
Spartan
Caselaw
TODAY'S ALERTS
11 December 2024
26 November 2024
AUCAMP AJ
COMPANY – Close corporation – Accounting records – Compelling delivery to applicants – Contradicting statements – Conceded that documents had been provided however no detail is provided as to nature and description of documents provided – Various other examples of contradicting statements contained in answering affidavit – Version presented by accounting firm rejected – Respondents ordered to release documents to applicants – Close Corporations Act 69 of 1984, s 56.
Facts and issue: Jenric complains that the accounting firm and/or Landgrebe, notwithstanding various requests and/or demands, has retained several statutory and other documents which are and remain the property of Montrose. Consequently, the applicants make application for an order compelling the accounting firm and/or Landgrebe to deliver to the applicants the documents listed in the notice of motion. The accounting firm and Landgrebe deny that the relief claimed is competent.
Discussion: Landgrebe admits that he assisted Montrose with its tax affairs including having registered Montrose’s annual tax returns. Landgrebe continues to state under oath that he had billed the first applicant for payment of its annual CIPC duties, the continued use of his office as its registered address, the completion and submission of its provisional tax returns, the completion and submission of its annual returns to CIPC and the completion and submission of its income tax returns. Contrary to the above Landgrebe in other instances of the answering affidavit alleges that (a) “Neither I nor the first respondent have had nothing to do with the so-called “accounting records” of the second applicant because I’m not the accountant or bookkeeper of the close corporation.” Again, in contradiction to the aforesaid, Landgrebe states that “I have complied with my obligations as contemplated in Section 62(1) of the Act and have carried out such obligations to the best of my abilities but always subject to the import of such information that has been provided to me by the second applicant from time-to-time regarding to its affairs.”
Findings: It is conceded by Landgrebe that documents had been provided however no detail is provided as to the nature and description of the documents that were indeed provided. There are various other examples of contradicting statements contained in the answering affidavit, all of which allows the court, in the exercise of its discretion, to reject the version presented by and on behalf of the accounting firm and Landgrebe. The applicants have made out a case, both in relation to the obligation to deliver the documents as well as the extent of the documents claimed.
Order: The first and second respondents are directed and ordered to release the list of documents to the applicants as contemplated in terms of section 56(1) of the Close Corporations Act 69 of 1984 within 10 days of the order.
28 November 2024
DU PLESSIS AJ
CRIMINAL – Mining offences – Sentence – 3 years direct imprisonment without option of a fine – Appeal – Appellant admitted three similar previous convictions – Maximum term of imprisonment that can be imposed is six months – Appropriate under circumstances – Sentence to be made retrospective from date of original sentence – Appeal upheld – Appellant sentenced to six months imprisonment – Mineral and Petroleum Resources Development Act 28 of 2002, s 5A.
Facts and issue: This is an appeal against the sentence only. The appellant was convicted on one count of contravening Section 5A of the MPRDA Act 28 of 2002 as amended, in that he at Driefontein Mine, prospected for, or removed, mine, conducted technical cooperation, operations, reconnaissance operation, explored for any mineral or petroleum produce, or commenced with any work incidental thereto on any area without an environmental authorisation. The Learned Magistrate convicted the appellant, apparently on strength of the Section 112(2) statement and sentenced the appellant to 3 years direct imprisonment without the option of a fine.
Discussion: The interpretation of the prescribed sentence for a contravention of Section 5A of the MPRDA 28 OF 2002 by the court a quo, the Prosecutor and counsel for the appellant are wrong and should be dealt with. The contravention of various sections of the MPRDA 28 of 2002 are declared an offence in section 98 while Section 99 of Act 28 of 2002 prescribes the sentence. The appellant pleaded guilty to and was convicted of the contravention of Section 5A of the MRPDA 28 of 2002, and not section 5(4). The Trial Magistrate, accepted that a conviction of Section 5A of the MPRDA, is a contravention of Section 98(a)(i), warranting the penalty prescribed in Section 99(a) of the MPRDA viz. a fine not exceeding R100,000 or imprisonment for a period not exceeding two years or to both such fine and such imprisonment. This incorrect approach has its origin the amendment of section 5(4) in 2013. Section 5(4) of the MPRDA was deleted by Act 49 of 2002 amending the Mineral and Petroleum Resources Development Act, effective from 7 June 2013, the same Amendment Act (Act 49 of 2002) deleting Section 5(4), provided for the insertion of section 5A of the MPRDA 28 of 2002 with effect from 7 June 2013.
