CASE LAW UPDATE

Facts: The appellant was arrested on charges of contravening the Marine Living Resources Act 18 of 1998 (MLRA) and the regulations. Together with four others who were arrested with him, he is currently awaiting trial on four charges. These concern the alleged unlawful acquisition and possession of 7,855 units of dried and wet abalone with a combined value of approximately R2,89 million, and the unlawful operation of an abalone processing plant. The prosecutor informed the magistrate that some three months earlier, the appellant had pleaded guilty in the Regional Court to similar offences involving abalone, which had been committed in 2021. In fact, the appellant had been convicted not only of contravening the MLRA but also of the offence of "money-laundering" in terms of the Prevention of Organised Crime Act 121 of 1998 (POCA). Notwithstanding these circumstances, and even though the prosecutor noted that the appellant was in possession of a passport issued by the Republic of China and his status in the country was unclear, he did not oppose the appellant’s release on bail. The magistrate set bail in an amount of R100,000.

Appeal: Eight months later, and whilst he was on bail, the appellant was arrested again on charges of contravening the MLRA. Notwithstanding his previous conviction and the suspended sentence which had been imposed on him less than a year earlier, the appellant managed to persuade the prosecutor to agree to the imposition of another, wholly suspended sentence of imprisonment, this time of five years, in respect of each charge. This is an appeal against the judgment and order in terms of which the bail which had been granted to the appellant a year earlier, was cancelled.

Discussion: It seems that the prosecutor agreed to the imposition of another wholly suspended sentence of imprisonment because he did not have due and proper regard for the previous conviction and the sentence which was imposed, as it was not even listed in the agreement as an aggravating factor relevant to the imposition of sentence. Bizarrely, it was noted in the agreement, as one of the mitigating factors, that the appellant had "a previous conviction for a similar offence", but the particulars thereof were not set out. Thus, it appears the prosecutor either concluded the plea and sentence agreement hastily, without properly ascertaining what the particulars of the appellant’s previous conviction and the sentence which was imposed in respect of it were, or he concluded the agreement well-knowing what they were but failed to ensure that they were disclosed to the court in the agreement, as they should have been. The previous conviction and the sentence which was imposed were also factors which impacted materially on the imposition of an appropriate sentence. As the magistrate rightly commented in passing, given the appellant’s record and the quantity and value of the abalone, the sentence which was agreed upon was, on the face of it, wholly inappropriate. A prosecutor who is authorised to conclude a plea and sentence agreement in a serious matter such as this one, which involves the rapacious depletion of our endangered marine and wildlife resources, must give due and proper consideration to all the factors which are listed in the section and should not merely pay the proverbial lip service to them.

Findings: The conclusion by the Regional Court control prosecutor of a plea and sentence agreement whereby it was agreed that the appellant, who was a serial, countrywide offender, was to receive yet another suspended sentence for the unlawful receipt and processing of a large quantity of illegally harvested abalone (worth millions of Rands), a wildlife resource which has been practically poached to extinction in this country, which by the accused’s own admission was destined to be exported for commercial gain, without due and proper regard for the value of the abalone and the appellant’s criminal record for similar offences, constituted a dereliction of duty. Consequently, the matter must be referred to the Director of Public Prosecutions for an investigation to be held into the circumstances under which the agreement was concluded by the prosecutor concerned. Even after the imposition of the sentence in April 2024 the appellant’s run of good fortune continued unabated. On 6 June 2024 he managed, somehow, to persuade the magistrate not to put the suspended sentence of imprisonment which had been imposed by the Regional Court the previous year, into operation, notwithstanding that he had breached the terms thereof only 11 months later in April 2024, by committing a similar offence in Cape Town, involving over 10,000 units of abalone. Notwithstanding the extraordinary run of good fortune which the appellant has had up to now, it must surely have come to an end, and given his record and the fact that he has already twice received the benefit of a suspended sentence, the chance that, in the event of a conviction in the current matter, he will be lucky for a third time, is remote, and he is likely to receive a lengthy sentence of imprisonment.

Order: The appeal is dismissed. The matter is referred to the Director of Public Prosecutions for investigation.

SHER J

Facts: The applicant is a physiotherapy practice (EDP) solely owned by Ms Dreyer. Dreyer has been operating a physiotherapy practice at Rondebosch Medical Centre (RMC), a private hospital. EDP derives most of its income from services rendered at the RMC. Dreyer claims she had built up a good relationship with referring doctors operating from RMC and EDP could not sustain her practice without their support. One of the practices referring patients to EDP is the Integrated Cardiac Care practice (ICC) which provides 50% of EDP’s patient load. The respondent, Mr Omar, was employed at the applicant. Omar worked as a locum physiotherapist of EDP and was then employed by the practice in a full-time capacity. Dreyer acceded to a request from Omar for a salary increase, and she also allowed him to see his own private patients at the premises, provided he did so outside of normal EDP working hours. His contract of employment contained the following provision: Should the employee resign from the practice they will not be allowed to work for any other practice giving service at RMC for a period of 1 year. Omar resigned from EDP, claiming that he wanted to pursue an opportunity at a new clinic and that he wanted to start his own practice. However, Dreyer discovered that he was in the process of luring referring doctors away from EDP in favour of his own practice.

