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CASE LAW UPDATE

2 December 2024

CRIMINAL – Sentence – Period awaiting trial – Life imprisonment after charges of robbery aggravating and murder – Accused in custody for five years and eight months before sentencing – Offences were heinous and accused were hired assassins – Accused and their lawyers could have shortened awaiting trial period – Not amounting to substantial and compelling circumstance justifying deviation from prescribed minimum sentence – Criminal Law Amendment Act 105 of 1997, s 51(3).

Facts: The marriage between Ms Kwaza and the deceased had been an unhappy one. The deceased had physically abused her over an extended period, and she entered into a romantic relationship with a local councillor, which was apparently widely known in the community. The deceased took out a hit on his wife, but the tables were turned, and the hit turned out to be on him instead. Mr Ludidi, Mr Mr Chwayi and Mr Shasha, the appellants herein, entered the home of the deceased, whom they shot and killed while he was lying on the bed with Ms Kwaza. The appellants were convicted of robbery with aggravating circumstances, and murder. Ms Kwaza was subsequently also charged with the murder of her husband.


Appeal: The prescribed minimum sentence was one of life imprisonment. When sentencing finally took place, the accused had been in custody for a period of five years and eight months. Although Ms Kwaza was found guilty of murder, she was not sentenced to life imprisonment. The High Court found that the hit ordered on her husband was a pre-emptive strike to remove a potential threat as it was likely that he would have killed her had she gone to the police. Ms Kwaza was given a finite sentence of 12 years’ imprisonment. The appellants appeal against their sentences on the basis of whether their lengthy pre-sentencing incarceration amounts to substantial and compelling circumstances where the sentence is one of life imprisonment.


Discussion: The period spent in custody of five years and eight months was indeed a long one. The High Court concluded that the delays were largely attributable to the appellants and their legal representatives. Initially the appellants launched a protracted and unsuccessful bail appeal with a result that the first pre-trial conference in the High Court was more than two years after their arrest. The pre-trial procedures were unduly delayed due to “serial non-attendances” by the legal representative who represented Mr Ludidi and Mr Chwayi. When the matter had been in pre-trial management for two years in the High Court, the judge case-managing the trial refused to certify it ready for trial until the legal representative made an appearance at court. It was then set down for trial six months later. Thereafter, it seemed that, apart from the disruptions due to Covid-19, the trial ran relatively smoothly until completion. It appears that, had they wished to do so, the appellants and their legal representatives could have considerably shortened the period they spent awaiting trial.


Findings: If one turns to the offences for which the appellants were convicted, these were heinous. They were hired assassins willing to murder whoever was identified, if they were paid for the deed. There is nothing disproportionate about their sentences of life imprisonment. Regarding the period in custody as awaiting trial prisoners, unless this is an exceptionally long period of time to which the conduct of the accused persons has not materially contributed, this can never, in and of itself, be a substantial and compelling circumstance where life imprisonment is imposed. The role of courts is to ensure that any sentence passed is a fair one having regard to the crime committed and the individual circumstances of the accused. The High Court did not misdirect itself when it found that the lengthy pre-sentencing incarceration period did not amount to substantial and compelling circumstances justifying a deviation from the prescribed minimum sentence of life imprisonment.


Order: The appeal is dismissed.

NICHOLLS JA (HUGHES JA, MOLEFE JA, DOLAMO AJA and BLOEM AJA concurring)

FAMILY – Divorce – Redistribution order – Antenuptial contract where community of property excluded – Effect of Constitutional Court order in EB – Appellant seeking to amend her counter-claim by introducing a claim for redistribution order – Court a quo held that the order in EB found no application – Proper interpretation of the order – Entitles spouse in pending litigation to rely on claim of redistribution – Appellant granted leave to amend her counter-claim – Divorce Act 70 of 1979, section 7(3).