Findings: The sentence of three years imposed by the court a quo stands to be set aside. The court a quo misdirected itself in sentencing the accused to three years imprisonment, whereas a maximum of six months imprisonment is the prescribed sentence. This misdirection is of sufficient degree and seriousness, that this court is entitled to interfere with the sentence. The appellant admitted three similar previous convictions. The maximum term of imprisonment that can be imposed, is six months and this would be appropriate under the circumstances. As the sentence would be made retrospective from the date of his original sentence, no danger exist that he would serve a further term of imprisonment.
Order: The appeal against sentence is upheld. The sentence of three years imprisonment is set aside. The appellant is sentenced to six months imprisonment, the commencement thereof to run from the date of the original sentence viz. 10 March 2022.
29 November 2024
NKOSI J
CRIMINAL – Corruption – Procurement – Appellant deliberately circumvented legal requirement to comply with procurement processes – Guilt of appellant for fraud was borne out by direct evidence that was led against him by State – Not refuted by appellant – No merit in argument that court a quo made findings which were not supported by evidence or contrary to evidence adduced by State – No misdirection in sentence imposed – Appeal dismissed – Public Finance Management Act 1 of 1999.
Facts and issue: The appellant appeared before the court a quo court on charges of fraud, corruption, money laundering, and contravention of the Public Finance Management Act 1 of 1999 (PFMA). The appellant was found guilty as charged. The sentences imposed with respect to corruption, money laundering, and contravention of the PFMA were ordered to run concurrently with the sentence for fraud, such that the appellant's effective sentence was 15 years' imprisonment. The appellant now appeals to this court in respect of both conviction and sentence.
Discussion: The appellant's grounds of appeal encompass allegations that the court a quo failed to consider the evidence and misdirected itself not only on the points of law, but also by drawing certain inferences purportedly unsupported by trial evidence. The court a quo considered all the material evidence that was led before it during the trial. It is contended by the appellant that none of the witnesses who testified for the State had implicated him in the commission of the offences he was convicted of. The evidence does not support the appellant's contention. The State's evidence demonstrates that the appellant initiated the project to procure Watakas from Intaka Investments (Pty) Ltd (Intaka), of which Dr Savoi is a director. The appellant had deliberately circumvented the legal requirement to comply with the procurement processes in the acquisition of the Watakas by sending an internal memorandum to MEC Mkhize in which he recommended in no uncertain terms that 'an amount of R22m be allocated from the Poverty Alleviation to provide the water purifying equipment to optimise on the benefits from this equipment.'
Findings: The appellant had set the ball rolling by applying his influence at the highest level of the political formation in the province at the time. Thereafter, all he had to do was monitor further developments from the side-lines while he applied undue pressure on Ms Gumbi-Masilela and the subordinate officials in the three departments concerned to see to it that the project came to fruition. It is immaterial that the appellant was not a member of the Cabinet that adopted the resolution to accept the recommendation. It was precisely for that reason that the appellant decided to first approach MEC Mkhize to improperly influence him about the purported urgency and benefits of the Watakas so that MEC Mkhize would convince his Cabinet colleagues to accept the relevant recommendation. Considering the number, the seriousness and the prevalence of the offences of which the appellant was convicted, the trial judge was correct in her statement that she exercised restraint in not imposing upon the appellant a sentence greater than the cumulative sentence of 15 years' imprisonment that was sought by the prosecution.
Order: The appellant's appeal against his conviction and sentence is dismissed.
4 December 2024
PILLAY AJ
CRIMINAL – Fair trial – Re-opening State case – Allowing evidence previously ruled inadmissible – Video and audio evidence – Corruption case against traffic officers – Respondent displayed a lack of insight of role and purpose of litigants and the impact of ruling on right to fair trial procedure – Sought evidence to be led at stage when judgment was to be delivered – Decision to reopen State's case and have inadmissible evidence led is reviewed and set aside.
