THE SOUTH AFRICAN LAW REPORTS by niusheng11

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THE SOUTH AFRICAN LAW REPORTS

2009 (2) APRIL



CILLIE v GELDENHUYS

2009 (2) SA 325 (HHA)



Die respondent het die Hooggeregshof genader vir (a) „n bevel waarvolgens

verklaar moes word dat sy plaas deur middel van verjaring „n serwituut verkry

het ten opsigte van „al die water‟ afkomstig uit „n fontein op die appellant se

grensende plaas. Hy het ook aanspraak op registrasie van die serwituut

gemaak en (b) „n interdik aangevra wat die appellant moes verbied om water

vanuit enige boorgat op sy plaas te onttrek op „n wyse wat die beskikbaarheid

en die hoeveelbeid water in die fontein sou verminder. Die appellant het

beweer dat hy nie aan enige ongeregistreerde serwitute gebonde was nie

omdat by nie kennis van hul bestaan gehad het toe by die plaas gekoop het

nie. Die Hooggeregshof het die aangevraagde regshulp toegestaan en die

appellant het na die Hoogste Hof van Appèl geappelleer.



In die uitspraak word onder andere die volgende gesê: Paragraaf [9]:

“Serwitute word tradisioneel tussen positiewe en negatiewe serwitute verdeel.

Die verskil tussen die twee is in die volgende: In die geval van „n positiewe

serwituut is die serwituuthouer bevoeg om „n bepaalde handeling op die

dienende erf te verrig, terwyl „n negatiewe serwituut aan die serwituuthouer

die bevoegdheid verleen om die verrigting van „n bepaalde handeling op die

dienende erf te verbied. Bekende voorbeelde van negatiewe serwitute is altius

non tollendi (om nie hoër te bou nie) en luminibus non officiendi (om nie lig af
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te sny nie), normaalweg huisdiensbaarhede (stedelike serwitute). . . . Die

belang van die verskil in die verjaringskonteks is daarin geleë dat dit onseker

is of verkrygende verjaring van negatiewe serwitute prakties moontlik is.”



Paragraph [10]: “Die hof benede se bevinding dat die eerste serwituut „n

negatiewe serwituut is, is daarop gebaseer dat die serwituut vir Geldenhuys

geregtig maak om Cillie te verbied om „n bepaalde eiendomsbevoegdheid (om

die water van die fontein te gebruik) wat Uitkomst toekom, uit te oefen. Steun

vir hierdie standpunt is in „n passasie in die uitspraak van Fagan AR in Ellis

and Others v Laubscher gevind. Ek stem nie met die uitleg van die uitspraak

saam nie. Die onvermoë van Cillie om die water uit die fontein as gevoig van

verjaring te gebruik, is „n gevolg van „n serwituut wat aan Geldenhuys die

volle aanspraak op die fontein se water gee; dit is met ander woorde die

teenkant van Geldenhuys se serwituutreg; en dit definieer nie die reg nie.

Hierdie onderskeid, so glo ek, is deur Steyn HR in Hollman and Another v

Estate Latre 1970 (3) SA 638 (A) op 646A–647D uitgestip. Soos reeds

gemeld, het Matjiesrivier se eienaars in „n daadwerklike sin die water by die

fontein gaan haal deur middel van oopgrawing van die fontein en die aanleg

van die pyp. Hoewel die waterhaal deur Matjiesrivier verskil van die

tradisionele servitus aquae–haustus, is dit nie nodig om die serwituut te

etiketteer omdat „the number of praedial servitudes is now regarded as being

practically unlimited [and there] is no strict numerus clausus of servitutal

rights‟ (Lorentz v Melle and Others 1978 (3) SA 1044 (T) 1051A). Die

bevoegdheid wat deur Matjiesrivier uitgeoefen is, is om al die water wat die

fontein bereik te neem en by wyse van die pyplyn en sloot na Matjiesrivier af

te lei. Op hierdie wyse het Matjiesrivier meer gedoen as bloot om die afvloei

te ontvang (iets wat, soos gemeld, geen regsgevolge ingehou het nie) en ook
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meer as om slegs sy redelike deel volgens art 5 van die 1956 Waterwet te

neem. Inderdaad het Matjiesrivier al die regte wat aan die fontein as gevolg

van die eiendomsreg in Uitkomst kleef, toegeëien en uitgeoefen. Dit is dus nie

„n geval van waar Uitkomst verbied is om iets te doen nie want Uitkomst het

nooit gepoog om die fontein te gebruik nie. Dis eerder „n geval dat Uitkomst

iets verduur het: „If the servitude consists in not doing (in non faciendo), it is

said to be negative (servitus negativa); if it consists in forbearance (in

patiendo), it is said to be affirmative (servitus affirmativa), and means

permission to do acts that would otherwise be unlawful‟.”



Paragraaf [12]: “My gevolgtrekking is dus dat die waterhaal–serwituut waarop

Geldenhuys aanspraak maak „n positiewe serwituut is. Dit is die einde van die

betoog oor verjaring omdat die feite hierbo uiteengesit, bewys dat die

positiewe serwitute deur middel van verkrygende verjaring gevestig is. Hierdie

bevinding lei tot die tweede vraag, naamlik die toepassing van die kennisleer

op die feite van die saak. Hierdie aspek het ontstaan omdat Cillie die plaas

Uitkomst eers gedurende 1998 aangekoop het. Hy het naamlik beweer dat hy

nie aan enige ongeregistreerde serwitute gebonde was nie omdat hy nie

kennis van hulle bestaan gehad het nie. Die verhoorhof het egter op die

stukke bevind dat sy getuienis onwaar is en het die verweer op daardie

grondslag verwerp. Ek het ernstige twyfel oor juistheid van die feitebevinding

maar omdat die verweer geen regsbasis het nie, is dit nie nodig om die feite

verder te oorweeg nie.”



Paragraaf [13]: “Die advokate (en die verhoorhof) het van die standpunt

uitgegaan dat die kennisleer van toepassing is op saaklike regte en nie slegs

op persoonlike regte nie. Die aanname is nie korrek nie. Registrasie van „n
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serwituut is „n afgeleide wyse van verkryging van „n saaklike reg. Omdat die

causa van so „n regsverkryging normaalweg „n ooreenkoms is, geld dit nie

teenoor derdes alvorens die saaklike reg deur registrasie gevestig is nie. . . .

Die verkryging van „n serwituut deur middel van verjaring is gans anders. Dis

„n oorspronklike wyse van regsverkryging. Sodra die verjaringstermyn sy

verloop geneem het, vestig „n saaklike reg in die eienaar van die heersende

erf. Volgens art 6 van die 1969 Verjaringswet „verkry‟ „n persoon „n serwituut

deur verjaring net soos iemand deur verjaring „eienaar‟ word van „n saak . . .

Hierdie saaklike reg se bestaan is nie van registrasie afhanklik nie. Saaklike

regte geld teenoor die wêreld, met of sonder kennis van hulle bestaan, met of

sonder registrasie. Daarom ook is „n gevestigde serwituut wat per abuis uit „n

titelakte weggelaat is teenoor „n „onskuldige‟ koper bindend.”



Paragraaf [15]: “In hierdie geval het die hof benede tereg bevind dat die reg

wat verwerf is, die reg op al die water wat die fontein oplewer is en dat geen

reg deur verjaring op die water alvorens dit die fontein bereik, verwerf is nie.

Dit beteken volgens my insig dat Cillie se regte ten aansien van water wat nog

nie die fontein bereik het nie, onaangeraak is en omdat Cillie nie inmeng met

die onttrekking by die fontein nie, affekteer hy nie Geldenhuys se „omskrewe‟

genots– en gebruiksbevoegdhede nie. Hierdie gevolgtrekking word versterk

indien mens in ag neem dat „n grondeienaar geregtig is om sy ondergrondse

water na goeddunke aan te wend en dat hy selfs daardeur sy buurman se

water kan afsny tensy daar een of ander verbod (soos „n serwituut) op

sodanige optrede rus.”



Die hof in paragraaf [20] kom tot die volgende gevolgtrekking: “Hieruit volg dit

dat die reg wat Matjiesrivier op al die water in die fontein gekry het, in die
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omstandighede van hierdie saak, nie behels dat Uitkomst sonder meer

onbevoeg is om water wat na die fontein sypel, toe te eien nie. Serwitute moet

mins beswarend uitgelê word en die regte van dienende eienaars so min as

moontlik ingekort word. Die appêl moet gevolglik slaag.”
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BERRANGE NO v HASSAN AND ANOTHER

2009 (2) SA 339 (NPD)



A person who is entitled, in terms of a realisation and distribution account of a

company in respect of which a scheme of arrangement has been sanctioned

in terms of s 311 of the Companies Act 61 of 1973, to receive a dividend from

the receiver has a right (ie is „entitled‟) to the money and this constitutes

„property‟ within the meaning of s 149(1)(a) of the Insolvency Act 24 of 1936.

The right to receive the dividend is not simply a mere spes. Accordingly the

court has jurisdiction in terms of s 149(1)(a) over a debtor who is entitled to

receive such a dividend within the jurisdiction of the court.



The court made the following observations: It is common cause that both the

first and second respondents were depositors in New Republic Bank.

