TODAY'S ALERTS

Facts and issue: Mr Stern deposed to an affidavit on behalf of Sternwood and 15 other applicants that conduct various businesses in Markman Township, Gqeberha. He described an enormous volume of heavy traffic in the form of trucks conveying manganese into, and out of Markman, which he alleged drove too fast and caused a nuisance to pedestrians and other traffic. He also alleged that manganese dust was “toxic” and that prolonged exposure thereto posed a health risk for humans and for the environment. The applicants brought an application in terms of the Uniform Rule 6(5)(g), as read with 6(5)(e), in which they seek to refer the main application to trial.

Discussion: A thread throughout all the affidavits, expert reports, EMPs and photographs, produced in the main application indicates an enormous volume of heavy traffic, in the form of trucks, conveying manganese into, and out of Markman. Clear evidence of damage to infrastructure, which includes stormwater drainage systems, roads, and verges was produced. This also included damage to electrical poles, fences, and traffic lights.  A further thread throughout all the affidavits, including those of the respondents is that manganese does pollute the environment at Markman and this in turn is washed into the Swartkops river, and thereafter, Bluewater Bay. A perusal of all the affidavits also suggests that there was no challenge to the allegation that manganese dust is “toxic” and that prolonged exposure thereto poses a health risk for humans, and for the environment. This manganese can cause a condition known as “manganism” with symptoms like those of Parkinsons disease, complications occur also with lungs and allergic dermatitis. What also appears to be common cause is that the effect of manganese for human beings is cumulative and symptoms may only appear after a lengthy period of exposure.

Findings: The municipality itself has documented the nuisance over several years and itself describes the situation at Markmans as being of serious environmental concern, with significant risks to humans. There are numerous disputes of fact by the laypersons that deposed to the various affidavits and by the experts utilised by the parties. Most of these disputes related to the extent of the nuisance, and who was liable for the nuisance. Most of the testing is confined to Chrysler Street and some of the allegations made by Mr Stern were sweeping allegations that did not consider location, or the fact that Markmans is a large area with businesses that have differing practices. The disputes are of such a nature that it cannot be satisfactorily determined without the advantages of a trial, where the credibility of witnesses, and the observation of their demeanour, can be considered by a trial judge. The disputes raised by the respondents are not inherently implausible and capable of being rejected out of hand.

Order: This matter is referred to trial.

Facts and issue: The State arraigned the accused, Ms Seyisi, on three charges, one of murder, two of attempted murder and three of robbery with aggravating circumstances. The accused pleaded not guilty in respect of all the charges. She reserved all her rights and elected not to give any explanation. The court is to determine whether the accused acted in common purpose with the two assailants, and to pronounce on the guilt of the accused in relation to the charges.

Discussion: The court considered the requirements for active association in common purpose. The State proved all these requirements. There was no direct evidence of prior conspiracy between the accused and the two perpetrators. However, the accused is the person that lured the deceased i and Zukiswa, into the vehicle of the assailants who were known only to her; she directed them to get into the vehicle. When they entered the vehicle there was no mention of directions to the house of the traditional healer, Mr Black or Black Cat. She is the one who caused the vehicle to stop at the cemetery because she said she wanted to urinate. As she alighted from the vehicle, she pulled Zukiswa out even though she told her that she did not want to urinate. She was present and witnessed the actions of the assailants, only known to her, when they caused Thembinkosi and Zukiswa to lie down and when they were shot at. She did nothing to disassociate herself from that act. She participated actively by pulling Zukiswa out of the vehicle and by stepping on their backs to assess whether they were dead or alive.  She failed to report the crime to the police for two days.

Findings: The conduct of the two assailants is imputed to the accused even if only two of the perpetrators pulled the trigger. The State succeeded in proving that. The accused acted in common purpose with the two assailants whose actions caused the death of the deceased and the attempted murder of Zukiswa. There are the positive acts on the part of the accused. The accused concealed the identity of the two assailants deliberately. She did not report the incident for a period of two days. She only went to the police after she heard that the police were looking for her at her home. The accused had the necessary intention to have the deceased and Zukiswa shot and killed. Fortunately, Zukiswa survived. She remained with the assailants all the way from her home until the crime was committed. She participated before the commission of the crime by luring Zukiswa and Thembinkosi to the assailants. She was a party to the common purpose at the time of the commission of the offence and thereafter in that she never reported the incident to anyone.

