TODAY'S ALERTS

Facts and issue: This bail appeal emanates from a decision of the Magistrate’s Court to refuse bail. The appellant faces a charge of assault with the intent to cause grievous bodily harm for the assault of the complainant, with a bottle, wherein the complainant sustained serious injuries. The Magistrate’s Court dismissed the appellant’s bail application. The appellant and the complainant were in a domestic relationship.

Discussion: The evidence of the complainant is that she was residing with the appellant but is no longer doing so resulting from what the complainant described as numerous incidents of physical assault by the appellant. Previous charges of assault laid by the complainant were all withdrawn due to the intervention of the appellant’s family. The complainant testified that the appellant threatened that if he was arrested for any charges laid by the complainant, he would kill her and flee to Lesotho.  Having been assaulted by the appellant in the assault that led to the appellant’s arrest in this matter, the appellant locked the complainant in a room. With the help of a friend, the complainant was liberated from this room and taken to hospital. As a result of the injuries caused by the assault, the complainant has lost her eyesight.

Findings: The complainant was assaulted by the appellant on many previous occasions, which cases have been reported to the SAPS but have subsequently been withdrawn by the complainant. There is a protection order against the appellant, the terms of which have been contravened by the appellant. The complainant believes that if released, the likelihood exists that the appellant will commit a Schedule 1 offence. Having regard to the evidence of the appellant measured against the evidence of the State, the appellant failed to prove that it will be in the interest of justice if the appellant is released on bail. The order of the magistrate cannot be faulted.

Order: The appeal against the refusal of bail is dismissed.

Facts and issue: The appellant applied to be released on bail following his arrest. The court refused the appellant’s bail, aggrieved by such decision, he then appealed against such refusal to grant him bail, in terms of section 65(1)(a) of the Criminal Procedure Act 51 of 1977. The corruption charges were levelled against him after he was arrested on a trafficking in person charge. The appellant was not arrested for being in the country illegally but for committing an offence, his status in the country played a crucial role in him being denied bail.

Discussion: The arrest of the appellant and his detention was not as intended in terms of sections 3(1)(g), 34 or 49 of the Immigration Act 13 of 2002. The appellant provided the address that he used to reside at the time of his arrest. The lease agreement he concluded with the owner of that flat is no longer in place as the appellant defaulted on his obligations to pay rental money because of his incarceration. The appellant also provided the address of his brother in Centurion, which was confirmed by the Investigating Officer after he visited that address. He could not access the room in that address wherein it was stated that appellant would stay in as apparently his girlfriend took the key to that room. The appellant’s status according to the Department of Home Affairs is that of a person who is illegal in the country. There is currently nothing in the appellant’s version to gainsay that. The review application against such decision, despite being issued in 2022, nothing has been done to prosecute it. According to Home Affairs records, the appellant’s application for a temporary residence status was rejected on the 5 March 2020, meaning that at the time of his arrest in 2022, the appellant knew that he was in the country illegally. The review application was only attended to after his arrest.

Findings: The presiding Magistrate did not misdirect himself when making a finding that the appellant was in the country illegally. Further that he does not have a confirmed address, and it is not known where he will be staying if released on bail. Finally, that the state has a strong case against the appellant and there is no need for this court to interfere with such finding. This appeal ought to fail.

Order: The appeal against the refusal of the magistrate to release the appellant on bail is refused.

Facts and issue: The appellant was charged in the Magistrate’s Court with contravening section 5(b) read with other sections of the Drugs and Drug Trafficking Act, Act 140 of 1992. The allegations against her are that at OR Tambo International Airport, she imported 4,228.20 grams of cocaine into the Republic of South Africa. The appellant pleaded guilty and was convicted as charged. The appellant was sentenced to 18 years imprisonment. The appellant brought an application for leave to appeal the sentence.

