CASE LAW UPDATE

Facts: The two appellants were convicted in the Regional Court, of the rape of a 17-year-old boy, Mr JJ. The provisions of the minimum sentence legislation applied to the charges. The appellants were each sentenced by the regional magistrate to life imprisonment. The appellants unlawfully and intentionally committed an act of sexual penetration with the complainant by each of the appellants inserting their penis into the anus of the complainant without his consent. The judgment deals with the unchallenged evidence led regarding the intellectual functioning of the complainant, his ability to consent to sexual intercourse and his competence to testify as a witness. In this regard the State tended the evidence of Ms Hundermark, a clinical psychologist and attached to Cape Mental Health, regarding her assessment of the complainant and her findings. The judgment will also deal with the medical examination and report (the J88) by the authorised medical practitioner, Doctor Mukombe, a locum doctor on duty on the night of the incident. Because of Dr Mukombe not being available to testify in person, the State entered the J88 report into evidence through the evidence of Dr Marisa Crous, and her interpretation and expert opinion in respect of the recordals made by Dr Mukombe.

Appeal: The appellants challenged their conviction of the rapes by contending that the regional magistrate erred in finding that the complainant’s evidence was satisfactory in all material respects. They also contended that the regional magistrate failed to exercise caution in the evaluation of not only the evidence of the complainant as a single witness but also that of the evidence of the complainant’s foster mother Ms Daniels as the first report and so too the shortcomings in the J88 report which the appellants contended did not support the complainant’s evidence. The appellants further contended that the State failed to prove that the complainant had properly identified the appellants as the perpetrators of the offence. The appellants allege that the court a quo erred in not finding that the appellants version was reasonable possibly true, and for having rejected their version.

Discussion: The regional magistrate was satisfied that the complainant was not only a competent witness but that he had made a positive impression on her. She also noted that he made several concessions which was indicative that the complainant did not seek to unnecessarily prejudice any of the appellants. The complainant readily conceded that he had assaulted the first appellant prior to the charges of rape been laid against them. He also conceded that he was a drug abuser which led him to become confused at times. The contradictions were not material and did not detract from his overall version of the physical attack on him by the appellants and the sexual assaults. It is apparent that Dr Mukombe had paid scant regard to the complainant in his examination of him. His handwriting was moreover illegible and seriously compromised the efficacy of his report. On the face of it, his recordals demonstrated that he had simply failed to have appreciated the seriousness with which he was required to have conducted the examination of the complainant and to have filled in each of the items on the form. Dr Crous had systematically dealt with each of the items in the J88 and pointed out inconsistencies in the observations and recordals made by Dr Mukombe. Her finding was that the bleeding emanated from the anus which was indicative of a serious condition.

Findings: Neither of the appellants impressed as credible witnesses. The first appellant was happy to chop and change his testimony whenever it suited him. It was clear beyond any doubt that they had sought revenge against the complainant for him having previously assaulted the first appellant. Notwithstanding that, criminal charges had also been laid by the first appellant against the complainant. What the appellants had opportunistically appeared to do was that one of them had observed the complainant smoking earlier that evening and they later came upon him amongst the shacks. They floored him, dragged him across the road and there each of them in turn sexually assaulted him by penetrating him in his anus with their penises. They did so with the utter abuse of their power in having found the complainant in a vulnerable condition, alone in the dark in the shack area. Their conduct was predatory as the complainant was literally at their mercy, having been threatened with a knife and unable to provide any real resistance against the two of them. The regional magistrate had correctly rejected the version of the appellants as not being reasonably possibly true. The State has proved beyond reasonable doubt the rape by each of the appellants of the complainant.

Order: The appeal against the convictions of rape by each of the appellants is dismissed. The convictions of rape of each of them is confirmed. The sentences of life imprisonment imposed on each of them by the court a quo is confirmed.

SALDANHA J (ADAMS AJ concurring)

Facts: The respondent (Frame) conducts a retail business focussing on sports apparel, footwear, and accessories. Frame has a large workforce and many different retail branches. At all material times, its workforce exceeded 1,000 employees based at about 140 stores nationwide. Ms Mavundla (the applicant) was engaged by the respondent as its payroll administrator. Frame gave Mavundla notice of a disciplinary hearing at which she would face charges that she: (1) deliberately failed to process payroll information that resulted in substantial loss to the company; (2) she was insubordinate by not responding to a formal request for feedback on payroll discrepancies; and (3) she had seriously breached the trust relationship between herself and Frame. After the hearing, the chairperson found the applicant guilty of all the charges and dismissed her.

