CASE LAW UPDATE

Facts: Matamela Enterprise (the applicant) applied for an urgent interdict to prevent the George Municipality (first respondent) from implementing the appointment of a building contractor (fourth respondent, Nokhanys Services) for the construction of 100 subsidized houses in Thembalethu. The applicant alleged that the Municipality failed to properly evaluate the experience of its Construction Manager, Mr. Fhumulani, whose CV indicated 17 years of experience, including 8 years as a site agent (2004–2011). The applicant argued that the Municipality’s decision to award the tender to the fourth respondent was irrational and unlawful, violating the Promotion of Administrative Justice Act 3 of 2000 (PAJA) and the Constitution.

Issue: The main issue was whether the applicant was entitled to an interim interdict pending the final determination of its review application in Part B, which sought to set aside the Municipality’s decision to award the tender to the fourth respondent.

Discussion: The applicant contended that the Municipality’s evaluation process was flawed, as it did not consider Mr. Fhumulani’s full experience, particularly his role as a site agent from 2004 to 2011. The applicant argued that this omission rendered the tender award unlawful and irrational. The Municipality, however, opposed the application, asserting that the applicant’s tender was non-responsive due to insufficient evidence of the Construction Manager’s 10 years of building experience. The Municipality also raised preliminary issues, including lack of urgency and improper service of the application. The court found that the applicant’s delay in filing the application undermined its urgency and that the applicant had not demonstrated a prima facie right or irreparable harm warranting an interim interdict.

Findings: The court held that the applicant failed to establish a prima facie right, as its tender documents did not adequately disclose the Construction Manager’s experience for the period 2004–2011, making it difficult for the Municipality to verify his qualifications. The court also found that the applicant’s delay in bringing the application was unreasonable and self-created, and that the applicant had not shown imminent irreparable harm. The balance of convenience favoured the Municipality, as granting the interdict would delay the housing project, causing significant public harm. The court concluded that the applicant had an alternative remedy through its review application in Part B.

Order: The court dismissed the applicant’s application for an interim interdict and ordered the applicant to pay the costs of the application, including counsel’s fees on scale B.

Facts: Fore St Holding and Big Five Property Developments (applicants) sought to review an arbitration award concerning a Joint Venture Agreement (JVA) with the Klipriviersberg Trust, the JGM Trust, and JG Meyer Boerdery (respondents). The JVA aimed to develop Trust-owned properties. Disputes arose regarding the implementation of the JVA, specifically concerning rezoning, the formation of special purpose vehicles, and the provision of powers of attorney. The respondents cancelled the JVA, which the applicants disputed. The matter proceeded to arbitration, where the respondents’ introduced amendments to their defence, including a "became impossible" defence and a "repudiation" defence.

Issue: The main issues were whether the arbitrator exceeded their powers by considering defences not initially referred to arbitration, whether the arbitrator's findings were contradictory, and whether the arbitrator erred in their assessment of the "became impossible" defence and consideration of evidence.

Discussion: The court analyzed the scope of the arbitration agreement and the amendments introduced by the respondents. It considered whether the "became impossible" and "repudiation" defences fell within the initial disputes referred, namely the validity of the cancellation and the implementation of the JVA. The court discussed the concept of "implementation" and whether it encompassed the issues raised in the amendments. It examined the arbitrator's reasoning and the applicants' arguments regarding contradictory findings and the failure to consider material evidence. The court also discussed the nature of the ancillary agreements, the "became impossible" defence, and the applicants' attack on the tacit terms.

Findings: The court found that the arbitrator did not exceed their powers, as the additional defences fell under the broad scope of “implementation” of the JVA. It rejected the argument that the arbitrator's findings were contradictory, explaining the arbitrator’s reasoning regarding the existence of the JVA and the "became impossible" defence. The court found no gross irregularity in the arbitrator’s conduct, including the consideration of evidence. The court upheld the arbitrator’s decision that the JVA had become impossible to perform due to the failure to conclude necessary ancillary agreements. It also found that the arbitrator’s operative awards were justified in light of the factual findings.

