INDEX 1

EDITORIAL

SOUTH AFRICAN LAW REPORTS MAY 2016

SA CRIMINAL LAW REPORTS MAY 2016

All SOUTH AFRICAN LAW REPORTS MAY 2016

EDITORIAL

All quiet on the western front….

SALR MAY 2016

WESTINGHOUSE ELECTRIC BELGIUM SA v ESKOM HOLDINGS (SOC) LTD AND ANOTHER 2016 (3) SA 1 (SCA) 

Government procurement — Procurement process — Irregularities — Tender awarded on basis of undisclosed evaluation criteria — Organ of state taking into account 'strategic considerations' extraneous to tender criteria as set out in invitation to bid — Award procedurally unfair and unlawful — Matter remitted.Westinghouse and Areva NP (the second respondent) submitted competing bids for Eskom's 2012 invitation to tender for the replacement of six generators at its Koeberg nuclear power station, a contract worth over R5 billion. Though Westinghouse's bid was almost R300 million lower than Areva's, Eskom's board tender committee (BTC) overrode the recommendations of its technical and executive teams by awarding the contract to Areva on the basis of undisclosed 'strategic considerations’. Chief among these was that Areva was involved in the original Koeberg build and thus had more experience. A separate undisclosed consideration was a 'float' or margin of time Areva built into its schedule for risk-mitigation purposes. Losing bidder Westinghouse applied in the Johannesburg High Court for rescission of the award on the ground that Eskom impermissibly took into account considerations not included in the original bid specification. It also asked to be substituted for Areva as the successful bidder. The High Court dismissed

1 A reminder that these Legal Notes are my summaries of all reported cases as are set out in the Index. In other words where I refer to the June 2012 SACR , you will find summaries of all the cases in that book. It is for private use only. It is only an indication as to what was reported, a tool to help you to see if there is a case that you can use!

LEGAL NOTES VOL 6/2016

Compiled by: Adv. M Klein

Westinghouse's application on the grounds that the newly introduced considerations were relevant to the award and the procedure followed was substantially fair.Westinghouse appealed to the Supreme Court of Appeal. For its part Areva disputed the locus standi of Westinghouse Belgium to pursue the appeal instead of Westinghouse USA. In the meantime Eskom and Areva had concluded the contract and work was proceeding.HeldThe BTC's decision was unlawful because (1) it had resorted to the strategic considerations without disclosing them to the bidders, which rendered the process procedurally unfair; and (2) the strategic considerations and the float fell outside the bid criteria as set out in the invitation to tender, which meant that the BTC took into account irrelevant considerations contrary to s 6(2)(e)(iii) of the Promotion of Administrative Justice Act 3 of 2000. Eskom's failure to refer these considerations to the bidders to give them the opportunity to clarify their bids, or to reopen the process and amend the tender criteria to include the considerations, made the whole process irrational and unlawful. It was not, however, appropriate to award the contract to Westinghouse. Eskom was in a better position than the court to make the award. It had decided at the last minute that criteria not provided in the bid specification were decisive, and it should be given the opportunity to restart the process with the inclusion of those criteria (if it still considered them vital). It was in any event not a foregone conclusion that Westinghouse would be successful if the decision were to be made anew: Areva had already started work and the court could not predict the consequences of a substitution.Areva's argument that Westinghouse lacked locus standi had no merit and fell to be rejected. Appeal upheld and the matter remitted to Eskom for reconsideration.

MERCK SHARPE DOHME GROUP AND ANOTHER v CIPLA AGRIMED (PTY) LTD 2016 (3) SA 22 (SCA)

Intellectual property — Patent — Revocation — Lack of novelty — Requirements of disclosure and enablement — Patents Act 57 of 1978, s 61(1)(c) read with s 25(1).Intellectual property — Patent — Selection patent — Proper approach to.

The appellants were the joint patentees of South African Patent 98/10975 (patent 98). In terms of an order of the Commissioner of Patents, patent 98 had been revoked at the instance of the respondent, Cipla Agrimed (Pty) Ltd, on the ground that it was invalid for lack of novelty in terms of s 61(1)(c) read with s 25(1) of the Patents Act 57 of 1978. In reaching this conclusion the court a quo had found that the claims of patent 98 had been anticipated by the disclosure of a prior art document, namely an earlier patent with specification 92/7457 (patent 92). Broadly speaking, patent 92 disclosed the invention of a therapeutic agent for use against parasites in animals. The invention comprised a particular injectable formulation, made up of certain ingredients, in particular for the purposes of this matter, a 'hydrophobic carrier'. Patent 98 (as per claim 1 of such patent) was described as a 'long standing injectable formulation' comprising certain ingredients, including, too, a hydrophobic carrier. In this case, however, the patent claim also set out the exact ingredients making up such hydrophobic carrier. The question to be decided was whether the particular combination of hydrophobic carriers set out in patent 98 had been disclosed in the 92 patent, such that patent 92 could be said to anticipate

patent 98. The legal question was phrased thus, 'whether or not, and the extent to which, a generalised description in a prior art document discloses and enables a specific matter falling within that broad description for the purpose of anticipation'. In addressing this issue, the Supreme Court of Appeal analysed the requirements for anticipation, namely prior disclosure, and enablement, and, in doing so, endorsed the approach adopted in the United Kingdom. Another issue arising out of the facts was the correct approach to the so-called 'selection patent', ie a patent of a specific compound or subclass of a broader or more generalised class. Once again, the court, in arriving at its conclusions, endorsed the approach adopted in the United Kingdom.HeldTo meet the requirement of prior disclosure, disclosure in the prior art of subject-matter of the later patent had to be such that the subject-matter described was capable of being performed, and, if performed, would result in the later patent being infringed. The requirement of enablement provided that the prior disclosure had to enable a skilled person to make or obtain the subject-matter described in the later patent. If something remained to be ascertained that was necessary for the useful application of the discovery as contained in the later patent, there was sufficient room for another valid patent. Anticipation therefore required that the prior publication had to contain clear and unmistakable directions to do what the patentee claimed to have invented. As to the correct approach to a 'selection patent', such patents were to be treated in accordance with the general approach to patent validity. The disclosure in a prior art document of a generalised class did not necessarily result in a disclosure of each and every member of such class. What one had to look for in the prior art for the purposes of anticipation was an 'individualised description' of the later claimed compound or class of compounds. As opposed to the later patent 98, patent 92, while providing possible examples, taught only that a hydrophobic carrier had to be added to the formulation; no significance was placed on the choice of the carrier. Further, there was no suggestion that any of the examples so provided had any utility or advantage over other hydrophobic carriers or combination of carriers. By contrast, the 98 patent provided for the selection of particular carriers, and taught the significant advantages that arose from using such carriers. As per the undisputed expert evidence, a skilled person armed only with the 92 patent could not, without a significant amount of ingenuity and experimentation, arrive at the specific combination of hydrophobic carriers disclosed in the patent in suit, as well as the significant technical advantage which those specific combinations represented over the disclosure of the 92 patent. Further, there was no individualised description in the 92 patent of the specific combinations of hydrophobic carriers of claim 1 of the 98 patent and the advantages which flowed from using them in combination. In the circumstances, patent 92 could not be said to anticipate patent 98, and the revocation application should therefore have been dismissed with costs.

EKE v PARSONS 2016 (3) SA 37 (CC)

Practice — Judgments and orders — Settlement order — Settlement agreement made order of court — Nature — Permissible content — Manner of enforcement.Practice — Judgments and orders — Order — Requirements for validity — Approach to be adopted to flawed orders.

Eke and Parsons entered into an agreement for the sale to Eke of Parsons' membership interest in a corporation. Eke defaulted on payment; Parsons instituted proceedings; Eke entered an appearance to defend; and Parsons applied for summary judgment. Eke and Parsons then concluded a settlement agreement; a High Court made it an order; Eke breached its terms; and Parsons — as provided for in the order — enrolled the summary judgment application. Eke raised defences, which the High Court dismissed, and gave judgment for Parsons. Eke then applied for leave to appeal, which was refused, as was his application to the Supreme Court of Appeal, before the Constitutional Court granted leave on three issues: (1) The effect of making a settlement agreement an order of court. Held, that a court could only make an order of that part of a settlement agreement which could constitute a competent and proper order. For the order to be competent and proper the agreement captured in it would have to (a) relate to the litigation; (b) accord with the Constitution, law and public policy; and (c) be of practical and legitimate advantage. Once a settlement agreement had been made an order of court it was like any other order and to be interpreted as such.As far as enforcement went, this could be by execution, contempt proceedings, or in some other manner that the order permitted. An order entailing litigation before enforcement was not necessarily objectionable.However, not all proposed orders had to be accepted by the courts: where necessary, they had to insist that the parties make changes, or, if need be, reject a proposed order outright. Here the order — requiring, on Eke's non-compliance with its terms, that Parsons apply for summary judgment — was unobjectionable. (Eke, relying on Eastern Cape authority, had contended that the order was incompetent because it could not be immediately executed upon, requiring the said application for summary judgment before doing so.) (2) Whether it was competent in terms of Uniform Rule 32 to bring a second summary judgment application. Held, that while rule 32 did not provide for a second summary judgment application, the parties had agreed to dispense with the strictures of the rule, and the court had to give effect to their agreement. (3) Whether Eke's undertaking in the order to not oppose the application for summary judgment was enforceable, in the light of the right of access to court. Held, without deciding the issue, that Parsons had not in fact attempted to enforce the term, and that Eke had had an opportunity to raise defences, and had exercised it. Appeal dismissed. Jafta J agreed in part, and differed in part, with the main judgment, but ultimately reached the same conclusion — that Eke's appeal should be dismissed.Jafta J agreed that a settlement order brought finality to litigation; gave rise to res judicata; was enforceable like any other order; and that the manner of its enforcement depended on the nature of the order itself. He differed on the applicability of Uniform Rule 32 to the matter; and in his approach to the provision of the order preventing Eke opposing the summary judgment application. Held, on issue (1) as framed in the main judgment (the status and effect of a settlement order): that a settlement order — made in an exercise of the inherent power of the High Court — had the same status and force as any other court order. (Case law, to the effect that there was a class of settlement agreement that was a

mere recordal of the parties' agreement and not enforceable as a court order, was wrong.) Thus the settlement order granted here was like any other court order. But as an order it was fundamentally flawed: its terms were unclear; its purpose could not be readily ascertained from its language; it failed to bring the case to finality; and it could not be enforced. (A reading of it suggested the High Court accepted the dispute had been settled; and, absent the provision that Parsons re-enrol the summary judgment application on Eke's default, it could have been enforced by execution. The purpose of the re-enrolment provision was thus unclear.) To grant an order containing such a flaw would be a failure on the part of the court to properly exercise its discretion. Nonetheless, despite the flaw, the parties would still have to comply with it, to the extent that they could ascertain what it required them to do. Held, as to issue (2) (the permissibility under Uniform Rule 32 of bringing a second summary judgment application), that the issue did not arise, because Parsons did not institute a second rule 32 application. Parsons had re-enrolled the summary judgment in terms of the order.Held, as to issue (3) (concerning the clause that Eke not oppose summary judgment), that the inherent power of the High Court included the power — as exercised here — to make an order barring access to court. Order in the main judgment — that the appeal be dismissed — supported.

ATTORNEYS FIDELITY FUND v INJO INVESTMENTS CC 2016 (3) SA 62 (WCC)

Attorney — Fidelity Fund — Claims against — Theft of trust funds — Whether money entrusted to attorneys — Payment into trust account of attorneys for purpose of providing bridging finance to clients of firm — Whether intention of claimant determinative — Attorneys Act 53 of 1979, s 26(a).

This matter stemmed from the misappropriation by a firm of attorneys of money which had been paid into its trust account by the respondent. The payment was made for the purpose of providing bridging finance to certain clients of the firm. The payments had been made in terms of 'discount agreements' entered into between the respondent and such clients of the firm, on the strength of false representations made by the firm that these clients had sold their immovable properties and required finance, pending payment to them of the proceeds of such sales upon transfer. Having ultimately failed to recover the money from the firm, the respondent sued the appellant, the Attorneys Fidelity Fund Board of Control (the Fund), in terms of s 26(a) of the Attorneys Act 53 of 1979, on the basis that it had suffered pecuniary loss as a result of the theft by the firm of money entrusted to it. The Fund repudiated liability. The respondent then successfully sued the Fund in the court a quo. The key issue to be decided in the appeal, launched by the Fund, was whether the money paid by the respondent into the trust account of the firm was entrusted by the respondent to the firm, as envisaged in s 26(a) of the Act. It was the Fund's contention that it was not. Such assertion was based on the fact that the respondent had made payment into the firm's trust account only to discharge its obligation to the firm's 'client', and given that it was the client who had nominated the firm's trust account as the payment mechanism, and there was nothing in the discounting agreement which stipulated that no other mechanism could be used — this was

irrespective of what the respondent might have asserted or thought to the contrary. On the other hand, counsel for the respondent argued that the respondent's intention when making payment into the firm's trust account was the determining criterion; in the circumstances, rather than payment to the firm being in discharge of a debt, it was intended by the respondent to be security for payment by the firm to the client. Accordingly intention was sufficient to establish entrustment for purposes of s 26(a). In support of its claim the respondent relied on inter alia Industrial and Commercial Factors (Pty) Ltd v Attorneys Fidelity Fund Board of Control 1997 (1) SA 136 (A) (the ICF matter).Held, that at all material times the firm purported to represent the client in accepting payment of the money into its trust account. The firm's obligation was not to retain the money in trust and to deal with it on the client's behalf, but simply to pay it straight over to the client. In other words, the firm's trust account was nothing other than a conduit, as was found in the decision of Attorneys Fidelity Fund Board of Control v Mettle Property Finance (Pty) Ltd 2012 (3) SA 611 (SCA) (Mettle) — notwithstanding the respondent's claim that it sought to obtain security by payment into that account. Accordingly there was no entrustment of money by the respondent to the firm.Held, to the extent that the Appellate Division in the ICF matter placed reliance on the intention of a claimant in paying over money into the trust account of the wrongdoing attorneys, it did so in the light of the particular facts of that case (in particular, a concession made on behalf of the attorneys in that matter that money paid by the claimant was held in trust on behalf of their clients). In accordance with the approach adopted by the Supreme Court of Appeal in Mettle, the payer's intention was not the overriding criterion in determining whether there had been entrustment for the purposes of s 26(a) of the Attorneys Act. Appeal upheld. 

