Facts: Grové, a former employee of the South African Reserve Bank (SARB) and later of Steinhoff Africa Holdings (SAH), brought two related applications. The first challenged SARB’s decision to attach his assets under Regulation 22C of the Exchange Control Regulations, following his involvement in the offshore transfer of proceeds from the listing of Steinhoff Africa Retail Limited (STAR). The second application, later withdrawn, sought to interdict SARB from declaring those assets forfeit. The attachment was based on Grové’s alleged failure to disclose that a R4,7 billion dividend had already been transferred abroad before SARB’s approval was sought. He also received approximately €149,000 in offshore remuneration, which SARB claimed contravened multiple regulations.

Application: The first application was a review under Regulation 22D of the Exchange Control Regulations, seeking to set aside the attachment of Grové’s assets on the grounds that the decision was unlawful and made without reasonable suspicion. The second application, the “Forfeiture Interdict”, aimed to prevent SARB from declaring the attached assets forfeit before the review was finalised. The issue was whether SARB’s designated functionaries had reasonable grounds to suspect Grové had contravened the Regulations, and whether the attachment and blocking orders were lawfully issued.

Discussion: Grové argued that the attachment notice failed to identify the category of person under Regulation 22C(1) to which he belonged, and that no shortfall had been identified to justify the attachment. He contended that SARB’s suspicion was based on flawed reasoning, including an interview conducted without legal representation and reliance on a consultancy agreement he claimed was legitimate. The respondents maintained that Grové’s omission to disclose the prior transfer of funds and his receipt of offshore remuneration without permission constituted breaches of Regulations 3(1)(c), 3(1)(d), 6, 10(1)(c), and 22. They argued that the attachment was based on reasonable suspicion and that the consultancy agreement was a sham. The respondents also pointed to Grové’s prior employment at SARB as relevant to his understanding of exchange control obligations.

Findings: SARB’s functionaries had reasonable grounds to suspect Grové had contravened the Regulations. The facts underpinning the attachment, including the undisclosed transfer of listing proceeds and the receipt of offshore remuneration, were found to support the suspicion. The omission in the attachment notice regarding the category of person was accepted as an inadvertent error, clarified in subsequent correspondence. The review grounds were rejected, and the attachment and blocking orders were upheld. In the second application, although Grové had withdrawn the Forfeiture Interdict, it was found that SARB had benefited from the proceedings through the extension of the attachment period. Costs were apportioned accordingly.

Order: Under Case Number 2022-012498: The application is dismissed. The applicant is liable for costs of the application, including the costs of two counsel on Scale C, wherever applicable. Under Case Number 2024-114389: The applicant is liable for 70% of the costs of the application, including the costs of two counsel on Scale C, wherever applicable.

Facts: The plaintiff instituted a damages claim against the MEC for Health in KwaZulu-Natal following the birth of her child with cerebral palsy. The claim was based on alleged medical negligence during labour at East Griqualand and Usher Memorial Hospital in Kokstad. The trial had been partly heard, with the plaintiff having closed her case and the defendant’s final witness, Professor Buchmann, still under cross-examination when proceedings were adjourned two years earlier. The plaintiff had previously been granted leave to reopen her case to address specific issues, including her own testimony and further evidence from Dr Kara regarding late-discovered blood test results.

Application: The plaintiff applied to broaden the scope of her reopened case, seeking leave to adduce further expert evidence from Professor Anthony (Obstetrician/Gynaecologist) and Professor Smith (Neonatologist), in addition to recalling Dr Kara and herself. The issue was whether the plaintiff should be permitted to introduce new expert evidence at this advanced stage of the trial, given the potential prejudice to the defendant and the need for finality in litigation.

Discussion: The plaintiff argued that the new evidence was necessitated by the late discovery of blood test results and additional expert reports from the defendant, which suggested that the insult leading to the child’s condition occurred before labour. The proposed evidence would address whether the insult was intrapartum rather than antenatal, and interpret the blood results in light of clinical expectations for a 41-week gestation foetus. The defendant opposed the application, contending that the plaintiff was attempting to restart her case and that the new evidence had not been put to previously led expert witnesses. Concerns were raised about further delays and the potential need to recall witnesses. The plaintiff’s legal team explained that the late introduction of evidence was due to the timing of disclosures and changes in legal representation, with the matter being conducted on a contingency basis.

Findings: The proposed expert evidence was found to be material and potentially weighty. The late discovery of blood results provided a sound reason for the delay, and the plaintiff’s legal representatives were not found to be remiss. The prejudice to the plaintiff if the application were refused outweighed any inconvenience to the defendant, especially since the defendant had not yet closed its case and had already consented to a limited reopening. The additional evidence was not seen as an attempt to restart the case, but rather as a necessary step to resolve the central issue of when the insult occurred. The matter had progressed slowly, and no insurmountable prejudice to the defendant was identified.

