CASE LAW UPDATE

Facts: The appellant is the Body Corporate of the Monterey sectional title complex in Richards Bay. In 2022 it issued summons out of the magistrates court, in which it claimed payment of a sum of some R26,000 from the defendant, Mr Zakwe. Mr Zakwe owns a unit in the Monterey development, and the claim was for payment of arrear levies together with interest which had accrued thereon at a compound rate of 24 percent per annum. The summons was affixed by the sheriff to the principal outer main door of the unit as the premises were found to be locked and unattended. After some queries raised by the magistrate had been answered, default judgment was granted in favour of the appellant. A warrant of execution against movable property was issued, directing the sheriff to the unit for the purpose of its service. The sheriff rendered a return indicating that the process could not be served and that he had been informed by a tenant at the premises, a Mrs Govender, that Mr Zakwe had left the address.

Appeal: The appellant then launched an application in terms of Rule 43A of the Magistrates’ Court Rules for leave to execute against the unit. That application was served on the tenant, Mrs Govender. The magistrate refused the application. That generated the present appeal. The sheriff served the Notice of Appeal by pinning it to the outer door of the unit because he found the premises locked and unattended. Mr Zakwe played no part in the appeal.

Discussion: The magistrate’s decision rested on a finding she made that the three returns rendered by the sheriff were not sufficient to either prove or disprove the proposition that the unit was the primary residence of the defendant. Having decided that, the magistrate pointed out that the requirements laid down in Rule 43A for an order that a primary residence of a judgment debtor may be sold in execution had not been established by the appellant and that, as a result, the application had to be dismissed. The reason for the magistrate’s emphasis on the question as to whether the unit was Mr Zwake’s primary residence is not difficult to discern. In the founding affidavit there was already a submission that, because it had not been established that the unit was his primary residence, the court’s discretion to consider and fix a reserve price was not engaged. The appellant referred the court to the judgment in Body Corporate of Bushmill Sectional Title Scheme vs Kgomo (case number 3039/2020). The court in Bushmill pointed out that if a judgment debtor or his or her family were to be rendered homeless, their constitutionally protected right under section 26 of the Constitution could be violated. Thus, the required exercise of caution before ordering that a primary residence be declared executable. That led to the conclusion that Rule 43A is there to protect the primary residence of the judgment debtor and not any other residence of the judgment debtor. The decision in Bushmill was wrong. Subrule (2)(a) obliges the court to establish whether the property is the primary residence of the debtor, and to consider alternative means of satisfying the judgment if it is, and to refuse to authorise execution unless, after considering all relevant factors, the court considers such execution against a primary residence to be warranted.

Findings: The right of the judgment debtor to be heard is not confined to subjects such as the reserve price, or other conditions of sale which might be stipulated by the court hearing an application under Rule 43A. Whilst the judgment debtor’s absence from the property in question at the time of service might be an indicator, and sometimes a strong one, that it is not his primary residence, that is not necessarily the case. If a person vacates her sectional title unit to allow her aged and unwell parents to occupy it because, for the time being, their need is greater, does that mean that the unit, which is the only residential accommodation she owns, is no longer her primary residence? Does the primary residence of an artisan lose its status as such if he leaves it for a year or so to work on a far-flung project, and lets it in the meantime? The status of residential property is a factual issue, and one upon which the judgment debtor is entitled to be heard. There is every reason to insist on personal service if it can be achieved. The order made by the learned magistrate in the court a quo cannot be faulted.

Order: The appeal is dismissed.

OLSEN J (SHAPIRO AJ concurring)

Facts: The appellant is in the metal recycling business which, by its very nature, has to run 24 hours a day, seven days a week. It therefore operates on a shift system comprising three teams which are colloquially referred to as the orange, purple and blue teams. The dismissed employees were all members of the blue team working on the same shift. The employees, in the past, worked two-day shifts, followed by two-night shifts and closed off their working week with two days off duty. The appellant introduced a new shift system in terms of which the employees were required to work a four-day shift followed by two days off duty, and a four-night shift followed by two days off duty. There was unhappiness about the new shifts, with concerns around fatigue and the dangerous working environment which exposed the employees to heat and furnaces. Members of the blue and purple teams embarked on a work stoppage and this led to disciplinary action and dismissal. AMCU, acting on behalf of the dismissed employees, referred an unfair dismissal dispute to the MEIBC, challenging the substantive fairness of the dismissal of its members, the affected employees.

