TODAY'S ALERTS

Facts and issue: Urgent application instituted by the applicant against the respondent, that the respondent be held to be in contempt of certain orders of the court and sentenced to a term of direct imprisonment. Four orders were granted against the respondent which him to be in contempt of same. Following his dismissal by the applicant, the respondent embarked on a crusade with the sole intent of causing harm and damage to applicant's business.

Discussion: It is common cause that the order and the previous order to that order were granted. Further, these orders, once granted, were received by the respondent and came to his attention. In the premises, the first two requisites of contempt, namely the order and service or notice, have been proved by the applicant beyond reasonable doubt. The most damning fact that weighs against the court finding that the respondent did not act in contempt of the relevant provisions in the order, incorporated into the previous order, is the unambiguous and straight-forward language used therein, together with the simple meaning conveyed thereby. In terms thereof, the order clearly provided that the respondent was interdicted and restrained from writing and distributing any correspondence which related to or concerned the applicant. As to non-compliance, it was submitted, on behalf of the applicant, that the respondent had committed no less than 15 transgressions of the orders.

Findings: The respondent has acted in contempt of the court orders. Considering the undisputed evidence of the applicant, the non-compliance by the respondent was both wilful and mala fides. The transgressions were wilful in that the respondent knew both orders were “designed” to protect the business interests of the applicant and to restrain and interdict the respondent's unlawful actions. As to mala fides, the contents of the correspondence referred to by the applicant and placed before the court, clearly reflect the respondent's intention to damage the applicant's business interests or force the applicant to act to its detriment by increasing its offer to purchase the respondent's 40 percent shareholding in the applicant. The applicant has proven, beyond reasonable doubt, that the respondent is in contempt of court orders.

Order: The respondent is in contempt of the orders of this honourable court. The respondent is committed to imprisonment for a period of 30 days.

Facts and issue: Application for an extension of the period of suspension of the declaration of invalidity, following the court’s decision in Women’s Legal Centre Trust v President of the Republic of South Africa [2022] ZACC 23. The court handed down an order that declared the Marriage Act 25 of 1961 and the Divorce Act 70 of 1979 inconsistent with sections 9, 10, 28 and 34 of the Constitution, in that they fail to recognise marriages solemnised in accordance with Sharia law (Muslim marriages). The court also declared sections 6, 7(3) and 9(1) of the Divorce Act inconsistent with the Constitution.

Discussion: Parliament submitted that the reason for the extension sought is to ensure that there is meaningful public engagement in respect of the Marriage Bill, in accordance with sections 59(1)(a) and 72(1)(a) of the Constitution. It also submitted that it is just and equitable for the extension to be granted, to allow Parliament to cure the constitutional defects. Parliament has sufficiently indicated the steps that have been taken, and the timelines cannot be faulted. Parliament has also managed to comply with the order in relation to the Divorce Amendment Act. It is worth noting that the first respondent, who was the applicant in the initial judgment, did not oppose this urgent application, nor did any of the other parties. Additionally, Parliament has implemented temporary measures to regulate affected marriages while the Bill undergoes the prescribed legislative process. This suggests that there will be no prejudice suffered.

Findings: Parliament has sufficiently explained the adverse implications of not granting an extension on its constitutional obligations to provide a meaningful platform for public participation. The Constitution recognises participatory democracy as a vital element of South Africa’s democracy. In the new term, Parliament will comprise new members. Some of them will require time to familiarise themselves with the Parliamentary rules and procedures governing the law-making processes as well as with the subject matter of the Bill, considering its complexity in as far as the laws governing various traditional and religious faiths are concerned. It is just and equitable, and in the interests of justice, for the extension to be granted.

Order: The extension is granted.

Facts and issue: The applicants are aggrieved by an adverse credit listing recorded against them by the respondents (Credit Bereau) in the credit database. They seek that the submission of the consumer credit information, which resulted in the recording of an adverse credit listing, be declared invalid, unlawful, alternatively unconstitutional. Further, that the respondent be ordered and directed to expunge the adverse credit listing from its records without delay.

Discussion: On behalf of the applicants, it was contended that the Credit Bereau approached the matter from a wrong point of view and misconceived the applicant’s case. It was submitted that the inquiry did not start with section 72(1)(c) but 70(2)(c) of the National Credit Act 34 of 2005. The credit bureau had to satisfy itself that the credit provider properly informed the applicants, as consumers, before the adverse credit consumer information was reported or reflected on their credit profile. There was no evidence that the Credit Bureau took reasonable steps to verify that the credit provider informed the applicants before the adverse credit information was reported to it. The Credit Bureau would not have published the information had it taken reasonable steps to verify its accuracy, it was contended. It was argued on behalf of the Credit Bureau that the applicants’ recourse to the courts was premature as they should have first exhausted domestic remedies provided for by the Act. The second preliminary point is that the first applicant deposed to an affidavit on behalf of the second to the seventh applicants and acted on their behalf even though they did not share a consumer credit profile.

