TODAY'S ALERTS

Facts and issue: The plaintiff instituted a delictual claim for damages against the defendant in respect of injuries she sustained when a metal sliding gate at her rented premises fell on her. At the close of the plaintiff’s case, the defendant applied for absolution from the instance. The defendant was the owner of the leased property, which it rented to the plaintiff at the time of the incident.

Discussion: In terms of the lease agreement, the defendant was responsible for the repair and maintenance of the leased property, including the gate. The defendant in his plea admitted that he owed a legal duty of care to the plaintiff and persons entering the premises through the gate. It was his duty to ensure that they were not exposed to the risk of injury. The uncontested evidence of the plaintiff is that the gate started to malfunction as early as 2015. The defendant had failed to maintain the gate and instead, he used the services of his brother-in-law, Mr Seronio who is a handyman. The plaintiff testified that she was instructed by the defendant to lift the flap on the motor to change the gate from automatic to manual whenever the remote control was not working. She would then push the gate manually to open for her clients. This evidence was corroborated by Mrs Smuts who had been an administrator at the plaintiff’s clinic since 2015. Mrs Smuts confirmed that that on the days when the gate was not opening, the plaintiff would manually open the gate with a handle.

Findings: The defendant’s case as pleaded is a denial of the incident that gave rise to the plaintiffs claim. The plaintiff need only establish a prima facie case against the defendant. The evidence adduced by the plaintiff on the issue of damage is enough to constitute a prima facie case against the defendant. The plaintiff succeeded in putting a prima facie case answerable by the defendant.

Order: The defendant’s application for absolution from the instance is dismissed.

Facts and issue: Urgent application to perfect the general covering notarial bond passed by the respondent, Northern Suburbs Supermarket, in favour of the applicant, Pick N Pay Retailers, as security for its credit facilities to the respondent. In terms of the agreement, Pick n Pay supplies stock to the respondent on credit subject to a 28 days payment cycle. The respondent does not pay for the stock that it receives on credit from Pick n Pay and is trading in a distressed position. Pick n Pay continues to support the business of the respondent by supplying the stock. Despite the efforts by Pick n Pay, the respondent sells the stock and simply does not pay for it.

Discussion: The respondent enjoys discounted prices due to bulk purchases done by Pick n Pay on behalf of all its franchisees of which the respondent is a member. The risk Pick n Pay takes in keeping the business afloat is clear. It would fly against the face of the bond if the court were to refuse the perfection as the refusal will, no doubt, increase the exposure of Pick n Pay in the respondent without real security. It would prejudice Pick n Pay were it continue to support the respondent. It is evident from the terms of the bond that by perfecting the bond, Pick n Pay is not taking ownership of the business of the respondent but trade to preserve its value and mitigate its exposure. This is what the parties agreed to in terms of the bond and there is nothing unusual for the court to give effect thereto. To argue as counsel for the respondent would have the court accept, that the perfection is done in bad faith is simply not supported by any evidence and is therefore rejected.

Findings: The court has not been provided with any authority for the proposition that under these circumstances, it would be appropriate not to give effect to the terms of the bond and perfect it. When regard is had to the fact that Pick n Pay continues to supply stock to the respondent who continues to trade daily but does not pay on time or at all, Pick n Pay is within its right to perfect the bond. It follows therefore that a case has been made for perfection. This is so because by perfecting its bond, Pick n Pay becomes an agent and trades on behalf of the respondent and has full control over the stock it supplies on credit as envisaged in the bond.

Order: The applicant is authorised and empowered to take into possession the respondent’s movable assets for the purpose of perfecting a general notarial covering bond registered in favour of the applicant. The applicant is authorised to exercise the rights as contemplated in the clauses of the bond.

Facts and issue: The applicant urgently applies for an interdict restraining the respondent from disposing coal mined to any party other than the applicant, pending the final determination of a dispute between the parties in respect thereof. The applicant proposes to institute an action within 30 days. The applicant and the respondent entered into a written agreement. The applicant made advance payments, and the respondent established the mine. A dispute arose between the parties as to whether the respondent validly terminated the agreement. The applicant seeks to secure the continued availability of the coal whilst the dispute is being resolved at trial.