MYATHAZA v JOHANNESBURG METROPOLITAN BUS SERVICE SOC LTD t/a METROBUS 2016 (3) SA 74 (LAC) 

Labour law — Arbitration proceedings — Award — Prescription — Commencement — Whether certification of award having effect on commencement of prescription — Labour Relations Act 66 of 1995, s 143(3).Labour law — Arbitration proceedings — Award — Prescription — Delay in completion — Whether application to review and set aside arbitration award delaying completion of prescription — Prescription Act 68 of 1969, s 13(1)(f). Labour law — Arbitration proceedings — Award — Prescription — Period of prescription — Prescription period applicable to arbitration awards made under Labour Relations Act 66 of 1995 — Prescription Act 68 of 1969, s 16(1).Labour law — Arbitration proceedings — Award — Prescription — Scope of Prescription Act — Whether applying to arbitration awards made under Labour Relations Act 66 of 1995 — Prescription Act 68 of 1969, s 16(1).Labour law — Arbitration proceedings — Award — Prescription — Interruption — Whether application to make arbitration award order of court interrupting prescription — Whether warrant of execution issued pursuant to certification of award interrupting prescription — Whether application to review and set aside arbitration award interrupting prescription — Prescription Act 68 of 1969, s 15(1).

In three appeals (heard together) against Labour Court judgments, the Labour Appeal Court held as follows regarding the prescription of arbitration awards made under and in terms of the Labour Relations Act 66 of 1995:As to whether the Prescription Act applies to LRA arbitration awardsIn terms of s 16(1) of the Prescription Act, its provisions applied to 'any debt' unless it were inconsistent with the provisions of another Act. Generally, arbitration awards pertaining to unfair dismissals, in which compensation and/or reinstatement was awarded, would constitute 'debts' as contemplated in the Prescription Act. And, since there was no provision in the LRA regarding the imposition of a prescriptive period in respect of the execution or enforcement of arbitration awards, there were no inconsistencies between the LRA and the Prescription Act in this regard. It followed that, on a proper construction of s 16(1) of the Prescription Act, the provisions of that Act applied to LRA arbitration awards. As to the prescription period applicable to LRA arbitration awardsThe period was dependent on whether an arbitration award constituted 'a judgment debt', in which case a 30-year prescription period would be applicable, or a simple 'debt', in which case a three-year prescriptive period would be applicable. To give the term 'judgment debt' in the Prescription Act a meaning which included 'arbitration awards' made under the LRA, would unduly strain the language of the Prescription Act. Arbitration awards made under the LRA differ in significant respects from orders or judgments of the Labour Court. The latter clearly fell within the meaning 'judgment debt', while generally an arbitration award under the LRA did not, but satisfied the definitional criteria of a mere 'debt' under that Act. The other categories of 'debt' in the Prescription Act were clearly not applicable. Accordingly, a three-year prescriptive period was applicable to such arbitration awards (ie the debts embodied in them) generally. Whether the certification of an award as contemplated in s 143(3) of the LRA has an effect on commencement of prescriptionThe lack of certification of an award did not mean that the award, or more specifically the 'debt' embodied in the award, was not due. Certification had nothing to do with whether the award was due or not, but was part of the process of executing an award as if it were an order of the Labour Court. Compliance with the award was not delayed pending certification. Performance by the debtor of the obligation(s) embodied in the award was not dependent upon or subject to the certification contemplated in s 143 of the LRA.Whether a warrant of execution issued pursuant to certification of an award interrupts the running of prescriptionAlthough obtaining a warrant of execution may be a necessary step to obtain satisfaction of the award, it did not interrupt the running of prescription in respect of the award because it was not a 'process' as envisaged in s 15 of the Prescription Act (which dealt with the judicial interruption of prescription). Whether an application to review and set aside an arbitration award delays completion of prescription as contemplated in s 13(1)(f) of the Prescription ActThe reliance on s 13(f) of the Prescription Act — that there would be a delay in the case where 'the debt is the object of a dispute subjected to arbitration' — was misplaced. This was because an arbitration award itself was the debt, but was not the object of the dispute subjected to arbitration.Whether an application to review and set aside an arbitration award interrupts prescription as contemplated in s 15 of the Prescription Act

A review to set aside an award was not a 'process whereby the creditor claims payment of the debt' which in terms s 15(1) of the Prescription Act would interrupt the running of prescription. On the contrary, it was a process whereby the debtor sought to set aside the debt. Such a review, therefore, would not interrupt prescription, but for the amendment of s 145 of the LRA (effective from 1 January 2015), which inserted a subsection providing that 'an application to set aside an arbitration award in terms of this section interrupts the running of prescription . . . in respect of that award'. This, however, only applied to arbitration awards made after the commencement date of the amendement. Whether an application to make an arbitration award an order of court interrupts prescription as contemplated in s 15 of the Prescription ActAn application to make an arbitration award an order of court could be construed as a 'process whereby the creditor claims payment of the debt' as contemplated in s 15(1) of the Prescription Act. By bringing such an application the creditor was in effect asking the court to order the debtor to pay the debt (represented by the award). An application to make an award a court order would therefore interrupt prescription by its mere service on the debtor. But, for it to actually and effectively interrupt prescription, the creditor would have to prosecute his claim under that process to final judgment. 

ABSA LTD v MOORE AND ANOTHER 2016 (3) SA 97 (SCA)

Land — Transfer — Fraud inducing transfer — If misrepresentation such that owner did not intend to transfer ownership, registration of transfer of no force — No simulation in such circumstances.

In early 2009 the respondents, the Moores, fell victim to the notorious Brusson scam. Under the impression that they were applying for a secured loan, the Moores sold their house to an 'investor', Mr Kabini, to whom Absa granted a home loan secured by a mortgage bond. The property was transferred to Mr Kabini and the Moores' (five) mortgage bonds cancelled simultaneously with the registration of Mr Kabini's bond. When Mr Kabini later defaulted on his loan, Absa took judgment against him and attached the property — which was still occupied by the Moores — in execution of his debt. The Moores received some R160 000 from Brusson while the purchase price payable by Mr Kabini was R686 000.A High Court granted the Moores' application for an interdict prohibiting the proposed sale in execution and declaring the various transactions between Brusson, the Moores and Mr Kabini, as well as Mr Kabini's bond, to be invalid. The court ordered the restitution of the property to the Moores subject to the reinstatement of their bonds and payment to Absa of the money they received from Brusson (less payments already made to it). On appeal Absa argued that it should not be deprived of its real right in the property when it was innocent of any wrongdoing. The Moores argued in turn that since Mr Kabini never acquired ownership, he could not have encumbered the property with a mortgage bond in favour of Absa.Like other victims of the scam, the Moores were made to sign the following documentation: (i) an offer to purchase under which an unnamed third party (the name of Mr Kabini was later inserted) offered to buy the home; (ii) a deed of sale under which Mr Kabini sold the house back to the Moores; and (iii) a memorandum of agreement which regulated the tripartite relationship between Brusson, the Moores and Mr Kabini. Most courts dealing with the Brusson scam found that the

transactions were invalid simulated sales. The High Court judgment followed one of these cases.HeldThe transactions were not simulated. The Moores and the other victims of the Brusson scam never intended to disguise their contracts as something they were not, but were instead hoodwinked as to their true nature. The real issues were (i) what the victims really intended to achieve by contracting with Brusson and the so-called investors; and (ii) whether the contracts were rendered invalid as a result of fraud. It was clear that when they signed the documentation, the Moores thought they were obtaining a loan and not concluding a sale, and that they never had any intention of authorising a transfer of their property. The High Court's finding of simulation was thus unwarranted: the Moores were victims of the Brusson scam and were induced to enter into the contracts by the fraudulent misrepresentations of Brusson. Since the fundamental principle of the transfer of property was that registration had no effect if the transferor did not intend to transfer ownership, Mr Kabini did not acquire ownership. Nor did he have the legal capacity to pass a bond over property he did not own. The High Court finding on these aspects was thus correct.There was, however, no basis for the High Court's restitution-for-repayment order. Absa did not ask for it and the court could not make a contract between Absa and the Moores or order the Moores to pay money they did not owe. Nor could the court order that the Moores register a bond over their property in favour of Absa. Absa did, however, have an unsecured claim against Mr Kabini and perhaps against the conveyancer responsible for the registration of the bond in the first place. Appeal dismissed.

PANAYIOTOU v SHOPRITE CHECKERS (PTY) LTD AND OTHERS 2016 (3) SA 110 (GJ) 

Appeal — Execution — Pending petition to Supreme Court of Appeal for leave to appeal — Whether service of application for condonation of failure to serve petition in time having effect of suspending operation and execution of judgment — Superior Courts Act 10 of 2013, s 18(5) read with s 17(2).

In terms of s 18(1) read with s 18(5) of the Superior Courts Act 10 of 2013, the lodging of an application for leave to appeal against a judgment of a High Court has the effect of suspending the operation and execution of such judgment, pending the decision of the application. The legal question that arose in the present case was whether the service of an application to condone the late filing of a petition to the Supreme Court of Appeal in itself had the effect of suspending the judgment against which leave was sought. The court held that it did not. The failure to serve an application for leave to appeal within the prescribed time resulted in the lapsing of the right to apply for leave to appeal, and only on the granting of condonation would it be revived. Further, to hold otherwise would be untenable. It would mean that a judgment many months or years after it had been obtained could be suspended merely by the service of a condonation application. 

VODACOM (PTY) LTD v MOTSA AND ANOTHER 2016 (3) SA 116 (LC) Labour law — Contract of employment — Post-termination restraint undertaking — Enforceability — Contract containing 'garden-leave' clause — Garden-leave clause

to be taken into account when considering reasonableness of duration of post-termination restraint undertaking.Competition — Restraint of trade agreement — Enforceability — Reasonableness — Contract containing 'garden-leave' clause — Garden-leave clause to be taken into account when considering reasonableness of duration of post-termination restraint undertaking.

The first respondent, Mr Godfrey Motsa, was a senior executive employee of the applicant, Vodacom (Pty) Ltd (Vodacom). Subsequent to his resigning, Vodacom brought an urgent application to enforce compliance with certain contractual obligations in terms of the employment agreement entered into between the parties, namely, (a) the obligation of the first respondent to give six months' notice of termination; and, in addition thereto, (b) a restraint undertaking, operative from the date after termination of employment and for a period of six months, prohibiting the first respondent from being employed by or otherwise engaged in the business of any competitor within a defined geographic area. In terms of the notice-period clause referred to in (a), Mr Motsa would be paid to remain at home during the six-month notice period, but would still be required inter alia to assist Vodacom when required to do so. In so providing, such clause was an example of what have come to be known as 'garden-leave clauses', ie clauses of a type providing that if an employee gives notice, the employer may require the employee to spend a whole or part of the notice period at home, thus allowing confidential information to which the employee had access to become stale, and keeping the employee out of the clutches of a competitor.A dispute arose as to whether Vodacom had in fact elected to enforce the notice period. On the facts, the court held that it had, and that Mr Motsa was bound by such election.As to the six-month restraint undertaking, Vodacom insisted that it came into force after the period of six months' garden leave had expired and the contract had terminated, such that both the period of garden leave and the post-termination restraint would be enforced. Mr Motsa accepted that he was bound by a six-month restraint. However, he argued that the enforcement of the six-month garden leave effectively afforded Vodacom the six-month restraint it had bargained for. To enforce a six-month restraint after the expiry of a six-month period of garden leave would be to subject Mr Motsa to a restraint beyond that which had been bargained for. In considering this dispute the court looked to the approach of English and New Zealand courts, particularly as to the enforceability of a post-termination restraint clause where a garden-leave clause was provided for in the employment contract.HeldThere was no reason why the approach as adopted by the New Zealand Employment Court in Air New Zealand Ltd v Grant Kerr [2013] NZEmpC 53 (ARC 38/13) should not be adopted in South Africa, namely that a garden-leave provision should be taken into account by the court when considering the reasonableness of the duration of any post-termination restraint covenant. The ultimate question was whether any period of enforced commercial inactivity, whether by way of a garden leave clause or a more conventional restraint, or both, was unreasonable, having regard to the proprietary interests that the employer sought to protect.The effective period of restraint of 12 months following Mr Motsa's resignation was not unreasonable. This was so, given the information to which he had been exposed,

in particular, details as to Vodacom's strategic plans, and the useful life of such information. As such, Vodacom was entitled to the enforcement of the post-termination restraint agreement.

FREE STATE PROVINCE v TERRA GRAPHICS (PTY) LTD AND ANOTHER 2016 (3) SA 130 (SCA)  Provincial government — Contract — Services agreement — Enforceability — Refusal of province to pay on basis that no budgetary allocation made by province for funds — Outstanding amounts to be treated as unauthorised expenditure to be met as a first charge upon Provincial Treasury in subsequent financial cycle — Public Finance Management Act 1 of 1999, ss 21(1)(b)(i), 24(1)(a)(i) and 34(2).

Arising out of a failure by the Free State Provincial Government (the Province) to make full payment in terms of a contract entered into between the Province and the main contractor for the provision of services related to the Province's road repairs and rehabilitation programme, a subcontractor sued the Province for payment for work done and services rendered. In answer the Province raised a defence, amongst others, that it had made no budgetary allocation for such work. This meant, it argued, that in terms of ss 21(1)(b)(i) and 24(1)(a)(i) of the Public Finance Management Act 1 of 1999 (the PFMA) money could not lawfully be withdrawn from the Provincial Treasury in order for it to fulfil its contractual obligations. This was all notwithstanding the fact that the work had been fully completed, the Province had accepted and retained the benefit thereof, and had already made two payments. The Supreme Court of Appeal rejected the arguments of the Province. In doing so, the SCA described the conduct of the Province as unconscionable and found that, in acting in the manner it did, it had conducted itself without integrity and had failed to be transparent and accountable as enjoined by the Constitution. The court asserted the importance of government institutions respecting the rights of those with whom they transacted and that government 'should be a scrupulous role model'. As to the merits of the budgetary- allocation defence:HeldThe facts showed that a budgetary allocation for the work had been made by the Province — an Appropriation Act (3 of 2010) was found to have been passed in terms of which sums were appropriated for the repair and rehabilitation of the roads forming the subject-matter of the agreements. However, even if the budgetary allocation were insufficient to meet the full amount owing under the agreements, it did not mean that the Province was freed from its contractual obligations. The outstanding amount fell to be treated as 'unauthorised expenditure' as defined in s 1 of the PFMA, and for which, in terms of s 34(2) of the PFMA, the Provincial Treasury was liable. Such obligation would be met as a first charge upon the Treasury in the subsequent financial cycle. 

LAGOON BEACH HOTEL (PTY) LTD v LEHANE NO AND OTHERS 2016 (3) SA 143 (SCA) Interdict — Anti-dissipation order — Urgent application for — Large, complex matter — Reliance on hearsay — Inclusion of new material in replying affidavit — Practical and common-sense approach to be taken. 

Insolvency — Trustee — Foreign trustee — Recognition — Requirement that insolvent be domiciled within jurisdiction of court appointing foreign trustee.

