TODAY'S ALERTS

Facts and issue: The applicant is seeking a prohibitory and mandatory interdict against the respondents. The applicant contends that the respondents are misleading the public, since they are operating under its name and collecting funds from the public, in that guise. Thus, the applicant is seeking the return of keys to the building currently occupied by the respondents as a church, books of account as well as money which has already been collected by the respondents.

Discussion: While admitting that they are members of the applicant, the respondents assert that they are congregants of the offshoot or one of the branches of the applicant, the Carltonville branch. They admit that because they receive money from the public, they approached the bank and presented a constitution to them. As a result, a bank account of their own was opened. The constitution they presented to the bank is their own constitution that they drafted. The bank account that they opened, is operated by them in total exclusion of the applicant. The applicant relies on ownership of the immovable property, from where the respondents are worshiping as establishing a clear right. The tittle deed in its assertion, is a clear indication of the property rights the applicant has. That the applicant is a NPO is not disputed. The applicant has established that the property rights vest on it. The respondents even though they are members of the local committee of that church, are not the property right holders in respect of that property, that much is indirectly admitted by them.

Findings: A clear right has been firmly established. That the respondents presented their own constitution to the bank, which they admit was drafted for expediency; opened a bank in the name of the applicant; collected money into that bank account but did not forward money collected to the applicant and incurred but did not pay municipal services which were paid by the applicant is harmful to the applicant. All the mentioned factors either individually or cumulatively viewed, establish a case for apprehension of harm. The harm is in fact ongoing. The applicant is left with no other remedy to resolve the dispute. The requisites for a final interdict have been established.

Order: The respondents are interdicted from operating under the name of the applicant and collecting funds from any person under the guise of the applicant. the respondents are directed to return the applicant’s books, keys to the church and funds of the applicant to the applicant and furnish the entire banking account records from the inception of the bank account to the applicant.

Facts and issue: The applicant approached the court for an order that is divided into two parts. Part A of the application was brought on urgent basis. The main relief the applicant is ordering the immediate release of the applicant from detention at Bizana Correctional Centre or where he is detained, pending the final determination of the review of the decision to detain him as contemplated in Part B of the notice of motion and his obtaining of Asylum seeker status as contemplated in the Refugees Act 130 of 1998.

Discussion: It is inherent in this relief that the applicant is detained in awaiting trial prisoner section at Bizana Correctional Centre. It is unequivocally clear in the founding and replying affidavit that the Commissioner of Oath is Head or an Official of Bizana Correctional Centre. When the founding and replying affidavit was attested to, the applicant was detained in and was in the control of the Bizana Correctional Centre. Mtshoba was a Correctional Officer who signed the affidavits as a Commissioner of Oath. While release of the applicant from the Prison cells is sought, it is true that the lawfulness of applicant’s detention at Bizana Correctional Centre is, by necessary implications, in issue. That attack can appropriately be directed at the institution detaining the applicant, which is Bizana Correctional Centre. It is the Bizana Correctional Centre that has the keys of the Prison Cell from which the applicant has to be released. The applicant’s Counsel strongly submitted to the effect that the Head of the Correctional facility or any Other relevant Official representing the Correctional Centre is not a necessary party as the court order directing the cited or joined respondents can significantly be carried into effect without prejudicing the Head of or relevant Official the Correctional Centre. In the same vein it was conceded in the oral submissions by the applicant’s Counsel that, the applicant is detained in the Bizana Correctional Centre.

Findings: Non-joinder is the failure of a plaintiff to join a particular defendant with another when he is suing, in circumstances in which the law requires that both should be sued together. The test is whether a party has a direct and substantial interest in the subject matter of the action that is, a legal interest in the subject matter of the litigation which may be affected prejudicially by the judgment of the court. The Rule is that any person is a necessary party and should be joined if such person has a direct and substantial interest in any order the court might make, or if such an order cannot be sustained or carried into effect without prejudicing that party. The court is, as a matter of law, precluded from considering whether a case has been made out for the grant of the relief being sought. It has no discretion to exercise until all the necessary parties are before court.