Order: The accused is found guilty of murder and attempted murder. The accused is found not guilty of robbery.

Facts and issue: This is an application for bail on new facts. The applicant’s two previous bail applications were unsuccessful in the magistrates’ court. The applicant was arrested as a result of investigations into the spate of attempted murders of certain senior executive members of the University of Fort Hare, being the Vice-Chancellor, the Deputy Vice-Chancellor and the murders of the University’s Transport Manager, Mr Roetz and the Vice-Chancellor’s protector, Mr Mboneli Vesele. All these attempted killings and killings appear not to have been random acts of criminality. He was charged with the premeditated murder and as co-perpetrator in the killing of Mr Vesele as a result of which his charge fell within the scope of Schedule 6. He therefore accepted that he had to satisfy the court as to the existence of exceptional circumstances that permitted his release on bail in the interests of justice.

Discussion: The only new fact of substance which is indeed new is the applicant’s medical circumstance. The applicant says that since June 2024, he has been trying to get permission from the prison authorities to be afforded specialist medical treatment at his own cost. His examination by a private medical practitioner only occurred on 13 September 2024 at the King Williamstown Correctional Centre by Dr Tyler, a specialist urologist in private practice based at Life Beacon Bay Hospital in East London. He was diagnosed with a significant bladder outflow obstruction caused by a urethral stricture and an enlarged prostate gland. The reading of the applicant’s affidavit creates an impression of a critically ill inmate who, at times, even struggles to sleep due to the regular and constant need to go to the ablution facilities to relieve himself. This causes him “untold pain”, he says. However, a closer look at the letter from his doctor appears to contradict this impression.  It specifically says that all that the applicant needs is regular or monthly urology consultations. In one place in his affidavit, the applicant embellishes his doctor’s letter and makes a misleading and alarmist self-diagnosis that he is in danger of progressing towards prostate cancer.  Nowhere in his letter does the doctor even remotely make such a conclusion.

Findings: The seriousness of the offences with which the applicant has been charged; the evidence already in the police docket which the applicant has or can have access to which is captured in quite some detail in Sergeant Mokoena’s affidavit; the precision with which the offences were planned, funded and executed leading to at least two fatalities at the time the applicant was arrested all suggest, at least at a prima facie level, that the applicant has a very serious case to answer. That being so, the danger that his release from custody may potentially pose to State witnesses cannot be ignored or underestimated and militates very strongly against his release on bail in the interests of justice. The applicant’s health condition does not change this concerning picture. The interests of justice do not permit the release of the applicant on bail.

Order: The applicant’s application to be released on bail based on new facts is dismissed.

Facts and issue: The appellant was originally indicted to appear before the court a quo on a count of robbery with aggravating circumstances. The count relates to an incident that occurred where it is alleged that the complainant was robbed of his white Nissan bakkie NP 200 and that a firearm was used during the said robbery. The appellant was found guilty and sentenced to 15 years in prison. This is an appeal against the conviction and sentence.

Discussion: The complainant testified that he was robbed of a white Nissan Bakkie. The complainant’s identification of the appellant and his co-accused, amounts to dock identification. He stated that they were the people who opened his car doors and ordered him to alight his car and that when he refused, one of them pulled out a firearm. The complainant stated that streetlights provided lighting on the evening of the incident. The appellant testified that he was helping a friend Wandile, who at the time stayed in Midrand, to move his luggage in a Nissan NP 200. Wandile, who was his friend, dropped off the bakkie at the appellant’s place. The vehicle had a key which kept falling out of its ignition. The appellant admitted that he was with accused two and that he skipped the stop sign because the car overrevved, as it had a problem with the clutch. The pertinent point pertains to whether the vehicle found in the appellant’s possession, belongs to the complainant. The evidence of Ndlovu is that when he sought to find out who the owner of the bakkie was, the system revealed that it was owned by Mofisa, who is the complainant. However, when he called him to inform him that his car had been found, the complainant informed him that his vehicle was with him.

