INDEX 1

EDITORIAL

SOUTH AFRICAN LAW REPORTS JULY 2016

SA CRIMINAL LAW REPORTS JULY 2016

All SOUTH AFRICAN LAW REPORTS JULY 2016

EDITORIAL

Editorial

After a long battle with Vodacom, a former employee will receive what was due to him….but how can an ordinary man afford to fight against financial gurus? Thanks to sponsors! The applicant, being sponsored (but not for free) had 4 counsel and the respondent as well.2

“We can confirm that we have received the ... request and that our focus is on complying with the order of the Constitutional Court‚ which requires us to negotiate in good faith with Mr Makate. We are committed to a swift resolution in line with the ruling of the Constitutional Court. We have already initiated a process for negotiating a reasonable compensation for Mr Makate and the matter is being dealt with as a priority‚” said Byron Kennedy‚ Vodacom spokesperson. Bloomberg reported that Sterling Rand‚ which funded Makate in his legal bid against Vodacom‚ had asked the company to delay its full payment.

Sterling Rand‚ financial backers for Makate‚ told Vodacom to withhold at least 50% of any settlement‚ a letter sent on behalf of Sterling Rand by lawyers Fairbridges Wertheim Becker shows‚ according to the Bloomberg report.

Sterling Rand is concerned that Makate and his lawyers‚ Stemela & Lubbe‚ will agree to a deal that excludes the company. If Vodacom does not agree to the request‚ an

1 A reminder that these Legal Notes are my summaries of all reported cases as are set out in the Index. In other words where I refer to the June 2016 SACR , you will find summaries of all the cases in that book. It is for private use only. It is only an indication as to what was reported, a tool to help you to see if there is a case that you can use!

2 MAKATE v VODACOM LTD 2016 (4) SA 121 (CC) C Puckrin SC (with G Marcus SC, R Michau SC and S Budlender) for the applicant. SA Cilliers SC (with M Chaskalson SC, RA Solomon SC and A Mac Manus) for the respondent.

LEGAL NOTES VOL 8/2016

Compiled by: Adv. Matthew Klein

urgent application will be asked for from the courts‚ according to the letter dated May 23.The dispute comes a month after the Constitutional Court ruled that Vodacom must compensate Makate for the idea‚ which allows customers with no balance on their mobile phones to alert someone with a free text message.3

 SALR JULY 2016

NKABINDE AND ANOTHER v JUDICIAL SERVICE COMMISSION AND OTHERS 2016 (4) SA 1 (SCA)Constitutional law — Administration of justice — Judicial Service Commission — Complaint of judicial misconduct — Decisions — Review — New procedures applied retrospectively to complaint lodged in terms of old rules — Whether retrospective application infringing principle of legality — Inquiry under old rules and new procedures substantively the same — No existing rights infringed, nor any material prejudice — Principle of legality not breached.Constitutional law — Administration of justice — Judicial Service Commission — Complaint of judicial misconduct — Complaint not under oath as required by statute — Where complaint later confirmed by oral testimony under oath before Commission, and on affidavit in litigation — Purpose of requirement, which is to provide required solemnity to complaint and discourage lodgement of frivolous complaints, met — Substantial compliance — Judicial Service Commission Act 9 of 1994, s 14(3)(b).Constitutional law — Administration of justice — Judicial Service Commission — Complaint of judicial misconduct — Appointment of prosecutor to lead evidence for judicial conduct tribunal — Whether offending against separation of powers and independence of judiciary — Prosecutor not forming part of executive — Independence of National Prosecuting Authority protected by provisions of Constitution and National Prosecuting Authority Act 32 of 1998 — Prosecutor's role limited to collecting and leading evidence — Separation of powers and independence of judiciary not infringed — Judicial Service Commission Act 9 of 1994, s 24(1).

In 2008 the justices of the Constitutional Court lodged a complaint with the Judicial Service Commission (JSC) concerning the conduct of Judge President Hlophe of the Western Cape High Court: it was alleged that he had approached the appellants, two justices of the Constitutional Court, in an attempt to improperly influence the court's judgment in certain pending matters. This complaint, and the JSC's approach in dealing with it, gave rise to extensive litigation, by a number of parties, and in various fora. Of concern in the present matter were decisions taken in 2012 by the JSC. (These decisions followed various judgments declaring to be unlawful previous proceedings of the JSC in 2009 in which it rejected the complaint.) Acting in terms of the Judicial Service Commission Act 9 of 1994 (JSCA) as amended in 2010, it referred the complaint to the Judicial Conduct Committee (the JCC) for a preliminary inquiry; requested the Chief Justice to appoint a Tribunal to investigate and report on the complaint; and, in terms of s 24(1) of the JSCA, appointed a member of the National Prosecuting Authority (NPA) to collect and adduce evidence before the

3 http://www.sowetanlive.co.za/news/2016/05/26/please-call-me-inventornkosana-makate-may-lose-50-of-vodacom-payout

Tribunal. The appellants unsuccessfully brought an application in the court a quo for an order setting aside the decisions of the JSC to refer the complaint to the JCC and to appoint a Tribunal, and declaring s 24(1) of the JSCA to be unconstitutional. The issues to be resolved in the appeal against that court's decision, and the SCA's findings, were as follows.Retrospective application of new statutory regimeIn 2010 extensive amendments were made to the JSCA. They introduced new mechanisms for the lodging and disposal of complaints, including the establishment of the JCC and a Tribunal. The JCC in 2012 dealt with the complaint under this new statutory regime. The appellants argued that this constituted a breach of the principle of legality in light of the fundamental principle that statutes generally apply prospectively unless retrospective application was contemplated by the legislation itself. The complaint should have been dealt with in terms of the 'old rules' which constituted the regulatory regime prior to the amendments to the JSCA.HeldFor the appellants to be successful in their claim on the basis of unlawful retrospective application, it had to be shown that the new statutory regime impinged upon rights existing at the time of the introduction of the amendments. The appellants could not meet this requirement — no existing rights were affected, nor was there any material prejudice to the appellants. Such a conclusion was buttressed by a comparison of the procedures under the old rules with the processes established in terms of the amendments to the JSCA. The inquiry was substantively the same: the grounds on which a judge could be ultimately removed, and the possible sources of the complaint, were the same; both systems made allowance for the judge concerned to make representations; both made provision for the right of cross-examination; both envisioned a tiered inquiry process, inquisitorial in nature, where the final decision to refer a request to the National Assembly for removal of a judge lay with the JSC in its full complement; and both allowed a non-member of the JSC to lead or cross-examine witness. Invalid complaintThe appellants argued that, even if the amended provisions of the JSCA were applicable, the inquiry could not have been proceeded with because there was no valid complaint before the JCC — more particularly, there was no complaint under oath as required by s 14(3)(b) of the JSCA. That provision called for the lodging of 'an affidavit or affirmed statement'.HeldIt was never the assertion of the appellants that the JSC had acted in contravention of its obligations and duties in terms of ss 177 and 178 of the Constitution when it received the complaint under the rules in force at the time. In the circumstances the invalidation of the complaint would infringe upon the rights of the complainants, and the appellants, and harm the image of the judiciary. This could never have been in the contemplation of the legislature when effecting the amendments. Section 15(2)(b) of the JSCA provided for the summary dismissal of a complaint if it did not 'comply substantially' with the provisions of s 14(3). Such was a clear indication that a complaint was not automatically invalidated because it was not on affidavit. The purpose underlying the requirement — to provide the required degree of solemnity to a complaint, and to discourage the lodgement of frivolous complaints — was met in the present circumstances, where the complaint was confirmed by oral testimony under oath before the JSC in terms of the rules, and reconfirmed, on affidavit, in subsequent litigation. Further, even if one were to take the view that a

complaint under oath was required in order for the JSC to conduct a preliminary inquiry and to establish the Tribunal, then the conclusion was compelled that there has been substantial compliance with this requirement. As such, the complaint was not invalidated by not having originally been on oath. The constitutionality of s 24(1) of the SCAThe appellants submitted that s 24(1) of the JSCA, by allowing for the appointment of a member of the NPA to collect evidence on behalf of the Tribunal and to adduce evidence at a hearing, breached the principles of separation of powers and the independence of the judiciary. The argument was that the involvement of such a person constituted an improper delegation of power to 'a member of the Executive' and that it impermissibly involved a non-member of the JSC in the adjudication of the conduct of a judge.HeldA prosecutor could not be regarded as being part of the executive, as evidenced by the NPA's location within the constitutional framework: the NPA was established in terms of s 179 of the Constitution, which fell under ch 8, entitled 'Courts and Administration of Justice', whereas the executive was dealt with under other chapters. The independence of the NPA was protected both in terms of the Constitution, which in s 179 provided that national legislation had to ensure that the prosecuting authority exercised its functions 'without fear, favour or prejudice', and the National Prosecuting Authority Act 32 of 1998, which in s 32 obliged prosecutors to take an oath of office or affirmation to the effect that they would uphold the Constitution and enforce the law without fear, favour or prejudice. Further, the prosecutors were limited in their role to that of collecting and leading evidence; they did not take any part in any final decision-making by the Tribunal or the JSC. As such, s 24(1) of the JSCA did not threaten either judicial independence or the separation of powers.

TRANSPORT AND ALLIED WORKERS UNION OF SOUTH AFRICA v PUTCO LTD 2016 (4) SA 39 (CC) Labour law — Lock-out — Legality — Purported lock-out of members of trade union which was not party to bargaining council where dispute arose and referred for conciliation — Whether lawful — Labour Relations Act 66 of 1995, ss 64(1) and 213. Labour law — Lock-out — Legality — Purported lock-out of members of trade union which was not party to bargaining council where dispute arose and referred for conciliation — Whether union party to dispute, and subject to lock-out, by virtue of power of Minister to extend collective agreement to non-parties — Labour Relations Act 66 of 1995, ss 32 and 64(1). Labour law — Collective agreement — Bargaining council agreement — Clause in bargaining council constitution providing that members of non-party employee trade union bound by collective agreement reached at bargaining council — Whether lawful.Labour law — Lock-out — Legality — Purported lock-out of members of trade union which was not party to bargaining council where dispute arose and referred for conciliation — Majoritarian principle (majoritarianism) — Whether principle applying such that trade union members parties to dispute and subject to lock-out — Labour Relations Act 66 of 1995, s 64(1).

Labour law — Majoritarian principle (majoritarianism) — Purported lock-out of members of trade union which not party to bargaining council where dispute arose and referred for conciliation — Whether principle applying such that trade union members party to dispute, and subject to lock-out — Labour Relations Act 66 of 1995, s 64(1).

This matter stemmed from the institution by Putco Ltd (Putco), a passenger bus operator, of a lock-out of all its employees, 26% of whom belonged to the appellant, a trade union, TAWUSA. Putco had embarked on this course of action after industry wage negotiations at the South African Road Passenger Bargaining Council (the Bargaining Council), of which Putco was a member. The Bargaining Council had jurisdiction over collective bargaining in the bus passenger industry. The negotiations — which were aimed at the conclusion of a new collective agreement — had stalled, and the trade union representatives party to such Bargaining Council had signified to Putco their intention to launch strike action. TAWUSA, however, informed Putco that its members would not take part in the strike. In response to the strike notice, Putco notified TAWUSA of its intention to lock out all employees in the bargaining unit 'in support of wage proposals in the wage negotiations in the [Bargaining Council]'. TAWUSA's response was that it was not a member of the Bargaining Council, and thus not a party to the dispute, and could therefore not be locked out (TAWUSA had terminated membership prior to the dispute leading to lock-out arising).TAWUSA successfully instituted an urgent application in the Labour Court for an interdict to prevent Putco from maintaining the lock-out. On appeal the Labour Appeal Court found the lock-out to be lawful, on the ground inter alia that TAWUSA was a party to the dispute by virtue of the interest that it had in the outcome of the negotiations at the Bargaining Council and the benefits it stood to reap from the collective agreement reached there. TAWUSA took the matter on appeal to the Constitutional Court.The Constitutional Court phrased the legal question to be addressed as follows: Did the Labour Relations Act 66 of 1995, in particular ss 213 and 64(1), which set out the requirements for a lock-out, permit an employer to lock out members of a trade union that was not a party to a bargaining council where a particular dispute had arisen and had been referred for conciliation?The Constitutional Court ultimately found that the purported lock-out of TAWUSA did not comply with ss 213 and 64(1). Broadly speaking, both sections demanded that before a lock-out could be instituted, a dispute had to exist between the employer and the targeted employees, or their trade union. The requirement had not been met in the circumstances.HeldNon-compliance with s 213 of the LRAThe purpose of a lock-out in terms of s 213 was to compel employees whose trade union was party to certain negotiations to accede to an employer's demand. Its object was to resolve an impasse in negotiations between employer and employee in respect of matters of mutual interest. As a resolution of a dispute could be reached only between adversaries, logically there had to be a dispute between an employer and employees, or their trade union, before a lock-out was instituted. Accordingly, any exclusion of employees from an employer's workplace that was not preceded by a demand in respect of a disputed matter of mutual interest did not qualify as a lock-out in terms of s 213 of the LRA.

