TODAY'S ALERTS

Facts and issue: This is an application for an interim interdict brought on an urgent basis pending the final adjudication of the relief sought in part B of the application. Media 24 concluded three sale of business agreements. The Commission approved the intermediate merger subject to certain conditions. The applicants case is that the Commission made a decision to approve a transaction which approval constituted a fundamental reviewable misdirection in that it had failed to properly assess both the competition and public interest implications of the notified transaction as a composite strategy and hence failed to apply the broader merger decision making process as required in terms of the Competition Act 89 of 1998.

Discussion: The applicants contended that the notified transaction was merely one component of Media's comprehensive strategy, which included the closure of several printed titles and the transition to digital platforms. They argued that the Commission failed to assess the full competitive and public interest implications of this composite strategy, particularly concerning employment and the sustainability of rival newspaper publishers dependent on "On the Dot" for distribution. The respondents countered that the merger notification was limited to the sale of specific businesses and did not encompass the closure of other titles or the transition to digital platforms. They maintained that the Commission's approval was based on the transaction as notified and that the broader strategic decisions of Media 24 were beyond the scope of the merger assessment.

Findings: To the extent that there remains a market for the print media and in particular with reference to the possible jeopardy to the poorer segment of the consumer market which does not have access to digital, there are two responses. In the first place no evidence was provided in this regard by the applicants. Secondly, there was evidence placed before court by the respondents to the effect that access to information by way of the digital mechanism is far cheaper than the costs of purchasing newspapers. There is not a sufficiently closely related link between the migration and the sale of On the Dot and the community newspapers to justify any of the variations of the theme of a composite transaction proposed by the applicants. Once, as this court has found, that the migration decision must be considered to be a separate commercial decision taken by seventh respondent, the competition authorities merger jurisdiction is not triggered in this case. No merger as advanced by applicants had taken place.

Order: The application is dismissed with costs.

Facts and issue: The appellant was convicted in the Magistrate Court on one count of murder. The allegations were that the appellant did intentionally and unlawfully kill the deceased. He was sentenced to 10 years imprisonment. The appeal is against the conviction only. Counsel for the appellant argued that the confessions made were not made freely and voluntarily. The first question to answer is whether indeed these statements were a confession. The second question to answer is whether the statements were made freely and voluntarily.

Discussion: Sergeant Kekana testified that on the day in question was on a stand-by. He received a call from the police station that he must attend a murder scene at Extension 5. Upon arrival at the scene, he found a corpse wearing a cap. Later he received a call from Constance who is the family member of the deceased. Constance informed him that they had found the person who stabbed the deceased and gave him the address. She requested him to come urgently as the community was in uproar and wanted to take the law into their hands. He arrested the appellant and took him to the police station. Section 217 of the Criminal Procedure Act 51 of 1977 provides that a confession shall be done before a Magistrate or Peace Officer and be reduced in writing and these statements were not. The court a quo correctly found that these statements were admissions and not a confession. It was an issue in the court a quo as to whether the appellant made the admissions. The appellant denied having made the statements. On several occasions it was put to the state witnesses that the appellant denies having made those admissions. It was put to Sgt Kekana that apart from denying having made the admissions the appellant also denies to have made a point out. This part of the evidence by the State was never broken down.

Findings: The appellant cannot deny having made those statements and in the same breath say that they were not made freely and voluntarily. How else would the above State witnesses know about the cigarette, the quarrel and the knife if the appellant did not mention it to them. The court a quo quite correctly made a finding that indeed the appellant made those statements. Having made a finding that the appellant made those admissions and the court a quo, therefore, could not deal with the issue of free and voluntariness of those admissions. The court a quo has weighed all the elements that points towards the guilt of the accused against those which are indicative of his innocence. It has considered taking proper account strength and weaknesses, probabilities and improbabilities on both sides. Having done so, it found that the balance of probabilities weighs in favour of the State to the exclusion of any reasonable doubt of the accused's guilt. The court a qou therefore concluded that the only reasonable inference to be drawn from all the evidence before it, which included circumstantial and viva voce evidence, is that the appellant killed the deceased during the period 25 - 27 November 2017, by stabbing him with a knife.

Order: The appellant's appeal against the conviction is dismissed. The conviction of the appellant by the court a quo is confirmed.

