CASE LAW UPDATE

Facts: Mr Ndobe (plaintiff) was employed by Gibela Rail (defendant) when disciplinary proceedings were initiated against him for gross negligence in 2019 following his refusal to follow the instruction of his line manager, Mr Bambo. Mr Bambo sought input from the plaintiff's former line managers, Ms Modiba and Mr De Marcellus to compile evidence. Mr De Marcellus compiled a report entitled “Rodgers Management of Design Group”. The report was incorporated into the package of documents that Mr Bambo utilised to present the defendant’s case against the plaintiff at the disciplinary hearing.

Claim: An action for defamation where the plaintiff is seeking R5 million in damages from the defendant. The plaintiff avers that the report was published and distributed amongst the defendant’s management personnel and leaked to other employees of the defendant in a clandestine manner. This was done “unlawfully” as the report was confidential, defamatory and contained incorrect information. It is argued that the plaintiff’s integrity and reputation were harmed because of the report's distribution and publication.

Discussion: The heading of the report indicates that the focus of the report is on the plaintiff’s management of the Design Group. The defendant acknowledges that the heading was inaccurate, as the plaintiff was not responsible for managing the project. The report communicates that the project experienced delays from inception as a consequence of the plaintiff’s “bad management”, resulting in losses of R6,8 million. The report would be understood by a reasonable person of ordinary intelligence to convey a meaning defamatory of the plaintiff. The question is whether there was publication of the report. The disciplinary hearing was held over three days and the plaintiff testified that Mr Bambo distributed the report to all attendees. Mr Bambo testified that he had brought four copies of the report to the disciplinary hearing.

Findings: Distributing the report to the participants at the disciplinary hearing does not constitute publication for purposes of the defamation claim. The plaintiff is suing the defendant vicariously for the actions of its employees or representatives at the disciplinary hearing. The report was distributed to only four people. Mr Bambo was the purported publisher, therefore, the retention of a copy for himself does not constitute publication for defamation purposes. The distribution to the plaintiff is not publication for defamation purposes either. Mr Mashiane represented the Human Resources Department as the custodian of the disciplinary process on behalf of the defendant. And the chairperson of the hearing received the report in the exercise of powers that are conferred to her by the Labour Relations Act 66 of 1995 on the employer. A distribution of the report to another representative of the defendant on behalf of the defendant (the chairperson and the HR representative) can thus not be considered publication for the purposes of the defamation claim. Even if there was publication, it was done during a privileged occasion and therefore not wrongful. The qualified privilege is applicable to legal proceedings that include disciplinary procedures. The disciplinary hearing was a privileged occasion and the report was pertinent and essential for the purposes of the hearing.

Order: The action is dismissed with costs on Scale B.

WINDELL J

Facts: The plaintiffs and their wives were on the day in question having a family meal together. They wanted to heat up their food, which was in little three-legged pots, by using ethanol gel. The gel was contained in tin cups and was placed underneath the pots. It appears that at some point in time, one spouse indicated that the flame in her pot had gone out and asked that it be refilled with the gel. While it was being refilled, there was an explosion. After the explosion, the three plaintiffs were covered by this gel, all in varying degrees, on their bodies, and they sustained burns. Pursuant to the injuries sustained, the plaintiffs instituted action against the defendants. It is alleged by the plaintiffs that the Flaz Gel product, which allegedly caused their injuries, was bought by the plaintiff at a retailer one month before the incident and that it was manufactured and distributed by the defendants. The plaintiffs alleged that they suffered bodily injuries as a result of the wrongful and negligent conduct of the defendant.

Application: A typical delictual claim was brought against Organic Synthesis by alleging a duty of care and negligent conduct on the part of Organic Synthesis. In the alternative to this delictual claim, a claim was instituted against Organic Synthesis based on the provisions of section 61 of the Consumer Protection Act 68 of 2008 (CPA). In the case of Steel King Centre, whom it is alleged was the wholesale distributor of the Flaz Gel product to retailers, a claim was brought only in terms of section 61 of the CPA. In its plea, Steel King Centre invoked the provisions of section 69 of the CPA and denied that the plaintiffs were entitled to claim based on the stipulations of section 61 of the CPA. The contention is that the plaintiffs, having elected to exercise their purported (but denied) rights against Steel King Centre based on the provisions of the CPA, should comply with the requirements thereof.

