
Spartan
Caselaw
CASE LAW UPDATE
4 February 2025
21 January 2025
VALLY J
COMPANY – Director – Delinquent – Three defendants were executive directors of Delta for some years – Forensic investigation detailed evidence of serious irregularities – Company suffering substantial losses out of several transactions – Nomvete unrepentant and incapable of rehabilitation – Not possessing moral or ethical character required of director – Declaration of delinquency for life – For Maharaj fifteen years appropriate and for Tshabalala the minimum period of seven years – Companies Act 71 of 2008, s 162(5).
Facts: Delta is a Real Estate Investment Trust, popularly known as a REIT. A REIT falls into a special investment and tax category. Delta holds a property portfolio of about R7,5 billion. It is a public company, which commenced as a black-owned company. The defendants were executive directors of Delta for some years. Mr Nomvete was the Chief Executive Officer (CEO), while Mr Maharaj was the Chief Financial Officer (CFO) and Mr Tshabalala, the Chief Operating Officer (COO). In 2019, Delta’s company secretary received a telephone call from an anonymous person informing her that Delta was involved in irregular payments to an employee of the Bank of China (BoC). The caller claimed to have received the information from an Uber driver. Delta engaged Deloitte Risk Advisory and tasked it with conducting an initial investigation into the allegations. A detailed forensic investigation was conducted by Mazars Forensic Services. The report detailed evidence of serious irregularities occurring at the instance of Mr Nomvete and Mr Maharaj. Further investigations were undertaken and in 2021 even more irregularities at the instance of the three defendants were uncovered.
Application: Delta instituted this action asking that each of the defendants be declared to be delinquent directors in terms of section 162(5) of the Companies Act 71 of 2008 and that they be held liable in terms of section 77 of the Act for certain damages, losses and costs it incurred as a result of their actions. The matter was designated a commercial one.
Discussion: The court discusses the evidence on the causes of action: two Bank of China (BoC) transactions; transactions involving Mhlandla Solutions and Zimzin; a lease agreement with the eThekwini Property Fund; and the Shameless Way transaction. The findings leave the court with no option but to declare each of the defendants delinquent directors. Delta suffered the following losses as a result of the conduct of the three defendants: R2,100,000 in respect of payments to Mr Van Wyk. Messrs Nomvete and Maharaj are the cause of Delta’s loss and are liable thereto. R23,094,415.54 in respect of payments to Mhlandla and R3,620 835.52 in respect of payments to Zimzin. The total loss is R26,715,251.06. All three defendants are jointly and severally liable to Delta for this loss. R863,692.94 in respect of payments to Shameless Way. Mr Nomvete and Mr Maharaj are liable to Delta for this loss.
The directors: Neither Mr Nomvete nor Mr Maharaj seized the opportunity to acknowledge the gravity of their wrongdoings. They do not recognise that they committed crimes and made Delta a party to their crimes. Mr Nomvete was simply unrepentant. He does not possess the moral or ethical character required of one that assumes the office of a director of a company – public or private. A declaration of delinquency applicable for life in his case can be the only response of the civil law to his conduct. He is not even able to appreciate that he was a party to criminal conduct. He is incapable of rehabilitation. Mr Maharaj on the other hand was ambivalent. His approach demonstrates an inability to appreciate the grossness of engaging in criminal activity for and on behalf of Delta. To the extent that he showed some remorse it was not on the recognition that he, together with Mr Nomvete, acted unlawfully. He was only willing to accept that he acted negligently by “dropping the ball”, when in fact his actions and omissions were far more serious. A declaration of delinquency applicable for a period of fifteen years would be appropriate in his case. In the case of Mr Tshabalala, given that his malfeasance was restricted to the second cause of action only, the declaration of delinquency should be restricted to the minimum period of seven years.
Order: The first, second and third defendants are declared to be delinquent directors in terms of section 162(5) of the Companies Act 71 of 2008. In respect of Mr Nomvete, the declaration of delinquency is to apply for his lifetime. In respect of Mr Maharaj, the declaration of delinquency is to apply for a period of fifteen years from the date of this order. In respect of Mr Tshabalala, the declaration of delinquency is to apply for a period of seven years from the date of this order. See para [79] for the liability of the defendants to pay certain sums and interest.
VALLY J
22 January 2025
SWANEPOEL J
COSTS – De bonis propriis – Misleading court – Application to compel issuing of Fidelity Fund Certificate for sheriff – Disciplinary process and findings that applicant not fit and proper – Applicant and attorney knew about process for cancellation of certificate – Attorney not to perpetuate client’s dishonesty – Applicant liable for 50% of costs on attorney-client scale – Attorney liable for 50% of costs on attorney-client scale, de bonis propriis.
Facts: Section 26 of the Sheriff’s Act 90 of 1986 established a fidelity fund for sheriffs, which is largely aimed at indemnifying the public for claims against sheriffs. A sheriff is obliged to have a Fidelity Fund Certificate (FFC) by virtue of the provisions of section 30(1)(a) of the Act. The applicant alleges that he is a sheriff appointed for the district of Sasolburg. The applicant says that he applied for a FFC in July 2024 and again in October 2024. The respondent, Board for Sheriffs, acknowledged his application, and advised that if he were not to hear from it, he could infer that the application was in order, and that he would in due course receive his FFC. He says: “To date I have not heard from them, nor was there any query raised.”
Application: The applicant launched this application on an urgent basis, seeking an order that the respondent be directed to issue him with an FFC for the year ending 31 December 2025. He also seeks a costs order against the respondent. The applicant attached his application of October 2024 to his papers. He was required to answer two questions: The first was whether he had ever been dismissed from a position of trust by reason of improper former conduct involving a breach of such trust. The second was whether he had ever been convicted of any offence involving dishonesty. In respect of both questions the applicant replied in the negative.