Findings: The Credit Bureau failed to satisfy the threshold requirements in section 70(2)(c) of the NCA. The first special plea is meritless and stands to be dismissed. It is not required that the Commissioner and the deponent must initial every page of an affidavit. The third and fourth points in limine are also meritless and stand to be dismissed. The applicants’ constitutional rights were violated when the adverse credit information was published. They sought the appropriate remedy to enforce their rights. When the application was launched, the legal question persisted as a live issue. It would, therefore, be unfair and improper to suggest that the matter was no longer relevant as it involved legal questions of a constitutional nature having significant policy implications. The applicants were entitled to approach the court for the necessary relief.

Order: The relief sought by the applicant is granted.

Facts and issue: The appellant was arraigned in the Regional Court on one count of rape. He pleaded not guilty to the charge and denied all the allegations levelled against him. However, despite his not guilty plea, he was convicted as charged and sentenced to life imprisonment. The appellant is appealing against both conviction and sentence.

Discussion: Warrant Officer Rambau, the forensic analyst, testified that the DNA which was obtained from the semen found on the vaginal swabs of the complainant does not include the appellant. His conclusion was that the DNA found deposited in the complainant’s vagina did not belong to the appellant. The presiding Regional Court magistrate his memo after taking further evidence, still stands by his conviction. His justification of the conviction is based on the four scenarios given by Rambau, which according to him the possibilities still exists that the appellant had committed the offence. The approach of both the regional court magistrate and the State is flawed. What they have failed to take into consideration is that it is the duty of the State to prove the guilt of the accused beyond reasonable doubt, and there is no duty upon the accused to prove his innocence. What Rambau did was give the four scenarios which, according to his experience, can made it difficult to find the DNA of a suspect despite there being a vaginal penetration. He did not link any scenario to the appellant. An accused cannot be convicted based on speculation and suspicion.

Findings: The prosecution had failed to link any of the scenarios to the appellant, the court a quo should have found that the balance weighs so heavily against the prosecution as to exclude any reasonable doubt about the appellant’s guilt. The appellant should therefore have been given the benefit of doubt as the prosecution has failed to prove his guilt beyond reasonable doubt. The court a quo has therefore misdirected itself in convicting the appellant.

Order: The appeal is upheld.

Facts and issue: The applicants launched an application for reconsideration of the interim order granted in favour of the first respondent (Fleurhof). The applicants (occupiers) were interdicted from invading the property. Occupiers are also seeking a mandamus against the sixth respondent (“CoJ”) to provide a temporary emergency accommodation and have brought an application for irregular proceedings against CoJ for having appointed two firms of attorneys who filed notices to oppose reconsideration application.

Discussion: The occupiers contend that ordinarily and in accordance with the principle of audi alteram partem another party to the lis must always be accorded a right of hearing and reply before an order is granted. Fleurhof had all the contacts of the occupiers and occupiers’ attorneys it was therefore disingenuous to depose to an affidavit stating that it was not possible to serve the papers on the occupiers alternatively that Fleurhof did not know how or where to serve the occupiers, so went the argument. The court should frown upon the Fleurhof’s conduct in this regard. Reference was made of a return of service of the court order obtained by one of the occupiers, Olga, against Fleurhof which was served on Fleurhof and as such Fleurhof cannot argue that it was not aware that service could be on the occupiers or their legal representatives. The only reasons advanced by Fleurhof that ex parte application was warranted is that the occupiers refused to cooperate and provide their details and were already removed from the properties hence could not be served at the properties. Proceeding by way of ex parte is not justified.

Findings: The real right which has been demonstrated by Fleurhof has to give way to the exercise of the rights available to occupiers and to this end the relief sought would not have been granted. The efforts of Fleurhof were to obtain an order to sanitise their conduct of evicting occupiers who appear to have taken occupation of the properties. In terms of the doctrine of the unclean hand’s principle, Fleurhof would not be entitled to the relief sought in these papers. The application launched by Fleurhof is bound to fail as it did not satisfy the requirements for an ex parte applications and the requirements for an interdict were also not satisfied. The irregular proceeding instituted by the occupiers has merits but since the cause for the complaint has been removed by the withdrawal PG Matsheka as attorneys of record the occupiers are entitled to cost order against CoJ.

Order: The order granted ex parte against the respondents (Unlawful Invaders) in their absence by is reconsidered. The application is dismissed with costs.

