CASE LAW UPDATE

Facts: The applicants alleged that they were unfairly dismissed by the respondent (Brand Line Packaging), for reasons related to its operational requirements. The respondent denied that the applicants were dismissed, and instead alleged that they resigned, taking a voluntary severance package. The dispute was enrolled for trial and the notice of set down, sent to both parties, advised that roll call would be held at 09h45 and failure to attend at roll call may lead to the matter being struck off. The judge conducted roll call on the morning. Neither the applicants’ counsel nor the instructing attorneys were in court when the matter was called, though the respondent’s representative was in attendance. The court heard the respondent’s representatives and resolved to dismiss the matter.

Application: The applicants seek to rescind the order and the application is brought in terms of section 165(a) of the Labour Relations Act 66 of 1995 read with Rule 16A(1)(a)(i) of the erstwhile Labour Court Rules. The applicants contended that the court had erroneously dismissed the matter because the notice of set down only warned that failure to attend roll call may result in the dispute being struck from the roll. The notice of set down made no mention that the dispute could be dismissed. The applicants’ representative argued that the notice of set down contained directives issued by the court, and therefore was binding.

Discussion: The order was not erroneously granted. The applicants have failed to prove that the court did not have the competency to grant the order, or was unaware of certain facts which would have led it not grant the order if it had been aware of such facts. The notice was properly served and the applicants (and their representatives) were aware that they were required in court, on time. The notice of set down did not, and cannot, operate to limit the discretion of the judge. The notice is not a directive from the judge, as the applicants contend. The applicants do not state which facts existed which would have led the judge to not make the order – if he had been aware of such facts. Even if the judge was aware that the applicant’s representatives were close to the court, and that the notice of set down made no mention that the claim could be dismissed, this would not have prevented him from making the order which he did. Plainly, there is no error as contemplated in Rule 16A(1)(a)(i).

Costs de bonis propriis: The manner in which the application was brought, and how it was presented, left much to be desired. The applicants presented no case law or support for their central, and rather startling, proposition – that the notice of set down somehow limited the power of the court to dismiss the matter. The applicants’ heads of argument sought to present reasons for the representatives’ failure to arrive at court on time, when this was not foreshadowed in the papers. Prospects of success were addressed, for the first time, in the heads of argument. The applicants’ representative made no attempt to draw the court’s attention to the fact that the replying affidavit was late and, for reasons not explained, condonation was not sought. The founding papers lacked transparency precisely where transparency was required, and in other instances made no sense at all. All of this demonstrated extreme negligence (on the part of the applicants’ representatives) and their callous disregard for the rights of their clients. This kind of improper behaviour can only bring the legal profession into disrepute.

Order: The order was not erroneously made. The application is therefore dismissed, with the applicant’s representatives to pay the costs of the application, including the costs of counsel.

DANIELS J

Facts: The employee was dismissed for breach of PRASA’s supply chain management processes, which included his alleged involvement and role as a member of the Contract Tender and Procurement Committee in the procurement of Diesel-Electric Locomotives Tender which was awarded to Swifambo Rail Leasing (Pty) Ltd. This award of the tender was later set aside by the High Court and the appeal to the Supreme Court of Appeal was unsuccessful. PRASA sought to have legal representation at the CCMA. Counsel for PRASA submitted that the matter was complex because of its history, which involved the employment of two senior counsel and juniors to set aside the tender. Further, he submitted that the award was worth over R3,5 billion and this made the matter even more serious. PRASA considered the matter internally and was of the opinion that it would not be able to deal with the matter because, so the submission continued, PRASA did not have competent officials to deal with a matter of this nature at arbitration. In other words, PRASA’s officials in the labour, human resources and legal departments are incompetent to deal with this matter.

Application: After its unsuccessful legal representation application, PRASA applied for postponement of the arbitration pending the determination of its review application before this court. This postponement application was dismissed, correctly so. PRASA seeks this court’s intervention in the incomplete arbitration proceedings pending the determination of a review application against the CCMA ruling refusing its application for legal representation.

