
Spartan
Caselaw
TODAY'S ALERTS
5 December 2024
29 November 2024
BEYLEVELD AJ
CIVIL PROCEDURE – Striking out plea – Trial particulars sought – Order to compel – No acceptable reason nor has any been advanced why defendant failed to furnish trial particulars – Conduct and disregard of an existing court order is wilful and contumacious – Court order stands until set aside – More than sufficient facts set out in founding affidavit to plaintiff’s application to compel particulars – Defendant directed to furnish a response to plaintiff’s request – Costs to be paid by defendant.
Facts and issue: The applicant seeks an order that the respondent’s plea be struck out on the grounds that the defendant has failed to provide trial particulars requested by the plaintiff and in respect of which an order was granted that the defendant respond to the plaintiff’s request for trial particulars within 10 days of the service of the order. This application is accordingly to seek such further relief, namely the striking out of the plea.
Discussion: There exists no acceptable reason nor has any been advanced why the defendant has failed to furnish the trial particulars or formulated more correctly, why the defendant has not responded to the request by furnishing an answer or contending that certain answers are not necessary or required for the purpose of preparing for trial. Although the defendant contends that there has not been any reckless disregard of the rules, plainly this suggestion is far-fetched and can be rejected out of hand. The defendant’s conduct in the matter and its disregard of an existing court order is wilful and contumacious. In motion proceedings, affidavits constitute both the pleadings and the evidence. Applying such principles, there exists no primary facts or underlying legal principle why the defendant’s failure to furnish trial particulars should be overlooked, particularly where there is an existing court order. It is indisputable that a court order stands until set aside.
Findings: No explanation is proffered by the defendant why it has failed to comply with the order to compel. There is no suggestion that the particulars sought cannot be furnished or that the particulars sought are not necessary for the purpose of preparing for trial. More than sufficient facts were set out in the founding affidavit to plaintiff’s application to compel such particulars. The court is of the view that it should exercise its discretion by crafting an order which serves as a sufficient deterrent and penalty for the defendant’s protracted failure to comply with the court order whilst at the same time ameliorating the effects of an order finally striking out the defendant’s defence.
Order: The defendant is directed to furnish a response to plaintiff’s request for trial particulars on or before the 3rd of December 2024. The costs of the application on the scale as between attorney and client is to be paid by the defendant.
25 November 2024
NEUKIRCHER J
CONSTITUTION – Urgent application – Rights of illegal miners – Failure to disclose crucial facts before court – Facts which, had court been made aware of them at relevant time, would have resulted in application failing – Allegations made by applicant have been demonstrated to be incorrect by respondents – Issues of constitutionality of respondents’ actions are not engaged – Application was premised upon incorrect facts – Application dismissed.
Facts and issue: The applicant (the Society) launched an urgent application in which it sought an urgent ex parte hearing at 02h00 on Saturday 16 November 2024 at which time it would seek relief ordering the respondents, the agents and employees to forthwith provide all necessary emergency disaster relief, to the miners trapped underground at the mine, by providing food, water, medical aid, blankets and such other emergency relief that may be necessary and ordering the respondents to extract the trapped miners from the mine.
Discussion: The picture painted by the applicant in its founding affidavit is a bleak and dire one, that is that the miners are trapped in a mine shaft without recourse to exit and blocked off from access to food, water and other basic necessities “after police closed off the entrances used to transport their supplies underground.” As a result of these actions, the Society states that there is a real danger thousands of people will die of starvation “triggered by torture” in circumstances where over 1000 miners have surfaced at various mines in NWP “with many reported to be weak, hungry and sick after going for weeks without basic supplies.” It now transpires, after reading the affidavits filed by the respondents, that the applicant failed to place crucial facts before this court in its founding affidavit, facts which, had the court been made aware of them at the time, would have resulted in the application failing. The Society seeks to avoid the defects in its application by arguing that the respondents’ conduct is unconstitutional. But even in making this argument, the Society must still comply with the basic legal tenants in anchoring its application.