Putco's notice to TAWUSA preceding its purported lock-out did not constitute a perspicuous demand as required by s 213, rendering the lock-out of TAWUSA unlawful:• A recognition agreement had previously been entered into between TAWUSA and Putco in terms of which the parties recognised that the minimum terms and conditions of employment in the bus passenger industry were regulated by the Bargaining Council. It required that negotiations in respect of such matters be undertaken at the Bargaining Council; the corollary being that demands in respect thereof could only be made there.• Furthermore, a lock-out notice could not also constitute a demand; the LRA clearly distinguished between the two. The purpose of the notice was to inform a union and its members of an impending lock-out; in other words, at the time of the notice, recourse to a lock-out must have already been available.• Putco had made a demand in the form of wage proposals at the Bargaining Council; however, TAWUSA was not a party to the Bargaining Council. As such, no demand had been made to TAWUSA. Non-compliance with s 64(1) of the LRAIn terms of s 64(1)(a) an employer had recourse to lock-out only if the 'issue in dispute' had been referred to a council or to the Commission and the dispute could not be resolved. * It was clear then that no industrial action could be undertaken until there had been an attempt at conciliation, and such conciliation had failed. Further, only once a dispute had arisen could it be referred to a bargaining council for conciliation. In the present case a dispute arose at the Bargaining Council, where unsuccessful conciliation efforts occurred. However, the entire process did not involve TAWUSA because it was not a party to the Bargaining Council. The Labour Appeal Court was incorrect in finding that TAWUSA was a party to the dispute because it stood to benefit from the dispute's resolution at the Bargaining Council; and because it would be bound by the collective agreement reached and would thus 'reap the benefits of the wage negotiations should the majority unions' demand[s] be accepted'. TAWUSA was not a party to the dispute for the simple reason that it was not a party to the Bargaining Council when the particular dispute arose. From the impasse in negotiations to the resultant industrial action, the parties to a dispute remain the same; they do not change midway through the resolution process. Thus, on a proper interpretation of s 64(1), the 'employees' who could be the subject of the lock-out and to whom notice of lock-out had to be sent were those who were party to a bargaining council where the dispute arose and was referred for conciliation. TAWUSA did not fall into such a category. Whether s 32 of the LRA and the Bargaining Council constitution rendered TAWUSA a party to the dispute Putco argued that because collective agreements were ordinarily extended to non-parties by the Minister in terms of s 32 of the LRA, and TAWUSA stood to benefit from any collective agreement so extended, it was a party to the dispute. This was incorrect. In terms of s 32, before the Minister could exercise the power to extend a collective agreement, such an agreement had to have been concluded [no new collective agreement had been concluded in the present case]. Further, he or she would do so only if certain conditions set out in the provision had been met. TAWUSA could not have been a party to the dispute on the mere possibility that, in the foreseeable future, the collective agreement concluded might be extended to it.Putco further argued that the lock-out of TAWUSA was lawful by virtue of the provisions of the Bargaining Council constitution, which stated that 'all eligible

employees in the employ of [employers' organisations party to the Bargaining Council] regardless of Union affiliation' were bound by the terms of the constitution and any agreement concluded under the auspices of the Bargaining Council. Such a clause was not binding in circumstances in which the LRA, and in particular s 30 thereof, did not empower a bargaining council to conclude collective agreements that bound non-parties, and in the light of the fundamental tenet of labour law that employees could be represented through their trade union. MajoritarianismPutco sought to rely on the view of the court a quo that TAWUSA was party to the dispute on the basis that, through the operation of the principle of majoritarianism, it was bound by the collective agreement that would be entered into by the majority trade unions. Such an approach was to be rejected. Majoritarianism found no application to strikes and lock-outs under ss 213 and 64(1), and could not be relied upon to extend a dispute within a bargaining council to a party that was not a member of that council. Appeal upheld.

MINISTER OF BASIC EDUCATION AND OTHERS v BASIC EDUCATION FOR ALL AND OTHERS 2016 (4) SA 63 (SCA) Education — Right to education — Duties of state — Provision of textbooks — Requirements as to — Constitution, s 29(1)(a).

The Department of Basic Education adopted a new curriculum for schools, with new textbooks. However, it failed to provide the textbooks to certain public schools in Limpopo, and Basic Education for All obtained a High Court order declaring the constitutional rights of the affected children, and ordering delivery. The Department appealed to the Supreme Court of Appeal. In issue was whether the right to a basic education included a right of each learner to be given the textbook prescribed for each subject before the start of teaching of that subject. Constitution, s 29(1) Held, that it did. Appeal dismissed. 

BSB INTERNATIONAL LINK CC v READAM SOUTH AFRICA (PTY) LTD AND ANOTHER 2016 (4) SA 83 (SCA)

Nuisance — Neighbour disputes — Building works not complying with town- planning scheme and encroaching on adjoining owner's s rights — Court's discretion to order demolition.Local authority — Buildings — Demolition — Of building erected without approved building plans — Court's discretion to order demolition — Semble: May be incorrect to interpret s 21 of National Building Regulations and Building Standards Act 103 of 1977 as removing court's discretion to order partial or total demolition. 

The court a quo's order — the subject of the appeal in this case — included a directive that the appellant's building be demolished to the extent necessary for compliance with the relevant town-planning scheme. The court did not, however, explain the legal basis for such order.On appeal the Supreme Court of Appeal, confirming the partial demolition order, held that the power to order demolition was sourced from a broad general discretion vesting in courts, after due consideration of all relevant circumstances, to order

demolition at the instance of a party which had suffered an encroachment upon its rights. Semble: Interpreting s 21 of the National Building Regulations and Building Standards Act 103 of 1977 as removing the court's discretion to order partial or total demolition, may well not withstand careful scrutiny.

MOGALAKWENA MUNICIPALITY v PROVINCIAL EXECUTIVE COUNCIL, LIMPOPO AND OTHERS 2016 (4) SA 99 (GP)Constitutional law — Provincial government — Power to intervene in local government — Standard intervention — Semble: Prior directive mandatory in all but most extreme cases — Constitution, s 139(1)(a) and (b).Constitutional law — Provincial government — Power to intervene in local government — Standard intervention — Abuse — Partisanship — Procedure used to settle political dispute in favour of preferred faction in municipal council — Unconstitutional — Constitution, s 139(1)(b).

Section 139 of the Constitution allows a provincial executive to intervene in a municipality that fails to 'fulfil an executive obligation in terms of the Constitution or legislation . . . by taking any appropriate steps to ensure [its] fulfilment . . . , including (a) issuing a directive; (b) assuming responsibility for the relevant obligation . . .; or (c) dissolving the Municipal Council . . . .'On 17 March 2014 the first respondent decided — purportedly in terms of s 139(1)(b) — to assume responsibility for most of the executive obligations of the faction-riven applicant municipality. The intervention was not preceded by a directive under s 139(1)(a). The decision to intervene was conveyed to the municipality by a notice, also of 17 March 2014, signed by the second respondent, the competent MEC (see [12] for the wording of the notice). It listed the obligations assumed by the first respondent and stated that someone would be appointed to act on behalf of the province in this regard. That person turned out to be the sixth respondent. The municipality, arguing that the respondents were unlawfully usurping its power to govern itself, launched the present application for an interim interdict. The court emphasised at the outset that since it was dealing with an application for interim relief, it would make only provisional findings (see [3]). HeldAs to whether a provincial executive was required to issue a directive in terms of s 139(1)(a) before it intervened in the affairs of the municipality: Semble: Since an intervention under s 139(1)(b) implicated the doctrine of separation of powers and could have devastating effects on a municipality — particularly if wielded by the political opponents of those in power in the municipality — s 139(1) should be interpreted to require a prior directive in all but the most extreme cases. Accordingly, the municipality had good prospects of success in the review on this ground. And since the notice of intervention was extremely vaguely drafted, there was also a strong prima facie case for the setting-aside of the decision on the ground of lack of rationality. As to the legality of the intervention: It appeared to be an attempt to gain control of every facet of the municipality, including the allocation of its funds. It was clear from the evidence that the sixth respondent, who was presented as an impartial administrator, was really appointed in order to interfere in the politics of the municipality by replacing certain municipal councillors with biddable ones. This was an abuse of the Constitution, unlawful, undemocratic and reprehensible.

As to the respondents' submission that the matter was not urgent: The applicant's case, if ultimately substantiated, was directed at redressing a serious violation of the rule of law; every action taken by a usurper of power was unlawful, and prejudice to the municipality was manifest. The matter was clearly urgent and would remain on the roll for hearing.As to whether the interim interdict would be granted: Given the municipality's prospects of success in the contemplated action, the manifest harm to the municipality if an interdict were not granted, and the balance of convenience in its favour, an interim interdict would issue.So ordered.

MAKATE v VODACOM LTD 2016 (4) SA 121 (CC)

Agency and representation — Agent — Authority — Ostensible authority — Distinct from estoppel — Ostensible authority defined as power to act as agent indicated by circumstances; estoppel as rule precluding principal from denying that it gave authority to agent — Fact that representation giving rise to ostensible authority may also form basis of estoppel not collapsing concepts into one.Company — Director — Authority — Ostensible authority — To bind company to agreement to compensate employee for work-related invention — Ostensible authority indicated by director's membership of board; his position as director of product development; his wide powers over new products; and process that had to be followed before introduction of new products.Contract — Consensus — Oral agreement to negotiate in good faith (pactum de contrahendo) — Enforceable if it provides deadlock-breaking mechanism in event of parties not reaching consensus. Estoppel — Distinct from ostensible authority — Estoppel defined as rule precluding principal from denying that it gave authority to agent; ostensible authority defined as power to act as agent indicated by circumstances; estoppel as rule precluding principal from denying that it gave authority to agent — Fact that representation giving rise to ostensible authority may also form basis of estoppel not collapsing concepts into one. FPractice — Pleading — Ostensible authority — Distinct from estoppel — Need not be pleaded in replication — May be raised in particulars.

Former Vodacom employee Mr Nkosana Makate sued Vodacom for compensation for having conceived — while employed as a trainee accountant at Vodacom during November 2000 — Vodacom's lucrative Please Call Me service. Vodacom launched the service in February 2001, and it proved to be a major success, netting the company several billion rand. Mr Geissler, Vodacom's then director of product development, verbally agreed to remunerate Mr Makate for his idea. The parties deferred negotiations on the amount of compensation to a later date but concurred that if no agreement were reached, compensation would be determined by Vodacom's CEO. No agreement on compensation was, however, reached, and later the then CEO of Vodacom, Mr Knott-Craig, falsely claimed that Please Call Me was his idea. * Having received nothing, Mr Makate left Vodacom late in 2003. In 2008 he instituted a High Court action to enforce his agreement with Mr Geissler, which, according to the undisputed evidence of Mr Makate, was that the parties would enter into bona fide negotiations over compensation. Vodacom disputed the existence of

any such agreement and contended in the alternative that Mr Geissler lacked actual or ostensible (apparent) authority to bind the company.The High Court, while accepting that Mr Makate had proved the compensation agreement between him and Vodacom and that Mr Knott-Craig did not invent Please Call Me, dismissed Mr Makate's claim on the ground that Mr Geissler had lacked ostensible authority and because the claim had prescribed under s 11(d) of the Prescription Act 68 of 1969. The word 'debt' had to be widely interpreted, said the court, to include a claim that the defendant comply with its obligations under a contract. Invoking the estoppel-as-shield analogy, the court found, moreover, that Mr Makate should have pleaded ostensible authority in replication instead of raising it in his particulars. In an application for leave to appeal to the Constitutional Court —Held, by the majority (Jafta J; Mogoeng CJ, Moseneke DCJ, Khampepe J, Matojane AJ, Nkabinde J and Zondo J concurring)Interference with the factual findings of the High Court was not warranted, and the matter would be approached on the basis that an agreement between Mr Makate and Mr Geissler was established. But the High Court's view that Mr Makate had mistakenly raised estoppel in his particulars was based on a faulty conflation of estoppel and ostensible authority, which were distinct concepts. This conflation, which had limited legal precedent, had resulted in the attribution of elements of estoppel to ostensible authority. Yet estoppel was not a form of authority but a rule that if the principal had conducted himself in a manner that misled a third party into believing that the agent had authority, he was precluded from denying it. While the same misrepresentation could lead to ostensible authority by creating the appearance that the agent had authority to act on the principal's behalf, ostensible authority had this sole requirement — the representation — and lacked the other elements of estoppel. Ostensible authority was the authority of an agent as it appeared to others while estoppel was no authority at all and it was contrary to principle to collapse the two concepts into one. Since Mr Makate alleged in his particulars that Mr Geissler had ostensible authority and Vodacom denied this in its plea, ostensible authority became one of the issues to be determined at trial.As director of product development Mr Geissler was not only Vodacom's front man in dealings with third parties in relation to new products, but could make or break any new product. His membership of Vodacom's board, his power over new products, the organisational structure within which he operated, and the process that had to be followed before a new product could be introduced, gave the appearance that Mr Geissler had authority to negotiate all issues relating to the introduction of new products at Vodacom. Hence Mr Geissler had ostensible authority to bind Vodacom.'Debt' as used in the Prescription Act had to be narrowly interpreted so that it least impaired the right of access to courts. But since Mr Makate's claim for an order forcing Vodacom fell beyond the scope of a 'debt' as defined by ruling precedent, namely an obligation to either pay money, deliver goods or render services, it was not necessary to precisely determine its meaning. It followed that the trial court had attached an incorrect meaning to the word. Since a 'debt' contemplated in s 10 of the Prescription Act did not cover the present claim, it did not prescribe.Mr Makate sought the enforcement of a pactum de contrahendo — an agreement to agree — on fair compensation for his idea. Such pacta were enforceable if they provided a deadlock-breaking mechanism, should the parties fail to reach consensus. In the present case a deadlock-breaking mechanism was in place: if the parties disagreed on compensation, it would be determined by Vodacom's CEO. So

ordered, with the proviso that the CEO could not represent Vodacom at the negotiations, but could only be approached to break deadlock.Held, by the minority (Wallis AJ; Cameron J, Madlanga J and Van der Westhuizen J concurring)Mr Makate was entitled to the relief set out in the main judgment on the ground that Mr Geissler had ostensible authority to conclude the agreement with Mr Makate. But, contrary to the view expressed in the main judgment, it was settled law that, where there was no actual authority, ostensible authority was a form of estoppel (see [109]). While ostensible authority could coincide with actual authority arising by implication, in the present case there was no authority at all, which took it into the realm of estoppel. The view that ostensible authority could be raised only by way of a replication was incorrect; it could be pleaded from the outset. Hence the trial court's finding that ostensible authority was not pleaded because it had to be done by way of replication, was wrong. As Vodacom had represented to the world — including Mr Makate — that Mr Geissler had authority to conclude the agreement with Mr Makate, he had ostensible authority to do so, with the consequence that Vodacom was estopped from denying it.Since Vodacom's obligation to negotiate with Mr Makate did not involve the payment of money, the delivery of goods or the rendering of services, but required bona fide conduct on both sides, Mr Makate's right was one of the rare kind that did not constitute a debt for the purposes of prescription.