Discussion: The employee in this case is self-representing. That a large State-owned entity claims that it cannot represent itself against an unrepresented former employee in misconduct arbitration proceedings is perhaps a serious indictment of the capabilities, abilities and competencies of PRASA’s personnel in the human resources, labour relations and legal departments. The deponent to the founding affidavit in this matter describes herself as a Group Chief Human Capital Officer. The dispute revolves around the involvement of the employee and his role in the awarding of the tender. The issue is not the setting aside of the tender before a court of law, but the employee’s involvement and role in the irregular tender. It is inexplicable that PRASA’s internal units would contend that they are unable to deal with this matter.

Findings: The threshold to show that it is just and equitable for this court to intervene in uncompleted arbitration proceedings is a stringent one. The alleged complex legal questions raised in the matter are all issues that may be addressed in due course should PRASA seek later to review the award and to subject the commissioner's decisions and the reasons underlying them to scrutiny by this court. PRASA made a blunt statement in its founding affidavit that it cannot run the arbitration “without the assistance of external legal representation”. Well, it must, and it will, or else it risks a default award being taken against it, because it has not shown any exceptional circumstances to warrant the court’s intervention in the uncompleted arbitration proceedings. The test is not whether the applicant, in this case, PRASA, is of the opinion that it cannot deal with the matter internally and therefore desires or prefers to be represented by an external legal representative. The opinion of the litigant is immaterial and of no relevance.

Order: The application is dismissed.

MAKHURA J

Facts: The plaintiff and the first defendant were in a romantic relationship for approximately four months. The first defendant led the plaintiff to believe he was unmarried and proposed to her, and she accepted the proposal. The second defendant later approached her and informed her that she was the first defendant's wife. The plaintiff immediately ended the relationship. The first defendant, however, refused to stop seeing the plaintiff and arrived at her place of employment in the mornings. She sent an attorney's letter requesting that he stop communicating with her. The defendant threatened to send videos he described as "porno videos" to the plaintiff’s attorney. This was followed with a threat to send a video he recorded, of her engaged in sex with him, to her family and friends. He directed her to a Facebook profile that had been created and said he would invite everyone they knew and post the video he had recorded. He sent a clip of a video to her WhatsApp to ensure she saw what the content was. She was not aware that the defendant had been recording intimate images and recordings of them whilst they were together. The fake Facebook profile was indeed created and the plaintiff’s friends, family, and professional colleagues were invited to join this profile. The images and videos were posted on this fake Facebook profile.

Claim: The plaintiff seeks general and special damages against the first and second defendants. The matter comes before court as an application for default judgment. The plaintiff’s claims arise from the creation of an imposter social media profile of the plaintiff, the recording of intimate images of the plaintiff, the non­consensual publication and distribution of intimate depictions of the plaintiff on a fake Facebook account of the plaintiff created by the defendants, as well as communications by the second defendant with various colleagues of the plaintiff and a senior colleague at the company where the plaintiff was employed.

Discussion: The plaintiff was contacted by friends and family who had seen the content. The plaintiff was unable to continue working at the same company. She was embarrassed and humiliated when her family and friends discovered the videos. She was so emotionally distressed that she considered suicide. She suffered from, and has been treated for, the stress and anxiety she experiences. Her evidence indicated that she had received medical treatment for the emotional trauma at a total cost of R50,000. The report of a psychologist offered insight into the plaintiff's trauma. The psychologist indicates the plaintiff resigned from her employment due to the humiliation the defendants' conduct occasioned. This resulted in substantial financial losses for the plaintiff. On a social level, the plaintiff withdrew due to embarrassment and psychological dysfunction. She began to live in fear for her family and her own safety due to information disclosed to her by the first defendant about what he had done to other persons. Her distrust is significant and makes it difficult for her to enter and establish meaningful relationships. This indicates that the infringement has impacted her physical, emotional and mental health so that she has suffered physically, she is unable to continue working, and she does not trust easily.