Findings: The respondents argue that it is quite clear that the miners are not “trapped” as has been stated by the Society. They argue that those who still underground remain so as they fear arrest were they to surface. Margaret shaft is equipped with a cage and is usually used by Harmony’s employees to enter the shaft. So far, more than 500 miners have exited the mine using this means and it is available to the other miners to use as well. Given that the Society has no expertise of its own in this area, has not engaged an expert to put evidence on this issue before court, and has not demonstrated that the rescue efforts can and should be conducted differently, the only conclusion to be drawn is that mine rescue operations are underway, and all necessary efforts are being made to rescue the miners. There are also other exit avenues available to the miners to utilise, as there have been from the outset. This being so, the allegations made by the Society have been placed in context by the respondents and have been demonstrated to be incorrect. The issues of the constitutionality of the respondents’ actions are not engaged at all as the application was premised upon facts which have been shown to be incorrect.
Order: The application is dismissed.
27 November 2024
MOSOPA J
CRIMINAL – Murder – Sentence – Gender based violence – Premeditated – Conduct shows a person who lacks remorse but has self-pity – Fails to express a shred of sympathy to family of deceased – Accused is not a suitable candidate for rehabilitation – Barbaric and senseless shooting and murder of deceased – Killing an innocent and defenceless person – No existence of substantial and compelling circumstances – Sentenced to life imprisonment.
Facts and issue: This is a judgment on sentence after the court found the accused guilty of one count of murder. The conviction is a sequel to the state proving its case against the accused beyond reasonable doubt. The murder was found to have been premeditated. The accused was raised in a very stable environment. Despite the accused having a drinking problem in his adult life, he was raised in a family where behaviours such as drinking and smoking were discouraged.
Discussion: According to Degracia, the state witness, the accused will at times assault the deceased in full view of the members of the community. On the night before the deceased met her death, Degracia heard them arguing and according to her, she also heard a sound coming from inside the deceased’s shack which she described it as if the shack was moving. Degracia and the landlady when they went inside the shack after discovering that the deceased has passed on, they saw the curtain, which was dividing the shack into rooms, on the floor. The family of the deceased could not bury the deceased, nor could they travel from the Free State province to come and bury her. Everything was left for Ms Khubeka, the landlady, to see to it that the deceased is buried with the assistance of donations from members of the community as indicated in the victim impact statement and the pre-sentence report. It is clear from the victim impact statement and the pre-sentence report that the death of the deceased left the community traumatised.
Findings: The accused was observed as calm, but verbalised and showed no remorse. Instead, he verbalised regret for leaving the deceased on her own when he could have stayed and possibly prevented her death. This shows the conduct of a person who lacks remorse but has self-pity. He fails in the entire report to express a shred of sympathy to the family of the deceased for the loss of their child. This shows that the accused is not a suitable candidate for rehabilitation. For one to be rehabilitated he must first accept his wrongdoings and deal with such. There are no substantial and compelling circumstances. The accused killed an innocent and defenceless person with a firearm.
Order: The accused is sentenced to life imprisonment.
25 November 2024
DANIELS J
LABOUR – Prescription – Breach of contract – Plaintiff had knowledge of minimum facts necessary to institute an action against defendant at time Public Service Commission issued its final report – Prescription commenced at that time – Plaintiff was not obliged to wait until all damages had manifested – Action against defendant for damages prescribed three years after PSC issued its final report – Special plea of prescription succeeds – Prescription Act 68 of 1969, s 12(3).
Facts and issue: The plaintiff claims that the defendant breached her employment contract, resulting in damages. The claim is brought in terms of section 77(3) of the Basic Conditions of Employment Act 75 of 1997 as amended. The defendant raised a special plea of prescription. This judgment relates only to the special plea of prescription. The defendant alleges that the claim against her has prescribed. The plaintiff alleges that the defendant breached her employment contract by failing to act in the utmost good faith, by motivating for a salary upgrade when she knew (or should have known) that she was not entitled to seek a salary upgrade in the manner requested, from the Head of Department, and based on the motivation provided.