Appeal: The arbitrator concluded that the dismissal of the employees was fair and dismissed the review application. The Labour Court, on review, determined that the bargaining council (MEIBC) had no jurisdiction to hear and determine the fairness of the dismissal of the AMCU members. It thereupon set aside the arbitration award issued by the arbitrator and directed AMCU to approach the Labour Court for the adjudication of the dispute between the appellant (SA Steelworks) and AMCU’s members (employees). 

Discussion: The appellant submitted that the employees were disingenuous in that during the disciplinary hearings they admitted engaging in other work during the rest periods including selling alcohol, doing other odd jobs, working for an NGO and installing burglar bars and security gates. In doing these activities, the employees compromised their rest periods. The employees did not have fair and valid health and safety concerns but were motivated by their desire to defy the appellant’s authority and work according to a shift pattern that better accommodated their personal circumstances. The arbitrator determined correctly that the nature of the dispute was an unfair dismissal dispute related to misconduct and dealt with the matter on that basis. She determined that the employees wilfully, repeatedly and persistently refused a lawful and reasonable instruction. Therefore, the arbitrator was alive to the definitional principles of gross insubordination and evaluated the evidence on that basis in reaching the conclusion she did. The insistence by the employees on a shift pattern that suited them was not unprotected strike action but a deliberate attempt to defy and overthrow the new shift pattern.

Findings: The Labour Court criticised the arbitrator for not enquiring into the nature of the dispute in order to ensure that she had jurisdiction to hear it. However, AMCU’s case at arbitration was never that the employees were dismissed for their participation in an unprotected strike at any stage. The objective facts show quite clearly that the arbitrator was mindful of her duty to determine if she had jurisdiction to entertain the matter based on the true nature of the dispute between the parties. That is why the arbitrator repeatedly pointed out what her understanding of the true nature of the dispute was and on each occasion, AMCU did not object to her characterisation of the dispute. On the basis of the material before her and the evidence given during the arbitration proceedings, it is clear that the arbitrator had jurisdiction to determine the dispute that had been referred for arbitration, which was that of misconduct characterised by repeated refusals to obey lawful instructions. This conduct constituted gross insubordination which justified the dismissals. It is unfortunate that it was AMCU, which should know better, that encouraged if not instigated this gross disobedience for reasons that are shrouded in obscurity.

Order: The appeal is upheld. The order of the Labour Court is set aside and the review application is remitted back to the Labour Court for determination. No costs order is made.

JOLWANA AJA (SAVAGE ADJP and DAVIS AJA concurring)

Facts: One afternoon in 2021, the plaintiff together with her daughter visited Sunridge Village shopping mall with a view to having dinner at San Fernando’s restaurant. The plaintiff’s daughter was walking in front of her. The walkway in the mall is partly covered and consists of two types of paving bricks. The uncovered part has been paved with charcoal grey pavers. There is also what is called terracotta coloured paving bricks (red pavers) on the area under cover. The red floor surface is elevated and the charcoal grey floor surface is a little bit lower. There is a white line that has been painted on the charcoal grey pavers at the edge of the raised level caused by the curb stone. Whilst on their way to San Fernando’s restaurant the plaintiff stumbled, tripped and fell on the uneven floor. She was injured on her shoulder and subsequently underwent an operation in hospital.

Application: The appellant (defendant) is the owner of Sunridge Village shopping mall, Gqeberha. The respondent (plaintiff) instituted a civil claim against the defendant for damages arising from the alleged negligent conduct of the defendant relating to the maintenance of its shopping mall. The trial court granted an order separating the merits from quantum in terms of Uniform Rule 33(4). The trial court held that the defendant was negligent and therefore liable for such damages as may be proved by the plaintiff. With the leave of the Supreme Court of Appeal, the defendant now appeals to this court.

Discussion: It was submitted on behalf of the defendant that precautionary steps were indeed taken to ensure the safety of the patrons by means of demarcating the elevation with a white line to warn them of the potential hazard caused by the elevation. It was submitted that the fact that the plaintiff only noticed it at the last moment meant that she did not keep a proper lookout and did not have regard for her own safety. The defendant called an expert witness in civil engineering, who testified that the reason for the uneven floors was for the management of water flow towards the intake grids for the stormwater that runs off from the grey area. The defendant led no factual evidence explaining the reason why no further steps were taken, other than drawing the white line, to warn the patrons of the potential hazard. The defendant also led no factual evidence to explain the purpose of the white line. The evidence of the expert was based on the assumption that the white line was meant to be a warning of danger to the patrons.

