CASE LAW UPDATE

Facts: The two appellants stood trial in magistrate's courts facing different criminal charges before different magistrates. The first mentioned appellant (Mr Oosthuizen) was charged in the Regional Court Division of Gqeberha. The second mentioned appellant (Mr Van Straten) was charged in the Magistrate’s Court for the district of Joubertina. Mr Van Straten stood trial on charges of violating a protection court order, amongst others. Mr Oosthuizen stood trial charged with fourteen counts of fraud and 13 counts of forgery. The court records in both matters are partly in English and partly in Afrikaans. In the matter of Mr Oosthuizen, 90% of the record is in Afrikaans and in the matter of Mr van Straten, about 20% of the record is in Afrikaans. Furthermore, the record in respect of Mr van Straten is incomplete having 19 pages of his evidence missing.

Appeal: Mr Van Straten was convicted on counts 1 to 3 and sentenced to undergo 5 years’ imprisonment. With leave of that court, the appeal is against convictions only. Mr Oosthuizen was convicted on fourteen counts of fraud. On fraud conviction, he was sentenced to 5 years’ imprisonment wholly suspended conditionally for a period of five years. With leave of the magistrate, the appeal is against convictions only. At the hearing of these matters, concerns were raised about the records of the court proceedings which were partly in English and partly in Afrikaans.

Discussion: Mr Landman, who represented Mr van Straten, brought it to the attention of the magistrate that he had "heard that everything must now be done in English, we can go as far as we can in English." The response to this by the magistrate was, "No, one cannot just go on in English and take away his right to speak Afrikaans. If he wants to speak Afrikaans, he can speak Afrikaans." The magistrate missed the point. He knows full well that he has a duty to get an interpreter to interpret the language spoken by the accused or witness, as the record should be in English. Mr van Straten was entitled to speak Afrikaans as long as the same would have been interpreted into English for record purposes. This is what happens when a person speaks in IsiXhosa or isiZulu. The same would apply to any one of the other official languages. The Heads of Courts Committee on court language policy established in 2003 saw it fit to recommend that English be the court language of record. This was adopted as a resolution by the Heads of Court under the auspices of the Chief Justice in March 2017.

Findings: Considering the authority of Heads of Courts, including the Chief Justice, to manage and give guidance in the running of courts in the Republic, the resolution is binding on courts and should be treated as such in the absence of a language policy from the Executive. The situation will be out of control if a Venda or Xhosa speaking person were to be allowed to insist that the proceedings be recorded in Venda or Xhosa simply because the presiding magistrate happens to understand the language. The record of the proceedings is not meant for Venda speaking judges but judges consisting of different races. The directive is in line with the common language spoken by most persons in South Africa. It is not enough for the judicial officer to write the judgment in English. To hear these matters, even though there is resolution by the Heads of Courts, would have been tantamount to undermining that resolution. The point is not about the use of the Afrikaans language by the parties involved, but it is the principle which must be applied to all cases. In all those cases where the witnesses give evidence in IsiXhosa (which is the predominate language in the Eastern Cape Province) an interpreter is used, and the court record is in English. There should be no exceptions in this regard.

Order: Both matters are struck from the roll. The respective magistrates are directed to ensure that portions of each record recorded in Afrikaans are translated into English. The matters may not be re-enrolled until such time as the directive has been complied with.

TOKOTA J (MULLINS AJ concurring)

Facts: The applicant commenced trading as a close corporation and was incorporated as a private company in 2019. It specialises in hot and cold thermal insulation application (specifically to mechanical systems), as well as sheet metal work, and the fabrication and installation of chilled water and hot water piping for HVAC systems. The applicant contends that its trade connections are a key facet of its business, which is ultimately dependent on its continued client satisfaction. The applicant and the respondent executed a written contract of employment. The respondent held a senior management position which required him to report to the managing director of the applicant. The respondent’s exposure to sensitive client information, including business operations and proprietary data, enabled the respondent to attain a firm grasp upon the applicant’s trade connections. Eight days after submitting his letter of resignation to the applicant, the respondent had incorporated SMTI Projects. He is its sole director. SMTI Projects is a direct competitor of the applicant.

Application: The applicant applied to the court for certain interdictory relief against the respondents predicated upon an agreement of employment between the applicant and the respondent, its former employee. The issues to be determined are whether the applicant had discharged the onus upon it of proving that there is a valid and binding covenant in restraint of trade and that there had been a breach thereof by the respondent; and if it is held that a restraint of trade covenant came into existence between the applicant and the respondent, whether it is enforceable, in respect of which the respondent bears the onus.

