Facts: The Bankenveld Golf Estate is a substantial upmarket housing development on the banks of the Witbank Dam, Emalahleni, Mpumalanga. The development consists of two residential estates, which are divided by a privately owned golf course, where wildlife roam free. However, all is not well. The cause of the complaint is the dysfunctionality of two sewage reclamation plants (the plants). The plants were designed to process sewage and to provide recycled water for irrigation but have fallen into disrepair after years of neglect and inadequate maintenance. The malfunctioning plants not only cause inconvenience and health risks for homeowners but also pose a serious threat to the environment, due to the danger of contaminated water discharging into the dam.

Appeal: The Bankenveld Homeowners Association (Bankenveld HOA) approached the High Court seeking an order directing the developer, Elmir Projects, and the municipality to provide sanitation services, “which are compliant to all legislation”. The High Court held both the municipality and Elmir jointly and severally responsible for the provision of sanitation services to the Bankenveld Estate, including the operation and maintenance of the plants.

Discussion: Elmir’s proposed development included close to 1,000 residences, an exclusive golf course, country club, hotel, golf driving range, a Primary and High School “with all associated infrastructural services”. Elmir’s contention that either the municipality or the Bankenveld Golf Estate Property Association had assumed responsibility for the operation and maintenance of the plants can readily be dismissed. There is compelling evidence that Elmir has been operating the plants for some 15 years after their completion, albeit in an unsatisfactory manner. The township establishment conditions were proposed by Elmir, well-knowing that the municipality’s existing sanitation infra-structure was over-extended and that it did not have the financial resources to pay for the construction of the plants or to fund their continued operation and maintenance. Elmir was also aware that the development would not have been approved, if it did not accept the responsibility for the services.

Findings: Elmir expressly undertook to construct and operate the plants. It is for this reason that the application was approved subject to the condition that the activated sludge water reclamation should be installed and operated in a functional condition at Elmir’s costs. The conditions were imposed by the municipality in terms of section 98(2) of the Town-Planning and Townships Ordinance 15 of 1986, which provides that “(w)here an authorised local authority approves an application in terms of subsection (1), it may impose any condition it may deem expedient”. Because the municipality was clearly exercising a public power in terms of empowering legislation, that decision constitutes administrative action as defined in section 1 of the Promotion of Administrative Justice Act 3 of 2000. Those decisions remain valid and effectual until set aside by a competent court. The municipality accepts its constitutional obligation to supervise Elmir’s compliance with the township establishment conditions.

Order: Elmir’s appeal is dismissed. The municipality’s appeal is upheld. The order of the High Court is replaced with an order such that Elmir is liable to provide sanitation services to the Bankenveld Golf Estate, including the operation and maintenance of the activated sludge water reclamation plants, at its own cost, and to the satisfaction of the municipality.

SMITH JA (PONNAN JA, SCHIPPERS JA, NICHOLLS JA and MANTAME AJA concurring)

Facts: As the owner of four units in the St Tropez sectional title scheme, Mr Singh was liable to pay levies to the body corporate. As a result of his persistent failure to pay levies, the body corporate had obtained several judgments against him in the magistrates’ courts. The body corporate applied for Mr Singh’s sequestration in the High Court. Mr Singh made submissions in an effort to persuade the court that the matter should not proceed on an unopposed basis. Unpersuaded, Mokose J granted the provisional sequestration order on the strength of the unopposed averments in the body corporate’s founding affidavit.

Appeal: Mr Singh filed an application for leave to appeal against the order. He listed several grounds of appeal. This court is only concerned with one, this being an averment that Mokose J had failed to disclose that she had a conflict of interest in the matter and to recuse herself from the application for his sequestration. The application for leave to appeal was heard by Mokose J and dismissed.

Discussion: Mr Singh owns a property in Upper Houghton and the Serai Family Trust is the owner of two other units in the same Upper Houghton sectional title scheme. Critically, Mokose J is a trustee of the Trust. Moreover, between 2008 and 2016, Mokose J was the Chairperson of the Upper Houghton Body Corporate. In her role as Chairperson, Mokose J deposed to a replying affidavit in High Court proceedings in 2016 in which the Upper Houghton Body Corporate instituted an application against Mr Singh. In those proceedings he was cited by the name Rajamooni Lunesh. After the hearing of the sequestration application, Mr Singh lodged a complaint against Mokose J on the grounds of conflict of interest. Shortly before the appeal was heard and, after this court had made inquiries with the Judicial Conduct Committee, a copy of the report was made available. it records a finding that Mr Singh’s complaint was well-founded and that a reprimand of Mokose J by the Chair of the Judicial Conduct Committee was justified.