Facts and issue: This is an appeal against conviction and sentence imposed by the Regional Court. The appellant who was legally represented in the court a quo, was arraigned on a charge of attempted murder, and sentenced to five years imprisonment. The conviction of the appellant flows from the incident that where the appellant unlawfully and intentionally attempted to kill the complaint by shooting him with a firearm. It is common cause that the firearm used for shooting the complainant is a legal firearm belonging to the appellant. The appellant pleads that he acted in self-defence.

Discussion: In rejecting the evidence of the appellant, the trial court found that the appellant contradicted himself and the video footage, and further that some of the aspects were not put to one of the witnesses named Mr Ndou. The court further held that the overwhelming evidence shows that the appellant was not attacked by the complaint, or a group of people, but that he was attacked by Keano and Junior, because according to the evidence of Mr Ncube, the complainant was about eight metres away from the appellant when Keano was fighting with the appellant. The court further held that when the appellant fired the first shot, he was on his haunches, and the people around ran away. The appellant stood up and went closer to the complainant and shot at him while standing. The complainant was alone at the time. The totality of the evidence shows that the appellant was the only person in possession of a firearm.

Findings: The learned magistrate evaluated all the evidence before her and considered the probabilities and improbabilities inherent in the case. Having given proper and due consideration to all the circumstances, the trial court did not misdirect itself in convicting the appellant. The learned magistrate did not misdirect herself in concluding that the appellant's version is not reasonably possibly true. The State proved its case against the appellant beyond any reasonable doubt. The trial court considered all the factors when imposing the sentence appealed against. This court cannot fault the decision of the sentencing court, nor can it be said that the sentence imposed was shocking or unjust.

Order: The appeal against conviction and sentence is dismissed.

Facts and issue: This is a special review in accordance with the provisions of section 304(4) of the Criminal Procedure Act 51 of 1977 from the Magistrate’s Court. The accused was charged with allegedly driving a motor vehicle on a public road whilst under the influence of intoxicating liquor or a drug having a narcotic effect. The accused was furthermore charged with an alternative charge, to wit that he is guilty of driving a vehicle whilst the concentration of alcohol in his blood exceeded the legal limit.

Discussion: The plea does not admit all the elements of the charge. There is no indication that the accused consumed alcohol prior to being stopped at the roadblock. There is no indication if the alcohol consumption influenced the skills and abilities of the accused to drive the motor vehicle like an ordinary driver would. The accused stated in paragraph 4 of the s 112(2) statement that at the time of committing the offence of driving under the influence he was in his sound and sober senses, which is clearly inconsistent with a plea of guilty on the said charges. In paragraph 6 of the said statement the accused admits to the s 212 Statement being handed into court as an exhibit. It however appears as if no such statement was received as an exhibit. Even though a plea to the alternative count was not recorded, some of the admissions in the s 112(2) statement refers to the drawing of blood at the hospital and that the blood was drawn within the prescribed two hours period, being a clear indication that these elements refer to the alternative count.

Findings: The State accepted the plea of guilty in respect of the main charge put to the accused. However, the alternative charge was also put to the accused and no plea was recorded in respect of the alternative charge and there is no indication that the said charge was indeed withdrawn by the prosecution. The plea of guilty is not in accordance with justice. No mention is made in the s112(2) statement that the accused had indeed consumed alcoholic beverages prior to being stopped at the roadblock nor is there any indication by him that he was driving the vehicle while under the influence of intoxicating liquor or drug having a narcotic effect upon him. The accused did not admit all the elements of the offence on the main or alternative counts.

Order: The conviction and sentence are set aside. The matter is remitted to the Magistrate’s Court to commence de novo before a different presiding officer.

Facts and issue: The appellant was charged in the Regional Court with 8 counts of contravening section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (SORMA) and the Criminal Law Amendment Act 105 of 1997 (CLAA). The State averred that the appellant unlawfully and intentionally committed repeated acts of sexual penetration with both victims by inserting his penis into their vaginas without their consent and by further inflicting grievous bodily harm on them. The appellant was sentenced to eight life terms for the eight counts he was convicted of. The appellant appeals against the conviction and sentence.

Discussion: The evidence against the appellant was overwhelming. The appellant was naked with his face covered and entered the room where the victims were sleeping. The appellant threatened KPL & GPJ that he would kill them by stabbing them. The instrument that was to be used to this end was unknown. The appellant proceeded to rape GPJ and thereafter went over KPL and raped her. At all times the appellant was stabbing them with an unknown sharp object. The appellant raped both victims interchangeably repeatedly while stabbing and piercing them with a sharp object. This constituted 8 counts of rape in the view of the State. The appellant was having sexual intercourse with GPJ. KPL then escorted GPJ out. The appellant attempted to escape through the window that he entered but Matlhoafela circumvented this. The appellant however fled via the door naked into the nearby bushes, leaving behind his shoes, outside the window that he had entered. The appellant also left behind his trouser and identity document. The evidence of GPJ corroborated the material evidence of KPL. Significantly, both victims confirmed that they had been raped repeatedly.

