top of page

CASE LAW UPDATE

11 December 2024

CIVIL LAW – Defamation – Identification – Material published by respondents on their website – Alleging applicant’s product is fake – Applicant must prove link between publication and defamed person – No reference to applicants by name – Failed to prove link between material published on respondent's website and applicants – Publication did not directly reference applicants – Failed to prove requirement of essential link – Application struck out.

Facts: The applicant and respondent manufacture a health drink containing aloe ferox. They market it under the same name, Jigsimur. The applicant states that it is used to help treat various ailments. The applicant provided a historical account of the product, much of which is disputed by the respondents. Ungerer sourced the original formula in the 1980s from an advert in a magazine of that era and commenced with its production. He approached the applicant’s father, Omar, who operated a cold drink manufacturing plant, to bottle the product. The applicants and Ungerer and then Ungerer’s wife, Rouxnel, produced the product simultaneously but from different sites after 2005. This application concerns material published by the respondents on their website concerning Jigsimur. The application commenced as a two-part urgent application. The parties took an order by agreement. The respondents undertook to resist making statements for six weeks, that the applicant's product is counterfeit or fake.


Application: The court is asked to determine the relief sought in Part B of the application: an order declaring that the impugned content on the respondent’s website is false, unlawful and defamatory; and for a final interdict prohibiting the respondents from defaming the applicant.


Discussion: The applicants attached a screenshot of the respondent’s webpage to its notice of motion. The screenshot is headed “Fake Jigsimur products and fake factory video”. It contains extracts of online advertisements from two large retailers operating in the South African marketplace, namely Takealot and Makro. The adverts reflect a product with distinctive labelling and the title page of a video: “Welcome to the Jigsimur Factory”. The applicant alleged that the adverts are of the Jigsimur product they sell on Takealot, and the video is of their factory and the manufacturing and packaging process. The applicant must prove at the outset that the publication of defamatory matter concerns them. There is no reference to the applicants by name in the publication. The respondents asserted that the applicants had not provided any evidence to indicate any defamatory or unlawful conduct by them against the applicants contained on the screenshot or the respondent's website. The video has three distinctive features.


Findings: The applicants failed to exploit any of the three distinctive features in the video to connect the video to them. Had the applicants addressed any or all of them appropriately by either explaining the web and email addresses, the labelling affixed to the bottles, or the personnel appearing in the video with the necessary confirmatory affidavits, they may have linked it as a video of the applicants' warehouse. The applicants seek a declaratory order that the statement published on the respondents' website is false, unlawful, and defamatory and a final interdict prohibiting the respondents from defaming the applicants. The applicants floundered on the most important element of this application, being identification. The applicants had to prove that the statement referred directly or indirectly in a way that a reasonable person would understand it to be about the applicants. The alleged defamatory material on the website did not refer to the applicants by name or contain their images. The applicants had failed to prove the link between the material published on the respondents' website and them. The applicants failed to identify any distinctive feature of the products sold by the two retailers or in the video that linked them to the applicants.


Order: The application is struck out with costs.

BHOOPCHAND AJ

COMPANY – Winding up – Liquidator – Remuneration – Master refusing application to increase remuneration substantially more than prescribed statutory tariff – Argued that affairs of company were complex and forensic investigation required – Lacking authority and locus standi to bring the application – Court nevertheless considering the grounds relied on – No grounds upon which court can find that Master's decision was clearly wrong – Application dismissed – Companies Act 61 of 1973, s 384(2) – Insolvency Act 24 of 1936, s 151.

Facts: Brick Art Construction (Pty) Ltd (BAC) was placed in business rescue in 2019 but in 2020 the business rescue practitioner commenced proceedings for winding up and a provisional order of liquidation was granted. The provisional liquidators were appointed and the final winding up order was granted. The first meeting of creditors were held later in 2020 on which date the final liquidators were also appointed. In accordance with section 384(2) of the Companies Act 61 of 1973, the Master may reduce or increase the reasonable remuneration that a liquidator should receive for his services, which remuneration is to be taxed on a prescribed tariff.


Application: For the review and setting aside of the decision taken by the Master in terms of section 384(2) of the Companies Act 61 of 1973, to refuse the application to increase the remuneration of the liquidators in a first liquidation and distribution (L&D) account by more than double the prescribed statutory tariff.


