and Others  2 All SA 268 (N) Administrative Law – Procedural fairness – Hearings and appeals in terms of KwaZulu-Natal Interim Minibus Act 4 of 1998 – Alleged grounds of objection to registered taxi route not put before registering party – Whether procedurally fair. Held, the hearing in fact held was completely inadequate because a copy of the letter of objection to the route registered by the first applicant (apparently put before the first respondent by the third respondent) was never furnished to the applicants, and this had not allowed them to know the case they would need to meet. Melani v S  2 All SA 280 Criminal procedure – Failure to explain and assist with exercise of, right of access to witnesses‟ statements – Right to challenge evidence – 35(3)(i) – Constitution of the Republic of South Africa Act 108 of 1996. Criminal procedure – Inspection in loco – Magistrate visiting scene suo motu to obtain adverse creditability finding – Gross irregularity vitiating proceedings per se. The magistrate had gone alone to a site that was the subject of a dispute of the evidence and it was clear that he went to the scene not to understand and follow the evidence better but to obtain evidence in order to make an adverse credibility finding. He committed a gross irregularity by importing, into the case, facts within his own knowledge. This irregularity was so gross that it constituted per se a failure of justice. The count in respect of which the irregularity was committed fell to be set aside. It was clear from the record that the regional magistrate forsook his duty to protect and assist the appellant and actively took a position against the appellant. He subverted his duty to assist the appellant and actively took a position against the appellant. He subverted his duty to assist an unrepresented accused. He exceeded the bounds of reasonable questioning. This conduct constituted such a gross departure from the established rules of procedure that it constituted per se a failure of justice. Seymour v Minister of Safety and Security  2 All SA 296 WLD Delict – Claim for damages – Unlawful arrest – Quantum – Each case to be determined on own facts. It is common cause that the plaintiff was arrested on 29 December 2000, without a warrant (on charges for which a warrant for his arrest would have been required) by one Superintendent Smith, who, at the time, was acting within the .course and scope of his employment with the South African Police Services. Superintendent Smith has since been discharged from service. It is not clear precisely on what charges the plaintiff was arrested. When he was detained initially, he was told it was for “intimidation”, but the next day, when was taken to the Johannesburg Central Police Station, he was told it was for fraud. Superintendent Smith came to the business premises of the plaintiff on the afternoon of 29 December 2000, and commanded the plaintiff to accompany him to the Ennersdale Police Station, where he informed him he was under arrest. Attempts by the plaintiff‟s family to arrange for him to be released on bail were thwarted by Superintendent Smith. Dr Vallabh had no doubt that the plaintiff‟s medical condition, on that day, was directly attributable to the stress which the plaintiff had been experiencing as a result of his detention. The hospital records confirm the seriousness of Dr Vallabh‟s diagnos is. The plaintiff was kept under arrest at the Rand Clinic and was brought to court on 3 January, 2001. All charges were withdrawn against him and no further charges have since been laid. The plaintiff was kept under arrest at the Rand Clinic and was brought to court on 3 January, 2001. All charges were withdrawn against him and no further charges have since been laid. The plaintiff has a completely clean criminal record. Subsequently to the plaintiff‟s release, Superintendent Smith arrived uninvited at a meeting of the Simunye Dairy, at which were present not only the plaintiff but also the Simunye Diary‟s auditor, a representative of the Danish International Development Agency (DANIDA), the Land Bank and various other persons. Superintendent Smith was asked by the plaintiff to leave the meeting. He obliged, but before he did so, he said to the plaintiff, in the presence of the others, that he would still “get” the plaintiff “for fraud and misappropriation of funds”. Since that date, the Simunye Diary Project has received no further financial assistance from DANIDA or the Land Bank. The defendant is to pay the plaintiff – the sum of R500 000 (Five Thousand Rands). THE ALL SOUTH AFRICAN LAW REPORTS 2005 VOLUME 2 MAY NO 2 Brink v Humpries & Jewell (Pty)_ Ltd  2 All SA (2) 343 SCA Contract – Existence of consensus – Caveat subscriptor rule. At some point during the relationship between the parties, the respondent required the signature of a credit application form, and the appellant signed the form. It was common cause that the respondent did not inform the appellant that the form imposed a suretyship obligation on the individual who signed it. In his evidence- in-chief, the appellant testified that he had signed the form without reading anything but the heading thereon. That heading indicated that the form was a standard credit application form. He had therefore not anticipated that it would contain a suretyship undertaking. Held, The caveat subscriptor rule is based on the doctrine of quasi-mutual assent. A party to a contact can rely on iustus error to repudiate his apparent assent to a contractual term if he has not, by his conduct, led the other party, as a