Mr Lehane, under an Irish court order, was the official assignee of Sean Dunne's bankrupt estate. In the course of administering it, he came to learn that Dunne had at one time held shares in an Irish company (Mavior), which was the sole shareholder of a South African company (Lagoon Beach, the appellant), which in turn owned a hotel in Cape Town. He also came to learn that Dunne, possibly while insolvent, had transferred his shares in Mavior, his right to repayment of a loan against same, and his interest in the hotel, to his wife Gayle (they were married out of community of property). He further came to understand that Lagoon was in the process of selling the hotel to a third party.This caused Lehane to apply urgently and ex parte to the Western Cape Division of the High Court. It (Steyn J) granted as a rule nisi an order recognising Lehane; and an interim interdict restraining sale of the hotel pending legal proceedings in Ireland to set aside Dunne's aforementioned dispositions to his wife.Lagoon anticipated the return date, but the court (Yekiso J) confirmed the rule. Lagoon then obtained its leave to appeal to the Supreme Court of Appeal. The issues there were as follows:Lagoon argued that the interim interdict was in effect a final interdict and thus appealable. It was final in nature it said, owing to its indeterminate but likely lengthy operational life; and by the fact that it would not be revisited in the local or Irish courts. Held, rejecting the argument, that invariably an interim interdict related to proceedings concerned with different relief and involving different parties, and that neither of these facts rendered such an interdict final in nature. Moreover, it was always open to the party subject to the order to apply to vary it or set it aside. In any case Lagoon had conceded in argument that the interdictory aspects of the order were not final and thus not appealable. Lagoon's further argument was that the court had impermissibly relied on hearsay supplied to it by Lehane in his affidavit as the basis for its order. Held, that there was indeed a great deal of hearsay in Lehane's papers, but that in the circumstances it was understandable. In a large and complex case like this, where it would be impracticable to require each person with knowledge of a fact to make an affidavit, the rules regarding hearsay could be relaxed. It was necessary in such circumstances to take a practical and common-sense approach. Lagoon also argued that Lehane had included new material in his replying affidavit; that this contravened the rule against amplifying a case in reply; and that the material should be ignored. Held, that a practical and common-sense approach had once again to be taken, and that in the circumstances the new material ought not to be ignored. (Those circumstances were that Lehane's deputy, who was less familiar with the facts, had launched the application; that it had been made urgently; that the facts were complex; and that Lagoon had had an opportunity to reply, but had chosen not to do so.) Some months prior to Dunne's Irish creditor obtaining the Irish bankruptcy order, Dunne had himself obtained a bankruptcy order from an American court. Lagoon's further argument was that the American bankruptcy order brought about a global stay on proceedings concerning the bankrupt's estate; and that this stay ought to have barred Lehane from obtaining the preservation order. Held, rejecting this argument, that the American court had lifted the stay to allow the obtaining of the Irish court's bankruptcy order and the appointment of Lehane; that the American trustee in insolvency endorsed Lehane's effort to obtain the South African court

order; and that to permit him to do so would ensure the integrity of the legal process in both of those jurisdictions. Lagoon also made an argument based on the requirement that a South African court may only recognise a foreign trustee of an insolvent estate, if the insolvent were domiciled within the jurisdiction of the court that appointed the trustee. (The domicile requirement may, however, be relaxed if exceptional circumstances are present.) Lagoon argued that Dunne had not been domiciled within the jurisdiction of the Irish court that appointed the official assignee, and consequently the South African court had erred in recognising the latter. (Lagoon asserted that Dunne was domiciled in the United States, or possibly Switzerland.) Held, that the High Court's recognition was justified: a prima facie case had been made that Dunne was domiciled in Ireland, and even though there remained some uncertainty about this, exceptional circumstances were present that justified the order. These were that the American trustee of Dunne's estate (America being the most likely alternative domicile of Dunne) was collaborating with the official assignee to find and recover Dunne's assets.The High Court's grant of recognition and of the interim interdict upheld, and the appeal dismissed. 

TRONOX KZN SANDS (PTY) LTD v KWAZULU-NATAL PLANNING AND DEVELOPMENT APPEAL TRIBUNAL AND OTHERS 2016 (3) SA 160 (CC)

Constitutional law — Legislation — Validity — KwaZulu-Natal Planning and Development Act 6 of 2008 (KZN), s 45 — Providing for right to appeal municipal planning decisions to provincial tribunal — Interfering with municipalities' exclusive power to make planning decisions — Invalid.Constitutional law — Legislation — Invalidity — Remedy — Reading down and reading in — Difference explained.Constitutional law — Separation of powers — Between tiers of government — Local and provincial competences — Municipal planning decisions falling within exclusive competence of municipalities.Local authority — Town planning — Falling within exclusive competence of municipalities — Provincial statute providing that person aggrieved by planning decision on proposed development may appeal to provincial tribunal — Provision unconstitutional — KwaZulu-Natal Planning and Development Act 6 of 2008 (KZN), s 45.

The remedy of reading down, by which a court gives an over-inclusive statutory provision a sufficiently narrow interpretation to render it constitutionally compliant, must be distinguished from reading in, by which a court adds the constitutionally required words to the provision. Section 45 of the KwaZulu-Natal Planning and Development Act 6 of 2008 (KZN) deals with appeals against a municipality's decision on the proposed development of land not situated in a town-planning scheme. It provides that —   'a person who applied for the development of land situated outside the area of a scheme or who has lodged written comments in response to an invitation for public comment on a proposal to develop the land, who is aggrieved by the decision of the municipality . . . may appeal against the municipality's decision to the [KwaZulu-Natal Planning and Development] Appeal Tribunal'.

Section 45 is unconstitutional because it usurps municipalities' exclusive constitutional power to make town planning decisions. It cannot be read down to render it constitutionally compliant, and it is preferable that the legislature, rather than the court, rectify the problem. The order of invalidity would not be suspended nor made retroactive. Pending appeals had to continue until finalised, but in considering them the appeal tribunal had to uphold the municipalities' integrated-development plans, if in existence. 

DU PLESSIS v MEDIA 24 t/a DAILY SUN AND ANOTHER 2016 (3) SA 178 (GP) Defamation — Liability — Imputation of racism — Newspaper article embellishing facts so as to imply racial prejudice — Defamatory per se — Defences of public interest and reasonableness failing — R80 000 awarded.

In its issue of 29 October 2010 the newspaper the Daily Sun reported, under the headlines 'Frozen — for an onion', and 'Orel was in a cold room for two hours', that the plaintiff, Mr Bekker du Plessis, a produce-market stall owner, tied suspected onion thief Mr Orel Khoza's hands with 'a plastic strip' and 'shoved' him into a cold-storage room, where he remained 'for two hours', until the police, alerted by Mr Khoza's friends, arrived. The article went on to state that the ordeal left Mr Khoza with 'frozen hair' and that he was 'still shivering' an hour later. The court found most of this to be exaggeration: although Mr Du Plessis had indeed locked Mr Khoza in a cold-storage room for stealing an onion, he was not tied up as alleged, nor 'shoved', nor detained for two hours (it was 45 minutes), nor found with his hair frozen (he was bald), nor found still shivering.Mr Du Plessis alleged that the article had racial undertones and was inherently defamatory. The defendants (the newspaper and its editor) claimed public interest and denied that the article was inherently defamatory. They argued that since Mr Du Plessis did not claim innuendo, the court could not ascribe racial undertones to the article. They further argued that even if these were found to exist, they would only tend to increase public interest.HeldThe article — an embellished and substantially false account that would be viewed by the ordinary reader as intending to impute that Mr Du Plessis had little or no regard for other groups in the community — was inherently defamatory. Innuendo needn't have been pleaded. The fact that the article was substantially false militated against the defendants' public-interest defence. It was not in the public interest to embellish information so as to create unnecessary sensation which undermined the integrity of an individual. The publication was, moreover, unreasonable in the circumstances. Hence the defendants were guilty of defamation and would be ordered to pay Mr Du Plessis R80 000 in compensation. 

VOUSVOUKIS v QUEEN ACE CC t/a ACE MOTORS 2016 (3) SA 188 (ECG) 

Consumer protection — Whether transaction subject to CPA — Sale of used goods — Consumer Protection Act 68 of 2008, s 5(1).

Consumer protection — Statutory warranty of quality — Repair and replacement of defective goods — Whether replacement of component of complex product constituting repair or new supply of goods — Consumer Protection Act 68 of 2008, s 56(2).Consumer protection — Statutory warranty of quality — Limited period for returning unsafe or defective goods for repair and replacement — Whether court may extend such period with 'innovative order' — Consumer Protection Act 68 of 2008, ss 4(2)(b)(ii)(bb) and 56(2).Sale — Goods — Latent defect — Remedies of purchaser — Actio redhibitoria — Objective test restated and applied to purchase of used motor vehicle.

The plaintiff (Mr V) instituted an action against Ace Motors (AM) for the restitution of the purchase price of a second-hand vehicle that he had purchased from AM. This was pursuant to Mr V's purported cancellation of the sale agreement after a further mechanical failure appeared to require a second engine replacement. (AM paid for the first engine replacement.) However, after summons but before the trial commenced, it transpired that a second engine replacement was not required but only repairs to the oil pump.In the alternative Mr V claimed restitution in terms of s 56(2) of the Consumer Protection Act 68 of 2008 (the CPA), claiming that the supply to him contravened the implied warranty of quality contained in ss 55(2)(b) and (c) thereof. The latter subsections appear under the heading 'Consumer's right to safe, good quality goods'. Section 56(2), under the heading 'Implied warranty of quality', affords a consumer six months post delivery to return goods 'which fail to satisfy the requirements and standards contemplated in s 55' to the supplier for repair or replacement.Here it was common cause that more than six months had elapsed between delivery of the vehicle to Mr V and the defective oil pump manifesting. Mr V however contended that the replacement of the first engine with the second engine did not constitute a repair of the motor vehicle as a whole but that the second engine was a new supply of goods, and because the defect in the second engine manifested itself within six months of its installation, the provisions of s 56(2) were applicable. This issue, namely whether the replacement of a component of a complex product constituted a new supply of goods to a consumer, was one of three involving the CPA. The others were (1) whether it was competent for a court to extend the six-month period in s 56(2) by making an 'innovative order' advancing consumer rights as contemplated in s 4(2)(b)(ii)(bb); and (2) whether, because the relevant sections of part H of the CPA provided only for a consumer's 'right to fair value, good quality and safety' in relation to 'goods', by necessary implication'used goods' were excluded.In the further alternative, and on the basis that the second engine was latently defective at the time of its installation, Mr V claimed restitution under the actio redhibitoria.The court, having found that the damage to the oil pump was occasioned in consequence of an object present in the engine at the time of its installation; accepting that it was a latent defect (see [115]); and accepting also (without deciding) that it was a defect as defined in the CPA further held as follows:As to CPA issuesWhether replacement of component of complex product constituted a new supply of goods to consumer

Although the engine in itself was a separate component of the motor vehicle which could be removed, repaired and replaced, it was nevertheless an integral part thereof, without which the motor vehicle was a mere shell and accordingly defective. A complex product was defective, even where its defectiveness was attributable only to a fault in one of its components, such as when the engine of the car failed. Therefore the replacement of the first engine with the second engine was clearly a repair to the vehicle.Whether court may make an 'innovative order' under s 4(2)(b)(ii)(bb) to extend the s 56(2) six-month period within which to return goodsThe legislature expressly decreed a limitation period of six months for the return of any goods in s 56(2). There was no question of s 56(2) being ambiguous in any way. It was not open to a court, under the guise of making an 'innovative order', to extend this period. Any innovative order made under s 56(2) must be made within the constraints of the legislation and could not afford consumers more rights than those specifically provided to them in terms of the Act. Whether the CPA applied to used goodsAlthough 'used goods' was defined in the Act, it was not referred to anywhere in the Act again, so that it was uncertain what was sought to be achieved by the inclusion of the definition of the term. Section 5(1)(a) provided specifically that the Act applied to 'every transaction occurring within the Republic', unless it was specifically exempted, which exemptions were not relevant here. On a proper approach to the interpretation of statutes, the term 'goods' — considered in the context of the Act as whole and its purpose — included used or second-hand goods. The Act therefore clearly applied to second-hand goods and, in the particular circumstances of this case, to the motor vehicle and its engine. As to the actio redhibitoriaThe question was whether this latent defect was of such a serious a nature that a reasonable purchaser in Mr V's position would not have entered into the sale. It was not. A reasonable person in Mr V's position, being aware that he was purchasing a second-hand motor vehicle for a price considerably less than a new vehicle of that make, would have been conscious of the fact that it might experience mechanical problems from time to time, which were not to be expected in a brand-new vehicle of that make. The damage to the oil pump, once diagnosed, was easily remedied for an amount of approximately R15 000 — an amount which, whilst seen in isolation, was not inconsiderable, but when viewed against the purchase price of R470 000 was relatively inconsequential. Therefore Mr V's claim based on the actio redhibitoria must also fail.

SAFARI THATCHING LOWVELD CC v MISTY MOUNTAIN TRADING 2 (PTY) LTD 2016 (3) SA 209 (GP) Company — Business rescue — Moratorium on legal proceedings against company — Where business rescue proceedings instituted at time when legal proceedings against company already commenced — Leave to proceed with legal proceedings may be sought during those proceedings themselves — Substantive, separate application not required — Companies Act 71 of 2008, s 133(1)(b).

Where already commenced legal proceedings against a company have been suspended as a result of the institution of business rescue processes, leave to proceed, in terms of s 133(1)(b) of the Companies Act 71 of 2008, may competently

be sought during such main proceedings themselves; a substantive, separate application is not required.

MINISTER OF HOME AFFAIRS v RAHIM AND OTHERS 2016 (3) SA 218 (CC)

Delict — Elements — Unlawfulness or wrongfulness — Immigration officers' confinement of illegal foreigner at place not determined to be place of detention by Director-General — Immigration Act 13 of 2002, s 34(1).

Rahim and the others were foreign nationals who applied for asylum. Their applications were refused and they appealed to an appeal board, but were unsuccessful. Thereafter they failed to leave the country, and the Minister of Home Affairs' servants arrested and detained them, with a view to deporting them. They were detained in prisons, police cells and at the Lindela facility. Following litigation, they were released.They then sued the Minister for delictual damages for their unlawful arrest and detention. In issue was whether the Director-General had determined their places of confinement to be places of detention. Had he not done so, their detention would be unlawful. (Section 34(1) of the Immigration Act 13 of 2002 provides that 'an immigration officer may arrest an illegal foreigner . . . and shall . . . deport him . . . and may, pending his . . . deportation, detain him . . . at a place determined by the Director-General . . .'.)The High Court held that the determinations had been made, and dismissed the actions. This caused Rahim and the others to appeal to the Supreme Court of Appeal. It held that no determinations had been made and that the detentions were consequently unlawful; and it awarded damages calculated in each case according to the length of detention.The Minister then applied to the Constitutional Court for leave to appeal, which it granted. (Rahim et al applied for leave to cross-appeal the amounts of damages awarded; this leave was again given.)In issue, firstly, was whether the determinations had been made. Held, that they had not been; and thus that the detentions had not been authorised by s 34(1). The second issue was whether the unauthorised detentions were wrongful in delict, and thus attracted delictual damages. Held, that they were. This was on the basis of the vulnerability of persons in Rahim and the others' position; by there being no other way than a delictual claim for them to vindicate their rights; and by there being no reasons of principle, policy or practicality in the way of recognising such a claim. Appeal and cross-appeal dismissed. (In the latter case, the court finding no basis to interfere with the amounts of the Supreme Court of Appeal's damages awards.)