Discussion: The defendant suggests that the consumers are forced to exhaust all the other remedies set out in section 69 such as filing a complaint at the National Consumer Commission, referring a dispute to the Consumer Tribunal, and approaching an industry ombud, before coming to court. The plaintiffs, on the other hand, are of the view that this can never be the correct position and can never be what the legislature had intended. The mechanisms that the second defendant sought to rely on, those contained in section 69, appear to be in respect of the enforcement of rights relating to fair contractual terms. The arguments, in fact of both parties, are in relation to the enforcement of rights relating to fair contractual terms. The question, therefore, is whether the remedies provided for in section 69 of the CPA, which clearly are applicable in cases where the claim is based on fair contractual terms, may also be applicable where the claim is based on product liability in terms of section 61 of the CPA. The plaintiffs’ cause of action is for damages based on personal injuries sustained by the plaintiffs, that is, harm allegedly caused by unsafe or hazardous goods. The plaintiffs’ proposition that, by a parity of reasoning based on the provisions of section 52 read with section 48 of the CPA, it is only a court that can adjudicate a claim for damages based on personal injuries, is correct. This is so because, as provided for in section 52, where a remedy is not sufficiently provided in this Act, the court must adjudicate the claim.

Findings: There is no applicable ombud with jurisdiction to adjudicate disputes relating to product liability, particularly where the harm has resulted in an injury of a natural person. The powers and authority of the National Consumer Tribunal would not, as well, extend to dealing with a claim based on damages which arise from personal injuries. The alternative remedies provided for in section 70 suggested by the defendant’s counsel, and section 71 of the CPA, would have served no purpose if they were followed by the plaintiffs. It is evident that in the final analysis, for these remedies to be of assistance to the plaintiffs, there would have to be consent between the parties. As it is, the parties have been at each other’s throats since 2017 and there appears no likelihood that a resolution of this matter following these remedies would have been achieved. Considering the facts of the matter, it is obvious that a referral to either the ombud, the Tribunal, or for dispute resolution in terms of sections 70 and 71 of the CPA, would not have been appropriate or sufficient to deal with the plaintiffs’ claims. It is doubtful that these remedies would have been able to grant the plaintiffs the relief they sought. It is concluded that the stated case should be upheld in favour of the applicants. There was thus no need for the plaintiffs to allege in the particulars of claim that they have complied with the remedies provided in section 69 of the CPA, nor was it necessary to declare that the remedies in section 69 of the CPA were not available to the plaintiffs’ claim.

Order: The second defendant’s plea is dismissed. Costs are awarded to the plaintiffs on scale C.

KUBUSHI J

Facts: Accused 1 is a 44-year-old male from Cameroon who came to South Africa in 2006 due to civil unrest in his home country. He married accused 2 in 2008 in community of property and they are still so married. They have two minor dependent children. Accused 2 is a 40-year-old female. She testified that she had witnessed and was exposed to sexual abuse and rape during her formative years and admitted to working as a prostitute and using drugs. Accused 2 left home at a young age and looked after herself. She realised that by using her sexuality and looks, she could live from favours bestowed upon her by men. Eventually she earned a living as a sex worker. She admitted that she was responsible for introducing the victims to accused 1 and apologized in court for her role in the trafficking, although she still denied that she was aware of the business operated from the premises in Brooklyn. Accused 3 arrived in South Africa in 2017 and had lived with accused 1 for at least a month or longer before his arrest. Before moving in, he also regularly spent time at the house of accused 1.

Sentencing: Accused 1 was convicted of 28 counts ranging from human trafficking, using the services of a victim of human trafficking, living on the proceeds of prostitution, kidnapping, assault with the intention to do grievous bodily harm and dealing in drugs. Accused 2 was convicted on 3 counts of human trafficking. Accused 3 was convicted of 3 counts of human trafficking, 3 counts of using the services of a victim of human trafficking, 3 counts of living on the earnings of prostitution and 3 counts of kidnapping. This matter has come to the stage where an appropriate sentence for the crimes of which the accused were found guilty needs to be determined.

Discussion: In considering the aggravating factors, the evidence showed that accused 1 was the “kingpin” of the human trafficking business conducted from his rental home in Brooklyn, Western Cape. He, with the assistance of accused 2 in respect of the victims from Springbok, lured the victims to come to Cape Town to work for him with promises of being cared for and looked after. He was also the person who introduced and caused most of the victims to became addicted to the drug “rocks”. The victims were held captive by fear. They not only witnessed, but were subjected to, vicious and inhumane assaults by accused 1. One of the complainants was merely 15-years old, a child, when she was trafficked and assaulted by accused 1. Accused 1 made false promises to the victims that he would protect them, but instead, they were held hostage, fed drugs and assaulted when they tried to break free from the cycle of abuse. The role of accused 2 was to recruit victims in Springbok to work in the human trafficking business operated by accused 1 in Brooklyn. She was aware that the victims had poor family support, could easily be influenced and that at least two of the Springbok victims were already using drugs. She testified that the victims looked up to her as she had previously worked as a sex worker in Cape Town. She knew exactly what accused 1 was subjecting the victims to, and that he used physical and emotional abuse to hold them captive. She was aware, given his conduct towards her, that he would treat them the same way. The role of accused 3 was that of the enforcer. He assisted accused 1 with the transportation of the victims, sold drugs to them and cooked for them.