Facts and issue: The applicant launched a Rule 43 application requesting extended contact with the minor children. The applicant also asks for an order that neither party be allowed to remove the minor children from the Gauteng province without the other party’s prior written consent. The parties are currently separated and involved in divorce litigation. Two minor children, aged 8 and 9, were born from the marriage. The applicant states that his contact was unreasonably restricted by the respondent, with limited sleepover and holiday contact.

Discussion: Matters were further complicated when the applicant began his relationship with his new partner. The applicant avers it was the news of his partner’s pregnancy that triggered the respondent into refusing meaningful contact between the applicant and the minor children. An order by agreement was made in the urgent application, and the applicant spent a few days with the children. After that, the respondent continued restricting the applicant’s contact with the children. After the birth of the applicant’s new baby with his new partner, the respondent indicated that she wished to relocate to Gqeberha with the minor children due to financial considerations. She just informed the applicant of same, she did not discuss it or request consent. The applicant does not think this will be in the children’s best interest, as the applicant resides in Gauteng and their support structure is in Gauteng. The principle of the child's best interest is always paramount.

Findings: Getting a family advocate involved in this stage is not warranted. Apart from the father’s alleged failure to support the children in their homework activities, there is nothing to suggest that the applicant cannot care for the children as he proposed. The children require structure, routine, and predictability in their lives. Structured contact should be visually indicated, indicating the days and times that the children will be with the applicant. This will assist the children in predictability and stability and, possibly, the transition from one household to the other. The respondent should remember that the applicant has the same rights and responsibilities and that if she wishes to relocate outside the province, it is not a decision she can unilaterally make.

Order: The applicant is granted extended contact with the minor children as structured by the court. Neither party is allowed to remove the minor children from the Gauteng Province without the other party’s prior written consent.

Facts and issue: Rule 43 Application where the applicant seeks that the court gives effect to the recommendations of the Family Advocate. The applicant further seeks a contribution of R20,000 as against the respondent under Rule 43 for a contribution towards his legal costs. This contribution is sought on a once off basis and as a punitive measure against the respondent. The respondent has also raised a counter claim against the applicant for maintenance for the minor children and a contribution towards her legal costs in the sum of R30,000. There are 3 minor children born of the marriage.

Discussion: The financial position of both parties has not been extensively dealt with, and it is difficult for the court to properly assess the affordability for maintenance. The parties are exceptionally acrimonious towards one another, which is unnecessary and undesirable. What is of concern, is that H (minor child), has been removed from formal attendance at school to memorize the Quran. Whilst this is common in the Muslim community as stated by the respondent in her replying affidavit, it does not give effect to section 7(1)(h) of the Children's Act 38 of 2005, in that H is being denied intellectual and social rights, albeit that her cultural rights are being pursued. It was conceded on behalf of the applicant that he has no difficulty if H is at least enrolled in a registered home-schooling program. Since she has not attended school for many months, and has fallen behind her peers, which would cause her embarrassment were she to return, the parties deem that this is appropriate.

Findings: Regarding the issue of interim maintenance for the minor children, it is clear that there is dire need for same to be awarded. The counter claim on behalf of the respondent appears uncontested owing to various technicalities argued on behalf of the applicant. However, the applicant retains the financial means to provide for some form of maintenance as the historical breadwinner, even on the scant financial disclosure provided by him. It was also argued on behalf of the applicant that he has no difficulty in ensuring that the minor children’s educational needs are met. Punitive costs must ultimately be claimed at the finalisation of the trial proceedings, as Rule 43(1)(b) does not contemplate a punitive costs order in any event.

Order: Pending any further assessment provided for in (d) supra, H is to be enrolled for home schooling at the commencement of the next applicable school term. The applicant is directed to pay the respondent the sum of R3,500 per month per child. The parties’ respective claims for legal contributions are dismissed.

Facts and issue: The respondents have been engaged in a protected strike. The applicant alleges that the strike has turned violent and seeks an order interdicting violence and misconduct. The applicant sought final relief but asked the court to grant it interim relief if the requirements for final relief are not satisfied. The respondents are non-unionised employees of the applicant.

Discussion: The respondents do not dispute that the acts of violence and intimidation have occurred. They simply state that they did not participate in the violence or intimidation and, therefore, no interdict may be granted against them. The real question is whether the applicant can demonstrate that the respondents are directly or indirectly responsible for the threats, intimidation, or assault of non-strikers. There must be a factual link between an individual respondent and the actual or threatened unlawful conduct. A link may be established between an individual respondent and the unlawful conduct where the misconduct is committed by a cohesive group including that individual. The employer must put up facts from which an inference can be drawn that it is more probable than not that the employee engaged in the misconduct or associated with it. The applicant argued that a reasonable inference may be drawn that the acts of misconduct are related to the strike action because of comments made by the perpetrators which suggest they targeted non striking employees. This may be so, but that does not link the perpetrators to all the respondents.

