TODAY'S ALERTS

Facts and issue: Application for the provisional liquidation of Saharan, the respondent, which has been brought by the trustees of the sequestrated estate of Mr Levick (the insolvent). The trustees (applicants) apply for the provisional liquidation of Saharan on the basis that Saharan owed the insolvent some R45 million (the loan) as at the date of the sequestration of the insolvent’s estate and that Saharan is unable to pay its debts.

Discussion: The applicants’ case is that the loan is due to the insolvent and that, having stepped into the shoes of the insolvent’s estate, they have called up the loan which has not been paid. Saharan disputes this. Its case is that if the loan exists and it is due, it is owing to Jamrae Capital Corporation, an off-shore trust registered in Lichtenstein. The Badenhorst principle states that if an applicant wants to claim a debt they know is disputed, they should not bring liquidation proceedings to do it, but should claim the debt by way of action to get the dispute resolved and only once the claim has been established by judgment in the trial action may the applicant seek to liquidate. Of significance to whether there is a bona fide dispute over the loan is the fact that action proceedings have been instituted by the applicants against Saharan in which they seek judgment for payment of the loan, the very indebtedness upon which the applicants claim to have standing to apply to wind up Saharan.

Findings: The court does not find that the debt has been prescribed. There is a dispute incapable of resolution on the papers regarding the existence, terms, quantum and present parties to the loan. Sufficient has been placed before court to apply the Badenhorst principle. The uncertainty relating to the existence of the loan, the cession and consequently the identity of the present parties to the loan, the positioning of the loan under “the cups’’ and the prescription concerns, have been raised bona fide and on reasonable grounds and that these disputes should be resolved by way of action proceedings.

Order: The application is dismissed with costs.

Facts and issue: The appellant was arrested and is one of five other accuseds who face multiple charges which include section 9(2)(a) of the Prevention of Organised Crime Act, kidnapping, trafficking in persons, robbery with aggravating circumstances, and attempted murder. This is an appeal in terms of section 65(4) of the Criminal Procedure Act 51 of 1977, against the decision of the Magistrate’s Court to refuse the appellant’s release on bail.

Discussion: The hostages were taken at gunpoint close to their place of business and forced into a bakkie. Thereafter, they were forcefully transferred into another vehicle and taken to an unknown premise, where they were assaulted. They were forced to provide the passwords to open their phones so that their family members could be called for a ransom of R2 million. The Special Task Force penetrated the identified premises where the two hostages were found tied up with cable ties and badly injured. Accused 1, 2 and 3 were arrested on the premises. Information was received identifying who the masterminds were behind the kidnapping, namely accused 4 and 6 respectively. The strength of the State’s case is rooted in the evidence of a witness that placed the appellant in the vehicle when the hostages were transferred from the original vehicle in which they were taken. The appellant is further linked by means of cellphone records and vehicle tracking devices that puts the State vehicle that was in his possession, in the vicinity of the crime scene.

Findings: The appellant simply denyed the veracity of the allegations. Something more is required. He is required to prove on a balance of probabilities that he will be acquitted, which the appellant has failed to do. On the probabilities, there appears to be a strong prima facie case against the appellant. The court a quo considered the objective facts and applicable legal principles and correctly found that the interest of justice does not permit the appellant’s release on bail. The court a quo correctly denied the appellant’s application to be released on bail.

Order: The appeal is dismissed.

Facts and issue: The appellant was arrested sexual assault, assault with the intent to commit grievous bodily harm, pointing a firearm, and robbery with aggravating circumstances. This is an appeal against the decision of the Magistrate’s Court to refuse the appellant’s release on bail pursuant to the appellant’s application for bail based on new facts. The complainant is the ex-wife of the appellant. The appellant and complainant are divorced.