TSHWANE CITY v MITCHELL 2016 (3) SA 231 (SCA)

Local authority — Municipal service charges — Statutory charge on property in respect of amount due — Hypothec not extinguished by transfer of immovable property pursuant to sale in execution — Semble: Municipality must comply with own bylaws relating to liability for municipal debts before pursuing hypothec's perfection — Local Government: Municipal Systems Act 32 of 2000, s 118(3). Execution — Sale in execution — Immovable property — Statutory charge on property in respect of amount due to local authority — Hypothec not extinguished by transfer of

immovable property pursuant to sale in execution — Local Government: Municipal Systems Act 32 of 2000, s 118(3). 

The statutory hypothec that s 118(3) of the Municipal Systems Act 32 of 2000 creates over property in favour of a municipality for payment of outstanding municipal debts, is not extinguished when the property in question is transferred from one owner to another. This is so regardless of whether the transfer was pursuant to a sale by private treaty or a sale in execution.Semble: Before pursuing payment by perfecting its security over the property, the municipality must comply with its own bylaws relating to liability for municipal debts.

STEENKAMP AND OTHERS v EDCON LTD 2016 (3) SA 251 (CC)

Labour law — Dismissal — Notice of termination — Dismissal for operational requirements by employers with more than 50 employees — Prescribed statutory notice periods — Non-compliance not rendering dismissal invalid — Declaration of invalidity not remedy contemplated by LRA — Employees limited to LRA remedies for LRA breach — LRA remedies adequate — Labour Relations Act 66 of 1995, ss 189A(2)(a) and 189A(8).Statute — Interpretation — 'Must' — Meaning of in statutory provision — Mere use of word 'must' not enough to justify conclusion that thing done contrary to it a nullity. 

Section 189A(2)(a) of the Labour Relations Act 66 of 1995 (the LRA) provides that for dismissals based on operational requirements by employers with more than 50 employees, notice of termination of employment 'must' be given 'in accordance with the provisions of this section'. In this case the provisions of s 189A(8) applied, precluding an employer from giving dismissal notices during a period of 30 days from giving a s 189(3) notice and not before the periods mentioned in s 64(1)(a) had elapsed.The respondent (Edcon) had given dismissal notices prematurely during this 30-day period to a number of employees, including Ms Steenkamp, in breach of s 189A(8). She and other affected employees, together with their representative trade union (the applicants), approached the Labour Court for orders declaring the dismissals invalid and of no force and effect, and for reinstatement orders. The Labour Appeal Court (the LAC) heard the matter as a court of first instance and held that the dismissals were not invalid but that they may have constituted an unfair labour practice.In their application for leave to appeal to the Constitutional Court the applicants relied on the peremptory word 'must' in s 189A(2)(a) and on the principle that anything done contrary to law was a nullity. HeldThe approach that the use of the word 'shall' in a statutory provision meant that anything done contrary to it was a nullity, was neither rigid nor conclusive. The same could be said of the use of the word 'must' — its mere use was not sufficient to justify a conclusion that a thing done contrary to it was a nullity. The proper approach was to ascertain the purpose of the legislation in this regard. This required an examination of the relevant provisions of the statute. The applicants' contentions fell to be rejected and their appeal dismissed for the following reasons:

The LRA did not contemplate invalid dismissals or an order declaring a dismissal invalid and of no force and effectNon-compliance with the s 189A(8) procedure could result in the dismissals being unfair, and not invalid. Before a court could declare that a dismissal was invalid, it first had to conclude that it was unlawful. The LRA created special rights and obligations that did not exist at common law, and also created applicable principles and special processes and fora for the enforcement of those rights. One such right was the right not to be unfairly dismissed, but no right not be unlawfully dismissed featured in the LRA. This was an indication that the LRA did not contemplate invalidity as a consequence of a dismissal effected in breach of a provision of the LRA, and this conclusion was reinforced by the absence of 'unlawful dismissal' from the LRA's definition of 'dismissal', and by the inclusion in the LRA of the category of 'automatically unfair dismissals'.The legislature deliberately provided in the LRA for unfair dismissals and automatically unfair dismissals to attract a remedy, but did not make any provision for unlawful or and invalid dismissals. The rationale for the policy decision to exclude unlawful or invalid dismissals from the LRA was that the legislature sought to create a dispensation that would be fair to both employers and employees, with sufficient flexibility to do justice between employer and employee. Under the LRA a dismissal was recognised as having taken place irrespective of whether it was held to have been unfair or automatically unfair because there was no fair reason for it or because there was no compliance with a fair procedure in effecting it. The exclusion of the remedy of an invalid dismissal under the LRA was deliberate because it did not fit into the dispensation of the LRA, which required flexibility so as to achieve fairness and equity between employer and employee in each case. If the procedural requirements of s 189 or s 189A were not complied with (in circumstances where there were no acceptable reason for non-compliance), the result would be that the dismissal was not effected in accordance with a fair procedure as contemplated in s 188(1)(a)(ii). It would therefore be procedurally unfair — not unlawful, invalid and of no force or effect. The orders that the Labour Court could make under ss (13), should an employer not comply with fair procedure, were so extensive as to make it unnecessary for the LRA to contemplate invalid dismissals or orders declaring dismissals to be invalid and of no force and effect. These included an order for reinstatement which could be with retrospective effect to the date of dismissal, thus entitling the employee to full back-pay and other benefits and to be treated as if he had never been dismissed. Another factor was that while the LRA spelled out the consequences of non-compliance with the procedural requirements of s 189A(8), it did not mention that the invalidity of the dismissal notices or of the resultant dismissals were part of such consequences. The declaratory order sought was a wrong remedy for an LRA breachA cause of action based on a breach of an LRA obligation compelled the litigant to utilise the dispute-resolution mechanisms of the LRA to obtain a remedy provided for in the LRA. The litigant could not go outside of the LRA and invoke the common law for a remedy. If a litigant's case were based on a breach of an LRA obligation, the dispute-resolution mechanism used had to be that of the LRA, and the remedy had to be a remedy provided for in the LRA. Remedies for breach of s 189A were limited to those provided, and were adequate

As a general rule of construction, if it were clear from the language of a statute that in creating an obligation the legislature confined the party complaining of its non-performance, or suffering from its breach, to a particular remedy, such party would be limited to that remedy and had no further remedies. Subsection (18) read with ss (13) provided extensive protection to employees where an employer failed to comply with a fair procedure. The strike option permitted by s 189A gave employees a strong weapon to deal with the employer and was a far-reaching remedy itself. And by an order of reinstatement that operated with retrospective effect to the date of dismissal, the same result could be achieved as by an order declaring a dismissal invalid. These were adequate remedies, and therefore there was no need to include the invalidity of dismissals as a consequence of non-compliance with the procedural obligations in ss (8) on the basis that there would otherwise be no serious consequences for non-compliance.

DIRECTOR OF PUBLIC PROSECUTIONS, GAUTENG v PISTORIUS 2016 (1) SACR 431 (SCA)Murder — Mens rea — Intention to kill — Dolus eventualis — Whether present — Accused firing four shots at person behind toilet door.Murder — Mens rea — Intention to kill — Exclusion of — Putative private defence — Whether established. Appeal — In what cases — On questions of law reserved — Prerequisite for reservation of questions of law that there be acquittal — Conviction on competent verdict to be regarded as acquittal on main count — Criminal Procedure Act 51 of 1977, s 319. 

Mr Pistorius, believing an intruder to be behind the closed door of his home's toilet, shot and killed the individual. It turned out to be Ms S.The state later charged Pistorius with murder, but the High Court convicted him of the competent verdict of culpable homicide.This caused the state to appeal to the Supreme Court of Appeal on questions of E law reserved in terms of s 319 of the Criminal Procedure Act 51 of 1977. It asserted that Pistorius ought to have been convicted of murder.The issues were:(1)   Whether there had been an acquittal, a prerequisite for the reserving of a question of law. Held, that there had been: conviction on a competent verdict was to be regarded as acquittal on the main count.  (2)   Whether the High Court had correctly applied the principles of dolus eventualis. Held, that it had not: it had taken an objective approach to dolus; had used the test for dolus directus to establish if there had been dolus eventualis; and had assumed a perpetrator had to know the identity of his victim in order to be found to possess dolus eventualis.(3)   Whether the High Court correctly applied the principles relating to circumstantial evidence. Held, that it had erred. A court had to take into account all of the circumstantial evidence in coming to a conclusion of fact. Here the High Court had failed to take account of certain forensic evidence in coming to its conclusion on the existence of dolus eventualis. (4)   What the interests of justice required the Supreme Court of Appeal to do. Held, that they required it to consider whether the High Court had erred on dolus eventualis; and if it had, to set aside the conviction of culpable homicide. (5)   Whether Pistorius had acted with dolus eventualis. Held, that he had. Given the nature of his weapon and ammunition,

and the small size of the toilet cubicle at which he aimed, he must have foreseen the possibility that in firing he might kill the person inside. That he had continued and fired four shots, suggested he must have reconciled himself to this possibility. (6)   Whether Pistorius had established that he had acted in putative private defence. Held, that he had not: he had provided no factual basis for his purported belief that the person behind the door was about to attack him.Conviction of culpable homicide and sentence therefor set aside, and replaced with a conviction of murder. Matter referred to trial court for sentence.

KRECJIR v MINISTER OF CORRECTIONAL SERVICES AND OTHERS 2016 (1) SACR 452 (GP)Prisoner — Conditions of incarceration of — Application for order affecting conditions — Applicant not having exhausted internal remedies provided by Correctional Services Act 111 of 1998, s 21.Prisoner — Confiscation of items belonging to — Application for order that documents be sealed and that no party, including police, have access to such items — Documents having been confiscated after cell searched and firearm and items that could be used in escape found — Applicant's property subject of police investigation and could not be returned without jeopardising progress in matter — Public-policy considerations holding sway in circumstances.

The applicant was incarcerated as an awaiting-trial detainee on a number of serious charges. He had already been convicted of kidnapping, dealing in drugs, and attempted murder and was awaiting sentence on those counts. He applied on an urgent basis for certain relief relating to the conditions of his incarceration, and for an order that his notebook and documents that had been confiscated be sealed and that no party could have access to them. The documents had been seized after numerous items had been found in the applicant's cell, including a firearm and items that could be used in an escape, as well as a diary indicating the existence of an escape plan.Held, that, as the internal remedies provided by s 21 of the Correctional Services Act 111 of 1998 had not been exhausted, the matter should not have been brought before the court. Held, further, that the documents in question, together with the other items, had been handed over to the South African Police Service and were currently the subject of a police investigation into the attempted escape. The applicant could not demand the return of the documents pending finalisation of the investigation. If the documents were sealed and privileged, that would hamstring the police investigations and jeopardise progress in the case. Furthermore, the police had already had insight into the documents and the applicant had not clearly described or identified the contents of said documents. In the circumstances the court could not issue an order for the relief sought. Held, further, that it was unrealistic and illusory to expect any government to function effectively without the slightest limitation on the individual's right to fair administration. In given circumstances public policy and public interest had to hold sway over the rights of individuals in order to ensure effective governance, as in the present case. The application accordingly had to be dismissed. 

NAIDOO v MINISTER OF POLICE AND OTHERS 2016 (1) SACR 468 (SCA)

Domestic violence — Police — Duties of — National instruction imposing duty on members of SAPS to render assistance to victims of domestic violence — Police failing in their duty by refusing to accept charge of domestic violence by complainant and requiring her first to obtain protection order.

The appellant instituted action against the respondents in the High Court for damages for wrongfully and negligently failing to comply with the legal duties owed to her in terms of the Domestic Violence Act 116 of 1998 (the Act), the regulations and the national instruction issued in terms of the Act. She claimed that the respondents were guilty of unlawful arrest, detention and assault; had breached the constitutional duty owed to her by them; and had also breached a statutory duty in consequence of which she again became a victim of domestic violence.The claims arose from an assault on the appellant by her former husband in which she suffered concussion and was admitted to hospital overnight. When she went to the police station to lay a charge of domestic violence against her husband, she was told by a member of the SAPS that she first had to apply for and obtain a protection order under the Act. In consequence she went to the magistrates' court where she was informed that such was not a prerequisite to the laying of a charge. She accordingly returned to the charge-office and sought out the same person whom she had previously spoken to. She was then referred to an inspector who phoned her husband and requested him to come to the police station. When he arrived the inspector asked the appellant and her husband to resolve their dispute amicably. When this failed he told the appellant that if she insisted on laying a charge her husband would also lay a charge of common assault against her and they would both have to be arrested. The couple duly made separate statements and were then arrested, charged and detained in separate police cells. The following morning the appellant was forcibly flung into a police van which proceeded to the magistrates' court where the charge against her was withdrawn. The High Court dismissed all her claims. On appeal,Held, that para 7(1) of the national instruction imposed a duty on members of the SAPS to render assistance to victims of domestic violence by receiving and investigating the complaint and decreed that they should not shirk this responsibility by directing the complainant to seek other means. Held, further, that what the appellant experienced at the hands of members of SAPS constituted a breach of the legal duty that those members owed to her. Thus the emotional harm, humiliation and trauma that she was subjected to were the antithesis of what the Act, the regulations and the national instruction, with their extensive remedies, sought to accomplish. The appeal was upheld and the first respondent was ordered to pay damages to the appellant.

S v NHLAPHO AND OTHERS 2016 (1) SACR 489 (GP)Trial — Assessors — Absence of — No assessors appointed by court and accused not having requested court to proceed in absence of such — Constituting gross irregularity enabling High Court to interfere, even before conviction — Magistrates' Courts Act 32 of 1944, s 93ter.

In a matter that came before the court by way of special review, the regional magistrate realised before giving judgment that no assessors had been

appointed by the court in terms of the provisions of s 93ter of the Magistrates' Courts Act 32 of 1944, and neither had the accused requested the court to proceed without the assistance of assessors. The magistrate altered the trial and sent the matter on review.Held, that the Gauteng Division had adopted the stance that a failure to appoint assessors was a gross irregularity. Further, despite the fact that accused had not yet been convicted, the court was able to interfere as it would be folly and a waste of the court's time and financial resources to proceed to conviction in the full knowledge that there was an irregularity in the proceedings. The proceedings were set aside and declared void ab initio.

DIRECTOR OF PUBLIC PROSECUTIONS, GAUTENG v MPHAPHAMA 2016 (1) SACR 495 (SCA)Appeal — By Director of Public Prosecutions — Against alteration of sentence by High Court sitting as court of appeal — DPP having no such right of appeal.

The Director of Public Prosecutions does not have the right to appeal against a sentence altered by a High Court where that court sat as a court of appeal.