Order: Leave is granted to the plaintiff to re-open her case and adduce further expert evidence at the resumed trial from Prof J. Anthony; Prof J. Smith; Dr Y. Kara; and give further evidence herself. The costs of the application shall be costs in the cause.

Facts: The applicants, a businessman, his son, and a chartered accountant, sought to review and set aside subpoenas issued by the respondent, who is the daughter-in-law of the first applicant and the plaintiff in a divorce action against his elder son. The subpoenas were served on the applicants, Standard Bank, and Nedbank, demanding extensive financial documentation over a nine-year period. The respondent alleged that the documents were necessary to determine the accrual in her spouse’s estate. The applicants argued that the subpoenas were overbroad, irrelevant, and issued for an ulterior purpose, including harassment and coercion. 

Application: This was an application to review and set aside subpoenas issued under Rule 38(1)(b) of the Uniform Rules of Court, and to compel the respondent to return or destroy any personal financial records obtained. The applicants also sought condonation for the late filing of a replying affidavit. The issue was whether the subpoenas constituted an abuse of process, were issued without procedural fairness, and demanded irrelevant or privileged information.

Discussion: The applicants contended that the subpoenas infringed their constitutional rights to privacy and dignity, and that the respondent had alternative remedies through discovery in the divorce action. The respondent maintained that the subpoenas were necessary to investigate the true financial position of her spouse, who had allegedly failed to disclose key financial information. The sale of his members’ interest in two close corporations to the first applicant, concluded after the divorce was instituted, was central to the dispute. The respondent argued that the applicants had access to relevant documentation and that the subpoenas targeted information essential for calculating accrual. It was considered whether the subpoenas were specific, necessary, and issued with certainty of relevance, and whether personal financial records unrelated to the divorce action should be excluded.

Findings: The subpoenas were found to be partially valid. The respondent had demonstrated that the applicants possessed documentation relevant to the accrual calculation, including sale agreements, tax returns, VAT submissions, and corporate financial records. The sale of members’ interest after the divorce was instituted raised legitimate concerns about asset concealment. However, the subpoenas were overbroad in relation to personal financial records, including personal tax returns, credit card statements, and offshore accounts unrelated to the divorce. These were found to be private, privileged, and irrelevant. The condonation application for the late filing of the replying affidavit was granted, as the delay was adequately explained and caused no prejudice.

Order: The condonation application for the late filing of the replying affidavit is granted. The applicants are to comply with the subpoenas in respect of corporate financial documentation and sale agreements from 1 January 2020 to 1 January 2025. The subpoenas relating to personal financial records of the applicants, including personal bank statements, tax returns, and credit card information, are reviewed and set aside. The subpoenas served on Nedbank are set aside. The applicants are to pay the costs of the application, jointly and severally, one paying the other to be absolved.

Facts: Firstrand Bank Limited instituted action against Briedenhann for payment of R928,138.42, based on a written loan agreement concluded in June 2016. The loan was secured by a mortgage bond registered over immovable property in Charlo, Nelson Mandela Bay. The defendant failed to meet his repayment obligations, fell into arrears, and did not respond to a section 129(1) notice issued under the National Credit Act 34 of 2005. Summons was served at the defendant’s chosen address, but no notice of intention to defend was filed. The bank applied for default judgment under Rule 31(5), which was referred to open court due to concerns about the commissioning of affidavits.

Application: The plaintiff sought default judgment for the outstanding loan amount, interest, and costs. The issue was whether affidavits commissioned via virtual conference and signed electronically complied with Regulation 3(1) of the Regulations Governing the Administration of an Oath or Affirmation, and whether such affidavits could be accepted in support of a default judgment application.

Discussion: The affidavits were signed and commissioned using a cloud-based platform. The deponent and commissioner interacted via Microsoft Teams, with both parties signing electronically. The plaintiff argued that this process complied with the Electronic Communications and Transactions Act 25 of 2002 (ECTA), particularly sections 13 and 18, which recognise electronic signatures and notarisation. The affidavits were encrypted and stored securely. However, Regulation 3(1) requires that the deponent sign the declaration “in the presence of” the commissioner. The meaning of “presence” was examined in light of dictionary definitions, case law, and statutory context. The regulation envisages physical proximity, not virtual presence. The plaintiff’s choice to use digital commissioning was found to be deliberate and not necessitated by circumstances such as illness or lockdown restrictions.

Findings: Despite the finding that Regulation 3(1) requires physical presence, the affidavits were accepted on the basis of substantial compliance. The court exercised its discretion, noting that the affidavits met the underlying purpose of the regulation, namely, assurance that the oath was properly administered and the deponent understood its significance. The affidavits were found to be authentic, secure, and reliable. Refusing to admit them would result in unnecessary delay and increased costs, without serving the interests of justice. The plaintiff’s bona fides and the integrity of the process were acknowledged.