Application: The applicant alleges that the true reason for her dismissal was her race, and her dismissal is therefore automatically unfair in terms of section 187(1)(f) of the Labour Relations Act 66 of 1995. The commissioner at the CCMA found that the dismissal of the applicant was procedurally and substantively unfair. However, this court reviewed and set aside the award on the basis that the CCMA had no jurisdiction to hear and determine such dispute, given the applicant's allegation that she was dismissed on the basis of her race.

Discussion: Mavundla had reported to Mr Pretorius. In emails to a recruitment agent, Pretorius stated that he did not wish to engage another black person, but he would prefer a white woman graduate. Pretorius further stated "these people are not reliable anymore". There can be little doubt that Pretorius meant that black people are not reliable anymore. A mere two days after Pretorius emailed the recruitment agent informing her that he would like a white woman to be brought in to assist with payroll, a white woman was indeed brought in. Following her dismissal, the applicant indicated that she wished to extract and save (onto a memory stick) personal information that was stored on her work laptop. Pretorius told her that her laptop had been sent to "forensics" because blacks are criminals. Shortly after the applicant had been dismissed and asked to leave the premises, Pretorius called her the k-word.

Findings: It is appropriate to draw an adverse inference from respondent's failure to call Pretorius or Mr Nhlapo (the chairperson of the disciplinary hearing). The inference is that Nhlapo was influenced by Pretorius to dismiss the applicant, and that Pretorius was motivated to dismiss the applicant because she was black and therefore not capable of being trained. The applicant's work performance was, perhaps, not exemplary, but it is clear that she wished to address the inefficiencies. The respondent was unwilling to indulge her failings because she was black. By failing to call Pretorius, the respondent could not displace the indications in the emails that Pretorius wished to replace the applicant with a white woman. The respondent, represented by Pretorius, deemed the applicant to be unreliable because she was black. Accordingly, but for the applicant's race, she would not have been dismissed.

Order: The respondent's dismissal of the applicant is declared to be automatically unfair in terms of section 187(1)(f) of the LRA. The respondent is ordered to pay the applicant compensation equivalent to 24 months wages, less any statutory deductions. The compensation must be paid within 14 days of this judgment. Each party will bear their own costs.

DANIELS J

Facts: At the time of the accident, the plaintiff was a Grade 5 learner and, together with the other learners of the school, was being conveyed from the school to destinations in New Town, Postmasburg. It was not in dispute that by virtue of section 60(1) of the South African Schools Act 84 of 1996, the State (represented by the HoD and the MEC for Education in the Northern Cape) was liable for the delictual damages suffered by the plaintiff in 2006 when she was pushed or fell from the moving Nissan bus which was operated by the Frans Hael Bus Service. The issue of liability was settled and in terms of a consent order it was ordered that the HoD, MEC and Frans Hael Bus Services, jointly or severally, would pay to the plaintiff the sum of R10 million.

Apportionment: The HoD and MEC, on the one hand and the Frans Hael Bus Service, on the other hand, were declared to be joint wrongdoers in terms of section 2(2) of the Apportionment of Damages Act 34 of 1956, and the court would make a just and equitable apportionment, having regard to the degree in which each joint wrongdoer was at fault in relation to the damages suffered by the plaintiff.

Discussion: This court cannot see how the previous court could have determined in the consent order that the HoD and MEC on the one hand and the Frans Hael Bus Service, on the other, are joint wrongdoers for purposes of the Apportionment of Damages Act, when it had not determined their respective degrees of negligence which is causally linked with the damage. The assessment or determination of the defendants’ respective degrees of negligence for the purpose of apportionment cannot be thumb-sucked. It must be based on the evidence before the court. In this case, no evidence was presented which could have enabled the court to determine, let alone to assess, the negligence or fault of the respective defendants. This makes it even more difficult to imagine how the court could have been able to determine that the Hod and MEC on the one hand and the Frans Hael Bus Service, on the other hand, were both negligent and that their negligence was causally linked to the plaintiff’s damages.

Findings: The liability of the HoD and MEC to compensate the plaintiff in this case is statutory, not delictual in nature. For this reason, so it is argued, the HoD and MEC cannot be joint wrongdoers with the Frans Hael Bus Service. This contention finds support in various judgments of our courts. Because apportionment is based on fault in its ordinary sense, the purpose of which is to measure each of the parties’ degree of fault or negligence, absent “fault” or negligence on the part of the HoD and MEC, as it is the case here, then there cannot be apportionment of liability between the HoD and MEC on the one hand, and the Frans Hael Bus Service on the other hand.