Discussion: The applicants assert that the affairs of BAC were complex because: it was a constructor of luxury homes; it held unprofitable yet, uncompleted building contracts that were not profitable to complete; it had at that stage liabilities in excess of R40 million with assets of only approximately R3,6 million; it had about 17 different bank accounts, being one for each building contract as well as separate operational cost related bank accounts. It is alleged that an inordinate amount of time was spent investigating the affairs of BAC from a forensic perspective spanning the pre- and post-business rescue period. The administration of BAC's winding up was undertaken mostly during difficult pandemic lock down conditions. Liquidators, however, cannot do the bidding of major creditors only, and expect to be remunerated with an increased fee for doing so, when that increased fee may operate to the detriment of all creditors, including those that did not make the request for a forensic investigation.


Findings: The Supreme Court of Appeal saw fit to express itself on the nature of applications by liquidators where they challenge their fee and pronounced it to be a self-interest cause. The applicants in casu bring this application in their own personal interests, therefore this application should fail on the ground that they do not have the authority to bring this application, nor the locus standi to do so. Nevertheless, the court proceeds to consider all the grounds upon which the applicants base their challenge. When section 384(2) of the 1973 Companies Act is read with section 151 of the Insolvency Act 24 of 1936, it becomes clear that the court's review powers are limited by the Master's discretion. The court can only interfere with a decision made by the Master if it is "clearly wrong". In applying section 151 of the Insolvency Act, there are no grounds upon which this court can find that the Master's decision was clearly wrong.


Order: The application is dismissed with costs, such costs to be on an attorney and client scale, where scale C is applicable.

ALLIE J

MUNICIPALITY – Billing – Dispute – Management of municipal service account for residential property – Allegations of billing irregularities – Seeking adjustments of account – Respondent issued erroneous bills – Failure to rectify despite attempts by applicants to resolve inaccuracies – Extraordinarily high consumption figure – Implausible for residential use – Responsibility for rectification rests with respondent – Application succeeds – Local Government: Municipal Systems Act 32 of 2000, s 102(2).

Facts: At its core, the case concerns the management of a municipal service account for a residential property, allegations of billing irregularities, and the respondent's decision to disconnect services due to non-payment. The dispute has unfolded against a backdrop of contested charges, allegations of administrative failures, and disagreements over legal entitlements to payment and service provision. The applicants assert that the municipal account for the property, registered in the name of the deceased, has been improperly managed by the respondent. They contend that the account was erroneously opened in the deceased’s name and that the respondent continued billing on this account following his death in 2021 without rectifying the associated errors. These errors include allegations of overbilling, reliance on faulty or removed meters, and the continued accrual of charges for services that were either disputed or allegedly not rendered. The applicants claim that these issues were raised with the respondent as far back as 2014, but despite repeated efforts to resolve the disputes, the errors remain unaddressed.


Application: What the applicants seek is an order directing the respondent to open an account in the name of the first applicant and to transfer all charges from the account which was held in the name of the first applicant’s late husband to the first applicant’s newly established account. What the applicant then seeks is an order directing the respondent to write off any amounts which are demonstrated to have become extinguished through prescription as at the date of the notice of motion. The respondent has not suggested, in respect of these charges, that the running of prescription was interrupted through the issue of a summons, an acknowledgement of debt, or on any other basis. It does, however, dispute that the debts have prescribed.


Discussion: Despite nearly a decade of attempts by the applicants to resolve the persistent inaccuracies in their municipal account, the respondent has continued to issue erroneous bills. The applicants have repeatedly identified these flaws, yet the respondent has failed to rectify them, necessitating this application. It is evident from the constitutional and statutory framework that the applicants possess a clear right to municipal services, which are provided reciprocally against reasonable and lawful payment. This includes the respondent’s duty to investigate and respond to any legitimate queries raised by the applicants, as well as to bill them accurately and transparently. The respondent is only entitled to recover amounts that are lawfully due for actual consumption, and not for estimated or fictitious charges based on data from removed or faulty meters. Accurate billing, underpinned by proper metering systems, is fundamental to the respondent’s obligations. The applicants first raised a formal dispute regarding the inaccuracies in their municipal account in December 2014. From this point onwards, section 102(2) of the Municipal Systems Act 32 of 2000 became operative, prohibiting the respondent from allocating payments to the disputed charges. Despite this statutory safeguard, the respondent has failed to address the dispute adequately, perpetuating the billing inaccuracies and acting contrary to its obligations.


