CASE LAW UPDATE

The application: Two parties, Mr Bux (“Bux”) and B&B Media, brought an application in which they claim R1,873,500, plus interest and a punitive costs order, from Ngiri Auto and Mr Essack. The application brought by Bux and B&B relates to payment for a vehicle in terms of a complicated arrangement (the main application). Ngiri later launched this Uniform Rule 30 application. It seems that, at the heart of the application, is a misunderstanding of what is meant by the term “prejudice” in the context of procedural remedies such as that envisaged by Rule 30.

* See from para [35] on the status of the explanatory affidavit.

Rules 30 and 30A: The court comments on the unseemly practice which has developed, spawning multiple cases like this one. Practitioners appear to see Rules 30 and 30A not as conferring an entitlement on litigants to avoid injustice arising from substantial and prejudicial irregularities, but as conferring an opportunity to cure any perceived procedural fault through opposed litigation. It appears now to be seen as virtuous – as a sign of the energetic and forceful defence of a client’s interests – to hit one’s adversaries with every procedural hammer available in the rules.

Interlocutory disputes: The judge has been called upon to resolve opposed applications raising minor, formalistic, interlocutory disputes. And on each occasion, the judge was only one of five or six colleagues (amongst whom the whole weekly opposed motion roll was shared) being placed in the same position, and this applies only to one week. One need only do the maths, and do a cursory search on the various platforms which contain unreported judgments in electronic form, to see how common these types of dispute have become. One can only speculate what the court rolls would look like, if these technical fights were removed from the equation. But it seems obvious that the massive strain, facing this division in particular, would be at least partially or even substantially alleviated, if judges could be freed up to use their time more productively.

Real prejudice: The proper administration of justice depends on all the role-players, not just judges. Legal representatives have a duty to be sensible and to recommend pragmatism to their clients. If the clients demur, then there is a further duty on legal representatives to refuse to be party to abusive conduct. When clients are none the wiser about the intricacies of the rules of court, legal representatives should desist from running up costs for procedural conduct which is at odds with the proper ventilation of disputes. We cannot do without Rule 30 and its analogues. Applications under Rule 30 (and analogous causes, such as objections to amendments and the like) will only be upheld when there is real prejudice. That is why there must be a duty on legal practitioners to do their part by using Rule 30 sparingly and to object only to conduct which is truly prejudicial.

Order: The application under Rule 30 brought by Ngiri is dismissed. Ngiri is to pay the costs incurred by Bux and B&B in this Rule 30 application on the attorney-client scale.

FRIEDMAN AJ

Facts: The advent of the Covid-19 pandemic led to alarmingly high unemployment levels in the Republic, with nearly 30 percent of the population being unemployed and unable to support themselves and their dependants. In response, the government introduced the Social Relief of Distress (SRD) grant in May 2020 to assist individuals aged 18-59 with insufficient means to support themselves and their dependants. As hunger and poverty continue to persist in the country, the grant has been extended with various amendment of regulations, prompting the current application. The SRD grant targeted unemployed working-age adults and was not means-tested at the time. The applicants for the SRD grant were to lodge their applications electronically over and above any other available means of lodging such applications. The SRD grant regulations have been amended on three occasions since May 2020 which amendments introduced the new qualifying criteria for the applicants and the latest amendment was on the 25 March 2024 when the SRD grant received an increase of R20 to increase its value from R350 to R370.

Application: The applicants initiated proceedings in both their own capacity and in the public interest seeking orders against the respondents. The case involves the administration of the SRD grant which falls within the purview of SASSA and the Minister being the responsible head. The applicants are challenging the lawfulness and constitutionality of the steps taken or not taken by government in implementing its own commitment to meeting its constitutional obligations imposed by section 27 of the Constitution to progressively realise access to social assistance by providing the SRD grant to working-age adults who are entitled to it.