Findings: The body corporate applied for Mr Singh’s sequestration, which required Mokose J to consider whether this would be to the advantage of creditors. Mokose J is a trustee of the Trust that, like Mr Singh, owns property in the Upper Houghton sectional title scheme. The Trust is a member of the Upper Houghton body corporate, an entity that previously litigated against Mr Singh. On these facts, the Upper Houghton body corporate potentially falls into the class of creditors that could possibly benefit from Mr Singh’s sequestration. Consequently, and considered objectively, it might be said that Mokose J had an interest, albeit not a direct or personal interest, in the outcome of the sequestration application. The JCC report, taken together with the other considerations, is sufficient to tip the scales in favour of a finding that Mokose J ought not to have heard the application. A case for her recusal is properly established.

Order: The appeal is upheld. The order of the High Court provisionally sequestrating the estate of the appellant, Mr Singh, is set aside. The sequestration application is remitted to the High Court for consideration by a differently constituted court. The costs of the appeal are reserved for determination by the High Court.

KEIGHTLEY JA (PONNAN JA, MOKGOHLOA JA, HENDRICKS AJA and NAIDOO AJA concurring)

Facts and issue: Urgent application for an interdict enforcing a restraint of trade agreement entered between the applicant and the first respondent (Maltitz). The applicant’s business involved the sourcing and supplying of natural stone products, including cladding and tiling, to the construction industry. Maltitz signed a restraint of trade agreement, but its validity is contested. The agreement was meant to protect the rights and interests of the applicant with regards to the activities of its business by imposing a restriction on Maltitz upon the sale of the shares to Moore Lake.

Discussion: The applicant submits that Maltitz breached the restraint undertakings and that this has left the applicant with no option but to protect its rights by enforcing the undertakings given by Maltitz in terms of the agreement. Maltitz admits that she signed and concluded a restraint of trade agreement with the applicant. However, she contends that the applicant’s attachment of an unsigned copy of the agreement in its founding affidavit, followed by the subsequent production of a fully signed copy, signed on behalf of the applicant, indicates that the contract was not validly executed between the parties. The applicant denies this allegation. According to the applicant, it has a prima facie right that must be protected. The applicant further argues that it is not open to Maltitz to deny that a restraint of trade agreement was validly entered into and points out the contents of the letter emanating from the Maltitz’s attorneys and addressed to the applicant’s attorneys. There is no doubt that a protectable interest exists because at the time of sale, the parties involved decided that, amongst others, restraint of trades were going to be part of the agreement.

Findings: There is goodwill attached to the applicant because of the number of years the Maltitz’s have been involved in the business and having caused various trademarks to be registered. The very nature and purpose of concluding restraint of trade agreements is to ensure that owners of new businesses can be protected from competition by the sellers of the same business. Maltitz appears to have been involved in the business activities of the second respondent, after the conclusion of the restraint of trade agreement. It is noteworthy that Maltitz has chosen to oppose a matter which, in her own words, cannot adversely affect her because according to her, she does not have any interest in the industry that she was previously involved in when she was part of the applicant. The applicant has succeeded in demonstrating that it has a legitimate protectable interest which deserves protection.

Order: The interim interdict is granted in favour of the applicant.

Facts and issue: The applicant was employed by the respondent employer at Botanical Gardens as a specialist machine operator and was also a shop steward. He was dismissed after having been found guilty of engaging in an unlawful money-lending scheme at work. In her award, the commissioner found the applicant’s dismissal substantively and procedurally fair. The applicant now seeks to review that decision.

Discussion: The applicant’s case on review is limited to the issue of guilt on two narrow grounds. Firstly, it is contended that the commissioner acted irregularly in relying on hearsay evidence in finding him guilty. Secondly, it is contended that the commissioner acted unreasonably in finding that he had engaged in an unlawful money-lending scheme, when he had (allegedly) simply engaged in a stokvel. The employer did not offer any direct evidence of the applicant’s participation in an illegal money-lending scheme, with both the whistleblowing report and the Mazars’ forensic report not having implicated him; the “only evidence” that served to convict the applicant was the evidence that Mr Zola had implicated the applicant at his disciplinary inquiry; but this was inadmissible hearsay, and ought to have been disallowed by the commissioner. There is no merit in this. Although the commissioner refers to Mr Zola’s revelation in her summary of Mr Mutshinyalo’s evidence, she took no account of it in finding that the applicant was guilty. The applicant’s culpability was, in effect, decided on his own version by the commissioner. That version included an admission by the applicant that he was a member of a stokvel together with Mr Zola.