Order: The affidavits filed by the plaintiff in support of its claim for judgment by default are admitted on the basis that they substantially comply with the provisions of the Regulations. The defendant is ordered to pay the plaintiff the sum of R928,138.42. The defendant is ordered to pay interest on the said amount, calculated daily and compounded monthly, at a variable rate (6,85% nominal per annum), from 25 October 2021 to date of final payment. The defendant is ordered to pay the plaintiff’s costs of suit, taxed as between attorney and client.

Key dictum:

[20] These provisions of the Act reflect a clear concern with physical or territorial jurisdiction. Commissioners are appointed for defined areas and may only exercise their powers within such areas, unless they exercise such powers by virtue of their office. In this event, their authority to administer oaths or affirmations is not area bound. This concern with territoriality is relevant to contextual interpretation of the Regulations.

[28] There can be little doubt that our conception of what it means to be in the company of others or to enjoy the presence of others is undergoing dramatic changes brought about by technological innovation. This has been accelerated by the experience of a global pandemic. There can also be no doubt that the adoption of technologies such as digitalized documents, internet based communications, ‘cloud’ computing and video streaming has already done a great deal to transform and improve justice systems. No doubt this will continue. But the cautionary note sounded by Wallis JA, as regards the process of interpretation, bears repetition:

“Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To so do in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation; . . .”

[29] In my view, the plain meaning of the expression ‘in the presence of’ within its context in Regulation 3(1), requires that the deponent to an affidavit takes the oath and signs the declaration in physical proximity to the commissioner. The Regulation does not therefore cover such deposition in the ‘virtual presence’ of a commissioner.

Facts: The appellant was convicted of rape and sentenced to life imprisonment by the Regional Magistrate in Germiston. The complainant, his biological daughter, had returned to South Africa from Lesotho after her mother’s death and moved in with the appellant and his wife. The complainant alleged that the appellant raped her on multiple occasions between January and December 2018, including one incident she recorded on her cell phone. She escaped after the final incident and reported the matter to a neighbour, who accompanied her to the police. Medical examination revealed fresh vaginal injuries consistent with recent penetration. The appellant denied the allegations, claiming the complainant fabricated the charges because he refused to allow her siblings to move in.

Appeal: This was an appeal against both conviction and sentence. The appellant argued that the conviction was based on the uncorroborated evidence of a single witness, that the complainant was not credible, and that the sentence of life imprisonment was inappropriate. The issue was whether the trial court had misdirected itself in accepting the complainant’s evidence and rejecting the appellant’s version, and whether the sentence imposed was proportionate.

Discussion: The complainant testified in detail about the rape incidents, including the final one in December 2018, which she recorded. Although the recording was not submitted as evidence, two witnesses confirmed having heard it and identified the voices. The complainant’s evidence was corroborated by her first report, her aunt, and the medical findings. The appellant’s version was a bare denial, and his claim of an ulterior motive was speculative and unsupported. The trial court’s approach to evaluating the credibility of a single witness was consistent with established legal principles. The complainant’s delay in reporting was explained by threats and fear, and her account was consistent and credible. The appellant’s version contained contradictions and improbabilities, and his demeanour during cross-examination further undermined his credibility.

Findings: The appellant’s version was not reasonably possibly true. The complainant’s evidence was clear, consistent, and corroborated in material respects. Her delay in reporting was satisfactorily explained, and the absence of DNA evidence did not detract from the strength of the oral and medical evidence. The trial court’s findings were upheld. On sentence, the appellant’s personal circumstances, including his age, employment, and status as a first offender, were considered but found not to constitute substantial and compelling circumstances. The aggravating factors, including the repeated abuse of a minor child, the breach of parental trust, and the psychological harm inflicted, justified the imposition of the prescribed minimum sentence.

Order: The appeal against conviction and sentence is dismissed. The order made by the lower court is confirmed.

Facts: Stephen Makhetha and two co-perpetrators gave a lift to a young couple in the early hours of the morning. The complainant, a 17-year-old girl, and her boyfriend were robbed. The boyfriend was forced out of the vehicle, and the complainant was raped repeatedly by all three men. Makhetha led the assault, instructed the complainant not to dress between assaults, and participated in two rounds of gang rape. She was also struck on the head with a bottle and thrown from the moving vehicle. A good Samaritan and passers-by assisted her. DNA evidence linked Makhetha to the rape. He denied the charges and refused to attend court at times, delaying the proceedings. At trial, he was convicted of rape and robbery with aggravating circumstances and sentenced to 40 years’ imprisonment.

Appeal: Makhetha appealed against sentence only. He argued that the trial court erred in not ordering concurrent sentences and that substantial and compelling circumstances justified a lesser sentence. The issue was whether the trial court misdirected itself in imposing an effective 40-year sentence and whether the appeal court should interfere to impose life imprisonment and order concurrency.