Discussion: The appellant grabbed the complainant and began striking her with his fist against her head; flung her onto the bed and choked her. The appellant tried to pull down the complainant’s trousers but was unsuccessful. He then pulled down his own trousers and tried to insert his penis into her mouth, which the complainant managed to divert. The complainant then left the room and went to her daughter’s room to ask her to call 10111. A further physical altercation ensued. The appellant took out a firearm and placed it in the mouth of the complainant. The appellant placed a broken cup in the complainant’s hand and squashed it, causing serious injury that required medical attention. The appellant instructed her to transfer all her money from her account under duress. She did so in two transactions. The complainant left the house and applied for a third protection order. The appellant was eventually arrested. The new facts bail application was predicated on appellant’s current mental status and/or condition as well as the imminent loss of his employment at the time. It is not disputed that the appellant has in fact been dismissed from his employment

Findings: The respondent submits that that there is a likelihood that should appellant be released on bail he would be a danger to the safety of the complainant, and he may attempt to influence or intimidate her. The emphasis placed on previous protection orders was not misplaced. The court a quo considered the objective facts and applicable legal principles and correctly determined that the interest of justice does not permit the appellant’s release on bail. The appellant’s personal circumstances cannot outweigh the interest of justice considerations. The interest of justice far outweighed any prejudices that may be suffered by the appellant.

Order: The appeal is dismissed.

Facts and issue: The appellant was convicted on a charge of murder and sentenced to 15 years' direct imprisonment. This is an appeal against the appellant’s murder conviction by the Regional Court. The appellant fatally stabbed the 19-year-old deceased in the neck. While the State and the appellant disagreed on the events leading to the fatal stabbing, it was not disputed that the appellant performed the fatal stab that caused the deceased's death.

Discussion: While the appellant did not dispute that he had stabbed the deceased, his version of events differed significantly from the State’s. The appellant claimed he was sleeping after consuming too much alcohol and was abruptly awakened by a noise, which he believed was caused by an intruder attempting to enter his home through the window. Startled and fearful, he grabbed a knife and stabbed blindly through the towel that covered the window, without realizing that he had struck a person. A few moments later he learned that it was the deceased that he stabbed. The evidence before the trial court consisted of the testimony of a single eyewitness, Mr. Fortuin. Fortuin testified that while the deceased and her mother stood in front of the door facing the appellant the argument between them increasingly escalated. The appellant turned around and when he turned back towards them had something in his hand. It was at this moment, Fortuin further testified, that the deceased pushed her mother and was stabbed in the neck by the appellant.

Findings: The appellant, who alone was aware of his state of mind, presented a fictitious and improbable version of events to justify his conduct. The trial court was correct in finding that the appellant had dolus directus as he acted with the aim of bringing about an unlawful consequence, even if that decision was made in the heat of the moment. Dolus directus does not require planning or premeditation. The evidence conclusively proved the appellant's intent to murder. The evidence also overwhelmingly supports a conviction based on dolus eventualis.

Order: The appeal is dismissed.

Facts and issue: The appellants face charges including robbery with aggravating circumstances, kidnapping, and extortion. This is an appeal against the decision of the magistrate at the Magistrate Court taken to deny the appellants bail for Schedule 6 offences in terms of section 65(4) of the Criminal Procedure Act 51 of 1977.

Discussion: The investigating officer testified that he attempted to verify the addresses provided to him. He established that the first applicant does not reside at the address provided, but that he resides somewhere around Soshanguve at an unknown address. He also established that the second applicant resides at the provided address only over weekends and during the week resides in Pretoria. He interviewed the complainant, who is the son of the victim. The complainant tracked the movement of the victim with a tracker. He used a vehicle to follow the movements of his mother after she telephonically requested her banking application details in the early hours of the morning, whilst moving in unfamiliar areas such as Majakeng. When he witnessed his mother’s car with unknown men at the steering wheel, he opened a criminal case of kidnapping at the SAPS. Later that day the victim was dropped off near Akasia SAPS Station, where she reported the matter.

Findings: Whilst the mother and her son were present, the K9 (dog unit) officers entered the SAPS station with the two applicants and a transparent bag containing several cellular phones. The victim indicated to the police officers that the applicants are the people that robbed her, and she informed them that the applicants are in possession of her cellular phone. After the applicants were arrested, a voice note was retrieved on one of the applicants’ phones directing the applicant to the place where the victim’s vehicle was parked. The voice note also specified that the victim leaves work at 4am. The court agrees with the findings of the magistrate a quo on each and every factor that was considered by the court a quo. The appellants failed to establish that the decision of the magistrate was wrong.

Order: The appeal is dismissed.

Facts and issue: Appeal against a conviction and sentence of assault with intent to cause grievous bodily harm and the sentence imposed in connection with a conviction on a single count of kidnapping. The appellant was convicted of one count of assault with intent to cause grievous bodily harm and one count of kidnapping. The complainant, who was allegedly assaulted and kidnapped by the appellant, subsequently passed away. The deceased was a known thief in the area where the appellant resided. The deceased stole several items belonging to the appellant’s family before the appellant allegedly kidnapped him.

