CASE LAW UPDATE

Regional Court: Jacob Kwinda (the respondent) was convicted in the Regional Court, Modimolle for two counts of rape of two eight-year-old girls. The respondent, 59 years of age, legally represented, pleaded guilty to two counts of rape. The details of the offences he committed were set out in his guilty plea. The respondent was at one of the spaza shops in Rooiberg, buying bread when he met the two complainants and instructed them to accompany him to his home. At his home he pulled out a revolver and ordered them to undress. He pulled down their panties, used Vaseline to lubricate their vaginas, and inserted his penis into their vaginas, one after the other, without their consent. The respondent was sentenced to life imprisonment for each count.

Appeal: On appeal in the High Court, the respondent only pursued the appeal against his sentence. The High Court upheld his appeal primarily on the basis that the State had not proven the age of the complainants and set aside the sentence imposed by the Regional Court by replacing it with the following: On both counts 1 and 2, a sentence of eight years’ imprisonment was imposed for each count and half of the sentence imposed in respect of count 2 was to run concurrently with the sentence in respect of count 1. Cumulatively, the respondent was to serve an effective sentence of 12 years’ imprisonment. Dissatisfied with the reduction of the sentence of life imprisonment, the State launched an appeal to the Supreme Court of Appeal on a point of law in terms of section 311 of the Criminal Procedure Act 51 of 1977.

Discussion: In this court, the State submitted that the question of law is: “Where the accused pleads guilty to a charge of rape of a girl under 16 years as envisaged in section 51(1) of the Criminal Law Amendment Act 105 of 1997 and tenders a statement in terms of section 112(2) of the Criminal Procedure Act 51 of 1977 in which he admits the victim was below 16 years at the time of the commission of the offence, would the State be required to prove the victim’s age despite the accused’s admission? When an accused pleads guilty in terms of section 112(2) of the Criminal Procedure Act and makes admissions in the statement regarding the age of the complainant, in a matter where the age of the complainant is a prerequisite for the offence, does such admission absolve the State of its duty to prove the age of the complainant?”

Findings: In the normal course of a criminal trial, the State has the duty to present evidence to prove the commission of the offence that an accused is charged with. However, section 112(2) provides for the court to convict and then sentence on the basis of written statement by the accused handed into court. Pertinently in this matter the respondent admitted the age of the complainants in his guilty plea. This was accepted by the State and, as such, this formed the factual matrix upon which the respondent was convicted and sentenced. The High Court did not appreciate that there was no need to lead evidence of an admitted fact in terms of section 112(2). The Regional Court was satisfied that it may convict the respondent accordingly. It is settled law that an accused person may be convicted based on the admissions made in his or her section 112(2) plea. As to the circumstances, the court cannot find any substantial and compelling circumstances justifying the imposition of a lesser sentence than the prescribed sentence of life imprisonment. See paras [24]-[25].

Order: The appeal is upheld. The order of the High Court is set aside and substituted with an order dismissing the appeal and confirming the conviction and sentence of the trial court. The sentence is antedated to 21 November 2017.

HUGHES JA (MABINDLA-BOQWANA JA and MEYER JA concurring)

Facts: The respondent is a private company that owns several farms. One of those is the farm Albany, which is situated in the district of Newcastle, KwaZulu-Natal and which is primarily planted to timber. In 2015, there was a fire on Albany and just over 300 hectares of trees were consumed by the conflagration that swept through portions of the farm. The appellant is a co-operative company and is the insurer of the respondent, having issued it with a Plantation Fire Insurance Certificate and which covered Albany. The appellant consequently received the respondent’s insurance claim for the damages to Albany that were occasioned by the fire. After having the claim for approximately eight months, and after the period of cover of the certificate had lapsed, for it was an annually renewable certificate, the appellant repudiated the respondent’s claim.

Appeal: The respondent consequently sued the appellant for the alleged value of the loss that it sustained. The court below delivered a judgment in favour of the respondent and directed the appellant to make payment to it as claimed. The appellant now appeals against that judgment. The respondent pleaded that the certificate indemnified it against any loss by fire to standing timber on Albany. It pleaded that there was such a fire on Albany, and that standing timber to the value of R14,385,720.84 was destroyed by the fire and that, despite complying with all its contractual obligations, the appellant had unlawfully repudiated its claim.

