JULY 2023

BAIL APPLICATIONS: ARE THERE

EXCEPTIONAL CIRCUMSTANCES?
Rule 43 and Muslim divorces: Can The Kapa case: A landmark ruling
relief be granted if the marriage redefining the admissibility of
was dissolved by Sharia law? hearsay evidence in criminal trials
Is the Road Accident Fund an
inheritas damnosa?
A legal profession where rules
are not only read in books,
but are practised and adhered to

The common law ‘public

healthcare defence’
remains a viable defence
despite the SCA ruling
in Mashinini

The dangers of
business e-mail
compromise

Employer to reinstate and pay

Pension interest in divorce: Is it time employee after dismissal was procedurally
to reform s 7 of the Divorce Act? and substantively unfair
 CONTENTS

JULY 2023 Issue 641

ISSN 0250-0329

JULY 2023
Regular columns
10 BAIL APPLICATIONS: ARE THERE
EXCEPTIONAL CIRCUMSTANCES?

17
Rule 43 and Muslim divorces: Can
relief be granted if the marriage
The Kapa case: A landmark ruling
redefining the admissibility of
12 Editorial 3
was dissolved by Sharia law? hearsay evidence in criminal trials

14 19
Is the Road Accident Fund an
inheritas damnosa?
A legal profession where rules
are not only read in books,
but are practised and adhered to

The common law ‘public Practice notes

healthcare defence’
remains a viable defence
despite the SCA ruling
5 The dangers of business e-mail compromise 4
in Mashinini

The common law ‘public healthcare defence’

remains a viable defence despite the SCA ruling
4
The dangers of
business e-mail
compromise
in Mashinini 5
Must compliance with management reg 25(1)
28 Pension interest in divorce: Is it time
to reform s 7 of the Divorce Act?
Employer to reinstate and pay
employee after dismissal was procedurally
and substantively unfair 27
and (2) of the Sectional Titles Schemes
Management Act be pleaded in claims for
payment of overdue levies? 7

News articles on the Navigating multilingualism in the South African

justice system: Challenges and solutions for
De Rebus website: accurate interpretation in South African courts 8

Celebration of 100 years of women in the practice of

The law reports 22
law
Judicial Conduct Tribunal to look into judges who
delay judgments
Case notes
Employer to reinstate and pay employee after
The legal fraternity and the judiciary lost a dedicated
dismissal was procedurally and substantively
legal practitioner in Zanele Nkosi
unfair 27
Pension interest in divorce: is it time to reform s 7

10 Bail applications: Are there of the Divorce Act? 28

exceptional circumstances?
New legislation 30

A
fter a person is arrested, they have the right to request
bail or be informed about further detention. In cases
involving more serious offenses such as schedule 6 of- Employment law
fences, the court is obligated to order custody of the accused
until the matter is legally resolved, unless the accused can Does a refusal to work overtime constitute
present evidence that convinces the court of the existence insubordination? 33
of ‘exceptional circumstances’ that warrant release. Aspirant
Lock-out in response to a strike: Distinction
prosecutor, Andrew Swarts, discusses the manner in which
the courts have handled the requirement of exceptional cir- between a terminated and suspended strike 33
cumstances. Furthermore, the question arises as to when the
state is obliged to challenge and counter the exceptional cir-
cumstances put forward by the defense. Recent articles and research 35

DE REBUS – JULY 2023

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FEATURES EDITOR:
Mapula Oliphant
NDip Journ (DUT) BTech (Journ) (TUT)

12 The Kapa case: A landmark ruling PRODUCTION EDITOR:

redefining the admissibility of Kathleen Kriel
BTech (Journ) (TUT)
hearsay evidence in criminal trials SUB-EDITOR: SUB-EDITOR:

I
n Kapa v S 2023 (4) BCLR 370 (CC) an application was brought by the Kevin O’ Reilly Isabel Joubert
applicant who was convicted of murder on the basis of the doctrine of MA (NMU) BIS Publishing (Hons) (UP)
common purpose. The central issue in the application was whether the NEWS REPORTER: EDITORIAL SECRETARY:
hearsay statement of a deceased eyewitness was correctly admitted as Kgomotso Ramotsho Shireen Mahomed
evidence in terms of the Law of Evidence Amendment Act 45 of 1988. Legal Cert Journ (Boston)
practitioner, Thembeka Ratshibvumo, writes that this ground-breaking Cert Photography (Vega)
decision marks a significant departure from the standard practice. It
is undeniable that Kapa marks a new era in handling hearsay evidence in EDITORIAL COMMITTEE:
criminal trials. The admissibility of hearsay evidence has been made easier Michelle Beatson, Peter Horn,
even when it is decisive in convicting an accused. However, the court rightly Mohamed Randera, Wenzile Zama
recognised the potential harm faced by the defendant and one needs not look EDITORIAL OFFICE: 304 Brooks Street, Menlo Park,
very far to see the consequences of this decision. Pretoria. PO Box 36626, Menlo Park 0102. Docex 82, Pretoria.
Tel (012) 366 8800 Fax (012) 362 0969.
E-mail: [email protected]
14 Is the Road Accident Fund an DE REBUS ONLINE: www.derebus.org.za
inheritas damnosa? CONTENTS: Acceptance of material for publication is not a guar-