Following the acceptance of the offer of compromise they are both entitled to

receive a dividend from the receiver as appears from the sixth realisation and

distribution account lodged by the receiver. Clearly the respondents have a

right („entitled‟) to this money and to my mind this constitutes „property‟ within

the meaning of the section. The right to receive these dividends is not simply

a mere spes. In my view, the right to receive payment had come into

existence albeit that the date of payment is postponed pending the

confirmation of the account. A cursory glance at the accounts put up as

annexure N to the founding affidavit demonstrates that these dividends fall

inevitably to be paid out to the depositors.



Clearly, the legislature intended that in all cases irrespective of the nature of

the creditors‟ claim against the debtor a copy of the petition has to be
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furnished to the debtor. The section does not use the term „serve‟ but rather

uses the word „furnish‟, which is not a term of general application in our civil

practice and procedure. It would seem that the legislature intended a form of

informal service. The dictionary definition of „furnish‟ is „to provide, contribute,

afford, supply, yield‟.



The furnishing to the debtor of the petition may be dispensed with in cases

where the court is of the opinion that it is in the interests of the creditor or the

debtor. In the first place, it seems to me that a creditor would necessarily have

to make out a case in the founding affidavit to dispense with the furnishing of

the petition. Factors that could properly be taken into account include the

urgency of the matter and the conduct of the debtor in relation to his assets. In

general the court will weigh the interests of the creditor and the debtor and,

more particularly the prejudice that may be suffered by such creditor if he/she

gives notice and the application is heard in due course. The factors that could

be taken into account are not exhaustive. Each case will depend on its own

particular circumstances.



The court on page 358(D) said the following: In case I have wrongly found

that lis alibi pendens does not apply, it seems to me that this would be a

proper case not to exercise a discretion to stay the sequestration

proceedings. It seems possible now to restate the rule for granting a stay as

follows:



       In order to justify a stay two conditions must be satisfied, one positive

       and the other negative: (a) the defendant must satisfy the court that

       there is another forum to whose jurisdiction he is amenable in which
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       justice can be done between the parties at substantially less

       inconvenience or expense, and (b) the stay must not deprive the

       plaintiff of a legitimate personal or juridical advantage which would be

       available to him if he invoked the jurisdiction of the English court.



       The court must weigh advantage to the plaintiff against disadvantage to

       the defendant, taking into account such factors as the availability of

       witnesses, the expense and inconvenience of all concerned, the speed

       of the judicial process, and the level of awards of damages and legal

       costs.



       Each case, then, depends upon its circumstances, but in most of the

       decisions in which the issue has been raised the courts have refrained

       from exercising their jurisdiction to order a stay of proceedings.



Each of the factors alluded to in the foregoing quotation weighs heavily with

me. In my opinion, given the magnitude of the present litigation and the

enormous costs incurred so far, a stay of proceedings would be unfair both to

the applicant and to the South African creditors of the first respondent.



I conclude therefore that the plea of lis alibi pendens ought not to be upheld.



The court then turned to the issue of issue of whether the first respondent

committed an act of insolvency in terms of s 8(a). This subsection reads as

follows:



       A debtor commits an act of insolvency–
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       (a)    if he leaves the Republic or being out of the Republic remains

              absent therefrom, or departs from his dwelling or otherwise

              absents himself with intent by so doing to evade or delay the

              payment of his debts. In order to hold that a debtor has

              committed this act of insolvency it must be established on

              balance of probability that each of the acts of leaving the

              Republic or being outside the Republic and departing from his

              dwelling must be with the intent to evade or delay the payment

              of his debts.



The court having considered the evidence then concluded as follows:



In all the circumstances I hold that the applicant has established the act of

insolvency relied upon in his founding affidavit.



The rule nisi was confirmed.
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EHRLICH v MINISTER OF CORRECTIONAL SERVICES AND ANOTHER

2009 (2) SA 373 (ECD)



The applicant, a sentenced prisoner, brought an application for the review and

setting–aside of the decision of the second respondent, the head of

Mdantsane prison, to deny medium category offenders supervised access to

the gymnasium in the maximum security section of the prison for the purposes

of development programmes. The applicant had been a karate instructor in

2005 until his transfer to East London prison in September 2006. He was

subsequently transferred back to Mdantsane in July 2007. On 8 October 2007

he was refused access to the gymnasium to teach karate because the second

respondent had decided that no medium category prisoners were to be

allowed into the maximum security section. The essence of the applicant‟s

case was that he had been denied his right to participate in a development

programme as envisaged in s 41 of the Correctional Services Act 111 of

1998, in circumstances that were unfair, unreasonable and amounted to

unequal treatment.



The court, inter alia, made the following observations: paragraph [26]: “This

application reflected poorly on the respondents‟ sense of fairness, and on

their obligation to „respect, protect, promote and fulfil‟ the fundamental rights –

in this case, the right of access to court – of people such as the applicant who

are detained by them. Courts are entitled to expect better of organs of State.

Unfortunately, the respondents did not stop there in their efforts to frustrate

the applicant at every turn. The second respondent made certain allegations

of improper conduct against the applicant, filing vague affidavits, some

containing hearsay evidence, to purportedly support these allegations. On his
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own version these allegations had nothing whatsoever to do with his decision

to stop the karate development programme. . .”



Paragraph [36]: “As stated at the outset, the applicant has represented

himself throughout these proceedings. While the legal basis upon which the

relief is sought should ordinarily be identified by the applicant, this rule cannot

be applied rigidly and certainly not when a lay litigant represents himself or

herself. In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and

Others 2004 (4) SA 490 (CC) O‟Regan J articulated the rule as follows in a

case in which no mention was made of the Promotion of Administrative

Justice Act 3 of 2000 – PAJA – in a review of an administrative decision:



       „Where a litigant relies upon a statutory provision, it is not necessary to

       specify it, but it must be clear from the facts alleged by the litigant that

       the section is relevant and operative. I am prepared to assume, in

       favour of the applicant, for the purposes of this case, that its failure to

       identify with any precision the provisions of PAJA upon which it relied is

       not fatal to its cause of action. However, it must be emphasised that it

       is desirable for litigants who seek to review administrative action to

       identify clearly both the facts upon which they base their cause of

       action, and the legal basis of their cause of action.‟”



Paragraph [37]: “In this case the decision taken by the second respondent is

an administrative decision. It was the exercise of a public power taken during

the course of administering the prison in terms of the Correctional Services

Act, it affected the rights of the applicant and others to take part in a

development programme, as envisaged by s 41(5) of the Act; and, as it put a
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stop to the karate development programme, it had a direct, external legal

effect.”



Paragraph [41]: “I turn now to whether the second respondent‟s decision was

unreasonable. Section 6(2) of the PAJA states that administrative action may

be set aside if „the exercise of the power or the performance of the function

authorised by the empowering legislation in pursuance of which the

administrative action was purportedly taken, is so unreasonable that no

reasonable person could have so exercised the power or performed the

function‟.”



Paragraph [43]: “I am of the view that the second respondent‟s decision was

unreasonable. It is a decision that no reasonable decision–maker could have

reached.”



Paragraph [44]: “The decision is also unreasonable because the second

respondent has applied different rules to the applicant and the other

participants in the karate development programme, on the one hand, and to

everyone else, on the other. There is no rational basis that I can gauge, and

none has been suggested by the second respondent, to justify why medium

category prisoners can attend band practice in A–Section, or why medium

category prisoners can run a shop there, but the karate development

programme may not be run there.”



The application was granted and the second respondent‟s decision set aside.
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UMVOTI MUNICIPALITY v ANC UMVOTI COUNCIL CAUCUS AND

OTHERS

2009 (2) SA 388 (NPD)



A resolution by a municipal council removing a mayor from office without prior

notice, in terms of s 53(1) of the Local Government: Municipal Structures Act

117 of 1998 is clearly invalid. It is clear from the provisions of ss 36, 37 and

41 of the Local Government: Municipal Structures Act that the presence of a

speaker is obligatory for the proper and regular conduct of council meetings

and that the absence of a speaker or an acting speaker in his stead renders

the meeting irregular. Therefore any resolutions passed at such a meeting are

likewise tainted by the irregularity.



In this regard reference is made to the following paragraphs of the judgment:

paragraph [7]: “Moreover, s 53 dealing with the removal of office of members

of the executive committee provides:



       53(1) A municipal council may, by resolution remove from office one

       or more or all the members of its executive committee. Prior notice of

       an intention to move a motion for the removal of members must be

       given. . .



It was common cause before me that no such prior notice of an intention to

move a motion for the removal of Alderman PM Ngubane as mayor was ever

given. For this reason Mr Kuboni was constrained to concede that the

resolution purportedly taken removing Alderman PM Ngubane from office as
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mayor of the municipality and the appointment of councillor TZ Ngubane as

mayor in his stead was clearly void and of no force and effect.”