MT v CT 2016 (4) SA 193 (WCC)Contempt of court — What constitutes — Failure to follow rule 37(8)(c) direction — Uniform Rules of Court, rule 37(8)(c). 

At a pre-trial conference the presiding judge gave the plaintiff directions in terms of Uniform Rule 37(8)(c). The plaintiff failed to follow them, and the question was whether such a failure could be addressed with contempt proceedings. Held, that it could be. This court has been managing, in terms of rule 37(8), the pre-trial procedures relevant to Mr and Mrs T's divorce case which was transferred to this division from the High Court in Durban in 2014.  The matter has a long and chequered history, having commenced in that court in 2009. Both parties were previously represented by attorneys and counsel but these have fallen by the wayside and since the transfer of the matter to this court they have represented themselves in the divorce action. I do not intend to go into any great detail regarding the background circumstances relevant to this matter: that is dealt with in a very comprehensive report (574 pages exclusive of annexures) filed by the family advocate two days ago.The plaintiff, Ms MT, presently resides in Somerset West with the parties' 9-year-old minor son E (whom the plaintiff prefers to call 'B'), while the defendant resides in Johannesburg. He travels down to Cape Town by bus when it is necessary to attend court for a pre-trial hearing, claiming that he is penniless, and when he is in Cape Town puts up at a cheap backpackers' lodge in Long Street not far from the court building.The principal issue in the main action is the care and contact arrangements in relation to E. The plaintiff has informed the court that this is the only issue. As far as the defendant is concerned, it is the principal issue, but he says he also has proprietary claims against the plaintiff which he intends pursuing. Directions given in terms of rule 37(8)

[7] The psychiatric investigation was completed during the latter part of 2015 and Dr Panieri-Peter's report is an annexure to the final report (9 March 2016) of Adv Fourie. However, the family advocate informed the court at the time that she could not complete her s 6 report (which would include the psychiatrist's report) until she had completed a further assessment of E in his domestic environment. Advocate Fourie also informed the court that she required a full consultation with the plaintiff, the defendant having long since complied with her request in that regard. At a further pre-trial hearing conducted on 6 November 2015 (which the court had anticipated would be the final pre-trial hearing in this matter) these two outstanding issues were raised by Adv Fourie, who has regularly been in attendance at these pre-trial hearings.On Tuesday 12 January 2016 this court's registrar informed the plaintiff by email (the customary form of communication with these unrepresented parties) of the family advocate's communication regarding her lack of cooperation. The plaintiff was directed to appear before this court at 10h00 on Thursday 21 January 2016 to answer charges of contempt of court in light of her failure to adhere to the directions of 6 November 2015. The plaintiff was informed in that email of her entitlement to legal representation at the hearing on 21 January 2016 and was urged to take the matter seriously. She was also informed that in the event that she wished to reconsider her earlier refusals to participate in the family advocate's investigation, she should contact Adv Fourie to make new arrangements to consult with her and to permit the domestic visit to take place.The plaintiff failed to appear before this court on 21 January 2016 and a warrant was issued in terms whereof the sheriff for Somerset West was directed to take the plaintiff into his custody and bring her through to court at 14h30 the following day. The sheriff was expressly informed that the court did not wish the plaintiff to be held overnight or in police custody.The plaintiff's responseAt the hearing on Friday 22 January 2016 the plaintiff appeared in the company of the sheriff who had brought her through to Cape Town during the course of that morning. The plaintiff was informed that the court did not intend conducting an enquiry into her non-appearance on that day. The court issued a rule nisi returnable on Friday 12 February 2016 calling on the plaintiff to show cause why she should not be found to be in contempt of court due to her failure to facilitate the domestic visit on 9 December 2015, to attend the meeting with the family advocate the following day and to appear before this court on 21 January 2016. She was also called upon to show cause why she should not be sentenced to 30 days' imprisonment, and to bear the costs of the sheriff incurred in securing her attendance at court on 22 January 2016.Contempt of court?In Mamabolo Kriegler J delivered a masterful exposition of the constitutional context in which contempt proceedings (in that matter criticism of a court order and the refusal to comply therewith by a state official) are to be assessed, describing the proceedings as —   '. . . the Proteus4 of the legal world, assuming an almost infinite diversity of forms. The breadth of the genus is apparent from the definitions of contempt of Court in standard textbooks on South African criminal law.'Appropriate sanctionIt seems to me that before an appropriate sanction in this matter can be considered, the parties should be afforded an opportunity to address me afresh. The parties and

4 I had to look this one up: Classical Mythology. a sea god, son of Oceanus and Tethys, noted for his ability to assume different forms and to prophesy

the family advocate may wish to deal with the judgment of Justice D Pillay and bring to my attention any issues flowing therefrom, including compliance (or non-compliance) with the conditions laid down by Her Ladyship. To enable these issues to be dealt with the matter is postponed to Wednesday 30 March 2016 and the parties are afforded the opportunity to file further affidavits on this aspect only by no later than Wednesday 23 March 2016, and the family advocate, if she is so minded, may file a supplementary report on Tuesday 29 March 2016 after consideration of the parties' further affidavits.

LAWYERS FOR HUMAN RIGHTS v MINISTER OF HOME AFFAIRS AND OTHERS 2016 (4) SA 207 (GP) 

Immigration — Illegal foreigner — Detention pending deportation — Confirmation — Extension — Appearance in court — Constitution, s 35(2)(d); Immigration Act 13 of 2002, s 34(1)(b) and (d).

Lawyers for Human Rights challenged the constitutionality of s 34(1)(b) and (d) of the Immigration Act 13 of 2002. Subsection (1) stated that an officer may detain an illegal foreigner pending his deportation and para (b) that the foreigner may request that a court confirm his detention. Paragraph (d) provided that the foreigner may be detained for 30 days without a court's warrant and that a court may extend the detention for up to 90 days.Held, that the paragraphs infringed s 35(2)(d) of the Constitution, the right of a detainee to challenge his detention before a court. Paragraph (b)'s flaw was not to automatically provide for a court to confirm the lawfulness of the detention; and to not automatically give a right to the detainee to appear in court to challenge his detention.Paragraph (d)'s flaw was to fail to provide a right to appear before the court to challenge the extension of the detention. Severance and reading-in ordered. The paragraphs to now read:   '. . . the foreigner concerned —..  (b)   must be brought before a court in person within 48 hours of his or her detention, in order for the court to determine whether to confirm the detention, failing which the foreigner shall immediately be released;. . .   (d)   may not be held in detention for longer than 30 calendar days without appearing in court in person, which court on good and reasonable grounds may extend such detention for an adequate period not exceeding 90 calendar days; . . . .'

PA PEARSON (PTY) LTD v ETHEKWINI MUNICIPALITY AND OTHERS 2016 (4) SA 218 (KZD) Local authority — Rates — Credit control and debt collection measures — Single entity account holder in respect of two properties owned by different owners — Whether municipality empowered to reallocate payments made by individual account holder in respect of one account to any other account of that account holder held with municipality — Local Government: Municipal Systems Act 32 of 2000, s 102(1)(b).

The applicant in this matter was the owner of certain premises. The account with the municipality in respect of the utilities and services provided to these premises was held by one Microfinish. Microfinish was also the account holder in respect of services provided to another property, which was owned by another entity. What

gave rise to the present matter was a decision by the municipality, acting in terms of s 102(1)(b) of the Local Government: Municipal Systems Act 32 of 2000 (the Act), to credit payments made by Microfinish in respect of the premises owned by the applicant to the indebtedness of Microfinish in respect of services provided to the other property. The applicant argued that s 102(1)(b) did not authorise the municipality to manipulate the accounts of a customer or account holder so that a charge on one property became payable by the owner of a different property. The applicant subsequently instituted a claim for the repayment by the municipality of the amount credited, which amount the applicant had paid under protest. The crisp issue between the parties was the following: Did s 102(1)(b) of the Act empower the municipality to reallocate payments made for services supplied, from any one account to any other account of the same account holder?HeldOn a plain meaning of the provisions of s 102(1)(b) of the Act, the municipality had the power to credit payments made by a person, in respect of any of their accounts, to any other account held by that person. And that is what happened in respect of the accounts of Microfinish, when the municipality took funds paid in respect of one account and credited those to another account. As such, the municipality was entitled, in terms of s 102(1)(b), to credit payments in the way it did in this matter. Further, such an interpretation was in line with the purpose of s 102 read with the other provisions of ch 9, which were clearly aimed at enabling municipalities to collect moneys in the most cost-effective manner, in the light of the clear legislative need for a municipality to efficiently collect money due to it.

RP v PP 2016 (4) SA 226 (KZP) 

Marriage — Divorce — Proprietary rights — Redistribution order — Significance to be attached to extramarital affairs of spouse in exercise of court's discretion in determining equitable distribution — Divorce Act 70 of 1979, s 7(3) – (5).Marriage — Divorce — Proprietary rights — Redistribution order — Date at which estates of parties to be valued for purposes of redistribution — Court to have regard, as far as was practicable, to assets and liabilities as at date of order — If such date not practicable, court still confined to time of trial — Divorce Act 70 of 1979, s 7(3).Marriage — Divorce — Proprietary rights — Redistribution order — Parties entering into antenuptial agreement prior to commencement of Matrimonial Property Act 88 of 1984 and introduction of accrual system — Clause in agreement excluding property of claimant spouse from any community of property, as well as marital power of husband — Whether having effect that such claimant spouse's immovable property not susceptible to redistribution order — Divorce Act 70 of 1979, s 7(3).

In a divorce action instituted by the plaintiff wife against the defendant husband, both parties — whose marriage, entered into in 1972, was regulated by an antenuptial contract in terms of which community of property, community of profit and loss, and marital power were excluded — instituted claims for redistribution in terms of s 7(3) of the Divorce Act 70 of 1979. The following pertinent issues arose:• One of the grounds upon which the plaintiff claimed the marriage had irretrievably broken down was the defendant's extramarital relationships. In the light of changing societal attitudes to adultery, what was the significance to be attached to such misconduct in the exercise of a court's discretion in determining an equitable redistribution?

• At what date ought the estates of the parties to be valued for the purposes of redistribution? Was it, as was claimed by the plaintiff, the date of divorce, or was it, as was claimed by the defendant, the date of close of pleadings (litis contestatio)?• What was the impact of clause 6 of the antenuptial contract, which expressly excluded from any community of property, as well as the marital power of the defendant, the assets which the plaintiff possessed at the time of the contract, and any property she might acquire during the subsistence of the marriage? Did it, as was claimed by the plaintiff, have the effect such that her immovable property was not susceptible to redistribution?HeldAs to the misconductThe assessment of the factors relevant to misconduct had to be conducted with an awareness of prevailing social mores and attitudes. In today's society, extramarital affairs were prevalent. As a consequence, the disapproval and stigma once attached to adultery had diminished, and extramarital affairs no longer received the censure they used to. Nevertheless, this relaxed attitude towards infidelity ought to not unduly diminish the significance of such misconduct in the exercise of a court's discretion in determining an equitable redistribution. The effect of the betrayal on an aggrieved party who had remained committed to their marriage remained a relevant factor, and the general rule that each case had to be evaluated on its own set of facts applied. As to the date at which the estates of the parties should be valuedFor the purposes of making an order for redistribution, a court was required to have regard, as far as was practicable, to the assets and liabilities of the parties as at the date of the order. Where on the facts the date of the order was not appropriate, a court was still however constrained to the time of the trial. As to the effect of clause 6 of antenuptial contractClauses such as clause 6 were standard in antenuptial contracts executed prior to the commencement of the Matrimonial Property Act 88 of 1984 and the introduction of the accrual system, and were aimed at protecting the plaintiff wife from acquiring on marriage the status of a minor. There was further no reason why such a clause precluded the plaintiff's estate from redistribution in terms of s 7(3) or being taken into consideration in the determination of the competing redistribution claims. Finding it just and equitable to do so in the circumstances, the court ultimately ordered redistribution. Given that the claim and counterclaim were inextricably linked, the court adopted a globular approach in arriving at a suitable redistribution of the estates, which reflected the parties' contributions to their respective spouse's estate, their means and obligations, and the equities of the matter.

NKATA v FIRSTRAND BANK LTD 2016 (4) SA 257 (CC) 

Credit agreement — Consumer credit agreement — Reinstatement of agreement in default — Occurring by operation of law — No prior notice to the credit provider required — Consumer's payment in prescribed manner sufficient to trigger reinstatement — National Credit Act 34 of 2005, s 129(3)(a).Credit agreement — Consumer credit agreement — Reinstatement of agreement in default — Payment of 'all amounts that are overdue' — Referring only to arrear instalments, not also accelerated debt — National Credit Act 34 of 2005, s 129(3)(a). 

Credit agreement — Consumer credit agreement — Reinstatement of agreement in default — Payment of credit provider's 'reasonable costs of enforcing' — Non-payment only precluding reinstatement if due and payable — Only 'reasonable' if agreed or taxed — Credit provider, not consumer, to take appropriate steps to quantify such costs — Only due and payable on notice to consumer — National Credit Act 34 of 2005, s 129(3)(a). Credit agreement — Consumer credit agreement — Reinstatement of agreement in default — Preclusion of 'after . . . . execution of any other court order enforcing that agreement' — Meaning of 'execution' — Not referring to process of execution but to realisation of proceeds of sale in execution — National Credit Act 34 of 2005, s 129(4)(b). 

