CASE LAW UPDATE

Facts: At around 05h30 in the morning of 26 December 2016, Mr Mthethwa (plaintiff) was driving home to Durban North from an event at Virginia and the conditions were clear. It was not quite sunlight but there was light as it was early morning. His vehicle was a 2015 Mercedes Benz A45 AMG4 Matic equipped with ABS, EBD and DSC. His version is that while traveling on Virginia Circle, a dog entered his path of travel from his right side directly in front of his vehicle leaving him no time to react. He said he was driving between 45-50km/h when he first saw the dog and he needed to react in an instant and swerved the vehicle left to avoid colliding with the dog, then swerved right to try to correct his steering. The plaintiff stated that after avoiding the collision with the dog he had impacted the curb with his front left tire, his airbags deployed and he lost control of his vehicle, despite attempting to maintain control. The car also struck a wall.

Claim: The plaintiff instituted an action against MiWay Insurance Limited (defendant) after the insurer repudiated his claim for indemnification under the insurance policy. The defendant alleged that the plaintiff supplied it with dishonest information relating to the speed he was driving and how the accident occurred. According to the defendant, the plaintiff failed to take reasonable care and/or reasonable precautions to prevent the accident as he was driving at an excessive speed. Two accident reconstruction experts testified, one for each party.

Discussion: In this case, the court's primary task is to establish what constitutes “excessive speed” to determine whether the plaintiff was indeed driving at an excessive speed on the day in question. The determination of speed is crucial because it relates directly to issues of intent, fraud and negligence, and is foundational in determining liability in this case. There are serious challenges of incorrect facts in the defendant’s report. The expert was aware that the reports lacked quality because of the poor SAPS reports and the deterioration of evidence at the collision scene, yet he failed to consult with the driver to get further necessary information. His approach of using only the objective, physical evidence available to him to assess the collision and to reach his conclusions is wrong. It is nonsensical that the defence expert will totally reject the plaintiff’s version and insist that his assumptions are correct while it is common there was no evidence to confirm or disprove the existence of a dog at the scene.

Findings: The court finds that the plaintiff’s version of events that he did not drive at an excessive speed and he did not apply brakes when he saw the dog, but instead attempted to swerve and correct his travel, is probable, despite the fact that the experts could not confirm the existence of the dog on the day in question. The court accepts that the accident was not caused by speed, but a distraction which caused the plaintiff to oversteer and hit the wall. He was a reliable witness and his evidence regarding the collision was consistent and remains unchallenged. Both experts agreed that certain assumptions would have to be made. The plaintiff’s expert tied any assumptions made to the evidence available, whereas in the case of the defendant’s expert, aspects such as swerving, distance, and braking, among others, went beyond the realm of assumptions and were speculative. The defendant has failed to meet the threshold required in law to sustain a repudiation of the claim and failed to prove a breach of the insurance agreement that would entitle it to repudiate the claim.

Order: The insurer is liable for the plaintiff's proven or agreed damages including the retail value of the vehicle less the excess plus the interest on the aforesaid from 26 December 2016.

LESO AJ

Facts: SAMA NPC was registered as a legal entity and attracted medical professionals as its members. Because the SAMA NPC was unable to represent its members in labour disputes, the South African Medical Association Trade Union (SAMATU) was established and registered as a trade union in terms of the provisions of section 96(7)(a) of the Labour Relations Act 66 of 1995. The relationship between the SAMA NPC and SAMATU began to show cracks and took a downward spiral. Such led to resolutions taken by the SAMA NPC to dissolve SAMATU. Ultimately, the SAMATU was placed under administration within the contemplation of section 103A of the LRA. The second appellant, Mr Vosloo was appointed as an administrator of the SAMATU. That notwithstanding, the fight between the SAMA NPC and SAMATU continued unabated. Such controversy culminated in an order issued by the Labour Court in Johannesburg, which order effectively directed the SAMA NPC to provide SAMATU with certain records and information as well as directing it to remit subscriptions and levies in terms of section 13 of the LRA to the SAMATU. Despite various court orders, the fight continued and allegations and counter-allegations of poaching each other's members were made. Ultimately, SAMATU penned and distributed a circular to its members, which ignited the urgent proceedings that came before the High Court.