Paragraph [8]: “I understood Mr Kuboni to have argued that the further

resolution taken at this meeting which is complained of, namely in relation to

the budget, was a good and proper resolution. In this regard I am constrained

to agree with the argument by counsel for the applicant that inasmuch as both

these resolutions, namely the removal of Alderman PM Ngubane as mayor

and the resolution in relation to the budget were taken at a stage when there

was no speaker in charge of the meeting of the council, both these resolutions

are therefore irregular. It cannot be argued, by any stretch of the imagination,

that the purported continuation of the meeting in the absence of the speaker,

which is common cause, was regular in the circumstances. In this regard

reference is made to the provisions of ss 36, 37 and 41 of the Local

Government: Municipal Structures Act 117 of 1998.”



The presence of a speaker therefore is obligatory for the proper and regular

conduct of council meetings. It is clear from these provisions that the absence

of a speaker or an acting speaker in his stead rendered the meeting irregular

and therefore any resolutions passed were likewise tainted by the irregularity.



In an application for an order declaring that certain resolutions taken by the

council of the applicant municipality were void and of no force and effect, the

authority of the speaker of the council to bring the application was questioned

by the respondents.
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Paragraph [12] of the judgment reads as follows: “I turn now to deal with the

question of the lack of authority on the part of the speaker to bring the

application. In this regard the respondents disputed the authority of Maharaj in

his capacity as speaker to bring the present application on behalf of the

applicant and challenged him to prove by affidavit that he was in fact so

authorised. In consequence of this challenge the applicants put up the

affidavits of Gerhard Herbert Balzer stating that, in his capacity as acting

municipal manager, he authorised the speaker, Maharaj, to engage the

attorneys and to take the legal action necessary to resolve the disputes that

had presented themselves.”



Paragraph [14]: “Clearly, the current application is that of the applicant and

when the speaker, Maharaj, stated that he had the authority to bring this

application, all he was stating was that he had the authority to be a witness in

the applicant‟s case, and for that reason to instruct the attorneys who

represented the applicant.”



And “It has also been argued by the respondents that the municipal manager

did not have the authority to authorise the speaker, Mr Maharaj, to represent

the applicant in these proceedings. To this end the respondents put up, as

annexure RA to the papers before me, a portion of the standard operating

manual dealing with the delegation of powers. In terms of the delegated

powers as contained in para 9.1 of the standard operating manual, the

municipal manager has delegated powers–
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       to manage the municipality‟s administration in accordance with the

       provisions of the Systems Act and other legislation applicable to the

       municipality; . . .



lt is apparent from this provision that the municipal manager, in the event of

there being difficulties in the administration of the municipality occasioned by

deadlock, such as in this case where the speaker (and other councillors)

takes the view that certain resolutions purportedly passed by the council are

irregular, whilst other councillors are of the view that such resolutions are

good and proper, in these circumstances, would be entitled to approach the

court to avert the deadlock.”



And further “It is in these circumstances that the municipal manager (or acting

municipal manager, as he then was), because of his inability, due to family

commitments, to instruct the attorneys representing the applicant, authorised

the speaker, Mr Maharaj, to depose to the affidavit in support of the

application in his stead. It is in any event not denied by the respondents that

the applicant had in terms of reg 2 of the Municipal Supply Chain

Management Regulations (GN 868 in Government Gazette 27636 of 30 May

2005), made by the Minister of Finance in terms of s 168 of the Local

Government: Municipal Finance Management Act 56 of 2003, developed a

policy to delegate and did in fact delegate to its accounting officer, the

municipal manager, the powers of its financial officer, which include the power

to appoint consultants and lawyers.”



Paragraph [16]: “In these circumstances I am persuaded that the applicant

was not only entitled, but obliged in the circumstances, to bring the present
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application to avoid the deadlock that very well may have ensued if it did not. I

am accordingly satisfied that the rule nisi falls to be confirmed.”



The respondents were ordered to pay the costs.
                                                                     Page 18   of 61


McCARTHY LTD v ABSA BANK LTD

2009 (2) SA 398 (WLD)



There is no implied term in the contract between a banker and its customer

that the banker will fulfil the collecting function of the bank without negligence

vis-à-vis the customer. This is so because the drawer of a cheque is protected

against the negligence of a collecting banker by the law of delict and there is

thus no pressing need for such a term. Moreover, a finding that such an

implied term exists would deprive the defendant of the advantage of

apportionment.



Paragraph [6] of the judgment reads as follows: “It seems self–evident that

where A and B bank agree that A will be a customer of B and conduct a

cheque account at the bank, B becomes obliged to pay A‟s cheques, if A has

the funds for this to occur, and further that B has to collect for the credit of A‟s

account cheques drawn by others in his favour. As to the collection of

cheques drawn by A, two possibilities arise: either the collecting banker will be

B, or it will be another bank. In the latter case, A and B will clearly not have

any kind of agreement governing the collecting role of such other bank. The

question which arises for my decision is whether in the former case, where

bank B itself does the collecting, A and B can be found to have included in

their contract the term that B would fulfil the collecting function without

negligence vis-à-vis A. Our law recognises the distinction between the paying

and collecting functions of a bank. See Standard Bank of SA Ltd v Harris and

Another NNO (JA Du Toit Inc Intervening) 2003 (2) SA 23 (SCA) at 29J–30E.”



An order of absolution from the instance was granted.
Page 19   of 61
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MLATSHENI v ROAD ACCIDENT FUND

2009 (2) SA 401 (ECD)



The Road Accident Fund is established by s 2 of the Road Accident Fund Act

56 of 1996. Its object is to pay compensation „in accordance with this Act for

loss or damage wrongfully caused by the driving of motor vehicles‟ (s 3). It

uses public funds to achieve the purposes assigned to it by the Act (s 5). Its

resources and facilities are to be „used exclusively to achieve, exercise and

perform the object, powers and functions of the Fund, respectively‟ (s 7).

From these provisions, and a reading of the Act as a whole, it is not open to

doubt that the defendant is an organ of State as intended in s 239 of the

Constitution, 1996. That being so, it is bound by the Bill of Rights (s 8(1) of the

Constitution) and is under an express constitutional duty to „respect, protect,

promote and fulfil the rights in the Bill of Rights‟ (s 7(2) of the Constitution).

This means not only that it must refrain from interfering with the fundamental

rights of people but also that it is under a positive duty to act in such a way

that their fundamental rights are realised.



The court, inter alia, made the following observations: paragraph [11]: “This

defence, if it may be so called, was never pleaded and there was not one jot

of evidence, or the slightest hint in the documents, to suggest that it may have

any merit. Nor did Mr Mvulana seek to lead any evidence to establish a

factual basis for it. . . .”



Paragraph [12]: “I have raised the problem of this spurious defence, the

absence of any mention of it in the pleadings and the absence of evidence

upon which it could be based because this type of approach to matters of this
                                                                      Page 21   of 61


kind by the defendant has become common practice in this jurisdiction:

typically, when a trial commences, the plaintiff and his or her witnesses are

ritualistically required to jump through a few hoops by the defendant, who

leads no evidence to advance its case and has not so much as an expert‟s

report to counter the expert witnesses of the plaintiff, but still persists in its

opposition in circumstances in which the matter should have been settled at

an early stage.”



Paragraph [15]: “By frustrating the legitimate claim of the plaintiff in the way

that I have described, the employee of the fund who gave Mr Mvulana his

instructions has acted in violation of the Constitution: he or she has, by

unjustifiably frustrating the claim of the plaintiff, failed to „protect, promote and

fulfil‟ his fundamental rights to human dignity, to freedom and security of the

person and to bodily integrity.‟”



Paragraph [16]: “Organs of State are not free to litigate as they please. The

Constitution has subordinated them to what Cameron J, in Van Niekerk v

Pretoria City Council, called „a new regimen of openness and fair dealing with

the public‟. . .”



Paragraph [17]: “It is expected of organs of State that they behave honourably

– that they treat the members of the public with whom they deal with dignity,

honestly, openly and fairly. This is particularly so in the case of the defendant:

it is mandated to compensate with public funds those who have suffered

violations of their fundamental rights to dignity, freedom and security of the

person, and bodily integrity, as a result of road accidents.”
                                                                      Page 22   of 61


MOSE NO v MINISTER OF EDUCATION, WESTERN CAPE, AND OTHERS

2009 (2) SA 408 (CPD)



That a disciplinary hearing should be conducted as if it were a court of law

does not accord with the generally accepted approach to administrative

tribunals. What is required is that the administrative tribunal should act fairly in

affording the affected individual the opportunity of a fair hearing. The concept

„fairness‟ may be a highly contested concept and not easy to ascertain, nor

may it be easy to find agreement upon what it means in any specific situation.



The court made the following observations: paragraph [4]: “The relief

essentially sought by applicant is aimed at preventing the expulsion of her

son, LM, from the school. The school governing body preferred certain

charges against LM. The charges relate to the allegations that LM sold dagga

to fellow learners at the school. He also allegedly smoked and provided dagga

to learners whilst in the school‟s uniform at a nearby public park in

Goodwood.”



Paragraph [14]: “The proceedings conducted by third respondent can hardly

be described as procedurally unfair. The argument advanced by the applicant

that the disciplinary hearing should have been conducted as if it were a court

of law does not accord with the generally accepted approach to administrative

tribunals. What is required is that the administrative tribunal should act fairly in

affording the affected individual the opportunity of a fair hearing. The concept

„fairness‟ may be a highly contested concept and not easy to ascertain, nor

may it be easy to find agreement upon what it means in any specific situation.