I
n 2002, a report by the Road Accident Fund (RAF) commented that the RAF antee that it will in fact be included in a particular issue since this
has ‘floundered in the quicksand of its own inertia or has succumbed to depends on the space available. Views and opinions of this journal
are, unless otherwise stated, those of the authors. Editorial opin-
an epidemic of consultants.’ Various factors have played a role in shaping
ion or c­ omment is, unless otherwise stated, that of the editor and
the misfortunes of the RAF. These include the external environment in which publication thereof does not indicate the agreement of the Law
the RAF operates and its funding, as well as previous managerial choices and Society, unless so stated. Con­tributions may be edited for clarity,
legislative actions. The external environment is influenced by elements such space and/or language. The appearance of an advertise­­ment in
as the Road Accident Fund Act 56 of 1996, incidents of road traffic accidents this publication does not neces­sarily indicate approval by the Law
leading to casualties, injuries, and subsequent claims, the overall governance Society for the product or service ad­­ver­­­­tised.
structure, and the availability of funding. In response to challenges faced by
the RAF, successive management have implemented certain decisions, legis- For fact checking, the De Rebus editorial staff use online products
from:
lation, and measures in an attempt to address these issues and improve the
• LexisNexis online product: MyLexisNexis. Go to: www.lexis-
delivery of RAF services. Professor Hennie Klopper asks, is the Road Accident nexis.co.za; and
Fund an inheritas damnosa? • Juta. Go to: www.jutalaw.co.za.

PRINTER: Ince (Pty) Ltd, PO Box 38200, Booysens 2016.

17 Rule 43 and Muslim divorces: Can AUDIO VERSION: The audio version of this journal is available
free of charge to all blind and print-handicapped members of
relief be granted if the marriage was Tape Aids for the Blind.
dissolved by Sharia law? ADVERTISEMENTS:

S
ome courts have labelled the truncated procedures stipulated in r 43 as Main magazine: Ince Custom Publishing
discriminatory and inconsistent with the Constitution and have queried Contact: Dean Cumberlege • Tel (011) 305 7334
whether it requires revision. Rule 43 relief is granted predicated on ex- Cell: 082 805 1257 • E-mail: [email protected]
Classifieds supplement: Contact: Isabel Joubert
istence of reciprocal duty of support and on divorce that duty ceases except
Tel (012) 366 8800 • Fax (012) 362 0969
where otherwise provided in legislation. Rule 43 is geared to facilitating in- PO Box 36626, Menlo Park 0102 • E-mail: [email protected]
expensive and expeditious relief. In her article, Professor Fareed Moosa chal-
lenges the correctness of the view that a blanket bar exists against appeals ACCOUNT INQUIRIES: David Madonsela
to all orders granted in r 43 proceedings. Specifically demonstrating that a Tel (012) 366 8800 E-mail: [email protected]
limited right of appeal exists in the framework of Women’s Legal Centre Trust
v President of the Republic of South Africa and Others 2022 (5) SA 323 (CC) for CIRCULATION: De Rebus, the South African ­Attorneys’ Journal, is
published monthly, 11 times a year, by the Law Society of South
the benefit of persons in Sharia (Muslim) marriages. Prof Moosa writes that
Africa, 304 Brooks Street, Menlo Park, Pretoria. De Rebus is circu-
an order under r 43 can be financially crippling and personally devastating. If lated digitally to all practising legal practitioners and candidate
relief is granted under r 43 despite evidence of a lawful dissolution by Sharia legal practitioners free of charge and is also available on general
law, then that ought to constitute grounds for an appeal. subscription.

NEW SUBSCRIPTIONS AND ORDERS: David Madonsela

19 A legal profession where rules are not Tel: (012) 366 8800 • E-mail: [email protected]

only read in books, but are practised SUBSCRIPTIONS:

and adhered to Postage within South Africa: R 2 800 (including VAT).
Postage outside South Africa: R 3 000.