Findings: The identity of the Nissan bakkie cannot be said to have been established beyond a reasonable doubt. As a result, it cannot be said that the evidence of Ndlovu is corroborative of the evidence by the complainant as to the identity of the Nissan bakkie NP 200 which was owned by the complainant at the time of the incident. Regarding the identity of the appellant, there was no identification parade held. The respondent sought to rely on the dock identification of the appellant and on the evidence of the complainant. The identity of the Nissan NP 200, as the subject of the alleged robbery, has not been established by the respondent beyond reasonable doubt, furthermore, the identity of the appellant as being one of the assailants who allegedly robbed the complainant of his Nissan NP 200 bakkie, has also not been proved beyond a reasonable doubt. The version of the appellant should have been accepted as being reasonably possibly true and his alibi should also have been accepted as true.

Order: The conviction by the trial court is overturned and set aside. The sentence imposed by the trial court is also set aside.

Facts and issue: The applicant launched this application praying for an order that the sale of execution be set aside; that the respondent be interdicted and prohibited from taking transfer of the property into her name. The applicant and Ms Mosothoane (first respondent) were married in community of property. The bonds of marriage were dissolved. In terms of the settlement agreement, the immovable property was ‘to be sold to the highest bidder and the proceeds of same to be divided equally between the parties. The defendant (applicant) may buy the plaintiffs (‘first respondents’) portion of the house on an agreed amount’.

Discussion: The applicant obtained a municipal valuation of the property, which was valued at R1,545,000. The applicant was informed that the auction was held at the Sheriff's office and that the property was sold for R1,000, to the highest bidder of the two that attended the auction. The property was sold to the attorney of record of the respondent, acting in terms of a power of attorney on behalf of the first respondent, for the meagre amount of R1,000, much to the dismay of the applicant. The respondent made a proposal that the applicant should ‘buy her out, at an amount of R700,000. No response was forthcoming. The respondent then informed the applicant that the property will be auctioned. The two potential buyers that the applicant said he had, never officially made offers to purchase for an amount in excess of R1,500,000. There were apparently also attempts made by the respondent to place the immovable property in the market through an estate agent, but without any success. It is not in dispute that in terms of the settlement agreement, either party may cause the immovable property to be auctioned, if the applicant could not ‘buy out’ the respondent.

Findings: It is undisputable that the respondents’ attorney of record knew that she wanted R700,000, which is a far cry from the R1,000 that the attorney paid as the highest bidder for the immovable property worth more than R1,500,000. This is certainly not just nor fair at all. Sight should not be lost of the fact that the respondent is also entitled to share equally in the R1,000, which means that only R500 will be the amount that the applicant may receive. So much to say about fairness. This is clearly not a case that is to be determined by the ‘fall of the hammer’ of the Sheriff as auctioneer. The immovable property was not sold to an independent third party. The respondent who set the process of sale in execution (auction) in motion, is the same person that through a power of attorney empowered her attorney of record to bid on the auction for the sale of the immovable property and who, lo and behold, bought it for a meagre amount of only R1,000. This is unfair towards the applicant.

Order: The sale in execution is set aside. The first respondent is prohibited from taking transfer of the immovable property in her name in terms of the sale in execution.

Facts and issue: The parties agreed to a stated case in terms of Rule 33. One of the facts agreed upon was that there was an insurance agreement between the parties in terms of which the plaintiff’s property was covered against certain loss or damage. A further fact was that a wall above the ceiling of the insured property collapsed, and fell through the ceiling, causing damage to the plaintiff. The plaintiff contended that the aforesaid incident constituted an insured event and that the defendant was liable for the plaintiff’s damages. The defendant contended that the incident, and damages, were not an insured peril, or event.

Discussion: The defendant alleged that it was not liable for the plaintiff’s damages in that the plaintiff could and should have foreseen the poor workmanship, and in any event, this issue was not relevant to the terms of the contract of insurance. The defendant indicated that it was repudiating as defective workmanship allegedly contributed to the damage and that this was not covered by the insurance policy. The defendant’s contention is primarily that the plaintiff could, and should, have foreseen the poor workmanship and that for this reason the claim was not relevant in terms of the contract. The expert report by the architect makes it abundantly clear that the plaintiff would not have been aware of the poor workmanship, and in fact, it was “impossible for the plaintiff to have been aware that a wall had been removed, which made the firewall brick unstable.” This is emphasised twice by the expert when he stated that “the plaintiff would have had no knowledge of the impending collapse.” As part of the stated case, this was apparently the defendant’s assessor’s view as well.