Discussion: The appellant is of the view that a sentence of 18 years is too harsh. It was pointed out that the learned magistrate did not attach enough weight to the fact that the appellant has spent 15 months awaiting trial; and that the sentence that was imposed is shockingly inappropriate. The magistrate did take into consideration the time the Appellant spent in custody before the matter was finalized. The magistrate took the following into consideration before imposing the sentence: the appellant is a first offender; the appellant is 24 years of age and the mother of three minor children; that she has spent 17 months in custody before the date of sentence which he attributed to the fact that the defence indicated the she was going to plead not guilty; the fact that she is from a foreign country and that she has no support structure in this country and might find herself isolated whilst being incarcerated; and he also took into consideration that for purpose of sentence, other aspirant drug traffickers should be discouraged from embarking on this unfortunate and devastating practice.

Findings: The learned magistrate did take the time that the appellant was awaiting trial into consideration but taking that into account with the other factors, especially the aggravating factors of the case, he was satisfied that the sentence which was imposed was a suitable sentence. The appellant was convicted of a very serious offence. What is extremely aggravating is the quantity of cocaine that was brought into the country viz more than 4 kilograms. The learned magistrate took all factors into account when he decided on the appropriate sentence to be imposed. The sentence that was imposed is not shockingly inappropriate. For the court to interfere with the sentence that was imposed, it must find a misdirection by the court below. It can find none.

Order: The appeal against sentence is dismissed.

Facts and issue: The appellant is appealing against the sentence of six months direct imprisonment imposed for assault common. The allegations against the appellant were that she unlawfully and intentionally assaulted the complainant by hitting him with a wooden stick. The appellant was 72 years old when the offence was committed. She is a pensioner. She has a condition with her legs, experiencing an infection on the right leg. She also takes responsibility for her actions.

Discussion: The court a quo did not take the appellant’s age into consideration during sentencing. The sentencing of an accused does not occur in isolation; rather, the court must ascertain which penalties apply. When an offender is of an advanced age, this factor may be considered a mitigating circumstance during the sentencing phase. The appellant`s age does not absolve her of criminal responsibility. Nevertheless, it may be considered a mitigating factor during the sentencing phase. The court below should have considered other sentencing options beyond solely a custodial sentence. Imprisonment can be especially harsh for elderly individuals with medical conditions, complicating their ability to manage. While the appellant's age does not absolve her of criminal actions, it constitutes a significant factor for the court to consider in determining the nature and severity of the punishment. She currently resides with her daughter, who assists in managing her health challenges. Given the expected progression of her health issues, she will require additional support that correctional services may not be equipped to provide.

Findings: The lower court erred by failing to consider the appellant's age. The appellant is an elderly woman experiencing significant health issues. From a stringent legal standpoint, this represents a considerable and compelling circumstance. The trial court did not attach sufficient weight to the personal circumstances of the appellant and her prospects for rehabilitation. The trial court’s failure to consider and attach sufficient weight to the appellant's personal circumstances culminated in a disturbingly inappropriate sentence. The trial court erroneously imposed a severe sentence. The lower court did not possess adequate information to consider the appellant's personal factors and circumstances appropriately. The appellant demonstrated sincere remorse.

Order: The appeal against the sentence is upheld. The sentence of six months imprisonment is set aside and replaced. The accused is sentenced to a fine of R1,500; or 3 months imprisonment suspended for five years on condition that the accused is not found guilty of the same or similar offence.

Facts and issue: The applicant and respondent are married to each other. Following a breakdown of the marriage relationship, the respondent deserted the matrimonial residence and moved to where the respondent’s family resides. The respondent took the three minor children with her. The applicant brought an urgent rule 43 application. That court dismissed the rule 43 application and granted relief broadly similar to that requested in the respondent’s counter-application. Dissatisfied with the rule 43 order, the applicant brought a second urgent application, this time in terms of the provisions of rule 43(6).