The correct approach is „fairness‟ must be deduced from the circumstances of
                                                                     Page 23   of 61


each case, having regard to the following factors, namely the nature of the

inquiry, the rules governing the tribunal and the subject–matter.”



Paragraph [15]: “It follows that the evidence of the witnesses, who gave oral

evidence at the hearing, cannot, in my view, be regarded as an irregularity or

illegality merely because it was not under oath. The applicant‟s attorney had,

in my view, a fair and reasonable opportunity to cross–examine the witnesses

who testified against the applicant‟s son. Mr Marchand was extensively cross–

examined as to the preliminary interview of the various learners and

applicant‟s son.”



Paragraph [21]: “Mr Kantor correctly conceded that the applicant‟s son has

been found guilty of a serious misconduct. It appears from the facts of this

matter that the ills of our society have spilled over onto the grounds of our

schools, which ordinarily should be safe havens for education and training.

The applicant‟s son, like any other learner, has undoubtedly a constitutional

right   to   proper   basic   education.   In   my    view,   a   learner,     and,

in particular, learners at high–school institutions, cannot place in jeopardy

their fellow learners‟ equally important right to proper basic education in a safe

environment by indulging in serious misconduct, like selling and abusing

illegal drugs on school premises. With rights come responsibilities. Our

learners and, more importantly, those at high–school institutions, must

appreciate and understand that misconduct, in open society, attracts

sanctions and, in appropriate circumstances, may, include expulsion.”



The rule nisi was discharged.
                                                                  Page 24   of 61


POINT 2 POINT SAME DAY EXPRESS CC AND ANOTHER v STEWART

AND ANOTHER

2009 (2) SA 414 (WLD)



The operation of s 54(1) of the Close Corporations Act 69 of 1984 (which

provides that „(s)ubject to the provisions of this section, any member of a

corporation shall in relation to a person who is not a member and in dealing

with the corporation, be an agent of the corporation‟) is not absolute. Section

54(2) makes it possible for a member of the close corporation to argue that

the member who contracted with or, as in the present matter, released the

third party was not authorised to do so. The mere fact that the contract or act

did not fall within the ordinary course of the business of the close corporation

would not, in itself, be a defence. However, if the third party knows or ought

reasonably to have known that the member did not have authority, it would be

a defence. In this sense the doctrine of ostensible authority is introduced by s

54(2).



Professor Henning (ed) Beslote Korporasiediens states as follows:



         „5.14 Die bevoegdheid van „n lid om „n beslote korporasie te bind

               word in art 54 uiteengesit. Die effek is dat, sover dit bona fide

               buitestanders betref wat met die korporasie sake doen, elke lid

               van die korporasie „n verteenwoordiger van die korporasie is. „n

               Handeling van „n lid bind die korporasie teenoor so „n

               buitestander wat met die korporasie sake doen, hetsy sodanige

               handeling verrig is vir die dryf van die besigheid van die

               korporasie al dan nie.
                                                                 Page 25   of 61




      5.15   Indien „n lid se verteenwoordigingsbevoegdheid beperk of

             uitgesluit word, sal hy nogtans die korporasie teenoor die

             buitestander bind, tensy die buitestander kennis dra, of

             redelikerwys kennis behoort te dra, van die feit dat die lid in

             werklikheid geen bevoegdheid het om namens die korporasie in

             die besondere aangeleentheid te handel nie.‟



Paragraph [10]: “I respectfully agree with the reasoning of Koen AJ and the

conclusions reached by Prof Henning. The operation of s 54(1) is, however,

not absolute. Section 54(2) makes it possible for a member of the close

corporation to argue that the member who contracted with or, as in the

present matter, released the third party was not authorised to do so. The mere

fact that the contract or act did not fall within the ordinary course of the

business would not, in itself, be a defence. However, if the third party knows

or ought reasonably to have known that the member did not have authority, it

would be a defence. In this sense the doctrine of ostensible authority is

introduced by s 54(2).”



In NBS Bank Ltd v Cape Produce Co (Pty) Ltd and Others 2002 (1) SA 396

(SCA) Schutz JA stated as follows at para 25:



      „As Denning MR points out, ostensible authority flows from the

      appearances of authority created by the principal. Actual authority may

      be important, as it is in this case, in sketching the framework of the

      image presented, but the overall impression received by the viewer

      from the principal may be much more detailed. Our law has borrowed
                                                                 Page 26   of 61


       an expression, estoppel, to describe a situation where a representor

       may be held accountable when he has created an impression in

       another‟s mind, even though he may not have intended to do so and

       even though the impression is in fact wrong. . . .‟



The court having considered the evidence, concluded as follows: “My

conclusion is that in the light of the circumstances Ms Stewart either knew or

should reasonably have known that Mr Calisse did not have the authority to

release her. There was no dispute that the respondents were and are

competing with the applicants. Even the risk of competition would have

justified an interdict.”
                                                                        Page 27   of 61


BUTCHER v BUTCHER

2009 (2) SA 421 (CPD)



In view of the absence of an enabling statutory provision in the Divorce Act 70

of 1979 or the Children‟s Act 38 of 2005, a parent of adult children lacks the

necessary locus standi in divorce proceedings to claim an order, on behalf of

such adult children, that the other parent pay certain allowances directly to the

children or certain expenses on their behalf. Only the children themselves

have the standing to pursue such claims against the other parent.



The court, inter alia, made the following observations: paragraph [10]: “The

well–established principle in our law that a parent‟s duty of support does not

cease when a dependent child reaches majority has been discussed in

Bursey v Bursey and Another [1997] 4 All SA 580 (E) 587, a full bench

decision, as follows:



       „It is not, with respect, “quite a different rule of law” that obliges parents

       to support children in certain circumstances after majority from that rule

       which obliges them to support and educate their minor children. It is the

       same duty. This is correctly expressed in the contributor to Family Law

       Service, edited by I D Schafer, as follows at “C Maintenance”, 4(2)–5:



              “A parent‟s duty to support a child does not cease when a child

              reaches     a    particular   age.    .   .   It   does     come       to

              an end when the child becomes self–supporting. Majority is not

              the determining factor here. . . . The fact that a child is working

              does not mean that he/she is necessarily self–supporting.
                                                                   Page 28   of 61


              Continued but reduced support by parents may be necessary in

              accordance with the family‟s standard of living; that is, the

              standard of living of both parents and child. The duty of support

              likewise revives if a child ceases to be self–supporting for

              reasons such as ill–health, disability or compulsory military

              service.”‟”



Paragraph [13]: “Although in ordinary language and in terms of s 1 of the

Children‟s Act a person ceases to be a „child‟ at the age of majority, it seems

to me that within the context of s 6 of the Divorce Act, which in addition to a

„minor child‟ specifically also makes provision for a „dependent child‟. The

Divorce Court is enjoined to make maintenance orders, where appropriate, for

an adult dependent child. Such an interpretation would recognise the parents‟

common–law duty of support which extends beyond the age of majority and is

also consistent with the use of the word „child‟ in the context of die phrase

„child of the marriage‟, which can also apply to adult children. Section 6,

however, is silent as to whether a party to divorce proceedings has locus

standi to claim maintenance on behalf of a dependent adult child.”



Paragraph [14]: “Although the Children‟s Act implicitly assumes that children

are financially independent at 18 and that parental financial responsibility

should end at that date, the social reality in South Africa is that many children

have not concluded their secondary education, let alone completed their

tertiary education, when they turn 18, and remain financially dependent on

their parents several years after they attain the age of majority. Regrettably,

neither the Divorce Act nor the Children‟s Act expressly authorises a parent

with whom an adult dependent child resides to claim maintenance on his/her
                                                                   Page 29   of 61


behalf from the other parent. Placing this burden on an adult dependent child

who still lives at home in most circumstances puts him/her in an invidious

position. Also, where an adult dependent child still lives at home and the

primary residence parent requires a contribution in respect of his living costs,

it is undesirable that such a parent should look towards the adult child to pay

over a contribution from an amount received as maintenance from the other

parent.”



Paragraph [15]: “Given the absence of an enabling statutory provision in the

Divorce Act or the Children‟s Act, I am compelled to the view that the

applicant lacks the necessary locus standi to claim an order, on behalf of the

adult children, that the respondent pay certain allowances directly to them or

certain expenses on their behalf. Only the children themselves have the

standing to pursue such claims against the respondent (see Smit v Smit 1980

(3) SA 1010 (0) at 1018(C)).”



Paragraph [17]: “In my view the applicant‟s claim for the cash amount to be

received by her pendente lite, which in part is intended to cover the children‟s

food and grocery expenses at the family home, as well as general household

expenses, is on a different footing to the claims pursuant to which she seeks

payment of certain allowances directly to the children. In terms of s 7(2) of the

Divorce Act a court, when determining a spousal maintenance claim, must

take into account, amongst other factors, the parties‟ respective financial

needs and obligations, as well as their standard of living during the marriage.