Discussion: The sentencing framework was examined under section 51 of the Criminal Law Amendment Act 105 of 1997 and the Criminal Procedure Act 51 of 1977. The trial court had found substantial and compelling circumstances but paradoxically imposed consecutive sentences, resulting in a harsher outcome than the prescribed minimum. It was considered whether the delay in finalising the trial, with Makhetha incarcerated for five years awaiting trial, constituted a substantial and compelling circumstance. While pre-sentencing incarceration is a relevant factor, it cannot on its own justify deviation from the prescribed minimum, especially in cases involving life imprisonment. The argument that the absence of serious physical injuries to the complainant warranted a lesser sentence was also rejected, citing section 51(3)(aA)(i) of the Act and precedent that emotional and psychological harm must be considered.

Findings: The complainant’s suffering was compounded by the brutality and humiliation of the repeated assaults. The trial court’s approach was found to be irregular. By identifying substantial and compelling circumstances but then imposing a harsher sentence through consecutive terms, it created an internal contradiction. The prescribed minimum sentence of life imprisonment for rape was applicable, and the robbery sentence should be 15 years. The offences were committed in a single transaction and warranted concurrent sentencing. The appellant’s personal circumstances, including youth, fatherhood, and employment history, did not outweigh the gravity of the offences. His lack of remorse and leadership role in the assaults were aggravating factors.

Order: The appeal on the sentences is dismissed on both counts. The sentences imposed by the trial court are set aside and substituted with: Count 1 (Rape): Life imprisonment. Count 3 (Robbery with aggravating circumstances): Fifteen (15) years’ imprisonment The sentences are antedated to 2 December 2011. The sentences shall be served concurrently in terms of section 280(2) of the Criminal Procedure Act 51 of 1977.

Facts: Barnard, a member of the Flying Squad, was convicted of murder following an incident in which he assaulted a man outside his family home in Struisbult. The deceased had been identified as a suspicious person by members of the Community Policing Forum (CPF). Barnard arrived at the scene after receiving a call from his sister, who was distressed about an intruder. Upon arrival, he confronted the deceased, who allegedly made a provocative remark about Barnard’s sister. Barnard responded by slapping and punching the deceased, who then tripped and struck his head on the pavement. Witnesses, including police officers, testified that Barnard continued to assault the deceased while he lay on the ground. The deceased later died from blunt force trauma to the head.

Appeal: Barnard appealed against his conviction for murder, arguing that his version of events was reasonably possibly true and that the trial court had misapplied the test for dolus eventualis. The issue was whether Barnard had the requisite intent to kill, or whether his conduct amounted to culpable homicide or assault with intent to do grievous bodily harm.

Discussion: The evidence presented included conflicting accounts from State witnesses and discrepancies between their statements and oral testimony. Sergeant Malao and Constable Ntshebo described Barnard’s continued assault on the deceased, but their statements omitted key details later introduced in court. Barnard testified that he had attempted to arrest the deceased after being provoked, and denied any intention to kill. The post-mortem report confirmed severe head injuries consistent with a fall onto the pavement. The trial court had rejected Barnard’s version outright and found him guilty of murder based on dolus eventualis, concluding that he subjectively foresaw the possibility of death and was reckless.

Findings: The trial court had conflated the two components of dolus eventualis, subjective foresight and acceptance of the risk, and failed to assess Barnard’s version holistically. Barnard’s version was found to be reasonably possibly true. The absence of evidence showing that he saw the severity of the injury or reconciled himself with the risk of death undermined the finding of dolus eventualis. The continued assault, while serious, did not establish murderous intent. The foreseeability of death from the assault was accepted, but Barnard’s conduct was more consistent with conscious negligence (luxuria) than intent. The conviction for murder was set aside and replaced with a conviction for culpable homicide. The sentence was adjusted to reflect the seriousness of the offence, balanced against the provocation and Barnard’s role member of the Flying Squad.

Order: The appeal against the conviction of murder is upheld. The conviction is replaced with a finding of culpable homicide. The appellant is sentenced to six years’ imprisonment, wholly suspended for three years, on condition that he is not convicted of an offence involving violence during the period of suspension. The sentence is antedated to 21 September 2021.

Facts: Mashiane, the second accused in a multi-accused criminal trial, brought an application under section 317(1) of the Criminal Procedure Act 51 of 1977 for a special entry to be made on the record. The application arose from events during the trial involving the admissibility of statements made by the late Mabeba, and the issuing of warrants for two complainants who had expressed unwillingness to testify. The statements in question were recorded by Sergeant Gafane and Colonel Boshomane, both of whom testified and were cross-examined during the trial. The complainants, Mufunda and Thungoane, had previously submitted affidavits indicating they did not wish to proceed with the case.