Findings: The applicant has provided no factual basis to apprehend that all two hundred and ninety-four respondents have associated themselves with the perpetrators of the misconduct. The applicant does not present any factual basis on which the court can find that the individual respondents are acting as a cohesive group. Nor is there any basis to accept that any or all the respondents have associated themselves with the misconduct. In the circumstances, there is no basis to grant final relief. No case is made out for interim relief.

Order: The application is dismissed.

Facts and issue: The case was brought before the court with the main intent to appeal the whole judgment and order handed down by the court a quo at the Regional Magistrate court. The appellant’s case against the three respondents was dismissed in its entirety on the ground that the appellant failed to prove her case on a balance of probabilities. It is the appellant’s case that the court a quo failed to appropriately appraise relevant facts and legal principles. Consequently, it arrived at a wrong decision by finding that the appellant did not prove her case under the actio iniuriarm and the actio legis aquiliae causes of action.

Discussion: The appellant was employed as a teacher by the Department of Education. The case relates to the events that led to her dismissal and subsequent general and special damages that she suffered as a result. However, the Department realized its oversight concerning the appellant’s dismissal, retracted the unfair dismissal, and reinstated the appellant. For the appellant, the damages suffered were irreversible. Thus, the appellant instituted civil proceedings against all three respondents for a total sum of R315,161.67 jointly and severally. The appellant’s case makes out her causes of action based on the actio legis aquiliae and actio iniuriarum respectfully, and thus the onus rested on the appellant to prove her case on a balance of probabilities for both causes of action. The legislators did not intend the unfair dismissal remedy to eliminate a party’s civil remedies under the law. As such, the court a quo’s view that “an employer’s statutory duty not to unfairly dismiss an employee is not wrongful in a delictual sense,” should not be narrowly interpreted, in essence, it calls for a wider interpretation.

Findings: It is clear from the evidence presented that the appellant could not have suffered such severe hardship and harm because of the wrongful dismissal in that we are talking about a one-month salary payment that was paid one month late. On the realisation that the dismissal was erroneous and that it should not have happened in the first place, the Department detected and corrected its oversight without any delay. Taking public policy and public interest into account, the appellant’s case cannot be supported in finding the unlawful dismissal to be wrongful in a delictual sense, because doing so would expose public institutions to unnecessary litigation for bona fide mistakes that may creep in from time to time.

Order: The claim is dismissed with costs.

Facts and issue: The applicant is the CEO of the Free State Gambling, Liquor and Tourism Authority. The applicant was called upon by the respondents to attend a disciplinary enquiry in respect of allegations of misconduct against him. The applicant contends that the Free State Gambling, Liquor and Tourism Authority does not have the authority to discipline him as he is the CEO and a member of the board. He contends that he was appointed as CEO of the board by the MEC in terms of s 12(1) of the Public Finance Management Act 1 of 1999.

Discussion: The applicant contends that the board does not have the power to suspend him because the CEO is appointed by the MEC, and he is an ex officio member of the board. Therefore, only the MEC has the power to suspend, discipline and dismiss him or any of the board members as the MEC is the appointing authority. The power to dismiss is the essential corollary of the power to appoint. Hence, the board unlawfully usurped the power and function of the MEC. The executive authority is the MEC and not the board. The board’s power is only limited to employees who are not members of the board. From the interpretation of the relevant sections, it is apparent that the responsible member, namely the MEC, has the power to appoint the CEO. The CEO is a member of the board and s 10(1) makes it clear that the MEC can terminate the term of office of a member.

Findings: Every public entity must have a board or controlling body. In this case, a board exists. The board is the accounting authority for the Free State Gambling and Liquor Authority. The relevant executive authority can only be the MEC. Even if contended by the respondent that the Free State Gambling Liquor and Tourism authority is the employer in terms of the employment contract, it does not negate the fact that the relevant executive authority is responsible for initiating and investigating disciplinary proceedings against the board or its members. The relevant executive authority is the MEC and therefore is solely responsible for suspending and disciplining the applicant. The MEC now has a duty to initiate an investigation into the matter and if the allegations are confirmed, must ensure that appropriate disciplinary proceedings are initiated immediately in terms of s 33.1.3 of the PFMA.

Order: It is declared that the MEC for Economic and Small Business Development, Tourism and Environmental Affairs, Free State Province, is the relevant executive authority who must initiate an investigation into the matter of alleged financial misconduct by the CEO, the applicant; and if the allegations are confirmed, must ensure that appropriate disciplinary proceedings are initiated immediately. The MEC is given 20 days from the date of the order to comply.