Findings: The exclusion referred to in the policy that “defects in the design or construction of the building, or where the structure would not have been approved by the relevant local authority at the time of construction”, and “construction, alteration repairs, defective workmanship or materials” cannot be considered in isolation. The exclusions are only applicable to defective workmanship where the plaintiff was “aware” prior to entering into the contract. This is what is raised in the stated case, together with its annexures, and there were no other facts, or annexures, which disputed the issue of a lack of knowledge. The issues for determination, and as determined by this court are that the incident, in the context of the stated case, was an insured peril, or event, in terms of the policy, resulting in the liability of the defendant; the plaintiff, in the context of the stated case, and its annexures thereto, could not have foreseen that there was poor workmanship, which he failed to disclose to the defendant.

Order: Both issues for determination are answered in favour of the plaintiff.

Facts and issue: The applicants seek an order reinstating their main review application which is deemed to be withdrawn, lapsed and archived in terms of the then applicable Practice Manual. The first respondent issued an award wherein the dismissal of the applicants was found to be substantively fair. The applicants launched a review application which was out of time. According to the respondent employer, the applicant served it with an incomplete record of the arbitration proceedings. Only the transcribed record of the proceedings and not the additional documents that served at arbitration proceedings and, that form part of the then Rule 7A (3), of the court, were served.

Discussion: Despite having been made aware by the Digital Audio recording that the transcribed record, was available on 16 March 2017, the applicants only collected the transcribed records on 30 September 2021 and filed same on 5 October 2021. This is an excessive delay of four and a half years or so. The applicants, eight years after their main review application was delivered, did not take further steps to prosecute their review application as they only failed to deliver a complete record, but the then 7A(8)(a) or 7A(8)(b) notice, which phenomenon renders the respondent employer unable to answer the applicants’ founding papers. The applicants have failed to provide a compelling and convincing explanation covering the entire period of the excessive delays in prosecuting their main review application and lodging this reinstatement application. The applicants situation is exacerbated by the fact that 8 years, or so, after the delivery of their main review application, they still have not delivered the complete record and all the necessary papers for such review.

Findings: The applicants failed to show good cause to have their reinstatement application granted, as they failed to provide a satisfactory, reasonable, acceptable and adequate explanation for the excessive delays in failing to further prosecute their main review application and bringing their reinstatement application late before the court. The prejudice that the respondent employer stand to suffer, is exacerbated by the fact that the applicant’s main review application, is still non-compliant with the appliable provisions of the then Practice Manual and the Rules of court 8 years after 2016.

Order: The application for the reinstatement of the main review application is dismissed.

Facts and issue: This is a review application in which the applicant seeks to review part of the arbitration award of the commissioner. Part of the award sought to be reviewed and set aside, is the conclusion by the commissioner that the applicant committed an unfair labour practice by failing to give the respondent employee the opportunity to contest for the Region 1: Executive Manager position, within the applicant and awarding such respondent compensation in the amount of R439,090.68.

Discussion: The only conclusion arrived at by the commissioner that the applicant subjected the respondent to an unfair labour practice by failing to give her the opportunity to contest for the position within the applicant, merely because the respondent testified that she qualified and expressed her intention for such position, is out of kilter with the standard and test for the review of arbitration awards and unreasonable. The fact that a potential candidate for appointment into a position in a workplace has the qualifications or is more qualified and an expression of an interest into a particular position, falls short of being the only conditio sine qua non, for appointment into a position especially where an employer, like the applicant, has a Recruitment and Selection Policy and Procedure. There is no process or procedure based on the applicant’s Recruitment Policy, which was properly placed before the commissioner that provides for such a phenomenon. The respondent could only have been considered for promotion, for purposes of fair labour practice, if after all applicant’s employees were placed in the new organisational structure and the post still remained vacant.

Findings: The totality of oral and documentary evidence before the commissioner was indicative of that the position was never vacant outside the applicant’s restructuring process as it arose from a duly approved, fair and consultative process of the applicant’s redesigning of its organisational structure in which none of the applicant’s were required to apply for any position during such restructuring as they were all consulted and offered available posts in the applicant’s new organisational structure. The commissioner’s only conclusion that the applicant subjected the respondent to unfair labour practice by failing to give her an opportunity to contest for a post that she expressed interest in, which was not, and could not be advertised through the applicant’s Recruitment Policy, as a result of the restructuring process relevant herein, falls outside the band of the reasonableness test. The commissioner’s award is not justified.