Order: The application to review and set aside the arbitrator's award was dismissed. The counter-application to enforce the award was granted. The applicants were ordered to pay the respondents' costs on an attorney-client scale, including costs of two counsel. The arbitration award was made an order of the court.

Facts: Goosen Mega Enterprise (applicant) applied for the provisional liquidation of Mtech Constructions (respondent) due to an alleged outstanding debt of R76,265.81 for construction services. The respondent argued that the amount was inflated and that the correct amount owed was R75,686.56, offering to pay this lesser amount into their attorney's trust account pending litigation. The dispute centered around R579.25, attributed to differing calculations of building material quantities. The initial contract value was R2,704,235.65, with R2,627,969.84 already paid without dispute.

Issue: The primary issue was whether the respondent was unable to pay its debts, justifying a provisional liquidation order, and whether the disputed amount should be resolved through liquidation proceedings or ordinary litigation.

Discussion: The court considered the principles governing liquidation applications where debts are disputed. It emphasized that liquidation proceedings should not be used as a debt collection mechanism, especially when the debt is genuinely disputed. The court analyzed the parties' arguments, noting that the respondent did not deny owing money but disputed the amount. It highlighted the respondent's offer to pay the undisputed portion and the relatively small difference in the disputed amount. The court also noted that the disagreement about the quantity of materials used had not been submitted to an expert for resolution.

Findings: The court found that the applicant had not established that the respondent was unable to pay its debts. It concluded that the dispute regarding the outstanding amount should be resolved through ordinary litigation, not liquidation proceedings. The court determined that the respondent's offer to pay the undisputed amount indicated a willingness to pay and did not demonstrate an inability to meet its financial obligations. The court stressed that winding-up proceedings are a drastic measure and should be used as a last resort, not for resolving disputed debts.

Order: The court dismissed the application for provisional liquidation. No order as to costs was made, with the court noting that while costs typically follow the successful party, the applicant should have pursued ordinary action proceedings to determine the correct amount owed. The court acknowledged the applicant's potential frustration but also noted that the respondent did owe money.

Facts: The Democratic Alliance (DA) and Freedom Front Plus brought an application against the Mangaung Metropolitan Municipality, its Municipal Manager, and the Minister of Police, alleging that the police failed to properly execute a court order related to land invasion on municipal property in Lourierpark, Bloemfontein. A previous court order had been granted to the municipality to address the unlawful occupation of the property, which was subsequently amended to clarify the categories of unlawful occupiers. The DA argued that the police stood by and did nothing while further land invasions occurred, even after the court order was made known. The municipality withdrew from the case.

Issue: The central issue was whether the South African Police Service (SAPS) failed to act in line with their constitutional mandate to prevent, combat, and investigate crime, maintain public order, and protect property, by not adequately enforcing the court order against the land invaders.

Discussion: The court reviewed the timeline of events, including the initial court order, its amendment, and the subsequent actions taken by the Sheriff and the SAPS. The Sheriff’s return of service detailed the challenges in executing the order, including the difficulty in identifying and categorizing the occupiers, the size of the crowd, and safety concerns. The court considered the SAPS's account of their involvement, including deploying officers, making arrests, and assisting the Sheriff. The court analyzed the DA's claims, noting the lack of specific details regarding the alleged inaction of the police. It discussed the legal framework governing the SAPS's duties, including the Constitution and the South African Police Act. The court also considered previous case law relating to police obligations in similar situations, distinguishing the present case from Impangele Logistics (Pty) Ltd and Another v All Truck Drivers Foundation and 12 Others Case No. 3647/201_s_. The court emphasized the limitations on the SAPS's powers, particularly regarding arrests and evictions, and the need to balance law enforcement with the rights of individuals.

Findings: The court found that the DA failed to provide sufficient evidence to demonstrate that the SAPS had not acted in accordance with their constitutional mandate. The court acknowledged the challenges faced by the police in managing the large-scale land invasion, the limited resources available, and the need to exercise discretion in their actions, particularly concerning arrests. It found that the SAPS did take some action, including making arrests and assisting the Sheriff. The court concluded that the DA had not shown that the SAPS's actions, or lack thereof, were unreasonable or unlawful in the circumstances.