Order: Part A application is postponed sine die pending the joinder of the Head of Bizana Correctional Centre or any other relevant functionary in the Correctional Centre and the Minister of Correctional Services in terms of Section 2(1) of the State Liability Amendment Act 14 of 2011.

Facts and issue: This is an application brought by the respondent in the main application, as applicant, for leave to appeal the order and decision made by this court on 8 August 2024. The court granted an interim order that both minor children are placed on an interim basis with the applicant pending the urgent investigation by a social worker into the best interests of the minor children, with specific reference to contact, care and residence.

Discussion: The grounds of appeal are that the court a quo grossly erred and misdirected itself in ordering that the applicant’s first daughter be placed under the interim primary care and residence of the minor child’s alleged sexual abuser’s brother, the respondent, in the absence of any safe-guards to protect the child-victim and in the absence of any application for such relief. The court grossly erred and misdirected itself in directing that the interim care and primary residence of both minor children be awarded to the applicant in the absence of any evidence or report justifying interference with the applicant’s care and residency of the minor children, herself being an unmarried mother of two.

Findings: The applicant did not set out in the notice of application for leave to appeal or during argument before court, the grounds on which the court did not exercise a discretion judicially, what the grounds were that made this case exceptional and the grounds on which the best interests of the children were not served by the interim order. The applicant conflated an argument between the best interests of the child standard and exceptional circumstances. The argument was focused primarily on the merits of the case and regarding the appealability of the interim order in the most vague and generalized terms. The grounds of appeal in paragraphs 1 and 2 of the notice of application do not constitute exceptional circumstances and are without any merit. The interim order is not appealable. The applicant has no prospects of success.

Order: The application for leave to appeal is dismissed with costs on scale C.

Facts and issue: These are action proceedings in which the plaintiff claims against the defendants compensation for damages allegedly occasioned on the plaintiff pursuant to his unlawful arrest and detention by members of the defendants, acting within the course and scope of their employment. The arrest was allegedly followed by malicious prosecution by or at the behest of the National Prosecuting Authority. The issues that remain for adjudication are when would prescription be said to have started running; whether the claims have been extinguished by prescription; and whether there was due and proper compliance with the prescripts as regards the statutory notice.

Discussion: As regards a claim based on unlawful arrest and detention prescription will ordinarily commence to run immediately after the arrest has been effected. That is the trigger event of the running of prescription. As regards unlawful detention, each day that the claimant is in detention gives rise to a separate claim with regard to prescription. So, when the applicant was apprehended by members of the defendant on the 3 April 2016, that is the date when he is deemed to have identified his debtor, the defendant Minister of Police and the facts and circumstances from which the arrest or apprehension arose. As nothing was done by him or anyone on his behalf till his acquittal on 15 November 2019, the period of prescription ran its course and was extinguished on 3 April 2019.

Findings: It does not avail plaintiff that he was in custody or did not know his rights all of the period of three years and seven months. The plaintiff’s claim against the defendant for unlawful arrest and detention had prescribed. Regarding prescription in terms of Section 40 of ILPACOSA, it is common cause that no notice was issued in terms of Section 3 of ILPACOSA, as the plaintiff believed that he did not need one since being in custody. The claim would have prescribed for the reasons stated above with regards to.

Order: The plaintiff’s claims based on unlawful arrest have prescribed in terms of the Prescription Act. The plaintiff’s action under the provisions of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 has also prescribed.

Facts and issue: This bail appeal emanates from the Magistrates Court. Two bail applications were made by and on behalf of the appellant and such bail applications were made at different times, and both of them were unsuccessful. The appellant faces multiple charges of rape and trafficking persons; counts of unlawful possession of more than 200 cartridges of a firearm; and counts of assault with intention to do grievous bodily harm. The court a quo ruled that the charges against the appellant fall within the ambit of Schedule 6.