Discussion: The plaintiff’s claim is for contractual damages. The court must determine when the plaintiff had knowledge of these facts, alternatively when it could have acquired such knowledge by exercising reasonable care. The plaintiff had knowledge of the contract, and its terms, from the time of its conclusion. The employment contract provided that the defendant will observe the utmost good faith, that she will act with honesty, and she will act in the best interest of her employer. In her motivation for a salary upgrade, the defendant advised the plaintiff that the Head of Department was authorized to approve her salary upgrade. She also stated that the upgrade could be justified based on the Department’s recruitment and retention policies. These representations were false. Given the practice in the public service (that all delegations of authority are signed) the absence of a signed delegation must have signalled to the Department that the MEC had never delegated his powers to the MEC. In the circumstances, the plaintiff acquired a complete cause of action at the time it could not locate the necessary delegations of authority authorising the HOD to approve salary increases in respect of the Senior Management Service. Accordingly, at the time the PSC issued its final report, on 18 September 2014, the plaintiff had knowledge of the minimum facts necessary to institute an action against the defendant. Prescription commenced at that time.
Findings: As of 18 September 2014, the plaintiff was aware that the defendant had breached her employment contract by misrepresenting that the Head of Department was authorized to approve her salary upgrade. She had also misrepresented that the salary upgrade fell within the scope of the recruitment and retention policies. The plaintiff was therefore not obliged to wait until all the damages, arising from the breach of contract, had manifested. The plaintiff’s action against the defendant for damages prescribed three years after the PSC issued its final report, by 18 September 2017, in terms of section 11(d) of the Prescription Act 68 of 1969.
Order: The defendant’s special plea of prescription succeeds.
28 November 2024
MAKHURA J
LABOUR – Fixed term contract – Whether dismissed – Significance of pre-arbitration minute – Commissioner failed to deal with whether employee was dismissed – Found that contract ought to have been extended – Suggests that employee’s termination is based on non-extension of fixed term contract – Findings are contradictory and untenable – Not clear on what basis commissioner found employee was dismissed – Committed a gross irregularity and exceeded powers – Review application succeeds.
Facts and issue: The court is seized with two review applications against an arbitration award. The award was issued subsequent to a referral of an unfair dismissal dispute by the employee (Yawa). The employee was employed by the municipality in terms of a five-year fixed contract of employment. In his dispute referral, the employee alleged that he was unfairly dismissed for “other” reasons and sought reinstatement. The municipality seeks an order dismissing the unfair dismissal claim alternatively remitting the dispute to the SALGBC for arbitration de novo. The employee seeks the dismissal of the municipality’s review application. In his application, he seeks to review that part of the commissioner’s award which found that reinstatement or re-employment is “not feasible” and seeks an order of retrospective reinstatement, alternatively, he seeks the court to determine the reasonable expectation dispute and not to remit the matter to the SALGBC for a de novo hearing.
Discussion: The commissioner understood what he was called upon to determine. He stated that he was required to determine whether the employee was dismissed or his contract of employment automatically lapsed at the end of the fixed term period or whether the employee had a legitimate expectation of renewal of his fixed term contract of employment. On the face of it, the commissioner decided that the contract did not lapse or that it did not terminate by effluxion of time. However, he immediately found that the fixed term contract “ought” to have been extended, but then decided that it was not necessary to deal with a claim for reasonable expectation of renewal of a fixed term contract. He concluded that the applicant was dismissed.
Findings: Inexplicably, despite his decision to not deal with whether the employee was dismissed, he found that his contract ought to have been extended, and he was therefore dismissed because he had accrued the right of an extension of his contract, which suggests that the employee’s termination is based on non-renewal or non-extension of the fixed term contract. His findings are contradictory and untenable. It is therefore not clear on what basis he found that the employee was dismissed. The incoherences and contradictions in the commissioner’s findings mean that his decision is ambiguous. The commissioner erred, committed a gross irregularity and exceeded his powers. The appropriate approach the commissioner should have adopted after a finding that the employee was dismissed was to reschedule the matter for arbitration on the fairness or otherwise of the dismissal and the remedy. The award falls to be reviewed and set aside.