Discussion: The respondent resigned from the applicant, which was immediately accepted. Although he gave a month’s notice as required in terms of his contract of employment, the applicant did not require him to work out the notice period and paid him in lieu thereof. This was decided upon, so the applicant contends, to avoid misconduct by the respondent being perpetrated as witnessed on 24 April 2024, while he was still employed by the applicant. At that time, he had commenced the solicitation of at least one existing client of the applicant, presumably in preparation for his resignation, by rendering a quotation to the SFI Group (SFI), but he did so on behalf of SMTI Projects, rather than the applicant. After obtaining the assistance of a professional computer technician who inspected the laptop that had been issued to the respondent, the applicant discovered that the respondent had misused its confidential information and intellectual property by, among other things, copying and pasting the contents of the applicant’s quotes and inserting them under the name of SMTI Projects, in order, so it seems, to intercept work from the applicant and obtain the work for the benefit of SMTI Projects. The applicant discovered, only after the respondent’s resignation, that he had encroached upon the client relations of the applicant to promote the commercial interests of SMTI Projects by utilising the applicant’s trade connections, and he had wilfully diverted the resources of the applicant for his own benefit and for the benefit of SMTI Projects. This, so the applicant contends, amounted to a breach of the restraint obligations.

Findings: Positioned as it is under a heading “Restraints” and after two contractual provisions (clause 16.1 and clause 17.1) directed at protecting the applicant’s proprietary interests during the period of employment, it is improbable that the parties intended that clause 17.2 create a permissive regime mandating the respondent after termination of his employment to actively compete or assist other persons to compete with the applicant by deploying the very proprietary interests the respondent was enjoined to protect while still employed. The applicant has proved that it enjoys a clear right, that actual injury has been committed and is reasonably apprehended, and there is no other satisfactory remedy. The court considered the factors which might favour a punitive award against the respondent: the respondent’s deceitful conduct, his breach of his own undertakings, his calculated plans to divert business to his entity even while employed by the applicant, and the effort that had to be directed by the applicant and the court at dealing with unworthy technical defences at odds with what the respondent knew to be the truth regarding his employment agreement and his trading entity. The most compelling factor was the lack of good faith shown by the respondent, both by breaching the restraint of trade, and by devising the defences he mounted to justify such breaches, protesting to the end that no restraint existed.

Order: The first respondent is interdicted and restrained for a period of one year dated from 3 May 2024, either on his own behalf or on behalf of any person, firm or company from competing or endeavouring to compete with the applicant. The first respondent is directed to pay the applicant’s costs of the application jointly and severally, on a scale as between attorney and client.

GORDON-TURNER AJ

Facts: In 2015 the plaintiff was aged 74 and living on her own when she suffered a stroke. She was first taken to a private hospital but since she did not have medical aid she was moved to a State hospital. That hospital did not have the facilities to treat a stroke patient, so she was taken by ambulance to George Mukhari Hospital (GMH). She was examined and there is no report of her having bedsores. She did not receive any treatment according to the hospital’s own protocols in relation to the possibility of bedsores whilst in the emergency section. When she was admitted to the ward, a note was made that she had an old bedsore. The plaintiff was later sent to a private hospital and then to a special rehabilitation hospital. Whilst at home she was seen by a wound specialist who advised the family that they see an attorney, given the state of the plaintiff’s bedsores, which they duly did.

Appeal: The plaintiff’s principle contention is that her bedsores were caused by sub-standard treatment whilst she was being treated at GMH. The High Court found against the MEC and declared that the employees of GMH were negligent in relation to the injury sustained by the plaintiff in the form of a bedsore. Such negligence was declared to have been a cause of the plaintiff’s injury.

Discussion: Both experts agreed that the plaintiff had co-morbidities that made it more likely that she would be susceptible to bed sores. These were her age, hypertension and because she had been lying in the same position for some time. The issue of causation in this case is difficult. It is possible that the plaintiff could have developed her bedsore if she had been lying on the floor of her home for some time before she was discovered by her helper. It is also possible, given that the plaintiff had suffered a stroke and had to be intubated urgently, that the staff were not focussed on examining her body for bedsores and this may have been missed. However, the court a quo held, correctly, that even if the bedsore had been brought into existence prior to the plaintiff's admission to GMH, this did not exonerate the defendant. The hospital had a protocol for bedsores and this was a standard the hospital itself had adopted and it can be expected that its nursing staff would have been trained in it.