Discussion: The appellant states that he was arrested and has been in custody for more than a year as an awaiting trial prisoner. Nothing is said about his bail being decided on 14 September 2023. He considers that period as an inordinate lengthy delay that has a negative effect on his ability to attend to his farming operations and other income producing activities. The appellant’s inability to attend to his farming operations and other income producing activities were dealt with in the first bail application. No time frame or stipulated time was ordered by the court a quo in the first bail application to be the time for his detention. It clearly intended to order the detention of the appellant until he is dealt with in terms of the law. This point unmeritorious. A detainee’s inability to attend to his day-to-day financial operations in his farm has a direct bearing on the detainee’s inability to raise finances. This ground is not unusual and extraordinary to engender exceptional circumstances.

Findings: Having found that all what was raised in the court a quo as new facts were not at all new facts, the court a quo should have dismissed appellant’s bail application and refused same on that basis. This bail appeal cannot succeed only on the point that there was no new fact brought before the court a quo. An application for a protection order in terms of Domestic Violence Act was recently instituted by the prospective witness in this case. That domestic violence matter had a bearing on this matter. A threat to kill someone who is an obvious witness and a victim in a criminal case cannot be taken lightly. The presence of the appellant in the farm will induce fear on the victims who are residing on the farms. The appellant is accused of having flogging the victims. A sight must not be lost of the fact that someone on the appellant’s farm was found dead, suspected of having committed suicide. That manifests the egregious, oppressive and fear inducing environment in the appellant’s farm.

Order: The appeal is dismissed.

Facts and issue: This application is premised on the provisions of section 22(4) of the Refugees Act 130 of 1998; under this relief the applicant seeks an order compelling the respondents to issue him with a temporal Asylum Permit, pending finalization of the Asylum application. The applicant is foreign national of Mozambican discern. He came into this country in May 2024 through Lebombo Border which is between South Africa and Mozambique. According to him he had a valid passport or travel documents that would allow him to stay in this country until 19th June 2024. His travel document is not part of the papers.

Discussion: The applicant is an undocumented foreigner of Mozambican discern. In the questionnaire the applicant declared that he entered the Republic in 1996 for purposes of study. He was deported in Gauteng Province. It is not gainsaid that the applicant entered the Republic by foot in 2010. On 11th October 2023 he entered South Africa through Lebombo Border and there is no record of his departure. He came again to this country with a Visitor’s Visa which expired on 17th June 2024. It is important to note that the applicant came into this country as a visitor and not for any other reason for a specified period of time. It is further common cause that the applicant failed to report within 5 days of his entry into the Republic. The applicant’s in his papers does not contend that the decisions by the Magistrates Court were set aside. The decisions are still extant and are not challenged herein. An application for the release of the applicant from custody was suitably made. An application for the release of the application from custody is quintessentially an application challenging the applicant’s detention. It is now common cause that challenge was not successful and applicant’s application for him to be released was refused.

Findings: All orders of court whether correctly or incorrectly granted have to be obeyed until they are properly set aside. The remedy available to the applicant is to approach a court of competent jurisdiction in appropriate proceedings for an order setting aside the court order of the Magistrates court. That is quintessentially the remedy available to the applicant affording him the same relief sought in paragraphs 4 and 5 of notice of motion. The present proceedings are not proceedings challenging or seeking to set aside the court order of the Magistrates Court. The relief sought in paragraphs 4 and 5 of the notice of motion are incompetent and cannot be granted. The application concerning the release of the applicant is unsuccessful. The applicant is lawfully detained in terms of the orders of the Magistrates Court which have not been set aside.

Order: The application is dismissed with costs.