Appeal: The SAMA NPC sought to be heard on an urgent basis and to be granted interdictory reliefs. SAMA NPC specifically sought an injunction against the alleged unlawful interfering with its business by distributing communication about its business; interfering with its rights; and encouraging its members to cancel or not to renew membership. SAMA NPC obtained the order which is now the subject of the present appeal. The Supreme Court of Appeal granted the appellants, SAMATU and Vosloo leave to appeal against the order made by the High Court. Having obtained leave to appeal, the appellants launched the present appeal against the order of the High Court.

Discussion: Seeking to protect membership of a trade union cannot be equated to any form of business practice, let alone one that is deceptive. It cannot be seen as offending good faith or honest business dealing. Inasmuch as the SAMA NPC and SAMATU may target the same member, given their functions and purposes, they are incapable of competing for a member. In fact, one member may be a member of both. The one is a professional body with different objectives and the other is a trade union advancing the interest of a member differently. The factual situation in this case, which hinges entirely on the contents of the 9 February 2021 circular, does not give rise to competition properly understood. In short, SAMATU in the circular seeks to warn its members of being misled. Thus, the business activity of the SAMA NPC is to advance and promote the interests of its own members. To the extent that it may be argued that members of the SAMA NPC resources or financially sustain the SAMA NPC, in a case like this, it was incumbent for the SAMA NPC to allege and prove that the members to whom the circular was directed were its members. There is no way in which a circular directed to SAMATU members can convince a SAMA NPC member to do anything.

Findings: It is unclear as to why the learned judge reached a conclusion on falsehood. It is more apparent than not that the finding was reached by an interpretation process as opposed to considering the facts as admitted by the applicant as well as those averred by SAMATU. An interpretation is a matter of law and not fact. Determining falsehood involves a factual enquiry. Nowhere in the reasons for the order does the present court find an engagement in a factual enquiry on this issue of falsehood. To the extent that the court below reached a conclusion that the contents of the circular in so far as the motive of the renewal notice being sent to the members of SAMATU is concerned amounts to falsehood, the court below erred. On the contrary, falsehood as a fact was not established. There is no falsehood contained in the circular. The statement about lack of legal standing, viewed textually, contextually and purposively cannot ring hollow. The conduct of SAMATU as expressed by the notice of 9 February 2021 is not unlawful. SAMATU as a trade union has a right to communicate with its members about any matter that seeks to threaten the financial nerve (union membership) of the trade union. SAMATU was entitled to protect its membership base which was under threat, by communicating with its members and warning them of the traps laying ahead.

Order: The appeal is upheld. The order of the court a quo is set aside in its entirety. It is replaced with an order dismissing the application with costs.

MOSHOANA J (POTTERILL J and ENGELBRECHT AJ concurring)

Facts: At the time of the incident in 2017, the plaintiff, Mr Mhlongo, was a learner at Nantes Primary School (the school goes up to Grade 7 – Eds). The plaintiff was playing on the premises of the school when a fellow learner kicked him in the head, resulting in him hitting a steel pipe with his head. The plaintiff sustained a traumatic brain injury with loss of consciousness and fractures. He had to be hospitalised and was incubated and ventilated. For the MEC (defendant) it was contended that the plaintiff was at the time on suspension and was not supposed to be on the premises and that he unlawfully gained access to the school. The suspension was for stabbing another learner with a pen and for having stolen a laptop belonging to a teacher. The plaintiff gained access to the school premises by jumping over the school fence.

Claim: The plaintiff, now an adult, claims damages from the MEC. The issues relating to the quantum were separated from the issues relating to the merits. The quantum-related issues were postponed sine die. The plaintiff contends that the teachers and employees of Nantes failed to supervise learners in general, and the plaintiff in particular, while they were playing on the school grounds.

Discussion: The principal testified that the teachers who supervised the learners in the playground cannot stand still at one point. They walk around the school premises. She is very strict with regards to supervision of the learners in the school's playgrounds. That Nantes has seen it appropriate to deploy two teachers to patrol in the playgrounds, indicates undeniably the fact that Nantes had foreseen the risk of harm to the learners in the playground. Such harm may consist in the selling of drugs within the school premises; a criminal jumping over the fence and robbing the learners; or someone standing outside the fence and selling drugs to the learners inside the school premises. Nantes has done well by adopting proper measures to avoid such harm befalling the learners by deploying two teachers on any given day to move around and supervise the learners and the playing grounds.