Discussion: The applicant asserts a prima facie right to purchase all the coal from the mine in terms of the written agreement between the parties. The applicant would have a right to performance in terms of the agreement unless the respondent is correct when it asserts that the agreement was terminated. The applicant’s contention that the agreement was not properly cancelled, if it is assumed that the applicant was in breach, seems to be on stronger footing. The applicant established a prima facie right to insist on performance in terms of the agreement and no serious doubt has been cast thereon. The applicant advances reasons why it reasonably anticipates suffering irreparable harm if the order is not granted. It argues that it will be deprived of its contractual right to exclusively purchase the coal. Although the proposition is sound, it does not consider the whole picture. The same agreement also creates other contractual rights, including to claim damages. The harm is therefore not irreparable.

Findings: The relief sought by the applicant is in the form of prohibiting the respondent from disposing of the coal, unless it is to the applicant. This formulation of the relief contradicts the applicant’s concern regarding its irreparable harm that it will lose the clients. An interdict in this form will not deal with that problem. The applicant has failed to show that it has a reasonable apprehension of irreparable harm. If the interdict is granted, the respondent will be placed on the horns of a dilemma: if it is to stay in business, it would be forced to sell to the applicant, or find an alternative source of funding to stay afloat. The prejudice to the respondent outweighs the prejudice to the applicant. The applicant has thus also failed to establish that the balance of convenience favours the granting of the interim relief. The applicant has not shown that it cannot obtain redress in the form of a damages claim.

Order: The application is dismissed.

Facts and issue: The applicant sought as a matter of urgency an order directing the respondent to vacate the applicant’s property. In addition, the applicant sought the costs of this application on scale C, as contemplated in Uniform Rule 67A, and that those costs be paid on a punitive, attorney and own client, basis. By the time that the application was called in the urgent court, the respondent had vacated the premises. The substantive relief sought by the applicant has thus become moot. All that remains for determination is the question of costs (the respondent having refused to make a tender in that respect).

Discussion: The respondent disputes that he should pay the costs of the application. In the alternative, he contends that, if an adverse costs order were to be granted, he should not pay costs on a punitive scale and that any party and party costs order should not be on scale C. The applicant has brought an application of undisputed urgency, which was justified and well-founded, in order to address unlawful action on the part of the respondent. The respondent, by his actions, has essentially conceded the application. The usual rule in such circumstances is that an applicant should be awarded costs. There is no reason to depart from that.

Findings: The applicant was justified in employing an experienced and streetwise counsel, given that the respondent had indicated that he was intending to raise a variety of defences and, for example, seek to invoke the protections afforded by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998 (PIE) and also attempt to cloud the issues by portraying them as interlinked with the pending divorce action. The indications were that the respondent would thus seek to complicate the issues as much as possible, as part of his strategy to improve his bargaining position for the divorce, and at least try to frustrate and delay using PIE, in circumstances where he knew that time was of the essence for the applicant, who had to give vacant occupation to a tenant. The applicant’s briefing of a senior junior counsel was appropriate, and she is entitled to recover costs commensurate with that counsel’s seniority.

Order: The respondent is to pay the costs of the application on a party and party basis, with counsel’s fees granted on Scale C.

Facts and issue: The issue in this application is what scale of costs the court should award in favour of the respondent, Redpath Africa Limited (RAL) following the tender for security made by it in favour of the applicants on 11 May 2023, the wasted costs for the application for security for costs against the respondent, a peregrinus incorporated and registered in Mauritius. SSC and Arendse (respondents) filed a notice in terms of rule 47(1) requesting security for costs from RAL. SSC and Arendse were not satisfied with RAL’s response to the request and so launched this interlocutory application. They seek an order that RAL must furnish them with security for costs in an amount of R1,200,000.