Facts and issue: The appellant, Mr Fouche, claimed general damages for unlawful arrest and detention by members of the SAPS. Mr Fouche successfully claimed damages as a result of the pre-trial accommodation conditions in which he was held and the impairment of his dignity thereby. He was awarded R50,000. His claim for unlawful arrest and detention was dismissed. Aggrieved by the court a quo's decision, Mr Fouche appealed the order and judgment.

Discussion: According to the appellant, Ms Rawlins was his girlfriend. She bought him an Audi A1 motor vehicle. Mr Fouche and Ms Rawlins went to Standard Bank to pay for the vehicle. They also went to SARS for her tax clearance. He left her at SARS and went to do paperwork at Audi. After completing paperwork with the Audi salesperson, and a demonstration of the operation of the motor vehicle, he took possession thereof from Audi. He did not take it to Ms Rawlins. He was found in possession of the Audi A1 by SAPS. He was arrested without a warrant on a theft charge of the motor vehicle following its circulation as stolen. The arresting officer, Mudau, did not simply arrest Mr Fouche just because he found him in possession of a suspected stolen motor vehicle that had been circulated as stolen. He gathered more information and verified same.

Findings: The officer checked via the NATIS records, which showed that the Audi A1 was registered under the name of Ms Rawlins. He further called the Hillbrow police station and Constable Dlamini. Constable Dlamini confirmed that he was investigating the matter, that the vehicle was still registered stolen, and that it was circulated. Also, he was looking for the suspect (Mr Fouche) and the Audi A1. Constable Dlamini further informed Mudau that he had valid documents reflecting the owner as Ms Rawlins and invited Mr Fouche to provide more information to prove the vehicle was his. The court a quo was correct in finding that Mudau had harboured a reasonable suspicion and that he had exercised his discretion correctly, based on solid grounds, when he effected the arrest.

Order: The appeal is dismissed with costs.

Facts and issue: This case concerns a claim of ownership of land. The controversy finds its genesis in whether the applicant has a legal right and entitlement to the land by virtue of the operation of the law. The application is brought on behalf of the City of Cape Town (the City). The property is currently registered in the registry of deeds under the name of the respondent. As such, the respondent claims title to the property by virtue of what is recorded in the registry of deeds. The City, however, contends that the property in question was erroneously registered under the name of the respondent.

Discussion: The City has been at pains to point out that the application pertains to matters of ownership and unlawful construction.  The City asserts that the property vested in it by operation of law, dating from as far back as 1984. For the proposition that the property vested in the City, the City places reliance on section 24 (1) of the Township Planning Ordinance 33 of 1934. According to the City, in the subdivision approval, the property is designated as a public space. And the land use designation for the property is public park. The City then provides the background as follows: As previously outlined, in 1984, the fourth respondent undertook a township development. The remaining portion of the land from the subdivision for the development was designated as a public place. It is the City’s assertion that the property remained designated as a public place with open space zoning for some 32 years.

Findings: The court is called upon by the City to decide whether the property vests in the City in terms of an ordinance. In other words, whether the ordinance trumps a registered owner in the deeds of registry. The registration of title in the deeds office does not establish incontrovertible evidence of ownership of the immovable property. This is so because the deeds office cannot guarantee the accuracy or truthfulness of the information on their registration system. The applicant’s argument is made with much greater plausibility. Accordingly, the City has succeeded to prove its entitlement to the property and the unlawfulness of the building work on the property.

Order: It is declared that the property vests in the City of Cape Town (the applicant) arising from section 24 of the Township Planning Ordinance 33 of 1934, Western Cape, and/or section 58 of the Municipal Planning Bylaw, and so vested since 1984. The second respondent is directed to register the property in the name of the applicant.

Facts and issue: The application is a statutory appeal in terms of s 47(9)(e) of the Customs and Excise Act 91 of 1964. The applicants (GMV) seek an order that the applicants’ appeal against a letter of demand (LOD), issued by the respondent (Commissioner or SARS), and against the decision of the respondent’s internal Appeal Committee, be upheld. The applicants seek an order in the alternative that the respondent's determination that the applicants have not complied with Note 6(f)(ii)(cc) of Part 3 of Schedule 6 to the Customs Act (dealing with the requisite mining authorisation), be set aside.

