TODAY'S ALERTS

Facts and issue: The applicant applies for final relief on motion based on the provisions of section 163 of the Companies Act 71 of 2008. The applicant moves the court for an order directing the respondent to provide financial statements for the years ending 2022 and 2023, independently reviewed by an agreed upon or court appointed auditor in accordance with Generally Accepted Accounting Principles, within one month of the order.

Discussion: The respondent asserts that Mr. Michael Wade, the director of the respondent representing the applicant’s interests, resigned, a fact denied by the applicant baldly. As a result of the resignation, the applicant’s relationship with the respondent terminated and this has led to arbitration proceedings concerning provisions in the shareholder’s agreement relating to disposal of the applicant’s shares under the circumstances. The respondent contends that the applicant’s rights as a “management shareholder” terminated and that the applicant lacks locus standi to pursue the relief sought. The claim that the respondent has failed to provide the minutes of the aforesaid AGM is devoid of substance. The applicant had the recording of the meeting which undoubtedly recorded resolutions, if any were taken. The respondent ignored the request for the provision of bank statements, and thereby tacitly refused the request. The court’s jurisdiction to make an order does not arise until the statutory criteria have been satisfied.

Findings: The applicant has failed to even emerge from the starting blocks in discharging the onus of establishing that the effect of conduct by the company or directors is prejudicial, let alone unfair. Its director resigned as director of the respondent. It cannot therefor be said that it was excluded from the business and affairs of the respondent, other than on its own volition. It was permitted to and in fact attended annual general meetings, through a proxy, and participated in the approval of the annual financial statements. On request, it received a transcript of the proceedings at the 2023 AGM. The vast majority of these facts, now admitted, are not disclosed in the founding affidavit. The applicant has a clear alternative remedy. The application was ill-advised and completely bereft of any facts which from which it could objectively be concluded that the conduct complained of, falls within the ambit of Section 163. The paucity of information provided in the founding affidavit, together with material facts omitted therefrom calls into stark question the applicant’s bona fides and motives for making the application.

Costs: The purpose of this application is distinctly unclear, where the material information regarding the respondent’s financial affairs was available to the respondent, and in fact, approved by it. The applicant has put the respondent to needless expense and persisted to an opposed hearing on the strength of a founding affidavit devoid of facts sufficient to sustain the applicant’s cause. This is a factor which weighs in determining an appropriate costs order.

Order: The application is refused. The applicant is ordered to pay the respondent’s costs on an attorney and client scale.

Facts and issue: The accused appeared in the Regional Court on a charge of rape in that the accused had unlawfully and intentionally committed an act of sexual penetration with the complainant, a girl aged four years, by penetrating her private parts without the consent of the said complainant. He was duly convicted pursuant to pleading guilty. Thereupon he was sentenced to 10 years compulsory residence in a child and youth care centre. The accused was 15 years old at the time. This is an automatic review.

Discussion: In considering sentence, the Regional Magistrate referred to the physical injuries of the victim as well as the fact that the victim as well as her family had been traumatised. She then further referred to the fact that the family of the victim has had to redirect their restrained funds to cater for the complainant. This affected their living and further constituted a strain on already budgetary constraints. In considering the Regional Magistrate’s reasons for sentencing, it appears that she did not take into account the young age of the accused, save in respect of where the accused is to incarcerated, namely in a youth centre. The age of the accused obviously did not play any role in consideration of the period that the accused is to be imprisoned. On the contrary, it appears that the Regional Magistrate at some point lost sight of the accused’s age when she stated that the accused, although attending school and being 16 years of age, should make a financial contribution towards the victim and the family of the victim.

Findings: Not only does the record show that the Regional Magistrate did not consider the age of the accused in determining the appropriate period of detention, but it is also patently clear that she failed in totality to deal with the recommendation pertaining to correctional supervision contained in both relevant reports placed before court in this regard. The Regional Magistrate did not take into consideration the fact that the accused has pleaded guilty. She over-emphasized the alleged financial implications due to the rape incident whereas no evidence had been placed before the court of how many times the victim had to be taken for treatment and the estimated costs involved therewith. The Regional Magistrate committed a serious misdirection in sentencing the accused to 10 years of compulsory residence in a child and youth care centre. The maximum period of compulsory residence is five years.