Findings: The expert conceded that when he explained the purpose of the white line, his explanation was not based on his expertise as an engineer, since there is no provision for that in the building regulations, but he was simply stating that it was painted to make people aware of the raised level. The plaintiff was an elderly person visiting the mall for the first time. This court agrees with the trial court that the defendant reasonably foresaw the inherent danger created by the uneven floors and therefore owed a duty to the members of the public to guard against the eventuality of harm. It failed to take adequate steps to ensure the safety of the members of the public, such as putting up warning signs. The expert conceded that there is no requirement in the building regulations for the marking of a white line and that the defendant “bore a duty to make sure that the danger was clearly visible to people”. The white line did not serve the purpose.

Order: The appeal is dismissed.

TOKOTA J (POTGIETER J and NOBATANA AJ concurring)

Facts: The respondent was admitted as an attorney of the Northern Cape Division of the High Court in 2014; was enrolled as an attorney of this court (Western Cape Division) in 2017 and as such with the applicant (Legal Practice Council). At the time of the complaints giving rise to this application he had been practising as sole director of HFG Attorneys Inc since early 2018. Mr Myburg appointed the respondent to assist him in a maintenance dispute with his former spouse. The respondent told him to pay the full amount of the maintenance arrears of R63,320.24 into his trust account pending a round table meeting which the respondent would arrange with his former spouse. This was duly paid by Mr Myburg on the same day together with R8,000 required by the respondent for a “consultation fee”. Mr Myburg paid a further R10,000 to the respondent at his request as a deposit for the proposed round table meeting. The meeting was never arranged by the respondent and eventually Mr Myburg settled the dispute directly with his former spouse. Mr Myburg instructed the respondent to refund him. The respondent failed to make payment as agreed.

Application: For the striking of the respondent’s name from the roll of attorneys. Two grounds were advanced, namely that prima facie the respondent: (a) misappropriated R73,320.24 held in trust on behalf of the client, Mr Myburg; and (b) failed to comply with the applicant’s request for information in terms of Rule 40.2.4 of its rules. There was also a complaint from Mr Prins because the respondent failed to properly account to him for two deposits made into his trust account of R38,030.50 and R100,000. The purpose was for the respondent to represent Mr Prins in the High Court in a dispute pertaining to his late father’s estate.

Discussion: Mr Myburg’s monies were transferred by the respondent without Mr Myburg’s permission from his trust account to his business account and utilised by the respondent. This is theft of trust monies which is one of the most serious offences a legal practitioner can commit. It is made worse by the respondent’s patently false attempt to justify his conduct ex post facto, with his claim that it was a temporary loan agreement with his client. The respondent not only stole trust monies but attempted to mislead both the applicant and the court to evade responsibility. That at the time of the so-called loan agreement he was practising for his own account while seemingly oblivious to the prohibition on loaning money from a client is also serious. There was also a failure to comply with the applicant’s request for information in terms of Rule 40.2.4 of the Legal Practice Rules. The respondent misled the applicant when he informed it he was returning to the “corporate sphere” in the full knowledge of a pending investigation against him relating to mismanagement of trust funds. He had no intention of doing so at the time. Instead he obtained employment at another firm of attorneys and transferred most of his client files there.

Findings: The respondent is indeed still relatively young (he is 36 years old). Accepted in his favour is that he suffered from severe depression, which he has now taken steps to address. He pleads for a second chance in the form of a suspension and has annexed two references from individuals as to his alleged good character. He also has a family to support. All these are mitigating factors. However, on careful consideration of the evidence the court is unpersuaded that the respondent has a true appreciation of his character defects. That being the case, one cannot be reassured that he will in future act in accordance with such an appreciation. He has also not placed anything before the court to enable it to formulate appropriate conditions, even if minded to impose a suspension. There is simply not enough to show that a suspension with attendant conditions will have the desired result. At present the respondent is regrettably a threat to any potential client, given his track record of maladministration; and he has also brought the profession into disrepute. It is of the utmost importance that the public is able to rely on the trustworthiness and absolute integrity of members of the legal profession.

Order: The respondent’s name is struck from the rolls of attorneys.

CLOETE J (FORTUIN J concurring)

* See also Legal Practice Council v Halles [2024] ZAGPPHC 624 and Maartens v Legal Practice Council [2024] ZAGPPHC 610 where depression is also mentioned by the attorneys.