Findings: Even if the money-lending scheme was somehow not in breach of the National Credit Act, the commissioner’s decision to uphold the applicant’s dismissal would, nevertheless, have been reasonable. For the duration of 2017, the applicant participated in the money-lending scheme at work, with fellow employees apparently having been charged exorbitant interest rates, and there was evidence of it having caused disruptions to the workplace. Although it might be considered harsh, a decision to the effect that this constituted serious misconduct warranting dismissal, nevertheless, falls within a range of reasonableness, and is thus not reviewable.

Order: The review application is dismissed.

Facts: The two employees, Mr Mutele and Mr Mulaudzi, were the appellant’s driver/salesman and delivery assistant, respectively. They came across a Coca-Cola truck that had lost its load on a motorway. Passers-by and other people descended on the Coca-Cola truck and helped themselves to the bottles of Coca-Cola on the ground and the truck. The two employees were charged with having stopped their vehicle (branded SASKO) at the scene and taking part in the looting, thereby putting the appellant’s name into disrepute. The appellant relies on a report in the Daily Sun Newspaper, social media posting on Facebook and the Citizen Newspaper. The Daily Sun reported that a “Sasko Truck” driver was seen running from his truck to help himself to a few drinks that he took back to his truck. The appellant was able to identify the truck and its drivers from the photographs included in the article. The appellant’s evidence was entirely based on these reports.

Appeal: This is an appeal against the whole of the judgment and order of the Labour Court. The appellant contends that the Labour Court ought to have reviewed and set aside the arbitrator’s award in which the arbitrator found that the dismissal of the two employees was substantively unfair. The appellant contends that the arbitrator misinterpreted the law pertaining to hearsay evidence and incorrectly allowed such evidence outside the parameters of section 138 of the Labour Relations Act 66 of 1995.

Discussion: The appellant relied on newspaper and Facebook hearsay evidence without having laid the basis for admission of such evidence. The commissioner had alluded to double hearsay as it was not clear whether the reports and the Facebook posts were themselves based on hearsay evidence or whether the authors were present at the scene. The court drew an adverse inference because the Coca-Cola driver was not called to testify, and no explanation therefore was given by the appellant. The court found that the arbitrator did not err in not rejecting the evidence of the employees as not being reasonably and probably true in the circumstances where it was uncontroverted. The appellant alleges that in this case, there was a denial of full cross-examination, unfair interventions by the arbitrator and an undue favourable disposition towards the employees. These complaints have been demonstrated to be unfounded. The commissioner has not denied the appellant a fair hearing.

Findings: On the complaint of not admitting hearsay evidence, the arbitrator had no obligation to consider the admission of hearsay evidence without an application for such admission. It is unnecessary to consider whether the newspaper and Facebook articles would have been admissible. The appellant concedes that the newspaper and Facebook evidence it presented is hearsay but contends that the arbitrator should have applied section 3(3) of the Law of Evidence Amendment Act 45 of 1988 and found it to be in the interests of justice to admit such evidence. In the absence of a foundation having been laid for the admission of hearsay evidence in terms of the Act, the appellant’s evidence was properly rejected. The Labour Court correctly found no bias on the part of the commissioner. The appellant’s contention in respect of reasonable apprehension of bias also must be based on objective facts. The test for the reasonable apprehension of bias is objective. The Labour Court correctly held that the arbitration is not reviewable.

Order: The appeal is dismissed.

MALINDI AJA (MOLAHLEHI DJP and SMITH AJA concurring)

Facts: The current matter concerns employees at BMW's Rosslyn plant. NUMSA is a recognised trade union in BMW, having close on 2,000 members. The matter arose from more than 500 employees being charged (or in the process of being charged) by BMW for fraudulent medical aid claims made against BMW’s Employee Medical Aid Society (BEMAS). In this regard, the disciplinary processes relating to these charges began and is still ongoing. BMW had amended its disciplinary code to allow for a more flexible and attenuated disciplinary process. It was undisputed that BMW had the right to amend its disciplinary code to allow for such a kind of process. BMW has commenced disciplinary proceedings against approximately 224 employees, with many more to come. BMW has stated that in respect of all the employees charged and subjected to disciplinary proceedings, the sanctions of dismissal are not a foregone conclusion, and each chairperson has a discretion to recommend a sanction. NUMSA complained that it was not in possession of all the charge documents relating to its members, and that BMW had the duty to first provide it with the same. BMW was willing to accommodate NUMSA’s request by providing it with further information it asked for.