Order: The application was dismissed. Each party was ordered to pay their own costs.

Facts: Phillips, an author of mathematics textbooks and teaching aids, collaborated with Basson and Odendaal (co-authors) to create a series of educational materials known as the "Mind Action Series" (MAS). Phillips entered into a distribution agreement with Allcopy Publishers in 2016, allowing Allcopy to publish and distribute the works. The agreement was extended in 2020, permitting the authors to publish their own works in competition. However, by 2023, Phillips decided not to renew the agreement, leading to a dispute. Phillips sought an interdict to prevent Allcopy and the co-authors from publishing or distributing the works after the agreement's expiration on 29 February 2024. Allcopy and the co-authors opposed the application and sought a stay of proceedings pending an application to the Copyright Tribunal for a compulsory license.

Issue: The main issue was whether the court should grant Phillips’s application for an interdict to prevent Allcopy and the co-authors from publishing the works after the agreement’s expiration, or whether the proceedings should be stayed pending the outcome of the compulsory license application before the Copyright Tribunal.

Discussion: Phillips argued that he was entitled to an interdict as the copyright owner, preventing Allcopy and the co-authors from continuing to publish the works after the agreement expired. Allcopy and the co-authors contended that the application was defective because Phillips failed to show he lacked an adequate alternative remedy, such as damages or royalties under the Copyright Act. They also argued that the matter was exceptional due to the availability of a compulsory license remedy, which could override Phillips’s refusal to grant further licenses. The court noted that an interdict is a discretionary remedy and requires the absence of an adequate alternative remedy, which Phillips did not establish. The court also considered the potential impact on educational authorities and learners, who relied on the materials.

Findings: The court found that the existence of the compulsory license remedy made the case exceptional. It concluded that the proceedings should be stayed pending the Copyright Tribunal’s decision on the compulsory license application. The court also noted that Phillips had alternative remedies available, such as damages or royalties, and that the interdict application was not without difficulties, particularly regarding the delivery-up claim. The court emphasized that the Copyright Tribunal’s decision would address the reasonableness of Phillips’s refusal to grant further licenses and the potential impact on third parties, including educational authorities and learners.

Order: The main application was stayed pending the determination of the compulsory license application by the Copyright Tribunal. Phillips was ordered to pay the costs of the stay application.

Facts: Two Tactical Officers employed by Bidvest Protea Coin were dismissed for sleeping on duty. They, through their union, SATAWU, challenged the dismissal at the CCMA, arguing substantive unfairness due to inconsistent application of discipline. They claimed other employees found sleeping on duty received lesser sanctions or no sanction at all. The company argued that the dismissed employees deliberately left their posts to sleep, unlike other cases where employees seemingly fell asleep accidentally.

Issue: The central issue was whether the commissioner's finding of inconsistent discipline, and thus unfair dismissal, was reasonable. This hinged on whether the commissioner correctly applied the principles of inconsistency and properly considered the evidence of comparator employees.

Discussion: The court examined the commissioner's approach to the inconsistency challenge. It noted the commissioner's apparent misunderstanding of the parity principle, suggesting a belief that any mitigating factor accepted in one case must be accepted in all similar cases. The court highlighted the correct approach, emphasizing the need to consider the specific circumstances of each case. The court then analyzed the commissioner's treatment of the comparator employees presented by SATAWU, finding several irregularities. It found that the commissioner incorrectly analyzed or ignored crucial evidence, and in some cases, focused on irrelevant factors. The court emphasized that the commissioner’s role was to assess the similarities and differences between the cases, not to retry previous disciplinary hearings. The court discussed the principles relating to inconsistency, including the need for employees to provide concrete allegations identifying comparators and explaining why they should not be treated differently.