reasonable man, to believe that he was binding himself. The Court found that the appellant had acted under a misapprehension in signing the credit application form. Southern Life Association Ltd v Miller  2 All SA 371 SCA Insurance – Disability benefit – Policy providing that a disability benefit would only be granted if the applicant was totally and permanently unable to engage in his own or any other occupation for which he was or could reasonably be expected to become qualified by his knowledge, training, education, ability and experience – Insurer not unreasonable in finding that claimant was able to work in related field. Although the respondent could not perform all his previous duties an electrician, he could manage doing sedentary work. Matroos v S  2 All SA 382 (C) Criminal procedure – Prison appeal – Appeal against sentence only – Whether Court entitled to consider merits of conviction. Magistrate – Conduct – Gross irregularities – Descending into arena, disallowing relevant questions by accused, eliciting inadmissible evidence, asking leading questions. The appellant appealed against his sentence only, in person from prison (a so- called “prison appeal”). The Court therefore issued an order condoning late lodging of notice of appeal and setting aside the appellant‟s conviction and sentence. INDUSTRIAL LAW JOURNAL VOLUME 26 JANUARY 2005 Insurance – Liability refuted – Prescription – Claim had not been lodged timeously as required by operating conditions of the policy. Metcash Trading Ltd v Credit Guarantee Insurance Corporation of Africa ltd 2 All SA 484 (SCA). Interdict – Against demolition of building protected under section 34(1) of National Heritage Resources Act of 1999 – Whether de facto condition of building rendered interdictory relief nugatory. Provincial Heritage Resources Authority for the Eastern Cape v Gordon  2 All SA 554 (E). Marriage – Breach of promise to marry – Where one party to agreement already married – Whether agreement contra bonos mores – Whether breach actionable – Changing mores of society. Lloyd v Mitchell  2 All SA 542 (C). Hammond v Compensation Commissioner & Another  26 ILJ 45 (T) Compensation for Occupational Injuries and Diseases Act 130 of 1993 – Tribunal – Appeal to High Court against decision of tribunal rejecting claim for compensation – Whether tribunal‟s decision involved „interpretation of this Act or any other law‟ in s 91(5)(i) – Tribunal correctly finding that claimant had to prove casual link between his condition and his employment and had failed to do so – Tribunal‟s decision falling outside ambit of section and not appealable. The appellant appealed to the High court against the decision in terms of s91(5). It was clear that the only paragraph of s 91(5) that was relevant was para (i), which provided that „[a]ny person affected by a decision referred to in subsection (3)(a), may appeal to any provincial or local division of the Supreme Court having jurisdiction against a decision regarding – (i) the interpretation of this Act or any other law‟. The appeal was accordingly dismissed with costs. MEC For Department of Public Works (Eastern Cape) v Falten  26 ILJ 49 (SCA) Public Service – Indemnity from liability – Section 40 of Public Service Act (Proc 103 of 1994) – Exception – Exception from indemnity applies to person conveyed in performance of functions of state and also to person conveyed in interest of performance of functions of sale. Vicarious liability – Employer‟s liability for delictual acts of employee – Bus driver employee not authorized to drive on specific occasion taking over from authorized driver – Whether acting in course and scope of employment when doing so – Whether employer liable for damage arising from collision while employee driving. The MEC was accordingly liable. The appeal was dismissed with costs. North West Star (Pty) Ltd (under judicial management) v Serobatse & Another  26 ILJ 56 (LAC) Labour Court – Orders – Failure to comply with order. Part of constitutional democracy that people cannot disregard orders of courts simply because they do not agree with them – Correct procedure is for person to comply with order or appeal against it to higher court. SA Municipal Workers Union & Others v Rand Airport Management Co (Pty) Ltd & Others  26 ILJ 67 (LAC) Transfer of business as going concern – Section 197 of LRA 1995 (as amended by Act 12 of 2002) – Dismissal of employees for operational requirements – Section 187(1)(g) clear that dismissal because of transfer contemplated by s197 will be automatically unfair. Outsourcing agreement – Intention of transferor and transferee not decisive in determining whether business or service has been transferred as going concern. Ceramic Industries (Pty) Ltd v Commision for Conciliation, Mediation & Arbitration & Another  26 ILJ 89 (LC) -CCMA – Con-arb proceedings – Nature of process. The employer is given two opportunities to object to this process, the one in terms of form LRA 7.11 and the second is by writing to the CCMA on receipt of the notice of set down. The result of the provisions relating to con-arb is that, if one party objects to taking part in con-arb, the CCMA is precluded from invoking the provisions of s 191(5A). The effect of this is that the procedure that was in place prior to 1 august 2002 must be used. This means that, after conciliation, the commissioner must issue a certificate of non-resolution and thereafter the employee must request the CCMA to conduct arbitration by completing form 7.13 and serving it on the employer. Fortuin v Commission for