Facts: The parties married each other in 2009. They concluded an antenuptial contract in terms of which community of property, community of profit and loss and accrual sharing in any form were excluded, as contemplated in Chapter I of the Matrimonial Property Act 88 of 1984. The respondent during 2021 instituted divorce proceedings. The appellant in opposing the divorce proceedings, delivered a counter-claim in terms of which she admitted the applicable marriage regime, and claimed no relief pertaining to proprietary consequences of the marriage, on the strength of the governing matrimonial regime. However, during September 2023, the appellant sought to amend her counter-claim by introducing a claim for a redistribution order, on the basis of section 7(3) of the Divorce Act 70 of 1979, read with the court order declaring section 7(3)(a) of the Divorce Act inconsistent with the Constitution, as granted in KRG v Minister of Home Affairs [2022] ZAGPPHC 311 in 2022.


Appeal: This appeal concerns the dismissal of the application to amend the counter-claim, the core enquiry being whether the appellant was entitled to introduce such a claim. In KRG the court declared section 7(3)(a) of the Divorce Act inconsistent with the Constitution and invalid to the extent that the provision limits the operation of section 7(3) of the Divorce Act to marriages out of community or property entered into before the commencement of the Matrimonial Property Act. The Constitutional Court in EB (born S) v ER (born B); KG v Minister of Home Affairs [2023] ZACC 32 confirmed the order of invalidity as granted in KRG. Paragraph 4 of that order provided for an amendment to section 7(3) pending any remedial legislation.


Discussion: Paragraph 5 of the order granted by the Constitutional Court in EB read that the para 4 the order “shall not affect the legal consequences of any act done or omission or fact existing before this order was made in relation to a marriage concluded on or after 1 November 1984.” The court a quo reasoned that the immediate prospective application is limited to antenuptial contracts to be concluded post the date of judgment in EB and had no effect on an antenuptial contract which had already been concluded. It appears that the court a quo found the wording “shall not affect the legal consequences of any act done or omission or fact existing before this order was made” to relate to the existence of an antenuptial contract and the legal consequences thereof. The court a quo held that the Constitutional Court’s order in EB found no application.


Findings: Properly construed, para 5 of the Constitutional Court order limits the retrospective application of the invalidity to matters where a final decree of divorce had already been granted, alternatively where the marriage has terminated through the death of a spouse. The immediate prospective application cannot found a basis to undo that which had been done at the termination of the marriage either by death or by divorce before the date of the order. If the Constitutional Court wanted to exclude pending matters from its order of perspectivity, it would have done so in explicit terms and reasons. Paragraph 5 of the Constitutional court order in EB properly construed does not limit the application of para 4 of the Constitutional Court order in EB to pending divorce proceedings. Paragraph 5 of the Constitutional court order in EB only limits the retrospective application to marriages which have already been terminated by means of either death or divorce, prior to the date of 10 October 2023, being the date of judgment of EB.


Order: The appeal is upheld with costs. The order of the court a quo is set aside and replaced with an order granting the application to amendment the counter-claim. The applicant as defendant in the main action is granted leave to amend her counter-claim.

GREYLING-COETZER AJ (CHESIWE J concurring)

LABOUR – Dismissal – Protected disclosure – Procurement irregularities – Dismissed for illness incapacity – Plaintiff threatened with insubordination and unjustifiably issued with final written warning shortly after disclosure and grievance – Connived and absurd reasons for dismissal – Dismissed for making protected disclosure – Act of impunity and lawlessness – Dismissal is automatically unfair – Labour Relations Act 66 of 1995, s 187(1)(h).

Facts: The plaintiff was employed by Ekurhuleni Municipality (defendant) and appointed as a Divisional Head: Waste Management Services. She reported to Wotshela. Wotshela was the Head of the Department: Environmental Resource and Waste Management. Wotshela reported to the City Manager, Mashazi. Her employment contract was terminated summarily in terms of a letter of dismissal which concluded that the municipality terminated the contract of employment based on incapacity due to ill-health occasioned by occupational stress. The plaintiff testified that she made a protected disclosure. This disclosure was made to the City Manager, Mashazi, in writing. The letter of disclosure states that Wotshela violated the laws and made various allegations of contravention of the supply chain processes in respect of two projects. The plaintiff contends that her dismissal was automatically unfair because she was discriminated against on grounds of her conscience and belief. Further, she contends that her dismissal was automatically unfair because she was dismissed for making a protected disclosure in terms of the Protected Disclosures Act 26 of 2000.


