CASE LAW UPDATE

Facts: The plaintiff alleges that an article published by the Rising Sun Community Newspaper (second defendant) is defamatory against him. The article reported on the plaintiff’s arrest on a charge of sexual assault, his overnight detention, and his subsequent release into bail. It also featured an interview with the complainant, who alleged that she had been sexually assaulted by the plaintiff. He was acquitted after a trial at which he, the complainant, and other witnesses testified. Caxton CTP Publishers And Printers (first defendant) co-owns the newspaper with the Rising Sun. The essence of the plaintiff’s case is that he was arrested on a charge of sexual assault, was detained overnight and was released into bail the next day. The Rising Sun published the article the following week. The plaintiff pleaded that the publication of the article was in breach of section 154(2)(b) of the Criminal Procedure Act 51 of 1977 (CPA). The plaintiff pleaded that the article was also published online and was thereafter posted by third parties onto social media platforms such as Twitter (now known as X) and was, consequently, widely read. The plaintiff pleaded further that the article was deliberately misleading because it did not mention that he had been charged for an "alleged" sexual assault.

Claim: The plaintiff claims that he has been defamed by the article that appeared both in the paper and digital editions of a free community newspaper published by the Rising Sun Community Newspaper. The defendants delivered a joint plea in which they denied that they breached section 154(2)(b) of the CPA and denied that they intended to injure the plaintiff’s reputation. The defendants’ plea went on to aver that publication of the article was objectively reasonable and denied that the article is defamatory of the plaintiff.

Discussion: The plaintiff’s particulars of claim do not isolate and identify which parts of the article are defamatory of him. Reference is made only to the article as a whole. The plaintiff contended that the alleged non-compliance with the provisions of section 154(2)(b) by the Rising Sun established that he had been defamed. That proposition does not appear to be correct for two reasons. Firstly, section 154(2)(b) creates criminal, not civil, liability. A breach of the section attracts the penal provisions of section 154(5) of the Act. Secondly, the section does not have the meaning contended for by the plaintiff. It does not refer to a prohibition of the disclosure of the identity of the accused person: it refers to the disclosure of particulars of the charge. That is intended to offer some form of protection, not to the accused person, but to the victim of an alleged sexual assault. The plaintiff’s reliance on the section as having any relevance to his claim of defamation accordingly seems to be misplaced.

Findings: In the body of the article, it was reported that the plaintiff had been arrested, spent a night in custody and had then been released on bail the next day. All of that was perfectly correct, according to the plaintiff. The article was balanced and went no further than simply reporting the facts, bereft of commentary by the Rising Sun. There is no discernible intention to defame in the tone and style of the article. The article simply meant to the average reader that the plaintiff had been arrested and charged with sexual assault, had appeared in court and had been released into bail. It is significant that in all his interactions with the Rising Sun, virtually all of which were in writing, the plaintiff never once complained about the fact that the article had been written at all or that it was unfair to him in what it stated. What he sought was a second article to publicize his acquittal. The article was not defamatory of the plaintiff and its publication was not unlawful.

Order: The defendants are not liable to the plaintiff arising out of the article published in the Chatsworth Rising Sun.

MOSSOP J

Facts: Asylum seekers who wish to approach a Refugee Reception Office (RRO) to apply for asylum must first obtain a so-called appointment slip to do so. This process is not regulated by law and requires the asylum seeker to return in six to eight months. When, eventually, the asylum seeker returns and is granted access to the RRO, the first interview they receive is held by immigration officers in terms of section 21(1B) of the Refugees Act 130 of 1998 read with Regulations 8(1)(c)(i), 8(2), 8(3) and 8(4). According to the Scalabrini Centre, the interview is limited to questions of condonation and procedure and the immigration officers do not apply their minds to the fundamental question of what persecution the asylum seeker will face if returned to their country of origin. After the immigration officers find that an asylum seeker has failed his or her interview, the asylum seeker is arrested, detained, and brought before a court to initiate the deportation process.

Application: The Scalabrini Centre submits that the effect of the challenged provisions is that almost all new asylum seekers attending on RROs are refused the right to apply for asylum and are either arrested for deportation or are ordered to depart South Africa. Almost no new asylum applicants are, in fact, attending on RROs, since they have become aware that such attendance amounts, in practice, to being expelled from South Africa. Pending a constitutional challenge to the provisions, the Centre seeks to interdict Home Affairs from deporting any foreign national who has indicated an intention to seek asylum, unless and until their asylum application has been finally rejected on its merits.

