TODAY'S ALERTS

Facts and issue: Application brought by the Assistant Master of the High Court, Pretoria for permission to exceed the statutory cap determined by the Minister of Justice vis-à-vis the payments made to a minor child for her maintenance and education out of monies standing to her benefit in the Guardian’s Fund. The application is brought in terms of the provisions of s96(2), as read with s90(1), of the Administration of Estates Act 66 of 1965. Thus far, the Master has paid out an amount of R246,259.78 from the capital and R629,838.92 from the interest, a total amount of R876 198.70 since 2013. NS (mother and guardian) has now sought payment of an amount of R108,444 for school fees for RN (minor child).

Discussion: Whilst the amount has not yet exceeded the R250,000 threshold set by the Minister in 2014, it will soon do so. The child’s monthly maintenance requirement is R23,200. That equates to R278,400 for 2024 alone. Additionally, the school fees for 2024 are R108,444. That brings the total to R386,844, which amount far exceeds the R250,000 cap. The master submitted in his report that it is almost impossible to predict how much he would need to pay for the expenses of the minor in future. She is currently in grade 6. The minor requires an allowance, money for all his school needs, as well as other expenses which need to be covered. There can be no rough estimation of these funds as they differ from year to year. The minor will require further assistance with the funds still in the Guardian’s Fund in the future. The master states that the approach in the Ex Parte The Master: In re van Onselen 1961 (3) SA 182 (E) and In re Estate Simmonds 1969 (1) SA 43 (N) cases be preferred as it would cause administrative disarray if the master were to approach the Honourable Court each time that he may be requested to make further payments from the capital amount.

Findings: The court is of the view that the approach adopted in Van Onselen and Simmonds, is appropriate. The past disbursements made have been considered and regard had to the school fees and monthly maintenance needs of the minor child. The Master’s hands have been tied and the potential prejudice to the child enormous. The Master is, and has been, acting in the best interest of the child, and to ensure that the child suffers no further prejudice.

Order: The Master is authorized to use for the proper maintenance and education for the minor, RN, so much of the funds standing to the minor’s credit in the Guardian’s Fund as may exceed R250,000.

Facts and issue: The applicant (MVC) sought a rule nisi calling upon any interested person to show cause why an order in the following terms should not be made final: the finalization of proceedings to declare sections 29(g) and (h) of the Electoral Matters Amendment Act, 14 of 2024) (EMAA) and amended regulations 7(1) and 9 of schedule 2 to the Political Parties Funding Act, 2018 (PPFA) inconsistent with the Constitution and invalid; the determination of the upper limit in the amended regulation 7(1) of schedule 2 of PPFA and the disclosure threshold in the amended regulation 9 of schedule 2 of the PPFA.

Discussion: The issue raised by MVC was whether the upper limit and the disclosure threshold survived the EMAA. MVC’s case was that EMAA removed the R15 million annual limit on donations a political party may receive from a single donor, and the R100,000 thousand threshold over which individual donations to political parties must be disclosed. MVC’s argument was that there was since 8 May 2024 no upper limit and disclosure threshold and that political parties could now receive these amounts without disclosing this to the public. It is against this premise that MVC sought an interim interdict that would revive the upper limit and the disclosure threshold. The new Regulation 7 and 9 came into operation on 8 May 2024. In other words, the substituted provisions came into operation. The old regulations have been repealed and substituted. The upper limits and threshold have been repealed.

Findings: The legislation, the PPFA, since the amendment through the EMAA, no longer has the upper limit and the disclosure threshold. It seems to me that by the time section 27(5) came into operation, the R15 million in regulation 7 and the R100,000 in regulation 9 had already left the stable, and the National Assembly had to pass a resolution, and the first respondent had to determine the amounts in the respective regulations. Section 27(5) upon which the third respondent relied may save the day in each regulation in schedule 2 from 8 May 2024, but not before then. The applicant has established a prima facie case. The court is not making an order of constitutional invalidity, and it follows that the court cannot rely on section 172(2)(b) to grant the temporary interdict which the applicant prayed for, pending the return date.

Order: The issue of a rule nisi is authorized.

* See My Vote Counts NPC v President of RSA [2024] ZAWCHC 205 for the judgment on the return date of the rule nisi.

Facts and issue: This is a claim founded on interim payment certificates arising from a building contract concluded by the applicant (Alto) and the respondent (Wingtip). Alto claims payment in the amended sum of R7,022,117.72 against Wingtip in terms of six interim payment certificates that were issued and signed by the quantity surveyor and certified by Wingtip’s duly appointed principal agent. Wingtip is resisting the claim.