Discussion: In terms of Uniform Rule 47 and at common law a peregrinus plaintiff (or applicant) who does not own immovable property in the Republic with sufficient unburdened margin to satisfy costs that may arise, may be ordered to give security for the costs of his action. SSC and Arendse argue that once it is established that the respondent is a peregrinus, an appropriate security for costs order should be made. However, this argument misses the fact that indeed on 11 May 2022, a tender was made to them on the security for costs. The tender was rejected on the basis that it was vague even though the movable heavy equipment was identified as well as its value which is in excess of $3,500,000 and its location and the undertaking that it would not be removed from its location which is a mining site. The offer was only accepted on 27 July 2022 and despite the acceptance, when the heads of arguments were prepared, which is 5 days after the acceptance of the offer, on behalf of SSC and Arendse, there was no reference to the acceptance of the offer. In the absence of any reference to the acceptance of the offer for tender on security for costs, the heads of arguments are misleading to the court as it no longer necessary to make an appropriate order on the security for costs.

Findings: In the light of the tender made by RAL, there is simply no basis for the court to make any order in the application. On the facts, SSC and Arendse have been given an adequate indication that any costs order made in their favour in the main application will be satisfied. There is no suggestion that the letter was not received. SSC and Arendse implicitly accept that it was received. When considering whether the stance of SSC and Arendse is an abuse of process, is: why did SSC and Arendse not accept the tender and instead give the instruction to persist in the application and file heads of argument ignoring the letter of 11 May 2022 entirely? By doing so, SSC and Arendse were abusing the court process because there were no justifiable reasons to persist with the application for security for costs post 11 May 2022.

Order: The application for security for costs is dismissed. The parties are ordered to pay their own costs up to 11 May 2022. SSC and Arendse are ordered to pay the costs on the scale as between the Attorney and client from 11 May 2022 onwards.

Facts and issue: The three accused are adult males, being charged with the offences, where it is alleged that they were acting in common purpose with each other in the commission thereof. The offences include robbery aggravating, attempted murder and murder. The state conceded that accused 1 be acquitted in respect of counts 1 and 2. The state sought the conviction of accused 1 in respect of count 3 to count 14, accused 2 and 3 in respect of count 3 to 9, and that the state proved the case against the accused and they had to be convicted as per the indictment. The defence submitted that the accused be acquitted on all the offences charged.

Discussion: The court accepts that the fingerprint evidence is not disputed. What, however, is disputed is when the fingerprint was left in this motor vehicle. The defence alleged that they were out of South Africa at the time the offence was committed and thus denied the involvement of accused 1 in the commission of the offence. The court must have regard to all the circumstantial evidence and everything else that could possibly link the accused to the allegations. The circumstantial evidence can be found in the fingerprint evidence implicating accused 1, and the DNA evidence implicating accused 2 and 3. The bucket containing items was simply photographed. No effort was made to even examine the bucket for fingerprints or other fibres. Whether this bucket belonged to the school or not is also unknown to the court. The state elected not to place the court in their confidence concerning whether any investigation was done inside the school to trace the bucket carrier or any witnesses to the escaping perpetrators. The state relies on the contents of this bucket to link accused 2 and 3 to this incident by way of the presence of their DNA as found in the blood contained in the cloth and shirt located in the bucket.

Findings: The unchallenged alibi defence cannot be mere moto rejected by the Court. Accused 1 specifically with the alibi and the three accused throughout the entire trial maintained that witnesses were mistaken about them being the perpetrators. Their versions were not proven to be false and cannot be rejected considering the evidence in totality. The state’s version failed to prove beyond reasonable doubt, the common purpose element as alleged, the three accused’s involvement in the incident and disproved the alibi defence raised by accused 1. The state failed to prove that the circumstantial evidence was not rebutted by the evidence of accused 2 and 3. The guilt of the accused has not been proven beyond a reasonable doubt.

Order: The accused are acquitted in respect of all the offences charged in the indictment and they are excused.