Findings: The court found the commissioner's decision unreasonable. It concluded that the commissioner misconceived the nature of the inconsistency inquiry, ignored relevant evidence, and relied on irrelevant considerations. The court found a disjuncture between the evidence and the commissioner's account of it, leading to a decision that no reasonable decision-maker could have reached.

Order: The application to review and set aside the arbitration award was granted. The award was set aside, and the matter was remitted to the CCMA for a fresh arbitration hearing before a different commissioner. The purpose of the rehearing would be to properly assess the comparator cases and determine whether the dismissal was substantively unfair due to inconsistency, considering the specific circumstances of the dismissed employees and applying the correct legal principles.

Facts: Ms. Rakodi, a contract team leader (cleaner and supervisor) at ABI Rustenburg depot through her employer, Supercare Services Group, was effectively demoted to a cleaner position at Capitec after the client complained about her performance. Her salary and benefits were reduced, and she lost her team leader status. Although she signed a transfer form, she reserved her rights. Supercare argued this was a lawful transfer under her employment contract, not a demotion, and that she consented to it.

Issue: The issue was whether the "transfer" constituted a demotion and, if so, whether it was an unfair labour practice. Supercare argued it was a lawful transfer under the contract, while the employee argued it was an unfair demotion.

Discussion: The court reviewed the arbitration award, applying the reasonableness test. It considered the arguments presented at the arbitration, including Supercare's claims of lawful transfer, employee consent, and the need to avoid retrenchment. The court discussed the legal principles surrounding demotions, emphasizing that loss of benefits or status constitutes a demotion, and that consultation is required for a fair demotion, even if the transfer is lawful under contract. The court rejected Supercare's arguments, noting the employee's reservation of rights and the lack of proper consultation. The court also highlighted the fact that the employee’s remuneration was reduced, and her position changed.

Findings: The court upheld the commissioner's finding that the transfer was a demotion and constituted an unfair labour practice. It found that the employee's change in status and reduction in remuneration clearly indicated a demotion. The court emphasized the importance of consultation before a demotion, regardless of contractual provisions for transfer. It found that the absence of proper consultation rendered the demotion unfair. The court also found that the employee’s signing of the transfer form with a reservation of rights did not constitute consent.

Order: The application to review and set aside the arbitration award was dismissed. No order as to costs was made, despite the third respondent's representatives' failure to appear in court, due to confusion regarding their representation.

Facts: Claire Kourie Physiotherapists (the applicant) sought an urgent interdict against Nyimba, a former employee, to enforce a restraint of trade agreement. Nyimba resigned and was placed on garden leave. The applicant alleged Nyimba was "bad-mouthing" the practice to referring doctors, leading two doctors to terminate their relationship with the applicant. The applicant claimed these doctor relationships constituted protectable goodwill and trade connections. Nyimba opposed the application, arguing it lacked urgency, and the restraint of trade was unreasonable.

Issue: The primary issues were whether the matter was genuinely urgent, and if so, whether the applicant had a protectable interest justifying enforcement of the restraint of trade. A key consideration was whether Nyimba's actions, or other factors, caused the doctors to leave the applicant's practice.

Discussion: The court analyzed the urgency claim, noting the applicant's delay in bringing the application and the lack of a compelling explanation for the delay. The court then examined the applicant's protectable interest, focusing on the relationships with the referring doctors. It scrutinized the evidence presented, including WhatsApp exchanges with one doctor, which revealed dissatisfaction with the applicant's services, particularly regarding inconsistent staffing and quality of care. The court noted the absence of direct evidence supporting the applicant's claims of Nyimba "bad-mouthing" the practice or directly soliciting the doctors' business.

Findings: The court found that the applicant had failed to establish genuine urgency, given the significant delay in bringing the application. More importantly, the court concluded that the applicant had not demonstrated a protectable interest threatened by Nyimba's conduct. The evidence suggested the doctors' decisions to leave the practice were motivated by dissatisfaction with the applicant's services, not Nyimba's actions. The court found no evidence of unlawful conduct by Nyimba that breached the restraint of trade agreement.

Order: The application was dismissed, and the applicant was ordered to pay Nyimba's costs on scale C.