Application: The applicant seeks to enforce a restraint of trade agreement to prevent the respondent from competing with it by conducting his own physiotherapy practice on certain premises. Dreyer alleges Omar continued to render services as a physiotherapist at RMC after he left EDP. Dreyer claims Omar is providing physiotherapy treatment to patients of ICC in RMC wards.

Discussion: Omar argues that he could only be in breach of the restraint if he was offering services whilst being employed by another physiotherapy practice, whereas he is practicing in his own name. Moreover, the restraint does not prevent him from rendering services at RMC premises as it refers to RMC, the legal entity, and not to the building it occupies. He freely admits that his principal place of business is the RMC hospital property. There is no dispute that Omar had agreed to the restraint provision. The dispute between the parties is centered on the interpretation of the clause. The critical dispute is whether it prohibited him from providing physiotherapy services in his own practice at RMC. The context in which it was concluded was one in which Dreyer had a practice located at RMC in which she employed other physiotherapists from time to time, sometimes as locums and at other times permanently. If one of those physiotherapists left her practice, having become familiar to referring doctors working at RMC and to the patients they treated, there is a risk they could start practicing at the same premises, competing for the same referral work which they previously rendered to EDP patients. Former physiotherapists employed by EDP could acquire the EDP patients they previously treated whilst working for EDP as the patients of another practice at those premises they were subsequently engaged with, and they could exploit the connections they had developed whilst working for EDP to the advantage of that practice.

Findings: EDP would want to try to preserve the connections the practice had with the referring doctors and to preserve existing client relationships against being exploited in the way described. Concluding a restraint provision would be a way of trying to achieve that end. The clause in question was drafted by EDP and Omar had no hand in negotiating it. The provision of services by a physiotherapy practice concerns the provision of a service “at” RMC not “to” RMC. "At" is a preposition of time or place. In the context of the clause, it can only be a preposition of place. In addition, EDP’s physiotherapy services are not confined to serving RMC as an entity, so it is reasonable to assume that the clause is intended to cover the scope of all the services it renders at the RMC premises. It makes little sense why EDP would only want to protect itself from Omar exploiting the relationship he developed with clients who were referred by the hospital alone, in circumstances where referrals are received not only from doctors employed by the hospital but by other practices on the same premises, such as the doctors of ICC. There is no sound reason why the restraint would be confined to work performed in the treatment of RMC patients only.

Order: The respondent is ordered to comply with the restriction of trade agreement. The respondent may not work in any capacity, for any practice, including his own, by rendering any physiotherapy services at the Rondebosch Medical Centre premises for a period of one year from the date of the respondent's resignation.

LAGRANGE J

Facts: The first plaintiff is the widow of the deceased. She testified that the fourth plaintiff is her uncle. They reside in detached houses within the same premises. On a Sunday morning in 2019, the fourth plaintiff left together with the deceased to visit family in Atteridgeville. Metro Police officers later fired on the red Renault Clio motor vehicle, killing the deceased, who was the driver. The fourth plaintiff sustained a gunshot wound to the right hand. The version of the officers is that two of them were on a crime prevention patrol when they noticed that the Clio had no licence disc so they put on the blue light to signal to the occupants to stop. The deceased instead accelerated and sped off. The officers turned on the siren and a chase ensued. After about a kilometre, the fourth plaintiff started shooting at the officers and Constable Thoka, who was a front seat passenger, retaliated by firing shots towards the Clio.

Claim: The plaintiff lodged a claim for loss of support both in her personal capacity as the deceased’s wife as well as in her representative capacity as mother and natural guardian of her two minor children. The fourth plaintiff claimed for the injuries to his hand and the actions were consolidated. The court ordered that the merits and quantum be separated in terms of Uniform Rule 33(4). The matter is therefore proceeding on the issue of merits only.

Discussion: The explanations of the fourth plaintiff were inconsistent. The conduct of the fourth plaintiff is inconsistent with that of a person who had been shot at and whose close relative (the deceased) was also injured. He left the scene, had no concern for the well-being of the deceased, and did not attempt to get any form of assistance for him. His were the probable actions of a person who had been on the wrong side of the law. It is not in dispute that dagga was found in the red Clio. This explains why its occupants desperately sought to avoid the Metro Police officers. There was no trace of the firearm used by the fourth plaintiff, obviously because he immediately left the scene. Therefore, he had every opportunity to dispose of the firearm. The explanation given by the Metro Police officers for not following the fourth plaintiff was that it was dark, he disappeared into a bushy area, and they feared for their safety as he was armed.