Facts and issue: The applicants have both brought two separate applications for review. Both applications stem from one criminal proceeding where the applicants are co accused in the Magistrates Court, appearing on a charge of corruption: accepting a benefit. The State led evidence of the allegations and sought, during the trial, to lead audio and video footage to augment same, in proving the guilt of the applicants. This application was opposed by the applicants for various reasons and after hearing argument, the respondent ruled that this evidence was inadmissible.
Discussion: On appearing in court, both applicants and court officials were surprised that instead of judgment being delivered, they were all informed by the respondent that the audio and video footage, was admissible and the State was instructed to proceed and lead that evidence. Both applicants objected to this ruling, but the respondent was clear that the previous ruling could be reconsidered. On the return date, it was clear that the respondent changed her mind, regarding the previous ruling of inadmissibility of certain evidence. This sudden and new decision was taken to include this evidence, without any input from either the State or the defence, concerning the subject matter, to the detriment of both sides. The court a quo in its ruling, acknowledged that there was a misdirection, in respect of the earlier ruling, of the inadmissibility of the evidence of the video and audio. The court then ordered it admissible and instructed that evidence in this regard was to be led by the State.
Findings: The respondent displayed a lack of insight of the role and purpose of the litigants before her and the impact of this ruling on the right to "fair trial procedure", provided for in our Constitution. The fact that the respondent sought this evidence to be led at the stage when judgment was to be delivered, is a clear indication that the respondent now viewed this evidence relevant, to the benefit of the State, in its attempt to secure a conviction against the applicants, based on this evidence. The respondent indicated that the interest of justice warranted the evidence being admitted, without weighing up the prejudice to be suffered by the two applicants based on this decision, at this very late stage in the proceedings.
Order: The applications for review of the decision by the first respondent is reviewed and set aside. The matter is referred back to the Magistrate Court for purpose of trial to start de novo before another Presiding Judicial Officer, should the State elect to prosecute the two applicants in respect of the offence in the future.
26 November 2024
MULLINS AJ
EVICTION – Lease agreement – Existence and form disputed – If there was a written lease the respondent, on his own version, was in breach thereof – Lease validly cancelled – If there was no lease agreement, occupation is per se unlawful – If there was a month-to-month, it was validly terminated – Respondent was in breach of the very agreement upon which he relies – Unlawful occupiers – Respondents ordered to vacate property.
Facts and issue: This is an application in accordance with Prevention of Illegal Eviction and Unlawful Occupation of Land Act, 19 of 1998, for the eviction of the respondents from a property owned by the applicant. The main complaints from the applicant’s side are that the respondent regularly paid the rental late and that he did not pay the municipal account. The main complaint from the respondent’s side was the condition of the property.
Discussion: The applicant’s case as to how the Respondents acquired occupation of the property is contradictory, to say the least. On the one hand a written lease is pleaded, which lease she alleges has been cancelled due to the respondent’s breach thereof; on the other hand, it is alleged that no lease was concluded because the applicant refused to sign; then again, a month-to-month lease is alleged, on what terms it is unclear. On the other hand, the respondent maintains that a written lease agreement was concluded. Ironically, although he relied upon the lease agreement, the respondent’s version of what had been agreed to was equally muddled. While he was adamant that a written lease agreement had been concluded, he disputed, and certainly did not comply with, several of the material terms thereof. That he was in breach of the contract upon which he relies appears from his own version. On any one of the three scenarios, the respondents are unlawful occupiers as defined. If there was a written lease the respondent, on his own version, was in breach thereof and the lease was validly cancelled. If there was no lease agreement the occupation is per se unlawful. If there was a month-to-month, it was validly terminated.
Findings: The respondent was in breach of the very agreement upon which he relies. In the circumstances, the respondents fall within the definition of unlawful occupiers as defined in PIE. Taking all the factors into account in coming to a just and equitable remedy, even although the disputed lease agreement terminates on 31 December 2024, given the time of year the respondent should be given until 31 January 2025 to vacate the property, provided the rental and service charges are paid timeously. In the event of the rent and service charges not being paid, or not being paid timeously, the applicant shall be entitled to immediately obtain the eviction of the respondents.