Order: The review application succeeds. The arbitration is reviewed and set aside. The unfair dismissal dispute between the parties is referred to the second respondent for arbitration de novo.
29 November 2024
SUTHERLAND AJA
LABOUR – Union – Registration – Labour Court’s approval that respondent met statutory requirements – Appeal – Dispute over ‘genuineness’ of union – Respondent had existed for three years prior to its attempt to register – Had engaged in typical trade union activities – General impression is of an impoverished organisation striving to get onto its feet – Decision of Labour Court is not susceptible to criticism – Appeal dismissed – Labour Relations Act 66 of 1995, s 95(7).
Facts and issue: This case relates to a decision by the Labour Court to approve the respondent, Justice for All workers of South Africa (JAWSA), as having satisfied the statutory requirements for registration as a trade union. The decision of the Labour Court was the outcome of an appeal against the refusal of the appellant, the Registrar of Labour Relations (the Registrar), to register JAWSA. The Registrar now appeals to this court against that order.
Discussion: The reason given by the Registrar for not registering JAWSA is that, in the opinion of the Registrar, JAWSA is not a genuine trade union. The main criticisms by the Registrar of JAWSA that are ventilated relate to the dominant role played by Boshielo, a political activist; a debate about which of two dates should be taken as the date of foundation of the union and what occurred on those occasions; the apparent lack of direct involvement in the constitution-making process by most of the claimed membership; and the rudimentary financial controls over the bank account. There is no adverse inference to be drawn from the fact that Boshielo, who was not an employee and was rather, so it is alleged, a political party activist, being the initiator of the Union. There is nothing in law that inhibits a person who is not an ‘employee’ identifying with the working classes and taking a leading role in promoting their collective power. Prima facie, Boshielo does seem to be the dominant personality and holds office as General Secretary and is in control of the apparatus of the union. This per se is a neutral factor.
Findings: In the process of the formation of the union two meetings of significance occurred. Both are minuted. The Registrar takes a view that the August 2020 meeting is the founding moment and lays heavy emphasis on the informal nature of those events. The Labour Court addressed this aspect and took a different view, i.e. that the various meetings should be holistically assessed as regard the process of formation. There is no reason to disturb the Labour Court qualitative assessment that the events offer no basis for an adverse inference as regards the attribute of genuineness. The financial circumstances of JAWSA suggest that it is not well endowed. The general impression is of an impoverished organisation striving to get onto its feet. Absent from the assessment of JAWSA’s application is the fact that it had existed for some three years prior to its attempt to register and had engaged in typical trade union activities, an irrefutable circumstance of no little significance. The decision of the Labour Court is not susceptible to criticism.
Order: The appeal is dismissed.
28 November 2024
GANDIDZE AJ
LABOUR – Review – Withdrawn, dismissed, lapsed or archived – Non-compliance with rules – Reason that transcript was not filed is affordability – Legal Aid and SASLAW declined request for assistance due to poor prospects of success – Applicant persists with review application despite such advise – Contentions fall far short of what applicant must allege to succeed with application to review arbitration award – Dismally failed to address requirements for good cause – No good cause shown – Application dismissed.
Facts and issue: The applicant seeks an order to reinstate a review application deemed to be withdrawn, lapsed, and archived as contemplated in clauses of the Labour Court Practice Manual, which applied when the applicant launched his review application. The provisions require an applicant in a review application to file the record in the review within 60 days, calculated from when the Registrar of the court issues a notice in terms of rule 7A(5) of the Rules for the conduct of proceedings in the Labour Court, that the record is available and to ensure that all necessary papers in the review application are filed within 12 months of the date of launching the review application. If those timelines are not complied with, the review application is deemed withdrawn, having lapsed, and the file is archived and can only be re-instated on good cause shown.