Discussion: The picture one gets from reading the founding affidavit is of an innocent applicant who is at the mercy of the respondent, and who has no idea why his FFC had not been issued. But it emerged that the respondent had instituted disciplinary action against the applicant in 2017, as a result of numerous complaints, which resulted in his conviction on all charges. The findings included that the applicant showed no respect for trust monies and good accounting practices and that he was not fit and proper to hold the office of a sheriff. He was removed as sheriff for the districts of Mkobola, Mdutjana and Mbibana, but not for Sasolburg. There was an opinion that the decision of the respondent not to execute the disciplinary sanction of removal as sheriff for all areas was unlawful, and that the respondent was obliged to cancel the applicant’s existing FFC.
Findings: When this application was brought, both the applicant and his attorney knew that there was an ongoing process relating to the cancellation of his FFC. The allegation that the applicant has never had a FFC cancelled is false. The court makes the finding that the applicant was dishonest in the founding affidavit, as well as having lied in the FFC application. The court is dismayed by the conduct of Mr Motaung. He deliberately attempted to mislead the court. It was submitted, on his behalf, that an attorney acts on the instructions of his client, and that that is all he did. That may be so, but an attorney is foremost an officer of court, and when an instruction from a client is in conflict with his duty to the court, an attorney must advise the client that he cannot execute that particular instruction. An attorney must not perpetuate his client’s dishonesty, but must be scrupulously honest with the court. He must not allow false or misleading facts to be placed before a court. In this case the applicant and his attorney are equally to blame for attempting to mislead the court and should be equally liable for the costs.
Order: The application is dismissed. The applicant shall be liable for 50% of the costs of the application on an attorney-client scale. The applicant’s attorney, Mr Thapelo Motaung shall be liable for 50% of the costs on the attorney-client scale, de bonis propriis. The costs shall be calculated on Scale C.
SWANEPOEL J
29 January 2025
DANIELS J
LABOUR – Dismissal – Dishonesty – Unlawful banking practices – Breach of account activation rule – Applicant used her own funds to activate 99 accounts to meet sales targets – Admission of misconduct – Commissioner’s decision of substantially fair dismissal was reasonable – Supported by evidence – Applicant’s conduct was dishonest – Acted deliberately with intention to deceive – Dismissal justified – Claims of remorse and inconsistent discipline unsubstantiated – Application dismissed.
Facts: The applicant, represented by SASBO (South African Society of Banking Officials), was dismissed by Standard Bank for misconduct. She had been employed as a Universal Banker (UB) and was required to meet sales targets by opening and activating "MyMo accounts," which were designed for low-income customers. The activation rule required a "customer-initiated credit transaction," meaning the customer had to deposit funds into the account. However, the applicant used her own funds to activate 99 accounts, including 13 opened by colleagues, to meet her targets. The bank discovered this practice through a whistleblower and conducted an investigation, leading to disciplinary action. The applicant admitted to the misconduct, citing pressure to meet targets and wanting to avoid performance management. She was dismissed in April 2022 and referred the matter to the CCMA, where the arbitrator found her dismissal substantively fair.
Application: The applicant applied to review and set aside the arbitration award, claiming that the commissioner’s finding that her dismissal was substantively fair was unreasonable. She argued that the commissioner misunderstood the nature of dishonesty, failed to consider her remorse, and did not adequately assess the bank’s inconsistent application of discipline. The issue was whether the arbitration award, which found the applicant’s dismissal substantively fair, was reasonable and whether the commissioner had properly applied his mind to the material facts and legal principles.
Discussion: The court analyzed the grounds of review, focusing on whether the commissioner’s decision was reasonable. The applicant argued that the commissioner misunderstood the nature of dishonesty, failed to consider her remorse, and did not adequately address the bank’s inconsistent application of discipline. The applicant alleged that commissioner acted unreasonably because he approached the matter on the basis that dishonesty always attracts a sanction of dismissal whereas there are varying degrees of dishonesty. Offences involving dishonesty do not necessarily incur the supreme penalty of dismissal, because the facts of every case must be assessed and mitigating features considered. The applicant did not, in her statement, or her declaration, or her testimony, ever profess to have misunderstood the rule against bankers activating accounts. On that basis alone, it must be accepted that the applicant acted deliberately, with the intention to deceive. The applicant’s explanation, consistent at all times, was that her conduct was motivated by her desperation to meet her target and avoid performance management. This was a strong indication that the applicant intended to deceive the bank and misrepresent sales.
Findings: The court found that the commissioner’s decision was reasonable, as the applicant had admitted to breaching the bank’s rules and had acted dishonestly by using her own funds to activate accounts. The court also found that the applicant’s remorse was not genuine, as she had attempted to justify her actions at arbitration. Additionally, the claim of inconsistent discipline was rejected, noting that the comparators cited by the applicant were materially different in terms of the nature and extent of their misconduct. The court emphasized that the review test is not about correctness but about whether the decision was reasonable based on the evidence. The court found that the commissioner’s decision was reasonable and supported by the evidence. The applicant’s conduct was dishonest, and her dismissal was justified. The applicant’s claims of remorse and inconsistent discipline were not substantiated. The commissioner had properly applied his mind to the material issues, and the outcome was reasonable.
Order: The application to review and set aside the arbitration award was dismissed, and there was no order as to costs.