Order: The respondents are ordered to vacate the property by 31 January 2025.
1 December 2024
LAMPRECHT AJ
EVICTION – Sale by public auction – Long lease – Incumbent on respondents to allege and prove that applicant knew of leases – Knowledge in context of Leases of Land Act evidently implies actual knowledge – Respondent was not empowered to represent Trust when Head Lease was entered into – Not a trustee – Lease invalid – Respondents are unlawful occupiers – Eviction just and equitable – Respondents ordered to vacate immoveable properties.
Facts and issue: Application in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998 (PIE), in which the applicant seeks the eviction of the respondents and all persons occupying under or through them, from the immovable properties. The applicant is the registered owner of the properties. The applicant alleges that the properties are currently or from time to time being occupied by the respondents. The provisions of PIE have been complied with.
Discussion: Where a respondent relies on a right of possession, for instance a lease, the respondent has to allege the right and bears the onus of proving same. Under section 1(2) of the Leases of Land Act, a long lease is not valid against a creditor or a successor under onerous title of the lessor for more than ten years unless the lease is registered, or the creditor or successor-in-title knew of the lease. The onus of proving knowledge is on the lessee. The Head Lease and RAPS lease are long leases within the meaning of section 1(2) of the Leases of Land Act, which were not registered against the title deeds of the properties. Knowledge in the context of the Leases of Land Act evidently implies actual knowledge.
Findings: The respondent was not empowered to represent the Trust when the Head Lease was entered into, as she was not a trustee at the time, and the Head Lease, falls to be regarded as invalid on that basis alone. Consequently, the RAPS lease would also be invalid. The respondents have failed to discharge the onus of proving or of adducing evidence justifying the conclusion that the applicant was aware of either the Head Lease or the RAPS lease when acquiring the properties. The respondents, as well as any persons occupying under or through them, are unlawful occupiers as envisaged in PIE.
Order: The respondents and any persons claiming right and/or all those that occupy the properties, are ordered to vacate the immoveable properties by no later than 31 January 2025, failing which they are to be evicted forthwith.
29 November 2024
TWALA J
INSOLVENCY – Sequestration – Trust – Appeal against dismissal of application for the final sequestration – Whether trust is factually insolvent – Material dispute of fact which cannot be resolved on papers – Vast difference in valuations of properties – Trust submitted an offer to purchase property for R14,000,000 – Creates vast difference in value of movable property as compared to that of sheriff – Failed to establish that Trust was factually insolvent – Insolvency Act 24 of 1936, ss 8 and 12.
Facts and issue: This appeal concerns the judgment of this court dismissing the appellant’s application for the final sequestration of the Trust. The respondents are the joint trustees of the Trust. This appeal is with leave of the Supreme Court of Appeal. The central issue is whether the trust is factually insolvent in that its liabilities exceed its assets, and if so, whether there is reason to believe that it would be to the advantage of the creditors that the trust is sequestrated.
Discussion: The appellant issued a writ of execution against the movable property of the Trust and the sheriff has attached movable property to the value of R188,000 in respect of the Parys property and R20,000 in respect of the Northcliff property. Realising that the value of the attached movable property would be insufficient to satisfy the debt, the appellant proceeded with an application and obtained an order declaring both immovable properties of the Trust especially executable. Both immovable properties of the Trust were placed under judicial attachment. The two judgments remained unsatisfied as a result whereof the appellant launched the sequestration proceedings and obtained a provisional order sequestrating the estate of the Trust. On the return day of the provisional order, the Trust filed its opposition to the order being made final. The Trust averred that its assets far exceeded its liabilities and that it owed the City of Johannesburg an amount of R286,507.98 as opposed to the R1,961,359.99 as alleged by the provisional liquidators. Further, the Trust averred that it owned a database which was worth R64,000,000.