Order: The conviction of the accused is confirmed. The sentence imposed is set aside and substituted with 5 years compulsory residence at the Bizzah Makhathe Medium D Youth Centre, Kroonstad.

Facts and issue: The appellants are the unlawful occupiers of an immovable property. The property houses approximately 45 people, comprising 17 independent family units. One such unit is housed in a room of a residential dwelling erected on the property. The remaining units are housed on separately constructed makeshift shacks. The respondent is the registered owner of the property. It sought and obtained an order evicting the appellants from it. This order was granted in the absence of the appellants who, when it came to their knowledge, took a number of steps to redress the situation in which they then found themselves. One such step was an application for the rescission of the judgment for their eviction. This was opposed by the respondent and ultimately dismissed. However, and with its leave, the appellants now appeal against the whole of that judgment and order.

Discussion: The deputy sheriff chose to effect service of the notice of motion and founding affidavit in the eviction application and the notice in terms of section 4(2) of PIE pursuant to Rule 4(1)(a)(ii). Such recourse was ill- conceived. The property was the home of approximately 45 persons comprising 17 independent family units. One such unit occupied a room in the dwelling situate on the property. The remaining 16 units occupied makeshift shacks which had been erected on it. The persons upon whom service was effected in each instance were not in charge of the separate dwellings located on the property. On this ground alone reliance on Rule 4(1)(a)(ii) must fail. The suggestion that the persons upon whom service was effected had been authorised to accept service on behalf of the appellants is no substitute for what the rule in express terms enjoins. The suggested authority of those persons has been placed in sharp dispute by the appellants. They have on oath stated that the persons in question are not known to them and certainly did not have their authority to accept service on their behalf. This has not been gainsaid by the respondent and there is no basis upon which that body of evidence falls to be rejected.

Findings: Service of the three documents in question did not accord with the requirements of Rule 4(1)(a)(ii) or for that matter any of the other Rules regulating the manner in which service is to be effected. The appellants have been consistent in their contention that they were unaware of the issue of process in the eviction proceedings, the notice in terms of section 4(2) of PIE and the date on which those proceedings had been enrolled for hearing. Equally, they were unaware that an order for their eviction was granted. There is on the papers no reason to doubt their word on the matter.

Order: The appeal is upheld. The order of the court a quo is set aside and is to be substituted. The judgment evicting the applicants from the immovable property is rescinded.

Facts and issue: The plaintiff husband sued the defendant wife for divorce. At the time of institution of action there were two minor children born of the marriage, which was in community of property. The one child had since become a major although still dependent. The defendant changed attorneys and launched an application seeking a postponement of the divorce proceedings.

Discussion: The chronology demonstrates that the defendant at all times was represented by attorneys, who knew that their client would be attending upon the plaintiff’s attorney’s offices to sign the documents that had already been made available to her by her attorneys previously. This included the parenting plan, which was the product of engagement with the expert, Dr Duchen. What is not explained in the defendant’s affidavits is when she came to the realisation that the settlement agreement, she had signed was something she did not intend agreeing to. Mr Sethole emphasised on defendant’s behalf, and as asserted in the defendant’s affidavits, that the settlement agreement is one-sided and unfair, sufficiently so that it must cast serious doubt whether she entered into the settlement agreement voluntarily. The terms of the settlement agreement and the accompanying parenting plan are not such that this line of argument carries any real weight.

Findings: The interests of the children are advanced rather than prejudiced by the grant of the divorce given the finality that it brings and by retaining the position that has prevailed for many years and with which the children, as well as the expert psychologist, are satisfied. One of the reasons that the defendant sought a postponement was to enable the family advocate to investigate and provide a full report. The family advocate has endorsed the settlement agreement with accompanying period plan and there is no evidence why an investigation is required. Should it be that the interests of the children require a change to that which is provided for in the settlement agreement and parenting plan, there are forums at which this can be subsequently addressed, if necessary. The defendant has not adduced sufficient evidence or provided sufficient detail to demonstrate that her postponement application is bona fide and that she has any prospects of persuading a subsequent court, if the postponement was granted, that the settlement agreement is to be vitiated.