S v XM AND ANOTHER 2016 (1) SACR 500 (KZP)

Child — Diversion of — From criminal justice system — Requirements of — Schedule 3 offences — Written consent required from DPP — Failure to obtain such constituting fatal irregularity — Importance of preliminary inquiry emphasised for safeguarding of child's interests.

In two cases that came before the court on special review the issues were almost the same and the court dealt with them together. The three accused in these cases were juveniles whose charges of armed robbery in one case, and the possession of unlicensed firearms in the other, were diverted in terms of the Child Justice Act 75 of 2008 (the CJA). The Director of Public Prosecutions (DPP) submitted that the children were incorrectly diverted in terms of the CJA in respect of sch 3 offences without written consent. Further, other serious irregularities had inter alia occurred relating to the procedure that was followed.Held, that in view of the fact that the children were facing offences referred to in sch 3, only the DPP having jurisdiction was allowed to indicate in writing whether the matter could be diverted in terms of s 52(3)(a) of the CJA, and was not permitted to delegate this power (s 52(3)(d). When a prosecutor had identified an appropriate sch 3 matter for diversion he or she was therefore required to refer the matter to the DPP for a written indication to do so. In the present matter the prosecutor had failed to obtain such and without it the inquiry magistrate was precluded from making an order in terms of the CJA. This was a fatal irregularity that vitiated the proceedings. Held, further, that, in the case of one of the children who was not brought to a preliminary inquiry, this was a further irregularity. In terms of the CJA this inquiry was one of the most important steps in the judicial process involving a young offender. The primary purpose of such was to safeguard the basic rights of any child who was alleged to have committed an offence. This was to be understood not only in the context of ch 7 itself, but also with regard to the objects and guiding principles set out in the CJA. Where a child was arrested and remained in detention, the preliminary inquiry further had to be held within 48 hours of the arrest, subject to certain

exceptions permitted in the circumstances referred to in s 20(5). While it was required to be conducted with the least amount of formality, the provisions of the statute still had to be adhered to. The orders made by the inquiry magistrate were reviewed and set aside and the matters referred to the DPP in view of his undertaking that, if a prosecution should be required, he would have the children brought before a preliminary inquiry to be dealt with in terms of the CJA.

S v MTHETHWA 2016 (1) SACR 510 (KZP)

Child — Sentence — For murder and attempted murder — Accused's childhood characterised by neglect and ineffective parenting as he was abandoned as baby — Court a quo failing to attach sufficient weight to youthfulness and prospects of rehabilitation — Sentence of 18 years' imprisonment reduced on appeal to 12 years' imprisonment.

The appellant was convicted in the High Court of one count of murder and one count of attempted murder. At the time of the commission of the offences he was 16 years and six months old. He was sentenced to 18 years' imprisonment for the murder and eight years' imprisonment for the attempted murder. The sentences were ordered to run concurrently.In the present matter he appealed to the full bench against sentence only. The state conceded the appeal in respect of the second count as there were no aggravating factors justifying the imposition of a more severe sentence than the minimum five-year sentence prescribed by law. The appellant was sentenced under the provisions of s 51(6) of Criminal Law Amendment Act 105 of 1997 (the Act) prior to its amendment in 2007. In order to take account of the declaration of constitutional invalidity of ss (6) and that he was under the age of 18 years at the time of the commission of the offence, his sentence needed to be reconsidered — the provisions of s 51 of the Act also no longer applied to him subsequent to the amendment. It was submitted on his behalf that the sentence of 18 years' imprisonment was shockingly harsh and disproportionate to the circumstances of the case.Held, that the evidence in mitigation revealed a childhood characterised by neglect and ineffective parenting as the appellant's mother had abandoned him as a baby and he had been brought up by his paternal grandmother. At the age of 13 he had begun to mix with the wrong crowd which had led to the commission of the offence. The appellant was nevertheless a child and should have been treated as such. The court a quo had attached insufficient weight to his youthfulness and the prospects of rehabilitation, which were good, as he was a first offender. In the circumstances a sentence of 12 years' imprisonment was imposed on the first count and a sentence of five years' imprisonment on the second count and it was ordered that they were to run concurrently.

S v LEEPILE 2016 (1) SACR 513 (NWM)Trial — Presiding officer — Conduct of — Descending into arena of conflict — Presiding officer to guard against such conduct — Might create impression of partisanship or that issues pre-decided — Should not put attacking propositions to accused or cross-examine accused.

In an appeal against a conviction in a magistrates' court it appeared from the record that the magistrate had on a number of occasions posed leading questions to a witness that were not in clarification and had put questions to the accused which were similar to the questions put to him by the prosecutor. It was contended by the appellant that he had not had a fair trial as a result of the bias by the magistrate and that the conviction had to be set aside. Held, that, although a presiding officer was sometimes obliged to ask witnesses questions, it was important to guard against conduct which could create the impression that he or she was descending into the arena or was partisan, or had already decided issues which should only be decided at the end of the trial. Nor should a presiding officer put attacking propositions to an accused, as such conduct could create the impression that the presiding officer was acting as a cross-examiner. The irregularity established by the presiding officer's descending into the arena in the present instance constituted a failure of justice that resulted in the appellant not having had a fair trial. The conviction accordingly had to be set aside.

S v BOOYSEN 2016 (1) SACR 521 (ECG)Bail — Presiding officer — Where formal hearing held considering factors in s 60 of Criminal Procedure Act 51 of 1977, presiding officer ordinarily disqualified from presiding at subsequent trial.

The appellant was convicted in a magistrates' court on charges of housebreaking with intent to steal and theft and common assault. After the state proved certain previous convictions, the magistrate transferred the matter to the regional court for sentence. The latter court certified that the proceedings were in accordance with justice as required in terms of s 116 of the Criminal Procedure Act (the CPA) and proceeded to sentence the appellant to five years' imprisonment on the first count and six months' imprisonment on the second. He was granted leave to appeal on the basis that another court might conclude that the proceedings were not in accordance with justice as the magistrate had presided over the bail application involving the appellant before presiding at the trial. The record indicated that the magistrate had expressed an opinion at the conclusion of the bail hearing that, by virtue of his having acquired knowledge of certain facts, it would not be in the interests of justice for him to preside at the trial. For reasons that were not explained, the magistrate did not recuse himself from presiding at the subsequent trial.Held, that, where a bail application involving formal consideration of the numerous factors set out in s 60 of the CPA was heard, the presiding officer at the bail application would ordinarily be disqualified from hearing the subsequent trial of the accused person. That magistrate would only be 'ordinarily' disqualified as there might be circumstances where the existence of a reasonable suspicion of bias either could not be sustained on the facts, or reliance upon such was precluded in the interests of justice because of the circumstances in which the claim arose. Held, further, that the fact that the magistrate indicated that he did not consider himself qualified to preside over the subsequent trial must have created in the minds, not only of the appellant but also any member of the observing public, the perception that he was signalling reasonable and acceptable grounds to justify his disqualification by recusal from further engagement in proceedings involving the accused. His subsequent failure to do so, in circumstances where such recusal was required, rendered the further proceedings a nullity. It did not matter that the accused had not asserted his reasonable apprehension of apparent bias. That he had not

done so was because he had a different legal representative at that stage who had no knowledge of the magistrate's expressed views. The appeal was upheld and the conviction and sentence were set aside.

S v DIBAKOANE 2016 (1) SACR 532 (GP)Trial — Postponement of — When to be granted — Postponement for purpose of obtaining legal representation — Trial previously postponed for same purpose — Record showing accused not wanting trial to proceed and seeking to frustrate it — Refusal of postponement in circumstances not misdirection.

The appellant appealed against his convictions in a regional magistrates' court on a number of counts, including robbery with aggravating circumstances and kidnapping, as well as the sentences imposed in respect of those convictions. He contended that he had not had a fair trial as the magistrate had refused to grant him a postponement in order to obtain a legal representative of his own choice. The record of the proceedings in the court a quo revealed that there had been a number of postponements for the appellant to obtain legal representation. On one occasion he stated that he was not in a position to proceed with the trial as he had only recently received the contents of the docket and that he did not understand the documents as they were in Afrikaans — he had in fact had eight days in which to read said documents. The magistrate stood the matter down so that the interpreter could assist the appellant by translating the documents into English for him, which was done in writing. The matter then stood down until the next day when the appellant was asked to plead. He refused to plead in the absence of his attorney despite having indicated the previous day that he would conduct his own defence. The trial then commenced but the appellant failed to participate in the proceedings. He was duly convicted and sentenced.Held, that it was self-evident that when one read the record the appellant was not desirous that the matter should proceed and that he sought to frustrate the commencement of the trial at all costs.Held, further, that the right to legal representation could not be a right which would extend to matters being postponed indefinitely in order for an accused to raise funds to obtain representation. Held, further, that the appellant had no one other to blame than himself for his predicament: he was informed of legal aid but had declined it. The appeal was accordingly dismissed.

ALL SA LAW REPORTS MAY 2016

Commissioner for the South African Revenue Service v Kluh Investments (Pty) Ltd[2016] 2 All SA 317 (SCA)

Tax – Income tax – Section 26 read with paragraph 14 of the First Schedule of the Income Tax Act 58 of 1962 – Whether taxpayer conducting farming operations for purposes of section 26 – Section 26(1) provides that the “taxable income of any person carrying on pastoral, agricultural or other farming operations shall, in so far as it is derived from such operations, be determined in accordance with the provisions of this Act but subject to the provisions of the First Schedule” –

Determination of whether taxpayer conducted farming operations is a factual enquiry.

Property in Knysna owned by the Thesen Group of companies (“Thesen”) was used for the conducting of a forestry, timber-growing and plywood manufacturing business. In May 2001, written agreements were concluded between a prospective purchaser (“Steinhoff”) and Thesen, in terms of which Steinhoff or its nominee, as purchaser, agreed to acquire for the total purchase price of R45 million, all of the assets and the business as a going concern of the latter, including the land and the plantation. As the policy of Steinhoff’s ultimate holding company was not to acquire fixed property in South Africa at the time, Steinhoff had to then find somebody to own the land. In the event, agreement was reached that Steinhoff would purchase Thesen’s machinery and equipment and the respondent (“Kluh”) would acquire the remaining assets. In June 2001, Kluh took possession of the plantation and the land. In 2003, Steinhoff again wished to acquire the plantation and land that Kluh had purchased from Thesen. It concluded a written agreement of sale with Kluh.

The appellant, the Commissioner for the South African Revenue Service (“CSARS”), assessed Kluh for tax on the basis that the proceeds of that sale formed part of its gross income by virtue of section 26(1) of the Income Tax Act 58 of 1962 (“the Act”) read with paragraph 14(1) of the First Schedule thereto. Kluh’s appeal was dismissed by the Tax Court, but the Full Court of the High Court overturned the decision of the Tax Court, holding that the proceeds of the sale were not gross income in terms of section 26(1) of the Act. That led to the present appeal by SARS.

Held – Section 26(1) provides that the “taxable income of any person carrying on pastoral, agricultural or other farming operations shall, in so far as it is derived from such operations, be determined in accordance with the provisions of this Act but subject to the provisions of the First Schedule”. The First Schedule deals in detail with how taxable income derived from farming operations is to be computed. The primary issue on appeal was whether Kluh was “carrying on farming operations” as contemplated by section 26(1). There is no definition of “farming operations” in the Act and whether or not a person’s economic activity constitutes farming operations is essentially a question of fact.

Steinhoff had initially purchased the plantation itself, with the intention of carrying on its own farming operations thereon, as already mentioned, but was not permitted to proceed due to the group’s then policy not to own land in South Africa. Steinhoff thus acquired from Thesen, independently of Kluh, all the equipment and the personnel required to carry on farming operations on the plantation. When Thesen disposed of the plantation to Kluh in 2001, it was already a mature plantation in rotation. The plantation had reached the stage where it could annually yield a steady and sufficient number of mature trees for commercial felling, with younger trees taking their place year by year. Steinhoff, which owned the equipment necessary for conducting the plantation operations and employed the employees who worked on the plantation (mostly taken over from Thesen), was entitled to harvest the timber for its own account. Kluh owned no equipment and had no employees. All operational income and expenditure were earned and incurred by Steinhoff and reflected in its accounts. Thus, Kluh’s financial records and financial statements for the period between the acquisition and the disposal of the plantation reflected no operational income and expenditure. Steinhoff, in conducting the plantation operations, had to keep the

plantation in rotation and perform such other pruning, thinning and maintenance as would ensure that, upon termination, it could restore the plantation as in its June 2001 state. Thus from the very beginning, Kluh wanted nothing to do with any farming operations. Instead, it made the plantation available to Steinhoff so that the latter could conduct plantation operations for its own profit and loss. That conclusion ought to have been dispositive of the primary enquiry in the matter, and it was unnecessary for the Full Court to have proceeded – as it did – to an interpretation of section 26 of the Act.

CSARS’ further arguments were first, that the purpose of paragraph 14(1) of the First Schedule to the Act was to extend tax liability by treating the proceeds of the disposal of a plantation as gross income; second, that the mere disposal of a plantation by its owner constituted the conduct of farming operations for purposes ofsection 26(1), irrespective of the extent to which the owner was involved in the actual conduct of farming operations prior to or separately from such disposal, and, third, the farming operations were conducted by Steinhoff “on behalf of” Kluh. The Court found no merit in any of those contentions.

The appeal was, accordingly, dismissed with costs.

Du Toit v Ntshinghila and others [2016] 2 All SA 328 (SCA)

Criminal procedure – Prosecutorial disclosure – Appellant charged with possession of child pornography – Whether prosecution obliged to furnish appellant with copies of images said to constitute child pornography as part of pre-trial disclosure – Court finding countervailing interests of significance that warranted a departure from the normal method of disclosure by copies – Rights of children in images requiring protection.

In May 2010, members of the South African Police Services, armed with a search warrant, conducted a search of the home of the appellant. Various items including four mobile phones, compact discs, memory sticks and a laptop were seized. On 9 November 2010, the appellant was charged with the possession of child pornography in contravention of the Films and Publications Act 65 of 1996. Before the commencement of his trial, the appellant sought an order from the regional court that the prosecution be directed to furnish him with copies of the images said to constitute the offence charged. Although the prosecutor offered to put arrangements in place for him, his legal representatives and any expert for the defence to view the images at an office at either the local police station or the court, the appellant rejected that offer, contending that he was entitled, without more, to be provided with copies of the images which were alleged to constitute child pornography. The magistrate ruled that the arrangement proposed by the prosecution was sufficient and accordingly dismissed the application. An appeal to the High Court was also dismissed. The appellant and the Director of Public Prosecutions (“DPP”) sought and were granted leave to appeal to the present Court. However, the appellant did not prosecute his appeal and it lapsed. The DPP’s appeal only concerned the correctness of the High Court’s order reviewing and setting aside the magistrate’s order to the effect that the prosecutor did not have to furnish the appellant with copies of the images constituting the charge.