Application: This was an application for special entry in terms of section 317(1) of the Criminal Procedure Act, coupled with a request for reconsideration of a prior interlocutory ruling. Mashiane sought to have the statements marked Y1–Y3 declared inadmissible under section 219 and section 219A of the Act, arguing that they constituted hearsay and were improperly admitted. He also challenged the issuing of warrants under section 184(4) of the Act, contending that the complainants were not properly served with subpoenas and that the process violated the audi alteram partem rule. The issue was whether the trial proceedings were irregular or unlawful due to the admission of hearsay statements and the manner in which the complainants were compelled to testify.

Discussion: The admissibility of the deceased’s statements was examined under section 204 of the Criminal Procedure Act and section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988. The respondent had led evidence from the two police officers who recorded the statements but failed to have the contents read into the record. The court noted that it had accepted the statements only to confirm the identity and signatures of the officers, not for their contents, which remained unread and unknown to the court. The applicant argued that this amounted to an irregularity, especially given the constitutional right to challenge evidence under section 35(3)(i) of the Constitution. On the second leg, the court reviewed its earlier ruling on the warrants issued under section 184(4), referencing affidavits from the Director of Public Prosecutions indicating that the complainants were evading service. The applicant’s contention that the accused were incorrectly cited as respondents in the warrant application was also addressed.

Findings: It was accepted that the statements Y1–Y3 were not read into the record and that their contents were not considered during the trial. Admitting them without proper procedure contravened section 219 and section 219A of the Criminal Procedure Act, which prohibit the use of confessions or admissions against co-accused unless specific conditions are met. The reconsideration of the interlocutory ruling was necessary, as the prior decision had relied on an incorrect interpretation of the hearsay provisions. Regarding the warrants, the respondent had provided sufficient evidence that the complainants were evading service, and the issuing of warrants was justified under section 184(4). The argument that the accused were improperly cited was rejected, as the procedural safeguards had been met. The application for special entry on this point was dismissed.

Order: That a special entry be made on the record regarding the admissibility of statements in terms of section 204 of the Criminal Procedure Act 51 of 1977, in terms of the Law of Evidence Amendment Act 45 of 1988. That the special entry be dismissed regarding the application in terms of section 184(4) of the Criminal Procedure Act 51 of 1977 by the respondent, wherein the complainants in counts 9, 10 and 11 had already deposited affidavits indicating they did not wish to proceed. Mr Mabeba’s section 204 statements (Exhibits Y1–Y3) are inadmissible against the accused by virtue of section 219 and section 219A of the Criminal Procedure Act 51 of 1977 as amended.

Facts: The applicant, a practising attorney, and the respondent, a Group Chief Technology Officer, were married out of community of property with accrual in 2006. They separated in 2021 after approximately 19 years of marriage. No children were born of the union. The applicant instituted divorce proceedings in 2022, and both parties seek a decree of divorce and calculation of accrual. The respondent seeks the sale of their jointly owned immovable property, while the applicant requests the appointment of a receiver/liquidator. The trial was set for August 2024 but has since passed. The applicant launched this Rule 43 application for interim relief one month before trial.

Application: This was an opposed application under Rule 43 of the Uniform Rules of Court, in which the applicant sought interim spousal maintenance of R20,000 per month, a contribution of R2,7 million towards legal costs (payable in six instalments), and an order compelling the respondent to pay all costs related to their jointly owned property. The issue was whether the applicant had established jurisdictional facts to justify interim maintenance and a contribution to legal costs, considering both parties’ financial positions and the nature of their marital regime.

Discussion: The applicant earned approximately R64,577 monthly, while the respondent earned around R147,424. The applicant’s monthly expenses were estimated at R69,255, and the respondent’s at R166,859. Both parties had enjoyed a high standard of living during the marriage, but the separation introduced new financial burdens. The respondent continued to contribute R36,147.54 monthly towards the bond, insurance, and water account of the jointly owned property, despite the applicant ceasing her R15,000 contribution. The applicant no longer resided in the property due to discontinued utility supply. Disputes over electricity and water accounts revealed a breakdown in cooperation, with allegations of dishonesty and sabotage. The applicant’s claim for spousal maintenance was assessed against her ability to support herself, her professional success, and the absence of children. The legal costs claim was evaluated in light of the disparity in financial resources and the constitutional imperative of equal access to justice.

Findings: The applicant was found to be capable of maintaining herself and had not claimed spousal maintenance in the main action. Her expenses included non-essential items, and the principle of a “clean break” was applicable. No additional interim maintenance was awarded beyond the respondent’s existing contributions. However, the applicant’s claim for a contribution to legal costs was upheld in part, recognising the imbalance in financial resources and the need to ensure equality of arms. The forensic audit component of the legal costs claim was rejected due to lack of substantiation and concerns about the credibility of the quotation provided. The divided success in the application warranted a costs order in the cause.