Application: The plaintiff referred for adjudication an automatically unfair dismissal dispute. In the alternative, the plaintiff claims, in terms of section 77(3) of the Basic Conditions of Employment Act 75 of 1997 (BCEA), that her dismissal was in breach of her contract of employment in that she was dismissed without following the procedure, further alternatively, that her dismissal was substantively and procedurally unfair.


Discussion: The disclosure was made to the defendant as the employer. There is nothing to suggest that the disclosure was made in bad faith. The allegations that form part of the disclosure are, based on the evidence presented, substantially true. They relate to the breach of procurement processes, where on the face of it Wotshela and members of the BEC disregarded the tender specifications or rather, deliberately bent over backwards to disregard the tender specifications in order to accommodate and award the tender to certain service providers, with no regard whatsoever to the service delivery and the empowerment of community members who were supposed to benefit from the projects. Shortly after the disclosure and grievance, the plaintiff was threatened with insubordination and unjustifiably issued with a final written warning for not attending a meeting which was scheduled to end at 11h00, when she only returned to the office at 13h00 after attending to receive medical attention. She was told as early as November 2020 that it was becoming obvious that she might not be able to discharge her duties due to her alleged ill health. Further, she was asked to reconsider pursuing the protected disclosure as it may damage the defendant’s reputation.


Findings: The reasons for the dismissal as articulated in the dismissal letter are connived and absurd. The defendant in essence dismissed the plaintiff for incapacity and poor performance. It then concluded that because of the nature of the incapacity and her poor “track record”, she had lost her right to a fair procedure. Driven by the villainous lust to get rid of the plaintiff as soon as the first opportunity presents itself, with no regard to her mental wellbeing, they prepared a monotonous letter of dismissal and trampled on the fundamental right of the plaintiff to be heard before the dismissal, the right contained in her contract of employment. This was an act of impunity and lawlessness on the part of the defendant. The only reasonable inference is that the plaintiff was dismissed for making the protected disclosure and raising serious allegations of procurement irregularities against Wotshela. Therefore, a causal link between the protected disclosure and the plaintiff’s dismissal was established and the main, dominant, proximate or most likely cause of the plaintiff’s dismissal was her protected disclosure. Had she not made the disclosure, she would not have been dismissed and would not have been dismissed in the way she had been, and for the designed, connived and absurd reasons contained in the letter. Despite the contractual obligation to follow the procedure as set out in the plaintiff’s contract, the defendant expressly and conscientiously decided to dispense with those provisions. It made no attempt whatsoever to comply. The dismissal was carried out in breach of clauses 14 and 15 of the contract of employment.


Order: The dismissal of the plaintiff is automatically unfair. The defendant is ordered to pay the plaintiff compensation equivalent to 24 months remuneration, being R2,251,279.92.

MAKHURA J

PROFESSION – Struck off practitioner – Effect on proceedings – Attorney had been struck off when he appeared for Commission at High Court – Committed criminal offence and brought administration of justice into disrepute – Fraud was committed in court – His ability is not a consideration – Court must protect the integrity of the proceedings – Order of High Court set aside and replaced with an order referring the matter to High Court for hearing by differently constituted bench.

Facts: Mr Links decided to buy a second-hand BMW M5, a 2012 model, which he was informed had 95,000 kilometres on the clock. Almost immediately after Mr Links took possession, the M5 started causing trouble and, apart from other issues, was diagnosed as having engine failure. Mr Links was informed that it was necessary to replace the engine at a cost of R509,078.48. He lodged a complaint with the Motor Industry Ombudsman for mediation, however, nothing came of the attempted mediation. Only afterwards did he lodge a complaint with the National Consumer Commission, against Platinum Wheels as the supplier.


Appeal: The Tribunal found that Platinum Wheels had contravened the Consumer Protection Act 68 of 2008 and ordered Platinum Wheels to refund Mr Links the purchase price paid for the M5. The High Court dismissed the appeal by Platinum Wheels and upheld the cross-appeal by the Commission and varied the wording of the order, regarding the repayment and the penalty.