Discussion: The Centre submits that it has at the very least, prima facie prospects of success in the main application; in fact, it submits that it has very strong and clear prospects of success. In support of its prima facie case for interim relief the Centre submit that the challenged provisions fall to be declared to be unconstitutional as: first, the very concept underpinning the challenged provisions – that is, that asylum seekers can be disbarred from the refugee system solely due to their adverse immigration status, without any consideration of the merits of the asylum seeker’s claim – is an unacceptable and unjustifiable violation of the right to non-refoulement, the Constitution, and international law; and second: that the concept of disbarment is irrational, inasmuch as it serves no legitimate government purpose. The Centre relies heavily on one of its own cases before the Constitutional Court: Scalabrini Centre v Minister of Home Affairs [2023] ZACC 45. The respondents argued that in Ashebo v Minister of Home Affairs [2023] ZACC 16 the Constitutional Court found that the challenged provisions did not offend the principle of non-refoulement.

Findings: The court has not had the benefit of full argument in relation to the Constitutional challenge itself, and is in no position to comment on whether or not the Constitutional Court may have incorrectly read certain provisions of the United Nations Convention Relating to the Status of Refugees and thereby incorrectly concluded that the challenged provisions do not offend the principle of non-refoulement. The Centre has failed to convince the court “in the clearest terms” that it can disregard the separation of powers between the judiciary and the executive and restrain the respondents from implementing the challenged provisions, albeit on an interim basis. However, the respondents agree to an order interdicting them from deporting any foreign national who has evinced an intention to seek asylum until such time as his or her application is determined on the merits, pending the determination of the relief in the main case.

* Note at paras [58]-[90] the court’s displeasure at the conduct of the litigation.

Order: The respondents are interdicted from initiating any process to deport any foreign national present in the Republic in the event that such foreign national has indicated an intention to make an application for asylum in terms of section 21(1)(b) of the Refugees Act 130 of 1998. This interdict is to endure pending the determination by the High Court of the part B relief sought in this application. The costs incurred in seeking the interim relief are to be costs in the cause of the main application.

MANCA AJ

Facts: An incident occurred when the plaintiff stepped off the end of a concrete pedestrian walkway or ramp, which runs alongside the western side of a centre known as Millwood Court. It allows visitors to access businesses in the centre from the adjacent parking area in Queen Street. The plaintiff walked down the walkway/ramp. But, instead of stepping off the end of it at the parking bay just after the tree, where his vehicle was parked, he did so at the bay which was just before it. He said that he did so because he mistook the vehicle that was parked in the bay just before the tree, for his vehicle, as it was also white, and it was dark at the time. He was expecting to take a small step down to the kerb and from there to the parking area. But, because he misjudged where he was, the step down was about twice the height he expected it to be. This caused him to fall forwards towards the parking area, and to hit his head as he landed. His left ankle was in pain. The following day he had it assessed at the local hospital where it was determined that he had sustained a fracture of the malleolus. His ankle was initially immobilized.

Claim: The plaintiff has sued the municipality (defendant) for damages he allegedly sustained when he fell outside the business centre. The plaintiff alleged that the defendant had a duty to take steps, which it failed to discharge, including: to construct the pavement in such a manner that it did not constitute a danger to personal safety or a threat of injury; to ensure that the pavement inclusive of all fixtures that formed part of it, was properly maintained and repaired as required from time to time, so that it did not constitute such a danger or threat; and to fix a guardrail to the inclining section of the pavement (the ramps) and ensure that it was properly maintained or replaced.

Discussion: The walkway on which the incident occurred serves, primarily, to afford access to the centre, by visitors to it, rather than to the broader, general public, and is used by the owners of the centre to further their commercial interests. It was built by the owners of the centre to serve the building which they put up next to it and was designed to fit in with its aesthetics and requirements. Access to and control of it lies in the hands of the owners of the centre and the centre manager, and not the municipality. In building it the owners encroached onto public land and in doing so effectively expropriated it for their private use. As a result, the walkway does not serve a public purpose in the same manner and way that a pavement along a public road does. Public policy requires that the plaintiff should have looked to the owners of the centre for possible recompense, and not the municipality. On the evidence as a whole it is apparent that the incident occurred because the plaintiff failed to keep a proper look-out and elected to step off the walkway at a point that was higher than when he first stepped onto it, thereby injuring himself, in the same way that any pedestrian who steps off an ordinary pavement at the side of the road because they fail to keep a proper look-out, would injure themselves.