This case concerned the correct interpretation of s 129(3)(a) and s 129 (4)(b) of the National Credit Act 34 of 2005. The former provides that a consumer may reinstate a credit agreement that is in default by payment, at any time prior to its cancellation, to the credit provider of 'all amounts that are overdue, together with the credit provider's permitted default charges and reasonable costs of enforcing the agreement up to the time of re-instatement'; and the latter precludes reinstatement 'after . . . the execution of any other court order enforcing that agreement'.A consumer, Ms Nkata, who was in default of a mortgage loan agreement, paid all overdue instalments but did not make separate payment of the 'costs of enforcing the agreement' which the credit provider (FRB) had debited to her account. She made this payment when FRB had already taken judgment against her and had obtained a writ of execution against the mortgaged property, but before (as a result of further arrears) FRB attached and had the mortgaged property sold in execution. Ms Nkata subsequently applied for rescission of the judgment. The High Court refused rescission but held that Ms Nkata's payment of the arrears sufficed for reinstatement because, by debiting Ms Nkata's account with costs, FRB had agreed to receive payment thereof in instalments 'as if . . . part of the capital', so that it was not part of 'those costs of which the credit provider [was] at the time requiring payment'. That court also held that reinstatement was not precluded by s 129(4)(b) because it only referred to the completed act of execution, ie when the proceeds of execution had been realised. Based on its interpretation of the sections, the High Court concluded that the default judgment could no longer be enforced against Ms Nkata because her credit agreement with FRB had been reinstated before the default judgment was executed, and so the sale of the property was set aside.In her appeal to the Constitutional Court after the Supreme Court of Appeal had overturned the High Court's decision, the majority held as follows:As to s 129(3)(a)The High Court had correctly held that reinstatement in terms of s 129(3)(a) occurred by operation of law, ie that no prior notice to the credit provider was required but that the consumer's payment in the prescribed manner was sufficient to trigger reinstatement (see [105]); that 'all amounts that are overdue' referred only to arrear instalments and not to any accelerated debt that may become due on default (see [108]); and that the credit provider was required to take appropriate steps to recover the costs of enforcing an agreement, ie that the consumer could not be expected to start taxation or agree with the credit provider on the quantification of these costs.While much could be said for the High Court's reasoning as to payment of the reasonable costs of enforcement (see [120]), this issue would be decided on a different basis: that the legal costs were not yet due and payable. Properly

understood, s 129(3)(a) did not preclude the reinstatement of a credit agreement where the consumer had paid all the amounts that were overdue but had not been given due notice of the reasonable legal costs, whether agreed or taxed, of enforcing the credit agreement; and this was so because the legal costs became due and payable only when they were reasonable, agreed or taxed, and on due notice to the consumer.As to 129(4)(b)There was no compelling reason why the meaning of 'execution' in s 129(4)(b)should extend to the process of execution; instead s 129(3) created a statutory remedy for rendering a default judgment and attachment order ineffectual until such time as the proceeds of the sale had been realised.ConclusionAlthough there had been an attachment of the bonded property, no sale in execution of the property occurred and no proceeds of the sale were realised at any time before Ms Nkata had cleared her arrears. She was well within her entitlement to revive the credit agreement that the credit provider had not cancelled. That she did by purging her default in full. It followed that the appeal had to succeed in full.

GRAINCO (PTY) LTD v VAN DER MERWE AND OTHERS 2016 (4) SA 303 (SCA)

Sale — Business — Business and goodwill sold — Implied prohibition on canvassing customers — Scope.Contract — Terms — Implied and tacit terms — Implied term — Contract for sale of business with goodwill — Implied prohibition on canvassing customers — Scope.

Mr Van der Merwe and Mr Kitshoff were the representatives of trusts that held shares in a company that conducted a grain-trading business. Ultimately the company sold the business and its goodwill to another company called BKB. The sale agreement contained restraints of trade applying to the company, Van der Merwe and Kitshoff.Immediately after the sale BKB sold the business and goodwill to a company called GrainCo, and GrainCo employed Van der Merwe and Kitshoff.Some years later, after the restraint period had ended, Van der Merwe and Kitshoff left GrainCo. Shortly afterwards a company called Perdigon began a competing grain-trading business. Its shareholders were Van der Merwe and Kitshoff.GrainCo then applied to interdict Van der Merwe, Kitshoff and Perdigon canvassing the customers of its business. It said they were hit by the implied prohibition on a seller of a business and goodwill canvassing the customers of its former business. The High Court found they were not the sellers and not bound by the prohibition, and dismissed the application. It granted leave to appeal to the Supreme Court of Appeal.The issue was whether the implied prohibition bound anyone other than the seller of a business and goodwill. Held, that it did not. Held, further, affirming the High Court, that neither Van der Merwe nor Kitshoff was the seller, and so neither was bound by the prohibition. Appeal dismissed.

MLANDA v MHLABA AND OTHERS 2016 (4) SA 311 (ECG) Will — Execution — Certificate by commissioner of oaths — Required content — Statement that satisfied of identity of testatrix (that mark-maker was testatrix) —

Whether words used suggesting this without doubt — Wills Act 7 of 1953, s 2(1)(a)(v).

In this case the testatrix, or a person purporting to be the testatrix, signed her will by making a mark. The Wills Act 7 of 1953 requires in such a situation that the attending commissioner of oaths attach a certificate to the will, in which he certifies that he was satisfied as to the identity of the testatrix, and that the will was indeed her will (s 2(1)(a)(v)). (The section is intended to prevent an imposter marking the will; or when the mark-maker is genuine but unable to read, ensuring the document reflects her wishes.) If the certificate does not comply with the Act's requirements, the will will be invalid. Here the commissioner wrote in his certificate that '(t)he testator signed in my presence and of the two witnesses'. The question was whether the certificate complied with the requirements of the Act. Held, that use of the precise words of the Act was not required. What was required was that from the words used it could be inferred without doubt that the commissioner was satisfied of the facts stipulated in the Act. From the words used, doubt remained as to whether the commissioner had satisfied himself of the testatrix's identity. With this requirement unmet, the will was invalid.

SACR JULY 2016

DEMOCRATIC ALLIANCE v ACTING NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS 2016 (2) SACR 1 (GP)Prosecution — Discontinuance — Decision to discontinue prosecution — National Prosecuting Authority basing decision on abuse-of-process doctrine — Court of law appropriate authority to deal with such doctrine, not extra-judicial process — Legal authorities, of which NPA should have been aware, not supporting decision taken by NPA — Decision not to refer complaint of abuse of process to court irrational — When Acting National Director announced decision to discontinue prosecution, no discussion held with senior members of NPA to source their views — Such failure also irrational — Acting National Director having acted impulsively and irrationally in making decision — Matter should have been dealt with by court — Application to review and set aside decision granted.The third respondent, the present President of the Republic of South Africa, had in 2007 been indicted in a High Court on various criminal charges. On 6 April 2009 the first respondent, following written and oral representations by the third respondent's legal representative, and relying on the abuse-of-process doctrine, decided to discontinue the prosecution of the third respondent on the indictment served upon him. The reason given for the discontinuance of the prosecution was that the second respondent, the head of the Directorate of Special Operations, had 'manipulated the legal process for purposes outside and extraneous to the prosecution itself' and 'used the legal process for a purpose other than that which the process was designed to serve, ie for collateral and illicit purposes'. The first respondent was of the opinion that '(a) (i)t will not be possible to give the accused a fair trial; or (b) (i)t will offend one's sense of justice, integrity and propriety to continue with the trial of the accused in the particular case. Discontinuation is not a disciplinary process undertaken in order to express one's disapproval of abuse of process; it is an expression of one's sense of justice and propriety.' The following day the applicant launched an application for an order '(r)eviewing, correcting and setting aside the

decision of the first respondent, taken on or about 6 April 2009, to discontinue the criminal prosecution of [Mr] Zuma, in accordance with charges contained in an indictment of 27 December 2007' and '(d)eclaring . . . the decision of the first respondent referred to . . . above to be inconsistent with the Constitution of the Republic of South Africa, 1996, and invalid . . .'. It appeared from the affidavits in the application that, prior to the first respondent's decision to discontinue the prosecution, he had been satisfied that the state had a strong case on the merits. The first respondent, his deputies and the prosecution team had no doubt that the prosecution would proceed. It was after the first respondent and his deputies had listened to certain audio tapes of telephone conversations between the second respondent and a former National Director of Public Prosecutions that the first respondent changed his mind and decided to discontinue the prosecution.The applicant contended that the first respondent's decision should be reviewed, corrected and set aside on the ground of illegality and irrationality. The first and second respondents contended in essence that, having regard to the second respondent's conduct, the first respondent was justified in deciding to discontinue the prosecution and that his decision was rational. The third respondent's counsel argued that, even if the merits of the state's case were strong, the decision to discontinue was rational and justified because, according to the contents of the recorded conversations, the National Prosecuting Authority's (NPA's) independence would be affected and it would be seen to be meddling in political decisions. It was further submitted that the fact that the plan of the second respondent, to negatively influence the election of the third respondent as president of the ANC, was unsuccessful, was immaterial. The abuse was of such a serious nature that the decision not to prosecute was rational.Held, that a court of law was the appropriate forum to deal with the abuse-of-process doctrine, not an extra-judicial process. Prior to his decision to discontinue the prosecution, the first respondent subscribed to the view that the allegations raised in the tape recordings and the representation by the third respondent's legal team had to be subjected to judicial process, if anything, to test the veracity thereof. But he inexplicably and irrationally abandoned this view. Held, further, that legal authorities, of which the first respondent should have been aware or so advised, did not support the decision taken by him in an instance such as this under review, where the abuse-of-process doctrine is applied in an extra-judicial exercise of public power, when the prosecution against an accused is discontinued. In this instance the basis of the alleged abuse of process rested on legally untested allegations which were unrelated to the trial process and the charges. Therefore, the conduct of the first respondent, by not referring the complaint of abuse of process, and the related allegations against the second respondent, to court, rendered his decision irrational.

Held, further, that the first and third respondents had brought into their answering affidavits the previous conduct of the second respondent, but that only served to describe the character of the second respondent as an officer who was inclined to meddle in political affairs, nothing more. It was information well known to the first respondent, even before he heard the tapes of the conversations. It was irrational to argue that it constituted the basis upon which the prosecution was to be discontinued.

Held, further, that, when the first respondent announced his decision on 1 April 2009 to senior members of the NPA, no discussion was held with them to source their views on the matter. This omission was critical, considering that up to 31 March 2009 they had been collectively discussing it and had agreed to continue with the prosecution. They had been briefed on the content of the tape and, on the evening of 31 March 2009, they had heard the tape with the first respondent. It was to be expected that they individually would have formed some views on the matter. Failure to source their views under the circumstance was irrational.

Held, further, that the first respondent had failed to explain how the information he had heard on the tape could be said to have affected, compromised or tainted the envisaged trial process and the merits of the intended prosecution. In fact, in his media address announcing his decision, he conceded that the alleged conduct of the second respondent had not affected the merits of the charges against the third respondent. There was thus no rational connection between the need to protect the integrity of the NPA and the decision to discontinue the prosecution against the third respondent. 

Held, further, that the first respondent, in his own words on 1 April 2009, stated that he felt angry and betrayed by what he had heard on the tape recordings. His feelings of anger and betrayal caused him to act impulsively and irrationally, considering the factors as set out above. He did not allow himself time to consider the question whether the very decision he was about to take could be regarded by other people, facing similar charges throughout South Africa, as a breach of the principles of equality before the law, or that it would be an abuse of process to discontinue charges against people of high profile or standing in the community. The conflict between the third respondent's defence and the prosecution's evidence could only be determined if all the evidence the prosecution and the third respondent wished to adduce was presented and tested in a court of law.

Held, accordingly, that, having regard to the evidence before the court, the first respondent found himself under pressure and he decided to discontinue the prosecution of the third respondent, and consequently made an irrational decision. Considering the situation in which he found himself, the first respondent ignored the importance of the oath of office which demanded of him to act independently and without fear or favour. The envisaged prosecution against the third respondent was accordingly not tainted by the allegations against the second respondent. The third respondent should face the charges as outlined in the indictment. Application granted. 

S v PRINSLOO AND OTHERS 2016 (2) SACR 25 (SCA)

Prevention of crime — Offences — Contraventions of s 2(1) of Prevention of Organised Crime Act 121 of 1998 — Racketeering in contravention of s 2(1)(e) and s 2(1)(f) — Managing enterprise which engaged in racketeering and being involved in enterprise engaged in racketeering — Two separate offences created in terms of s 2(1)(e) and s 2(1)(f) of POCA — No good reason why person who both managed and participated in affairs of enterprise directly should be liable for only one of two roles — No duplication of convictions.

Prevention of crime — Offences — Contraventions of s 2(1) of Prevention of Organised Crime Act 121 of 1998 — Racketeering in contravention of s 2(1)(f) — Mens rea required — Culpa sufficient form of mens rea for offence.Prevention of crime — Offences — Contraventions of s 2(1) of Prevention of Organised Crime Act 121 of 1998 — Racketeering in contravention of s 2(1)(e) — Mens rea required — No need for further enquiry as to additional mens rea requirement over and above mens rea required by predicate offences listed in sch 1 to POCA.Prevention of crime — Offences — Contraventions of s 2(1) of Prevention of Organised Crime Act 121 of 1998 — Sentence — Racketeering in contravention of s 2(1)(e) and s 2(1)(f) — Ponzi scheme involving hundreds of millions of rand — Deterrence playing important role — Appellant deceiving financial authorities and grossly misrepresenting extent of her activities — When confronted by authorities she merely changed vehicles through which scheme conducted to avoid closure — Sentence of 25 years' imprisonment confirmed on appeal. 