Discussion: The judicial officer in the lower court was materially misdirected by not considering the entirety of the evidence presented during the trial and neglected the fundamental principle in criminal proceedings that the respondent had to prove its case beyond a reasonable doubt. The trial court failed to recognize that the appellant was not obligated to prove the truth of his explanation and that the burden of proof of guilt beyond a reasonable doubt rests on the respondent. If there was a reasonable possibility that the appellant’s evidence ‘might be reasonably possibly true’, he should be acquitted. The trial court was obliged to consider all the evidence in its totality. No medical evidence was submitted in connection with the alleged injuries inflicted on the deceased by the appellant. No supporting evidence from other sources was available to validate any aspect of the alleged assault on the deceased by the appellant. The respondent did not provide any evidence to support the claim that the appellant was with the deceased when several other unknown men assaulted him.

Findings: The appellant testified that he was involved in a fistfight with the deceased because he was attacked by the deceased. No further evidence was advanced in this connection. This presents a significant difficulty in the case, impacting on the interpretation of the medical evidence and its relevance to the findings by the trial magistrate. When the evidence is weighed in its totality, it raises doubt about the appellant’s guilt. Where there is a reasonable possibility that the appellant’s version is authentic, he is entitled to the benefit of the doubt. The sentence of direct imprisonment imposed on the appellant amounted to a misdirection by the trial court.

Order: The appeal against the appellant’s conviction (and sentence) on the charge of assault with intent to cause grievous bodily harm is upheld and is set aside. The appellant is acquitted. The appeal against the appellant’s sentence on the charge of kidnapping is upheld and substituted with a conditionally suspended sentence.

Facts and issue: Rule 43 Application in which the applicant seeks an order for maintenance for the minor child born of the marriage, currently 2 years old. The applicant also claims payment of 50% of the costs both arrear and present of the co-owned property, namely the former matrimonial home which arrear expenses the applicant alleges that she has paid since the parties separation. The former matrimonial home has remained unoccupied for a period more than a year.

Discussion: The costs of maintaining the former matrimonial home, according to the applicant, are in the order of R50,000 per month. The applicant’s monthly income is a net salary of R25,840.56. In addition, she receives rental income of 17,000 per month. The respondent’s monthly income is approximately R45,500.00 per month. Both parties are salaried employees. The applicant contends that with the assistance of her father (to whom she is now indebted) she has made payment of the costs of maintaining the former matrimonial home, including making payment of the monthly mortgage bond, which amounts to approximately R38,000 per month. The respondent has been underpaying both maintenance and his contribution to the former matrimonial home. The amount of R2,000 which he has historically paid and tendered to continue to pay in respect of maintenance for the minor child and R5,000 in respect of the former matrimonial home, is wholly inadequate.

Findings: The applicant had no option other than to bring this application in respect of which she has been largely successful. In the circumstances the court is inclined pendente lite to order the respondent to make payment of 50% of the monthly mortgage bond instalment to the applicant, and for the remainder of the expenses incurred in maintaining the co-owned property to be dealt with by the court dealing with the actio communi dividundo.

Order: The respondent shall pay monthly maintenance pendente lite towards the minor child in the amount of R4,000. The respondent is liable for and shall make payment of 50% of the expenses for the minor child. The respondent shall pay 50% of the amount due in respect of the monthly mortgage bond instalment which shall be paid directly to the applicant.

Facts and issue: Claim for contractual damages arising from the repudiation by SANSA of the applicant’s fixed-term contract of employment, in consequence of which the applicant claims damages arising therefrom against SANSA in the sum of R6,476,515.52. The matter revolves around whether a party to a contract, who has elected to abide by a repudiation and claim specific performance, may in the face of a persistent and unequivocal intention of the defaulting party not to be bound by the contract, change their election and accept the repudiation and sue for damages for repudiatory breach of such contract.

