CASE LAW UPDATE

Facts: The plaintiff, Mr Hendriks, was the estate manager at the Serengeti Golf and Wildlife Estate and the defendant, Mr Hogg, a homeowner and member of the Serengeti Golf and Wildlife Property Owners Association (SPOA/homeowners' association). Mr Hogg sent an email in 2017 to the Board of Directors of SPOA (Board) and later sent a WhatsApp message attaching the e-mail to approximately 150 SPOA members called "Serengeti Gentlemen." The e-mail to the Board of Directors of SPOA advised that he was bringing charges against Mr Hendriks for misappropriation of capital funds of more than three million rand.

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Claim: Mr Hendriks brings a defamation action and seeks relief that the defendant publicly apologize and pay compensation in the amount of R200,000. Mr Hogg denies that the publications were defamatory and wrongful. He advances a response of truth and public benefit, alternatively protected commentary and a privileged occasion as grounds of justification that would render the publications not wrongful but lawful. He further denies animus iniuriandi, of having the intent to injure the reputation of the plaintiff. He pleads defences of justification in the event that the published message is defamatory.

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Discussion: The statement read in context and as a whole, does not impute guilt for criminal conduct. Although the word "charge" was used, a "charge" was not brought to the police. Mr Hogg informed the Social and Ethics Committee of the Board that he wanted an investigation and a hearing into what he perceived as the plaintiff's misappropriation of capital funds. He then informed the homeowners in the Estate on the WhatsApp group of his complaint. Mr Hendriks was in a severely compromised position of interest with the developer. He was serving at the behest of the developer who had the sole right to appoint him, he was receiving a handsome remuneration, free accommodation, his wife received commercial opportunities with the developer and Mr Hendriks personally defended a loan to the developer which was later found to have been a contravention of the Companies Act.

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Findings: The evidence indicates an objective and reasonable grounds for such suspicion. With regards to the community benefit, homeowners of the Estate and the issues at play directly affected all members of SPOA. It was their money at play. SPOA is a non-profit company that exists to serve the members of the Estate. Any improper spending would affect the entire community of the Estate. It is in this context that the WhatsApp group of Estate homeowners were informed of the investigation against Mr Hendriks. There was no intention to defame Mr Hendriks but to get resolutions on problems facing SPOA. Mr Hendriks was satisfied with the letter from the Board to all homeowners and members of SPOA, explaining the charges and the situation that set the record straight. He did not think that anybody, apart from Mr Hogg, thought any less of him or that he was involved in any inappropriate conduct. This is clear proof that Mr Hendriks suffered no harm. The statements are not defamatory or injurious to Mr Hendriks' dignity. Wrongfulness has not been established in relation to the claims.

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Order: The plaintiff's claim is dismissed with costs to be paid to the defendant on scale B.

FRANCIS-SUBBIAH J

Facts: The Court handed down judgment in the main matter between the parties. The order provided that the issue of costs was postponed and would be dealt with after the parties have filed their representations on the issues. This was included in the order due to the court’s concern that its processes were being abused when six identical applications were placed on the urgent roll as individual matters when in fact it appeared to be one application replicated six times. What was of particular concern was that all six applicants evinced identical backgrounds, barring certain information such as their countries of origin and when they entered South Africa or when and where they were arrested. Further that they were all instituted by the same firm of attorneys, Manamela MA Attorneys and contained the same grammatical errors. This gave the inescapable impression that one application was used as a template, and then copied and pasted onto the others.

Costs: The court is called to determine the issue of costs in the main matter between the parties. Although both sets of legal representatives were invited to submit written argument within 14 days from the date of judgment on why a punitive costs order should not be granted against the applicants and/or their legal representatives, the applicants applied for leave to appeal, putting this process on hold. That application was dismissed, but neither they or the respondents subsequently filed any representations.

Discussion: An analysis of the six applications confirms that what was placed before the court was a single affidavit, reproduced six times with minor changes. The inescapable conclusion is that none of the affidavits contain personal information relating to the applicants’ individual experiences, nor can they be regarded as truthful. There is no other conclusion than to find that this is an abuse of the court’s process. Manamela MA Attomeys has found for itself a cottage industry of exploiting vulnerable asylum seekers, who likely do not understand what they are deposing to. The affidavit is signed by the deponent and commissioned by a commissioner of oaths who certified that the deponent signed the above affidavit in their presence; that the deponent knows and understands the contents of the affidavit; and that they had no objection to taking the prescribed oath which they consider to be binding on their conscience. This verbatim format, with minor additions or subtractions was used in the 8 of the 9 matters identified from Manamela MA Attorneys which were judicial reviews against the failure to renew expired asylum permits.