After the parties in the present matter separated the children continued to live

with the applicant. Consequently, she had to use her household budget to run

the family home and provide groceries for a three–member household. It
                                                                 Page 30   of 61


seems to me that in the circumstances of the present case the applicant‟s

responsibility to provide the children with a home, with all that this entails,

constitutes an „obligation‟ within the meaning of s 7(2) of the Divorce Act

which can validly be taken into account in determining the quantum of her

interim maintenance claim. Accordingly, in determining the quantum of

maintenance claimed by the applicant pursuant to para 1.1 of the draft order, I

shall make allowance in her favour for the fact that she provides groceries for

the children and that some of her general household expenses may be higher

than for a single person because they live with her.”
                                                                     Page 31   of 61


S v LE GRANGE AND OTHERS

2009 (2) SA 434 (SCA)



The three appellants appeared in the High Court on a count of murder. The

first appellant was convicted as charged and sentenced to 24 years‟

imprisonment. The other two appellants were convicted of being accessories

after the fact to the murder and sentenced to effective terms of six and five

years respectively. Leave to appeal conviction and sentence was granted to

all three appellants on petition to the Supreme Court of Appeal. During the

course of the trial the defence applied unsuccessfully for the recusal of the

presiding judge on the grounds, firstly, that he had irregularly curtailed or

interrupted the cross–examination of certain State witnesses; and, secondly,

that the presiding judge had questioned the first appellant in a manner that,

having regard to his judicial functions, was impermissible or excessive. The

main contention on appeal was that, having regard to the manner in which the

presiding judge had conducted himself, the appellants had not had a fair trial.



The court, inter alia, made the following observations: paragraph [14]: “A

cornerstone of our legal system is the impartial adjudication of disputes which

come before our courts and tribunals. What the law requires is not only that a

judicial officer must conduct the trial open–mindedly, impartially and fairly, but

that such conduct must be „manifest to all those who are concerned in the trial

and its outcome, especially the accused‟. The right to a fair trial is now

entrenched in our Constitution. As far as criminal trials are concerned, the

requirement of impartiality is closely linked to the right of an accused person

to a fair trial which is guaranteed by s 35(3) of our Constitution. Criminal trials

have to be conducted in accordance with the notions of basic fairness and
                                                                      Page 32   of 61


justice. The fairness of a trial would clearly be under threat if a court does not

apply the law and assess the facts of the case impartially and without fear,

favour or prejudice. The requirement that justice must not only be done, but

also be seen to be done has been recognised as lying at the heart of the right

to a fair trial. The right to a fair trial requires fairness to the accused, as well

as fairness to the public as represented by the State.”



Paragraph [19]: “The locus classicus in respect of the questioning, by a

presiding officer, of a witness, including an accused, is S v RaIl 1982 (1) SA

828 (A), in which Trollip AJA laid down three principles of proper judicial

behaviour, namely:



       (i)     A judicial officer must ensure not only that justice is done but in

               addition that it is seen to be done. He must therefore so conduct

               the trial that his open–mindedness, impartiality and fairness are

               manifest to all concerned with the trial and its outcome,

               especially the accused.



       (ii)    A judicial officer should refrain from questioning witnesses or the

               accused in such a way or to such an extent that it may preclude

               him/her from detachedly or objectively appreciating and

               adjudicating upon the issues.



       (iii)   A judicial officer should refrain from questioning a witness or the

               accused in a way that may intimidate or disconcert him/her or

               unduly influence the quality or nature of his/her replies and thus

               affect his/her demeanour or impair his/her credibility.”
                                                                      Page 33   of 61




Paragraph [20]: “I have quoted the passages in extenso, without any gloss,

because it illustrates, I do believe, that the conduct of the learned Judge

President breached all three canons of good judicial behaviour. Whilst the

questioning of each of the appellants was lengthy, a purely quantitative

analysis does not by any means tell the whole story. Many of the questions

were   indeed    legitimately   put   to   the   appellants   for   elucidation   or

supplementation, but the record is also replete with questions that were

intended to discredit the appellants, compounded in many instances by

disbelief and scepticsm. The nature, content and manner of the questioning

leads one to the conclusion that far from merely clarifying matters or assisting

the appellants to elucidate their defence, the questioning sought to pick holes

in their story. Invariably the series of questions, which, from the perspective of

the appellants, must have bore all of the hallmarks of cross–examination,

seemed to be designed to produce an answer favourable to the State. It failed

to produce that result but the fact remains that the attempt was undertaken. It

is well to remember that it remains counsel‟s job, not the trial judge‟s, to

explore inconsistencies. The questioning was to my mind, a strong indication

that the Judge President had, at an early stage made up his mind that the

State witnesses were telling the truth and the appellants lying. The language

may in many instances be described as unjudicial language that is readily

susceptible to an interpretation that the learned Judge President was hostile

to the appellants to the extent that he was not able to bring an unclouded

mind to bear on the adjudication of the issues before him.”



Paragraph [21]: “It must never be forgotten that an impartial judge is a

fundamental prerequisite for fair trial. The integrity of the justice system is
                                                                      Page 34   of 61


anchored in the impartiality of the judiciary. As a matter of policy it is important

that the public should have confidence in the courts. Upon this social order

and security depend. Fairness and impartiality must be both subjectively

present and objectively demonstrated to the informed and reasonable

observer. Impartiality can be described – perhaps somewhat inexactly – as a

state of mind in which the adjudicator is disinterested in the outcome, and is

open to persuasion by the evidence and submissions. In contrast, bias

denotes a state of mind that is in some way predisposed to a particular result,

or that is closed with regard to particular issues.”



Paragraph [22]: “Partiality has both an attitudinal and behavioural component.

Before us it was argued that the Judge President‟s conduct throughout the

trial, including his interjections, tone (which it was suggested was rough,

hostile and intimidating) and comments, makes it plain that he had prejudged

the matter. That view, it is contended, is bolstered by certain comments and

observations by the learned Judge President during the course of his

judgment both on the merits and sentence.”



Paragraph [23]: “In effect the learned Judge President appears to be saying I

never, right from the outset, believed the version of the appellants, nor should

their legal representatives. Unintended though it may have been, the spectre

that it raises is that the learned Judge President, in his approach to the

appellants‟ case was not objective and impartial. It is certainly suggestive of

one who has certain preconceived biases and who allows those biases to

affect his judgment.”
                                                                    Page 35   of 61


Paragraph [29]: “It may well be that some of the irregularities complained of

would, in themselves, not be a sufficient indication that the appellants did not

have a fair trial. Taken cumulatively though, I have no doubt that they compel

the conclusion that in fact the learned Judge President was not fair and

impartial during the trial. In these circumstances the proceedings are invalid

and the convictions and sentences imposed on the appellants cannot stand.”



Paragraph [30]: “One final aspect remains. Section 35(3)(m) of the

Constitution provides that an accused person has the right not to he tried for

an offence in respect of any act or omission for which that person has

previously been acquitted or convicted – a right that entrenches the common–

law right expressed in the maxim debet bis vexari pro una et eadem causa.

This is the right against double jeopardy which gives rise to the defences of

autrefois convict or autrefois acquit. Irregularities vary in nature and degree.

As it was put by Holmes JA, in S v Naidoo:



       ‘Broadly speaking they fall into two categories. There are irregularities

       (fortunately rare) which are of so gross a nature as per se to vitiate the

       trial. In such a case the Court of Appeal sets aside the conviction

       without reference to the merits. There remains thus neither a conviction

       nor an acquittal on the merits, and the accused can be re–tried in terms

       of sec 370(c) [now s 324] of the Criminal Code.’”



The court then in paragraph [31] concluded as follows: “Plainly, the irregularity

encountered here falls into the first category alluded to by Holmes JA in

Naidoo. The possibility of double jeopardy thus does not arise and the

institution of a new trial will not infringe s 35(3)(m) of the Constitution. There
                                                                  Page 36   of 61


remains a pressing societal demand for and compelling public interest in,

what after all is a case involving a most serious charge. The right of an

accused to a fair trial, as the Constitutional Court has observed in S v Jaipal,

requires fairness to the accused, as well as fairness to the public as

represented by the State.”



The appeal was allowed and it was ordered that proceedings in respect of the

same offence may again be instituted either on the original charge, suitably

amended where necessary, or upon any other charge as if the appellants had

not previously been arraigned, tried and convicted: provided that the judge

before whom the original trial took place shall not take part in such

proceedings.
                                                                    Page 37   of 61


DADA AND OTHERS NNO v UNLAWFUL OCCUPIERS OF PORTION 41

OF THE FARM ROOIKOP AND ANOTHER

2009 (2) SA 492 (WLD)



The applicants, the trustees of a religious charitable trust, applied for the

eviction of the first respondent unlawful occupiers of land owned by the trust.

The municipality within whose jurisdiction the land was situated was joined as

the second respondent. On behalf of the first respondent a counter–

application was made seeking an order declaring that the municipality was

under a constitutional and statutory obligation to have a policy and/or

programme in place which (1) made short–term provision for the unlawful

occupiers residing at portion 41 of the farm Rooikop 140, Gauteng, who were

in a crisis or in a desperate situation; (2) provided relief for the said unlawful

occupiers who were in a crisis or in a desperate situation; and (3) gave

adequate priority and resources to the needs of the said unlawful occupiers,

who did not have access to a suitable place where they may lawfully live. An

order interdicting the applicants from evicting the unlawful occupiers was also

sought. The court found on the facts that the applicants had waited in excess

of three and a half years for the law to come to their assistance. The law had

failed them. The unlawful occupiers on the applicants‟ property were citizens

of the country and residents of the municipality. Their plight was desperate.