Order: Part of the second respondent’s award that the applicant subjected the third respondent to unfair labour practice and the awarding of R439,090.68, six months’ compensation to the third respondent, is reviewed and set aside.

Facts and issue: The plaintiff instituted action for damages against the defendants for unlawful arrest and detention by members of the SAPS without a warrant and sought an amount of R300,000. The plaintiff was arrested at home and charged with the offence of common assault. The complainant in the matter was her brother.

Discussion: Before that incident, she had previously been to the police station after having received a note to present herself. It was then that she learnt that her brother had opened a case against her. She responded that it was in fact her brother who fought her. She was thereafter asked to sign the warning statement which she did. On her arrest, she explained to the arresting officers that she thought the matter was over. Despite her explanation, she was arrested and detained. During cross examination, she explained that the dispute with her brother started when her brother was throttling his two-year-old son for allegedly eating his peanuts. When she intervened to stop the abuse of the child, her brother said he could do anything to the child as the child was his. Her brother turned on her. He throttled, slapped and kicked her. She fell to the ground as a result. She pushed him away. Her mother came and reprimanded him. At that stage, she was bleeding from her hands and feet. She later opened a charge against him at the police station. Her brother opened a counter charge. She disputed that there was any valid charge of assault against her.

Findings: The court is not persuaded that the suspicion the arresting police harboured was, objectively viewed, based on reasonable grounds. The defendant failed to meet the jurisdictional facts as required in section 40 of the CPA or for that matter, the Domestic Violence Act, in the absence of any evidence. It follows that the defendant failed to discharge the onus which rests upon it to establish on a balance of probabilities that the arrest was lawful. The arrest and subsequent detention of the plaintiff was, therefore, unlawful. There is a direct causal link between the police’s wrongful act, the plaintiff’s unlawful arrest, and the harm done due to the plaintiff’s subsequent detention for a further 3 days without bail.

Order: The first defendant is ordered to pay to the plaintiff’s damages in the sum of R150,000 for the unlawful arrest and subsequent detention of the plaintiff.

Facts and issue: This matter concerns disputes arising from the interpretation and execution of the late Cronje's Last Will and Testament. The primary focus is the alleged non-compliance by Mr Robertson with what the respondent contends are certain conditions imposed by the Will, which have led to multiple legal proceedings, including Mr Robertson’s main application seeking the removal of the executor of the deceased’s estate and the executor's counter-application seeking declaratory relief regarding the interpretation of the Will and its conditions.

Discussion: The central question concerns the failure, or purported failure, by Mr Robertson to fulfil certain conditions imposed by the deceased’s Will as a prerequisite to inheriting a 51% membership interest in Kitsch Kool Properties CC, a business trading as Big Blue. The executor contends that conditions precedent for Mr Robertson’s inheritance were not met, specifically arguing that Mr Robertson failed to ensure the legacies to Noel and Chiwandire were paid as stipulated. This failure, the executor asserts, results in the forfeiture of Mr Robertson’s claim to the bequest. Mr Robertson, on the other hand, maintains that the financial obligations outlined in the Will were not imposed on him personally but were directed at the close corporation, Big Blue, in which he already held a 49% membership interest. He argues that the payments to the legatees were made from the CC and that he has fully complied with the Will’s requirements. He also challenges the executor’s conduct in administering the estate, accusing him of delays, inaccuracies in the liquidation and distribution account, and mismanagement. The crux of the dispute revolves around the interpretation of the Will and whether it imposed personal obligations on Mr Robertson to make the payments to the legatees or merely intended for these payments to be made from the deceased’s business interest in Big Blue.

Findings: The conclusion that Mr Robertson’s rights vested immediately upon the death of the testator aligns with the overall intention of the testator as reflected in the Will. The interpretation that the bequest to Mr Robertson was subject to a modus rather than a suspensive condition is not only consistent with the language of the Will but also supports the practical implementation of the testator’s wishes. The testator’s explicit requirement that the payments to Mrs. Noel and Chiwandire be made “payable from the Big Blue business interest” suggests that the business interest needed to vest in Mr Robertson immediately upon the testator’s death. Mr Robertson’s right to inherit the 51% membership interest in Kitsch Kool Properties CC vested immediately upon the death of the testator, subject to the obligations arising from the modus. Mr Robertson has not established sufficient grounds to justify the claim for the removal of the executor.

Order: The application and the counter-application are dismissed.