Findings: It is hardly expected for legal practitioners not to make mistakes while drafting. What is unacceptable is for these mistakes to be replicated in almost all of a single law firm’s applications. What this analysis demonstrates beyond doubt is that no new drafting took place but a cut and paste exercise was employed in all the different matters, only changing personal details. The ineluctable conclusion is that Manamela MA Attorneys have involved themselves in “cottage industry” conduct or practices. It is a clear abuse of the judicial process. The use of identical affidavits, not only in this matter, but those recycled in previous matters involving both Manamela MA Attorneys and Mr Vobi were clearly aimed at misleading the courts. Their conduct can only be regarded as deliberate and displayed a lack of care for the interests of their clients and those they cited as respondents. There was also no information placed before the court explaining how the affidavits were commissioned in English when on their purported versions, the applicants only spoke “broken English”. This conduct is wholly incompatible with the duty legal representatives have towards the court and their clients. The matter has raised serious concerns regarding the integrity and conduct of both Mr Manamela and Mr Vobi. The result is that this matter must be referred to the Legal Practice Council for further investigation.

Order: Mr Manamela and Mr Vobi are ordered to pay the costs of the main application de bonis propriis on scale A.

MLAMBO J (TWALA J and COLLIS J concurring)

Facts: The applicant, currently 58 years of age, and the first respondent, 56 years of age, were married to one another in 1992 out of community of property, subject to the accrual system. The two children born of the marriage have both attained majority and are employed. The relationship between the parties broke down in August 2016 and cohabitation between the parties came to an end approximately 8 years ago. The parties have not spoken for more than four years. The litigation has endured for seven years during which time 13 subpoenas have been issued and five Rule 35(3) notices issued, in some of these as many as 330 items have been called for, and some items spanning a number of years, mostly 14 to 17 years. Both parties have formed committed permanent life partnerships with third parties. The first respondent and her permanent life partner cohabit in the Western Cape and have so co-habited for at least the past three years. The applicant wishes to marry his new life partner whom he met in 2019.

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Application: The applicant (the plaintiff in the divorce action) brings an application in terms of Uniform Rule 33(4) in which he seeks an order separating the issue of a decree of divorce from all other issues between the parties in the divorce action. The first and ninth respondents (the defendant in the divorce action and a trustee in one of the trusts) oppose the application. The applicant's aged parents, being 83 and 85 years respectively, wish for their son and his fiancée (as the applicant refers to her) to be married, and furthermore wish to be present at the wedding ceremony. Thus the need for a separation order which would facilitate his re-marriage relatively soon, but leave him and his ex-wife to litigate out the proprietary and related disputes, the postponed issues, at the leisure of the parties.

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Discussion: The first respondent has delivered no less than five Rule 35(3) notices in which she calls for a vast number of documents. She has issued no less than 13 subpoenas duces tecum. She interrogates, in minute detail, transactions and the management of the trusts and the trustees' decisions over an extended period. The very extensive discovery process will, in all likelihood, be followed by further steps to address and interrogate what is gleaned from the further discovery. It is clear that the entire action may not readily and soon be brought to trial readiness. If a divorce order is granted, one will have a “strike date”. The beneficial consequences of a strike date, by granting the decree of divorce, would include that the parameters, or extent of the discovery insofar as the period is concerned, will be defined and be finite. The conundrum of ongoing discovery of a very significant volume of documents growing ever larger will be resolved. Accrual is calculated as at the date of divorce. For so long as divorce is withheld the set of relevant documents metastasizes indefinitely, the calculation of the accrual is a moving target, so expert reports and other milestones in litigation rapidly become superannuated and the opportunity of each spouse to attain a “clean break” and commence building a new life moves towards an ever-receding horizon, causing untold uncertainty, lack of finality and misery in people’s lives.