Discussion: In the rule 43(6) application, the applicant sought the exact relief he sought in the rule 43 application, save for requesting an additional order to the effect that the rule 43 order be deleted and replaced with the relief sought in the rule 43(6) application. The relief sought by the applicant seems to be a novel issue. Counsel for either of the parties did not bring any authority on the point under the attention of the court and neither did the court’s own research uncover any such authority. Considering that the applicant claims the deletion of an existing order and that it be replaced with another, the form of the relief sought is akin to either that of an appeal or a review. Such relief cannot be granted without a reconsideration of the rule 43 application. In addition to addressing this application to the Registrar and the respondent, the applicant took the very unconventional step of also addressing the rule 43(6) application directly to the Acting Judge, who granted the rule 43 order. This step is reminiscent of review proceedings of a Magistrate’s Court order.

Findings: The relief the applicant requests in this application is dissimilar from the relief provided for in rule 43(6), as the applicant does not request a variation of the rule 43 order but a complete substitution thereof. To delete and replace an existing rule 43 order, without new evidence, supposes a discretion in the widest sense. To allow a High Court consisting of one judge to hear its own orders on appeal or review, militates against firmly established procedural principles. Not only are both these avenues of course not available to the court, but the exercise of this wide discretion in this sense would lead to absurd results. There exists no basis for interfering with the rule 43 order as it currently stands.

Order: The application in terms of rule 43(6) is dismissed.

Facts and issue: This is an adjudication of the respondent’s point in limine about the jurisdiction of the court and the amendment of the respondent’s statement of response. The respondent acknowledged and indicated that its cross-referencing to section 186(2)(b) instead of 186(2)(a) was a typographical error and asked for leave to have such amendment accepted from the bar by the court. The issues for determination are whether the amendment of the statement of response to reflect section 186(2)(a) of the Labour Relations Act 66 of 1995 instead of section 186(2)(b) should be accepted from the bar; and whether the respondent’s jurisdictional point in limine should be upheld.

Discussion: The court is satisfied that the respondent’s explanation for cross-referencing to section 186(2)(b) in paragraph 2 of its statement of response, instead of 186(2)(a), is a typographical error. This much is borne by the totality of the content and context of the respondent’s jurisdictional point in limine. It is inconceivable to fathom otherwise. The gravamen of the respondent’s submission on its jurisdictional point limine, is that the applicant’s claims are benefits and disputes of right to be conciliated and arbitrated by the CCMA. Further that the court has no jurisdiction to adjudicate such claims in terms of section 77(3) and 34 of the Basic Conditions of Employment Act 75 of 1997 (BCEA). In terms of the LRA, this court does not have jurisdiction to adjudicate an unresolved dispute if the LRA or any employment law requires the dispute to be resolved through conciliation and/or arbitration. The respondent’s jurisdictional point in limine, stands to be upheld based solely on the fact that the applicant’s claims are benefits and have been qualified as such in the statement of claim. These are to be subjected to the unfair labour practice regime and dispute resolution in terms of section 186(2)(a) of the LRA.

Findings: The applicant’s claims are benefits that stand to be conciliated and arbitrated by the CCMA or any of its accredited bargaining councils and not for adjudication by this court. In order to bring an application or action within the purview of section 77(3) of the BCEA, to clothe this court with jurisdiction, the applicant must demonstrate that there is an employment contract and that there is a breach of a specific term of such contract. Other than a mere mentioning of the fact that the applicant’s case is about a claim in terms of section77(3) of the BCEA, there is no iota of any mention or attachment of any applicant’s contract of employment with the respondent, let alone any cross-referencing to any specific term of any such employment contract, relied on by the applicant to bring his referral within the realm of section 77(3) of the BCEA. This is fatal to the applicant’s case for want of clothing this court with jurisdiction to adjudicate its claims in terms of section 77(1) and 77(3) of the BCEA.

Order: The respondent’s amendment of paragraph 2 of its statement of response is granted. The applicant’s referral is struck from the roll for want of jurisdiction.

