CASE LAW UPDATE

Facts: Rolust Sondagsrivierplase CC (Rolust) is a property-owning entity that owns several valuable farm properties from which Lonetree Citrus CC conducts citrus farming. Lonetree is indebted to Standard Bank for R30 million in credit facilities. Rolust entered into a suretyship agreement with Standard Bank for this amount. Rolust’s indebtedness to Standard Bank also includes an overdraft and loan facility in the amount of almost R40 million. Standard Bank brought applications for the liquidation of Lonetree and Rolust during February 2024. Mr Bouwer is a member of Lonetree and its chief executive officer. In May 2024, he applied to court and sought an order placing Lonetree under supervision and commencing business rescue proceedings (main application). Simultaneously, an application to place Rolust under court ordered business rescue was instituted (the Rolust application), the affairs of Lonetree and Rolust being intertwined.

SRCC: At the time the main application was instituted, Lonetree was indebted to Sundays River Citrus Company (SRCC) for R4,5 million in terms of a production loan agreement. Rolust bound itself as surety and co-principal debtor of all amounts due to SRCC by Lonetree. In April 2024, SRCC, having become aware of Standard Bank’s liquidation applications, demanded repayment of the full amount. In May 2024, three days after the main application was filed, Lonetree purported to repay the production loan to SRCC. SRCC seeks to file an affidavit and to participate in both the main application and the Rolust application.

Discussion: Business rescue proceedings, once ordered, would have commenced in May 2024. At that time, SRCC was a creditor of Lonetree in terms of the production loan and, as such, an “affected person” as contemplated in the Companies Act 71 of 2008. SRCC avers that the repayment was made after the commencement of business rescue proceedings. It was precluded by section 134(1) of the Act and not in the “ordinary course of business”, given that it was not made in terms of the ordinary repayment obligations contemplated by the production loan agreement. SRCC is concerned that the payment is invalid or a voidable disposition, which may ultimately be set aside.

Findings: It is the court’s granting of the order which will be the point at which business rescue proceedings begin or commence. See paras [8]-[25]. Business rescue proceedings have not yet commenced and Lonetree’s repayment of the production loan occurred prior to, not during, business rescue proceedings. Is SRCC an “affected person” by virtue of the production loan? It appears to be insensible to interpret the provisions to permit persons who are no longer creditors the right to participate in the proceedings, even if they were previously creditors. The court is also unconvinced that SRCC’s interests qualifies as “direct and substantial” in respect of the order the court is asked to make in the main application. This puts paid to SRCC Holdings’ application for intervention, and to SRCC’s bid to participate in Rolust’s application for business rescue.

Obligation to deliver fruit: Is SRCC a creditor in respect of the obligation to deliver fruit? During business rescue proceedings, no legal proceeding against Lonetree, or in relation to any property belonging to Lonetree, including its nadorcotts, may be proceeded with, other than in the circumstances described in section 133. Permitting SRCC to participate in the main application on the strength of Lonetree’s obligation to deliver fruit accords with the legislature’s intention. Adopting a broad interpretation of “creditor” appears to accord with the accepted, ordinary meaning of the word in South African law. Bearing in mind the context of the Act and the purpose of participation, the court is satisfied that SRCC is an affected person on this basis and therefore entitled to participate in the hearing of the main application.

Order: In respect of the application to participate or intervene in the Rolust business rescue application, the application is dismissed. In respect of the application to participate or intervene in the Lonetree business rescue application, SRCC is granted leave to participate in the hearing of the business rescue application.

GOVINDJEE J

Facts: It was alleged that the appellant raped the complainant in her bedroom at her home where she lived with her brother (S). The complainant was 16 years’ old at the time of the incident. The appellant’s defence in the court a quo was that he and the complainant had consensual sex on the day in question. The medical evidence confirmed that there had been recent penetration, and the main question for adjudication was whether it was consensual. According to the complainant, she returned home very drunk after spending the night drinking at a friend’s place. Her friends had accompanied her and put her into bed at home. She was wearing jeans, a t-shirt and underwear when she went to sleep. She had passed out and woken up with the appellant on top of her, with his penis inside her vagina. It was the penetration that woke her up from her sleep. The appellant had taken off her jeans completely and then moved her panties to the side, instead of taking them off, so that he could penetrate her. A friend of the appellant, referred to as Cheese, was also present in the room, watching the rape. When the complainant woke up and saw the appellant, she shouted at him, pushed him off and chased him and Cheese out of her bedroom, and then bolted the door of her bedroom. Thereafter, she went back to sleep. In the morning, she reported the rape to her brother and to a cousin.