They had been waiting since the new democracy in 1994 for the government,

through the municipality, to come to their assistance. The municipality had, to

date, done nothing about the plight of these desperate people. The evidence

was that the first step in the process of assisting these people would be the

commission of reports by consultants. The necessary environmental impact

assessment and geotechnical survey could not be done in less than a year.
                                                                 Page 38   of 61


After the completion of these reports, there were decisions to be taken by the

municipality. This involved acquiring the property and motivating a budget to

provide essential services.



I now refer to the following paragraphs in the judgment: paragraph [34]: “In

Government of the Republic of South Africa and Others v Grootboom and

Others 2001 (1) SA 46 (CC) (2000(11) BCLR 1169) the Constitutional Court

held that s 26 guaranteed a right of housing to those who did not have

resources to provide for themselves. In its decision the court recognised that

the State has a particular and special obligation to provide housing to those

who cannot afford to provide for themselves, as a question of access.”



Paragraph [45]: “Section 9(1) of the Housing Act 107 of 1997 (the Housing

Act) requires every municipality to take all reasonable steps to ensure

inhabitants in its area have access to housing on a progressive basis. This

has to be done in a manner which gives priority to the needs of the poor in

respect of a housing development. This is clear from the provisions s 9(1)(a)

of the Housing Act.”



Paragraph [48]: “I accept that this municipality has formulated a policy and a

plan to deal with homeless people in its area of jurisdiction. I find, however,

that insofar as the inhabitants of the applicants‟ property are concerned, no

emergency plan has been put into effect.”



Paragraph [49]: “I cannot agree with Mr Hulley‟s contention that the

responsibility in this case rests with central government or the provincial

government. If I were to postpone the matter and require joinder of these
                                                                      Page 39   of 61


higher levels of government, this would not take the matter any further. I have

no doubt that the central government will say to a court that it is the

responsibility of provincial government, which in turn will point out that the

residents‟ first call of complaint is the local government, in this case the

municipality. The Housing Act, as indicated above in s 9(1), makes this the

responsibility of the municipality. . . . In my view, the municipality has failed to

do so. It has not provided essential services in the form of clean water,

sanitation and shelter to these desperate people before the court. This should

have been done already. In my view, it is the municipality‟s responsibility to

find a long–term solution for these residents.”



The court made the following order:



1.     The second respondent is directed to purchase the property from the

       applicants at a purchase consideration of R260 000 within 30 days

       from the date of this order.



2.     The second respondent is required to forthwith make provision of

       essential services to the occupiers of the property.
                                                                  Page 40   of 61


WITHOK SMALL FARMS (PTY) LTD AND OTHERS v AMBER SUNRISE

PROPERTIES 5 (PTY) LTD

2009 (2) SA 504 (SCA)



The respondent approached the High Court for an order declaring a sale at a

public auction of an immovable property owned by the appellants (sellers) to

the respondent to be of no force or effect. The sellers made counter–

application for an order declaring the sale to be of full force and effect. The

conditions of sale specified that the sellers had seven days to confirm the

sale, which they duly did. They failed, however, to communicate their

confirmation of the sale to the respondent within the stipulated seven–day

period. The respondent‟s argument was that, absent communication of the

confirmation to the respondent, no agreement of sale came into existence.

The sellers‟ argument was that the conditions of sale constituted an

agreement of sale subject to a suspensive condition, namely confirmation of

the sale, that the condition had been fulfilled immediately upon confirmation,

and that there was no need for it to be communicated to the respondent. The

High Court found that no sale had been concluded at the time of the auction,

but merely an agreement binding the respondent to its bid for a period of

seven days; that the confirmation thus amounted to the acceptance of an

offer; and, absent sufficient indication that the common law did not apply, that

the sellers‟ acceptance of the offer had to be communicated to the respondent

within the seven–day period. In an appeal to the SCA by the sellers,



The court, inter alia, made the following observations: paragraph [7]: “The

document is poorly drafted. It is couched in language suggestive of a sale

subject to a suspensive condition. Thus, clause 1 speaks of the properties
                                                                    Page 41   of 61


being „provisionally‟ sold „subject to confirmation by the seller‟. . . . In the

present case the conditions of sale reserved to the sellers an unlimited choice

whether to sell or not. It gave rise to no obligation on their part whatsoever

and accordingly no agreement of sale came into existence at the time of the

auction.”



Paragraph [9]: “In terms of clause 1 of the conditions of sale the respondent

bound itself to keep its bid open for a period of seven days. To that limited

extent a binding contract came into existence. The true nature of that contract

was an option granted by the respondent to the sellers to sell the properties

on the terms and conditions set out in the document. I accordingly agree with

the court a quo that on a proper construction the reference in the conditions of

sale to the confirmation of the sale had to be construed as a reference to the

acceptance of an offer.”



Paragraph [10]: “I turn now to the question whether the offer was accepted

within the seven–day period. It is a trite principle of the common law that,

unless „the contrary is established, a contract comes into being when the

acceptance of the offer is brought to the notice of the offeror. It is also trite

that an offeror may indicate, whether expressly or impliedly, the mode of

acceptance by which a vinculum juris will be created. If there is doubt it will be

presumed that the contract will be completed only when the acceptance of the

offer is communicated to the offeror. See Driftwood Properties (Pty) Ltd v

McLean 1971 (3) SA 591 (A) at 597C–G. This was a case in which the court

was similarly concerned with an offer that was open for a limited period. The

contract, which took the form of an offer to purchase, contained a clause that

read:
                                                                   Page 42   of 61




       7.     That this offer is open and binding upon both parties until

              signature by both parties on or before the 17th May 1969, failing

              which it shall lapse if only signed by one party.



The unsigned offer was presented to the seller who signed it and thus

became the offeror. The court concluded that although clause 7 was badly

phrased it prescribed the manner in which the contract was to be concluded. It

was accordingly enough that the purchaser had signed before 17 May 1969

and there was no need for that fact to be communicated to the seller.”



Paragraph [11]: “In each case it will be necessary to consider the terms of the

offer to determine the mode of acceptance required. Where, however, the

offer takes the form of a written contract signed by the offeror, the inference

will more readily arise in the absence of any indication to the contrary that the

mode of acceptance required is no more than the offeree‟s signature.”



The court in paragraph [12] concluded as follows: “I return to the facts of the

present case. When Adam signed the conditions of sale, the final page of that

document (which had not yet been completed and signed by the sellers)

would have read:



       I/we . . . in my/our capacity as the Seller:



       Hereby confirm this sale on the conditions as herein set out.



       Dated at . . . on this . . day of. . . 2006
                                                                Page 43   of 61




       As witnesses:



       1      ...

       2      ...



                                          ___________________

                                          Seller



       Seller‟s telephone number: . . .



       Seller‟s fax number: „ „ „



Once completed and signed by the sellers, the document would have served

as a recordal of the date and place of the „confirmation‟. This to my mind

constitutes the clearest indication that the mode of acceptance was to be the

signature of the sellers.”



The appeal was upheld.
                                                                   Page 44   of 61


ABSA BANK LTD v PROCHASKA T/a BIANCA CARA INTERIORS

2009 (2) SA 512 (D&CLD)



The bank sought judgment against the respondent on the unpaid balances of

an overdraft facility and a loan. In resisting the application the respondent

raised the point of law that the applicant had failed, in both instances, to

comply with the procedural requirements demanded of it by ss 127, 129 and

130 of the National Credit Act 34 of 2005, namely it had failed to deliver to the

respondent a notice in terms of s 129(1)(a) before commencing legal

proceedings, inasmuch as the notices purportedly sent to the respondent

were not sent to the addresses chosen by the respondent in the overdraft or

loan agreements and were therefore not „delivered‟ to the respondent, in

compliance with the Act. The respondent argued that, in the circumstances,

the application ought to be postponed pending compliance by the applicant

with s 129(1)(a).



The court in paragraph [35] concluded as follows: “I must conclude, therefore,

that the submission by Mr Stokes, that the notice contemplated in s 129(1)(a)

is not a prerequisite to a credit provider‟s commencing legal proceedings to

enforce a credit agreement, is devoid of merit. In my view s 129(1)(a) is a

mechanism created by the Act to enable the consumer to take one or other of

those steps proposed by the credit provider in the notice in terms of the

subsection, before the credit provider commences litigation. In terms of s

130(1)(a) the consumer has at least ten business days to take one or other of

those steps.”
                                                                    Page 45   of 61


Paragraph [54] reads as follows: " In my view the present Act, with regard to

the notice contemplated in s 129(1)(a) thereof, represents a radical departure

from its predecessor. Whereas the Credit Agreements Act 75 of 1980 merely

requires the credit receiver to post by prepaid registered mail and, in this way,

„has notified the credit receiver‟ of the default, the present Act in s 129 (1)(a)

creates an obligation on the credit provider (when it decides to take such a

course) to „draw the default to the notice of the consumer in writing‟. Section

129(1)(b) creates a bar against the credit provider legitimately commencing

any legal proceedings to enforce the agreement before providing notice to the

consumer as contemplated in s 129(1)(a). In terms of s 130(1)(a) a credit

provider may only approach a court for an order to enforce a credit agreement

if, inter alia, at least ten business days have elapsed since a credit provider

delivered a notice, as contemplated in s 129(1)(a), to the consumer."