Discussion: Mr Biyana, an erstwhile employee of the Commission, was the attorney who represented the Commission in the High Court, in his capacity as the in-house legal counsel. The legal representatives of Platinum Wheels became suspicious of what they referred to as “sharp” practices of Mr Biyana in the conduct of the appeal. It then emerged that Mr Biyana had been struck from the roll of attorneys shortly after he commenced employment as a legal advisor of the Commission. This was the prevailing situation when he appeared on behalf of the Commission before the Tribunal in 2021 and in the High Court in 2022. The Commission acts in the public interest ex lege and has historically briefed attorneys and advocates in private practice to represent members of the public. Due to an increase in High Court litigation, it became cost-effective to employ in-house legal practitioners to represent the public. The Commission dismally failed in its due diligence processes in Mr Biyana’s appointment. This was to the detriment of the public at large.


Findings: In contravening the provisions of the Legal Practice Act 28 of 2014, Mr Biyana committed a criminal offence and brought the administration of justice into disrepute. The fraud was committed in court: the institution tasked with ensuring that the values of our constitution are upheld. Our system allows persons not legally trained and those legally trained but not admitted as practitioners to assist the unrepresented litigant. However, those persons have no right of appearance in court, irrespective of ability and qualification. Therefore, Mr Biyana’s ability is not a consideration in the present enquiry. The absence or presence of prejudice to the consumer is irrelevant to the question of whether the fraud committed impacted negatively on the administration of justice to the detriment of the public interest. The proper functioning of the courts is premised on the absence of fraud in the process. The fraud committed in these proceedings was against the administration of justice, therefore, no litigant can condone it. It is for the court to protect the integrity of the proceedings and so retain public confidence in its orders and induce compliance. The people must be able to trust the judiciary to uphold the integrity of the judicial process.


Order: The appeal is upheld and the order of the High Court set aside and replaced with an order referring the matter to the High Court for hearing by a differently constituted bench. The Registrar is directed to forward a copy of this judgment to the Legal Practice Council.

BAARTMAN AJA (ZONDI DP, MOTHLE JA and NAIDOO AJA concurring)

NICHOLLS JA found that this was an instance where the irregularity is not such that it should vitiate the judgment, and that do so would be a waste of scarce judicial resources.

LOSS OF INCOME FOR TRADITIONAL HEALER

At the time of the collision, the plaintiff was 31 years old and working as a traditional healer. The plaintiff sustained severe trauma during the collision. Being a traditional healer requires sensitivity and the ability to receive and interact with clients appropriately. This involves undergoing specific rituals, such as the dancing ritual, and training in identifying and using traditional fruits for various rituals and treatments, which necessitates the ability to smell and taste these fruits. Plaintiff indicated that she can no longer independently identify or mix traditional items and now requires assistance to fulfil her duties. The plaintiff’s loss of smell and taste, critical senses required for her role as a traditional healer, has substantially compromised her ability to perform her professional duties. Applying the appropriate contingency deductions, the court awards a total loss of earnings of R2,703,017.

WHETHER FORKLIFT A MOTOR VEHICLE FOR RAF CLAIM

The plaintiff who was a pedestrian was injured when the load of the forklift fell on him in a parking lot which constitutes a public space of road. The question is whether the forklift in question qualifies as a motor vehicle in terms of the Road Accident Fund Act 56 of 1996. The forklift is a Hangcha ST 5T Series. A warning is sounded in the manual that that it will be dangerous to apply brakes suddenly as that may cause the forklift to capsize. This means that should this forklift find itself in a situation where it must make an emergency stop, it is more than likely to cause an accident and endanger other road users. Any vehicle which is not designed to make a sudden stop without causing an accident is not safe for use on the road and cannot be said to be designed or adapted for use on public roads. This forklift was designed primarily to lift and move heavy loads in and around warehouses or construction sites with relatively smooth surfaces and at slower speeds. The plaintiff’s claim is dismissed.

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