CASE LAW UPDATE

Facts: This entire matter arose from a coal supply agreement (CSA) concluded between the applicant (Eskom) and the respondents. A dispute arose between the applicant and the respondents concerning a renegotiation of the pricing mechanisms under the CSA. This resulted in the respondents terminating the CSA on the basis that the applicant had allegedly repudiated the CSA. The arbitrator upheld the respondents’ alternative claims in the arbitration and awarded them R696,243,120.42 in damages. The applicant was dissatisfied with the award and noted an appeal. This was done by way a written notice of appeal sent to the respondents and the arbitrator. The respondents indicated that they were only prepared to submit their nomination of an appeal arbitrator under article 22.5 of the Arbitration Foundation of Southern Africa (AFSA) rules but were awaiting the directive from the Secretariat of AFSA as to the fees payable, before making its nomination. AFSA effectively refused to accept the appeal, because it did not administer the arbitration from the outset. The respondents’ view is that the applicant’s appeal had lapsed.

Application: The applicant seeks declaratory relief as against the respondents, that it be declared that an appeal, noted by the applicant against a private arbitration award in favour of the respondents, be declared not to have lapsed. Associated relief sought by the applicant is that it be directed that the arbitration appeal panel be formally appointed, so that the appeal proceedings can get underway.

Discussion: The applicant did file a notice of appeal promptly, being some five days after delivery of the arbitration award. The notice of appeal was served on all the parties involved in the appeal, including the arbitrator. That would at least prima facie constitute compliance with clause 33.6.2 of the CSA, as it reads. The respondents allege that the appeal notice should have been delivered to the Secretariat of AFSA. The distinction between an arbitration conducted under the auspices or administration of AFSA itself on the one hand, and an arbitration that is conducted by the parties themselves by applying the rules of AFSA, becomes critical. In terms of the AFSA Rules themselves, it is intended that these Rules apply as they stand, in all respects, only where AFSA administers the arbitration proceedings. The appeals process found in article 22 of the AFSA Rules clearly contemplates proceedings where AFSA administers the appeal itself. Conducting an arbitration outside the auspices/administration of AFSA, but "in accordance with" the AFSA Rules, must mean the applying of only those AFSA Rules that may be applicable to the conducting of the arbitration proceedings itself, subject to the specific processes prescribed in the arbitration agreement.

Findings: The CSA prescribed how not only the original arbitrator had to be appointed, but also how the appeal arbitrators should be appointed. This does not in any manner involve AFSA but requires appointment by the parties themselves. It should not be expected that notices are required to be issued to AFSA in the circumstances. The parties managed the exchange of pleadings, and the conducting of the arbitration process themselves, under the auspices of the arbitrator herself. That being so, it can hardly be now said that the proceedings are irregular or invalid because it may not have followed what is prescribed in the AFSA Rules about the referral of the dispute and then administration of the arbitration. It cannot be expected that a process, such as a notice of appeal, be delivered to an institution such as AFSA where such institution is not involved in the arbitration of the case at all. Such an action cannot serve any purpose. What is being propagated by the respondents is notice for the sake of notice, without the notice serving any purpose. The applicant has noted a proper appeal as contemplated by clause 33.6.2 of the CSA, and such appeal is valid and extant. The applicant’s appeal has accordingly not lapsed.

Order: It is declared that the applicant’s appeal against the arbitration award has not lapsed.

SNYMAN AJ

Facts: The parties were married out of community of property with the inclusion of the accrual regime. The initial Uniform Rule 43 order granted in 2022 allowed for R15,000 monthly maintenance and a contribution of R20,000 by the respondent to the applicant for her legal costs. The applicant contends that she can no longer survive and meaningfully provide for the maintenance of the parties' minor child with the maintenance contribution as initially ordered. The initial contribution towards her legal fees is no longer sufficient and the applicant is in need of a further contribution towards her legal fees. In her own words she is an "unemployed housewife". In the main divorce proceedings, the respondent has been scant in providing information about his financial affairs and she will have to employ the services of a forensic auditor to obtain an expert report on the respondent's assets and monthly income. She provided a quotation from a forensic auditor of R150,000 and a cost estimate from her attorney to run the trial to conclusion of R635,375.