The court accordingly made an order in terms of s 130(4)(e) which reads as

follows:



       “1.    The application is adjourned sine die.



       2.     The applicant may not set the matter down until it has completed

              the following steps:



              (a)    It has complied with the provisions of s 129(1)(a) of the

                     National Credit Act 34 of 2005 (the Act). In particular it

                     must draw the default to the notice of the respondent by

                     delivering a notice, which complies with the provisions of

                     s 129(1)(a) in the manner prescribed by the Act (read
                                               Page 46     of 61


with   the   regulations promulgated      thereto),   to    the

respondent at the address chosen by her as her

domicilium in the term loan agreement.”
                                                                   Page 47   of 61


VON ABO v GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA AND

OTHERS

2009 (2) SA 526 (TPD)



The applicant, a South African citizen, had for more than 50 years invested in

farming interests in Zimbabwe (formerly Southern Rhodesia and Rhodesia).

These farming interests were managed by private companies registered by

the applicant in Zimbabwe and by a trust of which the applicant was the sole

beneficiary. . . . From 1997, and in a more accelerated fashion since 2000, the

Government of Zimbabwe violated the applicant‟s rights by destroying his

property interests in a number of farms in Zimbabwe, or contributing to their

destruction. This destruction of property rights was achieved as part of an

overall scheme and/or policy of the Zimbabwean Government to expropriate

land owned by white farmers. The scheme and/or policy continued to the

present time in Zimbabwe, notwithstanding international condemnation and

the fact that the expropriation of property rights in the manner perpetrated by

the Zimbabwean Government was a clear violation of international law, and

also of South African law.



The court made the following observations: paragraph [62]: “It is an

elementary principle of international law that a State is entitled to protect its

nationals against the wrongs committed by other States contrary to

international law. (Mavrommatis Palestine Concessions case (1924) PCIJ

Reports series A(2) 12).”



Paragraphs [65] – [68]: “The State may only intercede on behalf of one of its

nationals or a person that has a genuine link with the State. The victim must
                                                                 Page 48   of 61


have suffered a violation of his rights at the hands in of the foreign State

which amounts to an infringement of international minimum standards. The

victim must have exhausted all the available remedies against the delinquent

State.”



Paragraph [79]: “In my view the applicant demonstrates beyond any serious

doubt (and certainly on a balance of probabilities) that his property rights in

Zimbabwe have been expropriated unlawfully under international law. I add

that, as will be described later, he was also arrested simply for being on one

of his properties and had to appear in court many times before the charges

were withdrawn.”



Paragraph [81]: “It is not in issue that the expropriation of the properties in

question was effected without compensation, a clear violation of the

international minimum standard.”



Paragraph [84]: “However, a long–standing rule of customary international law

is that if remedies are futile they need not be pursued. See Dugard

International Law – A South African Perspective 3 ed (2005) at 293–5.”



Paragraph [86]: “No purpose will be served by seeking further remedies in the

courts of Zimbabwe. Given the almost absolute disregard that government

shows even for the orders of its own courts, particularly in respect of the

expropriation and taking of the farms of white farmers, there are no remedies

available to the applicant.”
                                                                   Page 49   of 61


Paragraph [89]: “Upon a realistic assessment of the facts and the history

behind this matter, there is no reasonable prospect of the applicant securing

damages or vindication of his rights in a Zimbabwean court. The rule about

exhaustion of local remedies (which exists in the context of diplomatic

protection) finds application in this case and the requirements of this rule have

been met by the applicant. In view of the aforegoing I have concluded that the

jurisdictional facts for qualifying for diplomatic protection have been

established by the applicant.”



Paragraph [135]: “Understandably, counsel for the applicant, in their

comprehensive argument, strongly relied on the judgment in Kaunda and

Others v President of the Republic of South Africa and Others 2005 (4) SA

235 (CC). Kaunda appears to be the leading South African authority on

diplomatic protection and the State‟s duty under the Constitution towards its

nationals who claim protection for injuries suffered abroad at the hands of a

foreign government.”



Paragraph [141]: “The applicant therefore had a right to apply for diplomatic

protection, and the respondents, at a minimum, were under a constitutional

duty at the very least to properly (that is rationally) apply their minds to the

request for diplomatic protection. The learned Chief Justice puts it as follows

in para 69:



       „There may thus be a duty on government, consistent with its

       obligations under international law, to take action to protect one of its

       citizens against gross abuse of international human rights norms. A

       request to the government for assistance in such circumstances where
                                                                    Page 50   of 61


      the evidence is clear would be difficult, and in extreme cases possibly

      impossible to refuse. It is unlikely that such a request would ever be

      refused by government, but if it were, the decision would be justiciable,

      and the court could order the government to take appropriate action.‟”



Paragraph [143]: “From these guidelines provided by the Constitutional Court

it appears that there need not be an actual refusal on the part of government

to grant diplomatic protection before a court will intervene. In an appropriate

case a court can also come to the assistance of the aggrieved national where

government „failed to respond appropriately‟ or „deals with the matter in bad

faith or irrationally‟. In my view, and for all the reasons mentioned, the

government, in the present instance, failed to respond appropriately and dealt

with the matter in bad faith and irrationally. For six years or more, and in the

face of a stream of urgent requests from many sources, they did absolutely

nothing to bring about relief for the applicant and hundreds of other white

commercial farmers in the same position. Their „assistance‟, such as it is, was

limited to empty promises. They exhibited neither the will nor the ability to do

anything constructive to bring their northern neighbour to book.”



The court made the following order:



1.    It is declared that the failure of the respondents to rationally,

      appropriately and in good faith consider, decide and deal with the

      applicant‟s application for diplomatic protection in respect of the

      violation of his rights by the Government of Zimbabwe is inconsistent

      with the Constitution, 1996, and invalid.
                                                                Page 51   of 61


2.   It is declared that the applicant has the right to diplomatic protection

     from the respondents in respect of the violation of his rights by the

     Government of Zimbabwe.



3.   ...



4.   The respondents are ordered to forthwith, and in any event within 60

     days of the date of this order, take all necessary steps to have the

     applicant‟s violation of his rights by the Government of Zimbabwe

     remedied.



5.   The respondents are directed to report by way of affidavit to this court

     within 60 days of this order, what steps they have taken in respect of

     para 4 above, and to provide a copy of such report to the applicant.



6.   ...



7.   ...
                                                                     Page 52   of 61


MOTATA v NAIR NO AND ANOTHER

2009 (2) SA 575 (TPD)



The accused applied in the High Court for the review and setting aside of a

decision by the magistrate presiding over his criminal trial wherein the

magistrate determined that, for purposes of a trial–within–a–trial into the

authenticity and admissibility of certain video clips (which, it was common

cause, contained no visual images but were merely aural recordings), the

State was entitled to play the recordings, and deal with a transcript of the

recordings, in order to enable the court to determine their admissibility. The

accused brought his application on the basis that the magistrate‟s decision

allegedly constituted a gross irregularity which was severely prejudicial to him

in the conduct of his defence (inasmuch as the recordings might be self–

incriminating) and interfered with his constitutional right to a fair trial. It was

submitted for the accused that the principles applicable to the testing of the

admissibility of confessions applied equally in the present matter, with the

result that the State was precluded from playing the video clips prior to the

determination of their admissibility.



The Court held that the submission was ill–conceived that the admissibility of

the video clips was analogous to the admissibility of a confession, as it was

based on the incorrect premise that the contents of the recordings could be

equated with the contents of a confession. And further, that the court was

satisfied that, in order to determine the authenticity and originality of the

recordings and hence their admissibility, the magistrate was entitled, and

indeed obliged, to listen to the recordings.
                                                                     Page 53   of 61


DE VILLIERS v MINISTER OF EDUCATION, WESTERN CAPE, AND

ANOTHER

2009 (2) SA 619 (CPD)



The applicant brought an application in the High Court, in terms of s 6 of the

Promotion of Administrative Justice Act 3 of 2000 (PAJA), for the review and

setting aside of the decision of the second respondent (the head of

department) not to reinstate him in terms of s 14(2) of the Employment of

Educators Act 76 of 1998. At the hearing of the matter, the respondents

objected in limine that the High Court lacked jurisdiction to hear the matter

inasmuch as it fell within the exclusive jurisdiction of the Labour Court in terms

of s 157 of the Labour Relations Act 66 of 1995 (LRA).