Held – An allegation that prosecutorial disclosure is inadequate is an assertion that an accused person’s right to make full answer and defence – a right afforded

protection under section 35(3) of our Constitution – has been infringed. In considering the question of entitlement to disclosure, what is essentially required is a judicial assessment of the balance of risk not wholly dissimilar to the function which a judicial officer performs in weighing the balance of convenience in cases pertaining to interdicts pendente lite. A broad and flexible approach is envisaged against which to measure the opportunity of the defence in each particular case to present its case effectively to the court.

In this case, the prosecution argued that its alternative proposal for a private viewing at a mutually convenient time at an office in the police station or court satisfied the prosecutor’s disclosure obligations in a way that permitted the appellant to make full answer and defence, yet did not further compromise any of the privacy interests of the persons portrayed on the images. This was thus a case where it was necessary to determine whether there were countervailing interests of significance that warranted a departure from the normal method of disclosure by copies. The Court had regard to the constitutional protection given to children in all matters concerning them in terms of section 28(2) of the Constitution and in terms of numerous treaties to which South Africa is party such as article 3(1) of the United Nations Convention on the Rights of the Child, 1989 and sections 10, 14and 15 of the Children’s Act 38 of 2005. It found that there existed in this case the reasonable privacy interests of the children who were depicted in the images. There was also a significant public interest in ensuring that no duplication or distribution occurred in the disclosure process. Those interests ought not to be further compromised by the copying, viewing, circulation or distribution of the images beyond what was reasonably necessary to give effect to the appellant’s constitutional right.

The Court was satisfied that on the approach of the DPP, the desired result and necessary balance had been achieved in this case. The appeal was thus upheld and the order of the High Court was set aside and replaced with an order dismissing the appellant’s application.

Lourens v Speaker of the National Assembly of Parliament of the Republic of South Africa and others [2016] 2 All SA 340 (SCA)

Constitutional law – Acts of Parliament – Failure to publish in all eleven official languages – Whether amounting to unfair discrimination – Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 – Court finding discrimination not to be unfair.

The appellant was an Afrikaans-speaking person who believed that the current practice of Parliament in relation to the language used for legislation, and the rules of Parliament in that regard, amounted to unfair discrimination against him and all non-English speaking people in the country in that Bills are introduced into Parliament invariably in English, are published in English, and that the official text that is sent to the President for signature is also, invariably, in English only. According to the appellant, the failure to translate all Acts of Parliament into all eleven official languages amounts to unfair language discrimination in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (“the Equality Act”). He therefore brought proceedings in the Equality Court seeking, inter alia, a declaration that the respondents were guilty of conduct that amounted to unfair language discrimination as suggested above. The Equality Court dismissed the application but granted leave to appeal to the present Court, not because an appeal

would enjoy reasonable prospects of success, but because the issues raised were “important constitutional questions of national importance” which deserved the attention of this Court.

Held – Section 6 of the Constitution accords 11 languages official status, recognises the historically diminished status of indigenous languages, acknowledges the importance of several others and exhorts the development of all. But the section expressly allows government at national and provincial level to act in a minimum of two of the official languages (section 6(3)). Thus, the Constitutional Assembly intended that not all official languages have to be employed in the process of government.

The Court referred to the provisions of the Constitution that govern the processes of Parliament and the enactment of statutes, and then the joint rules of Parliament that deal with its use of language. It found that recently, Parliament has been in breach of its own rules and of section 6(3) of the Constitution in that many of the Acts of Parliament passed since 1996 were published in only one language – English. Similarly, amendments to Acts, even those where the signed version of which was in Afrikaans, had been amended in English only.

Section 9 of the Constitution, dealing with equality, is given effect to by the provisions of the Equality Act. The appellant was required to make out a prima facie case of discrimination on the ground of language. While not disputing that there was discrimination, the respondents argued that such discrimination was not unfair. Section 14 of the Equality Act sets out the tests for fairness. Applying the test set out therein, the Court found that in so far as Parliament and the National Government did not pass Bills, and enact them, in all official languages, they were not guilty of unfair discrimination. Although Parliament’s failure to comply with its own rules relating to language as set out above had to be remedied, the appeal had to fail.

Masstores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd and another [2016] 2 All SA 351 (SCA)

Delict – Trading in competition with a contracting party in contravention of a restraint clause in a lease agreement – A delictual action lies in instances where an outside party knowingly deprives a person of his rights under a contract with another – Unlawful interference in contractual relationship between the contracting party and landlord justifying interdictory relief.

In February 2006, the appellant (“Masstores”) leased part of a shopping centre for the purpose of operating a retail business. The lease agreement stipulated that a general food supermarket could not be operated on the leased premises. In May 2006, the first respondent (“Pick n Pay”) concluded a lease agreement in terms of which it leased premises at the same shopping centre. Its lease agreement contained an exclusivity clause in terms of which the lessor (“Hyprop”) would not permit the operation of another supermarket in the centre.

Although Masstores’ products excluded food, just before 2010 it began selling non-perishable food and grocery items. In September 2013, Masstores introduced fresh fruit and vegetables and fresh pre-packed meat products at its store in the shopping centre. As a result, Pick n Pay launched an application in the court a quo, seeking a final interdict against Masstores, restraining it from interfering in the contractual

relationship between Pick n Pay and Hyprop by carrying on a business exclusively granted to Pick n Pay in terms of the latter’s lease agreement. The court upheld Pick n Pay’s contentions, and granted a final interdict, resulting in the present appeal.

Held – A delictual action lies in instances where an outside party knowingly deprives a person of his rights under a contract with another.

The issue of whether or not it was operating a supermarket in violation of the lease agreement was hotly disputed by Masstores. Despite the contention by Masstores that the word “supermarket” had a specialised meaning, the Court agreed with Pick n Pay that it was an ordinary, well-known and oft used word with an ordinary meaning. The dictionary meaning relied upon by the trial court was approved on appeal. In terms thereof, the store must be large and it must carry a wide range of products.

The trial court had correctly refused to consider the expert evidence sought to be adduced. On appeal, the Court went further, stating that the expert evidence was inadmissible and irrelevant. The court a quo had no need for experts to explain to it the meaning of an ordinary word. In this case, the expert evidence lacked any reasoning. An expert’s opinion must be underpinned by proper reasoning in order for a court to assess the cogency of that opinion.

On the photographic evidence, it was clear that Masstores conducted a general food supermarket at its store. That evidence accorded with the ordinary dictionary meaning of a supermarket. And, importantly, Masstores itself regarded the food section of that store as a supermarket. It was therefore trading in competition with Pick n Pay in breach of Masstores’ lease obligations.

The next question was whether that conduct constituted a delict as against Pick n Pay. Three requirements had to be met for a successful claim based on the unlawful interference in a contractual relationship. There had to be an unlawful act; which constitutes an interference in the contractual relationship; and which is committed with some form of dolus.  In trading in competition with Pick n Pay, contrary to its contractual restraint, after it was made aware of Pick n Pay’s right to exclusivity, Masstores acted unlawfully. On the issue of wrongfulness, the Court held that in the context of delictual liability, wrongfulness is determined by legal and public policy considerations. In the present instance, the claim was based on the intentional deprivation of a benefit a contract party would otherwise have obtained from performance under a contract. The Court confirmed that inducement or enticement is not a requirement in a claim based on the unlawful interference in a contractual relationship. It was held that Masstores had acted wrongfully in preventing Pick n Pay from obtaining the performance to which it was entitled by virtue of its contractual right of exclusivity.

Finally, the Court considered the issue of intent. The evidence established that Masstores was asked in writing to desist from conducting a supermarket at the leased premises, but failed to heed the request. Its conduct clearly constituted direct intent or, at the very least, dolus eventualis. The requirements of the delictual action had therefore been proved by Pick n Pay.

The Court also confirmed that an exclusivity clause in a lease agreement is an integral part of that lease and not a collateral right.

The court a quo was therefore correct in holding that the prerequisites for a final interdict had been met by Pick n Pay, and the appeal fell to be dismissed.

Minister of Justice and Constitutional Development and others v Southern African Litigation Centre (Helen Suzman Foundation and others as amici curiae)[2016] 2 All SA 365 (SCA)

Civil procedure – Leave to appeal – Court’s discretion – Lack of prospects of success on appeal – Section 17(1)(a)(ii) of the Superior Courts Act 10 of 2013 provides that leave to appeal may be granted, notwithstanding the court’s view of the prospects of success, where there are nonetheless compelling reasons why an appeal should be heard.

International law – South Africa’s obligations to arrest and surrender person against whom the International Criminal Court has issued an arrest warrant – Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 – Whether there was immunity for head of State, against whom warrants of arrest had been issued, under customary international law and section 4(1) of Diplomatic Immunities and Privileges Act 37 of 2001 (“DIPA”) – Whether immunity exists by virtue of hosting agreement concluded with African Union and Ministerial proclamation under section 5(3) of DIPA.

Practice and procedure – Application for admission as amicus curiae – Rule 16 of Rules of Supreme Court of Appeal – Admission as amicus does not give rise to a right to make oral submissions – A party may only be admitted as amicus if it has new contentions to advance.

The International Criminal Court was established by the Rome Statute of the International Criminal Court (the “Rome Statute”) to exercise jurisdiction over the most serious crimes of concern to the international community. Article 5 identifies them as genocide, crimes against humanity and war crimes (collectively “international crimes”). The Rome Statute requires effective prosecution of such crimes by measures being taken at national level and through enhancing international co-operation.

South Africa is a signatory to the Rome Statute, which it incorporated into domestic law by enacting the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (the “Implementation Act”). Chapter 4 of the Implementation Act provides the mechanism whereby South Africa co-operates with the ICC in regard to the arrest and surrender of persons accused of international crimes.

In June 2015, the president of Sudan, Omar Hassan Ahmad Al Bashir (“President Al Bashir”) attended a session of the Assembly of the Africa Union (“AU”) in Johannesburg. As a result of investigations into allegations of the actions of his government and their supporters by the ICC, President Al Bashir stood accused of serious international crimes, and the ICC had issued two warrants for his arrest. The first warrant related to charges of war crimes and crimes against humanity, and the second warrant related to charges of genocide. The warrants were forwarded to all countries that were parties to the Rome Statute, including South Africa, with a request that they co-operate under the Rome Statute and cause President Al Bashir

to be arrested and surrendered to the ICC. When President Al Bashir arrived in South Africa to attend the AU assembly in June 2015, the Government (represented herein by the “applicants”) took no steps to arrest him, leading to the present litigation. It defended its position on the ground that President Al Bashir enjoyed immunity from such arrest.

As a result, the respondent brought an urgent application in the High Court, seeking orders declaring the failure to take steps to arrest President Al Bashir to be in breach of the Constitution and to compel the government to cause President Al Bashir to be arrested and surrendered to the ICC to stand trial pursuant to the two warrants. The government applied for a postponement to enable it to file affidavits, and while granting such postponement, the High Court ordered that President Al Bashir was prohibited from leaving South Africa until a final order was made in the application, and the respondents were directed to take all necessary steps to prevent him from doing so. The eighth respondent (the “Director-General of Home Affairs”) was ordered to effect service of the order on the official in charge of each and every point of entry into, and exit from the country. At the hearing the following day, the court sought and received an assurance that President Al Bashir was still in South Africa. The court issued an order declaring the applicants’ failure to arrest him to be unconstitutional and invalid, and directed the applicants to take all steps to effect such arrest. Immediately after the order was made, Counsel for the government told the court that President Al Bashir had left the country earlier that day.

The High Court having refused leave to appeal, the present Court was approached with the request for leave to appeal.

As the appellants had initially relied on certain special arrangements that it had made with the AU for the holding of the Assembly in Johannesburg, in terms of which visiting heads of State would be afforded stipulated immunities and privileges, the High Court had correctly summarised the issue before it as being whether a Cabinet resolution coupled with a Ministerial Notice were capable of suspending the country’s duty to arrest a head of State against whom the International Criminal Court (“ICC”) had issued arrest warrants. However, with the advent of new Counsel in the present Court, an entirely different argument emerged. The applicants’ case was now based upon what were said to be the provisions of customary international law and the provisions of section 4(1)(a) of the Diplomatic Immunities and Privileges Act 37 of 2001 (“DIPA”). The government contended that the general immunity that a head of State enjoys under customary international law and section 4(1) of DIPA qualified the obligation of South Africa, that would otherwise exist as a State party to the Rome Statute, to arrest and surrender a head of State for whom the ICC has issued an arrest warrant in respect of the commission of international crimes.

Held – The first question to be addressed was whether an appeal would be moot considering that President Al Bashir had already left the country. The Court agreed that no present effect could be given to the order that the government take steps to prepare to arrest President Al Bashir, but the order would remain extant and any attempt by President Al Bashir to return to this country would prompt the respondent to seek its enforcement. Therefore, the High Court erred in holding that there had ceased to be a live and justiciable controversy between the parties.

The next question was whether leave to appeal should be granted. Faced with the first ground on which the government’s case was based, the High Court held that an

appeal had no reasonable prospect of success and therefore it had no discretion, once it reached that conclusion, to grant leave to appeal. However, the court failed to consider the provisions of section 17(1)(a)(ii) of the Superior Courts Act 10 of 2013, which provide that leave to appeal may be granted, notwithstanding the court’s view of the prospects of success, where there are nonetheless compelling reasons why an appeal should be heard. Leave to appeal was granted in this case.

Application was made by five entities to be joined as amici curiae, but only one of the applications was successful as the applications by the other four were not submitted timeously. However, the entities in question were allowed to submit argument on why they should be admitted. Such applications are made in terms of rule 16 of the rules of court. In terms of rule 16(1), if all parties agree to the admission of an amicus  they are admitted as such. The rule contemplates that the parties when agreeing to the admission of an amicus will agree on the terms on which the amicus  is to be admitted. Where there is no agreement among the parties as to the admission of an amicus, it is entitled to seek its admission by way of an application to the President of the Court in terms of rule 16(4). The basis upon which such an application shall be made is set out in rules 16(5) and (6). The four applicants who were refused leave to be joined did not pay due regard to the prescripts of rule 16, and were also found not to present any issues not otherwise addressed in the proceedings. Their applications were, therefore, refused.

The central issue before the present Court was whether there was immunity under customary international law and section 4(1) of DIPA. Government’s argument was that in terms of customary international law, heads of State enjoy immunity by virtue of the office they hold, and are not subject to the criminal or civil jurisdiction of the courts of other countries or any other form of restraint. It was submitted further that the Implementation Act does not remove that immunity. The present Court held that South Africa is bound by its obligations under the Rome Statute. It is obliged to co-operate with the ICC and to arrest and surrender to the court persons in respect of whom the ICC has issued an arrest warrant and a request for assistance. The relationship between the Implementation Act and the head of State immunity conferred by customary international law and DIPA lies at the heart of this case. But the starting point was with the Constitution, which provides a specific mechanism whereby obligations assumed under international agreements become a part of the law of South Africa.