Application: The parties remained at odds surrounding the issue of the alleged shortcomings in the charge documents, and whether the attenuated disciplinary process embarked upon by BMW was per se fair or unfair. The upshot was that BMW indicated that it would continue with the disciplinary process, and that if NUMSA was dissatisfied, it was free to pursue whatever legal remedies it deemed appropriate. The current urgent application then followed. The applicant asked for final relief in a variety of forms. First, the applicant sought declaratory relief to the effect that the attenuated disciplinary process being conducted by the respondent involving its members is unfair. Second, the applicant seeks to interdict the respondent from proceeding with this attenuated disciplinary process. And third, the applicant seeks an order that the respondent be compelled to "follow a fair disciplinary process", whatever that may mean.

Discussion: NUMSA wants the court to intervene in incomplete disciplinary proceedings conducted against its members by BMW. It does so on the basis that it contends that such disciplinary proceedings are grossly unfair and would deprive its members of a proper opportunity to state their case prior to dismissal. The point is that NUMSA is asking for this intervention, because it believes its members are staring an unfair dismissal in the face. The complaint by NUMSA is squarely founded on the attenuated disciplinary proceedings that BMW had chosen to apply in this case, relying on a recent amendment of its disciplinary code. NUMSA does not dispute that BMW was entitled to amend its disciplinary code, so this issue need not be decided now. The live issue is however that the attenuated disciplinary process adopted by BMW pursuant to such disciplinary code, is contended by NUMSA to be unfair. NUMSA must demonstrate the existence of exceptional circumstances. The court will only entertain applications to intervene in uncompleted disciplinary proceedings in truly exceptional circumstances crying out for intervention and if material irremediable prejudice or grave injustice is shown to exist. NUMSA dismally failed to establish this. None of the grounds of complaint raised by NUMSA, even as they stand, show the existence of exceptional circumstances. There is nothing special, unique, or exceptional about the complaints, nor is there any grave injustice that would justify urgent intervention by the court.

Findings: Insofar as the attenuated disciplinary process itself is concerned, there is nothing in law that compels BMW to hold an in person and oral disciplinary hearing before deciding to dismiss an employee. The evidence showed that there was more than 500 employees of BMW that were involved in the misconduct relating to making the fraudulent claims, and as a result needed to be disciplined. To hold a formal in person disciplinary hearing for each one of them, considering that the facts in each case would be different, is an untenable proposition, and will severely compromise the requirement of expeditious dispute resolution. What the applicant is in essence asking the court to do is to micro-manage internal disciplinary proceedings in an individual employer (respondent), whilst such proceedings are still ongoing. The applicant does this despite the plethora of authorities indicating that as a matter of principle, such kind of intervention is not appropriate and should be discouraged. The continuous failure by litigants to heed the numerous warnings by the court where it comes to these kinds of applications, which is effectively what NUMSA has done in this instance, must be visited with adverse consequences. It constitutes an abuse process to pursue a case which is for all intents and purposes hopeless. This is a situation where a costs order against NUMSA was earned and justified.

Order: The application is dismissed. NUMSA is ordered to pay BMW’s costs on the opposed party and party Scale C.

SNYMAN AJ

Facts: This matter concerns a long history of disputes between two neighbours. The events that triggered this litigation occurred when the applicant accessed the second respondent’s (Green’s) confidential credit records, by using a colleague’s login details to the Law Data System of TransUnion. The applicant accessed this information without the consent and knowledge of Green, which is a pre-requisite for obtaining such access. The applicant at first denied accessing the confidential records, but later admitted doing so. Green laid a criminal charge of contravention of section 86(1) of the Electronic Communications and Transactions Act 25 of 2002 (ECTA) against the applicant. Green requested from the DPP copies of correspondence between the applicant and the DPP on the representations made on behalf of the applicant, a copy of the docket in the matter and the certificate of nolle prosequi (the certificate). The certificate is issued in terms of section 7 of the Criminal Procedure Act 51 of 1977. Green’s attorney applied for a reissue of the certificate, with the inclusion of an additional charge of defeating or obstructing the administration of justice, which certificate the Acting DPP re-issued. The summons commencing the private prosecution proceedings was issued and the applicant was served with it.

Appeal: Application for leave to appeal the judgment and order of the Western Cape Division of the High Court. The High Court dismissed with costs, an application for a frontal challenge to the institution of the private prosecution against the applicant and refused to grant the applicant leave to appeal. The applicant turned to this court on petition for leave to appeal. The court issued an order in terms of section 17(2)(d) of the Superior Courts Act 10 of 2013, that the application for leave to appeal be referred for oral argument. The order further stated that the parties must be prepared, if called upon to do so, to address the court on the merits.