Discussion: Wingtip contends seemingly in limine, that the application should be stayed pending referral of the matter to arbitration as the dispute between the parties is an arbitral dispute, placing reliance on the provisions of clause 40 of the agreement dealing with settlement of disputes. Wingtip’s reliance on the provisions of clause 40.1 is in the circumstances misplaced. From a proper construction of clause 40.1, the referral to arbitration must be preceded by either Wingtip (as employer) including the principal agent and/or the quantity surveyor giving Alto (as the contractor) notice to resolve the disagreements or vice versa. No such notification was given by any of the parties. In terms of clause 40.2, a dispute is deemed to exist only in the event where such disagreement is not resolved within ten days from the date of receipt of the notice. In the absence of such notification, no referral to arbitration of a “dispute” as so deemed in clause 40.2 could occur.

Findings: The “disputes of fact” on which Wingtip relies do not constitute real, genuine and bona fide disputes of fact within the ambit of payment certificates, with the attendant consequence that Wingtip’s contention in this regard is untenable. Wingtip does not contend that its agents acted fraudulently or exceeded their authorities or colluded with Alto in issuing, signing and approving the payment certificates. The purported “dispute of facts” or “defences” so raised by Wingtip being not real, genuine or bona fide, are in the circumstances untenable. They do not constitute sustainable defences in challenging or disputing the payment certificates.

Order: The respondent (Wingtip) is ordered to pay the applicant the sum of R7,022,177.72.

Facts and issue: The bill of costs forming the subject matter of the taxation arises from the review application initiated by Ms. Dunywa against Mr. Gqomo. The applicant served a “Notice in terms of Rule 48” on the taxing master, calling upon her to state a case for the decision of a judge regarding her decision to refuse to attend to the taxation which was set down for 26 April 2024.

Discussion: The bill to be taxed granted in his favour along the way evidently itself is the subject of a complaint lodged by Ms Dunywa with the Legal Practice Council (the Council) against Mr. Gqomo or his attorneys, and representations were made to the taxing master when the bill first came before her for taxation that the process should not be proceeded with in the light of that complaint and pending its resolution by the Council. The taxing master ruled that the bill is to be taxed after the outcome of that complaint. Mr. Gqomo sought to sidestep the taxing master’s ruling by terminating his mandate to his attorney, disavowing that the latter had acted on his instructions in compliantly awaiting the resolution of the complaint by the Council. At a taxation on 26 April 2024 the issue of the pending complaint was successfully raised again with the taxing master and she informed Mr. Gqomo that the taxation will not be proceeded with until the disciplinary hearing has been finalized by the Council.

Findings: The taxing master has determined it necessary to await the outcome of the Council’s decision in respect of the complaint. There is no overreach in that or avoidance of her obligation to tax the bill. Further, the attorneys whose bill it is has evidently acquiesced in her earlier ruling to await the outcome of the Council’s disciplinary process. Mr. Gqomo has not been candid about the fact that the taxing master already made a ruling which is certainly not tantamount to a refusal by her to tax the relevant bill of costs.

Order: No order is made on the application and since it is a putative review, no order is made as to costs.

Facts and issue: The appellant was arraigned in the Regional Court on a count of rape. The charge alleged that the said accused did unlawfully and intentionally commit an act of sexual penetration with a female person, the complainant, who was seven years old, by inserting his penis into her vagina without her consent. The appellant pleaded not guilty but was convicted as charged and was sentenced to life imprisonment. The appeal is in respect to conviction and sentence. The crisp issue is one of identity.

Discussion: The complainant contradicted herself and stated that she always saw him fixing the gate, yet later she stated ‘it was the first time’. Her answers were confusing as she stated that it was the security man at the gate who is always there. Then she cleared this up and said it is not the security man who came to fix the gate. A very important part of her evidence was that she said it is ‘the one who wears glasses, the white guy’. Neither the State prosecutor, the defence attorney or the court a quo cleared this up. Nowhere in the court record can one establish if this appellant in fact wears glasses or not. It is unclear why the complainant was never asked to attend an identification parade. There was no corroboration in the form of identity and the court a quo erred by diluting the weight of the contradictions in the State’s case. The reliability of the complainant's observation remains of paramount importance. She could not recall any features of the perpetrator. Considering the contradictions, the evidence of the complainant was unreliable.