Order: The application is refused.

Facts and issue: The applicant brings this application to review and set aside an arbitration award issued by the commissioner of the CCMA. The dispute arose from the dismissal of ten members of the AMCU by the applicant, following disciplinary action against them for breaching the picketing rules, and possessing dangerous weapons during a protected strike, on company property. The commissioner found that the dismissals of the Union members were substantively unfair because the applicant had inconsistently applied discipline. The commissioner directed the applicant to reinstate the dismissed members with no backpay.

Discussion: Despite being aware of the inconsistency challenge, the applicant failed to present any admissible evidence that the conduct of the NUM members and the dismissed AMCU members were sufficiently distinguishable. For this reason alone, the finding of the commissioner that the applicant applied discipline inconsistently was reasonable. No harm was caused by the misconduct, and the reasons why the employer imposed the ultimate sanction of dismissal was not adequately explained, given its inconsistent application of discipline. The allegations of dishonesty relate only to Mrs. Mpengesi and Mjajubane. The commissioner did not consider how their dishonesty impacted on the employment relationship. Dishonesty has the effect of eroding the trust relationship. Despite her obligation to do so, the commissioner failed to consider the totality of the circumstances. On this basis alone, the arbitration award falls outside of the range of reasonable outcomes.

Findings: There is no reason to remit the dispute back to the CCMA. The dispute has been fully ventilated, and the record is complete. Considering the totality of the circumstances, including the fact that their dishonesty was egregious, given that it sought to subvert the disciplinary process, the commissioner’s award of reinstatement falls to be reviewed, set aside, and substituted with a finding that their dismissal was substantively fair. Regarding the remaining eight dismissed members, the commissioner committed no irregularly by finding that the applicant had applied discipline inconsistently. This finding, given the evidence before her, was reasonable. While consistency of discipline is not determinative of the appropriate sanction, it remains a basic element of fairness and must be taken into consideration.

Order: The arbitration award is reviewed and set aside. The arbitration award is substituted with a finding that the dismissal of Mrs. Mpengesi and Mjajubane is substantively fair, but dismissal of the other eight is substantively unfair and they are reinstated with effect from 10 November 2021.

Facts and issue: This is an opposed condonation application for the late filing of a statement of case in which the applicant alleges discrimination and sexual harassment. The incident occurred at the premises of the respondent where councillor Sintu, a member of the respondent council, allegedly sexually or indecently assaulted the applicant in full view of a male witness, inappropriately touched the applicant between her legs. The referral is over two months late.

Discussion: The degree of lateness is material, but it should however not be considered in isolation. The applicant’s attempt to explain the delay on account of the allege exigencies of counsel’s exigencies is not acceptable. If such an explanation is offered, it should at least be supported with some evidence of particular exigencies which prevent the statement of case being drafted within a shorter period. The applicant’s representative took steps but did so not with the required sense of urgency that the circumstances required. There is an explanation for the delay, but it is a weak one because it does not really get to grip with explaining the lethargic pace of their efforts and is lacking in the necessary detail in places. The explanation for the delay is patchy and unacceptable, but not wholly lacking. When considering the other relevant factors, condonation is justified in this instance and should not be dismissed despite the weakness of the explanation and the long delay.

Findings: The allegations are serious, if properly proved by the applicant the allegation represents the serious form of discrimination in the workplace. The indeterminate status of the allegations certainly suggests that the applicant’s prospects of success are not unreasonable. It is in both parties’ interest that matter be heard considering the issues raised and the importance of the matter. It is in the interest of justice that this kind of a case be heard, considering that it has been acknowledged by the Respondent that incident occurred in the workplace. It will be important for the court to determine that such conduct cannot be tolerated. Further, the court will have an opportunity to rule on municipal liability towards employees who are sexually harassed by the councillors.