Findings: The hospital had an ongoing duty of care to the plaintiff from the time of her admission to prevent the bedsore deteriorating or developing. Given the plaintiff’s condition at the time of admission, the fact she was a stroke patient who had been moved to GMH from two prior facilities, her age at the time of 72, the history given by the family of how she had been found, the length of time spent in the emergency ward without being moved, the close link between the harm and the unreasonable omission can be established on these facts. Although the plaintiff was seriously ill, there was no medical reason why the plaintiff could not have been treated in terms of the protocol for bedsores and been turned in intervals of two to four hours. Whatever resource constraints GMH faces as a public hospital, this was not an issue relevant to the treatment required by the protocols. The defendant’s hospital staff failed in their duty of care to the plaintiff to prevent the onset or spread of the bedsore she sustained.

Order: The appeal is dismissed. The plaintiff is awarded costs including costs of one counsel on Scale C.

MANOIM J (MAKUME J and SENYATSI J concurring)

Facts: The plaintiff was arrested and detained in the presence of members of the public by Warrant Officer Brijall together with other unknown members of the South African Police Service (SAPS), all acting within the course and scope of their employment with SAPS. The plaintiff was then transported to the police station where he was detained in the police cells until he was taken to the magistrate's court holding cells. He was charged by the prosecuting authority with theft, money laundering and fraud. The plaintiff was released on payment of R20,000 bail. The plaintiff was compelled to make five appearances at court.

Claim: The plaintiff claims for payment of damages suffered firstly against the defendants for contumelia, deprivation of bodily freedom, liberty and discomfort as well as the infringement of the plaintiff’s good name, reputation and standing in the community in the total amount of R500,000 as a result of his unlawful arrest and detention; secondly, against the further defendants, as a result of malicious prosecution for contumelia, deprivation of bodily freedom, liberty and discomfort as well as the infringement of the plaintiff’s good name, reputation and standing in the community in a further total amount of R500,000. Thirdly, against all the defendants for loss of earnings.

Discussion: The plaintiff contends that he suffered past and future loss of earnings because of the decline in the business of a museum, restaurant and pub, in consequence of his arrest, detention and prosecution. The plaintiff’s case as framed in the particulars of claim is that the warrant for his arrest was irregular and bad in law. Had WO Brijlall considered the plaintiff’s known age, his health and that it is unlikely he was a flight risk, as well as the possible consequences of arresting him in full view of his patrons, he might well have gone about the arrest differently. If he had been more circumspect, the consequences of the arrest and detention might well have been very different. Regarding the claim that the warrant of arrest was irregular and bad in law, WO Brijlall conceded not only that in obtaining the warrant the requirements were not complied with, but that the warrant was irregular and wrongful, and that the arrest of the plaintiff was wrongful. These concessions were correctly made. WO Brijlall caused the warrant for the arrest of the plaintiff to be pursued and obtained, without due consideration and investigation of the facts and circumstances prevailing, and in the absence of justification to do so.

Findings: The application for the warrant was fatally flawed and the warrant in consequence was invalid. It follows the arrest of the plaintiff was unlawful and wrongful. The factual causa sine qua non for the institution of the proceedings against the plaintiff was the conduct of the NDPP’s members or employees. There was no evidence upon which the employees or members of the NDPP may reasonably have concluded the plaintiff was probably guilty of the offences with which he was charged. In instituting the prosecution against the plaintiff, the NDPP’s members or employees clearly directed their will to prosecuting the plaintiff which in consequence infringed upon his rights. As there was no reasonable and probable cause to do so, their conduct was wrongful. The plaintiff’s arrest and detention directly led to the demise of his businesses and damage to his patrimonium in respect thereof. According to the evidence, he suffered a loss of both and past and future earnings. The Minister of Police and WO Brijlall and the members of the NDPP were the factual cause thereof. As regards legal causation, WO Brijlall’s conduct, as well as that of the members of the NDPP, were a direct cause of the loss suffered by the plaintiff of past and future earnings.

Order: Judgment is granted against the first, second and fifth defendants jointly and severally on the merits in respect of Claim A based on the actio iniuriarum for payment of damages. Judgment is granted against the first, second and fifth defendants jointly and severally on the merits in respect of the Aquilian claims set out in Claims C and D.

KRUGER AJ