Discussion: The applicants’ stance is that the regulations and the procedure for applying for the SRD grant have as their effect, if not their purpose, the irrational, arbitrary, unreasonable and unfair denial of social assistance to persons who are legally entitled to receive it. The SRD grant is not temporary and although it is on a large scale, it has the same legal standing as the other grants. Thus, there is absolutely no reason for it to be treated differently from the other grants. There is no reasonable justification to subject its potential beneficiaries, who are mainly poor and vulnerable members of society, to a solely online application process. The majority of people with insufficient means to support themselves and their dependants do not have smart phones nor access to computers and the internet. There is no merit in the contention by the respondents that the online application process is fast and easy and therefore it is reasonable for government not to deploy resources for retrofitting SASSA offices to provide for an inefficient application process which it seeks to phase out in respect of all grants over time. There are eligible persons for the SRD grant who live in rural areas and who do not have access to smart phones and who are not computer literate. There is no reason why the SRD grant beneficiaries should not be provided with an alternative method of applying for the grant like the other grant beneficiaries.

Findings: The interpretation ascribed to “income” by the respondents is narrow and rigid as it includes all moneys received by the person who is applying for the SRD grant, even moneys that such person is holding or receiving on behalf of others. The intention of the legislator is plain and clear in that the SRD grant is available to persons who need temporary assistance and are of insufficient means in that they are unable to support themselves and their families. The interpretation ascribed by the respondents to “income” and “financial support” has the result of excluding and is intended to reduce the uptake of deserving beneficiaries of the SRD grant in order to save money, thus it offends section 27 of the Constitution and is therefore unreasonable and unlawful. Section 27 provides that everyone has the right to access social security including appropriate social assistance if they are unable to support themselves and their dependants. It is immaterial that a member of that person’s family is assisting him or her to obtain his basic necessities and that does not absolve the State from performing its duty and meeting its obligations in terms of section 27(2). The databases verification process is unreasonable and unfair and is used with an ulterior purpose of excluding eligible SRD grant applicants from receiving it.

Order: It is declared that Regulation 3(2) of the Regulations Relating to Covid-19 Social Relief of Distress is unconstitutional and invalid to the extent that it provides for Social Relief of Distress (SRD) grant applications to be lodged on an electronic platform only. (See para [166] of judgment).

TWALA J

Facts: The complainant testified that she was sexually abused by the appellant when she was eight years old. The appellant is her stepfather. She testified that these incidents happened when her mother was not at home and that the appellant sexually molested her on two separate occasions on two consecutive days. The appellant was legally represented during his trial proceedings. He pleaded not guilty to the offences as preferred against him and elected not to advance any plea explanation. The appellant was convicted of three counts of sexual penetration. After the appellant was convicted as charged and at the commencement of the sentencing proceedings, the appellant raised with the trial magistrate for the first time that he was dissatisfied with his legal representation. Accordingly, a different legal practitioner represented the appellant during the sentencing proceedings. He was sentenced to life imprisonment.

Appeal: The appeal against the convictions was initially based on the following grounds, namely: (a) that the appellant’s legal representative failed to represent him adequately; and (b) that the evidence implicating the appellant was that of a single witness and was insufficient as it was not satisfactory in every material respect.

Discussion: In this case, there is no evidence exculpating the appellant save his own denial. By contrast, there is only evidence against him. The appellant did not in any manner dispute the correctness of the medical evidence. He also did not dispute that on the alleged occasions when the sexual molestation of the complainant occurred, he was the only adult in the presence of the complainant at that time. As to the representation, it appeared that Mr Shumi interrupted the appellant twelve times to prevent him from providing his full version of events. Mr Shumi not only did not ask him questions to enable him to present his version on those issues, he sabotaged his own client from doing so. And by constantly requiring the appellant to talk about something that he claimed did not happen, Mr Shumi implied that it did. The appellant also complained that his representative failure to put his new version to the State’s witnesses. This related to his alleged previous charges and acquital. However, the appellant has never positively averred that he did, as a fact, inform his initial legal representative of the alleged motive to implicate him falsely.

Findings: It is all too easy to second-guess a defense lawyer with the benefit of hindsight. An accused person is not entitled to the best possible defense. They are entitled to a competent defense that ensures a fair trial. No conviction or sentence shall be reversed or altered because of any irregularity or defect in the proceedings unless a failure of justice has resulted from such irregularity or defect. Thus, the negligence of counsel per se is not a get-out-of-jail-free card. It affects the legitimacy of the proceedings only if the negligence might reasonably have affected the outcome. The appellant was legally represented before this court. There is no evidence that his current representation is inadequate or is not acting on his instructions. In these circumstances, where the appellant has not put up evidence about either his alleged previous acquittal, or what instructions he gave to his attorney, he has not established the requirements for a successful claim of inadequate representation of counsel.