DANIELS J
18 December 2024
JOLWANA AJA
LABOUR – Jurisdiction – Collective agreement dispute – Arising from interpretation in circumstances in which referral to GPSSBC is at instance of non-party union or employee – Argument that only parties to collective agreement could refer disputes rejected – Restrictive interpretation – Would unjustly limit access to dispute resolution mechanisms – Violation of section 34 of Constitution – GPSSBC had jurisdiction to determine dispute – Labour Court and arbitrator erred in findings – Appeal upheld.
Facts: The appellant, the South African Correctional Services Workers Union (SACOSWU), acting on behalf of its member, Mr Kasper, referred a dispute to the General Public Service Sectoral Bargaining Council (GPSSBC) regarding the interpretation of GPSSBC Resolution 2 of 2009. This resolution, a collective agreement, governs the occupation-specific dispensation (OSD) for Correctional Services Officials, including salary structures and career progression. Mr Kasper, an employee of the Department of Correctional Services, is a member of SACOSWU, which is not a party to the collective agreement. The dispute resolution clause in the agreement allows any party to refer disputes about its interpretation or application to the GPSSBC. The first respondent, the Minister of Justice and Correctional Services, challenged the GPSSBC’s jurisdiction, arguing that only parties to the collective agreement could refer such disputes. The arbitrator ruled in favour of the respondent, finding that SACOSWU lacked standing to refer the dispute. The Labour Court upheld this decision, prompting SACOSWU to appeal.
Appeal: SACOSWU appealed the Labour Court’s decision, arguing that the court erred in finding that only parties to the collective agreement could refer disputes about its interpretation or application. SACOSWU contended that section 24(2) of the Labour Relations Act 66 of 1995 (LRA) allows “any party to the dispute” to refer such disputes, not just parties to the agreement. SACOSWU also argued that the Labour Court’s interpretation unjustly limited access to dispute resolution mechanisms for non-party unions and employees bound by the agreement, violating their constitutional rights. The central issue was whether the GPSSBC had jurisdiction to determine a dispute about the interpretation or application of a collective agreement when the referral was made by a non-party union (SACOSWU) on behalf of its member, who was bound by the agreement.
Discussion: The court analysed section 24(2) of the LRA, which permits “any party to the dispute” to refer disputes about the interpretation or application of a collective agreement. SACOSWU argued that the use of “any party to the dispute” rather than “any party to the collective agreement” indicated that non-parties bound by the agreement could also refer disputes. The court also considered section 23(1) of the LRA, which extends the binding effect of collective agreements to non-party employees and unions within the scope of the agreement. The court rejected the respondent’s argument that only parties to the collective agreement could refer disputes, noting that such a restrictive interpretation would unjustly limit access to dispute resolution mechanisms and violate section 34 of the Constitution, which guarantees the right to fair dispute resolution. The court emphasized that the legislature’s choice of inclusive language in section 24(2) supported the appellant’s position.
Findings: The right of access to all and any lawful forms of dispute resolution should only be curtailed in the most extreme and deserving cases and with great reluctance. Whether or not a party to the dispute will succeed in the interpretation contended for is irrelevant. The fact of the matter is that just like section 34 of the Constitution, section 24(2) does not prohibit the appellant from accessing the dispute resolution mechanism provided for therein. The court found that the GPSSBC had jurisdiction to determine the dispute. It held that the Labour Court and the arbitrator erred in concluding that only parties to the collective agreement could refer disputes about its interpretation or application. The court emphasized that the inclusive language of section 24(2) of the LRA, read in conjunction with section 23(1), allowed non-party unions and employees bound by the agreement to refer disputes. The court also noted that restricting access to dispute resolution mechanisms would undermine the constitutional right to fair dispute resolution. As the arbitrator’s ruling was a jurisdictional ruling, and if the court finds for the appellant, the matter must go back to the GPSSBC for arbitration before a commissioner other than the third respondent.
Order: The appeal was upheld with no order as to costs. The Labour Court’s judgment was set aside and replaced with an order confirming that the GPSSBC has jurisdiction to determine the dispute. The matter was remitted to the GPSSBC for arbitration before a different commissioner.
JOLWANA AJA (VAN NIEKERK JA and NKUTHA-NKONTWANA JA concurring)
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ESTRANGED WIFE AND HER DEFAMATION CAMPAIGN
This is an application by a husband against his estranged wife for a declaration that the contents of a complaint laid against him with the Legal Practice Council (LPC) amount to contempt of a court order. The applicant is an attorney of some years standing. The divorce proceedings have been marred by acrimony. One of the ways in which this acrimony has been expressed is through the respondent, Mrs R, publishing allegations regarding the alleged impropriety of the applicant in relation to his professional conduct and personally. Even if there were any complaint which could be said to have some traction (and the court cannot see one) the fact that such complaints are couched in a gratuitous and vitriolic tirade means that there is a clear breach of many aspects of the order. The complaints are wide ranging and gratuitous. It comes as no surprise that the LPC has dismissed the “complaints”. Mrs R has sought to abuse the processes and facilities allowed under the Legal Practice Act in a bid to continue her defamation campaign under the banner of a report to a tribunal.
MAINTENANCE WHERE HUSBAND IN PRISON
The applicant seeks an order, pendente lite, for her spousal maintenance needs, medical expenses as well as contribution towards her legal costs. The respondent, her husband, is in prison. The parties had a normal marriage relationship and enjoyed a comfortable lifestyle, but in 2024 the respondent shot and killed his elderly parents, domestic worker and the applicant's biological daughter. The respondent attempted to kill the applicant by shooting her in the face. In her attempt to flee the scene, the applicant sustained severe injuries. She broke her shoulder, severely damaged her upper jaw and lip, palate and tongue. Furthermore, the projectile got stuck in her skull. The applicant has had to undergo several reconstructive surgeries to repair her face. Whilst in hospital in the trauma Intensive Care Unit, the applicant's life support system was tampered with and unplugged on two occasions. Whilst incarcerated the respondent has on various occasions attempted to locate the applicant's whereabouts, which has resulted in the applicant obtaining a new place of residence.