Order: The respondent shall continue to pay the mortgage bond (R28,242.54), insurance premium (R3,405), and COJ water account (R4,500) monthly to the respective service providers. The respondent shall contribute R400,000 towards the applicant’s legal costs, payable in ten equal monthly instalments of R40,000. Payments shall be made into the trust account of the applicant’s attorneys. Costs in the cause of the divorce action.

Facts: Fisher, a business development executive at Bidvest Services, made a disclosure to the Bidvest Group Executive Director regarding an alleged procurement irregularity involving Ngcuka, the CEO of Bidvest Services. Fisher alleged that Ngcuka facilitated employment for the son of a procurement manager at Famous Brands in exchange for Bidvest becoming a preferred service provider. The disclosure was processed at Group level and ultimately dismissed as lacking merit. Following this, Fisher lodged a grievance against Ngcuka, which led to a mediation session. The relationship between Fisher and Ngcuka deteriorated, culminating in Fisher being placed on special leave and later suspended. Disciplinary charges were brought against Fisher, including gross dishonesty and insubordination. Fisher responded by referring a dispute to the CCMA under section 188A(11) of the Labour Relations Act 66 of 1995, asserting that the disciplinary proceedings constituted an occupational detriment arising from her protected disclosure.

Application: This was an urgent application for final interdictory relief, seeking to suspend the internal disciplinary hearing pending the outcome of a referral to the CCMA under section 188A(11) of the LRA. The issue was whether the internal disciplinary hearing should be halted in favour of a pre-dismissal arbitration conducted by an independent CCMA commissioner, given the alleged protected disclosure and occupational detriment.

Discussion: Fisher argued that the disciplinary process was retaliatory and violated the Protected Disclosures Act 26 of 2000 (PDA). The employer argued that the disciplinary charges were unrelated and that the referral did not automatically terminate the internal process. It was accepted that the Labour Court may intervene in disciplinary proceedings in exceptional cases where grave injustice would result. The purpose and operation of section 188A(11) was examined, which allows an employee to require that misconduct allegations be determined by an independent arbitrator at the CCMA, rather than through internal hearings, where a protected disclosure has been made. The section does not require the Labour Court to determine whether the disclosure was bona fide or justified, nor whether the disciplinary action constitutes a contravention of the Protected Disclosures Act. Instead, the arbitrator must assess whether the referral meets the jurisdictional requirements.

Findings: The internal disciplinary process must be suspended pending the arbitrator’s decision, as the two processes cannot run concurrently. Allowing the internal hearing to proceed would undermine the statutory mechanism designed to protect whistle-blowers and avoid collateral litigation. It was accepted that Fisher had made a protected disclosure and that the disciplinary proceedings followed thereafter. The referral to the CCMA under section 188A(11) was found to be properly made, and the statutory framework provided for the substitution of the internal hearing with an independent arbitration. The employer’s insistence on proceeding with the internal hearing undermined the statutory protection afforded to whistleblowers. Exceptional circumstances were present, including the risk of prejudice to Fisher and the potential for collateral litigation. The referral did not automatically terminate the internal hearing, but once accepted by the CCMA, the internal process had to be suspended. The matter was not for judicial determination of the merits of the protected disclosure, but rather to preserve the integrity of the statutory process.

Order: The internal disciplinary enquiry at the second respondent into the charges of misconduct against the applicant is interdicted and suspended pending a decision by the arbitrator appointed by the third respondent whether the disciplinary enquiry should be conducted in accordance with section 188A(11) of the Labour Relations Act. If the arbitrator decides that the disciplinary enquiry shall be conducted in accordance with section 188A(11), the internal disciplinary enquiry shall be considered and regarded to be finally terminated. If the arbitrator decides that the disciplinary enquiry shall not be conducted in accordance with section 188A(11), the internal disciplinary enquiry may recommence forthwith, and the interdict shall automatically lapse. There is no order as to costs.

Facts: Ngcobo, employed by Ergo Mining since 2008, was dismissed in December 2018 following allegations of misconduct. He faced three charges which included assisting in the possible theft or sale of company copper and copper busbars, theft of those items, and gross abuse of a company vehicle for private use. He was found guilty only on the third charge. The disciplinary process relied heavily on circumstantial evidence, including video footage showing Ngcobo and a colleague carrying duffel bags from the milling section where copper was stored, and vehicle tracking data placing Ngcobo near a scrap yard shortly thereafter. Ngcobo claimed he had visited a nearby spares shop but provided no proof of purchase. The company vehicle had not been searched at the exit gate, and tracking data showed repeated visits to the same location over preceding months.

Application: This was a review application brought by Ergo Mining to set aside an arbitration award issued by the commissioner, who had found Ngcobo’s dismissal unfair and ordered his re-employment. The issue was whether the commissioner had committed a material error of law by applying the criminal standard of proof to circumstantial evidence, rather than the civil standard required in employment disputes.