Application: An opposed application in terms of Uniform Rule 43(6). The applicant seeks a further contribution towards her legal costs and an increase in the amount of maintenance. The applicant has been unemployed since 2001 and prior to that worked for the respondent. The applicant only has matric and has sacrificed the possibility of a career and any attempt at employment to raise the parties' children and to cater to the respondent's needs. It is evident from the applicant's updated financial disclosure that she has no other means of income and no other means of funding this litigation.

Discussion: The respondent contends that main purpose of the current application is a quasi-appeal of the initial court's order. All that the applicant is attempting to do, is to reduce this court to an appeal court, in an attempt to get a more favourable order. The applicant asserts that a "change in circumstances" has occurred. The respondent denies this, but in any event what the Rule requires is a "material" change in circumstances. On the applicant's own version, this did not happen. Having regard to the contents of the founding affidavit, the respondent’s view is that it seems that the applicant's case is simply that she needs a better contribution towards her legal costs, and that she "cannot survive" on the amount of maintenance ordered, which is not sufficient. The court agrees with the respondent that the applicant has not satisfactorily set out her financial circumstances and that the largest part of the increase in her expenses seem to relate to her rental expenses, of which very scant detail was provided. However, the court disagrees with the respondent that Rule 43(6) must be "strictly interpreted." A "second bite at the cherry", as respondent referred to it, is allowed in terms of Rule 43(6) in terms of the requirements stated in this subrule.

* See the discussion on Rule 43(6), “material change” and the case law at paras [34]-[44].

Findings: The applicant's failure to show a material change in her circumstances is not a bar to her application for a further contribution to her legal costs. The respondent does not take issue with the applicant's position as that of an "unemployed housewife", with no post-matric qualifications, and that she has been unemployed since 2001. The applicant is reliant on the respondent's maintenance payments. She has no independent means to fund her own legal costs, bar the R1,5 million held in a trust account. It has been held that a wife is not expected to realise her own assets to fund her litigation costs where her husband is able to contribute to her costs. The applicant should not at this stage be expected to fund her own legal expenses. She should now play her part as well by living well within her means and taking all reasonable steps to bring these divorce proceedings to an amicable and cost-effective close. Courts have warned that the worthy ideal of gender equality may clash with the cynical exploitation of court rules by practitioners and litigants. If a court shows grace towards an applicant in a Rule 43(6) application, it should not be abused to prolong litigation, nor should it be abused to maliciously empty the respondent's pockets. A successful Rule 43(6) application should not be understood as a nod by the court to conduct litigation risk-free. See paras [53]-[55].

Order: The respondent is ordered to make a contribution to the applicant's legal costs in the main divorce action of R200,000, to be funded from his portion of the proceeds of the sale of the matrimonial home held in trust. The respondent is allowed to withdraw R100,000 to fund his legal costs in the main divorce action from his portion of the proceeds of the sale of the matrimonial home held in trust. The costs of this application shall be costs in the cause.

KOK AJ

Facts: The aggrieved employees represented by the applicant, the South African Commercial Catering and Allied Workers Union (SACCAWU) were purportedly dismissed based on operational requirements by the respondent, Tsogo Sun Casinos trading as Emnotweni Casinos. The respondent issued the employees with a notice in terms of section189(3) of the Labour Relations Act 66 of 1995. In this notice, it was stated that consultations would be held. The affected employees were invited to a consultation. Despite them agreeing to attend, they did not attend. The respondent did not make proposals to the employees during the consultations of any alternatives that could avoid the need to forcibly retrench them. The employees did not, at any stage, make a proposal that their employment be transferred to other business units as an alternative to their retrenchment. Following the consultation process, the respondent dismissed the employees.

Application: The applicant challenges the dismissals of the employees on two grounds, namely that the dismissals were procedurally unfair and substantively unfair. The applicant seeks an order declaring the section 189 retrenchments as procedurally and substantively unfair and that the respondent is to retrospectively reinstate the aggrieved employees.