Findings: The respondent attributed an extraordinarily high consumption of 186,370 kWh to a single month. This figure is implausible for residential use. Instead of distributing this anomalously high figure over the 37-month billing period to establish a reasonable average, the respondent concentrated the entire amount in one month. This bloated reading elevated the account into the highest tariff bracket for that month, thereby inflating the charges even further. The improbability of the respondent's calculations is underscored by its own data. The discrepancy is mathematically indefensible. The applicants have satisfied all the requirements outlined for raising a valid dispute under section 102 of the Municipal Systems Act. Accordingly, a legitimate and ongoing dispute exists concerning the municipal account. While the applicants may raise a dispute and allege inaccuracies, the respondent bears the burden of proving the accuracy of its invoices. The rectification of the municipal account involves far more than a simple recalculation of a debt. The responsibility for this rectification rests with the respondent, as the applicants lack access to the full range of information necessary to verify the account. The respondent’s rebilling has produced an account that requires rectification not only through proof of various adjustments but also through a holistic reassessment of the inaccuracies. This is not a simple mathematical exercise, nor can the respondent rely on prescription to escape its obligation to correct these errors.


Order: The respondent is directed to open an account in the name of the first applicant, in respect of the property, and the applicants and the respondent are directed to co-operate with one another to facilitate the opening of such account. All debits and credits in respect of charges levied by the respondent in relation to the property from 5 May 2021 to date are to be transferred to such new account. The respondent is directed to rectify the municipal accounts in relation to the property by ensuring that the amounts which became due on or before 4 May 2018 are no longer owing.

MAHON AJ

PERSONAL INJURY – School – Learner assaulted – Age 6 when struck on hand with stick by child-minder – Postulations of experts on premise that child psychologically scarred – General speculative hypotheses – Suffered pain and discomfort for approximately two weeks – No evidence of any permanent disability – Not proven that child’s earning capacity adversely affected because of this single incident – Cases on general damages compared – R30,000 awarded.

Facts: An incident allegedly occurred in 2015 when O was assaulted with a stick on his hand by a teacher at the primary school, where he was a Grade R learner. Ms J testified that O came home during the afternoon and reported that he was assaulted with a knobkierie on his hand by his teacher. O’s hand changed colour and turned blue. She took him to the clinic for medical treatment. There was however no improvement. She took him back to the clinic and was referred to a hospital for further medical treatment. She also reported the incident at the school. According to the industrial psychologist this incident happened when O was at the tender age of six years. It negatively affected his psychological well-being. Post-incident, he will struggle to obtain Grade 12. He needs to be placed in a special school. He will only be employed in the informal sector doing unskilled labour and mostly light work, it is proposed.


Claim: Ms J issued summons out of this court against the MEC for Education, claiming damages on behalf of her son, O, in the amount of R7,000,000 for future medical expenses, loss of amenities of life, and pain and suffering. The educational psychologist testified that O was injured at a vulnerable stage of his development. This resulted in him performing far below the accepted level for his age. The incident affected his emotional functioning. He is fearful and does not feel safe. He cannot write nor spell words. The more years go by, the more his performance drops.


Discussion: The court refused the acceptance of the actuarial report into evidence, because the correct procedure was not followed. An objection was raised because it was handed in on the morning of the trial, at court, to the defence. The industrial psychologist made some postulations regarding pre-morbid and post-morbid earning capacity. See para [30]. However, the industrial psychologist is not an actuary. There is no evidence that O in future will not overcome his fear and anxiety. The fact that he failed Grade 3 cannot be ascribed to what happened to him in Grade R, as he passed Grade 1 and 2 after the incident. O’s future is definitely not destined for doom. He has retained his learning ability and is described as a child of average intelligence. The postulations of the experts move from the premise that O is psychologically scarred which will affect his future prospects in life. However, O did not lose the use of his hand and neither has he been rendered disabled in that regard. He suffered pain and discomfort for approximately two weeks in total, received medical treatment at a clinic and in hospital, and there is no evidence of any permanent disability.


Findings: The general speculative hypotheses that O will be affected by the incident in future, does not favour the case for the plaintiff, that O’s earning capacity will be so detrimentally and adversely affected because of this single incident. The only answer the educational psychologist could proffer regarding O’s slow developmental milestones is that one would have to then look at “other things”, which have not been explained to this court. The industrial psychologist equally provides no cogent answer to this conundrum. This court is not swayed by the evidence of these experts and does not accept the offer by the plaintiff to equally embark on conjecture and speculation in quantifying damages on O’s alleged reduced earning capacity. The plaintiff has failed to prove that O will suffer a reduction in his earning capacity. From para [19] the court looks at cases where awards were made for general damages.