Order: The condonation application for the late filing of the applicant’s statement of case is granted.

Facts and issue: This is an application to review and set aside the commissioner’s decision, in her capacity as commissioner appointed by Bargaining Council to arbitrate the unfair labour practice dispute between the applicant and the respondent, Ms Coetzee. The commissioner found that Ms Coetzee was subjected to unfair labour practice relating to promotion by not being shortlisted for the position of Senior Professional Officer advertised by the applicant. The commissioner awarded Ms Coetzee compensation in the amount of R89,324.

Discussion: The applicant’s case is essentially that Ms Coetzee was not subjected to an unfair labour practice. The applicant contended that there were four knock out factors which resulted in Ms Coetzee not being shortlisted for the post: first, Ms Coetzee’s qualification did not fit within facilities management; second, she lacked the relevant managerial experience in facilities management; third, her documentation was lacking and fourth, she lacked financial management experience. It was argued on behalf of Ms Coetzee, that when evaluating the process followed regarding who made the shortlist it is clear that the inclusion of certain candidates on the one hand, like Groep and Norris, and the exclusion of Coetzee on the other, was done in a haphazard and irrational manner, without adherence to an objective standard of fairness, especially in light of the fact that Ms Coetzee met the minimum requirements of the post as advertised.

Findings: The criteria set for the promotion was amended and more flexible. Even if it is accepted that an employer can amend the criteria for purposes of shortlisting candidates and that it has a discretion in this regard, this amended criteria was not consistently applied. The reasons for Stander and Francis’ exclusion of Coetzee, because of experience, was irrational and had no valid basis. The evidence illustrates that Stander’s reasons changed as the matter went along. So too did the reasons advanced by Francis for including Groep. On the one hand, Stander defended the inclusion of Groep on the shortlist, based upon Groep’s Certificate in Facilities Management, yet on the other hand, he disregarded Coetzee’s B Tech: Human Resources, which was underpinned by a National Diploma in Public Management as irrelevant. There was also no evidence that the inclusion of Groep was an error. This was raised for the first time in the review application and in argument. Ms Coetzee was an eligible employee, who was denied a fair opportunity to compete for the promotional post as different criteria were applied to the candidates in determining who made it into the shortlist.

Order: The application is dismissed.

Facts and issue: The applicant and respondent signed an employment contract in terms of which the applicant was employed for an indefinite period. Clause 36 of his employment contract provided for retirement at the age of 65. The respondent provided the applicant with a notice to amend his employment contract. In terms of the said notice, the parties agreed to amend the applicant’s open-ended contract of employment to a fixed-term contract and for the employment relationship to terminate on 31 July 2017. The applicant refused to sign the amendment, and he did not agree to it. The applicant was finally dismissed on 31 July 2017. The applicant claims that the respondent unfairly discriminated against him on the grounds of his age, and he pursued an unfair discrimination claim in terms of section 6 of the Employment Equity Act 55 of 1998 on the ground of his age.

Discussion: The parties entered into an employment contract which contains a clause dealing with retirement and which provided that the applicant would automatically retire, and the employment relationship terminated accordingly at the age of 65 or as otherwise agreed. Ordinarily, a dismissal based on age would be automatically unfair or could constitute discrimination based on age, unless it is established that section 187(2)(b) of the Labour Relations Act 66 of 1995 applies. Section 187(2) of the LRA, to be read with section 6(1) of the EEA specifically provides that it is not unfair to terminate an employee’s services where he or she reached the agreed retirement age. Termination of an employment contract on account of reaching the agreed upon retirement age is permissible in law and does not constitute unfair discrimination. A retirement age stipulated in the employment contract of the employee would constitute such an agreed retirement age.

Findings: The termination of the employment relationship when an employee reaches the normal age of retirement does not amount to a dismissal and cannot be automatically unfair. A dismissal on the basis of an agreed retirement age or a normal retirement age is deemed to be fair by virtue of the application of section 187(2)(b) and there is no separate requirement of procedural fairness in effecting it. Therefore, there is no need to first consult the employee or afford the employee some kind of hearing before implementing retirement. There was an agreed retirement age of 65 and the respondent retained the right to dismiss the applicant based on age at any time after he had reached his agreed to retirement age.