Discussion: The appellant pleaded that any material misrepresentation, misdescription or non-disclosure by the respondent rendered the certificate voidable by it, at its sole discretion. Such a misrepresentation had occurred when the respondent represented to it that the fire had originated in compartment A13a of Albany when, according to the appellant, it had originated in, and spread from, a sawdust and timber waste area situated on the north-western boundary of that same compartment. The sawdust and timber waste areas are, in fact, not a single area, but are comprised of two sawmill waste sites. Therefore, by virtue of that misrepresentation, the appellant contended that it was entitled to reject the respondent’s claim arising out of the fire. In addition, the appellant pleaded that the respondent had permitted the dumping of sawdust and timber waste in the sawmill waste sites, thereby substantially increasing the load of combustible material in the vicinity of the insured area and increasing the fire risk. The appellant pleaded that the existence of the sawmill waste sites was not disclosed to it by the respondent and this non-disclosure materially affected the risk indemnified by it and afforded it a further ground upon which it was entitled to reject the respondent’s claim.

Findings: Considering the evidence, in submitting its claim form to the appellant, the respondent did not misrepresent anything. None of the responses by the respondent appear to be false or misleading. In fact, they appear to be truthful and accurate. The claim form did not ask the respondent to specify where the fire had first started. The nearest that it came to such a question was the question that asked which compartment had first been affected. There was therefore no misrepresentation and certainly no fraudulent misrepresentation on the part of the respondent. The appellant was not therefore entitled to avoid the terms of the certificate on this basis. The appellant did not establish that the fire originated in the sawmill waste sites or that the respondent made any misrepresentation to it about its origins. The presence of the sawmill waste sites thus played no active part in what occurred on the day of the fire. A strong wind would have to exist at the moment that the fire first existed. It would have to be present to permit the flame to develop, and from that, spotting into compartment A13a would have occurred on the theory advanced by the appellant. However, that did not accord with the evidence of Ms Kubheka, who was asked the question regarding her first observation of the smoke and replied that it was going in an upward direction. That indicates that there was either no wind or, if there was a wind, that it was not sufficiently strong enough to dissipate the smoke in a particular direction. The appellant did not establish that the existence of the sawmill waste sites created an increased fire risk.

Order: Save to the extent set out below, the appeal is dismissed with costs. Paragraphs 1(i) and 1(ii) of the order are set aside and are replaced with an order declaring the appellant to be liable to the respondent for such damages as the respondent may prove at a hearing in due course arising out of the fire that occurred.

MOSSOP J (OLSEN J and NICHOLSON AJ concurring)

Facts: The respondent is in the business of providing temporary employment services. The applicants were all employed by the respondent. According to the applicants, the incident leading up to their dismissal arose when the respondent paid some the employees R2.80 instead of their normal weekly wage of R832.50. Some of the employees complained to the respondent’s operations manager. It is alleged that rather than attending to their grievances, the operations manager ordered the employees to leave his office and subsequently the premises. They contend that they were thereafter placed on precautionary suspension. The respondent's case in its response was that prior to the strike action on 6 October 2017, the employees had on two occasions in September 2017 participated in unprotected strike action. The respondent did not pay a fixed or basic salary, and the pay structure that was in place at the time was such that employees' weekly wage was calculated individually and according to hours worked and the number of items they had picked.

Application: The individual applicants, as represented by NTM, seek an order that their dismissals by the respondent on account of their participation in an unprotected strike action be declared procedurally and substantively unfair. The issues the court is required to determine are: whether there was a strike embarked upon by the employees; whether the dismissals were procedurally and substantively fair; whether NTM had organisational rights; and whether the dismissals were automatically unfair.

Discussion: Against the evidence of Moalusi, it is apparent that the employees, upon raising their grievances with their managers, decided to abandon their workstations and embarked upon an unprotected strike. This was despite Moalusi’s advice to them that they should utilise internal procedures to raise their grievances. The individual applicants' action of abandoning their workplace constituted a concerted refusal to work for the purpose of remedying a grievance related to their remuneration. Their conduct amounted to a strike as contemplated in the definition of that term in section 213 of the Labour Relations Act 66 of 1995. The strike embarked upon by the individual applicants from 6 October 2017 was clearly unprotected, and they made no attempts whatsoever to comply with the provisions of section 64 of the LRA. To succeed with the defence that the strike was in response to unjustified conduct by the respondent, the applicants were required to establish that the conduct complained of was egregious or inexcusable, or that they were treated unfairly or unlawfully, making the failure to comply with the applicable procedures under section 64 of the LRA excusable. Equally so, the applicants were required to establish that given the conduct of the respondent, they had no alternative remedy to their concerns that bonuses would not be paid.