Conciliation, Mediation & Arbitration & Others  26 ILJ 96 9(LC) Practice and procedure – Condonation – CCMA conciliation proceedings, Late referral of dispute – Commissioner refusing application for condonation – On review, Labour Court finding that commissioner failed properly to apply her mind to true reasons and explanations for delay, to assess prospects of success, to balance competing legitimate interests – Ruling thus neither rational nor justifiable – Ruling set aside – Court granting condonation Lewin v Commission for Conciliation, Mediation & Arbitration & Others  26 ILJ 105 (LC) Dismissal – Theft – Employee accepting deposit of R150 from client of post office. Dismissal appropriate sanction – No basis for interfering with award. Salvation Army (South African Territory v Minister of Labour  26 ILJ 126 (LC) Church – Priest – Nature of relationship between church and clergy – Whether parties at time of offer and acceptable intended to enter a legally binding contractual relationship to be determined – Relationship spiritual and governed by religious conscience and priests covenant with God – Not employees – Not governed by labour legislation. Siegelaar v Minister of Safety & Security  26 ILJ 133 (LC) Employment Equity Act 55 of 1998 – Unfair discrimination dispute – Referral for adjudication after conciliation – No time-limit specified for such referral – Application to be brought within reasonable time – Interests of justice central to deciding whether to grant condonation for unreasonable and unexplained delay – Ninety-day period can be used as contextual yardstick against which to measure issue of delay when no time-limit specifically enacted. McDonald & Another and Shoprite Checkers  26 ILJ 168 (CCMA) Retrenchment – Severance pay – Basic Conditions of Employment Act 75 of 1997 – Section 41(4) – right to severance pay – Employee refusing offer of alternative employment – Employee claiming that his refusal to accept reasonable because had not been consulted and was offered position only two days before date of transfer – Employer under no duty to consult on this score – Refusal unreasonable. SA Rugby Players Association on behalf of Bands & Others and SA Rugby (Pty) Ltd  26 ILJ 176 (CCMA) Contract of employment – Fixed-term contract – Renewal. The three individual applicants were professional rugby players. They played for their provincial teams and also concluded fixed-term contracts with the respondent to play for the national team, the Springboks. Their respective contracts to play for the Springboks expired at the end of 2003. In November 2003 the national coach at the time, Rudolph Straueli, indicated to each of the applicants that he was pleased with their performance and that it was his intention to retain them in the Springbok team in 2004. In December 2003 Straueli resigned as coach and the entire top structure of the respondent‟s management changed. The applicants‟ contracts were either not renewed, or were renewed on less advantageous terms. They claimed before the CCMA that they had a reasonable expectation that their contracts would be renewed, and that the respondent‟s failure to renew them constituted an unfair dismissal in terms of s 186(1)(d) of the LRA 1995. The respondent argued that it was an express term of the contracts that the applicants might entertain no expectation of renewal, that Straueli had no authority to give such undertakings on behalf of the respondent, and that the applicants had not been dismissed. Held that there was a dismissal which was unfair. Compensation equivalent to 12 months‟ remuneration was awarded. Werner and Capital Contracting Services  26 ILJ 194 (CCMA) CCMA – Jurisdiction – Employment contract concluded in South Africa but performed and terminated elsewhere – Parties to contact both South African and contract subject to SA labour law – Parties tacitly agreeing to jurisdiction of SA courts – CCMA having jurisdiction to entertain dispute concerning dismissal. Siswana and SA Police Service  26 ILJ 207 (BCA) Residual unfair labour practice – Promotion. The applicant, a police officer, applied for one of two advertised promotional posts. She was shortlisted and interviewed but was not appointed. She claimed that the employer‟s failure to promote her amounted to an unfair labour practice. In evidence it was established that a requirement for the post, as specified in the advertisement, was possession of a tertiary qualification. It was also a requirement in terms of reg 11 of the SAPS Regulations that members of the SAPS should possess a driver‟s licence. The respondent claimed that at the time of her interview the applicant failed to qualify on both grounds. The applicant argued that it was not stated in the advertisement that a driver‟s licence was an essential requirement, and that other employees in the department did not have licences. The lack of a licence did not impact adversely on her work. Further, she had completed all the courses for a tertiary diploma, but was only awarded the diploma some six weeks after she was interviewed. In the arbitrator‟s view the regulations took precedence over the advertisement, and a driver‟s licence was a requirement. The national commissioner was authorized to condone non-compliance with the requirement, but the employee‟s application for condonation had been rejected by another official who had no delegated authority in the matter. The applicant‟s case in respect of the driver‟s licence therefore had some merit. The respondent did not c ommit an unfair labour practice in failing to appoint her.