Facts and issue: The applicant, an adult male Major General employed by the SAPS, seeks to interdict a process he refers to as an ‘informal process’ in terms of regulation 9 of the South African Police Discipline Regulations of 2016 (Regulations). The applicant was issued with a notice to attend a regulation 9 disciplinary process and in terms of this notice, he was summoned to an expeditious disciplinary hearing to take place for allegations which he deems baseless.

Discussion: According to the applicant, the hearing is merely an attempt to pay lip service to the requirements of fair employment processes and a stratagem aimed at removing him from his position in the Counter and Security Intelligence, Crime Intelligence Division. He is of the view that the expeditious process constitutes an occupational detriment instituted in retaliation to certain protected disclosures he made. The respondents deny that the applicant is a target for dismissal for any of the reasons as alleged by him. It submits that the expeditious disciplinary process was agreed upon through a collective agreement between the employer and its employees as represented by their respective unions. This process is being consistently applied whenever the need arises, and it also meets the requirements for natural justice. The respondents argued that in terms of regulation 9(2)(b), the notice period may not be less than five calendar days. Therefore, the applicant's complaint that he does not have sufficient time to prepare a defence is not credible since he was afforded more than the prescribed five calendar days before the commencement of the disciplinary process.

Findings: The expeditious disciplinary process forms part of the collective agreement that was reached between the respondents as the employer, and all the unions that were admitted to the SSSBC, for which the applicant is a member. The Regulations apply to the employer and all its employees falling within the registered scope of the SSSBC. None of the parties will suffer any prejudice if regulations 8 and 11 procedures are followed. The inquisitorial nature of regulations 8 and 11 is the most suitable procedure to apply to achieve fairness and avoid prejudice, more so if an independent adjudicator is appointed. The very nature of the offence and its surrounding circumstances justify a deviation from a procedure in terms of regulation 9 to ensure proper ventilation of the issues.

Order: The respondents are directed to convene a formal disciplinary hearing in respect of the charges against the applicant and that such a disciplinary hearing shall be convened in terms of regulation 8 and regulation 11 of the South African Police Service Disciplinary Regulations, 2016.

Facts and issue: The applicant filed an application to review and set aside a condonation ruling. The arbitrator refused to grant condonation for the late referral of the applicant’s unfair labour practice dispute. The court must decide whether the arbitrator was right or wrong and not whether the conclusion reached by the arbitrator was one that a reasonable decision maker could not reach. The question to be decided in view of the applicable test is whether the arbitrator correctly found that the applicant did not provide a good explanation for her lateness and whether he was correct to refuse condonation, considering the applicable principles.

Discussion: The delay of 28 days is material. A failure to comply with the generous period of 90 days, must be explained and the reasonableness of the delay should be considered by having regard to the explanation for the delay. The explanation for the delay must be compelling, convincing and comprehensive and should cover every period of the delay. There is absolutely no explanation as to what caused the delay in referring the unfair labour practice dispute between July and August 2023 and in fact, there is no reference to the said period. The only explanation is for May and June 2023, which fell within the 90-day period and did not need to be explained as the referral was not late in May or June 2023. The applicant made a vague and unsubstantiated statement to the effect that she had waited for the employer to provide her with certain documents. The applicant provided no detail as to when she requested the documents, why the documents were necessary for her to complete the referral form and how this fact contributed to the delay.

Findings: The explanation tendered is bereft of any detail and lacks particularity. Material periods of the delay remained completely unexplained, and the applicant tendered no version as to what happened during the relevant period of July and August 2023. The applicant provided no explanation for a material period of the delay and the arbitrator was not placed in a position to understand the reasons as to why the dispute was not referred in time. The applicant failed to discharge the onus to show good cause why the indulgence she sought should have been granted. The applicant did not pursue her matter diligently and she not only failed to comply with the prescribed periods, but she also failed to explain her failure to do so when she applied for condonation.

Order: The late filing of the review application is condoned. The application for review is dismissed.