Findings: The combined weight of the facts and circumstances of the case is against holding that the defendant was under a legal duty, in one or more of the particular forms claimed by the plaintiff. The legal convictions of the community and public policy considerations do not expect such a duty to be imposed on it. The plaintiff failed to place cogent and sufficient evidence before the court to show that he stepped off the walkway and injured himself because of a failure by the defendant to put up a balustrade or guardrail at that point. The municipality also contended that the action could not succeed because it was exempt from liability, by virtue of the provisions of section 23 of the National Building Regulations and Building Standards Act 103 of 1977. The section aims primarily to provide an indemnity from liability to a municipality, in instances where loss or harm is sustained because of the bona fide approval of a building plan or the grant of a right of use or occupancy, which should not have been granted. It cannot be interpreted to afford a municipality an exemption from liability where it was under a legal duty to take certain steps in order to prevent harm or loss from occurring and failed to do so.

Order: The action is dismissed with costs.

SHER J

Facts: Each of the six purchasers bought a “life right” or a “housing interest” in respect of a specific suite in the St Leger Retirement Hotel located in Muizenberg, Cape Town. All the purchasers were retired persons as contemplated in the Housing Development Schemes for Retired Persons Act 65 of 1988 (HDSA). On payment of the purchase price the purchasers took occupation of their units and authorised Herold Gie and Broadhead Incorporated (HGB) to pay to the developer all the moneys that had been entrusted to it as the purchase price in respect of the life rights. HGB released the funds to the developer accordingly. In 2014, the purchasers cancelled their life rights agreements and each demanded a refund of their purchase price. They alleged that the developer failed to inform them, prior to the conclusion of the agreement, that use and occupation of the retirement hotel, as contemplated in the agreement, would not be legally possible, despite being aware that the required building regulation certificates could not be issued. The developer was later sequestrated.

Appeal: The High Court found that the purchasers were the trust creditors of HGB. By releasing to the developer the entrusted moneys that were the equivalent of the purchase prices entrusted to it by purchasers, HGB had “violated an entrustment under s 6(3)(a) of the HDSA”. The High Court held that section 6(4) of the HDSA confers a right of action on a purchaser who had entrusted purchase price funds to a practitioner, where such funds or an equivalent of the funds are released to the developer prior to compliance with section 6(1) of that Act.

Discussion: The purchasers’ claims for reimbursement of the purchase prices was founded on the provisions of section 6(4) of the HDSA. This section entitles a purchaser in a scheme, developed in terms of the Act, to a refund of the purchase price held in a legal practitioner’s trust account, where the developer of the scheme becomes insolvent. The High Court separated three questions for anterior determination as points of law and determined all three questions in favour of the purchasers. The High Court found that the argument made by HGB, that the purchasers could not rely on section 6(4) was inconsistent with the purpose for which section 6 of HDSA was enacted, being the protection of elderly persons against “possible exploitation or misfortune by a developer”. 

Findings: The meaning and purpose of section 6(4) within the context of section 6 is clear. It is the protective measure provided to safeguard the interests of elderly purchasers in instances where a developer of a retirement home becomes insolvent before the guarantees on the suitability of the life right housing unit are in place as provided in section 6(1). On a proper interpretation, section 6(4) is not an open-ended statutory foundation for claims of repayment to purchasers, of moneys entrusted to practitioners under the HDSA. It is confined to instances where the developer becomes insolvent while there are moneys held in trust by a practitioner, for the developer’s benefit. The High Court’s conclusion, that the purchasers were HGB’s trust creditors, is inconsistent with the language of section 6(3)(a). Ordinarily, on sequestration of the developer, the purchase price funds would become part of the developer’s insolvent estate.

Order: The appeal is upheld with costs. Save for the decision on the second question, the order of the High Court is set aside and replaced with the following: “The first question is decided in favour of the defendant. The third question is referred back to the High Court for determination. The costs stand over for determination together with the remaining issues.” The matter is referred back to the high court for determination of the remaining issues. 

* See paras [12]-[14] on the three questions of law.

DAMBUZA JA (NICHOLLS JA, MABINDLA-BOQWANA JA, TOLMAY AJA and MBHELE AJA concurring)