Findings: The court finds that publishing intimate videos of a person without that person's consent constitutes a recognised form of violence. This intersects with the infringement of the plaintiff's privacy and dignity and the defamation occasioned by the publication. The conduct of the defendant in capturing the recording is unconscionable. The further conduct of both the defendants in creating the fake Facebook account and posting videos and other content exacerbates the plaintiff's right to be free from violence and to have her dignity intact. The video content was viewed widely. The defendant's recording of the video is serious enough to breach the plaintiff's integrity. The video uploaded online is an aggravation of the plaintiff's privacy and integrity breach. The impact of the abusive conduct is that the plaintiff has become reclusive, is not able to leave her home, and suffers from PTSD because of the breach of her privacy and integrity. She is depressed and continues to receive treatment. The impact of the defendant's conduct on the plaintiff's life is far-reaching.

Order: The application for default judgment is granted. The defendants shall, jointly and severally, within 60 days of service of the order, pay the plaintiff R3,550,000.

MIA J

Facts: The plaintiff (Mr Edwards) was hit by rubber bullets fired from a rifle or rifles by a member or members of the Public Order Police (POP), a specialised unit of the SAPS. POP is constitutionally mandated to maintain public order, protect and secure the inhabitants of South Africa and their property, and to uphold and enforce the law. At the time, Mr Edwards was part of a crowd which had gathered in front of the Boxer Store. The crowd was demanding that Boxer employs members of the local community in their business, which was opening its doors for the first time on that day. Mr Edwards was in fact one of the leaders of the group of demonstrators. According to the police, the crowd, at some stage, became unruly and was threatening violence, and it became necessary for the police to disperse them, lest the situation got out of control. Despite a request by the police for the crowd to disperse peacefully, they became more unruly, whereafter a stun grenade was set off and rubber bullets fired into the crowd. This, according to the police, had the desired effect as the crowd dispersed and scattered into all directions. In the process, Mr Edwards was shot and suffered bodily injuries, which required treatment at the local clinic.

Claim: In this action, the plaintiff claims delictual damages from the Minister of Police on the basis that he was unlawfully assaulted by members of the SAPS, who, at the relevant time, were acting in their official capacities as police officers during the course and scope of their employment with the SAPS. The vicarious liability of the defendants, collectively referred to as the SAPS, is not in dispute.

Discussion: It is the plaintiff’s case that he was shot unlawfully, wrongfully and intentionally, alternatively, negligently by the police, which caused him personal injuries as a result of which he suffered damages. The defendants deny liability for the plaintiff’s claim. Their case is that the plaintiff was part of a group who were at the time engaged in violent protest and disturbing other members of the community. The members of the police attempted, so the defendants allege, to disperse the violent protesters, amongst whom was the plaintiff, and despite their reasonable request for them to disperse peacefully, the members of the community refused and continued to pose a threat to the lives of the police and members of the public. The police, so their case continues, were compelled to use minimum force to protect themselves and members of the public, and to diffuse the threat posed by the protestors, who included the plaintiff. On the probabilities, the crowd was unhappy with the fact that their demands were not being met and they resolved to give expression to their discontent by resorting to violence. It is highly unlikely that the police would have opted for violence when faced with a docile crowd. The version of the SAPS has a ring of truth to it.

Findings: Having regard to these considerations and the probabilities in their totality, the version of the defendants is more probable than that of the plaintiff. It cannot be disputed that the police were protecting legal interests, not just of Boxer, but also of the general public, against a dangerous situation, that being the unruly crowd of protesters who were threatening to force their way into Boxer’s premises. There is also little or no doubt that factually and objectively a situation of private defence or necessity existed in that the crowd was not just threatening violence, but they were also being violent. They were not prepared to heed any order from the police that they disperse immediately. The SAPS were clearly entitled to inflict harm in the situation of necessity, because a danger was not just imminent but also in fact existed. Importantly, the SAPS had no other reasonable means of averting the danger. Attempts were made to persuade the protesters to disperse and to vacate the area, but their pleas fell on deaf ears. The means used and the measures taken by the police to avert the danger of harm were by no means excessive. The requirements for the defence based on private defence or necessity have been met by the defendants.

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

ADAMS J