The six appellants were convicted in the High Court of numerous offences connected to the operation of a Ponzi or multiplication scheme involving hundreds of millions of rand, and were sentenced to lengthy terms of imprisonment. The first appellant initiated the scheme in 1998 and was at all times at the helm of it. The second appellant joined the scheme in 2001 and acted as a public official of two entities used to conduct the scheme. He married the first appellant at the end of that year. The third to sixth appellants were all related to the first appellant in some way and acted as public officers of the various entities used for the purposes of conducting the scheme. Much of the detail of the operation of the scheme was common cause and the appellants did not seriously contest the notion that it was in fact a Ponzi scheme. The entities involved were a number of trusts, a close corporation, a co-operative and a company. The first appellant was the only one who was charged in count 1 with a contravention of s 2(1)(f) of the Prevention of Organised Crime Act 121 of 1998 (the POCA), which provides that —

   'any person who . . . manages the operation or activities of an enterprise and who knows or ought reasonably to have known that any person, whilst employed by or associated with the enterprise, conducts or participates in the conduct, whether directly or indirectly, of such enterprises' affairs through a pattern of racketeering activity; . . . shall be guilty of an offence'.All the appellants were charged under s 2(1)(e) of the POCA (count 2) which provides criminal liability for any person who —

   'whilst managing, or [being] employed by or associated with any enterprise, conducts or participates in the conduct, directly or indirectly, of such enterprise's affairs through a pattern of racketeering activity; . . . .'It was submitted on appeal on behalf of the first appellant that a contravention of the provision in count 1 required mens rea in the form of dolus and that culpa was insufficient.Held, that the wording of the POCA, and in particular s 2(1)(f) made it clear that culpa was a sufficient form of mens rea for a contravention of the subsection. There was also no doubt that the first appellant ought reasonably to have known that the scheme's affairs were conducted through a pattern of racketeering activity, and she therefore in any event had the necessary mens rea in the form of culpa. (Paragraphs [51] and [54] at 42c–d and 42i.)

The first appellant also contended that the provision was aimed mainly at punishing persons who controlled others whilst knowing that they were committing crimes, but refrained from engaging in criminal conduct themselves. She could therefore not be convicted of contravening the section as she had personally participated in the activities of the scheme.Held (per Fourie AJA and Eksteen AJA), that there appeared to be no good reason why a person who both managed and participated in the affairs of the enterprise directly should only be liable for one of the two roles, namely the offences in paras (e) and (f) of ss (1). There was no reason why the legislature would have intended to restrict the prosecution of persons under para (f) solely to those managers who had not dirtied their hands by personal acts of participation in the conduct of the affairs of the enterprise. Such a construction would lead to an absurdity, where the manager of a multibillion-rand racketeering enterprise, who had minimal personal active participation, would only be liable for the minimal-participation role under para (e) and not under para (f) for the extensive managerial role he played in a highly successful criminal enterprise. Her appeal against the conviction on count 1 accordingly had to fail.Held (per Brand JA dissenting), that the essence of the offence in para (e) was participation in the affairs of the enterprise and that of (f), on the other hand, was knowledge (in the sense that the accused must have known, or ought reasonably to have known, that another person did so), not participation. Logic dictated that participation in racketeering activities would always include knowledge of those activities. While one could have knowledge without participation, the converse was not possible. Of necessity, the conviction of a manager under para (e) had to involve a criminal act in terms of (f). In order to participate in racketeering activities for purposes of (e), the wrongdoer must have had knowledge, proof of which in itself would amount to proof of the offence under (f). It was true that the elements of the two offences were in certain respects different, but that in itself was no answer to an objection to duplication where, as in this case, the greater necessarily included the lesser. As regards the first appellant's appeal in respect of count 2, it was contended on her behalf that the state had failed to prove that she had the necessary criminal intent in the form of dolus to contravene the provisions of s 2(1)(e).Held, that the essence of the offence in s 2(1)(e) was participation through a pattern of racketeering activity and not knowledge. Once it was proved that the accused had participated in the conduct of an enterprise's affairs through a pattern of racketeering activity, he or she was guilty of a contravention of the section. There was no need for a further enquiry as to an additional mens rea requirement over and above the mens rea required by the predicate offences listed in sch 1 to the POCA. The first appellant was sentenced to an effective term of 25 years' imprisonment. This was made up inter alia of 20 years' imprisonment in respect of each of the contraventions of s 2(1)(e) and s 2(1)(f), as well as 10 years' imprisonment on each of 10 counts of contravening s 4 of the POCA; 10 years' imprisonment on each of 17 counts of fraud; 10 years' imprisonment on each of 2 counts of theft; and various terms of imprisonment ranging from three years to six months for the contravention of various regulatory and compliance offences. It was submitted on behalf of the first appellant that the effective sentence was shockingly inappropriate and required intervention by the court on appeal.The court held that the present was a matter in which the element of deterrence played an important role. The common theme of the Ponzi schemes was that the

hard-earned financial resources of others, often elderly and financially naive people, were invested in the schemes on the strength of outrageous returns offered, which could not be sustained due to the lack of a viable economic enterprise underpinning the scheme. A further aggravating factor was the cynical approach of the first appellant to the directives of the authorities to cease taking investments and to repay investors. She had fraudulently misrepresented the extent of the scheme by grossly understating the number and value of the total investment made in the scheme. These misrepresentations had initially persuaded the authorities not to close down the scheme. When confronted by the authorities, the first appellant merely changed the vehicle through which the scheme was conducted in an attempt to deceive the authorities and to prevent them from closing down the scheme. In these circumstances the court would have been inclined to impose a sentence of the same order and accordingly the court a quo had not acted unreasonably in imposing the sentence. The appeal against sentence was accordingly also dismissed.

S v DE BEER 2016 (2) SACR 106 (GP)Trial — Accused — Legal representation of — Legal representative acting incompetently — Witnesses not called — Conviction set aside and matter referred back to court a quo.

The applicant was convicted in a regional magistrates' court of two counts of rape and one count of sexual assault. He appealed against the convictions and sought that the matter be referred back to the court a quo for him to apply for the evidence of certain witnesses to be led, as his former attorney had neglected to do so. He said that when he asked his attorney after a postponement when these witnesses would testify, the attorney told him that it was too late and that they should have already called them. There was no reason to worry, however, his attorney added, as his case was looking good. The applicant alleged that he was dissatisfied with his attorney but had been unable to afford another at the time. He was only able to instruct a new lawyer when his employer later agreed to assist him. The new attorney discovered that the former attorney had not kept a file on the matter nor receipted cash amounts paid to him. The former attorney filed an affidavit attacking the applicant, alleging that he had appeared to be under the influence of dagga at the time, and told him to finalise the matter as soon as possible.The court held that a plea explanation drawn up by the former attorney was shocking and unprofessional in that it contained inappropriate language in referring to the complainant. Similarly, his failure to keep a file and cash receipts, together with the personal attack on his client, was extremely unprofessional. In the light of the applicant's right to a fair trial the convictions on two of the counts had to be set aside and the matter referred back to the court a quo.

DU TOIT v THE MAGISTRATE AND OTHERS 2016 (2) SACR 112 (SCA)Sexual offences — Child pornography — Possession of — Disclosure of images to accused prior to trial — Restriction on disclosure, by not permitting copying of images, permissible in light of privacy interests of children depicted in images — Not infringing accused's fair-trial rights where refusal subject to review by court.

The appellant was facing trial in a regional magistrates' court on charges of possessing child pornography. Before the commencement of the trial he sought an order from the presiding magistrate that the prosecution be directed to supply him

with copies of the images which were alleged to constitute child pornography. He had refused to take up an offer by the prosecutor to view the items privately, together with his legal representatives and any expert he wished to call. The prosecutor objected to reproducing the images and furnishing copies to him. In doing so the prosecution relied on its standard prosecution policy directives (sexual offences: B7) which provided that prosecutors need only provide the defence access to dockets containing visual images of child pornography and did not need to provide copies thereof, unless ordered by the court. The magistrate held that the arrangements proposed by the prosecution were adequate in the circumstances, and dismissed the application. The appellant then appealed against that decision to the High Court which reviewed and set aside the decision on the grounds that the appellant's rights stemming from s 35 of the Constitution should not be subjected to limitation. The appellant abandoned his appeal against certain other aspects of the judgment of the High Court but the DPP appealed against this specific order relating to the provision of copies of the items constituting the charges. The DPP contended that the prosecution needed to retain a degree of discretion in matters of the present kind and that the proposed arrangements were sufficient to protect the appellant's fair-trial rights.Held, that in the present case there were reasonable privacy interests of the children who were depicted in the images and there was a significant public interest in ensuring that no duplication or distribution occurred in the disclosure process. Those interests ought not to be further compromised by the copying, viewing, circulation or distribution of the images beyond what was reasonably necessary to give effect to the appellant's constitutional rights. Held, further, that the prosecution had to be allowed to exercise a discretion in order to protect the privacy interests of members of the public or the public interest by preventing the commission of further criminal acts, which could occur if it were ordered to disclose information without putting adequate safeguards in place. The process for disclosure, as provided for in the policy directive, had a built-in protection for the accused to ensure that the prosecution exercised its discretion in a fair and just manner by providing for review by the court. Given the pernicious and lasting damage caused to children by the distribution of child pornography, there was much to recommend the directive. Held, further, that on the approach of the DPP, the desired result and necessary balance had been achieved and the order of the High Court was set aside and replaced by an order dismissing the application in that case.

ALL SA JULY 2016

Chairperson of the National Council of Provinces v Malema and another[2016] 3 All SA 1 (SCA)

Constitutional law – Parliament – Parliamentary process and conduct – Statement made by member of parliament during discussion of State of Nation address – Ruling by Chairperson that statement was unparliamentary and that member should leave the house for refusing to withdraw statement – Despite Parliament’s power to self-regulate its procedures within constitutional bounds, and the validity of a standing order prohibiting Members of Parliament from imputing improper motives to other members, or casting personal aspersions on the integrity of members, Chairperson shown to have misapplied the standing order.

The first respondent was the President of the second respondent (“the EFF”) a political party registered as such in terms of section 15 of the Electoral Commission Act 51 of 1996. In June 2014, the President of the Republic of South Africa delivered his State of the Nation Address to a joint sitting of the National Assembly (the “NA”) and the National Council of Provinces (the “NCOP”). The next day and during the course of a debate on the President’s address, which was then chaired by the appellant (the “Chairperson”), the first respondent made a statement which included the assertion that the ANC government had massacred people during a miners’ strike. The Chairperson subsequently ruled the statement to be unparliamentary, and requested the first respondent to withdraw the statement. Refusing to withdraw his statement, the first respondent was then asked by the Chairperson to leave the house.

Aggrieved by the Chairperson’s conduct, the respondents successfully applied to the High Court for the Chairperson’s rulings to be set aside. That led to the present appeal. The Chairperson relied on section 57 of the Constitution, which provides that the NA may determine and control its internal arrangements, proceedings and procedures; and make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement.

Held – The right to freedom of speech in the NA is expressly constitutionalised in section 58(1)(a), which provides that Cabinet Members and Members of the NA have freedom of speech in the Assembly and its committees, subject to its rules and orders. Section 58(1)(b)(i) provides that such members are not liable to civil or criminal proceedings, arrest or imprisonment or damages for anything they have said in, produced before or submitted to the Assembly or any of its committees. Nevertheless, sections 58(1)(a) and 71(1)(a) of the Constitution makes freedom of speech in the two Houses subject to the rules and orders envisaged in sections 57 and 70. That must mean rules and orders may – within bounds that do not denude the privilege of its essential content – limit parliamentary free speech. The respondents did not dispute Parliament’s power to self-regulate its procedures within constitutional bounds, or the validity of a standing order prohibiting Members of Parliament (“MPs”) from imputing improper motives to other MPs, or casting personal aspersions on the integrity of MPs, or verbally abusing them. Instead, they argued that the Chairperson had unlawfully and irrationally applied the standing order.The purpose of the standing order is to ensure that parliamentary debates are not clouded by personal insults.

Even when regard was had to all of the first respondent’s utterances on the matter, it was plain that his primary target was the ruling party, and not members of Parliament. The standing order did not, and could not, go as far as impeding political speech. Nor could it operate to censor the criticism of the government or the ruling party. The Court rejected the Chairperson’s attempts to build an interpretive bridge between the ANC government and Members of Parliament. Her interpretation of the standing order could not withstand constitutional scrutiny, as the consequence would be that any criticism made against the government is also criticism against individual MPs who are members of the ANC. Accordingly, the Chairperson misconstrued her powers under the standing order, and her ruling that the first respondent’s statement was unparliamentary fell to be set aside.

The appeal was, accordingly, dismissed.

Educated Risk Investments 165 (Pty) Ltd and others v Ekurhuleni Metropolitan Municipality and others [2016] 3 All SA 18 (SCA)

Administrative law – Town planning – Municipality intending to permit temporary informal houses to be constructed on land zoned Residential 1 where dwelling houses could be constructed without further consent – Objection by nearby property owners that informal houses not in compliance with relevant Town Planning Scheme – Court finding no reason why informal houses would be excluded from ambit of Town Planning Scheme – Scheme also empowered the local authority to use land for purposes not in accordance with zoning where it deemed it beneficial to the community or surrounding area.

An informal settlement (“Payneville Extension 3”) situated within the geographic area of the first respondent municipality was at the heart of the present litigation. The settlement had no potable water supply, no refuse removal, no sewage reticulation system, no electricity and no tarred roads. A neighbouring slimes dam gave off radon gas, a source of radiation, at levels that exceeded acceptable norms and posed a threat to the health of the residents. The first respondent’s obligations to address the above conditions stemmed from the right of residents of the settlement to access to adequate housing in terms of section 26(1) of the Constitution. It also concerned the residents’ right to dignity in terms of section 10 of the Constitution and their right to an environment that was not harmful to their health and well-being under section 24(a) of the Constitution.