Findings: Counsel for the plaintiffs canvassed as alternative measures that Constable Thoka could have fired a warning shot or directed the gunshots to the tyres of the red Clio. The situation that night was sudden and unexpected. As conceded by counsel for the plaintiffs, the entire episode must have taken place within a very short time span. There was absolutely no time for Constable Thoka to have reflected on different courses of defensive action available to him when the fourth plaintiff started shooting at them. Constable Thoka started firing shots after the fourth plaintiff fired shots at them. While they were ignoring instructions to stop, the fourth plaintiff had started shooting. Ten shots in total were fired by Constable Thoka. This may seem not to be proportional. Four of the ten bullets hit the red Clio. There was no way to prevent the occupants of the red Clio from fleeing. It may well be that the deceased did not fire shots at the Metro Police officers. However, when considering the circumstances of the case, it cannot be said that it was not necessary for Constable Thoka to avert the attack on himself and his colleague. Therefore, without a wrongful act, there can be no cause of action for loss of support. It follows therefore that the dependants’ claims brought by the first plaintiff cannot succeed.

Order: The plaintiffs’ claims are dismissed with costs.

MOLELEKI AJ

Facts: Ms Galela launched an ex parte application for her admission as a legal practitioner to the High Court in 2023. She attached a statement of her academic record from the University of the Witwatersrand (Wits) which reflected that she had qualified for a Bachelor of Arts degree in 2018 and had graduated in 2019. The academic record for the LLB reflected that she had qualified in 2020. It did not reflect that she had graduated. At the time Ms Galela commenced her admission application, she was employed at Werksmans Attorneys, having entered into and completed a practical vocational training contract (PVT contract) with a director at the law firm. The LPC drew Ms Galela’s attention to the fact that she had not attached her LLB certificate to the application and that she had stated under oath that she did not occupy any other position, nor was she engaged in any other business whatsoever other than that of a candidate legal practitioner. The LPC pointed out that according to the CIPC website, Ms Galela was listed as having held an active directorship in an enterprise during her period of service as a candidate legal practitioner.

Appeal: The High Court held that Ms Galela (appellant) was not a fit and proper person to be admitted as a legal practitioner. The primary issue for determination is this: what information was Ms Galela obliged to disclose in her ex parte application for admission, and what consequences flow from the lack of full disclosure?

Discussion: Regarding her failure to attach the LLB certificate, Ms Galela explained that Wits does not issue degree certificates to graduates who are in arrears with their fees. Nonetheless, the academic transcript is proof that she has met the necessary academic requirements for the BA Law and LLB degrees. Ms Galela stated that she was not a recalcitrant debtor, rather she was unable to pay the large sum of more than R143,000 which was owing to Wits. Significantly, the amount has now been settled and there is no longer an outstanding amount owing to Wits. Regarding her directorship in the company incorporated to build a student app, Ms Galela attributes her failure to obtain prior written consent to her belief, genuinely held, that her directorship of Varsigator had automatically ceased once it stopped trading in 2017. She therefore was of the opinion that when she entered into a PVT contract in 2021, the company had been defunct for some four years.

Findings: Ms Galela’s supplementary affidavit has set out a proper explanation as to why she did not disclose that she was a director of Varsigator. In short, the business failed. As a result, Varsigator never opened a bank account, received no income and did not file tax returns. Her non-disclosure, albeit negligent, was not intended to deceive, nor did the directorship interfere with her proper training. There are sufficient grounds for this court to condone her non-compliance with Rule 22.1.5. In addition, the court is satisfied that her reason for non-payment of her university tuition is not due to any dishonesty on her part but rather a genuine inability to pay her fees at the time. These have now been paid in full. In the circumstances the court is of the view that Ms Galela is a fit and proper person to be admitted to the legal profession.

Order: The appeal against the order of the High Court is upheld. That order is replaced with an order that: applicant has shown good cause for contravening Rule 22.1.5.1 of the Legal Practice Council Rules, and it is declared that the practical vocational training contract entered into between the applicant and Dr Eric Levenstein is not void ab initio, and that the service rendered thereunder is effective, as contemplated under Rule 22.1.5.2 of the LPC rules; the applicant be admitted to practise as a legal practitioner and is authorised to be enrolled as an attorney; and the LPC is authorised to enrol the applicant as a legal practitioner.

NICHOLLS JA (MOLEFE JA, SMITH JA, UNTERHALTER JA and DOLAMO AJA concurring)