Discussion: It is the applicant’s case that on 4 March 2021, he emailed officials of the municipality seeking consent to extend the 60 days. The municipality denies receiving this communication. After filing the review application, the applicant wrote to the court and the municipality that he could not afford to pay for transcription since he was unemployed and needed assistance transcribing the record. The municipality denies receiving this communication. The court accepts that the applicant wrote to the municipality seeking consent to extend the 60 days. However, this was too late as the 60-day period had already lapsed, and the review application was deemed withdrawn. The applicant could not seek the municipality’s consent to agree to the extension of 60 days in respect of a review application that was deemed to be withdrawn. That review application had also lapsed as contemplated in clause 11.2.7 of the Practice Manual, as the applicant failed to file all the review papers within 12 months of launching the application. The review application had also been archived as six months had lapsed without any steps being taken to progress the review application.
Findings: Legal Aid declined to assist the applicant because there were no prospects of succeeding with the review. Despite this advice, the applicant wants to continue with the review application. Even after Legal Aid and SASLAW advised the applicant that his case lacked merit, he insisted on continuing it. An application to reinstate a review application deemed to be withdrawn and has lapsed can only be granted if good cause is shown. Despite the guidance provided to him, the applicant failed to address the requirements that the court directed him to address. The applicant received preferential treatment but, even then, still dismally failed to address the requirements for good cause. After the reinstatement application was argued, the applicant filed a purported urgent application for the suspension of the rule requiring transcripts to be filed in review applications. This further urgent application borders on abusing the court processes.
Order: The application to reinstate the review application is dismissed.
25 November 2024
PRINSLOO J
LABOUR – Condonation – Review – Filed more than twelve months late – Excessive and material – Explanation for delay – Instructed attorney to review award but it was delayed due to a conflict of interest – Not an explanation but rather a vague statement of facts – Bereft of any substance and wholly inadequate – Condonation only raised more than two and a half years after filing of review application – Court does not have jurisdiction – Application struck off roll – Labour Relations Act 66 of 1995, s 145(1)(a).
Facts and issue: The applicant was dismissed after being found guilty of misconduct. The charges related to acts of gross negligence. The applicant referred an unfair dismissal dispute to the CCMA. The arbitrator found that the applicant was indeed negligent, but it was not so gross that it warranted dismissal. The arbitrator concluded that the sanction imposed was too harsh, but due to the strained relationship between the applicant and his supervisor, the circumstances surrounding his dismissal were such that a continued employment relationship would be intolerable. The applicant filed an application to review and set aside the arbitration award.
Discussion: The relief sought was for the arbitration award to be reviewed and set aside and to be substituted with a finding that the applicant’s dismissal was substantively unfair and that he be reinstated retrospectively. The review application was filed more than twelve months late. A delay more than 12 months is not insignificant but is excessive and material. The explanation tendered for the delay, is that after he had received the arbitration award, he instructed his attorney to review the award, but it was delayed due to a conflict of interest. In October 2015 he contacted his insurer, Legal Wise, for assistance and cover was only given in September 2016. A consultation with his attorney was scheduled for 13 September 2016 and in mid-October 2016 it was decided to proceed with the review application. This is the explanation provided. Instead of providing an explanation that would assist the court to understand the reasons for the delay, the applicant provided a sketchy account of events with reference to only a few dates during a lengthy period of delay.
Findings: What had been presented to court, is not an explanation but rather a vague statement of facts, bereft of any substance and wholly inadequate. There is no detailed account of or explanation as to material periods of the delay and the court is in no position to understand or assess the reasonableness of the delay. The applicant dismally failed to tender a convincing, reasonable and acceptable explanation for the delay. The applicant failed to discharge the onus to show good cause as to why the indulgence of condonation should be granted. The court is not inclined to condone the late filing of the applicant’s review application and therefore the court has no jurisdiction to adjudicate the review application.
Order: The review application is struck off the roll for lack of jurisdiction.
26 November 2024
BAQWA J
MUNICIPALITY – Electricity – Disconnection – Interdict – Applicants were initially unsuccessful on basis that tariffs were still lawful until set aside – Applicants ultimately succeeded in review – Impugned tariffs reviewed and set aside – Present application has prospectus of success – Disconnections were unlawful administrative acts because of the judgment which is still unresolved – Requirements for an interdict satisfied – Local Government: Municipal Systems Act 32 of 2000, s 102.