Findings: The appellant's version that Isaac and himself attended at the property, repaired the gate and left thereafter together was not broken down by the State prosecutor. The finding by the court a quo that the appellant’s version was improbable, is incorrect. The State did not prove the guilt of the appellant beyond reasonable doubt, and the court a quo incorrectly rejected the version of the appellant as not being reasonably possibly true. The court a quo materially misdirected itself in assessing the evidence and erred in rejecting the appellant's version.

Order: The appeal in respect to conviction is upheld. The conviction and sentence are set aside.

Facts and issue: The applicant, TUHF, and the respondent, Mr. Farber, are presently engaged in litigation arising from finance agreements. There are several cases in which TUHF has sought to realise its security and has obtained judgment against Mr. Farber or the companies he controls for the amounts outstanding under the various agreements. TUHF obtained two judgments against Mr. Farber. Neither of these judgments has been satisfied. TUHF instituted these proceedings, in which it seeks a provisional order of sequestration against Mr. Farber.

Discussion: TUHF despatched the Sheriff to Mr. Farber’s home with instructions to execute against Mr. Farber’s assets. The Sheriff’s return records that Mr. Farber was able neither to satisfy the judgment nor to point out movable or immovable assets which could be attached to satisfy the full amount due under it. Section 8 (b) of the Insolvency Act 24 of 1936 provides that Mr. Farber commits an act of insolvency if “a court has given judgment against him and he fails, upon the demand of the officer whose duty it is to execute that judgment, to satisfy it or to indicate to that officer disposable property sufficient to satisfy it, or if it appears from the return made by that officer that he has not found sufficient disposable property to satisfy the judgment”. This is exactly what happened when the Sheriff visited Mr. Farber’s home.

Findings: The act of insolvency defined in section 8 (b) of the Act has been established. It seems at least prima facie, to be to Mr. Farber’s creditors’ advantage that the affairs be interrogated with the aim of establishing exactly what is available to satisfy Mr. Farber’s proven and substantial indebtedness. Provided that there is some prospect that such an investigation will uncover assets that can be liquidated to pay his debts, Mr. Farber’s provisional sequestration will advantage his creditors in at least this sense.

Order: The respondent and any other interested party are called upon to advance reasons why the respondent ought not to be finally sequestrated at 10h00 on Monday 25 November 2024, or as soon thereafter as counsel may be heard.

Facts and issue: Application by the Prudential Authority for the provisional sequestration of the respondent's estate in terms of sections 83(3)(b) as read with 84(1A)(c) of the Banks Act. The allegation is that the respondent has committed an act of insolvency as contemplated in terms of section 83(3)(b) of the Banks Act further read with section 8 of the Insolvency Act 24 of 1936.

Discussion: The conduct constitutes “bank business practice”, which was done by the respondent without being registered as a bank, nor authorised as envisaged in section 18A(1) of the Banks Act and Mutual Banks Act. In terms of section 11(1) of the Banks Act, “no person shall conduct the business of a bank unless such person is a public company and is registered as a bank in terms of this Act”. Business of a bank includes conduct such as the acceptance of deposits from the public as a regular feature of the business in question. The respondent willingly participated in the TVI Scheme and her participation constituted the unlawful conducting of the business of a bank, thus contravening the Banks Act. The amounts obtained were not repaid to the persons that deposited those amounts.

Findings: The applicant's claim is not disputed by the respondent on reasonable and bona fide grounds. Self-evidently, the machinery of the Insolvency Act is accordingly more advantageous to creditors than trial procedure on these facts. Considering the uncontested claim and the failure by the respondent to pay the monies deposited into her bank accounts, a provisional trustee will be able to clarify this by way of an enquiry, far much speedily than the institution of action proceedings. The sequestration of the respondent may well result in the proceeds being brought back into the estate for the benefit of the applicant and general body of creditors.

Order: The estate of the respondent is placed under provisional sequestration in the hands of the Master of the High Court of this Division.

Facts and issue: Appeal against an order granted by the learned Regional Magistrate in an action, dismissing the appellant’s claim and granting the respondent’s counterclaim. The appellant issued summons in the Regional Court for payment in respect of security services rendered by it to the respondent, pursuant to a written agreement. The appellant was not at any material time a registered security service provider in terms of the Private Security Industry Regulation Act 56 of 2001. Therefore, the respondent said, it was not obliged to give effect to the agreement.