Order: The applicant’s claim is dismissed.

Facts and issue: The plaintiffs, issued summons against the defendants, based on their alleged unlawful arrest and detention as well as malicious prosecution. The defendant relied on section 40(1)(b) of the Criminal Procedure Act 51 of 1977, claiming that the arresting officer, Sergeant Simali held a reasonable suspicion that the plaintiffs had committed a Schedule 1 offence, theft, in order to justify their arrest and detention. The issue for determination is whether the arresting officer entertained a reasonable suspicion based on reasonable grounds in order to arrest the plaintiff.

Discussion: The plaintiff was arrested on a charge of theft, and it is important to note that the possession of suspected stolen property constitutes a competent verdict for such a charge. This raises the further question: does possession of suspected stolen property, legally defined as a contravention of section 36 of the General Law Amendment Act 62 of 1955, qualify as an offense contemplated under Schedule 1 of the CPA? Although Section 36 is not explicitly named in Schedule 1 of the CPA, it qualifies as a Schedule 1 offense on two distinct grounds. It meets the punishment threshold stipulated in Schedule 1. It aligns with theft, which is explicitly included in Schedule 1. This dual qualification ensures that Section 36 offenses are treated with the same seriousness as theft, justifying warrantless arrests and emphasizing their importance in upholding public order and deterring property-related crimes.

Findings: The steps taken by Simali in his investigation prior to arresting Walaza suggest a methodical approach aimed at ensuring that the arrest was lawful and based on reasonable suspicion, as required by the law. These steps also reflect an effort to avoid making an unlawful arrest by thoroughly examining the available evidence before acting. Simali took the additional step of interviewing the complainant, Bongani, which allowed him to gather firsthand information about the theft and clarify any doubts regarding the circumstances of the crime. This interview provided valuable insight into the details of the alleged theft and help confirm whether Walaza was involved in any way. Taken together, these steps show that Simali was diligent in ensuring that the arrest of Walaza was based on more than just a vague suspicion. By reviewing the evidence in the docket, interviewing the complainant, visiting the scene of the crime (the scrapyard), and interviewing the scrapyard owner, Simali took all reasonable measures to confirm that there was sufficient evidence to justify an arrest.

Order: The second plaintiff’s arrest and detention were lawful.

Facts and issue: The applicant is the South African Legal Council. This court suspended the respondent from practicing as a legal practitioner. The court granted a suspension order pending the finalization of the application for the striking of the respondent’s name from the roll of legal practitioners. The court appointed a curator bonis on whom the financial affairs of the respondent’s practice vests, and it further granted ancillary relief. These proceedings concern the relief sought on the return date in respect of the previous order granted.

Discussion: The applicant contends that the council addressed several letters to the respondent regarding the complaint by HLRM, repeatedly requesting his comments to the allegations made against him. The respondent failed to reply to the council. The respondent was required to submit an auditor’s report to the council within six months of commencing practice for his own account, covering the first four months of such practice and it was due for submission to the Council on or before 28 February 2020. More than a year after this report was due to be submitted, the respondent had still not filed an opening auditor’s report with the council. There can be no denial by the respondent of his failure to comply with his obligations. The respondent had not been in possession of a Fidelity Fund Certificate since opening his practice. He failed to apply for an FFC during the 2019 period and, as a result of his failure to submit an opening auditor’s report, was not eligible to be issued with an FFC thereafter.

Findings: The respondent’s conduct is serious. He has shown no remorse. Neither is there any indication that he is to be deterred from repeating his misconduct in future. His repeated dishonesty confirms that he lacks the honesty and integrity expected of legal practitioners. His conduct throughout the course of the proceedings has been dishonest. The respondents’ contempt of court, since the order of suspension was granted disqualifies him from this court granting as a sanction the imposition of another suspension. He has shown that he will not abide by an order of the court.

Order: The respondent is struck from the roll of legal practitioners.