CASE LAW UPDATE

Facts: The applicant raises a dispute about the opposing affidavit deposed to on behalf of the respondent. He submits that because the deponent declared that he is a male, while the commissioner of oaths certificate states the deponent's gender as both male and female, it is irregular, making it unclear as to who is the deponent, and is prejudicial to him as the applicant. In the disputed opposing affidavit, the deponent describes himself as an adult male. In the certificate below the deponent's signature, the commissioner of oaths states: "The deponent having acknowledged that he knows and understands the contents of this affidavit, that she has no objection against taking the prescribed oath and that she considers the prescribed oath to be binding on her conscience."

Application: The applicant applies for the dismissal of the condonation application sought by the respondent. The respondent has delivered the disputed opposing affidavit against the dismissal application. The applicant's submission is that the respondent's opposing affidavit does not comply with the Regulations made under section 10 of the Justice of the Peace and Commissioner of Oath Act 16 of 1963 and it was delivered outside the required period without a condonation application. The opposing affidavit should be ignored, for the applicant's dismissal application to be dealt with on an unopposed basis.

Discussion: The applicant's complaint relates to the pronoun "she'' that appears twice in the commissioner of oath's certificate along with "her", when they are read with the description "an adult male" and "he". An affidavit must satisfy the general requirements as contained in the Regulations promulgated in terms of section 10 of the Act. Regulations 3(1) and 4(1) oblige a commissioner of oaths to properly identity the gender of a deponent. This identification is an indication that a deponent appeared before a commissioner of oaths as required by regulation 3(1). Should a commissioner of oaths not certify that an affidavit was sworn to or affirmed, the court will be reluctant to assume its regularity. The use of proper pronouns in certifying that the deponent has acknowledged that she/he understands the contents of the declaration and regards as binding to her/his conscience is imperative. Non-compliance with the requirement of a certificate that the deponent has acknowledged that he/she knows and understands the contents of the affidavit is directory. This may be condoned at the discretion of the court.

Findings: The opposing affidavit declares the deponent as an adult male. In certifying that the deponent has acknowledged that he knows and understands the contents of the declaration and that he has no objection to taking the prescribed oath he considers binding on his conscience, the commissioner of oaths confusingly certified the deponent as male and female in the same sentence. The commissioner of oaths' usage of contradictory and confusing pronouns resulted in a disjoint between the deponent's declaration and the commissioner of oaths certificate. The court declines to condone the non-compliance with the regulations and finds that the purported opposing affidavit was not properly commissioned. The applicant's point in limine in this regard should be upheld.

Order: The objection of the plaintiff to the attestation of the defendant's opposing affidavit is sustained. The respondent is granted leave to have its opposing affidavit re-attested or supplemented, if so advised.

LEDWABA AJ

Facts: Ms H was raped in 2018 by a man she met through an online dating site. The man invited her to his home for a party, only to find out when she arrived that there was never a party, she was the only guest. Ms H suffered an ordeal at the hands of the man that night and later at the hands of the criminal justice system which accepted the version of perpetrator rather than that of the victim. The accused was acquitted as a result of the current legal position of the subjective belief test regarding the requirement of consent in rape cases.

Application: This application seeks to challenge the constitutional validity of certain sections of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Act). The absence of consent is constituent in this matter, to the extent that the Act does not criminalise sexual violence where the perpetrator wrongly and unreasonably believed that the complainant consented to the conduct in question, therefore enabling the accused to successfully avoid conviction on the grounds of the subjective belief that consent was given.

Discussion: Currently, the standard of fault in sexual offences defined by lack of consent in terms of sections 3,4,5,6,7,8,9 and 11A of the Act is that of "intention", with no qualification as to the reasonableness of a mistaken belief in the presence of consent. The Act ignores the possibility of an objective test for fault, in respect of sexual offences defined by lack of consent. Consequently, an unreasonable belief in the presence of consent is a defence. The State bears the extraordinarily high burden to prove that the accused's claim that he was under the impression that consent had been given is not reasonably possibly true. For example, in a case where the complainant knew their attacker (which is the vast majority of cases of rape and other sexual violence cases), did not physically resist or loudly protest, or consented to some but not other intimate acts, this burden will, more often than not, be insuperable.

Findings: By enabling a defence of unreasonable belief in consent, the Act violates the rights of victims and survivors, to equality, dignity, privacy, bodily and psychological integrity, and freedom and security of the person, which includes the right to be free from all forms of violence and the right not to be treated in a cruel, inhumane or degrading way. Balancing the competing interests of victims of sexual abuse with the rights of an accused, as set out in the Constitution, an accused's rights to a fair trial will not be prejudiced in a prosecution if the required standard changes to an objective test. All that the suggested amendment to the law seeks to suggest is a test that will require a perpetrator to explain the objective steps he took to establish the presence or absence of consent prior to the alleged rape.

Order: Sections 3,4,5,6,7,8,9 read with section 1(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 are declared unconstitutional, invalid and inconsistent with the Constitution to the extent that these provisions do not criminalise sexual violence where the perpetrator wrongly and unreasonably believed that the complainant was consenting to the conduct in question, alternatively, to the extent that the provisions permit a defence against a charge of sexual violence where there is no reasonable objective belief in consent.