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TEN FURTHER CASES
17 January 2025
JOYINI J
ADMINISTRATIVE – Liquor license – Withdrawal – Citing contraventions of license conditions – Applicant argued that decision was irrational and unfair – Respondent’s own Inspectorate found no evidence of contraventions – Captain of SAPS did not dispute this finding during hearing – Respondent’s decision was irrational because it contradicted its own Inspectorate’s report – Paramount factor – Respondent’s decision reviewed and set aside.
Facts: The applicant, Paradise Hotel & Entertainment Lounge (Pty) Ltd, sought to review and set aside the decision of the Gauteng Provincial Liquor Board (the respondent) to withdraw its hotel liquor license. The license was issued in 2018 and renewed in 2022. On 30 March 2023, the respondent decided to withdraw the license, citing contraventions of license conditions. The applicant argued that the decision was irrational and unfair, as the respondent’s own Inspectorate found no evidence of contraventions, and Captain Wilken of SAPS did not dispute this finding during the hearing. The applicant filed an urgent application and later a review application within the prescribed 180-day period under the Promotion of Administrative Justice Act 3 of 2000 (PAJA).
Issue: The key issues were whether the answering affidavit by Mr. Otto Mbongeni Shabangu constituted inadmissible hearsay; whether the respondent’s decision was reviewable under PAJA; and whether exceptional circumstances existed to justify the court directing the respondent to make a new decision without remitting the matter.
Discussion: The court dismissed the point in limine regarding the affidavit, finding no prejudice to the applicant. It held that the respondent’s decision was irrational because it contradicted its own Inspectorate’s report, which found no contraventions of the Act. The court emphasized that administrative decisions must be rational and based on relevant considerations, which the respondent failed to do by ignoring the Inspectorate’s findings and Captain Wilken’s non-disagreement during the hearing. A decision is irrational in the strict sense of that term if it is unreasoned; if it is lacking ostensible logic or comprehensive justification. Instances of irrational decisions include those in which there is an absence of logical connection between the evidence and the ostensible reasons for the decision, where the reasons display no adequate justification for the decision, or where there is absence of evidence in support of the decision.
Findings: The respondent failed to give sufficient consideration to the fact that its (respondent’s) decision to withdraw the applicant’s hotel liquor licence is in contradiction with the finding and report submitted by its own Inspectorate. Captain Wilken from SAPS did not disagree in the hearing with that report which indicated that there were no contraventions or violation of the Act by the applicant. This means that this factor which is of paramount importance was relegated to one of insignificance by the respondent. This, on its own, warrants court’s intervention in the form of reviewing the respondent’s decision. The respondent’s decision was irrational and reviewable under PAJA. The respondent had failed to give proper consideration to the Inspectorate’s report, which was a paramount factor, and thus the decision warranted judicial intervention.
Order: The court dismissed the point in limine, reviewed and set aside the respondent’s decision to withdraw the applicant’s liquor license, and ordered the respondent to pay the applicant’s costs on a party and party scale.
31 January 2025
MUDAU J
COMPANY – Winding up – Unable to pay debts – Defaulted on facility – Failure to pay despite demand – Financial statements showed significant reduction in assets and no cash on hand to pay creditors – Respondent had no liquid assets to meet its obligations and was in serious financial distress – Reasonable prospect that creditors could benefit from a liquidation process – Winding-up order justified – In the best interests of creditors – Respondent placed under final liquidation – Companies Act 61 of 1973, s 345(1).
Facts: Nedbank Limited, the applicant, sought the final winding-up of Tala Light Weight Construction (Pty) Ltd, the respondent, under section 345(1) of the Companies Act 61 of 1973, alleging that the respondent was unable to pay its debts. Tala Light had an overdraft facility of R7,000,000 with Nedbank, which was a demand facility. The respondent defaulted on the facility, leading to a demand for payment of R7,694,358.28, including interest. Despite the demand, the respondent failed to pay. The respondent argued that it was factually solvent, with assets exceeding liabilities, but its financial statements showed a significant reduction in assets and no cash on hand to pay creditors. The respondent also claimed that Nedbank’s closure of its facilities caused financial difficulties. Nedbank countered that the respondent was commercially insolvent, lacking liquid assets to meet its liabilities.
Issue: The central issue was whether Tala Light Weight Construction (Pty) Ltd was commercially insolvent and unable to pay its debts, justifying a final winding-up order.
Discussion: It was the applicant’s case that the respondent was unable to pay its debts even before it received notice of the closure of its facilities with the applicant. At the time that it received the notice of the closure of its facilities, the respondent clearly did not have liquid assets that were readily realisable. Nedbank also pointed out in reply that what the respondent failed to mention, was that XBS Quantum was indebted to the applicant for more than R50 million. The court examined whether the respondent had liquid or readily realisable assets to meet its liabilities as they fell due. The respondent’s financial statements revealed a substantial decline in assets, a lack of cash reserves, and liabilities exceeding net profits. The court applied the test for commercial insolvency, as outlined in Murray NO v African Global Holdings (Pty) Ltd [2019] ZASCA 152, which focuses on a company’s ability to meet current and future liabilities in the ordinary course of business. The court found that the respondent had no liquid assets to meet its obligations and was in serious financial distress. Additionally, there was a reasonable prospect that creditors could benefit from a liquidation process, including the potential discovery of undisclosed assets.