Appeal: The appellant was charged with rape and sentenced to 10 years’ direct imprisonment. The appellant appeals against his conviction and sentence. The appellant’s main ground of appeal is that the complainant was a single, child witness, whose evidence was not corroborated in material respects. The appellant also argues that the absence of consent for the sexual act was not proven beyond reasonable doubt. The appellant emphasizes that alcohol played a major role in the incident.

Discussion: When considering the version of the complainant as a single witness, the evidence of her brother, S, is relevant. He confirmed that, in the morning, the complainant reported that she was raped by the appellant. Her report to him was that she had gone to sleep drunk and woke up to find the appellant on top of her, with his penis inside her vagina. She had been shocked, pushed the appellant away, shouted at him and kicked him out of her bedroom. None of S’s evidence regarding the complainant’s report of the rape was disputed. His evidence corroborated the complainant’s version in several respects. It is noteworthy that, from the morning after the incident, the conduct of the complainant was consistent in that she reported the rape to many individuals, and was looking for the appellant with a view to confronting him. Another aspect in respect of which S’s evidence is significant relates to his undisputed evidence that he was in bed when his sister arrived home. This is in direct contradiction to the appellant’s version that, when the complainant came home, she joined him and the others, including S, who were all drinking, and that it was during that time that he and the complainant reached an agreement to have sex. The significance of S’s version is that it takes away the possibility of a conversation between the appellant and the complainant in which they agreed to have sex.

Findings: The evidence concerning the state of sobriety of the complainant is also significant. She testified that she had blacked out on her way home and sobered up only when she woke up with the appellant raping her. As a result, she could not give any evidence as to who was in the house when she arrived home. The significance of this evidence is that the complainant was too drunk to even socialize further on that night, let alone entering into an agreement to have sex. Her version is rather supported by the evidence of S, that all in the house were in bed when she arrived home. There was no opportunity to have reached agreement with the complainant to have consensual sex. The complainant went back to sleep and waited for the opportunity to report the matter to her brother who was, for all intents and purposes, her guardian. And in the morning, at the first available opportunity of the day, she approached her brother in the road whilst he was returning from a visit to report the matter to him. The medical evidence confirmed recent vaginal penetration of the complainant. There was no misdirection in the magistrate’s findings regarding the conviction. Even taken cumulatively, the personal circumstances relied upon by the appellant do not amount to substantial and compelling circumstances which justify the imposition of a lesser sentence than the one prescribed. There is no basis to interfere with the sentence of 10 years meted out by the magistrate.

Order: The appeal against conviction and sentence is dismissed.

MANGCU-LOCKWOOD J (KANTOR AJ concurring)

Facts: The applicant and the respondent were married to each other and their marriage was dissolved by a decree of divorce incorporating a settlement agreement and a parenting plan. The applicant and the respondent have two minor children (sons) who are currently 13 and 15 years old respectively. The eldest son is set to start Grade 10 next year, while the younger son will begin his high school education. This application was lodged because the parties could not agree on which schools the two children should attend, starting in January 2025. The respondent initially agreed to appoint an educational psychologist, Ms Leigh Pettigrew, to conduct an assessment and make recommendations. However, Ms Pettigrew declined the appointment. Following this, the applicant proposed Ms Gerda Grobler to carry out the assessment. The respondent then retracted his consent for the appointment of an educational psychologist. The respondent contended that it is not in the best interest of the minor children to be constantly exposed to the possibility that they may be changing schools and homes again.

Application: The applicant seeks an order, on an urgent basis, dispensing with the consent of the respondent, to appoint an educational psychologist to conduct an assessment and make recommendations as to the optimal schools to be attended by the parties’ minor children: TJK, born, and TWK, from the commencement of the academic year in January 2025, or as soon thereafter as reasonably possible.