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Findings: It is clear that obtaining a “strike date” for the determination of the accrual is, in this matter, convenient, and it will be convenient to both the court and to the parties. The separation order should also be granted as the applicant should not be shackled to a dead marriage. It offends public policy to permit parties to share in a “partnership” of fluctuating fortunes where they have not spoken in four years and where the “partnership” came to an end almost eight years ago. Marriage remains an important institution in our society but it has content which includes love, respect, social interaction, to name but some values endorsed and recognised by the institution. The relationship between the applicant and the first respondent currently has none of that. Both parties are in separate committed relationships. The persistence on a moribund marriage makes a mockery of the institution of marriage and offends public policy on the facts of this case.

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Order: In terms of Uniform Rule 33(4), the determination of the issue of the decree of divorce is separated from all other issues between the parties which are are postponed sine die (see para [28]).

OPPERMAN J

Facts: Sand Hawks (appellant) engages in the exploration for, and the exploitation of, mineral resources in South Africa. Labonte (respondent) is in the same industry. Labonte lodged an application in terms of section 22 of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) for mining rights in respect of sand over various portions of several farms in the Limpopo region. The Regional Manager (RM) accepted the Labonte application in part. Sand Hawks submitted their applications for mining permits over the same properties, which were accepted. Following Sand Hawks’ accepted application by the Regional Manager, Labonte lodged another application at the advice of the Department to address the Regional Manager’s error. Labonte was eventually granted mining rights. More than a year later, Sand Hawks subsequently lodged an internal appeal in terms of section 96 of the MPRDA against this decision, claiming the Regional Manager was functus officio after his initial partial acceptance of Labonte's application. The Director General upheld Sand Hawk’s appeal. Labonte then sought to review the decision of the Director General in the High Court on four grounds, including the Director General’s failure to apply their mind to the issue of condonation as the Sand Hawks’ application was lodged almost 13 months after the DDG had granted Labonte its mining rights and five years after the Regional Manager had advised Labonte he would accept its application in full.

Appeal: The High Court found in favour of Labonte and held that the law regarding functus officio applies only to final decisions. The Regional Manager's decision was not final but a preliminary step, allowing for subsequent corrections. The High Court granted an order reviewing and setting aside a decision of the Director-General and the decision of the regional manager, who had granted Labonte mining rights over certain portions of the property. This appeal is against the judgment and order of the High Court.

Discussion: The reasons provided by the DG for not participating in the proceedings are not sufficient. In what was produced as the Rule 53 record, there is no record where the DG during the proceedings enquired into this delay of five years (in respect of the RM’s decision) and one year (in respect of the DDG’s decision to grant Labonte’s mining rights). The DG failed to apply the "unfairness and travesty of justice" notion which the legal division’s functionaries suggested should be the basis for his consideration of Sand Hawks’s late appeal. The DG did not consider Labonte’s appeal and its application for condonation. The DG did not participate in the proceedings from the onset. Nor did he file any affidavit. The DG's decision in relation to the internal appeal lodged by Sand Hawks should be declared unlawful and set aside in terms of section 6(2)(d) of PAJA as it was materially influenced by an error of law. Labonte’s application was compliant with section 22 at all material times. It was the RM, as he acknowledged, who made a mistake, meaning the fault lay squarely with the RM. The RM worked on correcting the mistake, albeit after accepting Sand Hawks’ application for prospecting rights over the same properties.

Findings: The subsequent acceptance of Sand Hawks’ application was with a caveat, as provided in terms of section 9(1)(b), that is subject to prior rights of the Labonte application. Applying the same "first come, first served" notion, and because Labonte’s application which was compliant with the MPRDA came first and should have been accepted but for the erroneous belief of the RM, the ineluctable conclusion must be that Labonte cannot be expected to commence the process afresh and lose its place in the queue. It would be unbusinesslike to conclude thus. The RM’s error in respect of one part of the application, which was indeed compliant with section 16, did not nullify the whole application. The application remained "alive" and could be corrected. Labonte kept its position until the RM corrected his error and added the property which was omitted due to his error. Labonte’s application thus remained an impediment to any subsequent application, such as that of Sand Hawks. The fact that the High Court found the RM’s decision not to be final and that he was not functus officio, does not detract from the fact that the RM’s decision is an administrative decision and action which is subject to review. The High Court was correct.

Order: The appeal is dismissed with costs.

MOCUMIE JA (MEYER JA, GOOSEN JA, KOEN AJA and SEEGOBIN AJA concurring)