Findings: The respondent had no liquid assets or readily realisable assets available to meet its liabilities as they fall due to be met in the ordinary course of business and thereafter to be able to carry on normal trading. Tala Light had not discharged the onus of showing that its assets, fairly valued, exceed its liabilities, fairly valued. It is an entity in serious financial distress. There is a reasonable prospect, which is not too remote, that some, not negligible, pecuniary benefit will be obtained by creditors. In addition, it could well be to the advantage of the creditors if an enquiry were conducted into the respondent's financial affairs where there is a prospect of undisclosed assets being brought to light. The court concluded that a winding-up order was justified, as it would be in the best interests of the creditors.
Order: The respondent, Tala Light Weight Construction (Pty) Ltd, was placed under final liquidation in the hands of the Master. The costs of the application were to be costs in the administration of the respondent’s estate.
20 January 2025
VAN DER SCHYFF J
COMPANY – Winding up – Disposition – Cancellation of lease and franchise agreements after company’s liquidation – Provision applies only to dispositions made by company in liquidation, not by third parties – Applicants’ failure to aver and prove that company disposed of its property is dispositive of declaratory relief sought – Failed to prove jurisdictional factors of section 341(2) of Act – Cancellation of agreements were unilateral acts and not dispositions – Application dismissed – Companies Act 61 of 1973, s 341(2).
Facts: The applicants sought declaratory relief against BP Southern Africa Proprietary Limited (BP), Veeco Holdings Proprietary Limited, and the City of Tshwane Metropolitan Municipality. The applicants alleged that BP unlawfully disposed of BP Jean Avenue’s business after cancelling lease and franchise agreements with BP Jean Avenue, which had entered voluntary liquidation on 1 June 2022. The applicants contended that this disposition was void under section 341(2) of the Companies Act 61 of 1973 and sought an order for BP to pay R12,800,000, representing the value of the business. BP argued that it validly cancelled the agreements and did not dispose of BP Jean Avenue’s property, as the subsequent lease and franchise agreements with Veeco Holdings did not constitute a disposition by BP Jean Avenue.
Issue: The key issues were whether BP was entitled to cancel the lease and franchise agreements with BP Jean Avenue after its liquidation; whether there was a disposition of BP Jean Avenue’s business; whether such disposition, if proven, should be set aside under section 341(2) of the Companies Act; and the appropriate costs order.
Discussion: The court focused on whether the alleged sale of BP Jean Avenue’s business constituted a disposition by BP Jean Avenue, as required by section 341(2) of the Companies Act. The court emphasized that section 341(2) applies only to dispositions made by the company in liquidation, not by third parties. The applicants failed to demonstrate that BP Jean Avenue itself disposed of its property. Instead, the cancellation of the agreements by BP and the subsequent agreements with Veeco Holdings were unilateral acts by BP, not dispositions by BP Jean Avenue. The court also noted that the applicants did not challenge the lawfulness of the cancellation of the agreements, which BP argued was dispositive of the dispute.
Findings: Since the applicants stated that they persisted only with the claim in terms of section 341(2) of the Companies Act, the applicants’ failure to aver and prove that BP Jean Avenue disposed of its property is dispositive of the declaratory relief sought since the applicants failed to prove the jurisdictional factors of section 341(2) of the Companies Act. The court found that the applicants failed to prove that BP Jean Avenue disposed of its property, as required by section 341(2) of the Companies Act. The alleged disposition was not made by BP Jean Avenue but by BP, and therefore, the jurisdictional requirements of section 341(2) were not met. The court declined to express a view on the validity of the cancellation of the agreements, as it was not relevant to the outcome of the application as framed by the applicants.
Order: The application was dismissed.
16 January 2025
VALLY AJA
COMPETITION – Tribunal – Appeal and review – Grounds for appeal and review were largely identical which created confusion and inefficiency – Tribunal’s decision was interlocutory and not final – No compelling reason to allow appeal – Decision did not definitively dispose of rights of parties or cause irreparable harm – Tribunal’s decision not appealable – Attempt to rely on same grounds as appeal in review was an abuse of process – Appeal and review dismissed – Competition Act 89 of 1998, s 37(1).
Facts: Takata South Africa (Takata SA) appealed and sought to review a decision by the Competition Tribunal (the Tribunal) dismissing its exceptions to 21 complaint referrals filed by the Competition Commission (the Commission). The referrals alleged that Takata SA, along with other manufacturers, engaged in collusive practices in violation of section 4(1)(b) of the Competition Act 89 of 1998. Takata SA argued that the referrals failed to disclose a cause of action and were vague and embarrassing. The Tribunal dismissed the exceptions, finding that the referrals complied with the rules and provided sufficient detail for Takata SA to respond. Takata SA then brought both an appeal and a review application, raising largely the same grounds in both.
Issue: The key issues were whether the Tribunal’s decision dismissing Takata SA’s exceptions was appealable, and if so, whether Takata SA had made out a case for the relief sought; and whether the decision was reviewable, and if so, whether Takata SA had established grounds for review. Additionally, the court had to address the procedural question of whether an appeal and a review could be brought simultaneously on the same grounds.
Discussion: The court emphasized the distinction between appeals and reviews. An appeal involves a reconsideration of the merits of a decision, while a review focuses on the lawfulness, reasonableness, and procedural fairness of the decision-making process. The court noted that Takata SA’s grounds for appeal and review were largely identical, which created confusion and inefficiency. The court held that where an appeal and a review are brought simultaneously, the complaints in each must be distinct; otherwise, the party should elect to pursue only one. The court also found that the Tribunal’s decision was interlocutory and not final, making it generally non-appealable unless the interests of justice required otherwise. In this case, the court found no compelling reason to allow the appeal, as the decision did not definitively dispose of the rights of the parties or cause irreparable harm.