The narrow issue was whether there is now an international crimes exception to the principle of head of State immunity, enabling a State or national court to disregard such immunity when called upon by the ICC to assist in implementing an arrest warrant. That question was answered in the negative. Whether the Implementation Act had the effect of removing the immunity that President Al Bashir would otherwise enjoy was a matter of the proper construction of the Implementation Act. The Court held that the DIPA is a general statute dealing with the subject of immunities and privileges enjoyed by various people, including heads of State. The Implementation Act is a specific Act dealing with South Africa’s implementation of the Rome Statute. In that special area, the Implementation Act must enjoy priority. Section 4(1)(a) of the DIPA continues to govern head of State immunity unless such immunity is excluded by the operation of the Implementation Act.

The Court concluded that the conduct of the appellants in failing to take steps to arrest and detain President Al Bashir was inconsistent with South Africa’s obligations in terms of the Rome Statute and section 10 of the Implementation Act, and unlawful.

Nkabinde and another v Judicial Service Commission and others [2016] 2 All SA 415 (SCA)

Courts – Judiciary – Complaint against judge lodged with Judicial Service Commission – Legality of steps taken by Judicial Service Commission following complaint – Challenge to constitutionality of section 24(1) of the Judicial Service Commission Act 9 of 1994, in terms of which a member of the National Prosecuting Authority (NPA) may assist a tribunal rejected based on principle of prosecutorial independence.

Courts – Judiciary – Complaint against judge lodged with Judicial Service Commission – Rules applied by Commission – Lawfulness of application of new rules – Retrospective application of the new statutory regime – Where no substantive rights were adversely affected, application of new procedure confirmed as sensible, fair and just.

In a complaint lodged by 11 Constitutional Court judges with the first respondent (“the JSC”), it was alleged that the Judge President of the Western Cape Division of the High Court, Cape Town had approached the appellants, two Justices of the Constitutional Court, in an attempt to influence that court’s pending judgment in a number of inter-related cases. The present appeal was about the legality of steps taken by the JSC following the complaint. The JSC’s decision to firstly hold a preliminary inquiry and, secondly, to constitute a tribunal to hear and adjudicate the complaint, were the critical decisions which had to be considered.

The appellants also challenged the constitutionality of section 24(1) of the Judicial Service Commission Act 9 of 1994 (“JSCA”), in terms of which a member of the National Prosecuting Authority (“NPA”) may assist a tribunal, established in terms of the JSCA, by collecting and leading evidence. In that regard, the principal submission appeared to be that the involvement in the inquiry of a member of the NPA was an improper delegation of power to a member of the Executive and that it impermissibly involved a non-member of the JSC in the adjudication of the conduct of a judge. Furthermore, it was contended that section 24(1) was in breach of two fundamental principles, namely the doctrine of the separation of powers and the independence of the judiciary.

Held – Until 1 June 2010, complaints against judges were dealt with in terms of Rules established by the JSC, pursuant to its powers as provided for in section 178(6) of the Constitution. At the time that the complaint by the 11 Constitutional Court judges was lodged, the Rules that governed complaints against judges provided that the JSC had to consider any complaint received from any source alleging incapacity, gross incompetence or gross misconduct of a judge. Again, in terms of the JSC Rules then in force, it was not necessary for a complaint to have been on oath. A complaint on oath was optional. At that time, it was contemplated that the matter would be dealt with in terms of the then existing Rules. The JSCA was amended in June 2010 and a new statutory regime to deal with complaints against judges came into operation. That occurred approximately two years after the complaint was lodged. The amendments provided for the establishment of a Judicial

Conduct Committee and a tribunal to deal with complaints against judges. The new provisions of the JSCA set out in some detail the procedures to be followed in relation to the adjudication of complaints. The new statutory regime was in place when the JSC decided, during April 2012, to have the matter dealt with prospectively in terms of the new procedures. The appellants argued that, since the complaint by the Constitutional Court Justices had been lodged during May 2008, it ought to have been adjudicated in terms of the Rules which constituted the regulatory regime prior to the amendments. The court below addressed the issue raised by the appellants, namely, the improper retrospective application of the new statutory regime that applied to complaints against judges. After examining the applicable authorities, the learned Judge concluded that, in the absence of the impairment of any existing substantive rights, the inquiry ought rightly to be conducted in terms of the new statutory regime. The present Court held that the question of whether the new statutory regime should be applied to pending cases is to be addressed other than on the basis of whether existing rights were infringed. If existing rights were to be found to be impinged upon, then it followed that the appeal would have to succeed. Unable to find that any substantive rights had been adversely affected, the Court rejected the appellants’ first argument.

The Court also dismissed the next argument, which was that was that, if the new procedure did apply, then the complaint was invalid as it had not been made under oath, as required by the new procedure. The consequence of upholding that argument would be the infringement of the substantive rights of the parties. In any event, the requirements of the new procedure had been substantially complied with.

Finally, the Court addressed the appellants’ argument that the new procedure was unconstitutional in that it breached the doctrine of separation of powers as the JSC was allowed to appoint a prosecutor to be involved in the collection and leading of evidence. Pointing to the principle of prosecutorial independence, the Court rejected the allegation of unconstitutionality.

The appeal was thus dismissed.

South African Municipal Workers’ Union and others v Mokgatla and others[2016] 2 All SA 451 (SCA)

Labour law – Practice and procedure – Jurisdiction – Concurrent and exclusive jurisdiction of the Labour Court and the High Court – Section 158(1)(e) of the Labour Relations Act 66 of 1995 – Dispute based on non-adherence to disciplinary procedures provided in the constitution of a trade union – Relevant question in determining whether the Labour Court’s jurisdiction was exclusive depended on whether it was a review of the exercise of a power under the Labour Relations Act.

The second to sixth appellants (“appellants”) were national office bearers of the first appellant (“SAMWU”), whilst the 13 respondents and 3 others were its provincial office bearers. During 2012 and 2013 a suspicion arose amongst certain members of SAMWU, including the respondents, that the appellants were involved in acts of financial mismanagement, corruption and misappropriation of SAMWU’s funds. While a motion to remove the appellants from office was pending, the respondents were removed from office by the appellants. The respondents challenged their

removal in the court a quo, contending that prescribed disciplinary procedures were flouted when the decision to remove them from office was taken.

In opposing the respondents’ application for reinstatement, the appellants raised, inter alia, a point in limine  that in terms of section 157(1) of the Labour Relations Act 66 of 1995, the High Court lacked jurisdiction to hear the application. The court a quo accepted that section 157(1) confers exclusive jurisdiction on the Labour Court in respect of matters that, in terms of the Act or any other law, are to be determined by the Labour Court. However, the court found that section 158(1)(e)(i) affords litigants a choice of fora in which to bring disputes arising from non-compliance with the constitution of a trade union. It was held that such disputes being founded in both common law and the Labour Relations Act, the latter did not deprive litigants of the right to approach the High Court to assert their common law rights. The special plea of lack of jurisdiction was thus dismissed.

Held – The issue for determination on appeal was whether the High Court and the Labour Court have concurrent jurisdiction in respect of disputes emanating from section 158(1)(e) of the Labour Relations Act.

The court applied the dictum  in the case of Motor Industry Staff Association v Macun NO and others  [2016] 3 BLLR 284 ([2015] ZASCA 190; (2016) 37 ILJ 625) (SCA), to the effect that section 157(2) must be narrowly construed in the light of the primary objectives of the Labour Relations Act to establish a comprehensive framework regulating labour relations. In relation to section 158(1)(g), the court in that case found that the relevant question in determining whether the Labour Court’s jurisdiction was exclusive depended on whether it was a review of the exercise of a power under the Act. If the case fell within section 158(1)(g), the Labour Court’s jurisdiction was exclusive.

The respondents in the present matter had specifically pleaded in their application before the court a quo  that the appellants should have complied with the relevant clauses of SAMWU’s constitution. Therefore, the basis upon which the High Court’s jurisdiction was challenged was expressly provided for in section 158(1)(e)(i). The disavowal by the respondents, during argument, of any reliance on the Act was irrelevant.

Upholding the appeal, the Court dismissed the respondents’ application.

Bengis and others v Government of South Africa and others and a related matter[2016] 2 All SA 459 (WCC)

Criminal procedure – Plea bargain – Whether the South African government and other State agencies and officials, in alleged violation of arrangements reached with the applicants when they concluded a plea bargain in South Africa, unlawfully assisted the United States authorities to prosecute them in America for related crimes and to obtain restitution orders – Court finding no justification for interpreting the plea bargain as containing an implied undertaking by the National Prosecuting Authority that it would not assist the United States in prosecuting the applicants for offences under American law.

In two consolidated applications, the same three persons featured as applicants and the same persons featured as the first to sixth respondents in both cases.

The applicants sought final relief on motion. Bona fide  factual disputes therefore had to be determined on the respondents’ version. A purported factual dispute would lack bona fides  if the respondent’s version was a bald or uncreditworthy denial or was palpably implausible, far-fetched or so clearly untenable that the court is justified in rejecting it on the papers.

The first applicant (“Bengis”) was the director of a fishing company which had quotas for various marine products. It was found to have harvested fish in excess of its quotas and to buy illegally harvested fish from other catchers in violation of the Marine Living Resources Act 18 of 1998. A South African criminal investigation was launched in 2001, and the Directorate of Special Operations (“DSO”) caused warrants of arrest to be issued for the applicants. Various meetings occurred between the applicants and the South African authorities, in connection with a plea bargain, and a plea agreement was settled upon. Around the same time, the applicants learned of moves afoot by the US authorities to prosecute Bengis for offences under American law (concerning the importing into the United States of fish illegally harvested in South Africa).

The main complaint in the first application was that the conduct of the South African government after 30 April 2002 in connection with restitution proceedings in the United States (restitution, like sentencing, being a post-conviction phase of the United States criminal proceedings) was in breach of the alleged composite settlement agreement entered into in the plea bargain negotiations. In the second application, the applicants alleged that, as part of the settlement discussions, the applicants were explicitly assured that, subject to the satisfactory conclusion of the South African settlement arrangements, the South African government would not provide any co-operation or assistance to the US authorities beyond that which was required by law. The main complaint in the second application was that the conduct of South African officials after 30 April 2002 in connection with the prosecution in the United States was in breach of the assurance referred to.

Each of the applicants also signed US plea bargain agreements in the form of letters addressed to their respective American attorneys. During the plea bargain proceedings in court, the judge asked each applicant whether he understood that mandatory restitution was required under the statute; and that the forfeiture to which they had agreed would not be treated as satisfaction of any fine or restitution. Each applicant answered affirmatively.

Held – While accepting that the combined effect of the plea bargain and a letter addressed to the applicant by the head of the National Prosecuting Authority (“NPA”) at the time was that all civil and criminal proceedings between the applicants, the State and the fishing authorities arising from the South African investigation would be finally concluded, the Court could not find that the plea bargain and the letter could be construed as prohibiting the rendering of assistance by the South African prosecuting authorities to American prosecutors or as precluding South Africa from participating in and benefiting from the restitution phase of American criminal proceedings. If Bengis had a contrary perception, it was not engendered by those representing the State in the plea bargain discussions.

A plea bargain in terms of section 105A of the Criminal Procedure Act 51 of 1977 is by its nature an agreement between the NPA and the accused persons who are party to the agreement, and is binding on the NPA. Having regard to the terms of the agreement, the Court found that even if the applicants did by implication acquire rights from the plea bargain, there was no justification for interpreting the plea bargain as containing an implied undertaking by the NPA that it would not assist the United States in prosecuting the applicants for offences under American law. The applicants could not, on the strength of the South African plea bargain, impugn the validity of anything the South African government or the NPA did in relation to the American proceedings.

The Court accepted that public functionaries must exercise their powers in accordance with the principle of legality, in good faith and for proper purposes. However, it could find no basis on which the conduct of any of the respondents could be branded as mala fide (for public law purposes).

Consequently, the Court rejected the central complaints in the first and second applications that the assistance provided by the South African government and/or its officials to the United States prosecutors violated any agreements, undertakings, assurances or representations.

The applications were dismissed.

Delport v S [2016] 2 All SA 504 (WCC)

Criminal law – Possession of prohibited firearm – Contravention of section 4(1)(a) of the Firearms Control Act 60 of 2000 – Minimum sentence regime created in terms of the Criminal Law Amendment Act 105 of 1997 prescribes a minimum sentence of 15 years’ imprisonment upon a first conviction for any offence relating to the possession of an automatic or semi-automatic firearm – Reconciliation with provisions of Firearms Control Act – Court finding that special minimum sentence provisions were intended to trump the general penalty provisions in the Firearms Control Act.

The appellant was convicted of having been in possession of a “prohibited firearm” (a fully automatic firearm) in contravention of section 4(1)(a) of the Firearms Control Act 60 of 2000 (“the Firearms Control Act”), and being in possession of 34 rounds of ammunition without a licence or authority, as required in terms of section 90 of the Firearms Control Act. An effective sentence of 15 years’ imprisonment was imposed.

The present appeal was directed at sentence.

Held – The minimum sentence regime created in terms of the Criminal Law Amendment Act 105 of 1997 (“the Act”) prescribes a minimum sentence of 15 years’ imprisonment upon a first conviction for any offence relating to the possession of an automatic or semi-automatic firearm, explosives or armament. A sentencing court is obliged to comply with the prescribed minimum sentence regime unless it is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in subsections 51(1) and (2) of the Act.

Section 4 of the Firearms Control Act provides, subject to a number of stipulated exceptions, for an absolute prohibition on the possession and licensing of fully automatic firearms. It is clear that the Legislature regards the unlicensed possession

of prohibited firearms as a significantly more serious evil than that of the unlicensed possession of semi-automatic firearms, notwithstanding that no distinction is made between the categories in the 1997 Criminal Law Amendment Act. That is evident from the penalty provisions in the Firearms Control Act. Unlawful possession of a firearm (including a semi-automatic firearm) attracts a prison sentence of up to 15 years’ imprisonment, whilst the penalty for unlawful possession of a “prohibited firearm” is imprisonment for up to 25 years. The introduction, with effect from 2004, of a scheme that provided for a maximum sentence of 15 years’ imprisonment for the unlawful possession of a semi-automatic firearm as distinct from the prescribed minimum of 15 years in terms of the Act, with prescribed minimum sentences of 20 years and 25 years, respectively, for second and third-time offenders, gave rise to an argument that the minimum sentence provisions in respect of the offences had been impliedly repealed. In reconciling those differences, the Court approved of case authority to the effect that the special minimum sentence provisions were intended to trump the general penalty provisions in the Firearms Control Act.

Not convinced that the sentences imposed on this case were inappropriate, the Court dismissed the appeal.

Ex parte Concato and similar matters [2016] 2 All SA 519 (WCC)

Insolvency – Voluntary surrender – Formulaic applications – Bona fides and advantage to creditors – Court held that provided that the process was conducted in accordance with the law, the interests of the general body of creditors were given due and proper consideration, and such application was dealt with by the practitioner on its merits, was bona fide, they should not be dismissed due to the manner in which the attorney dealt with them – In casu, it was found that insolvent retains the use of all his assets, and eventually reaches an arrangement with the trustee to purchase them back, and is immune from his existing creditors by virtue of the voluntary surrender order which has been granted.