Discussion: SANSA failed to comply with the applicant’s ultimatum, deadline or indulgence to respond to the applicant’s demand. The respondents deny any repudiation on their part of the applicant’s contract of employment, asserting that same was invalidly concluded in violation of the provisions of sections 9(3) and 15(2)(c) of the South African National Agency Act 36 of 2008, contending that as such the termination was lawful. Reliance by SANSA on the provisions of sections 9(3) and 15(2)(c) of the Act, in justifying the termination of the applicant’s contract of employment is devoid of any substance, rendering the purported summary termination of her contract premature, wrongful and unlawful, with the attendant consequences that such termination without legally valid reasons or basis, constituted a repudiatory breach thereof. Any contention by SANSA asserting the lawfulness of such termination is in the circumstances misplaced and misconceived. The terms of the termination letter made it perfectly clear that the employment relationship between the parties had come to an end (albeit without legally valid reasons) with an immediate effect.

Findings: The applicant has claimed damages in the sum of R6,476,515.22 plus accruing leave pay. There is no agreement between the parties concerning such damages. SANSA does dispute such damages so claimed by the applicant. Despite merely pleading such a global amount, the applicant as required in terms of the law has failed to prove or quantify such damages to enable not only SANSA but the court to assess the correctness thereof. The applicant has not made out a proper case for the award of damages as a surrogate for specific performance based on SANSA’s repudiatory breach of the applicant’s fixed-term contract of employment.

Order: The decision of the Board of SANSA constituted a breach and repudiation of the applicant’s fixed-term contract of employment. The applicant’s claim for damages is dismissed.

Facts and issue: The municipality applies urgently for an interdict restraining the fund registered in terms of the Pension Funds Act, 24 of 1956, from processing Mphahlele’s claim to have her pension benefits paid out to her. Relief is sought pending the finalisation of forensic investigations into maladministration and misappropriation of bursary funds by Mphahlele whilst the applicant employed her as a training and development officer.

Discussion: Mr Moloi, appearing for Mphahlele, challenged the applicant’s assertion that it seeks interim relief. He pointed out that the interim interdict is sought pending internal processes, without reference to further proceedings at which the issue of the Mphahlele’s liability will be finally determined. In the circumstances, he argued, the applicant asks for final relief. The applicant must establish prima facie that it has reasonable prospects of success in obtaining a judgment against Mphahlele which would entitle it to receive payments towards the judgment from her pension benefits. The applicant envisages relying on a claim for fraud or theft. The applicant is required to set out the primary facts from which the inferences, the secondary facts, may be obtained. The applicant has not provided primary facts; rather, it has simply jumped to the legal conclusion that the second respondent is guilty of fraud and theft.

Findings: The high watermark of the purported suspicion amounts to R40,000, although no evidence in support thereof has been produced. It thus remains a mystery how the Municipal Manager could allege in the founding affidavit that Mphahlele is suspected of having misappropriated R200,000. The applicant has not shown that it has prima facie right to obtain judgment against Mphahlele which it may satisfy from her pension benefits.

Order: The application is dismissed with costs.

Facts and issue: The applicant entered into a written instalment sale agreement with deceased in respect to a vehicle. The deceased died in 2023. The outstanding balance payable in terms of the agreement is R315,971.93. The respondent is the surviving spouse of the deceased and is currently in possession of the vehicle. The applicant alleges that the respondent is in unlawful possession of the vehicle, as neither she nor the estate has settled the full outstanding balance owing on the vehicle. The respondent refuses to surrender the vehicle.

Discussion: The applicant contended that the purpose of an interim attachment order is to protect the owner of the goods against deterioration and damage pending the finalisation of the main proceedings between the parties. The alternative relief sought is for the return of the vehicle which is to be placed in the applicant’s approved storage facility until such time as the estate has been finalised or permission to sell granted or provided. This appears to be a sensible approach. The applicant has made the essential averments necessary for relief sought in the alternative. It is unrefuted that the vehicle is being used by the respondent to the potential risk of the applicant and the deceased estate as the vehicle is not insured. The applicant is entitled to cancel the agreement. The relief for the amendment to the chassis number under these circumstances will not be prejudicial to the applicant or the deceased estate.

Findings: The legislated possession of the asset in terms of section 11 of the Administration of Estates Act 66 of 1965, cannot trump the vindicatory common law right of the applicant. The respondent has failed to show that she has some right that is enforceable against the applicant. The court is not persuaded that the respondent’s asserted entitlement to possession of the vehicle under the veil of section 11 of the AEA can be sustained, which requires the vehicle to be kept in safe custody or preservation.

Order: The application succeeds.