Findings: Regarding the review, the court held that Takata SA’s attempt to rely on the same grounds as the appeal was an abuse of process, as it sought to circumvent the non-appealability of the interlocutory decision. The court concluded that the Tribunal’s decision was not appealable, as it was not final and did not meet the interests of justice test. The court also dismissed the review application, as it was based on the same grounds as the appeal and amounted to an abuse of process. The court emphasized the need to avoid unnecessary delays in competition law matters, particularly given the already lengthy history of the case.
Order: The appeal was dismissed. The review was dismissed. Takata SA was ordered to pay the costs of both the appeal and the review, including the costs of two counsel where employed.
29 January 2025
MILLAR J
EVICTION – Lease agreement – Sub-lease occupants – Failure to honour terms of monthly lease and pay rent – Alleged invalidity of proceedings – Without merit – No express provision in constitution of club requiring every member of executive committee to sign every resolution for it to be valid – No need for joinder of municipality – Has no direct interest in outcome of proceedings – No valid grounds to oppose eviction – Respondent’s eviction granted.
Facts: The Edenvale Panthers Rugby Club (the Club) leased a clubhouse to Dorothy Burnett, trading as Offside Pub, under written leases in 2014 and 2016. The 2016 lease expired on 30 November 2021, after which the respondent remained in occupation on a month-to-month basis. The respondent ceased paying rent from August 2022, prompting the Club to seek her eviction. The respondent opposed the eviction on three grounds: (1) the Club’s resolution authorizing the proceedings was invalid due to insufficient signatures; (2) the Club lacked authority to evict her as it did not own the premises, which were leased from the Ekhuruleni Municipality; and (3) she was entitled to set off alleged debts owed by the Club for improvements made to the property against unpaid rent.
Issue: The central issue was whether the Club was entitled to evict the respondent for non-payment of rent, and whether the respondent’s grounds of opposition had merit.
Discussion: The court addressed each of the respondent’s arguments. First, it found that the Club’s resolution authorizing the eviction proceedings was valid, as the constitution did not require all Executive Committee members to sign resolutions. Second, the court held that the Club, as the lessee, had the right to evict the respondent without joining the Ekhuruleni Municipality, as the Municipality had no direct interest in the dispute. Since there is neither express provision in the constitution of the Club requiring every member of the Executive Committee to sign every Resolution for it to be valid, nor any evidence to indicate that such a procedure had been adopted, the court regarded the present proceedings as having been properly authorised and the respondent’s argument in this regard to be without merit. Third, the court rejected the respondent’s claim of a verbal agreement for reimbursement of improvement costs, noting the absence of written evidence and the non-variation clauses in the leases. The court also emphasized that any claim for set-off would need to be established in a separate action.
Findings: The court found no merit in any of the respondent’s grounds of opposition. Having found that the respondent has no valid grounds to oppose the grant of the order sought by the Club and that the Club is entitled to an order for the eviction of the respondent, the court intends to make an order in that regard. The Club was entitled to evict the respondent for non-payment of rent, and the respondent’s claims of invalidity, lack of authority, and set-off were dismissed.
Order: The court ordered the respondent and all occupants to vacate the clubhouse by 28 February 2025. Failure to comply would authorize the Sheriff to evict them with police assistance. The respondent was also ordered to pay the Club’s legal costs on a party-and-party scale.
17 January 2025
NYATHI J
FAMILY – Maintenance – Husband in prison – Unemployed applicant – Relied on financial assistance from respondent’s children – Inability to work due to injuries and trauma suffered by respondent’s conduct – Applicant’s claims found reasonable and justified – Respondent had financial means to meet obligations – Applicant’s need for legal cost contributions due to complexity of case acknowledged – R84,000 monthly for spousal maintenance – R350,000 towards applicant’s legal costs.
Facts: The applicant sought interim spousal maintenance, medical expense coverage, and a contribution towards her legal costs under Rule 43 of the Uniform Rules of Court. The applicant and respondent married in 2012 out of community of property. The marriage remains intact, but the relationship has deteriorated significantly. The applicant was previously employed but resigned at the respondent's insistence to join his family business, where she worked without a formal salary. In January 2024, the respondent shot and killed several family members, including the applicant’s daughter, and attempted to kill the applicant, leaving her with severe injuries requiring multiple surgeries. The respondent is incarcerated, and the applicant, now unemployed and traumatized, relies on financial assistance from the respondent’s children. She claims her monthly expenses amount to R84,000, with a shortfall covered by her credit card. The respondent, through his daughter, has been paying R53,140 monthly for her expenses but disputes her claim for higher maintenance.
Issue: The key issue was whether the applicant was entitled to interim spousal maintenance of R84,000 per month, coverage of her medical expenses, and a contribution of R350,000 towards her legal costs, pending the finalization of the divorce proceedings.
Discussion: The court considered the applicant’s financial needs, her inability to work due to her injuries and trauma, and the respondent’s financial capacity. The respondent argued that the applicant’s demands were excessive and that she could return to work as an estate agent. However, the court found her injuries and psychological trauma made employment unlikely. The respondent, through his company, had been paying R53,140 monthly for her expenses, but the applicant sought a more secure arrangement. The court referenced Taute v Taute 1974 (2) SA 675 (E), emphasizing that reasonable and moderate claims carry more weight than extravagant demands. The court found the applicant’s claims reasonable and noted the respondent had not shown a desire to evade his obligations. The court also acknowledged the applicant’s need for legal cost contributions due to the complexity of the case.