Facts and issue: The plaintiff instituted a delictual action for damages against both defendants arising from his alleged unlawful arrest and detention, which arrest was effected without a warrant. In his defence, the defendant alleges that the arrest was executed by virtue of section 40 (1) (a) of the Criminal Procedure Act 51 of 1977. The issues before the court relate to the arrest and detention of the plaintiff and the matter proceeds on both merits and quantum. The plaintiff, a retired police officer, testified that he is a VIP security officer, and his scope of duties was to escort Ministers of Burundi and Morocco.

Discussion: The plaintiff drove on the emergency lane because he was in a hurry to pick up a Minister. The plaintiff drove with white stroke lights on, and his vehicle was not registered under a security company. The plaintiff had a South African Police Service appointment card although had retired from the Police Service. The plaintiff was driving in the emergency lane. His vehicle was not registered with any security company and therefore the stroke light on the dashboard did not comply with traffic regulations. Counsel for the plaintiff argued that driving on the emergency lane does not amount to an offence but it is a road traffic infringement. A perpetrator commits an offence when he/she intentionally or negligently acts unlawfully or wrongfully. Driving a vehicle in contravention of the traffic regulation in the emergency lane is an unlawful or wrongful act on the part of the plaintiff and it amounts to an offence. Therefore, the plaintiff’s counsel’s submission is not persuasive and falls to be rejected.

Findings: The plaintiff's act of driving a vehicle not authorised to drive on the emergency lane constitutes an offence of reckless and/or negligent driving of a motor vehicle which offence was committed in the presence of the defendant. The plaintiff committed an offence of reckless and/or negligent driving, impersonating the police, failure to obey the police instructions and negligent handling of a firearm in the presence of the defendant in compliance with section 40(1) (a) of the Act. In the premises, the defendant proved on the preponderance of probabilities that the arrest of the plaintiff was lawful.

Order: The plaintiff’s claim is dismissed with costs.

Facts and issue: The plaintiffs instituted an action against the Minister of Police, National Commissioner of Police, Provincial Commissioners of Police, and National Director of Public Prosecution (defendants). The plaintiffs claimed delictual damages from the defendants based on the same cause of actions, namely, unlawful arrest and detention, together with malicious prosecution. The arrests of the plaintiffs were effected without warrants. The plaintiffs were charged with murder.

Discussion: The plaintiffs’ counsel submitted that the first plaintiff was detained for 311 days, the second plaintiff was detained for 349 days, the third plaintiff was detained for 331 days, the fourth plaintiff was detained for 352 days and the fifth plaintiff was detained for 351 days. The defendants submitted that the captain and other police officers who arrested the plaintiffs had a reasonable suspicion to arrest since the plaintiffs had been appearing on the list of suspects. According to the captain, he arrested the first and third plaintiff because their names were on the alleged list of suspects which was posted in the charge office notice board. The captain’s evidence was that he does not know how the branch commander prepared the list of suspects and further that he did not interview the author of the alleged list of suspects. The police officer should have a reasonable suspicion that a suspect committed an offence referred in Schedule 1. One may pose a question whether the names in the alleged list of suspects justified an arrest without a warrant, specially, when the list was prepared by a different person who did not personally arrest the suspects and did not disclose how the list was prepared.

Findings: The branch commander who prepared the list of suspects should have given his evidence and prove how did he prepare such list of suspects, to assess whether the suspicion was objective to warrant an arrest without a warrant. Since the branch commander has not been called to give his evidence and the alleged list of suspects was not discovered, such evidence remains hearsay evidence, such evidence remains inadmissible. The court finds that the arrest and detention of the plaintiffs without a warrant of arrest was unreasonable and unlawful.

Order: The defendants are ordered to pay an amount of R1,000,000 to each plaintiff, for unlawful arrest and detention, jointly and severally the one paying the other to be absolved. The total amount to be paid to all five plaintiffs is equal to R5,000,000.