Findings: The factual finding that the appellant raped the victims repeatedly (more than once) is unassailable. The further factual finding by the court a quo that the appellant pierced the victims ‘with an unknown object which caused injuries to their bodies’ is similarly unassailable. The order of the court a quo in convicting the appellant of eight counts of contravening section 3 of SORMA, however, constitutes a serious misdirection, which resulted in a resultant misdirection on sentence. The conviction of the appellant on the 8 counts of contravening section 3 of SORMA undoubtedly impugns the principle of duplication of convictions. The appellant should have been convicted on counts 1 and 5, of two counts of contravening section 3 of SORMA read with section 51(1) and Part I of Schedule 2 of the CLAA. The appellant should have been acquitted on counts 2 to 4 and 6 to 8. It follows axiomatically that the life terms imposed on counts 2 to 4 and 6 to 8 stand to be set aside.

Order: The appeal against conviction is upheld. The order of the court a quo is set aside and replaced. Counts 2 to 4; and counts 6 to 8: Acquitted (duplication of convictions). Counts 1 and 5: Guilty. The sentence of the court a quo on counts 2 to 4 and 6 to 8 is set aside. The sentence of life imprisonment on counts 1 and 5 is confirmed.

Facts and issue: This is an appeal against the granting of the respondent's bail by the magistrate in the Magistrates court. Mr. Ngobeni was arrested and charged with serious offenses, including murder and armed robbery. During his bail application, he presented a medical certificate alleging a severe illness requiring specialized treatment, which he claimed was unattainable in custody. Additionally, Ngobeni's defense introduced DNA evidence and raised concerns about potential identity fraud, suggesting that the individual in custody might not be Ngobeni but his biological brother. Despite these submissions, the magistrate granted bail. The Director of Public Prosecutions (DPP) appeals this decision, arguing that the magistrate erred in granting bail given the gravity of the charges and the flight risk. The primary issue is whether the magistrate had appropriately exercised discretion in granting bail to Ngobeni.

Discussion: At the initial bail application of the respondent, the health condition of his minor child who is 4 years old suffering from Down Syndrome was not a subject for determination. The respondent raised this aspect for the first time at his bail hearing on new facts and indicated that the child is extremely ill. The second wife of the respondent indicated that the condition the child is suffering from, the child was diagnosed with it before the arrest of the respondent, an aspect which was confirmed by the respondent himself. The child was before the incarceration of the respondent cured for by the traditional healer and raised the point that his medical aid is no longer in use because of the money he owes to the medical aid scheme. It is not known why this aspect was not raised at the initial bail hearing. The presiding magistrate deemed this aspect as constituting new fact or circumstances and used it as one of the reasons to permit the respondent to bail.

Findings: The respondent's health since his incarceration deteriorating is a new fact, but the presiding magistrate ignored evidence before him when determining this aspect. Inmates are given medication on daily basis and there is a constant check on their vital signs. In cases of complex chronic conditions, inmates are referred to a public hospital. The presiding magistrate misdirected himself when releasing the respondent on bail and ignored evidence before him. All the properties the respondent is alleging to be belonging to him, are all registered under his life partners names, vehicles are registered under their names and all the properties are purchased for cash.

Order: The appeal is upheld. The respondent is ordered to immediately surrender himself for detention to the Investigating Officer at Khutsong and/or Carletonville Police Station.

Facts and issue: The applicants seek an order declaring the conduct of the respondent of evicting the applicants from their homes and demolishing the dwellings or structures they erected on the vacant land without a valid or lawful court order to be unlawful, invalid and inconsistent with the Constitution and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. The occupiers do not dispute that the Municipality may institute proceedings for purposes of evicting illegal occupiers and demolishing their structures, but contend that the Municipality in casu, failed to do so, which consequently renders its conduct unlawful. They contend that the attempt by the Municipality to rely on the 2019 order does not justify the alleged unlawful eviction of the occupiers of the property and the demolition of their dwellings and/or structures.