Discussion: Section 189(1) of the LRA demands that an employer contemplating dismissals based on operational requirements consult any person, including trade unions whose members may be affected by the proposed retrenchments, before carrying out dismissals. The consultation must be meaningful and be a joint consensus-seeking process. The respondent, through Mr Siluale, seems to have a predisposition and was merely going through the motions. The consultations seemed to be geared towards discharging the respondent’s statutory obligations rather than carefully and seriously seeking ways to avoid the retrenchments or minimise the adverse impacts which may arise from the retrenchments. Mr Silaule conceded in the hearing that he disallowed the employees' copies of the voluntary severance packages offers and from taking them home on the basis that they were confidential and private. This refusal demonstrates that the respondent had a take-it-or-leave-it approach and deprived the affected employees of the ability to apply their minds and solicit advice from their union representative or any other third party.

Findings: SACCAWU should have been included in the consultation process. Mr Silaule was made aware by the affected employees that they wanted to consult someone, namely their union representative. The respondent claims that the affected employees did not specifically indicate that they wanted to consult SACCAWU and that they were unaware that they belonged to a trade union. This argument is unconvincing. The respondent knew that the affected employees were paying fees to SACCAWU as this was being deducted from their salaries monthly. Not allowing SACCAWU to represent the affected employees even after the affected employees had persistently requested so in the consultations, is fatal and detrimental to the respondent’s case. It demonstrates that the respondent was taking a hard-line approach to the consultation ab initio. The respondent failed to genuinely and seriously consider alternative solutions to the retrenchments. The affected employees suggested alternative positions and options during the consultations, and they were decidedly rejected by Mr Silaule.

Order: The dismissals are substantively and procedurally unfair. The individual affected employees are reinstated with full salaries and employment benefits effective from the date of dismissal.

MORGAN AJ

Facts: The applicant and the deceased were married. The first respondent (Andi) is the only child born of the marriage and is the sole heir in terms of the 1999 will. She has been estranged from the applicant and the deceased for some time. The applicant and the deceased utilised the services of Capital Legacy during January 2022 to assist them in drafting their wills. They seemingly intended to leave 100% of their respective estates to each other, and thereafter to their daughter in the event of their demise. Wills were drafted according to instructions received. The deceased had contracted cancer and was very ill at the time and on medication. The application provides details regarding the intention of the applicant and the deceased and their financial constraints, including the reason for leaving their estates to one another instead of their daughter. As to the reasons for the deceased not signing her own will at the appointed time, the applicant states only that on the day that they had to sign the wills, the applicant’s sister was visiting. The deceased passed away before ever signing the 2022 will.

Application: To have the unsigned and undated last will and testament of the deceased, Ungerer, drafted in 2022, declared to be valid in terms of section 2(3) of the Wills Act 7 of 1953, together with consequential relief. The question is whether the court may accept the will on the papers before it and in the light of the applicable legal framework.

Discussion: The disputed will had clearly not been drafted by the deceased, but by someone else, and there was simply no indication on the record that the deceased accepted the final document presented and accepted it as their will. In the absence of evidence that establishes that the deceased approved all the contents of the draft will, a court will be unable to find that they intended it to be their will. It is unnecessary to make a firm decision regarding the deceased’s intention in the present circumstances. The disputed will was neither drafted by the deceased, nor executed by her, so the subsequent enquiry into intention does not arise. Section 2(3) is cast in peremptory terms and does not permit the exercise of judicial discretion absent compliance with the stipulated requirements. This is because it represents an exception to the rigorous requirements for a valid will stipulated in section 2(1), so it must be strictly interpreted.

Findings: The applicant provided no adequate explanation for the deceased’s failure to have signed the will during the intervening period of eight months between the date upon which the disputed will was presented to her for signing, 22 February 2022, and the date of her passing, 11 October 2022. If the deceased had truly intended the 2022 will to have been her final will, then it would have been expected that she would have signed it, especially in view of her terminal decline and impending demise. On a preponderance of probabilities, however, the deceased changed her mind to avoid leaving her daughter with nothing until the applicant’s eventual passing. From the exchange of communication between the deceased and Andi, it is apparent that the deceased was desperate for mother and daughter to set aside their differences and to achieve reconciliation before she departed. This would go some way towards explaining her failure, or refusal, to sign the disputed will. In the end, there was simply no evidence to demonstrate the intention as alleged by the applicant.

Order: The application is dismissed.

GOVINDJEE J and LAING J