Facts and issue: This is an urgent interdict in which the applicants seek to prevent the respondents from disconnecting the electricity supply to the premises of the applicants, pending the finalisation of the disputes lodged by the applicants. Alternatively, the applicants seek that the respondents be interdicted from disconnecting the electricity supply to the premises of the applicants without first furnishing them with the written notice, written reasons and allowing them to make representations.
Discussion: The applicants have demonstrated clear and undisputed facts that established that they have prima facie right and the legal basis as such. Until NERSA determines the lawful tariff in which the applicants are to be charged, the respondents cannot disconnect electricity from the applicants. Doing so will be infringing the applicants’ rights not to have their municipal services and electricity supply terminated by virtue of the 2019/2020 invalid tariffs, section 102 disputes and the undertakings of the respondents during the exchange of the letters between the parties. The applicants submit that the termination of municipal services and the disconnection of the supply of electricity will cause a catastrophic and irreparable harm as they rely on an uninterrupted supply of electricity for their manufacturing process. On the contrary the respondents will not suffer any harm because the applicants are paying and have tendered to pay according to a tariff which they have calculated approximates the lawful tariff.
Findings: The applicants submit that they do not have an alternative remedy as they have attempted to resolve the matter extra judicially between themselves and the respondents without success. The applicants submit that in the first interim application, the applicants were unsuccessful on the basis that the tariffs were still lawful until set aside, however in the review application the applicants ultimately succeeded, and the impugned tariffs were reviewed and set aside. Currently, the application before the court has prospectus of success. The fourth, fifth applications and current applications were triggered by the unlawful disconnection of the supply of electricity and municipal services. Those applications did not proceed due to an undertaking by the respondents to restore the services to the applicants. The said disconnections by the respondents were unlawful administrative acts because of the judgement which is still unresolved. The applicants have satisfied requirements for an interdict.
Order: The respondents are interdicted from disconnecting the electricity supply to the premises of the second to fifth applicants pending the finalisation of the disputes lodged by those applicants pertaining to the financial years regardless of when and in which financial year the disputes finally resolved.
28 November 2024
BAQWA J
PROPERTY – Termination of joint ownership – Actio communi dividundo – Parties are unable to reach consensus regarding purchase price – Property cannot be divided because it is zoned as agricultural land – Would be expensive to subdivide property – Neither party is willing to incur necessary expenses – No room for co-operation – Best option is to sell property and thereafter consider claims according to what is due to each party – Co-ownership terminated.
Facts and issue: This application arises out of a disputed ownership of immovable property. The applicants allege that they are co-owners of the property, and this is denied by the respondents. It is on the basis of this alleged co-ownership that the applicants seek an order under the actio communi dividundo for termination of the joint ownership and division of the joint property.
Discussion: Joint ownership is a concept that implies that two or more persons, including juristic persons, may own property at the same time in undivided shares. A co-owner need not be registered in the deeds registry in the deeds registry in order for him to be accepted in law as a co-owner. Each co-owner is entitled to share in the profit generated by the property unless the co-owners have agreed to share the profits differently. Each owner has the right to freely and without reference to the other owner or co-owners, to alienate his share in the property. Where the co-owners are unable to agree regarding the manner in which the property is to be divided, the court will make an appropriate order. If the property cannot be divided because it is not lawful or economical to do so, the court will order that the property be sold.
Findings: The parties are unable to reach consensus regarding the purchase price at which the respondent will buy out the applicant. Further, the property cannot be divided because it is zoned as agricultural land and the Subdivision of Agricultural Land Act 1970 restricts the subdivision of agricultural land except with the permission of the Minister. It would also be expensive to subdivide the property even if permission was given to do so, as the owners would have to hire Town Planners to give effect to the subdivision. Neither of the parties is willing to incur the necessary expenses. The only available option would seem to be an order in terms of the actio communi dividundo. The parties are at loggerheads and there would seem to be no room for co-operation between them. In the circumstances the best option would be to sell the property and thereafter consider claims according to what is due to each party.
Order: It is declared that the first and second applicants are co-owners of the immovable property. The co-ownership of the applicants and the respondents, in the immovable property (and their partnership) is terminated.