Most recently the scope of PAJA and its relationship to the LRA have been

examined by the Constitutional Court in Chirwa v Transnet Ltd and Others

2008 (4) SA 367 (CC) . . . The majority of that court decided that the

Constitution drew a distinction between a right to administrative action (s 33 of

the Constitution) and the right to fair labour practices (s 23 of the Constitution)

together with the laws giving effect to both, being, in the case of s 33, PAJA,

and in the case of s 23, the LRA. The court held that the right to fair

administrative action as embraced in s 33 did not deal with employment and

labour relations because these matters had been comprehensively protected

under s 23 of the Constitution. On this basis, an employee in the public

service no longer has a choice between a cause of action based on the LRA

and on PAJA. Hence, such an employee cannot circumvent the dispute

procedures which were set out in LRA.
                                                                    Page 54   of 61


Viewed accordingly, a discharge in terms of s 14(1), being a deemed

dismissal on account of misconduct, should be treated in similar fashion to a

dismissal on a count of misconduct as in s 18(2). Thus, those provisions of

the Act that govern dismissal due to misconduct ought to apply in similar

fashion. Schedule 2 of the Act lists as among its purposes in s 1(a) „to support

constructive labour relations in education‟ and in s 1(g) „to prevent arbitrary or

discriminatory actions by employers towards educators‟. Section 3 of

Schedule 2 headed „Code of Good Practice‟ specifically incorporates

Schedule 8 of the LRA by reference insofar as it relates to discipline.



The court made the following observations:



Paragraph [21]: “In our view, therefore the employer‟s conduct in exercising

his or her discretion in a manner which failed to prevent a sanction of

dismissal as provided by s 14(1) ought to be subjected to the same scrutiny

as conduct in terms of s 18(3)(i). Such conduct is therefore capable of being

tested against the Code of Good Practice contained in Schedule 8 of the

LRA.”



Paragraph [26]: “Whereas the Chief Justice considers that rights overlap

between the LRA and PAJA and hence both pieces of legislation should

apply, the approach we have adopted, and which is congruent with the

majority judgment of Chirwa, is that the right to which resort should be made

in the present case should be based upon the following considerations:



        (1)   examine the substantive nature of the dispute;
                                                                  Page 55   of 61


      (2)    if it is a dispute that falls under the LRA, then



      (3)    rely upon the more specific right; in this case the right to fair

             labour practices as opposed to the more general right of fair

             administrative action.”



The court in paragraph [27] concluded as follows: “For this reason, therefore,

the applicant has chosen to launch his application in the incorrect forum by

relying on PAJA rather than upon the Employment of Educators Act read

together with the LRA. Consequently, the Labour Court has exclusive

jurisdiction to determine the outcome of this application. In the light of this

conclusion, there is no need for this court to canvass any of the various

arguments which were raised concerning the substantive merits of the

application. For these reasons the application is dismissed with costs.”
                                                                     Page 56   of 61


TSIKA v BUFFALO CITY MUNICIPALITY

2009 (2) SA 628 (ECD)



The law as it stands on the jurisdiction of the High Court in labour and

employment matters can be summarised as follows:



      (i)     All matters in which the cause of action is covered by the LRA

              and for which the LRA provides a remedy fall within the

              exclusive jurisdiction of the Labour Court and hence outside the

              jurisdiction of the High Court.



      (ii)    Employees of statutory institutions may not bring actions in the

              High Court under PAJA or by way of application for common–

              law review in respect of matters covered by the LRA.



      (iii)   Employees may not bypass the LRA dispute–resolution

              procedure and approach the High Court with claims based on

              their constitutional right to fair labour practices.



      (iv)    The High Court and other civil courts retain their common–law

              jurisdiction to entertain claims for damages arising from alleged

              breaches of contracts of employment and the acts or omissions

              of either party after the termination of employment, and the

              Labour Court has concurrent jurisdiction to determine such

              matters.
                                                                    Page 57   of 61


The plaintiff was fired for misconduct and proceeded to institute a High Court

action against his former employer for payment of (a) an amount allegedly

unlawfully deducted from two preservation–fund policies into which part of his

salary had been paid; and (b) an amount allegedly owing to him as an ex

gratia payment in terms of his contract of employment. The defendant

counter–claimed for rectification of the contract and for expenses incurred as

a result of the alleged failure by the plaintiff to discharge certain contractual

and statutory obligations. Relying on Chirwa v Transnet Ltd and Others 2008

(4) SA 367 (CC), the defendant also raised the special plea that the High

Court lacked jurisdiction to determine either the plaintiff‟s claims in convention

or his claim in reconvention because they arose out of employment relations

and were therefore statutorily destined for the Labour Court.



The court made the following observations: paragraphs [25] and [26]: “In the

present case the plaintiff neither relies on PAJA nor requests the court to

invoke its inherent review jurisdiction. The plaintiff approaches this court by

way of action with a claim for payment of sums of money arising from an

alleged breach of contract and the defendant‟s alleged unlawful appropriation

of moneys allegedly belonging to him; and the defendant counterclaims for

rectification of the contract, if needs be, and for expenses incurred as a result

of alleged failure by the plaintiff to discharge contractual and statutory

obligations. This matter is therefore distinguishable from all the post–Chirwa

judgments to which I have been referred, and those additional cases I have

been able to find.
                                                                   Page 58   of 61


None of these judgments accordingly provides direct authority for the

determination of this matter. But the question remains whether Chirwa applies

to actions in this court for the recovery of damages.”



Paragraph [37]: “It accordingly follows that even if Chirwa is to be read as

broadly as Mr Quinn says it should be read, the finding in that judgment that

where employees can vindicate claims under the LRA, they must use the

forums created by that Act, and not the High Court, does not apply in casu.”



The effect of Chirwa on the interpretation of the Basic conditions of

Employment Act 75 of 1997 (the BCEA)



Paragraph [38]: “But that is not the end of the inquiry. Section 157(1) of the

LRA gives the Labour Court „exclusive jurisdiction in respect of all matters that

elsewhere in terms of this Act or in terms of any other law are to be

determined by the Labour Court‟. The next question, then, is whether the

Labour Court has exclusive jurisdiction to entertain the present matter by

virtue of any other law. In this matter, save for the common law, the only

„other law‟ possibly applicable in this matter is the BCEA.”



Paragraph [44] and [45]: “The only reference to that court‟s role in contractual

disputes to be found in the BCEA is in s 77A(e). This provides that among the

„appropriate orders‟ the Labour Court may make, „subject to the provisions of

this Act‟, are determinations –



       that it considers reasonable on any matter concerning a contract of

       employment in terms of section 77(3), which determination may include
                                                                  Page 59   of 61


      an order for specific performance, an award of damages or an award of

      compensation.



I have no doubt that in terms of this provision the Labour Court would have

jurisdiction to entertain the plaintiff‟s claim for payment of the severance

gratuity, and assume, for purposes of the present discussion, that it also has

jurisdiction over the claim for payment of the pension moneys withheld by the

defendant. But does this mean that the High Court‟s jurisdiction is then

axiomatically excluded?”



Paragraph [53]: “In my view, the Constitutional Court‟s interpretation of s

157(2) of the LRA yields a precedent too tenuous to permit this court

effectively to redraft s 77(3) of the BCEA by substituting the word „exclusive‟

for the word „concurrent‟ in s 77(3) and by giving no effect to the phrase „with

the civil courts‟. As Langa CJ pointed out in Chirwa, a court cannot normally

rely on policy considerations alone to give a statutory provision a meaning

removed from that suggested by the ordinary meaning of the words in which it

is expressed. That can only be done by legislative amendment.”



Paragraph [54]: “There is a further consideration that in my view militates

against a finding by this court that the Labour Court has exclusive jurisdiction

to adjudicate all matters concerning contracts of employment. This is the

growing list of authorities to the contrary that has been handed down by the

Supreme Court of Appeal, starting with Fedlife Assurance Ltd v Wolfaardt

2002 (1) SA 49 (SCA). In that matter, the respondent had claimed damages in

the High Court resulting from the premature termination of his fixed–term

contract of service. The appellant claimed that the High Court lacked
                                                                 Page 60   of 61


jurisdiction because the matter could, and should, have been referred as an

unfair–dismissal dispute to the Labour Court. The following passage is to be

found in the majority judgment:



      „In my view Chapter VIII of the LRA is not exhaustive of the rights and

      remedies that accrue to an employee upon the termination of a

      contract of employment. Whether approached from the perspective of

      the constitutional dispensation and the common–law or merely from a

      construction of the 1995 Act itself I do not think the respondent has

      been deprived of the common–law right that he now seeks to enforce.

      A contract of employment for a fixed term is enforceable in accordance

      with its terms and an employer is liable for damages if it is breached on

      ordinary principles of the common–law.‟”



The court in paragraph [66] concluded as follows: “I conclude, then, that the

law as it now stands on the jurisdiction of the High Court in labour and

employment matters can be summarised as follows:



      (i)    All matters in which the cause of action is covered by the LRA

             and for which the LRA provides a remedy fall within the

             exclusive jurisdiction of the Labour Court and hence outside the

             jurisdiction of this court.



      (ii)   Employees of statutory institutions may not bring actions in this

             court under PAJA or by way of application for common–law

             review in respect of matters covered by the LRA.
                                                               Page 61   of 61


(iii)   Employees may not bypass the LRA dispute–resolution

        procedure and approach the High Court with claims based on

        their constitutional right to fair labour practices.



(iv)    This court and other civil courts retain their common–law

        jurisdiction to entertain claims for damages arising from alleged

        breaches of contracts of employment and the acts or omissions

        of either other party after the termination of employment ,and the

        Labour Court has concurrent jurisdiction to determine such

        matters.”

								
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