The municipality owned another property (“Payneville Extension 1”) nearby, which property was an approved township. The municipality intended to permit a number of families resident in Payneville Extension 3 to move to Payneville Extension 1 and to erect informal dwellings on each of the residential erven.

The appellants opposed the municipality’s plan, contending that the further sub-division of the erven in Payneville Extension 1 was unlawful because it was not directed at complying with the relevant Town Planning Scheme, but was a device to circumvent it and to enable the establishment of an informal settlement on the property instead of a residential development. They said that such use was inconsistent with the zoning of the property and amounted to a rezoning by stealth. Furthermore, they contended that it would be unlawful for anyone to be permitted to occupy any part of Payneville Extension 1 until there had been compliance with all of the conditions attaching to the initial proclamation of the township. The appellants owned properties in an adjacent township which they were developing for the purpose of providing formal housing aimed at the lower and middle income groups. They alleged that the construction of ablution facilities on Payneville Extension 1 was putting potential purchasers off buying into their development as they did not want to purchase properties close to an informal settlement.

Consequently, the appellants applied to the High Court for an interim interdict to prevent the municipality from taking any further steps to implement the sub-division approval or allowing any person to occupy Payneville Extension 1 pending the outcome of the claim for final relief. Although the interim order was granted, the application for final relief was dismissed.

Held – The appellants’ main argument was that Payneville Extension 3 was being rezoned without public notice being given, and insofar as it enabled the township to be used as an informal settlement in contravention of the Town Planning Scheme, it was effected for an ulterior purpose and was hence unlawful. The Scheme contained a table with a variety of use zones and the uses to which properties falling in those zones could be put. Properties zoned Residential 1 could be used for the erection of “dwelling houses”. The appellants’ complaint was confined to an objection that the informal housing that would be constructed, being informal in character, materials and design and intended to be temporary, would be impermissible in a Residential 1 zone, and would not constitute dwelling houses. The Court held that informal housing of the type the municipality intended to permit in Payneville Extension 1 consisted of homes constructed of various materials, in particular wood, corrugated iron and fibreglass sheeting, that provided shelter to the occupants. There was no reason why those should not be described as dwelling houses.

Even if in implementing the proposal, there had been in some respect a departure from the provisions of the Scheme, it would not have been unlawful as the Scheme expressly authorised the local authority to depart from it and to use any property in any use zone for a purpose empowered by law and which it deemed beneficial to the community or the surrounding area.

The appeal was dismissed.

Nova Property Group Holdings Ltd and others v Cobbett and another (MandG Centre for Investigative Journalism NPC as amicus curiae) [2016] 3 All SA 32 (SCA)

Civil procedure – Interlocutory order – Appealability – Section 17(1) of the Superior Courts Act 10 of 2013 provides for the circumstances in which a judge may grant leave to appeal – Leave to appeal may only be given where the judge is of the opinion that the appeal would have a reasonable prospect of success; or there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration; the decision sought on appeal does not fall within the ambit of section 16(2)(a); and where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.

Company law – Company’s securities register – Access to – Section 26(2) of the Companies Act 71 of 2008 – Interpretation – Section 26(2)conferring an unqualified right of access to the securities register of a company – Person’s motive for access not relevant – Right of access not subject to the provisions of the Promotion of Access to Information Act 2 of 2000.

The first respondent (“Cobbett”) was a financial journalist who specialises in the investigation of illegal investment schemes. The second respondent (“Moneyweb”) was a publisher of business, financial and investment news. They sought to exercise their statutory right in terms ofsection 26 of the Companies Act 71 of 2008 to access the securities registers of the appellants. When Cobbett’s requests were met with refusals, Moneyweb launched an application, in the High Court (the court a quo), to

compel the appellants to provide access to it for inspection and making copies of the securities registers within five days of the date of the order.

The court a quo granted the appellants’ rule 35(12) application to compel discovery of documents referred to in Moneyweb’s founding affidavit, but dismissed their rule 35(14) application to compel. Although the court had not decided the main application, it nevertheless pronounced on the proper interpretation of section 26(2) of the Companies Act, in deciding whether to grant the interlocutory relief to the appellants. It concluded that section 26(2) did not confer an absolute right to inspection of the documents contemplated in the subsection, but that the court retained a discretion to refuse to order inspection.

On appeal, the issues were two-fold. In view of the interlocutory nature of the order of the court a quo, the first issue was whether it was appealable. If found to be so, then the second issue was whether the documents sought by the appellants in terms of rule 35(14) were relevant to a reasonably anticipated issue in the main application. That issue concerned the proper interpretation of section 26(2) of the Companies Act and, in particular, whether it conferred an unqualified right of access to the securities register of a company contemplated in the section.

Held – Section 26(2) of the Companies Act entitles a person who does not hold a beneficial interest in any securities issued by a profit company, or who is not a member of a non-profit company, to inspect or copy the securities register of a profit company, or the members register of a non-profit company that has members, or the register of directors of a company, upon payment of an amount not exceeding the prescribed maximum fee for any such inspection.

On the issue of appealability, the Court began with the decision in Zweni v Minister of Law and Order  [1993] 1 All SA 365 ([1992] ZASCA 197;1993 (1) SA 523) (A) that the dismissal of an application to compel discovery, such as by the court a quo, is not appealable as it is not final in effect and is open to alteration by the court below; not definitive of the rights of the parties; and does not have the effect of disposing of a substantial portion of the relief claimed. However, subsequently, the test was adapted to take into account the equitable and more context-sensitive standard of the interests of justice favoured by our Constitution. In deciding what is in the interests of justice, each case has to be considered in light of its own facts.

Section 17(1) of the Superior Courts Act 10 of 2013 provides for the circumstances in which a judge may grant leave to appeal. Leave to appeal may only be given where the judge is of the opinion that the appeal would have a reasonable prospect of success; or there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration; the decision sought on appeal does not fall within the ambit of section 16(2)(a); and where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties. Moneyweb was constrained to concede that the judgment of the court below, although not appealable under the traditional Zweni  test for interlocutory applications to compel discovery, would be appealable under section 17(1) of the Superior Courts Act.

On the question of the proper interpretation of section 26(2) of the Companies Act and, in particular, whether it conferred an unqualified right of access to the securities

register of a company, the Court explained the interaction between section 26(2) and the Promotion of Access to Information Act 2 of 2000 and rejected the appellants’ contention that the right of access is subject to the provisions of the Promotion of Access to Information Act. The Court also held that when a company fails or refuses to provide access, the requester is entitled, as of right, to an order compelling access. The question of the motive or purpose is irrelevant.

An unqualified right of access to a company’s securities register is, therefore, essential for effective journalism and an informed citizenry. In conferring an unqualified “right” of access to a company’s securities register in section 26(2) of the Companies Act, the Legislature has chosen to prioritise the right of access to information over the privacy rights of shareholders and companies. In the absence of an express limitation of that right by the Legislature, it is not for the court to limit it on spurious grounds.

The appeal was dismissed with costs.

Carolissen v Director of Public Prosecutions [2016] 3 All SA 56 (WCC)

Criminal procedure – Extradition – Order acceding to extradition request by foreign State – Appeal – Court discussing issue of jurisdiction with regard to cyber crime – Concept of double criminality – Principle of double criminality requires that the conduct claimed to constitute an extraditable crime should constitute a crime in both the requesting and the requested State, and it is not necessary that the offence should have the same name in both States, provided that it is substantially similar.

Words and phrases – “extraditable offence” – Section 1 of the Extradition Act 67 of 1962 – Refers to any offence which in terms of the law of the Republic and of the foreign State concerned is punishable with a sentence of imprisonment or other form of deprivation of liberty for a period of six months or more, but excluding any offence under military law which is not also an offence under the ordinary criminal law of the Republic and of such foreign State.

In November 2014, the appellant was arrested pursuant to a request from the Government of the United States of America (“the USA”). In January 2015, the USA formally requested extradition of the appellant.

The magistrate dealing with the extradition application referred the appellant for mental observation after the appellant raised the issue of his mental health. A report was issued by a full panel of mental health practitioners, stating that the appellant was not mentally ill, was not certifiable in terms of the Mental Health Care Act  17 of 2002, was fit to stand trial and was able to appreciate the wrongfulness of the alleged offences. The magistrate then had to decide whether the offence in respect of which appellant was sought by the foreign State was an extraditable offence; whether the appellant was “liable” to be surrendered to the foreign State concerned; and whether there was sufficient evidence to warrant a prosecution for that offence in the foreign State.

Held – An “extraditable offence”, in terms of section 1 of the Extradition Act 67 of 1962, means “any offence which in terms of the law of the Republic and of the foreign State concerned is punishable with a sentence of imprisonment or other form

of deprivation of liberty for a period of six months or more, but excluding any offence under military law which is not also an offence under the ordinary criminal law of the Republic and of such foreign State”. In terms of section 3(1) of the Act, any person accused or convicted of an offence included in an extradition agreement and committed within the jurisdiction of a foreign State, a party to such agreement, shall, subject to the provisions of this Act, be liable to be surrendered to such State in accordance with the terms of such agreement. Determining what constitutes “an offence included in an extradition agreement” necessitated an assessment of the extradition treaty between the Republic of South Africa and the United States of America.

Section 10(2) of the Act provides for a certificate issued by the appropriate prosecution authority in the foreign State to serve as conclusive proof that there is sufficient evidence to warrant a prosecution in the State concerned. If such a certificate is relied upon, the magistrate must be satisfied that it was in fact issued by an appropriate authority in charge of the prosecution in the foreign State. The magistrate delivered a considered judgment and issued an order committing the appellant to prison to await the decision of the Minister of Justice and Constitutional Development (“the Minister”) with regard to his surrender to the USA. Having been informed thereof by the magistrate, the appellant exercised his right to appeal to this Court under section 10(1).

The primary issue raised in this matter involved the question of whether the offences with which the appellant was accused were committed within the jurisdiction of the USA. The offences in question related to child pornography. The Court raised the question of whether the District Court for the District of Maine in Portland had the jurisdiction to prosecute the appellant. The US authorities relied on an assertion that the appellant had emailed pornographic images of children to an agent in Maine. However, the Court was not satisfied with the assertion. Regarding the USA’s extra-territorial jurisdiction, it is established law that it is open to a sovereign State to enact legislation permitting it to prosecute within its own jurisdiction suspects who have committed crimes elsewhere in the world, where those crimes might ultimately have a deleterious effect in the territorial jurisdiction of the requesting State. The Court was referred to authorities in which it was stated that cybercrime (that being the nature of the offence relevant to the present matter) is essentially “a-territorial”. In light of confirmation that the appellant had been found by a grand jury to be indictable in Maine, the Court was satisfied that the USA had made out such a prima facie case and the concerns regarding jurisdiction had been adequately addressed.

Next the Court explained the concept of double criminality in extradition matters. The principle of double criminality requires that the conduct claimed to constitute an extraditable crime should constitute a crime in both the requesting and the requested State. It is not necessary that the offence should have the same name in both States, provided that it is substantially similar. The Court is required to consider the substance of the proscribed conduct. In this case, the Court was satisfied that the double criminality requirement had been met in respect of counts 1–3 for which the appellant was to be indicted in Portland, Maine.

Before the appellant could be found to be extraditable, article 2(1) of the treaty required that the offence concerned must attract punishment of at least one year’s imprisonment. That requirement was also met in this case.

The Court was thus satisfied that the magistrate correctly applied the relevant legal principles and the treaty. The appeal was, accordingly, dismissed.

Democratic Alliance v Acting National Director of Public Prosecutions and others (Society for the Protection of our Constitution asamicus curiae)[2016] 3 All SA 78 (GP)

Administrative law – Prosecution – Decision to discontinue – Application of the abuse of process doctrine – Determination of the principles of abuse of process is an exercise for a court of law and not an extra-judicial pronouncement.

Constitutional law – Prosecution – Decision to discontinue – Grounds of review – Legality and irrationality – A review based on rationality is concerned with the evaluation of a relationship between means and ends: the relationship, connection or link between the means employed to achieve a particular purpose on the one hand and the purpose or end itself – Both the process by which the decision is made (the means) and the decision itself, must be rationally related.

The applicant was the official opposition political party in South Africa. It sought the review of the first respondent’s decision to discontinue the criminal prosecution of the third respondent (the “current President of South Africa”), and ancillary relief. The first respondent was the Acting National Director of Public Prosecutions who was at that time Advocate Mokotedi Mpshe SC (“Mr Mpshe”).

The decision to discontinue the prosecution of Mr Zuma was based on Mr Mpshe’s view that the head of the Directorate of Special Operations (“DSO”), namely Advocate Leonard McCarthy (“Mr McCarthy”), his predecessor and others had manipulated the timing of the envisaged service of the indictment to Mr Zuma, against the latter for political reasons.

Held – It has been held by the courts that a review of a decision to discontinue prosecution can be reviewable on the grounds of legality and irrationality. A review based on rationality is concerned with the evaluation of a relationship between means and ends – the relationship, connection or link between the means employed to achieve a particular purpose on the one hand and the purpose or end itself. Rationality involves substantive and procedural issues. Therefore, both the process by which the decision is made (the means) and the decision itself, must be rationally related. Before the present Court, the applicant relied on legality and irrationality as grounds of review.

In making his decision to discontinue the prosecution, Mr Mpshe contended that Mr McCarthy’s conduct amounted to a serious abuse of process. Mr Mpshe’s assertion of the application of the abuse of process doctrine, ignored case authority which stated that the determination of the principles of abuse of process was an exercise for a court of law and not an extra-judicial pronouncement. Mr Mpshe disregarded, without given reasons, the recommendation of the prosecution team that, even if the allegations regarding Mr McCarthy were true, the decision to stop the prosecution was to be made by a court of law. The basis of the alleged abuse of process rested on legally untested allegations which were unrelated to the trial process and the charges. Therefore, Mr Mpshe, by not referring the complaint of abuse of process

and the related allegations against Mr McCarthy to court, rendered his decision irrational.