Facts and issue: The appellant was convicted on two counts of fraud and one count of corruption. The convictions flow from the appellant’s role in assisting a criminal syndicate in defrauding the Manguang Municipality. The appellant abused his position as a risk administrator with FNB bank to ensure that the two transactions were processed, even though no basis in fact existed for the money to be paid into an account held by one Mr Mani Pereira. For his efforts, the appellant received R50,000 from Mr Pereira, paid from the proceeds of the crime. The appellant was sentenced to an effective period of imprisonment of 15 years. The appellant appeals against his refusal to bail.

Discussion: The appellant therefore is required to show that he has a real prospect that a non-custodial sentence will be imposed. The appellant argued that given his personal circumstances, there is a realistic possibility that he may receive a suspended sentence just like Pereira. In this regard he specifically relied heavily on the fact that the probation officer recommended to the court to consider a non-custodial sentence in terms of section 276(1)(h) of the Criminal Procedure Act, 51 of 1977. The probation officer’s recommendation was primarily because, since the appellant’s employment was terminated by FNB because of these events in 2015, he had built a successful business, which employs nine people, whose families are dependent on that business. The Magistrate did not find this factor compelling.

Findings: The appellant also criticised the Magistrate’s statement that the appellant’s wife and daughter could look after the business, correctly pointing out that there was no evidence to that effect before the Magistrate. However, it was for the appellant to place facts before the court in support of his bail. He did not place evidence before the court that the business cannot be continued by another person. Having created employment opportunities for others would not on appeal be elevated to a factor that would cause the court of appeal to amend the sentences to become wholly non-custodial. No other evidence supporting such an outcome served before the Magistrate during sentencing proceedings. The appellant has not shown that he has prospects on appeal that the court will find that the sentences imposed by the trial court are shocking ‘startling’ or ‘disturbingly inappropriate’.

Order: The appeal is dismissed.

Facts and issue: The appellant was charged with and convicted of rape in the Regional. He was sentenced to 20 years` imprisonment. The appeal is directed against both the conviction and the sentence, with the leave of the court a quo. The appellant is currently on bail. The appellant pleaded not guilty to the charge of rape. According to the complainant, the complainant`s mother and the appellant were involved in an extra-marital affair which started when she was 6 years old and ended in 2015. The appellant denied that he ever sexually molested or raped the complainant in any manner whatsoever. The complainant was a single witness and therefore, the cautionary rule applicable to single witnesses applies to her evidence.

Discussion: During cross-examination of the complainant, she testified that she had informed the Prosecutor that she was raped in 2008/2009/2010, yet the Prosecutor amended the charged sheet to refer to 2011 to 2015. Immediately subsequent to the aforesaid amendment, and in stark contrast therewith, the complainant presented the evidence about the two truck incidents, which according to her, actually occurred during 2008/2009/2010. The aforesaid evidence which the trial court completely ignored, is very relevant. The court a quo misdirected itself when it failed to draw a negative inference regarding the complainant`s credibility from that part of the complainant’s evidence when she referred to incidents which allegedly occurred during 2008 to 2010 in Bloemfontein, whilst the charge sheet was specifically amended to refer to alleged incidents having occurred during 2011 to 2015. The complainant also failed to mention any incidents that allegedly occurred during 2008 to 2010 in Bloemfontein in her police statement.

Findings: The court a quo erred when it disregarded the material contradictions between the viva voce evidence of the complainant, the amendment of the charge sheet and the contents of her police statement. The court a quo clearly erred in finding that the complainant was a reliable witness. The court also erred in accepting the evidence of the complainant`s mother where it was in conflict with that of the appellant. The court a quo did not apply the cautionary rule relating to a single witness sufficiently, or at all. The court a quo ought to have found that the version of the appellant is reasonably possibly true and should have acquitted him.

Order: The appeal against the conviction is upheld. The accused is found not guilty and is acquitted.

Facts and issue: Application for the review and setting aside the first respondent’s (Valuation Appeals Board) valuation of the applicant’s property valued at R30,7 million for the period of 1 July 2013 to 30 July 2014. The order is sought because during that period, the applicant’s property attracted a higher rates and taxes based on the higher valuation. The applicant furthermore seeks an order that any inflated or otherwise incorrect rates billed to its municipal’s account based on the incorrect property valuation be reversed.