Findings: The court found that the applicant’s claims for spousal maintenance, medical expense coverage, and legal cost contributions were justified. The respondent had the financial means to meet these obligations, and the applicant’s inability to work due to her injuries and trauma warranted the requested relief. The court ordered the respondent to pay R84,000 monthly for spousal maintenance, cover her medical aid premiums and uncovered medical expenses, and contribute R350,000 towards her legal costs.
Order: The respondent was ordered to pay the applicant R84,000 monthly for spousal maintenance, escalating annually by 10%. The respondent was to continue paying the applicant’s medical aid premiums and 100% of any uncovered medical expenses. The respondent was to contribute R350,000 towards the applicant’s legal costs within seven days.
16 January 2025
FISHER J
FAMILY – Contempt – Campaign of defamation – Respondent lodged a complaint with Legal Practice Council – Contained sweeping generalisations, name calling, and accusations without substantiation – Did not bear any relationship to professional life of applicant – Not made in good faith to address specific professional misconduct – Continuation of respondent’s campaign to defame and harm applicant – Acted wilfully and mala fide – Respondent found in contempt of court order.
Facts: The applicant, an attorney, sought a declaration that his estranged wife, the respondent, was in contempt of a court order by lodging a complaint with the Legal Practice Council (LPC). The complaint contained allegations of professional and personal misconduct against the applicant, which he argued violated a court order issued on 13 June 2022. The order prohibited the respondent from publishing defamatory or harmful communications about the applicant. The respondent defended her actions, claiming she was protected by privilege as she had the right to report professional misconduct to the LPC. She also argued that she believed in good faith that she was entitled to make the complaint.
Issue: The central issue was whether the respondent’s complaint to the LPC constituted contempt of the court order, specifically whether the respondent wilfully and mala fide published defamatory material in breach of the order.
Discussion: The court analyzed the content of the complaint, noting that it contained sweeping generalisations; name calling, accusations without substantiation, rambling vitriol which does not lend itself to the making of any inquiry or the determination of any facts. Most of what was set out does not bear any relationship to the professional life of the applicant. The court found that the complaint was not made in good faith to address specific professional misconduct but was instead a continuation of the respondent’s campaign to defame and harm the applicant. The court emphasized that the respondent was aware of the court order and deliberately used the LPC process to circumvent it. The court also noted the respondent’s threat to approach the media if the LPC did not assist her, which demonstrated a lack of respect for the court order.
Findings: An analysis of the subject matter of the complaint suggested that the complaints were not made with the purpose of achieving redress in relation to a specific incident which would engage the powers of the LPC in a constructive way. Much of what was said, re-engaged the defamatory and disturbing matter the publication of which served to bring about the order in the first place. The court concluded that the respondent’s actions were in contempt of the court order. The complaint was not a genuine attempt to report professional misconduct but a deliberate effort to malign the applicant. The court found that the respondent acted wilfully and mala fide, breaching the order by publishing defamatory material under the guise of a professional complaint.
Order: The respondent was found in contempt of the court order dated 13 June 2022. A sentence of 30 days imprisonment was imposed, suspended for five years on condition that the respondent does not breach the order again during this period. The respondent was ordered to pay the costs of the application on an attorney-client scale, taxed on the basis of scale C where relevant.
17 January 2025
NYATHI J
FAMILY – Maintenance – Financial disclosure – Applicant alleged contribution to respondent’s business of which he was an employee – Employment was allegedly terminated by applicant – Applicant failed to take court into confidence by providing bank statements and other documents to support alleged predicament – Duty of full disclosure emphasised – Vague billing entries regarding costs – Interim relief sought not justified – Claims unsubstantiated – Application dismissed.
Facts: The applicant and the respondent were married out of community of property with the accrual system. The marriage produced no children. The applicant filed a Rule 43 application seeking interim spousal maintenance of R65,000 per month and a contribution of R100,000 towards his legal costs. He (applicant) claimed that during the marriage, he contributed to the respondent’s businesses, and was employed by the respondent until his employment was terminated, leaving him without income. The respondent, however, denied his claims, alleging that the applicant had transferred R65,000 from her (respondent’s) credit card without authorization and had engaged in abusive behaviour, leading to a protection order against him. She also claimed financial hardship, with debts totalling R1.4 million, and argued that the applicant had not provided sufficient evidence to support his claims.
Issue: The issue was whether the applicant was entitled to interim spousal maintenance and a contribution towards his legal costs pending the finalization of the divorce proceedings.
Discussion: The applicant had not taken the court into his confidence by providing his bank statements and other documents to support his predicament. He had not set out in his founding affidavit any efforts on his part to secure employment since his alleged dismissal. He has not explained, as the respondent did, how he has managed to get by for the 14 months before he initiated this application. The court emphasized the duty of full disclosure in such applications and found the applicant’s lack of transparency problematic. The court also questioned the reasonableness of the applicant’s legal costs, particularly vague billing entries. The respondent, on the other hand, provided detailed financial disclosures and argued that the applicant was capable of supporting himself. The court considered the short duration of the marriage and the respondent’s allegations of the applicant’s misconduct, which would be relevant in the final divorce proceedings.
Findings: The applicant’s non-disclosure of his bank financial statements and other supporting documents as well as the means of securing employment in the previous 14 months is substantial, as this information is material for Rule 43 Applications and such information would draw a clear picture of the applicant’s financial situation. The court found that the applicant had not demonstrated an inability to support himself or provided sufficient evidence to justify the interim relief sought. The respondent’s financial disclosures and the applicant’s lack of transparency led the court to conclude that the applicant’s claims were not substantiated. The court also noted that the trial court would be better placed to make a final determination on maintenance and forfeiture.
Order: The application was dismissed with costs, and the applicant was ordered to pay the respondent’s legal costs.