Findings: Accused 2 has shown some degree of remorse for her deeds during the sentencing proceedings and had over the years, in her way, cared for and loved her children whilst living a troubled and at times horrific life since her early years. The complainants were defenceless victims who were subjected to abuse of the worst form. They were treated like objects and stripped of their dignity as human beings. They were treated like commodities by the accused to feed their greed for money and power. The court finds no substantiating or compelling reasons to deviate from the prescribed sentences in terms of accused 1. In respect of accused 2, substantial and compelling circumstances exist, given her personal circumstances and her future relationship with her minor children, two of them still being relatively young. Regarding accused 3, substantial and compelling circumstances also exist given his personal circumstances, the substantial period spent as an awaiting trial prisoner and his role in the trafficking operations. The victims, contrary to their reactions to and fear of accused 1, did not display the same sentiments towards accused 3.

Order: Accused 1 is sentenced to life imprisonment for each human trafficking count. Accused 2 is sentenced to 20 years imprisonment on each human trafficking count of which 5 years is suspended on condition that accused 2 does not contravene the Human Trafficking Act or any section of SORMAA during the period of suspension. Accused 3 is sentenced to 20 years imprisonment on each human trafficking count of which 5 years is suspended on condition that accused 3 does not contravene the Human Trafficking Act or any section of SORMAA. All the sentences shall run concurrently.

DE WET AJ

Facts: G, currently six years old, is the child of the applicant and the respondent, who divorced in 2021. The terms of the settlement agreement provided for appropriate unsupervised visitation by the applicant. However, the respondent brought an application for a variation of the divorce settlement agreement. It was during this application that it was for the first time brought to the attention of the court that the respondent suspected that the applicant may have perpetrated a sexual misconduct with G. Various applications to court followed regarding the applicant’s access to G, with an order ensuing in September 2024 for a comprehensive forensic psychological evaluation of G. Professor Robinson and Ginette Hermann filed a report which concludes inter alia that the applicant was not a danger to G and that the applicant should be afforded unsupervised visitation.

Application: In the urgent application, the applicant seeks various orders to ensure cooperation between the applicant and the respondent regarding visitation, access, and the primary residence of G. The respondent opposed the application both on urgency and the merits. The opposition on the merits is on the grounds that the order was for a comprehensive forensic psychological evaluation, however, neither Professor Tanya Robinson nor Ginette Hermann, the co-authors of the report, are psychologists. Therefore, the report does not meet the expectations of the parties and the findings are deemed incompetent due to the authors' lack of proper qualifications. Counsel for the respondent stated that the language used in the report suggests a psychological evaluation and diagnosis, and such diagnosis is incompetent because the authors are social workers and not psychologists.

Discussion: The credentials and the fact that the authors of the report are qualified social workers are common cause. A perusal of their CV’s and profiles demonstrate that both authors have extensive experience in dealing with complex family matters and vulnerable family dynamics. It is apparent that, not only are the authors very qualified and accomplished in their fields, but they have also spent a large portion of their careers advocating for vulnerable groups with very complex issues, including sexual abuse. In the circumstances, they are competent to provide an evaluation in this matter. Fundamentally, a social worker is concerned with the welfare of individuals, often overlapping with the field of psychology. The report concludes that the applicant does not pose a risk to G and that her wellbeing is maintained while in the applicant's care.

Findings: The report suggests that G has adjusted very well to all the changes, yet there are still the recordings and videos where G accuses the applicant of sexual misconduct. The report suggests the respondent may, intentionally or unintentionally, be putting these ideas in G’s head. Another possibility may well be that it is G’s way of coping with all the changes. The litigation has been taking place without G’s voice or views. The appointment of a curator will go a long way to assist and guide the court with a view that considers G. The judge has read through the entire court file and does not get the impression that the applicant is a danger to G or has perpetrated the acts he is alleged to have committed. Not only was this matter assessed by experts appointed by the parties, but also by the South African Police Services, Child Protection Unit, an NGO dedicated to the welfare of children who have been exposed to sexual abuse, and by a court appointed expert, all of which exonerated the applicant.

Order: Provision is made for the appointment of a social worker case co-ordinator, a curator ad litem for G, for contact by the applicant for the next four weeks, and on the expiry of the four weeks, unless the social worker and curator hold a contrary view, visitation will continue as agreed in the divorce settlement agreement.

NICHOLSON AJ