Discussion: The applicant contends that the valuation of the property for the disputed period is so unreasonable that no reasonable municipal valuer and the VAB could have taken it and that for that reason, the court should intervene irrespective of whether the VAB has never considered the appeal. The applicant did not object to the evaluation of the property to the sum of R30.7 million. It also common cause that the municipal manager did not object to the omission of the property on the 2013 GVR and that the property appeared on the supplementary roll 1 of the 2013 which placed the value at over R30.7 million. Can it, under the circumstances, be argued that there was a decision made by the municipal valuer or the VAB pertaining to the incorrect evaluation. This is not the case because nowhere in the papers does the applicant aver that it challenged the incorrect evaluation through the normal process prescribed by the Local Government: Municipal Property Rates Act 6 of 2004.

Findings: The application must satisfy the jurisdictional pre-condition of a “decision” or “failure to decide”. Furthermore, the municipal valuer did not perform any function in relation to the period 1 July 2013 to 30 June 2014 and no case has been made by the applicant that he did. There was no “decision” or failure by the VAB to decide and accordingly, it is impermissible in law to require the court to order that the VAB should reconsider a decision which was never made. More importantly, it is a legal impermissibility to order that the VAB whose term has ceased to exist be reconstituted to consider the incorrect evaluation when in fact no objection was ever lodged before the municipal valuer through the municipal manager as prescribed by the MPRA. The relief sought by the applicant is impermissible.

Order: The application is dismissed with costs.

Facts and issue: The plaintiffs, Christo Schoeman and Rudolph Schoeman, are each claiming from the defendant, Valco Boerdery R1,000,000 together with interest and costs. These are amounts outstanding on the purchase price in terms of the sale agreements entered between the plaintiffs and the defendant in respect of their two separate farms. The essence of the dispute is around the amount of R2 million which is the unpaid remainder of the purchase price. In terms of the agreement between the parties, the first instalment in respect of the remainder of the purchase price was to be paid on 1 September 2021 in a total sum of R1 million (R500,000 for each sale). The plaintiffs are claiming the payment of this amount from the defendant.

Discussion: Both sale agreements contain what is referred to as a clause. In the Rudolph Schoeman sale agreement, it is Clause 14.1 whereas it is Clause 14 in the Christo Schoeman agreement. These identical clauses read that the agreement is subject to the suspensive condition that the existing lease which the seller has with South 32 be ceded to the purchaser within a reasonable time, under the same terms and conditions (the suspensive condition). Schoeman Boerdery contended that because the outstanding amount of R2 million remain unpaid by Valco, the acceleration clause, (Clause 11), contained in the agreements was triggered and Schoeman Boerdery is therefore entitled to claim the full outstanding amount of R2 million together with interest and costs. The matter turns on whether the cession of certain rights allegedly held by Schoeman Boerdery in terms of a written lease agreement was a suspensive condition. Considering how the agreements were negotiated and that the impugned clauses were meant to protect Valco, the interpretation of this clause, which would result in sensible meaning that would not lead to unbusinesslike results or undermine the purpose of the condition, is that it is a suspensive condition.

Findings: The impugned clause is a suspensive condition. Valco’s conduct unequivocally supports the inference and conclusion that it waived its rights to enforce the suspensive condition particularly if the following are considered. Valco allowed the transfer of the properties to proceed before the cession was effected. This inference is further reinforced by the fact that Valco never raised this issue all along until Schoeman Boerdery rejected Valco’s offer to pay a discounted amount on 12 October 2021. This strongly implies a waiver of the suspensive condition by Valco. Valco’s offer to pay the reduced outstanding amount is consistent with the waiver. Schoeman Boerdery has demonstrated that the impugned suspensive condition was waived by Valco. Schoeman Boerdery’s has complied with its obligations in terms of the agreements and is accordingly entitled to judgment.

Order: Judgment is granted in favour of the plaintiffs against the defendant for payment of the sum of R1 million rand in respect of each claim.