Apart from advancing contradictory versions as to who took the decision to delay the service of the indictment and for what reason, there was no attempt in the papers to explain how Mr McCarthy’s alleged influence and lobbying to have the service of the indictment delayed, would have disadvantaged Mr Zuma. Thus the information on which Mr Mpshe based his decision to discontinue the prosecution of Mr Zuma, was inconsistent with, and did not support the allegation that by seeking to delay the service of the indictment, Mr McCarthy sought to influence the outcome of elections and therefore demonstrated an abuse of process. There was thus no rational link between the alleged misconduct of Mr McCarthy and the impugned decision.

The Court concluded that the decision to discontinue the prosecution of the case against Mr Zuma was irrational and should be reviewed and set aside.

Free Market Foundation v Minister of Labour and others [2016] 3 All SA 99 (GP)

Labour law – Collective bargaining – Principle of majoritarianism – Labour Relations Act 66 of 1995 – Section 32 – Extension of collective bargaining agreements concluded at sectoral level to persons not directly involved in the collective negotiations and not party to the agreement concluded in the bargaining forum, being the relevant bargaining council – Not inconsistent with the rule of law, nor unconstitutional because of alleged absence of adequate State and judicial control – Applicability of Promotion of Administrative Justice Act 3 of 2000 meaning that the discretion of the Minister to extend a minority collective agreement concluded in a bargaining council would be significantly constrained by the requisites of legality and procedural fairness.

The applicant (“FMF”) was an independent policy research and education organisation promoting the principles of limited government, economic freedom and individual liberty. The respondents were the Minister of Labour, the Minister of Justice and Constitutional Development and forty-seven bargaining councils.

Section 23(5) of the Constitution enshrines the right to collective bargaining, contemplating national legislation to enforce such right. That legislation is the Labour Relations Act 66 of 1995. Section 32 of the Act permits the extension of collective bargaining agreements concluded at sectoral level to persons not directly involved in the collective negotiations and not party to the agreement concluded in the bargaining forum, being the relevant bargaining council. The FMF questioned the economic efficacy and morality of the policy objectives behind the section. It contended that sectoral bargaining and the extension of the products of it to non-participants were an impediment to the growth of small businesses resulting in less job creation and a higher rate of unemployment.

FMF’s challenge to section 32 was that it violated the principle of legality under section 1(c) of the Constitution, the so-called rule of law provision, because it permitted the extension of collective agreements to non-parties contrary to the public interest by persons ostensibly not subject to adequate state supervision.

Held – Section 32 had to be read and interpreted in the context of Part C of the Act, dealing with bargaining councils. Section 32 is the means whereby a bargaining

council may extend the product of sectoral bargaining to non-parties to the agreement within its registered scope that would otherwise not be bound by it. The non-discretionary duty (mechanical power) of the Minister to extend bargaining council collective agreements applies only in situations where the majority of employees who would be covered by the agreement once extended are members of trade unions that are parties to the council. Thus, the membership of minority unions who are party to the council, but who are not party to the collective agreement, will be taken into account in determining whether the numerical threshold for extension has been reached. The additional threshold numerical requirement is that the members of employers’ organisations party to the agreement must employ the majority of all the employees within the scope of the collective agreement once it is extended. The numerical thresholds of the level of majoritarianism required by section 32(3) are quite high, and in practice might prove difficult to achieve. Section 32(5) confers a discretion upon the Minister to extend a collective agreement to non-parties when the numerical thresholds in section 32(3)(b) and (c) have not been attained. The Minister must personally decide whether to extend the agreement in terms of section 32(5).

The FMF’s case was that section 32(2) read with section 32(3) of the Act was inconsistent with the rule of law provision in section 1 of the Constitution, essentially because it conferred unfettered power upon bargaining councils to legislate terms and conditions of employment for an entire sector. The crux of the complaint was that the limited nature of the mechanical discretion of the Minister under section 32(2) excluded substantive review leaving the exercise of power subject to inadequate judicial supervision. That arrangement, it submitted, constituted improper delegation to bargaining councils by the state of core coercive functions in matters of consequence and hence violated the principle of legality.

Furthermore, the FMF submitted that section 32(2) was inconsistent with the Constitution because the courts lack adequate review power to strike down an extension of a collective agreement by the Minister. It therefore sought an order for the correction of the offending provision by restoring to the Minister a general discretion constrained by a duty to act in the public interest.

The Court identified the two critical questions as being the following. First, what is the nature and scope of judicial review available in relation to the decisions and actions involved in the extension of bargaining council collective agreements to non-parties? Secondly, are bargaining councils and the Minister obliged to act in the public interest when extending such agreements?

The Court found that the decision of the bargaining council would be subject to judicial review in terms of the Promotion of Administrative Justice Act 3 of 2000. Hence, the charge of inconsistency with the Constitution for want of adequate judicial supervision of the bargaining council process was not sustainable.

The application of the Promotion of Administrative Justice Act meant that the discretion of the Minister to extend a minority collective agreement concluded in a bargaining council would be significantly constrained by the requisites of legality and procedural fairness. It was concluded that the judicial power of review in relation to the decision of the Minister under section 32(5) to extend a minority collective agreement concluded in a bargaining council, if not extensive, was certainly

adequate and prima facie or presumptively consonant with the right to administrative justice in section 33 of the Constitution.

Finally, the Court held that the contention of the FMF that the legislative scheme for the extension of bargaining council collective agreements was unconstitutional because of the absence of adequate State and judicial control was wholly wrong. Section 32 was held not to be inconsistent with the Constitution.

The application was dismissed.

Herbex (Pty) Ltd v Advertising Standards Authority[2016] 3 All SA 146 (GJ)

Media – Advertising Standards Authority (“ASA”) – Status and powers – Jurisdiction over non-members – Application for declaratory orders relating to the status and powers of the ASA to determine complaints and issue rulings regarding advertisements of non-members – ASA’s adjudication in circumstances where its non-members are not bound to its rulings but has practical consequences, amounts to an imposition of jurisdiction over non-members – ASA interdicted from adjudicating such complaints in the absence of a submission to jurisdiction.

The applicant was a company selling and marketing complementary medicines. The respondent was the Advertising Standards Authority, established to promote and enforce standards in the advertising industry. Membership of the respondent was voluntary, with members consisting of agencies, marketers and media. Members were voluntarily bound by the respondent’s guiding document, the Code of Advertising Practice (“the code”). The code applied to all commercial and non-commercial advertising. The respondent adjudicated complaints of breaches of the code on behalf of its members. The applicant was not a member of the respondent. However, for a number of years, the respondent had communicated with the applicant regarding complaints received in respect of some of its advertisements in the media and the applicant had responded thereto, participated in and defended itself in internal hearings and procedures conducted by or under the auspices of the respondent. The respondent had also issued rulings in respect of some of the applicant’s advertisements.

Alleging that it was misled and induced by misleading and false statements and non-disclosures in the respondent’s standard letters to participate in the respondent’s procedures, the applicant sought declaratory relief regarding the status and powers of the respondent; declaratory relief aimed at restricting the respondent’s powers to regulate the applicant’s advertising; relief dealing with the way that the respondent represented its powers, which relief purported to flow from alleged misrepresentations of the respondent; and relief flowing from the respondent’s allegedly unlawful appeal fees.

Held – The crux of the dispute concerned whether the respondent had any lawful basis to exercise jurisdiction over persons who were not its members.

As a voluntary association, the sole source of the respondent’s power is its articles of association. In analysing the lawfulness of the respondent’s conduct vis-à-vis non-members, it was important to be mindful of the principle of privity of contract.

Therefore, the respondent and its members could not by agreement between themselves impose the code that they had agreed to be bound by, upon non-members who had not so agreed and in doing so confer jurisdiction upon the respondent in respect of a non-member’s advertising.

Thus, respondent had no jurisdiction to determine complaints or issue rulings against non-members. The absence of jurisdiction prohibited the granting of such rulings or orders ab initio. In consequence, a decision taken absent proper jurisdiction was void.

The Court also found merit in the applicant’s complaint that its constitutional right to freedom of association was infringed by the respondent’s exerting pressure on non-members to submit to its association. Furthermore, the Court found that the applicant had not established an entitlement to an interdict in respect of alleged misrepresentations of the respondent.

Finally, in light of the finding that, in the absence of consent, the respondent did not have jurisdiction to determine any complaints relating to the advertisements of non-members, it followed that the respondent could also not impose the payment of appeal fees on non-members. The applicant was entitled to recover the amounts unduly paid to the respondents.

JGB and another v Presiding Officer, Children’s Court, Wynberg NO and others[2016] 3 All SA 167 (WCC)

Children – Adoption – Adoption proceedings – Rulings made by magistrate – Application for review – Recommendation in terms of section 239(1)(d) of the Children’s Act 38 of 2005 is a peremptory requirement for an adoption application to be entertained by a court – None of impugned decisions by magistrate sustainable, and review application succeeding.

The applicants, a married couple, were the prospective adoptive parents of a girl who had been in their uninterrupted care since she was almost 3 months old. She was now 7 years and 8 months old. The second and third respondents were the child’s biological maternal grandfather and his current wife to whom the child was not biologically related.

In the course of adoption proceedings, the first respondent (“the magistrate”) made various decisions, four of which were sought to be reviewed by the applicants. The first of those decisions was that the second and third respondents’ application had to proceed despite the absence of a letter of recommendation from the provincial head of social development as prescribed by section 239(1)(d) of the Children’s Act 38 of 2005. The second decision was that the applicants make the child available for psychological assessment by a mental health professional appointed by the second and third respondents, or by another mental health professional of their choice. Third, the fourth respondent, who was the child’s biological mother and whose consent to her adoption had already been held to have been validly given, nonetheless was admitted as a party for the purpose of opposing the applicants’ adoption application. The final decision was that by virtue of the definition of a “parent” in the Children’s Act the fourth respondent, whether as a “party” or a

“parent”, was entitled to be provided with legal representation in the adoption proceedings at all times so as to avoid a miscarriage of justice.

The declaratory relief sought centred principally on the legal status of a biological parent, who has validly consented to the adoption of his child, in subsequent adoption proceedings. It was thus linked to some of the review relief. The applicants sought a declaration that once a biological parent has validly given consent, he is not a “party” for purposes of an adoption application as contemplated in section 239 of the Children’s Act, but is permitted to participate in the proceedings in terms of section 58 thereof in circumstances where the evidence led or argument addressed to the court is relevant to the proceedings and in the interests of the child or children concerned.

Held – The issues for determination were whether a section 239(1)(d) recommendation is a peremptory requirement for an adoption application to be entertained by a court; whether a parent who has validly consented to the adoption of her child is nonetheless a party to subsequent adoption proceedings for purposes of the Children’s Act, or whether such a person is only permitted the participatory rights provided by section 58 of the Children’s Act; the right of such person to legal representation; and the competency of the pro forma orders which the magistrate makes from time to time.

The absence of a letter of recommendation from the provincial head of social development as prescribed by section 239(1)(d) of the Children’s Act meant that the magistrate could not entertain the second and third respondents’ adoption application. There were no exceptional circumstances to justify condonation of the peremptory section 239(1)(d) recommendation. The magistrate’s ruling thus fell to be set aside.

At the time the fourth respondent was admitted as a party, she had already relinquished her parental rights and responsibilities; and there was no longer any “direct” interest that she could claim to have had in the proceedings. The magistrate’s ruling that the fourth respondent be admitted as a party to the proceedings thus also fell to be set aside. Furthermore, the magistrate’s rulings to entertain the applicants’ adoption application only when the fourth respondent was legally represented constituted a reviewable irregularity and also had to be set aside.

On the issue of legal representation of the fourth respondent, the court held that section 54 of the Children’s Act provides that a person who is a party in a matter before a Children’s Court is entitled to appoint a legal practitioner of her own choice and at her own expense. The magistrate went to considerable lengths to assist the fourth respondent in securing legal representation both prior to and after her ruling that she be admitted as a party to the proceedings. Given the wording of section 54 of the Children’s Act, the magistrate went beyond the call of duty. The decision to entertain the applicants’ adoption application only when the fourth respondent was legally represented constituted a reviewable irregularity and also had to be set aside.

Section 242(2)(a) of the Children’s Act provides that an adoption order confers full parental responsibilities and rights in respect of the adopted child upon the adoptive parent; and section 242(3) stipulates that an adopted child must for all purposes be regarded as the child of the adoptive parent and an adoptive parent must for all

purposes be regarded as the parent of the adopted child. The applicants challenged the competency of a pro forma order which the magistrate advised that she made from time to time, which had the effect of preserving the rights of the former parent after the adoption. Such order was ultra vires  the provisions of Chapter 15 of the Children’s Act.

Lawrie v Nursing Response CC and others [2016] 3 All SA 186 (ECG)

Civil procedure – Jurisdiction – Labour dispute – Referral to Commission for Conciliation, Mediation and Arbitration (“CCMA”) followed up with litigation in High Court – It does not follow that, because a dispute between parties is referred to the CCMA, another dispute arising from but completely different to the original dispute must be referred to the Labour Court – Jurisdiction is determined on the basis of the pleadings and not the substantive merits of a claim.

Contract – Settlement agreement – Compromise – A compromise is a contract between two or more persons which has as its object the prevention, avoidance or termination of litigation.

An application by the appellant for the setting aside of a settlement agreement between the appellant, on the one hand, and the first and second respondents, on the other hand, was dismissed by the court a quo. The present appeal was against the dismissal of the application.