Discussion: The occupiers of the property contend that the 2019 court order did not apply to the occupiers of the property in 2022, as they were not part of that group; and makes no reference to potential occupiers and/or future occupation. The structures erected on the property were demolished by the Municipality on 22 August 2022. The occupiers of the property maintain that the structures which they called home were occupied (resided in) at the time. The Municipality, however, contends that the structures were unoccupied. Photographic evidence adduced by the occupiers of the property purport to portray structures that they maintain were demolished, with signs of habitation. The structures were demolished by the Municipality, relying on the 2019 order. There are several patent problems with the reliance of the Municipality on the 2019 order. The 2019 order specifically cited “Unlawful Invaders of Remaining Portion 1 of the Farm Town and Townlands of Rustenburg 272JQ”. On the version of the Municipality, the remaining portion covers several pieces of municipal land in the Rustenburg and not only the land the occupiers of the property claim to have occupied.

Findings: There is no evidence with accompanying proof that any of the occupiers of the property were part of the unlawful invaders as envisaged in the 2019 order; and even if they were how service of the 2019 order reasonably would have come to their attention. The Municipality very broadly alleges that the 2019 order included all other members of the community (society). The tenet of the 2019 order is clear. It addressed conduct which was extant at that time. The unlawful invaders (not occupiers) were interdicted from taking possession of the unoccupied structures or to reside in same. The Municipality adduced no evidence that the 2019 order was enforced at the time it was granted. The occupiers of the property have established a case for the relief sought.

Order: The conduct of the respondent in evicting the applicants from their homes and demolishing the dwellings and/or structures they erected on the vacant without a valid or lawful court order is declared unlawful, invalid and inconsistent with section 26(3) of the Constitution of the Republic of South Africa, 1996; and the PIE Act 19 of 1998. The respondents are directed to restore the applicants’ possession of the property and to construct suitable dwellings for the applicants on the property within 30 days of the order of court.

Facts and issue: This is an opposed urgent application in terms of which the applicants, who are Bangladeshi nationals, seeks interim relief to urgently suspend the Form 23 notices and to interdict the respondents from initiating any process to detain and/or deport and/or order the applicants to depart from the Republic of South Africa, until each applicant has had the opportunity to lodge an application for asylum in terms of section 21(1)(b) of the Refugees Act 130 of 1998 and until such time that each of the applications have been determined on its own merits. The applicants claim that they left their home country in fear of their lives due to political unrest. The central issue concerns the rights invoked by the applicants to apply for asylum in terms of Section 21(1)(b) of the Refugees Act. The respondents argued that the applicants have not lodged good cause applications. They submitted that the applicants have failed to invoke asylum as prescribed.

Discussion: The applicants all have valid Bangladesh passports. They all provided a transparent explanation of their commute to South Africa by air and they all ultimately ended up in Swellendam where they resided and worked. The Department of Home Affairs (DHA) official, Mr Mngxekesa, issued each of the applicants with a Form 23 Notice (the notices) which were issued in terms of section 33(4)(c) of the Immigration Act. The applicants attended the Refugee Reception Office to present their Notices. They were informed that they could not apply for asylum because their notices were completed in such a manner that did not allow the applicants to apply for asylum. Once an illegal foreigner has indicated their intention to apply for asylum, they must be afforded an opportunity to do so. It is therefore manifest that a delay in expressing that intention is no bar to applying for refugee status.

Findings: A delay in applying for asylum does not disqualify the applicants from applying for asylum. It is unambiguous that until an applicant’s refugee status has been finally determined, the principle of non-refoulement protects the applicants from deportation. Whilst the applicants may be criticised for the delay in actioning their intent to seek asylum, it is evident that they have a prima facie right to apply for asylum. Unless and until their refugee status has been finally determined, the principle of non-refoulement protects the applicants from deportation, whether they have a review challenge to the Form 23 notice or not. Having found that the applicants have established a prima facie right, it follows that if they were to be deported, there exists a well-grounded apprehension of irreparable harm. This is so because they assert that because of the political conflict and instability in Bangladesh, their lives are at risk. There is nothing on record to gainsay this assertion and therefore, the court is to accept that there is a danger that the applicants will suffer irreparable harm.

Order: The applicants are granted interim interdictory relief.

Facts and issue: The applicant, Mr. Orie, a Nigerian national, entered South Africa through an unauthorized port of entry, seeking asylum due to alleged persecution in Nigeria. He was issued a temporary asylum permit, which was extended multiple times until 2023, when further extensions were unsuccessful. Mr. Orie was arrested for failing to produce a valid permit and detained. Subsequently, the Magistrate's Court ordered his transfer to a deportation facility, leading to his detention pending deportation to Nigeria. He filed a judicial review application in the High Court, challenging the rejection of his asylum application. The applicant seeks that the respondents be interdicted from deporting him until his status has been lawfully and finally determined; that his continuing detention be declared unlawful; and that the respondents be directed to release him from detention.