Order: The appeal against the appellant’s convictions is dismissed. The appeal on sentence is dismissed.

LE GRANGE ADJP, WILLE J and BISHOP AJ

* See also Aziz v DPP [2024] 23-12763 (GJ).

Facts: Distell, a producer, and distributor of alcoholic beverages, the sale of which was banned and restricted during the Covid-19 lock-down, suffered a liquidity crisis as a consequence, which threatened its going concern status. As a result of the ban and restriction on the sale of alcohol during the Covid-19 lockdown, the company suffered a drop in cash flow generated from sales. This amounted to in excess of R4 billion in the period February to end June 2020. The reduction in cash flow resulted in the company breaching loan covenants with borrowers, and it was only able to secure further loan funding to fund ongoing operations through the intervention of Remgro (the company’s primary shareholder). Having implemented various other remedial measures, it proposed a 10% across˗the˗board pay cut for 12 months as an alternative to a retrenchment. All 4,000 employees (blue and white collar) agreed, except for less than ten employees, including the three applicants, who were then retrenched. At Springs, the applicants were the only employees (out of some 400) who did not agree. And the applicants were the only UTI members who did not agree.

Application: The applicants challenge the fairness of their dismissal. The case narrows to whether the applicants’ dismissal was substantively fair. Ms Shushu explained that given that she had accumulated debt during the lockdown and was already in arrears with her bond repayments, she would have lost her home if she had accepted the 10% pay cut for 12 months. Mr Msibi had accumulated a huge credit card debt and had a bond, and was apparently also unable to make ends meet if he agreed to the 10% pay cut. The same applied to Mr Xulu, who has a special-needs child.

Discussion: When Mr Oelofse was asked why there was a need to dismiss the applicants given that the company had effectively achieved its objective of a 10% saving on the salary bill (R20 million) and stood to gain virtually nothing by their dismissal, his answer was that they were dismissed with a view to ensuring consistency and avoiding labour disputes. What Mr Oelofse did not say is that the applicants were dismissed because the company’s operational requirements were such that it needed to save R3,538 per month. Although Mr Malan submitted in argument that this was an ancillary consideration, and that the applicants were actually retrenched with a view to the company achieving the saving, this cannot be reconciled with Mr Oelofse’s clear evidence. A dismissal based on this somewhat unusual objective does not fall within the definition of operational requirements. Even if it did, it was not established in evidence that there was any real threat that the failure to retrench the applicants would have given rise to labour disputes. Employees who agreed to the pay cut had done so in writing, and 60% of the workforce (making up the majority of the saving) had agreed without any real threat of retrenchment. For these reasons alone, the company failed to prove that the reason for the applicants’ dismissal was a fair reason based on its operational requirements in terms of section 188(1) of the Labour Relations Act 66 of 1995.

Findings: The company needed to establish, in the context of it being a huge business then listed on the JSE with a newly secured credit facility of R2,85 billion underwritten by Remgro, what the impact of the saving of R20 million per month was (and that it was material). It failed to do so. In the result, it cannot be found that a retrenchment based on the target of saving R20 million per month by way of a pay cut was fair. Irrespective of how one undertakes the proportionality analysis, the stark reality is that all the company gained by the applicants’ retrenchment was R3,538 per month for just seven months (there being no permanent saving), while the applicants lost their livelihoods, and this in circumstances where the company had effectively achieved its objective of a R20-million saving on its salary bill by agreement with 99.9% of its workforce. Simply put, the applicants’ dismissals were disproportionate because they were of no (or very little) consequence to the company but severely impacted on the livelihoods of the applicants. The applicants were dismissed with a view to ensuring consistency and avoiding labour disputes, but the company failed to prove that this was a fair reason for dismissal based on its operational requirements.

Order: The dismissal of the applicants was substantively unfair. The respondent shall reinstate the applicants into its employ.

MYBURGH AJ