Discussion: When the parties divorced, they included a provision in their consent paper that the applicant and the children would return to live in Plettenberg Bay, and the children would attend GB College, where the respondent had enrolled them previously. At the end of 2019, the applicant realised that GB College was not meeting the needs of their children, either scholastically or concerning their extracurricular and extramural activities. Ms Rilley referred the court to a correspondence of the principal, Mr Falconer, where the principal noted that it is evident from the teachers of both boys that they are both unsettled, distressed and disturbed. Correspondence from the youngest child's teacher stated that he seems to be having ongoing behavioural issues as he tends to disrupt classes and at times can be downright difficult. In that correspondence, it was also stated that this appears to be happening in several of his classes and that it is not an isolated incident. The Deputy School Principal stated that TWK has repeatedly been extremely disruptive at school and is now required to attend an afternoon detention. According to Ms Rilley, the school itself has indicated that TWK's emotional wellbeing is a concern, and he is distressed and underperforming academically.

Findings: The correspondence addressed by the principal to the applicant and respondent is highly concerning. Evidently, it is particularly distressing to the principal to witness the emotional turmoil these boys experience, as they seem to be caught in an unhealthy tug of war. The observation of the principal is spot on and to the point. The two children are depressed and unsettled. They are not performing well at school. The animosity between the applicant and the respondent has affected their performance in class. It is essential for the children to receive professional help. The issues raised by the educators must be investigated by the educational psychologist so that the best interests of the two minor children can be better served. The problems of the children go beyond the question of which school they should attend next year. Their distress and anguish cry loudly for a professional intervention. It is inherently compelling that an educational psychologist be appointed to assess the two minor children and unearth the root cause or the real issues that affect them. The expertise of the Family Advocate would ensure that the voices of the children are heard and valued appropriately.

Order: It is ordered that the respondent’s consent to an assessment by an educational psychologist Michele Bergere or educational psychologist Gerda Grobler be dispensed with and that the applicant is authorised to appoint either Ms Grobler or Ms Berger to conduct such an assessment and to make recommendations as to the optimal schools to be attended by the parties’ minor children TKJ and TWK from the commencement of the academic year in January 2025.

LEKHULENI J

Facts: The State alleged that the appellant (Mr Thys) unlawfully and without permission entered a house on the farm Olifants-kop, Western Cape, without the permission of Mr Van der Spey who was the owner or person in charge of the land and building on the farm. The appellant, who was legally represented during the proceedings, was charged in the Atlantis Magistrate’s Court for contravening the provisions of the Trespass Act 6 of 1959 read with section 250(1)(d) of the Criminal Procedure Act 51 of 1977. The appellant was convicted and thereafter sentenced.

Special review: The magistrate was asked to send the matter to this court for special review. There was an issue raised with the sentence imposed, however, this court was of the view that the appellant’s conviction was not in accordance with justice as it should have been apparent to the magistrate that the provisions of the Trespass Act were used to constructively eject the appellant from the Olifants-kop farm.

Discussion: Where an accused is charged with a contravention in terms of section 1(1) of the Trespass Act the State must prove, in addition to the other elements mentioned in section 1(1), that the accused is not an occupier under ESTA (Extension of Security of Tenure Act 62 of 1997). If it suffices that the accused is in fact an ESTA occupier, the deeming provision of section 1(1A) will be activated and a criminal conviction cannot follow. The presiding magistrate should perform an inquisitional function, where an accused pleads guilty, whether represented or unrepresented, to determine whether an accused potentially falls within the definition of an occupier as defined in ESTA. If it is found that the accused raised issues that brings him under the purview of the protection of ESTA, the magistrate must rather record a plea of not guilty and allow the proceedings to continue on that basis.

Findings: In the present case the exchanges between the magistrate, the prosecutor and the appellant’s legal representative during the sentencing proceedings should have raised doubt over the appellant’s unlawful occupation of the house on Olifants-kop farm. Based on this, the court should have entered a plea of not guilty and allowed the trial to continue on that basis. On consideration of the record, it is evident that neither the magistrate, prosecutor, nor the appellant’s legal representative had an appreciation that the Trespass Act expressly refers to ESTA. Rather than using the Trespass Act to remove an occupier, the correct legal procedure to follow was the eviction process prescribed by ESTA. Although the Trespass Act criminalises unauthorised entry onto land, magistrates and prosecutors should guard against the provisions of the Trespass Act being used to evict and should always undertake an inquiry to determine whether the accused’s presence was lawful under ESTA.

Order: The conviction and sentence in respect of the provisions of the Trespass Act are set aside. It is left within the discretion of the DPP or the senior prosecutor of the lower court to decide whether to institute the proceedings against the appellant de novo.

MONTZINGER AJ (HENNEY J concurring)