Findings: The difference in the values given to the Parys property create a dispute of fact which cannot be resolved on these papers. The sheriff’s return stands as prima facie evidence unless it is rebutted by the respondent. However, the Trust has submitted an offer to purchase the movable on the Parys property for a sum of R14,000,000 which creates a vast difference in the value of the movable property as compared to that of the sheriff. The court a quo correctly found that, on the papers before the court, the appellant has failed to establish that the Trust was factually insolvent. The issue whether it would be to the advantage of the creditors that the estate of the Trust be sequestrated does not arise.
Order: The appeal is dismissed with costs.
9 December 2024
LAGRANGE J
LABOUR – Suspension – Six month limit – Urgency – Application to uplift precautionary suspension pending outcome of unfair labour practice – Chairperson of enquiry declining to extend suspension – 60 day period of suspension had already lapsed by the time hearing was convened – Could not extend it because it no longer existed – No authority to reinstate precautionary extension – No suitable alternative remedy in form of an unfair labour practice claim – Application struck off roll for lack of urgency.
Facts and issue: This is an urgent application to uplift the precautionary suspension of the applicant, Binza, the chief executive officer of Khayelitsha District Hospital, to permit him to return to work, pending the outcome of an unfair labour practice claim relating to suspension, which he had referred to the relevant bargaining council at the same time as launching this application.
Discussion: Binza argued that his continued suspension subjected him and his family to psychological stress and trauma and diminished his dignity. He also suffers reputational harm in consequence of his suspension. He is confident that a ruling from the bargaining council on his unfair labour practice claim over his suspension will be in his favour. However, he contends that such an award will be a pyrrhic victory because it will not address the harm, which he currently experiences because of the department flouting the policy governing the extension of his precautionary suspension. The department argues that Binza was implicated in misconduct in several disclosures made by a whistle-blower, whom he had allegedly threatened in a meeting. It claims also that several witnesses had come forward to assist the investigation, after he was suspended. In the circumstances, it was concerned his presence at work could possibly undermine and compromise the investigation. It defends its reimposition of Binza’s suspension in the face of the chairperson’s adverse ruling as it contends the chairperson was required to consider whether to extend the suspension and abdicated his role by finding he could not do so.
Findings: On the question of reputational harm, it has been held on more than one occasion that being suspended on a precautionary basis, while prejudicial, is not sufficient to justify permitting an employee to return to work. The employee has suffered no loss of income. The suspension is not extraordinarily long even though it has exceeded the initial 60-day period. Coming to the balance of convenience, just as it is true that any embarrassment or stress suffered of being suspended cannot be completely addressed by an arbitration in due course, neither can any risk of interference by Binza be remedied after the fact, if he is allowed to return. The fear of interference does not appear to be groundless. In the circumstances, the court is not persuaded the balance of convenience favours Binza. The court is not satisfied that Binza does not have a suitable alternative remedy in the form of an unfair labour practice claim which he has invoked.
Order: The application is struck off the roll for lack of urgency.
5 December 2024
REDDY J
PERSONAL INJURY – Malicious prosecution – Probable cause – Public violence, arson and malicious damage to property – Prosecution failed on all 9 counts – Failed to present any evidence to suggest decision to initiate prosecution was good in law – Did not have reasonable and probable cause for suspicion of guilt on which prosecutors were entitled to act – Absence of essential affidavit evidence – No evidence for reasonable person to conclude that plaintiff was probably guilty – Defendant liable.
Facts and issue: The plaintiff, Koji, was arrested on allegations of public violence, arson and malicious damage to property. Whilst on bail, a consolidation of case dockets occurred with Koji eventually being tried in the Regional Court on multiple charges. Koji was found not guilty and discharged. Koji instituted an action for damages, against the National Director of Public Prosecutions, (NPA), for malicious prosecution claiming damages in the sum of R405,000. The parties agreed to a separation of liability and quantum. The defendant pleaded that concerned prosecutors acted with reasonable and probable cause.