BAQWA J

Facts: The three sets of applicants in this consolidated application are victims or participants in an unlawful multiplication scheme that was led by Mfundo Manci utilizing his entity Crypto Mzansi Group. He ran a classic Ponzi scheme, operating mainly in the greater Durban area. Business was solicited in the main through social media platforms that encouraged investments by promising abnormally large returns on these investments, often in excess of 1,000 percent. The applicants were lured into the investments by social media showcasing that Manci was capable of achieving returns on their investments that were extremely attractive, actually unparalleled, and in hindsight obviously unattainable. Manci fled and remains a fugitive from justice.

Application: An application by the NDPP was successful in preserving various accounts of Manci and the accounts of Crypto Mzansi Group. The total amount preserved was R4,547,820.47. The NDPP later obtained an order in terms of section 53 of the Prevention of Organised Crime Act 121 of 1998 (POCA) to have the preserved property forfeited to the State. The applicants brought an application seeking to vary the forfeiture order and sought an order excluding the amounts that they had paid to Manci’s entity from the forfeiture order.

Discussion: The applicants submit that the property is of lawful origin and reflects the personal savings and money of the applicants or money legally obtained. They contend that they are not criminals and that there are no charges pending against them, and that they are the victims of the crime committed by Manci and they are not akin to co-perpetrators. A key thrust of the argument of the applicants is that the statements they made to the police as victims or complainants are the same affidavits used as the underpinning factual matrix in the preservation and forfeiture orders. The NDPP argues that multiplication or Ponzi schemes of this ilk are unlawful, and the applicants in all likelihood knew, or ought to have known, that this was an illegal multiplication scheme, considering the return of investment promised. The very high percentage return on investment was the kind of return impossible to attain lawfully.

Findings: Section 43 of the Consumer Protection Act 68 of 2008 deals with pyramid schemes and section 43(3) with multiplication schemes in particular. Participation in these schemes is illegal and subject to criminal sanction. It is an offence merely to participate and it is not in issue that the applicants participated. The property or money the applicants invested was self evidently an instrumentality of the offence by Manci. It was not necessary that the applicants be criminally charged. Forfeiture is not founded on the basis of a conviction or even of a charge being preferred in a criminal trial; it suffices that the funds were an instrumentality of the crime. There is a clear dispute of fact as to the knowledge that the applicants had in respect of the unlawful nature of the scheme. The applicants chose to proceed on motion proceedings and must endure the consequences.

Order: The application for variation of the forfeiture order in all three applications is dismissed. There is no order as to costs.

DAVIS AJ

Facts: Prior to his death, the testator executed his will before two witnesses. In his will the testator appointed Klassen (erstwhile executor) as an executor. In terms of the will, amongst others, the erstwhile executor was given powers to sell or rent out the immovable property of the testator. The applicants entered into a sale agreement with the erstwhile executor to the estate. In terms of the sale agreement the erstwhile executor sold two immovable properties to the applicants. The applicants took possession of the properties and are liable to pay rent until the date of the registration. The applicants remain in possession of the properties. Before the registration of transfer was affected, the erstwhile executor was removed as the executor. Due to the failure of the erstwhile executor to pass the transfer to the applicants, they instituted legal proceedings against him to enforce the terms and conditions of the agreement of sale.

Application: The applicants seeks to enforce the terms of the sale agreement that was entered into between them and the former executor, in terms of which two immovable properties were sold by the erstwhile executor to the applicants. The issue to be determined arises in connection with clause 4.1.1. of the will of the testator and the provisions of section 47 of the Administration of Estates Act 66 of 1965. The core dispute revolved around whether the provisions of section 47 override clause 4.1.1. of the will in question.

Discussion: It is submitted on behalf of the respondents that the respondents as well as the other heirs to the estate of the testator were always against the sale of the properties as they wanted to protect the legacy by continuing with what the testator had started. It is also asserted that the erstwhile executor was aware of these wishes but chose to act as he deemed fit. It is strongly asserted that the consent of the beneficiaries should have been obtained prior to the sale agreement being concluded. So, the argument continues that despite the clause of the will, the heirs with interest in the property should have approved the conditions in writing. It is the assertion of the applicants that the estate, including the respondents, are bound by the agreement of sale and that the enforceability thereof has not been affected by the change in executorship. Additionally, the applicants assert that no steps have been taken by the respondents to render the agreement of sale null and void.

Findings: It is evident from a reading of the will that the testator’s intention was to give the erstwhile executor unfettered discretion as far as the sale and renting of the immovable property are concerned. The terms of the will reveal that the erstwhile executor had absolute discretion to sell or to lease the immovable property and to determine the price. The testator in his will has used words like “My executor’s decision shall be final and not reviewable in any forum.” The will is detailed as far as the powers of the executor in selling the immovable property. The testator stated in his will that the executor can deal with his immovable property as he saw fit. The use of the words "unless it is contrary to the will of the deceased", allows a testator to direct a contrary intention to the legislative limits imposed by section 47. It means that the statutory provision applies unless a contrary intention appears from the will. In other words, the provisions of section 47 do not apply if a contrary intention appears in the will. This grants the testator the powers to dispose of his property in the way he deems fit.

Order: The respondents, within 45 days from the date of the order, shall take all steps necessary which shall include, but shall not be limited to, signing all documentation to pass transfer of the immovable properties to the applicants.

NZIWENI J