Findings: When the applicants were informed that they should follow procedures and raise their grievances, they did not heed that advise and instead immediately embarked on a strike. Mere unhappiness with non-payment of consistent salaries in circumstances where the applicable salary structure had been in existence for some time, cannot suddenly constitute provocation. This is particularly so in circumstances where the individual applicants had various legal options available to them to remedy their grievances, without resorting to unprotected strike action. The individual applicants' decision to embark on an unprotected strike cannot be said to have been due to the respondent's provocative conduct. The evidence did not demonstrate that NTM had any organisational or contractual rights at the respondent. Equally so, there was no evidence presented that NTM had prior collective bargaining engagements with the respondent. Accordingly, the failure to contact NTM cannot make the dismissals procedurally unfair. Upon the individual applicants having rejected the ultimatums, the respondent had correctly notified them of disciplinary hearings against them. They had also rejected an opportunity to state their case as to why they should not be dismissed. Once they rejected that opportunity, and given their continued misconduct, the approach adopted by the chairperson in dismissing them cannot be faulted.

Order: The dismissals were procedurally and substantially fair. The applicants’ claim is dismissed.

TLHOTLHALEMAJE J

Facts: An incident occurred in 2018 during an U19A water polo fixture between Rondebosch Boys’ High School and Bishops at the school premises of Bishops. The plaintiff (Ross Stone) was participating in the match for Rondebosch, and Bingo Ivanisevic for Bishops. Both were Grade 12 learners at the time. During the last chukka of the match, Bingo punched Ross. He did so with his fist, causing injuries to Ross’s face, teeth and jaw. Bingo immediately received a red card for brutality and the match was drawn to an early close. Thereafter, in accordance with Bishops’ school rules, disciplinary procedures and codes of conduct, Bingo was called to a disciplinary meeting at which he was found by Bishops to have breached the school rules and sanctioned, inter alia, to a seven-match ban.

Claim: A delictual claim for damages in which the plaintiff seeks to hold the defendants (Bingo and Bishops) jointly and severally liable, alternatively in such proportions as the court may determine, for payment of R645,931.13 plus interest and costs. By agreement, merits and quantum were separated and the trial thus proceeded on the merits only. Quantum was to be determined at a later stage if necessary. In that regard, as a result of the punch, Ross suffered a fracture of the alveolar margin of the maxilla, and the displacement of numerous teeth as well as a dislodged tooth, for which he was required to undergo dental surgery including a bone graft socket preservation for one of his teeth.

Discussion: Bingo, a former Rondebosch pupil, was routinely taunted by the Rondebosch spectators whenever he played for Bishops. An issue raised was whether Bishops had allowed the “gladiatorial spectacle”, but this was abandoned. Ross confirmed that his case was not that Bishops had permitted the water polo match to take place per se (all of the relevant witnesses, including Ross and Bingo, were unanimous that water polo is an aggressive, fast, contact sport), but rather that Bishops allowed Bingo to participate, despite allegedly being aware of his (also allegedly) prior poor disciplinary record. Bingo testified that he and Ross had previously played against each other in a number of water polo (and rugby) matches without any altercation or other incident. The only individual who supported Bingo’s version that Ross pulled him under water by the drawstrings of his cap was Bingo’s mother who was an unsatisfactory witness with a clear agenda to protect Bingo at all costs.

Findings:  It can fairly be concluded that Bingo’s punch to Ross exceeded any legitimate expectation for receiving an injury of that nature in a contact sport such as water polo. It follows that Ross’s claim against Bingo on the merits succeeds. As to Bishops, the court is left with the materially uncontested versions of the Bishops and Rondebosch witnesses, which was that no disciplinary record for Bingo existed before the incident with Ross. Rondebosch itself was content to play Ross against Bingo in that match; and Mr Pienaar (a teacher) confirmed that the incident was unexpected and took everyone (including probably Bishops) by surprise. The inescapable conclusion is that Bishops did not breach its duty to Ross by playing Bingo in the match, and could not reasonably have foreseen the incident occurring. It follows that Ross’s case against Bishops fails.

Order: The plaintiff’s claim against Bingo succeeds and he is declared liable to the plaintiff for 100% of such damages as might be agreed upon or proven. The plaintiff’s claim against Bishops is dismissed.

CLOETE J