Discussion: The learned Regional Magistrate thoroughly considered the aspect of ‘control’ of one company or close corporation over another, and, based on the principle that only a natural person may be a member of a close corporation, he concluded that Millennium could not exercise control over the appellant. Consequently, the magistrate concluded that the appellant was not entitled to provide security services for a fee without being registered in terms of the Act. The purpose of the Act can only be achieved if the person who actually renders the security service is registered, and any other interpretation does not do justice to the purpose of the Act. The enquiry is therefore not about who controls the appellant, but about whether the appellant was rendering a security service. Once it is established that the appellant rendered a security service for renumeration, which it admits it did, it follows then that it ought to have been registered.

Findings: The agreement was invalid by virtue of the fact that the appellant rendered security services for renumeration without being registered in terms of the Act. Section 38 (3) of the Act provides that any person who does not comply with section 20 is guilty of an offence. Therefore, the agreement is not only invalid, but also illegal. A contract that is invalid is void ab initio and can confer no right of action. The appellant is not entitled to claim performance in terms of an illegal contract. The appellant is not entitled to retain what it has received pursuant to the illegal contract.

Order: The appeal is dismissed with costs.

Facts and issue: The plaintiffs claim damages from the defendant on the ground that they were unlawfully arrested and detained by police officers acting within the scope of their employment with the defendant. The claim arises out of their respective arrests, both of which were without a warrant, pursuant to an incident involving protest action. The police were deployed on scene of the protest. On arrival, the group to which the first plaintiff was aligned started throwing stones and bottles at the police officers. The first plaintiff was spotted by Sergeant Mooka as one of the people that was pelting stones and bottles at police officers.

Discussion: Sergeant Mooka was focusing on the first plaintiff whilst the first plaintiff threw a bottle at him. He charged at the first plaintiff and apprehended him. According to Sergeant Mooka, other protesters were arrested by other police officers. Sergeant Mooka’s evidence shows that he harboured a suspicion based on his observations during the protest action. When he observed the first plaintiff throw a bottle at him, Sergeant Mooka formed a reasonable suspicion that a Schedule 1 offence had been committed. He has satisfied the jurisdictional requirements in respect of the arrest of the first plaintiff. In relation to the location at which the plaintiffs were arrested, it is useful to consider the documentation that was completed by the police officers relating to the arrest, together with the evidence given at the trial. In these documents, it is stated that at the time of his arrest the first plaintiff was unemployed and that both plaintiffs had no signs of, nor did they report any form of assault. This documentary evidence supports Sergeant Mooka’s oral evidence that the plaintiffs were not assaulted.

Findings: The evidence of Sergeant Mooka is preferred over that of the plaintiffs. The plaintiffs’ evidence is materially contradicted. It is highly improbable that the police officers would leave people who are protesting to go to the plaintiffs’ homes and arrest them for no apparent reason. The evidence of the first plaintiff that he had been working night shift and that he had just arrived home when a group of men stormed his house is implausible. The defendant has proved on a balance of probabilities that both plaintiffs were in the protest action. The conduct of the police officers was reasonable and justified in the circumstances.

Order: Both the plaintiffs’ claims against the defendant are dismissed with costs.

Facts and issue: The applicant is a clearing agent, and it was alleged that, in respect of 67 consignments of imported goods, it could not sufficiently account for the successful exporting thereof. SARS accordingly demanded payment from the applicant of some R14 million of import duties and payment of some R20 million comprising of interest, penalties and forfeiture amounts. The applicant seeks to have the decision to issue the demand reviewed and set aside.

Discussion: The matter relates to RIT documentation prepared by the applicant and submitted to SARS. Part of SARS’ case against the applicant was that it had failed to keep and furnish records in terms of section 18(3) of the Customs and Excise Act 91 of 1964 to show that goods cleared by it as RIB or RIT have subsequently been exported out of the country. On the evidence presented, this claim was clearly substantiated. The fact that the applicant could not, even after the launch of the application prove the exporting of all but two of the consignments (which was in one instance even only done after the fact) confirms that SARS’ impugned decision was therefore both rational and factually correct.

Findings: The failure by the applicant to produce acquittal documents after the notices of intention to raise a debt had been issued also indicate that the release of liability as provided for in section 99(2) of the Act had not occurred. Although the applicant sought to rely on this section, it had not produced any evidence that it had taken all reasonable steps to prevent non-fulfilment of the exporting requirements or that it had reported to the customs controller any such non-fulfilment, as required by the section. As a clearing agent, the applicant’s liability incurred upon importation of the diesel therefore never terminated.

Order: The application is dismissed with costs.