Discussion: The appellant contends that the issuing of the section 7 certificate as provided for in section 7(2)(b) is administrative action, as defined in section 1 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). He further contends that the issuing of the certificate as an administrative decision, must adhere to the prescripts of PAJA, which require the decision to be lawful, reasonable and procedurally fair. The certificate is a document of a formal nature, which may be produced as evidence of a decision that the DPP declines to prosecute. Therefore, a distinction should be drawn between a decision not to prosecute, which is reviewable on the principle of legality or rationality, and a document evidencing that decision, which is not a decision and thus not reviewable. The certificate is the latter and it is neither a decision nor administrative action that is reviewable in terms of PAJA, nor an exercise of a discretion. There is thus no merit in the appellant’s contention that the issuing of the certificate is reviewable in terms of PAJA. The appellant contended that the Acting DPP’s issuing of the certificate stands to be reviewed and set aside, as in appellant’s view, the private prosecutor had no locus standi, and that she had no substantial and peculiar interest arising from an actual injury individually suffered.

Findings: All that is required of the DPP is to peruse the statements and affidavits in the docket, to prima facie verify that the jurisdictional requirements of section 7(1)(a) have been met. The contents of the docket were the source of the verification of the information as to Green’s compliance with the prerequisites for the issue of the certificate. What "injury" did Green suffer? Green accuses the appellant of having trampled on her personality rights to dignity and privacy, by accessing her confidential and personal information without her consent, and that the appellant’s conduct caused her harm. The appellant raised a bare denial. There is no merit in the appellant’s attack on Green’s alleged lack of compliance with the jurisdictional requirements in terms of section 7(1)(a) of the Criminal Procedure Act. In weighing up the scale of balance between the two rights, i.e. the appellant’s right not to be subjected to unfounded and vexatious private prosecution, against the right of Green, to have her dispute resolved by application of the law and decided in a fair public hearing before a court, as provided for in section 34 of the Constitution, the scale tilts in her favour. The appeal has no merit.

Order: The application for leave to appeal is granted. The appeal is dismissed with costs.

MOTHLE JA (WEINER JA, SMITH JA, COPPIN AJA and NAIDOO AJA concurring)

Facts: The accused is 43 years old. He is divorced and has 2 minor children, a daughter aged 15, and a son aged 9 who has cerebral palsy and is autistic. At the time of his arrest, he was operating as a debt collector and private investigator. He claimed that his income averaged approximately R20,000 pm and was derived principally from repossessing motor vehicles and tracing debtors. The 43 charges which the accused faces include racketeering and gang-related offences, 24 counts of unlawful interception of electronic communications, a single charge each of murder, attempted murder and conspiracy to murder and fraud, and 13 counts of money-laundering. As far as the charge of murder is concerned it is alleged that the first accused, Modack, and the accused participated in the premeditated killing of Kinnear, a Lt-Col in the police’s Anti-Gang Unit. Insofar as the charge of attempted murder is concerned it is alleged that they attempted to kill Booth, an attorney. As for the 24 counts of unlawful interception of electronic communications it is alleged that the accused intercepted the transmission of communications from the cell phones of Booth and Kinnear and their wives, as well as several high-ranking members of the police, including Major-Generals Lincoln and Vearey, and several so-called members of the "underworld".

Application: This is the accused’s second attempt at obtaining bail. He is currently standing trial together with 14 co-accused. The charge-sheet contains an impressive array of 124 charges, which include racketeering, money-laundering and gang-related contraventions of the Prevention of Organized Crime Act 121 of 1998, 24 counts of the unlawful interception of electronic communications, 19 counts of corruption-related offences, 4 counts of murder, 10 of attempted murder and 8 of conspiracy to commit murder, 3 counts of intimidation, 7 counts pertaining to the unlawful possession of firearms, ammunition and explosives, and several charges of fraud, extortion and kidnapping.

Discussion: The State alleges that Modack was the head of a criminal enterprise through which the various offences were committed, at his instance and direction, and his various co-accused acted in common purpose with him in carrying out these offences. The accused’s arrest occurred 4 days after Kinnear was assassinated by a yet unidentified shooter, as he pulled into the driveway of his home. At the time Kinnear was involved in high-profile investigations of alleged members of the underworld, including Modack, and their affiliates, amongst which were several high-ranking, allegedly corrupt police officers. At the time of his murder Kinnear was being tracked by the accused, for and at the instance of Modack. The tracking was done electronically by means of a location-based tracking platform to which the accused subscribed, which was run by an ex-policeman, Goldblatt. The accused bought bundles of search pulses or so-called "pings" from Goldblatt, for thousands of rands per bundle. Each ping allowed him to conduct a location search via the tracking platform on the whereabouts of a particular cell phone, by sending an electronic pulse or signal to its number, which would return with the GPS co-ordinates of the phone, to the nearest cell phone tower.