Discussion: It is the applicant’s claim that he cannot be deported to his country of origin because he remains an asylum seeker as his refugee status has not been finally determined. In support of this supposition, the applicant relies on section 2 of the Refugees Act 130 of 1998 which he contends protects aspirant asylum seekers, like him, from deportation to the country of their origin where they may be subjected to persecution. In defending himself against the imminent deportation by the respondents, the applicant invokes the principle of non-refoulement. He alleges in his papers that even though his application for asylum was rejected, his refugee status has not been fully finalised because he has not exhausted all his remedies. The law as it stands is that until an applicant’s refugee status has been finally determined, the principle of non-refoulement protects her/him from deportation.

Findings: The relief sought by the applicant not to be deported at this stage, holds sway. There is ample, uncontroverted evidence, that points to the fact that the applicant’s refugee status has not been finally determined. He is protected by the principle of non-refoulement from deportation until the process for determining his status has been completed. There is no relief sought on the papers against the order of the Magistrate Court which confirmed the status of the applicant as an illegal immigrant and further ordered his detention and eventual deportation. Which means that the applicant is detained in terms of a valid court order. Even if such relief had been sought, this court, as constituted, has no authority to set that order aside.

Order: It is declared that the applicant is, in terms of section 2 of the Refugees Act 130 of 1998, entitled to remain lawfully in the Republic of South Africa. The respondents are ordered to refrain from deporting the applicant until his status has been determined and finalised.

Facts and issue: The subject matter of this appeal is a medical negligence claim arising from the conduct of medical staff employed by the appellant, the MEC, before and/or during the birth by the respondent, Ms S, of her child, SS, at the St Barnabus Hospital. Ms S instituted the claim on behalf of SS, who is a minor. The trial court absolved the MEC of liability. Ms S’s appeal to the full succeeded, and the MEC was ordered to pay such damages as are proven consequent on the hypoxic ischaemic encephalopathy and brain injury sustained by SS as a result of the medical negligence of the medical staff. The MEC was granted leave on petition to appeal the full court’s order and judgment.

Discussion: The experts’ opinion that the cerebral palsy was caused by undetected foetal distress due to sub-standard foetal heart rate monitoring was nothing more than an opinion. The court was not bound by it. What it was required to do was to consider that opinion as part of the full body of evidence before it. Instead, the full court misdirected itself by placing undue reliance on the joint opinions of the obstetricians and paediatricians in concluding that causation was established. The most obvious misdirection by the full court its failure to factor into its analysis of the facts, the catastrophic ‘crashing’ of Ms S at the commencement of the caesarean. By all accounts, this placed Ms S’s life in danger and must have severely compromised the blood, and hence oxygen flow, to SS. Aligned with this uncontested evidence, was that of the radiologists, which identified the cerebral palsy as having resulted from an acute profound hypoxic ischaemic injury, rather than a partial, prolonged injury. It was not in dispute that the former type of injury is associated with a sentinel event. Consequently, the reasonable possibility is that the sentinel event that ultimately caused the brain injury was Ms S’s adverse reaction to the spinal anaesthetic.

Findings: There was no evidence to support the conclusion that proper monitoring prior to the operation would have averted the brain injury. The opinion of the experts, which was endorsed by the full court, assumed that had there been proper monitoring to identify ongoing foetal distress the caesarean would have been performed at 21h34 or soon thereafter. However, this assumption ignores the evidence that was before the court. When Ms S was first examined at 21h34 the only doctor at the hospital was unavailable because she was in theatre with another patient. For obvious reasons, it was never suggested that the nurses who examined her could have made the decision that a caesarean section was necessary and, without the say-so of Dr Madikane, put that process in motion. There was a demonstrable misdirection on the part of the full court in assessing the prospects of success of Ms S’s appeal. It failed to consider the total body of evidence in reaching the conclusion that causation had been established. Accordingly, its decision to refuse to strike the appeal from the roll because of the prospects of success cannot be justified. The full court ought to have refused condonation and re-instatement of the appeal and struck it from the roll.

Order: The appeal is upheld with costs. The order of the full court is set aside and replaced. The appeal is struck from the roll with costs.