Order: The MEC is liable for 100% of the plaintiff’s proven damages. The MEC shall pay R30,000 for damages suffered as a result of the assault. The MEC shall pay the costs of suit on a party and party basis on the magistrates court scale, to be taxed.

HENDRICKS JP

LPC TO FINALISE DISCIPLINARY PROCESSES

Two attorneys were suspended from practice pending finalisation of investigations against them and subsequent disciplinary proceedings. They applied for the setting aside of their suspensions. The LPC has received several complaints and have been conducting investigations over a number of years. After the suspension, several further complaints were received. The LPC cannot be allowed to drag their feet to the detriment of the applicants who are entitled to finality. Their professional and personal lives are at stake. Notwithstanding the submissions that the suspensions should be set aside now, the court is not willing to accede to their request. There appears to be sufficient bright red lights that stand in the way of granting relief to the applicants. It is prudent to grant the LPC a final opportunity to get their proverbial ducks in a row.

60-DAY LIMIT ON SUSPENSION

Binza argued that his continued suspension subjected him and his family to psychological stress and trauma and diminished his dignity. He also suffers reputational harm in consequence of his suspension. He is confident that a ruling from the bargaining council on his unfair labour practice claim over his suspension will be in his favour. However, he contends that such an award will be a pyrrhic victory because it will not address the harm which he currently experiences because of the department flouting the policy governing the extension of his precautionary suspension. The department argues that Binza was implicated in misconduct in several disclosures made by a whistle-blower, whom he had allegedly threatened in a meeting. It claims also that several witnesses had come forward to assist the investigation, after he was suspended. In the circumstances, it was concerned his presence at work could possibly undermine the investigation. The application is struck off the roll for lack of urgency.

LATEST ONLINE NEWS  (click on heading to view article)

The project was bankrolled by the Global Fund, one of the world’s largest health financiers.

Meanwhile, RAF CEO Collin Letsoalo thinks it’s all a ploy to use the RAF as a cash cow.

Expert witness – Unproven evidence – Based report on hospital records which were incomplete.

Will not pay out any claims where accidents were caused deliberately, even if it led to a death.

But some evidence, including WhatsApp messages and photographs, will not be heard in public.

Veteran actor Sello Maake kaNcube has broken his silence after allegations made by his estranged wife.

Master plan seeks to establish a comprehensive framework for the different elements of the industry.

Cape Town metro police has assisted SAPS with the analysis of CCTV footage.

For example, student leadership engaged in quid pro quo transactions of rooms for sexual favours.

"It has all the classical markings of a pyramid scheme,” an investor complained.

Warning to watch out for suppliers who sell non-compliant goods as well as suppliers who are untraceable.

Attended the bail hearing of five suspects linked to spiking and violent attacks along the N1 highway.

The foreign nationals included 20 children who are now in the care of Zimbabwean child welfare authorities.

Case involving top PRASA official and theft of 42km of railway line has stalled for at least 21 months.

The state sought to have Advocate Norman Arendse recused over an alleged conflict of interest.

Alleged to have benefited from R1,2m fraud around corporate social investment programme of bank.

The miner was brought to the surface by a community-led rescue team.

Joburg Water’s non-revenue water (NRW) was at a staggering 46% in the City of Johannesburg.

National Treasury says that it will still take years for NHI fund to be established and even longer for roll out.

ARTICLES AND UPDATES

Their lawyer said the cases had been dropped "because the crime did not exist".

Few details are known about the circumstances leading up to Hoskins's death.

The employer concluded that the employee had attempted to sabotage the work-product.

Netanyahu, 75, is Israel’s first sitting prime minister to be charged with a crime.

The sport has long faced criticism, with some breeders accused of mistreating or doping the animals.

Deployed ground troops both into and beyond a demilitarized buffer zone for the first time in 50 years.

Must now try to unite a country cleaved apart by more than a decade of civil war.

Growing judicial support for ADR to enhance fairness, efficiency, and cost-effectiveness in litigation.

Ruling denies the billionaire's bid to change a family trust and give control to his eldest son.

Avalanche of litigation because of the common use by competitors of the same pricing software.

Backers of blocked Utah railway proposal want justices to narrow scope of 50-year-old legislation.

26-year-old scion of a wealthy Baltimore family was a high school valedictorian and an Ivy League graduate.

© 2025 SPARTAN CASE LAW (PTY) LTD – ALL RIGHTS RESERVED

Spartan Caselaw provides the best tools for litigation with daily reporting and an extensive case law collection.
bottom of page