Findings: On the facts of this case, it cannot be contended that any educator or staff member of Nantes breached any of their legal duties that day. The plaintiff was not the only learner on the school grounds on that day. It will be naive to think that the attention of the educators, who were doing playground supervision, should be focused on him. The educators had to focus on what they saw as they were walking and doing their rounds. The fact that the incident took place is not indicative that the educators did not do their duty properly on that day. It only shows that staff members are neither God nor air. They cannot be everywhere on the school premises. There was a duty on the plaintiff to prove what more the defendant should and could do to avoid the incident. The plaintiff has failed in this regard. This means that negligence on the part of the defendant has not been proved.

Order: On the merits, the plaintiff's claim is dismissed.

MABUSEJ

Facts: The respondent, Manamela, is a legal practitioner. An interim order was granted suspending the respondent from practice. The respondent's woes commenced with his failure to submit an auditor's report to the applicant, the Legal Practice Council (LPC), him practising without being in possession of a Fidelity Fund Certificate, a sine quo non in the legal profession for attorneys and advocates with a trust account, and the findings of an inspection into his practice following the LPC's receipt of numerous complaints against him. The applicant approximates the number of complaints to be more than 50. The modus operandi was the same. The complainants are members of the public that deposited funds into the respondent's trust banking account for property transactions, which funds the respondent was unable to account for and the said funds had disappeared. These funds were lost in a fraudulent scheme that the respondent wittingly or unwittingly became involved in.

Application: The applicant seeks an order to have the name of the respondent struck off the roll of legal practitioners in terms of section 44(1) of the Legal Practice Act 28 of 2014. Once the purchasers effected payment into the respondent's trust banking account, the purported estate agents provided the respondent with proof of the payments and requested him to pay the said monies to Omphile Refentse Properties (ORP). In each matter the respondent deducted a fee of R15,000 and paid over the balance of the funds as instructed. The property transfers that the complainants believed were being undertaken did not occur and, when turning to the respondent, the funds were no longer available in his trust account, as he had merely transferred same to ORP minus his fees, which he transferred to his business account.

Discussion: The LPC's inspection of the respondent's accounting books indicated that during the period of September 2020 to May 2021, the respondent received payment of an accumulative amount of R21,105,500 in his trust banking account from 55 Individuals. He paid a total amount of R20,280,500 to ORP and transferred a total amount of R850,000 to his business banking account in respect of his "fees". As of 31 August 2021, the respondent held an amount of R0.91 in trust. This is a substantial trust deficit. The respondent turned a blind eye to the true situation and failed to comply with his duties relating to the handling of trust funds, most probably because of the easy fees that he was able to debit and transfer to his business banking account. The respondent's firm is registered as an accountable institution with the Financial Intelligence Centre. The respondent failed to comply with his obligations in terms of FICA. Due to the respondent's failure to submit his audit report, he was not entitled to be issued with a Fidelity Fund Certificate and would therefore not have been entitled to practice for his own account. He however, continued to practice for his own account from January 2022 until his suspension, whilst he was not in possession of a Fidelity Fund Certificate.

Findings: The respondent demonstrated such character defects and lack of integrity that it is hard to visualise him practising without endangering the public. He failed to take the court to his confidence and disclose what really happened. The seriousness of the respondent's misconduct cannot be overstated. Yet, he failed to acknowledge it. He failed to comply with fundamental regulatory obligations and caused substantial prejudice to unsuspecting members of the public and was enriched in the process. Absolute personal integrity and scrupulous honesty are demanded from legal practitioners. The respondent has failed dismally in this regard. He flouted so many rules and regulations of the profession that it is hard to imagine how he could be rehabilitated. Worst still, is the fact that he does not see any wrong in his conduct. The court is of the view that the respondent ought to be struck off the roll of legal practitioners.

Order: The respondent is struck off the roll of legal practitioners (attorneys).

KUMALO J (MYBURGH AJ concurring)