Discussion: The commissioner’s reliance on criminal law authorities was analysed, which require that inferences drawn from circumstantial evidence exclude every reasonable alternative. Employment law disputes are civil in nature and governed by the balance of probabilities standard. The commissioner had assessed whether the inference of theft was the only reasonable conclusion, rather than whether it was the most probable one. This misapplication of the legal test materially influenced the outcome. Reviewable irregularities arise when an arbitrator’s reasoning or result falls outside the bounds of reasonableness. The commissioner failed to properly evaluate witness credibility, reliability, and the overall probabilities, particularly in light of Ngcobo’s inconsistent explanations and the circumstantial evidence pointing to misconduct.

Findings: The commissioner had committed a material error of law by applying the criminal standard to circumstantial evidence. This led to an unreasonable outcome that could not be sustained on the evidence presented. The commissioner failed to properly assess the credibility of Ngcobo’s version, the reliability of the evidence, and the probabilities of the competing narratives. The commissioner’s approach was fundamentally flawed, and the award did not meet the reasonableness threshold required for arbitration decisions. However, due to technical issues with the video footage and the need for a full reassessment, the matter was not substituted but remitted for a fresh hearing.

Order: The award is reviewed and set aside. The matter is remitted to the second respondent for a fresh hearing before a commissioner other than the third respondents.

Facts: Thirteen medical practitioners employed by the Department of Health in the Free State, represented by the South African Medical Association (SAMA), sought enforcement of a settlement agreement concluded under the auspices of the Public Health and Social Development Sectoral Bargaining Council. The agreement arose from a dispute over the Department’s failure to implement biennial or annual pay progression in terms of Resolution 3 of 2009. The resolution provided for structured career progression and salary increases based on performance. Although the Department agreed to confirm eligibility and quantify the amounts due by March 2019, followed by payment in April 2019, it failed to comply. The respondents appointed actuaries to calculate the amounts owed and later approached the Labour Court to have the settlement agreement made an order of court, including a quantified claim of R3,670,154.00.

Appeal: The Department appealed against the Labour Court’s order quantifying the amount payable under the settlement agreement. It did not challenge the part of the order making the agreement an order of court under section 158(1)(c) of the Labour Relations Act 66 of 1995. The issue was whether the Labour Court had misdirected itself by granting substantive relief not provided for in the settlement agreement, particularly in relation to amounts calculated after the agreement was concluded.

Discussion: The settlement agreement required the Department to confirm eligibility and quantify the pay progression amounts by a specific date. It did not itself contain any quantified figures or authorise the respondents to determine the amounts due. The respondents’ actuaries calculated both retrospective and prospective amounts, which were later presented as a single claim. The Department argued that this exceeded the scope of the agreement and that the Labour Court had impermissibly varied its terms. The respondents contended that the Department’s failure to dispute the actuarial figures amounted to tacit acceptance. However, the actuarial reports included disclaimers about unverifiable data, and the Department had provided its own calculations, which were dismissed as mere estimates. The Labour Court accepted the respondents’ figures without properly engaging with the terms of the agreement or the Department’s objections.

Findings: The Labour Court had misdirected itself by granting relief beyond the scope of the settlement agreement. The agreement did not authorise the respondents to quantify the amounts themselves or to claim prospective pay progression. The Department’s obligation was limited to confirming eligibility and quantifying the amounts due. The respondents’ unilateral quantification and the Labour Court’s acceptance thereof amounted to a variation of the agreement, which was expressly prohibited by clause 7. The failure to respond to a letter of demand did not constitute an admission of liability. The Labour Court also erred in awarding costs against the Department, given that the Department had paid the amounts it calculated and had legitimate grounds to oppose the application.

Order: The appeal is upheld with no order as to costs. The Labour Court’s order in paragraphs 4, 5, and 6 is set aside and substituted with: “The relief sought in terms of prayer 2 of the Notice of Motion is dismissed with no order as to costs.”

Facts: Kuphe brought an application to reconsider and discharge a preservation of property order granted ex parte in favour of the National Director of Public Prosecutions (NDPP). The order preserved her silver Toyota Fortuner, which had allegedly been used in a kidnapping and robbery incident involving Mr De Freitas. The vehicle was seized after Kuphe and a man named Mota were found seated in it in Hillbrow. The NDPP relied on affidavits from SAPS members, a CAP employee, and Mr De Freitas, supported by a car tracker report from Rothman, a fleet administrator at Car Track. The tracker placed the vehicle at the scene of the kidnapping and later at the address where Mr De Freitas was held. Kuphe denied involvement, stating she had lent the vehicle to her boyfriend that evening and was at home during the incident. She claimed financial hardship following the seizure and challenged the NDPP’s evidence, including discrepancies in the vehicle’s colour description and the omission of exculpatory testimony by the investigating officer.