30 January 2025
MOLOTSI AJ
LABOUR – Dismissal – Inconsistency – Gross negligence misconduct – Review of commissioner’s findings – Employee claimed that similar incident involving another employee had not resulted in disciplinary action – Applicant unaware of similar incident referred to – Two incidents were not similar in terms of severity – Commissioner’s failure to properly evaluate evidence and apply law on inconsistent discipline rendered award unreasonable – Fell outside bounds of reasonableness – Set aside.
Facts: The applicant, Weg Transformers Africa, dismissed Mchunu (the employee) for gross negligence after an incident where he failed to secure a coil properly, causing it to detach, injure a colleague, and result in R149,000 in damages. The employee admitted to the charge during arbitration but argued that his dismissal was substantively unfair due to inconsistent application of discipline. He claimed that a similar incident involving another employee, Mr. Simelane, in 2008 had not resulted in disciplinary action. The Metal Engineering Industries Bargaining Council (MEIBC) commissioner found the dismissal substantively unfair, citing inconsistent discipline, and ordered reinstatement. The applicant sought to review and set aside the arbitration award, arguing that the commissioner’s findings were unreasonable and based on unsubstantiated evidence.
Issue: The central issue was whether the commissioner’s finding that the applicant applied discipline inconsistently, rendering the dismissal substantively unfair, was reasonable and supported by the evidence.
Discussion: The court evaluated whether the commissioner properly applied the law on inconsistent application of discipline. The employee argued that Mr. Simelane’s 2008 incident was similar to his own, yet Simelane was not disciplined. However, the applicant contended that it was unaware of the Simelane incident and that the two incidents were not comparable. The court noted that for inconsistent discipline to be proven, the employer must have been aware of the prior incident, and the incidents must be similar in nature and severity. The commissioner had focused on the applicant’s investigation into the Simelane incident rather than comparing the two incidents. The court found that the commissioner’s conclusion that the applicant had “something to hide” was unsupported by evidence and that the investigation was irrelevant to the issue of inconsistent discipline. The commissioner also failed to properly analyse whether the incidents were similar, which was a material error.
Findings: The court found that the commissioner’s award was unreasonable. The applicant was unaware of the Simelane incident, and the two incidents were not similar in terms of severity, admission of guilt, or consequences. The commissioner’s focus on the investigation and his conclusion that the applicant acted inconsistently were not supported by the evidence. The commissioner’s failure to properly evaluate the evidence and apply the law on inconsistent discipline rendered the award unreasonable. The court held that the arbitration award fell outside the bounds of reasonableness and should be set aside.
Order: The arbitration award was reviewed and set aside. The matter was remitted to the MEIBC to be heard de novo before a different commissioner.
27 January 2025
DIPPENAAR J
POCA and SIU – Forfeiture – Judgment creditor – Forfeiture order vested ownership of funds in State – No debtor-creditor relationship that would allow attachment – Variation order retrospectively included interest – Forfeiture order authorised curator to take necessary steps to preserve forfeited property – Respondent’s claim under Rule 45(12) failed as there was no debt owed by State to DRC that could be attached – Counter application dismissed – Prevention of Organised Crime Act 121 of 1998, ss 56(2) and 57(2).
Facts: The applicant was appointed as curator bonis under a preservation order granted under the Prevention of Organised Crime Act 121 of 1998 (POCA) to oversee assets, including R35 million held in a Nedbank account in the name of the DRC Embassy. A forfeiture order was later granted, vesting the R35 million in the State, but it did not explicitly include the interest accrued on the amount. The tenth respondent, Rootman, who had a judgment against the DRC government, sought to attach the interest through a writ of execution. Nedbank paid the interest to the Sheriff, prompting the curator to seek an interim interdict to prevent the Sheriff from disbursing the funds pending a variation of the forfeiture order to include the interest. The variation was later granted, but the tenth respondent persisted with a counter-application to enforce the writ of execution.
Issue: The key issues were whether the curator had locus standi to seek interim relief, whether the interest accrued on the R35 million was subject to attachment under Rule 45 of the Uniform Rules of Court, and whether the forfeiture order defeated the tenth respondent’s claim to the funds.
Discussion: The court examined whether the interest formed part of the forfeited assets and whether it could be attached by the tenth respondent. The curator argued that the forfeiture order vested ownership of the funds in the State, and there was no debtor-creditor relationship between the State and the DRC that would allow attachment under Rule 45. The tenth respondent contended that the funds were executable as they accrued to the DRC. The court found that the forfeiture order explicitly vested ownership in the State, and the variation order retrospectively included the interest. The court also held that Rule 45(12) required a debtor-creditor relationship, which did not exist between the State (represented by the curator) and the DRC. A determination of the issue of locus standi would have no precedential value in circumstances where the substantive relief has become academic. By the time the application was heard, the forfeiture order had been varied and the interest placed under the control of the curator. Any debate about his locus standi also became moot at that stage as the forfeiture order authorised the curator to take the necessary steps to preserve the forfeited property under his control.
Findings: The provisions of Rule 45(12) did not avail the tenth respondent, and he had not established that he falls within the parameters of the rule. The tenth respondent’s counter application failed. There was no basis to deviate from the normal principle that costs follow the result. Considering the complexities of the matter, costs on Scale B would was appropriate. The court found that the curator had locus standi to seek interim relief and that the interest was part of the forfeited assets, vested in the State. The tenth respondent’s claim under Rule 45(12) failed as there was no debt owed by the State to the DRC that could be attached. The court also noted that the tenth respondent had not availed himself of remedies under POCA to exclude the funds from the forfeiture order.
Order: The tenth respondent was ordered to pay the costs of the main application on Scale B. The tenth respondent’s counter-application was dismissed with costs on Scale B.