Findings: The day Kinnear was shot, Modack asked the accused to ping his cell phone throughout the course of the day. Shortly after Kinnear’s assassination he received a voice note from Van der Vyver, a "close associate" of Modack, who expressed joy at the news, saying that Christmas had come early. In addition to admitting that he pinged Kinnear, the accused also admitted that he had pinged Booth, at the request of Modack, who told him Booth was an attorney who owed money to a client. The accused has failed to show that there are any exceptional circumstances present or that his release on bail would be in the interests of justice. There was no suggestion in the evidence that on the day that Kinnear was assassinated anyone else was also pinging him, and if there was, that they also did so throughout the day and with the regularity and increasing frequency which the accused did, from the early morning hours until minutes before Kinnear was fatally shot. As a result, on the evidence, the finger of implication points directly and squarely at the accused and Modack and no-one else. The evidence that was elicited in the bail application also points to a knowing involvement by the accused in Booth’s attempted assassination, or a conspiracy to carry out a further such attempt, as is alleged in one of the charges. Given his previous conduct in attempting to destroy material evidence and given that state witnesses and members of the investigating team have been threatened, it would be inimical to the interests of justice for the accused to be released on bail.

Order: The application for the accused to be released on bail is dismissed.

SHER J

Facts and issue: This is a bail appeal against the final protection order granted by the Magistrates' Court in terms of s 60(12)(b) of the Criminal Procedure Act 51 of 1977. The appellant was charged with the contravention of a protection order. The magistrate granted bail with the conditions of R500 bail money payable, and that the appellant was not to contact the complainant in any manner. In addition, the magistrate granted a final protection order in terms of s 60(12)(b) of the CPA. It is only the granting of the final protection order which is the subject of this appeal. The first issue to be determined is whether a protection order granted in terms of s 60(12)(b) of the CPA is a condition of bail.

Discussion: Section 60(12)(b) of the CPA confers a power upon a court hearing an application for bail to equally "hold an enquiry, issue a protection order referred to in s 6 of that Act against the accused, whereafter the provisions of that Act shall apply." The purpose of the section is clearly to protect the victims of domestic violence, in circumstance where the criminal charge is related to domestic violence. Section 60(12)(b) directs the court intending to grant bail in circumstances of alleged domestic violence to issue an order in terms of s 6 of the DVA. Once such an order has been granted, the section further provides that such order must be dealt with in terms of the further provisions of the DVA. It is clear from the wording of s 60(12)of the CPA that two orders are contemplated, the first being the granting of bail subject to conditions and the second being a protection order in terms of the DVA.

Findings: The protection order is not a condition of the order granting bail. The section would not direct the granting of a distinct and separate order as is contemplated in s60(12)(b) if in fact the matters to be canvassed under a protection order could be dealt with as conditions of bail in the order granting bail. The magistrate exercising the power under s 60(12)(b) of the CPA granted an order under the DVA. That order cannot be appealed under s 65 of the CPA. The protection order is not appealable because same was consented to by the appellant. On a reading of the record, the appellant consented to the protection order being granted and in fact consented to the terms of the order. In support of his bail application the appellant in fact argued that the final order was sufficient to deter any conduct on his part. There are no circumstances arising in these proceedings which would allow an appeal against the protection order which was a consent order.

Order: The appeal is dismissed.

Facts: The applicant is a former employee of the respondent, Durban University of Technology (DUT), who was retrenched. According to DUT, the establishment of the university required the respondent to enhance its stature and standing to be on par with both national and international universities. In its quest to achieve this, it had to attract the best in staff and students. It also had to upgrade the qualifications of its academic staff. It imposed a requirement that its staff should have a master’s degree as a minimum requirement. In this way, with highly regarded academic staff, it would be able to attract a high calibre of staff, receive recognition as a formidable university, as well as increase its attraction to students. This way it would ensure its continuity, competitiveness and attractability. This culminated in DUT developing a policy on its strategic directions, which spelt out this amongst others, and stipulating a deadline by which this requirement would have to be achieved by its academic staff. The applicant, duly assisted financially by the respondent, registered to study for a master’s at the University of Rhodes. However, she later deregistered the same year without finishing her studies and reimbursed the respondent the monies it had paid.

Application: The unions presented certain alternatives to the retrenchments which were all rejected by the respondent. On learning about the outcome of the retrenchment, the applicant wrote to the respondent seeking an extension of time for her to complete her master’s which she was pursuing. DUT rejected this on the basis this proposal had been tabled and rejected at the CCMA. The applicant seeks reinstatement with retrospective payment of her salary from the date of her retrenchment to the date of her reinstatement. She also seeks the payment of the costs of the litigation.