Order: There is no apportionment of liability between the HoD and MEC on the one hand, and the Frans Hael Bus Service on the other hand. Each of the defendants shall bear their own costs.

RAMAEPADI AJ

Facts: The plaintiff in this action, Miss M, a chartered accountant and a retired pilot, is contesting the validity of several wills executed by her deceased father a few months prior to his demise after he was diagnosed with pancreatic cancer and in terms of which the plaintiff was excluded, and in her stead an ex-wife divorced from the deceased for 17 years was appointed as a beneficiary. The wills revoked a will which included the plaintiff as a beneficiary that was executed by the deceased prior to his diagnosis. The deceased’s testamentary capacity at the time of execution of the impugned wills is put in issue. The testator’s attorney at the time of execution of the will is accused of failure to act in the deceased’s best interest to the detriment of the plaintiff. The plaintiff is one of the deceased’s only two daughters. The plaintiff’s action is brought against Mr Porkroy, the first defendant, who was the deceased’s old friend and attorney. He was the drafter and the nominated executor of all the deceased’s wills. On the demise of the deceased, he was appointed as an executor of the deceased’s estate. The deceased’s widow, Ms W, is the second defendant. She is named as a beneficiary in the last three wills contested by the plaintiff.

Application: The deceased executed a will (the first will) in terms of which he bestowed all his estate in equal shares to his only offspring, the plaintiff and B. Three days after the deceased was diagnosed with pancreas cancer, Ms W, from whom the deceased was divorced, reappeared and moved into the deceased’s home. Five weeks after Ms W’s reappearance, the deceased revoked the first will by executing another will (the second will). He in terms of the second will bequeathed his whole estate on Ms W, B and the deceased’s grandson in equal shares to the total exclusion of the plaintiff. The deceased executed a fourth will, three days before his demise, leaving his whole estate to Ms W and B, again disinheriting the plaintiff. The plaintiff seeks an order directing the Master of the High Court to accept in terms of section 2(3) of the Wills Act 7 of 1953, the first will as the last will and testament of the deceased. The plaintiff further seeks the removal of Mr Porkroy as executor.

Discussion: The evidence is that the deceased was emaciated and very weak and would just sit on the chair. He couldn’t ambulate properly at the time it is alleged Pretorius had visited him. B was there on the same day and observed the deceased being confused and exhibiting mental vulnerability which could be attributable to acute brain failure which according to Colin may emanate from the withdrawal of morphine. Pretorius was not seen by anybody, and he also saw nobody. Potgieter’s evidence was staged. It was unlikely that the deceased would have been jovial, opening doors for him and strong enough to drive his car out of the garage with his challenges and swollen feet. The deceased had already sold his house so the comment that he said he can now sell his house cannot be true. His allegation that he was at the wedding and there was no alcohol is also false. Not only is it clear from the factual and medical evidence that the deceased was mentally challenged such that even though he seemed to understand the nature of his act, that he was making a will, and the extent of his property, he however lacked the comprehension and appreciation of who his natural heirs were, that is the people with a claim on his estate and on whom he might consider bestowing his assets. He therefore lacked the testamentary capacity to execute a valid will.

Findings: It is evident that due to his vulnerability, Ms W’s dominance, and his susceptibility to capitulate under pressure and instigation, his wishes were replaced with the wishes of Ms W, such that the will does not reflect his wishes but that of Ms W who was actively involved in the arrangement for the execution of the wills, deciding on the beneficiaries and the manner of devolvement of the deceased’s estate, whereupon through deception and exertion of pressure on the deceased, she is one of the beneficiaries under the will to the exclusion of the deceased’s other natural heirs. Through her instigation she also stands to benefit more. The will therefore also stands to be declared invalid due to the improper and undue influence. Her conduct not only was improper but tantamount to coercion and should disqualify her from inheriting. It is evident that Mr Porkroy was not only aware of the illness of the deceased and the extent thereof but also of the procedures that he underwent and the outcomes, as he was always kept abreast by the plaintiff. His outright denial that he was aware, put a serious dent on his integrity. Mr Porkroy’s lackadaisical behavior extended relentlessly to the manner in which he handled the administration of the deceased’s estate.

Order: The wills purportedly executed by the deceased in October 2015, January 2016, and February 2016 are declared invalid. The will executed by the deceased on 14 May 2014 (the first will) is declared to be the last will and testament.

KHUMALO J