In January 2009, the appellant concluded an employment agreement with the first respondent. In November 2010, pursuant to a disciplinary enquiry, the appellant was dismissed by the first respondent because she allegedly breached a rule at her workplace by sleeping on duty during an official lunch break. The appellant challenged the fairness of her dismissal at the Commission for Conciliation, Mediation and Arbitration (“CCMA”). The third respondent was appointed to arbitrate the dispute. Negotiations during the conciliation process gave rise to the settlement agreement. The appellant challenged the veracity of two claims made in the agreement, viz  that her employment was terminated as a result of the expiration of the fixed period agreed to between the parties, and that she was never placed on suspension. The appellant’s case was therefore that it would be contra bonos mores  to allow the settlement agreement to stand.

The respondents opposed the application on the grounds that the court a quo did not have jurisdiction to entertain the application as the appellant instituted the application in the High Court, she had chosen to abandon the process she followed in the CCMA. Secondly, it was contended that the parties’ respective claims were compromised.

Held – It did not follow that, because a dispute between parties is referred to the CCMA, another dispute arising from but completely different to the original dispute must be referred to the Labour Court. Jurisdiction is determined on the basis of the pleadings and not the substantive merits of a claim. The relief sought was for an order that the court a quo set aside the settlement agreement alternatively declare it void ab initio. The appellant formulated her claim in her founding affidavit on the basis that the two clauses in the settlement agreement were unenforceable because they were contra bonos mores. The appellant’s claim had nothing to do with her claim which was referred to the CCMA, namely that she was allegedly unfairly

dismissed. There was therefore no reason why the court a quo could not entertain the claim for the relief set out in the notice of motion.

Regarding the appellant’s averment that the settlement agreement was invalid and unenforceable because the impugned clauses were contrary to public policy, the second respondent submitted that the settlement agreement was a compromise (transactio) and that it was contra bonos mores. A compromise is a contract between two or more persons which has as its object the prevention, avoidance or termination of litigation. The Court was satisfied that the settlement agreement was a contract of compromise. That led to the question of whether or not the compromise was invalid by reason of the fact that the two clauses in question were contended to be contra bonos mores. It was found that the two clauses were not contra bonos mores, and the settlement agreement was accordingly not invalid.

The appeal was dismissed with costs.

Moneyweb (Pty) Ltd v Media 24 Ltd and another [2016] 3 All SA 193 (GJ)

Intellectual property – Copyright – News articles – Fair dealing defence – Copyright Act 98 of 1978 – Section 12(1)(c)(i) of the Act states that “copyright shall not be infringed by any fair dealing” – Fair dealing defence contains a proviso that states that the source of the work shall be mentioned, as well as the name of the author if it appears on the work – Court found that the provision of a hyperlink complied with that requirement.

Intellectual property – Copyright – News articles – Originality – Copyright Act 98 of 1978 – Section 2(1) – Section provides that certain works, including literary works, shall be eligible for copyright if they are original – While it is permissible for an author to make use of existing material and still achieve originality in respect of the work which he produces, the work must be more than simply a slavish copy ie it must in some measure be due to the application of the author’s own skill or labour.

The two protagonists in this case were both publishers, whose businesses included publishing articles on the internet. The applicant (“Moneyweb”) sought a declaration that the publication of seven articles by the first respondent (“Media24”) was unlawful. Moneyweb contended that Media24 infringed its copyright under the Copyright Act 98 of 1978 (“the Act”). It also sought to interdict the continued publication of the articles, and a further declaration that Media24 and the second respondent were liable for the damages suffered by it as a result of the publication of the articles.

Held – Three issues appeared to be at the centre of this matter. First, there was a dispute concerning the originality of Moneyweb’s articles. Media24 argued that Moneyweb had failed to prove originality in any of its articles. Second, if Moneyweb was able to prove originality in any of its articles, the question was whether Media24 had reproduced a substantial part of the relevant article. Media24 admitted reproduction of part of the Moneyweb articles but denied that the reproduction was substantial. Finally, Media24 contended that it was absolved from liability by virtue of the statutory defences in sections 12(1)(c)(i) and 12(8)(a) of the Act.

Section 2(1) of the Act provides that certain works, including literary works, shall be eligible for copyright if they are original. The latter concept is not defined in the Act. However, the authorities explain that the work should emanate from the author

himself and not be copied. While it is permissible for an author to make use of existing material and still achieve originality in respect of the work which he produces, the work must be more than simply a slavish copy. It must in some measure be due to the application of the author’s own skill or labour. Moneyweb correctly accepted that it bore the onus of proving originality. The Court examined each of the articles called into question and found that it could not discern the nature and extent of the writers’ contributions in several of the articles. It concluded that Moneyweb had discharged the onus of proving originality in three of the seven articles. The remaining four articles could therefore not be subject to a breach of copyright claim.

The Court then turned to consider one of the statutory defences upon which Media24 relied, viz section 12(8)(a) of the Act. If the subsection applied to any of the Moneyweb articles, those articles would not enjoy copyright protection. The section provides that copyright shall subsist inthree categories of works: official texts and their translations, political and legal speeches, and certain news of the day. The Court held that the section did not apply to the three articles found not to be original works.

The next question was whether Media24 had reproduced any substantial part of the articles that had been proved to be original works. It was found that Media24 had only reproduced a substantial part of one of the articles.

Section 12(1)(c)(i) of the Act states that “copyright shall not be infringed by any fair dealing”. The fair dealing defence contains a proviso that states that the source of the work shall be mentioned, as well as the name of the author if it appears on the work. The Court found that the provision of a hyperlink complied with that requirement.

Media 24 was found to have infringed Moneyweb’s copyright in respect of the single article as referred to above. As the infringement was not continuing, an interdict was deemed unnecessary.

Nkala and others v Harmony Gold Mining Company Ltd and others (Treatment Action Campaign NPC and another as amici curiae) [2016] 3 All SA 233 (GJ)

Civil procedure – Class action – Certification – A class action can only proceed to trial if it has been certified by the court as being an appropriate means of resolving the dispute between the putative class members and the defendants.

Delict – Claim for damages – Transmissibility of general damages – Rule that the claim for general damages is not transmissible to an estate is that the general damages are personal to the claimant – Court forming view that the common law had to be developed to allow for the claim for general damages to be transmissible to the estate or executor of a deceased mineworker, even though the stage of litis contestatio had not been reached at the time of his death.

Delict – Requirements for delictual action – For a delictual action to be successful a plaintiff will have to show that the defendant acted or failed to act; that such action or omission was wrongful; that the defendant was at fault; that the act or omission of the defendant caused the damage suffered by the plaintiff; and that the damage endured by the plaintiff was capable of quantification.

The present case concerned the attempts by the mineworkers employed in the gold mining industry, and their dependants, to obtain compensation as a result of the mineworkers having contracted silicosis or tuberculosis (“TB”). The applicants sought to bring a class action on behalf of current and past underground mineworkers who had contracted the diseases, and on behalf of the dependants of mineworkers who died thereof, while employed in the gold mines. An order for certification of one consolidated class action comprising of two classes, namely a silicosis class and a TB class, against companies operating in the gold mining industry, was sought.

The potential class members could range in numbers from 17 000 to approximately 500 000. The bulk of them belonged to the silicosis class. The mining companies, who were all potential defendants, represented almost the entire gold mining industry in South Africa. The applicant mineworkers and putative class members were referred to in the judgment as “the mineworkers”; the applicants who were widows of former mineworkers were referred to as “dependant applicants”, and the respondents were referred to as “the mining companies”.

Held – A class action represents a paradigmatic shift in the South African legal process. It is a process that permits one or more plaintiffs to file and prosecute a lawsuit on behalf of a larger group or “class” against one or more defendants. The process is utilised to allow parties and the court to manage a litigation that would be unmanageable or uneconomical if each plaintiff was to bring his/her claim individually. A class action can only proceed to trial if it has been certified by the court as being an appropriate means of resolving the dispute between the putative class members and the defendants. Certification is necessary for the court to be satisfied that certain conditions are met justifying the burdening of the defendants and the court with a class action.

As referred to above, the applicants contemplated two classes, namely a silicosis class and a TB class. The Court confirmed that there was no need for the entire class membership to be determined before the common issues of fact or law could be determined, or before relevant evidence common to all class members, and which advanced the cases of each class member, was entertained.

The mineworkers’ claim was one in delict. For a delictual action to be successful a plaintiff will have to show that the defendant acted or failed to act; that such action or omission was wrongful; that the defendant was at fault; that the act or omission of the defendant caused the damage suffered by the plaintiff; and that the damage endured by the plaintiff was capable of quantification. The Court had to consider whether there were any issues amongst those elements of the delictual action which could be dealt with as part of a class action where a finding on them would be applicable to the case of each and every mineworker.

The alleged breach of duties by the mining companies included allegations that they had unlawfully exposed all the mineworkers to excessive levels of harmful silica dust, and that they owed the mineworkers a duty of care to ensure that their work and living places were safe.

The mineworkers intended to plead certain simplified questions of law at the class action trial. Those questions were common to the case of every mineworker, and their determination would have a final and determinative effect on the claim of each of them. The Court acknowledged that the common issues in the class actions might

not finally determine each mineworker’s case, but held that to be no bar to certifying the class action. A certification is not dependent on each mineworker’s case being fully and finally determined once the common issues are determined in favour of the mineworkers. As long as it could be shown that determination of the common issues would advance the cases of the individual mineworkers substantially, a certification of the intended class action would be justified and would be in the interests of justice. The class action would not only be to the benefit of the mineworkers but also to that of the mining companies which raised defences that were common to all or most of the mineworkers. Those defences would be determined once and would enjoy the status of finality.

A further consideration in the present case was that for the mineworkers, who were poor and lacked the sophistication necessary to litigate individually, there was no realistic alternative to class action.

It was concluded that the proposed class action was the most appropriate way for the matter to proceed.

The notice of motion envisaged a bifurcated process involving two stages. The first stage would involve a hearing on all the common issues. The second stage would deal with all the individual issues. The Court found no reason not to sanction the adoption of a bifurcated process.

The Court confirmed the suitability of the class representatives and the legal representatives. It then turned to address the mining companies’ challenge to certain fee sharing arrangements on the ground that they did not comply with the provisions of the Contingency Fees Act 66 of 1997. Examining the basis of the objection, the Court ruled the objections to the fee agreements to be devoid of merit.

The mineworkers asked that the Court declare that any claim for general damages that a mineworker brought, or might wish to bring, against any of the mining companies was transmissible to his estate should he die before the litigation reached the stage of litis contestatio. The common law does not entitle a dependant of a deceased person, or an estate (through the executor) of a deceased person, to pursue a claim for general damages, future loss of earnings, or future medical expenses. However, the dependants of the deceased claimant can pursue claims for loss of support and actual diminution of their patrimony resulting from the wrongful conduct of the defendant, and which wrongful conduct caused the death of their breadwinner. The reasoning underlying the rule that the claim for general damages is not transmissible to her estate is that the general damages are personal to the claimant: neither the dependants nor the estate, suffer any loss or damage from the pain and suffering, the loss of amenities of life and the disfigurement endured by the deceased during her lifetime. Therefore, they can have no claim for the bodily injuries suffered by the deceased. However, the Court formed the view that the common law had to be developed to allow for the claim for general damages to be transmissible to the estate or executor of a deceased mineworker, even though the stage of litis contestatio had not been reached at the time of his death. Such development was necessary in the light of the court’s general duty to do justice by the persons affected by its orders.

University of Cape Town v Davids and others [2016] 3 All SA 333 (WCC)

Civil procedure – Interim interdict – Confirmation of – Requirements for final interdict – Applicant must demonstrate a clear right; an injury actually committed or reasonably apprehended; and the absence of an alternative remedy.

Constitutional law – Student protests – Misconduct – Constitutional rights to freedom of association, freedom to demonstrate, freedom of expression and right to dignity – Such rights not unlimited and subject to horizontal application, in that, the rights have to be exercised with due regard to those self-same rights of other persons.

In February 2016, an interim interdict was granted against the respondents, preventing them from entering any of applicant’s premises and from committing any acts that impeded and prevented applicant’s rendering of services or making decisions. In the present application, confirmation of the interim interdict was sought.

The applicant was driven to seek the interdict due to various acts committed by the respondents during student protests. Included in the conduct objected to by the applicant was the bringing of a shack structure onto the campus and erecting it in the path of traffic flow; the spray painting of statues with red paint; the invasion of a residence hall and taking of food meant for residents; the removal of portraits, painting, photographic collages and photographs from various buildings; and the setting light of two university vehicles.

Opposing the granting of interdictory relief, the respondents contended that their constitutional rights to freedom of association, freedom to demonstrate, freedom of expression and right to dignity would all be severely restricted if the final interdict were granted.

Held – The constitutional rights relied upon by the respondents were not unlimited and were subject to horizontal application, in that, the rights have to be exercised with due regard to those self-same rights of other persons.

The Court was also asked to view the conduct of the respondents as acts of civil disobedience. The Court established the dictionary definition of civil disobedience as involving a refusal to obey a law out of a belief that the law is morally wrong.  Laws prohibiting damage to the property of another, appropriating the property of another and physically assaulting another cannot be said to be morally wrong.

An applicant desirous of approaching a court for a final interdict must demonstrate a clear right; an injury actually committed or reasonably apprehended; and the absence of an alternative remedy.

The right to demonstrate and protest is subject to it being peaceful. The applicant had a clear right to protect its property, the duty to provide a safe and secure environment in which students and staff could attend the university, access the facilities and resources of the university and the residences at which they were accommodated. Linked to those rights and duties, the university had a concomitant duty to facilitate the safe passage of students, staff and members of the public to and from the university premises.

The applicant also satisfied the Court that it had met the remaining requirements for interim relief. Finding the interim interdict to be somewhat overbroad, the Court decided to reduce its scope in making it final.

End