Discussion: In challenging her retrenchment, the applicant insisted that she should not have been retrenched because it was not a term of her employment contract that she should have a master’s and referred to her contract of employment in this regard. DUT relied on the development of its practice directions adopted in 2008, predating the employment of the applicant in 2009. In terms of these strategic directions, the respondent had embarked on a strategic trajectory aimed at procuring that all its lecturers should obtain a master’s degree as a “minimum”. Though this objective was not driven hard as from its adoption in 2008, it gained momentum along the way and certainly had gained momentum by 2020. None of this was gainsaid by the applicant. The uncontroverted evidence of the respondent was that this imperative is an operational requirement as defined in section 213 of the Labour Relations Act 66 of 1995. The respondent’s case was that it had to be competitive, attractive and financially sustainable and the demand for the master’s degree was inextricably linked to this objective.

Findings: DUT’s evidence explained the developmental reasons for the adoption of the requirement, that its lecturing staff should have a minimum of a master’s degree. At various stages of her evidence, the applicant accepted the need for the improvement of the academic qualifications of the respondent’s teaching staff. For the deregistration of her master's at Rhodes, the applicant gave conflicting answers. Included in the list of those who required masters’ degrees were those lecturers who did not have this, as a term of employment. They regarded themselves bound. The trade unions never challenged this, accepting that this requirement was part of the employment contract of all the lecturers employed by the respondent. If the applicant believed and insisted that she was not bound by the requirement for a master’s, she has failed to demonstrate a behaviour that is consistent with that understanding. The applicant’s reliance on the fact that the requirement of a master’s was not a term and condition of her contract of employment is a red herring. The applicant accepted the rationale for the requirement of a master’s degree. DUT discharged its onus in satisfying the court that the applicant was retrenched for substantively fair reasons.

Order: The application fails.

MSIZI AJ

Facts: The appellant, Mr Naraidu, a tax practitioner, was, together with two other accused, charged with three counts of fraud, and three alternative charges under the Value-Added Tax Act 89 of 1991 (VAT Act) read with section 269(9) of the Tax Administration Act 28 of 2011 (TAA). The charges, in essence, alleged that Serghony’s Shoes Fashion CC (SSF), together with its sole member, Mr Mbom, and Mr Naraidu unlawfully, and with intent to defraud, misrepresented to SARS that SSF had incurred expenses and was entitled to refunds under the VAT Act, knowing that SSF was not entitled to any such refunds and that the information submitted to SARS was false. This caused prejudice, actual or potential, to SARS. Mr Mbom and Mr Naraidu were convicted on three counts of fraud. Mr Mbom did not return to court for sentencing and has not been arrested. Mr Naraidu was sentenced to six years of imprisonment without an option of a fine.

Appeal: Mr Naraidu appealed to the High Court in respect of his conviction. The High Court dismissed the appeal. It found that the Regional Court had correctly found that Mr Naraidu was aware that the documents submitted to SARS supporting the claim for the VAT refund were false. With special leave, Mr Naraidu appeals to this court. The issue is whether the State discharged its onus of proof to show that Mr Naraidu was complicit in Mr Mbom’s fraudulent scheme to use SSF to make fraudulent claims upon SARS for a VAT refund.

Discussion: The regional magistrate found that Mr Naraidu acted with Mr Mbom in a premeditated plan to defraud SARS. The High Court agreed. It reasoned that the enquiries directed by Mr Naraidu to SARS concerning the VAT refund due to SSF meant that he had sight of the fraudulent supporting documents. Both courts thus rejected the version advanced by Mr Naraidu, at trial, that he was merely making enquiries of SARS on behalf of SSF. Both the High Court and the Regional Court placed much emphasis upon the emails that Mr Naraidu sent to SARS. They convey two matters of importance. First, that Mr Naraidu had resubmitted the documents to SARS supporting the claim by SSF for a VAT refund, and hence had sight of these documents. Second, that, to do so, Mr Naraidu must have had access to the SARS e-filing system, since he records that he resubmitted the documents. The SARS witnesses called by the State could not say who had lodged the claim on the e-filing system, but Mr Naraidu’s emails indicate that he had access to the system and had, at the very least, resubmitted the documents. The emails convey that Mr Naraidu had the documents used in support of the claim of SSF for a VAT refund, and that he had resubmitted these documents to SARS. Mr Naraidu denied that he did so. The SARS witnesses were unable to say who had accessed the e-filing system to make the claims on behalf of SSF.