Discussion: The impugned decisions resulted from an audit performed by SARS after GMV claimed diesel refunds in terms of section 75(1A) of the Customs Act, pursuant to its mining operations. SARS disallowed the refunds and raised the LOD on the basis that GMV is not entitled to the diesel refunds because GMV did not comply with one or more requirements set out in Note 6 of Part 3 of Schedule 6 of the Customs Act (Note 6). SARS raised the LOD and claimed an amount of approximately R75 million (plus interest) from GMV. The issue of logbooks was expressly raised by the Appeal Committee and in the answering affidavit. The Appeal Committee afforded the applicants an opportunity to provide the required documents. The applicant elected not to do so. SARS argues that in the absence of compliance with the requirements of Notes 6(a) and 6(q), SARS cannot grant GMV any diesel refund as claimed. On the evidence presented, the applicants have not persuaded court that they have complied with the requirements of Note 6(q) of Part 3 of Schedule 6 to the Customs Act, dealing with keeping of books, accounts and other documents.

Findings: The GMV did not provide SARS with the usage and dispensing records sought to substantiate the diesel refunds as requested by the Appeal Committee. In the absence of compliance with the requirements of Notes 6(a) & 6(q), SARS cannot grant GMV any diesel refund as claimed. The Appeal Committee did not act ultra vires as contended by the applicants. GMV does not carry on the mining activities (which would qualify for a refund of levies), as the holder or cessionary of a mining authorisation granted or ceded to GMV, as required by Note 6(f)(ii)(cc). It follows that GMV was not entitled to the refund.

Order: The application is dismissed.

Facts and issue: Before court is an appeal pursuant to the court a quo granting leave to appeal against its judgment dismissing the appellant’s application to set aside the determination by the respondent, SARS, that the appellant does not qualify for the diesel refunds it claimed. The appellant claimed a refund for the diesel used to conduct mining. The respondent paid the refund so claimed, but pursuant to an audit, claimed the paid refunds back.

Discussion: The appellant’s argument is that the court a quo was incorrect in accepting the respondent’s argument and finding that the appellant’s logbooks did not detail the usage of the diesel. The further finding by the court a quo and argument of the respondent that the appellant’s logbook did not detail the usage of the diesel for eligible purposes is similarly simply wrong. On behalf of the respondent, it was submitted that the provisions of Note 6 read with the rebate item 670.04 and section 75 of the Customs and Excise Act 91 of 1964 are all peremptory and any user wanting to receive the benefit of the rebate item must ensure strict compliance with these provisions. The log book submitted did not comply with the requirements because ex facie the document it cannot be determined how the diesel was used because the description in the logbook is generic. The respondent attempted to remedy FA5 by submitting the revised logbook as reflected in FA17. This did not rectify the logbook because the schedule in the logbook still failed to specify the details of the mining activities performed. But, more importantly one cannot ascertain whether the diesel claimed was in fact utilised for eligible purposes.

Findings: To qualify for the rebate, the appellant must complete a logbook with sufficient clarity. This is not a mechanical approach, but an approach whereby the object of the diesel refunds, not to be a complete reversal of the fuel levies in the mining sector, is borne out by the list meticulously circumscribing the ambit of activities that do qualify for the rebate. The logbook must contain the specified usage of the fuel in respect of a specified vehicle or equipment. The duty to ensure that the appellant is entitled to the refund lies with the appellant. There is no duty on the respondent to visit the mining operation or make its own deductions on generic inscriptions in the logbook. The appellant has been afforded the opportunity to submit further logbooks that where considered. It could have placed further documents to prove its entitlement to the rebate before the court. The award must not be reviewed and set aside on due process not being followed.

Order: The appeal is dismissed with costs.