Application: This was an application under Rule 6(8) of the Uniform Rules of Court for the reconsideration and discharge of a preservation order issued under section 38(2) of the Prevention of Organised Crime Act 121 of 1998 (POCA). Kuphe argued that the NDPP’s ex parte application violated her right to be heard and failed to disclose material facts, including the investigating officer’s testimony that she was not involved in the crime. She also sought condonation for the late filing of her reconsideration application. The issue was whether the preservation order was properly obtained and whether the applicant’s delay in filing could be condoned in light of her explanation and prospects of success.

Discussion: The preservation order was granted under Chapter 6 of POCA, which allows for in rem proceedings targeting property rather than its owner. The NDPP’s use of an ex parte procedure was challenged, but prior authority confirmed that such applications are permissible, with affected parties given an opportunity to respond later. Kuphe’s failure to file a compliant notice to oppose the forfeiture application under section 39 of POCA was raised by the State Attorney, who argued she lacked standing. Kuphe’s attorney proposed that the reconsideration affidavit serve as the opposing affidavit, but this was rejected. The condonation application was embedded within the founding affidavit and lacked a standalone, substantive explanation. The delay of over a month was attributed to Kuphe’s reliance on the investigating officer for guidance and her attorney’s late consultation. The explanation was vague and insufficient, with no account of the full period of delay or compliance with Rule 27(1). The tracker report and video footage remained unchallenged, and the evidence presented by Kuphe did not meet the evidentiary standard required for reconsideration.

Findings: The reconsideration application was procedurally defective and substantively weak. The explanation for the delay failed to meet the requirements for condonation, and the embedded nature of the request further undermined its credibility. Kuphe’s reliance on the investigating officer, rather than legal counsel, was unreasonable, and her account lacked specificity. The failure to comply with section 39 of POCA and the absence of a proper condonation application were decisive. The available evidence, including the tracker report and video footage, supported the NDPP’s case, and Kuphe’s prospects of success were negligible. Her assertion that the investigating officer had cleared her was immaterial to the preservation stage, which requires only a prima facie belief that the property is linked to the offence.

Order: The applicant’s condonation application for the late filing of her reconsideration application is dismissed with costs. The preservation of property order remains in force, pending the forfeiture application.

Facts: Central Bridge Trading 435 sought to declare a registered notarial deed of lease with the IHF Trust void ab initio, citing defects apparent from the lease itself. The dispute stemmed from a longstanding business relationship between Mr Salim, representing Central Bridge, and his late brother, Ebrahim, a trustee of the Trust. The Trust had occupied and operated a Fastfit Tyre Fitment Centre on a portion of Central Bridge’s property in Rustenburg since 2008, but the lease formalising this arrangement was only signed in 2020 and registered in 2021. The Trust opposed the declaratory relief and launched a counter-application seeking rectification of the lease, monetary relief, and, conditionally, restitution if the lease was declared void.

Application: Central Bridge applied for declaratory relief to have the lease declared void due to the absence of a clear description of the leased premises and a fixed rental. The Trust’s counter-application sought to join additional trustees, condonation for late filing, rectification of the lease, and restitution. The issue was whether the lease agreement was valid and enforceable, and whether the Trust had standing and authority to bring the counter-application.

Discussion: Central Bridge raised a procedural objection, arguing that the first respondent, Haffejee, lacked authority to launch the counter-application on behalf of the Trust. Although a resolution was provided confirming her authority to oppose the declaratory relief, it did not explicitly authorise her to initiate the counter-application. This procedural point was upheld, and the merits of the counter-application were not considered further. On the declaratory relief, Central Bridge insisted that the matter turned solely on the lease’s wording, but inconsistencies in its founding papers undermined this position. The company claimed ownership of the property since 2008, yet its incorporation only occurred in 2016. No title deeds were provided to substantiate ownership. The lease referenced erf numbers and title deeds that were either missing or mismatched, and a sketch plan (ZS7) attached to a prior usufruct agreement failed to clarify the premises’ identity.

Findings: Central Bridge’s assertion that the lease lacked a description of the leased premises was contradicted by its own admissions and the Trust’s longstanding occupation of the Fastfit Centre. The procedural objection regarding Haffejee’s authority succeeded, rendering the counter-application defective. On the declaratory relief, Central Bridge failed to establish a clear interest in an existing right, as its ownership of the property was not adequately proven. The inconsistencies in its founding papers, including the timeline of incorporation and lack of supporting documents, weakened its claim. The lease, signed and registered, contained sufficient references to the premises and was supported by historical occupation and prior legal instruments. The basis for declaring the lease void was not sustained.

Order: The fourth and fifth respondents are joined to the application. The first, fourth and fifth respondents are granted condonation for the late filing of the answering affidavit and counter-application. The applicant’s application is dismissed. The first, fourth and fifth respondents’ counter-application is dismissed. Each party is to bear their own costs.