Findings: Even if Mr Naraidu must be held to what he wrote in the emails, it does not follow that because he resubmitted the documents in support of the claim, he had any knowledge that these documents were fictitious invoices and that the claim was fraudulent. There was no direct evidence of this. It was the investigations undertaken by SARS that uncovered the fraud. This was done by verifying whether there were true sales that the invoices purported to record. There were not. But there was no evidence that Mr Naraidu knew this to be so. It cannot be inferred that because he submitted the documents on behalf of SSF, he thereby represented that they recorded transactions that supported the VAT refund, knowing that they were fictious. Once that is so, the State failed to prove beyond reasonable doubt that Mr Naraidu had the intent to defraud SARS. While Mr Naraidu sought to secure a refund for SFF, the State did not discharge its onus to prove that he intended to do so knowing that SFF was not entitled to the refund. Mr Naraidu thus cannot be convicted on the alternative statutory charges.

Order: The appeal is upheld. The conviction of Mr Naraidu, and sentence imposed upon him is set aside, and it is ordered that Mr Naraidu is acquitted of all the charges brought against him.

UNTERHALTER JA (MOKGOHLOA JA, SMITH JA, MJALI AJA and DIPPENAAR AJA concurring)

Facts: The parties are involved in divorce proceedings. The applicant’s motivation for the relief is that whilst the divorce proceedings are winding through the court, his life has altered. He has met a new partner and fathered a one-year-old child, M. He has moved to Dubai and wishes for his new partner and M to join him and live as a family there. However, whilst he remains married to the respondent, it is difficult to obtain visas for his partner and M. The laws of Dubai do not permit that type of co-habitation, whilst he is still legally married to the respondent. In addition, he wishes to marry his new partner and live as a family with her and M in Dubai. This he also cannot do whilst he remains married to the applicant. The applicant moved to Dubai in February 2024 and regards Dubai as his permanent residence, he has no intention of returning to South Africa in the foreseeable future, and he intends to apply for permanent residency and citizenship at the first available opportunity.

Application: The applicant approached the court urgently requesting to separate out the dissolution of the marriage from the remaining issues in dispute, and to grant a decree of divorce. The disputes in the divorce proceedings include unbundling the parties’ financial affairs, an existing Rule 43 maintenance order, as well as the maintenance, care and contact of O, an 8-year-old child born of the marriage. The applicant has emigrated and intends to make Dubai his home in the long term with no intention to return. The position is clear.

Discussion: The applicant’s immigration contains consequences for the unresolved divorce proceedings as it affects the court’s territorial jurisdiction over the applicant. The proceedings will involve a maintenance order for O, contribution applications and Rule 43 orders. In addition, the divorce proceedings contain a claim and a counterclaim. All these will have to be determined through court proceedings. Once determined, the court orders will have to be implemented and if not complied with, will have to be enforced by the sheriff through attachment and execution. As the applicant is no longer within the court’s jurisdiction, his attendance of court proceedings is cumbersome. In addition, if the applicant were not to attend at court or comply with court orders, the respondent has only lengthy and costly options available to her to finalise the divorce proceedings. Were the applicant to obtain the relief he seeks, a separation of issues and an immediate divorce, there would be no motivation for the applicant to attend court proceedings to finalise the remainder of the issues in dispute. The remainding issues in dispute all involve aspects which affect O directly. However, the applicant has indicated that as far as he is concerned his relationship with O has become “moot”. The applicant has shown no interest in the ongoing proceedings, beyond the decree of divorce.

Findings: If the applicant were to decide, decree of divorce in hand, to remain in Dubai and not attend any further court hearings, there is very little relief available to the respondent that would be effective and not costly. To ensure the attendance of someone outside the court’s jurisdiction is a costly and lengthy exercise. To add to this, the enforcement of a court order becomes much harder if the applicant is no longer within the court’s jurisdiction. The future proceedings would include a determination of what is the best interests of an 8-year-old child. The court’s concern is that if it now grants a separation and a divorce, whether it affects the ability of the court determining O’s maintenance from granting a remedy which can be effectively executed upon. This concern cries out for a response. The court assumed this would be a matter which the applicant would address head-on in his founding affidavit. The applicant makes no undertaking or expresses no interest in ensuring the remaining issues are resolved expeditiously if the separation and divorce are granted. The applicant failed to make out a case in this regard. The impact of being unable to ensure the applicant’s attendance at court and the effective implementation of court orders, is that the court is unsure whether O’s maintenance will be addressed. O’s interests are paramount. As the applicant has not addressed this at all, the court cannot grant separation. The court is not persuaded that it would be convenient or expeditious to separate the issues.

Order: The application is dismissed.

DE VOS AJ