Facts: The plaintiff, Kruger, successfully sued the Minister of Safety and Security for unlawful arrest and detention, with liability being determined in 2017. The matter before the court now concerns the quantification of damages suffered by the plaintiff. The plaintiff seeks to adduce the evidence of five expert witnesses (a clinical psychologist, occupational therapist, psychiatrist, industrial psychologist, and actuary) through affidavits under Rule 38(2) of the Uniform Rules of Court. The defendant opposes this application, insisting on the right to cross-examine the witnesses in court.

Issue: The issue is whether the court should grant the plaintiff’s application to allow the evidence of expert witnesses to be presented via affidavits, as opposed to viva voce (oral) testimony, in light of the defendant’s insistence on cross-examining the witnesses.

Discussion: Rule 38(2) allows evidence to be given on affidavit in exceptional circumstances, provided there is "sufficient reason" to do so. However, the rule also stipulates that if a party reasonably requires the attendance of a witness for cross-examination, and the witness can be produced, the evidence must not be given on affidavit. The court emphasized the importance of the right to a fair trial, which includes the right to cross-examine witnesses. While the plaintiff argued that using affidavits would save costs, the defendant maintained its right to cross-examine the expert witnesses. The court acknowledged the cost implications but held that the right to cross-examination is fundamental and should not be easily overridden.

Findings: The court found that the defendant’s right to cross-examine the witnesses was paramount and could not be dismissed solely to save costs. The application to adduce evidence via affidavits was dismissed, as the court determined that it would not be fair to deprive the defendant of the opportunity to cross-examine the expert witnesses.

Order: The application to adduce evidence of the plaintiff’s witnesses via affidavits was dismissed.

Facts: The applicant, son of the deceased, sought to have a document signed by the deceased and his widow (first respondent) declared the deceased's Last Will and Testament. The document, a "Will Questionnaire," did not comply with the formal requirements of the Wills Act 7 of 1953. The deceased had given the document to the applicant for safekeeping, instructing him to deliver it to a named attorney (Yazbek) upon his death. The first respondent, the deceased’s widow and appointed executrix initially claimed ignorance of the document and later disputed its validity. The Master of the High Court also rejected the document due to non-compliance with the Wills Act. The other respondents are children and grandchildren of the deceased.

Issue: The central issue was whether the deceased intended the "Will Questionnaire" to be his Last Will and Testament, despite its non-compliance with formal requirements, thus justifying its acceptance under section 2(3) of the Wills Act. Subsidiary issues included a striking-out application by the respondents and points in limine raised by the first respondent.

Discussion: The court considered the requirements of section 2(3) of the Wills Act, focusing on the deceased's intention. It examined the document itself, noting its ambiguities and informal nature, but also its clear articulation of the deceased's wishes regarding beneficiaries, guardianship, and executorship. The court then analyzed the surrounding circumstances, including the deceased's instructions to the applicant regarding the document's safekeeping and delivery. The court addressed the striking-out application, granting it in part regarding new matter in the replying affidavit. The court dismissed the first respondent's points in limine, finding no merit in the claims of non-compliance with section 2(1) (as section 2(3) addresses such issues) and "unclean hands."

Findings: The court found that the deceased intended the "Will Questionnaire" to be his Last Will and Testament. It emphasized the deceased's clear decisions expressed in the document, coupled with his actions of entrusting it to the applicant for delivery to his attorney upon his death. The court concluded that these factors, despite the document's imperfections, unequivocally demonstrated testamentary intent. The court was satisfied that the requirements of section 2(3) of the Act were met, leaving it with no discretion but to recognize the document as the deceased's valid will.

Order: The application to strike out portions of the replying affidavit was granted. The first respondent's points in limine were dismissed. The "Will Questionnaire" was declared the deceased's Last Will and Testament, and the Master of the High Court was directed to accept it. The first respondent was removed as executrix, and the named attorney (Yazbek) was appointed in her place. The first respondent was directed to hand over all estate documents and account fully for her administration of the estate. Costs were awarded against the deceased's estate.