Discussion: The NPA initiated the prosecution. Koji was charged with 9 counts on a consolidated charge sheet before the Regional Court. It is irrefutable that the prosecution against Koji failed on all 9 counts. That being so, what falls for determination is whether the NPA acted without reasonable and probable cause and that the NPA acted with malice. A prosecutor need not have evidence establishing a prima facie case or proof beyond a reasonable doubt when deciding to initiate a prosecution. Suspicion of guilt on reasonable grounds suffices. The question is what a reasonable prosecutor would have done considering the information available at the relevant stage. The NPA placed much store on two statements. This was of March and du Plooy. It is undisputable that the statement of du Plooy was incomplete. That being so, it did not constitute an affidavit. The evidence of March failed to cure the date on which his affidavit was commissioned which is indubitably after the prosecution against Koji was instituted. March’s affidavit like that of du Plooy had its own procedural deficiencies, the primary of which was the date on which the statement of March was commissioned.
Findings: Koji was arrested on 20 July 2012. March’s statement was commissioned on 15 August 2012, whilst du Plooy’s statement was not commissioned. By a simple process of lateral reasoning, March’s statement could not have factually been part of the case of the NPA on the date it decided to initiate the prosecution against Koji. The NPA did not have at its disposal at the time it decided to prosecute, reasonable and probable cause in the form of grounds for suspicion of guilt on which the prosecutors were entitled to act. Given the absence of essential affidavit evidence the prosecutors seized with this matter could not have subjectively believed in the existence of reasonable and probable cause. There was no evidence for a reasonable person to conclude that Koji was probably guilty. Kunene and Monare were not seized with any evidence that could have formed reasonable and probable cause at the time of the prosecution. Koji has shown that the NPA acted without reasonable and probable cause and with malice in taking the decision to prosecute.
Order: The defendant is liable to compensate the plaintiff for damages, to be proven during the quantum stage of the trial, in respect of the plaintiff’s claim for malicious prosecution.
4 December 2024
DAFFUE J
PROFESSION – Suspension – Application for setting aside – LPC received several complaints and have been conducting investigations – Several further complaints received after suspension – One attorney found guilty of several charges of misconduct by disciplinary committee but has filed a notice of appeal – LPC ordered to finalise disciplinary processes against attorneys before end of May 2025, failing which suspensions would automatically lapse.
Facts and issue: The applicants apply for the setting aside of their suspension from practising as legal practitioners pending the finalisation of the investigations against them and any subsequent disciplinary proceedings to be instituted. The order of suspension was granted on 26 September 2023. The allegations by the LPC were that the respondents were appointed as directors of the third respondent, at a time when they were not in possession of valid Fidelity Fund Certificates, and that they appear to be acting as directors of the third respondent, which creates a sense of unease and disquiet that requires investigation.
Discussion: Since the suspension application was filed, several new complaints have been forthcoming against the applicants and further investigations are still being conducted. Mr Steenkamp was found guilty by the LPC’s disciplinary committee on several counts of misconduct but filed a notice of appeal. Consequently, he has not yet been sanctioned. Neither Mr Coetzee, nor Mr Steenkamp is in possession of a Fidelity Fund Certificate (FFC). Section 84 of the Legal Practice Act places an obligation on every attorney who practises for their own account and any director of a practice which is a juristic entity to be in possession of a FFC and no such legal practitioner or a person employed or supervised by that legal practitioner may receive or hold funds belonging to any person, unless the legal practitioner is in possession of a FFC. Section 93 of the LPA stipulates that any person who contravenes s 84 in rendering legal services commits an offence and is liable on conviction to a fine or imprisonment for a period not exceeding two years, or to both such fine and imprisonment.
Findings: The LPC cannot be allowed to drag their feet to the detriment of the applicants who are entitled to finality. Their professional and personal lives are at stake. Notwithstanding Adv Greyling and Mr Coetzee’s submissions that the suspensions should be set aside now, court is not willing to accede to their request. There appears to be sufficient bright red lights that stand in the way of granting relief to the applicants. It is prudent to grant the LPC a final opportunity to get their proverbial ducks in a row. If finality is not reached by 31 May 2025, the suspensions shall lapse automatically.
Order: The first respondent shall finalise its disciplinary proceedings against the applicants on/or before 31 May 2025, failing which their suspensions shall lapse automatically.