In five applications for voluntary surrender, the applicants were represented by the same lawyers, and the format of the applications was strikingly similar. The court in which the applications were first called expressed scepticism about the merits of the application – and, in particular, the fact that in each instance it was contended that upon voluntary surrender a dividend of either 16 or 17 cents would accrue to creditors. That led to the attorney acting for the applicants filing a supplementary affidavit in an attempt to satisfy the court that his firm conducted a proper, lawful and ethical practice and that it relied in these applications on no documents which were inappropriate or which might mislead the court.

Held – It is open to any debtor to seek escape from financial difficulties via the route of voluntary surrender provided that he or she is able to make a proper and bona fide case in compliance with the provisions of the Insolvency Act 24 of 1936. In such applications, the need for full and frank disclosure and well-founded evidence is even more pronounced. A further factor relevant to voluntary surrender applications is the institution of machinery for debt relief in terms of the National Credit Act 34 of 2005.

Even after the filing of the supplementary affidavit, the present Court remained troubled by the formulaic and often superficial nature of the applications and the striking similarities between them, not only in their format and general allegations,

but in the projected dividend which, as mentioned above, was invariably either 16 or 17 cents. The Court held that provided that the process was conducted in accordance with the law, the interests of the general body of creditors were given due and proper consideration, and such application was dealt with by the practitioner on its merits, was bona fide and was not being shoe-horned into some pre-determined formula designed only to achieve a favourable result, they should not be dismissed due to the manner in which the attorney dealt with them.

In friendly sequestrations and voluntary surrenders, the question of the accuracy and integrity of the valuation is of primary importance. Due to its concerns in that regard, the Court called for further information to be reported to ascertain whether the projected dividends would be achieved and whether such orders would be in the interests of creditors. The most conspicuous feature revealed by the report was that in the great majority of cases the arrangement eventually arrived at was that the insolvent bought back the assets in his surrendered estate, invariably by way of payments in instalments. The Court could not find that such arrangement was to the advantage of creditors. The insolvent retains the use of all his assets, and eventually reaches an arrangement with the trustee to purchase them back, and is immune from his existing creditors by virtue of the voluntary surrender order which has been granted.

Turning to consider each of the applications individually, the Court held that none of them were bona fide or that the orders of voluntary surrender would be to the advantage of creditors.

The applications were, accordingly, refused.

Millcreek Trading CC t/a Pro Arm Firearm Training Academy v Passenger Rail Agency of South Africa (PRASA) t/a Metrorail [2016] 2 All SA 537 (KZD)

Contract – Existence of – Authority – Onus on party relying on contract to establish the essential requirements for a valid contract, including authority of employee to contract on behalf of and bind defendant.

Contract – Existence of – Onus of proof – Onus on party relying on contract to establish the essential requirements for a valid contract.

Based on breach of contract, the plaintiff sued the defendant for damages, claiming its loss in respect of what it referred to as “lost profit and opportunity”.

The background facts to the dispute were as follows. The plaintiff was a close corporation which provided firearm training and the obtaining of competency certificates in terms of the Firearms Control Act 60 of 2000. It alleged that it was approached in 2008 by an employee of the defendant to urgently undertake work on behalf of the defendant in securing competency certificates for its protection officers, who were required to carry firearms as part of their duties. The plaintiff commenced work without delay on the basis of the urgent request, and took fingerprints as well as photographs of the applicants for certification. It also engaged with various service providers for the printing of firearm manuals in respect of each of the firearm unit standards applicable to the protection officers, as well as securing the services of trainers to conduct the necessary training. Shortly thereafter, the plaintiff was invited and duly submitted a bid in respect of a tender put out by the defendant for

training for its protection officers in terms of the new firearm standards. However, in December 2008, the plaintiff was informed that it had not been successful in its bid.

In seeking to claim damages from the defendant, the plaintiff did not rely on a written agreement, and based its claim entirely on a verbal agreement concluded with the defendant’s employee (“Chami”), whom the plaintiff alleged it had at all material times believed to be duly authorised to represent the defendant and to contract on its behalf.

The defendant contended that no legally binding and enforceable agreement had been entered into between it and the plaintiff, and even if the plaintiff contracted with Chami, the latter lacked the necessary authority to do so on behalf of the defendant. The defendant further specifically pleaded that the procurement of services and goods by the defendant, as a State entity, was regulated by the provisions of the Public Finance Management Act 1 of 1999 (“PFMA”) read with section 217 of the Constitution. Accordingly, the procurement of goods and services by the defendant in excess of R350 000 had to be undertaken via a competitive bidding process involving the approval of the bid document by a committee; the advertisement of the bid in the Government Tender Bulletin and thereafter, the consideration of the bids by an evaluation committee. It was contended that the plaintiff was fully aware of the procedures required to contract with the defendant, and knew or ought to have been aware that when it contracted with Chami, that such contract was in inevitably concluded in breach of the PFMA and that it would accordingly be unenforceable.

Held – The onus was on the plaintiff to establish the essential requirements for a valid contract with the defendant, including the authority of Chami to contract on behalf of and bind the defendant.

The plaintiff’s evidence was deficient in that it omitted mention of the agreed contract price and details of whether the service provided by the plaintiff was sufficient to comply with the certification process in terms of the Firearms Control Act. The absence of any evidence from the plaintiff as to pricing was relevant to the defendant’s contention that any contract in excess of R350 000 was required to follow a competitive bidding process. There was also no documentation placed before the Court to confirm that the sole member of the plaintiff was authorised, even as a peace officer, to take fingerprints of applicants for competency certificates. Significantly, of the 110 applications which the plaintiff claimed to have processed, 31 of the applicants were shown not to have been in the defendant’s employment at the time. That meant that the plaintiff could not substantiate the basis of its claim. The Court went on to highlight various other aspects of the claim which were problematic.

In response to plaintiff’s claim that it had been asked by Chami to perform the work in question urgently, the defendant disputed the authority of Chami to enter into a binding contract on behalf of the defendant. The plaintiff failed to call Chami to prove its claim that he had the necessary authority to enter into contracts on behalf of the plaintiff. There was also no evidence adduced to suggest that the plaintiff was justified in believing that Chami had the requisite authority to bind the defendant. Moreover, as the defendant was a State-owned enterprise, its procurement of services was regulated by the PFMA and section 217 of the Constitution as well as Treasury Regulations requiring procurement to take place by way of competitive bidding. It was improbable that one employee of the defendant could have the

authority to bind the defendant where he decided to act of his own accord. The particulars of claim showed that the plaintiff was aware of the tender processes applicable to the defendant when entering into a contract. The Court was, therefore, unable to conclude that a valid contract was concluded with the defendant, or that Chami was authorised to contract on its behalf in respect of the process for securing firearm competency certificates. It was held that the plaintiff had proceeded at risk before the tender could be awarded in respect of the contract.

The plaintiff’s claim was dismissed with costs.

Padayachee v Adhu Investments CC and others [2016] 2 All SA 555 (GJ)

Contract – Exit agreement – Agreement to pay facilitation fee – Prevention of payment of fee – Claim for contractual damages – Where party claiming damages had performed his contractual obligations in terms of agreement, failure by other parties to pay fee due was in breach of agreement – Said parties liable for damages.

Evidence – Parol evidence rule – Although rule that extrinsic evidence is not admissible in order to determine the meaning of a written instrument has been abolished by new approach to interpretation, the integration rule, which determines the content or limits of a written instrument remains good in law.

In terms of an agreement involving the plaintiff, the first two defendants, and certain other entities, the plaintiff was to be paid a fee of R2,5m for assisting in the raising of funds from a funder to facilitate a transaction. The plaintiff would then exit the transaction. The exit agreement flowed from a fall out between the second defendant and plaintiff. They had, before they fell out, planned a BEE transaction in terms of which their joint venture company (“Teleosis”) was to acquire 51% of the shares in a valuable company (“AFST”). The shareholding in Teleosis was, if all had gone according to plan, to be held by second defendant’s company (“Adhu”) and plaintiff’s company, Spartan, in the proportions 49% to 51% respectively.

The plaintiff instituted action against the first and second defendants for damages caused by them to him by diverting and preventing payment of the fee referred to above. He averred that the said defendants failed to perform such acts as might be necessary to give effect to the terms of the exit agreement. In their amended plea the first two defendants admitted the conclusion of the exit agreement, but denied that the conditions necessary for payment of the fee were met. They denied that the plaintiff had done what was required of him for payment of the fee. They pleaded that after the conclusion of the exit agreement, the third defendant (“Livispex”) purchased the assets and business of AFST.

In its plea, Livispex denied the plaintiff’s allegations and raised a special plea of prescription.

Held – The issues for determination were what the plaintiff’s obligations in terms of the exit agreement were and whether he complied with his obligations; whether the second defendant breached the exit agreement; and if so, whether the plaintiff was obliged to comply with the breach clause in the exit agreement and whether he did. The final question was whether the plaintiff was entitled to rely on the provisions of either sections 12(2) or (3) of the Prescription Act 68 of 1969 in respect of his claim against Livispex.

The duties of the plaintiff and second defendant were recorded in the written agreement. The first question for determination was whether the evidence of the plaintiff and second defendant, over and above that which was recorded in the agreement in relation to what their obligations were, was admissible in evidence. Evidence about what the parties thought their obligations are, which is at variance with the express provisions of the exit agreement, would be inadmissible as offending the integration rule (a sub-rule of the parol evidence rule). The Court referred to the “new” approach to interpretation, which has abolished one of the branches of the parol evidence rule (ie the “interpretation rule” which stated that extrinsic evidence was not admissible in order to determine the meaning of a written instrument). That does not affect the operation of the other “branch” of the parol evidence rule, being the so-called “integration rule”, which determines the content or limits of a written instrument. Thus, the integration rule remains good law. Applying that, the Court found the evidence of the plaintiff to be preferable to that of the second defendant. It was, therefore, concluded that the plaintiff had performed his contractual obligations in terms of the exit agreement. Consequently, the first and second defendants ought to have procured compliance by Livispex of the obligations owed by Teleosis to the plaintiff in terms of the exit agreement. Instead, they prevented Livispex from paying the plaintiff the sum of R2,5 million contemplated by the exit agreement. In those circumstances, they were in breach of the exit agreement, and were liable to the plaintiff for the damages claimed. The Court dismissed the defence of prescription, finding no merit therein.

Judgment in the amount of R2,5 million was granted against the defendants jointly and severally, the one paying the other to be absolved.

Sewnarain v S and another [2016] 2 All SA 593 (KZP)

Criminal law – Murder – Plea of guilty – Whether accused was in his sound and sober senses when he pleaded guilty – Credibility of accused brought into question by failure to disclose vital evidence in founding affidavits and feeding of misinformation to medical experts – Court finding accused to have been in sound and sober senses when pleading guilty.

Pursuant to his plea of guilty, the appellant was convicted of murder and sentenced to life imprisonment. He had admitted to having hired men to stage a hijacking, and to kill his wife. In the present application in terms of section 22(1)(c) of the Supreme Court Act 59 of 1959, he sought to review and set aside his conviction and sentence on the grounds of gross irregularities in the proceedings in the regional court. He also relied on a broad interpretation of section 22 of the Act on the basis of fairness of the proceedings under the Constitution.

According to the applicant, he was not in his sound and sober senses when he pleaded guilty, due to medication which he had taken and the grief he was suffering as a result of his wife’s death.

Held – The scope of the review was reduced to the singular issue of the applicant’s state of mind when he pleaded guilty. The appellant adduced medical evidence in support of his allegation regarding his impaired mental state.

The Court found that the applicant had omitted to disclose vital evidence in his founding affidavits. That evidence emerged from affidavits for the first respondent. Noting the duty of disclosure resting on the applicant, the Court held that such

material non-disclosure was destructive of the applicant’s credibility from the outset, and persisted in the applicant’s engagement of expert witnesses and providing them with misinformation. That rendered the medical reports unhelpful.

Finding that the applicant was in his sound and sober senses when he pleaded guilty, the Court dismissed the application for review.

South African Municipal Workers’ Union v Minister of Co-operative Governance and Traditional Affairs and others [2016] 2 All SA 603 (GP)

Constitutional law – Statutes – Enactment of – Procedure – Whether the Local Government Municipal Systems Amendment Act 7 of 2011 should be declared invalid due to incorrect procedure followed in enacting it – Whether the Act should have been promulgated in terms of section 75 or section 76 of the Constitution of the Republic of South Africa, 1996 – Court finding that incorrect procedure was followed in enacting Act, with result that it was unconstitutional.

Two issues were raised in this matter. The first was whether the Local Government Municipal Systems Amendment Act 7 of 2011 should be declared invalid due to incorrect procedure followed in enacting it. The second issue was whether section 56A of the Act was a justifiable limitation in terms of section 36 of the Constitution, on the right to make free political choices in terms of section 9(1) of the Constitution.

Held – At the heart of the first issue was the question whether the Act should have been promulgated in terms of section 75 or section 76 of the Constitution. De facto, it was passed in terms of section 75. According to the applicant, the Act should have been passed in terms of section 76, which regulates ordinary Bills affecting provinces (section 75 affecting ordinary Bills not affecting provinces). The Court explained the specific procedures applicable to each of the two sections.

Section 40(1) of the Constitution establishes three tiers of government viz, national, provincial and local spheres – which are distinctive, interdependent and interrelated. In determining whether a Bill falls within the legislative competence granted to the provinces, the purpose and effect of the legislation is relevant. The purposive construction involves asking how a Bill affects the constitutional jurisdiction of provinces or municipalities, and allows provinces to be actively involved in Bills which affect them.

To assess whether the Act in this case should have been passed in terms of section 76 of the Constitution, the contents of the Act had to be examined. The applicant submitted that because the Bill provided for legislation envisaged in section 76(3) of the Constitution (notably section 195(3) and (4) and section 197), it should have been tagged as an ordinary Bill affecting provinces. It was therefore necessary to establish whether the Bill constituted national legislation as envisaged by section 195.

Section 76(3) requires the section 76 route to be followed where legislation falls within the functional areas listed in Schedule 4 (being matters in respect of which the national and provincial legislatures have concurrent legislative competence). The question was whether section 76 necessarily had to be followed merely because there was concurrent legislative competence.

The Act appeared to be concerned mainly with municipal managers. The question was whether it could be considered as national legislation of the kind envisaged in section 195(3) and (4) or section 197. It appeared from section 195(2), that municipal employees form part of the public administration and therefore there may be separate national legislation in respect of municipal employees in terms of section 195(3). Given the importance of the provinces’ enforcement and monitoring role in respect of municipalities, and the concurrent legislative competence to legislate to support and strengthen municipalities, it appeared that the more burdensome procedure prescribed in section 76 should have been followed.

It having been concluded that the incorrect route was followed in enacting the Act, the Act was held to be unconstitutional.