I
n this month’s young thought leader feature, De Rebus features Shandukani
Mudau, a 28-year-old candidate legal practitioner and former President of
the Black Lawyers Association Student Chapter National Executive Commit-
tee (BLA-SC NEC). Ms Mudau graduated in 2022 and attended the School for De Rebus proudly displays the ‘FAIR’
stamp of the Press Council of South
© Copyright 2023:
Legal Practice at the University of Venda. After completing law school, she joined Law Society of South Africa 021-21-NPO
Africa, indicating our commitment to
adhere to the Code of Ethics for Print
Mashabela Attorneys Inc as a candidate legal practitioner. During her time as a Tel: (012) 366 8800 and online media, which prescribes
that our reportage is truthful,
member of the BLA-SC NEC, she encountered the obstacles faced by law students accurate and fair. Should you wish
to lodge a complaint about our news
and candidate legal practitioners. These challenges encompass the task of secur- coverage, please lodge a complaint
on the Press Council’s website,
ing articles and financing education. Additionally, she sheds light on various Member of Member of www.presscouncil.org.za or e-mail
the complaint to enquiries@
The Audit Bureau of The Interactive
initiatives undertaken by the BLA to assist graduates overcome these hurdles. Circulations of Southern Africa Advertising Bureau ombudsman.org.za. Contact the
Press Council at (011) 484 3612.

DE REBUS – JULY 2023

-2-
 EDITORIAL

LSSA National Wills Week 2023

registration now open

T
he Law Society of South Af- • position attorneys as the premier
rica (LSSA) National Wills providers of wills and estates ser-
Week is a public outreach vices to the public, and to improve
programme that has been the image of the profession gener-
successfully running since 2008. ally; and
This year, the LSSA National Wills • encourage members of the public
Week campaign will take place dur- who would not normally make use
ing the week of 11 to 15 September of the services of an attorney, or
2023. During this week, members who may hesitate to consult an at-
of the public will be able to have a torney to have a basic will drafted.
basic will drafted free of charge. At-
torneys’ firms throughout the coun- How does the LSSA
try register with the LSSA to become National Wills Week
participants in this initiative. The work? Mapula Oliphant – Editor
LSSA National Wills Week is adver-
Your firm will be provided with free
tised to the public during the month
posters in the language combina- tion of the importance of having a
of August, alerting the public of par-
tion of your choice to publicise your properly and professionally draft-
ticipating law firms. Members of the
participation. Provision is made on ed will to the client.
public are then directed to the LSSA
the posters for your firm’s contact • You may not insist that you are
website where they can see the list
details. appointed as the executor of the
of participating law firms per prov-
Your firm will be listed as a par- estate.
ince and are able to contact the law
ticipating firm on the database of • You must give the client a copy of
firm directly and book an appoint-
participating firms on the LSSA’s their will.
ment.
website. • You will not be expected to redraft
The LSSA National Wills Week is
A national media campaign will or amend existing wills for free,
now an established highlight among
be launched early in August. All me- nor will you be expected to draft
the profession’s social outreach and
dia and publicity material will invite complex wills involving trusts, et-
access to justice initiatives. This is
members of the public to consult cetera.
thanks to the thousands of attor-
the LSSA website for the contact de- Register your law firm for the LSSA
neys who participate by giving gen-
tails of participating firms. National Wills Week here: www.lssa.
erously of their time and skills. The
q
LSSA National Wills Week has also What is expected from org.za.
attracted increasing coverage in the
you as a participating
media, as well as support from ma- Would you like to write
jor stakeholders. firm? for De Rebus?
The aim of the LSSA National Wills • The firm will draw up basic wills
Upcoming deadlines for article sub-
Week campaign is twofold, namely free of charge.
missions: 17 July; and 21 August 2023.
to – • The firm will provide an explana-

Law Society of South Africa’s National Wills Week 2023

All legal practitioners willing to partake

in the initiative register now.

11 to 15 September 2023

Register at www.LSSA.org.za

DE REBUS – JULY 2023

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PRACTICE NOTE – CYBER LAW

By Karabo
Sekailwe
Orekeng
The dangers of business
e-mail compromise

T
here has been a global chal- Court ordered the defendant, ENS Africa she was protected. The defendant ar-
lenge of cybercrime, hence the (ENS), to pay R 5,5 million plus punitive gued that if the court held the firm li-
importance of cyber security, costs to Judith Hawarden (the plaintiff) able, ‘it would expose all conveyancers
which guards against hackers after she fell victim to a scammer spoof- … to claims of the same kind by third
and online criminality. ‘South ing an e-mail account. parties, with whom they have no rela-
Africa has the third highest number of tionship, for losses they suffered at the
cybercrime victims in the world’ (see Facts and legal issue hands of fraudsters who hacked their
Nathan Craig ‘Cybercrimes on the up, The plaintiff purchased an immovable own e-mail accounts’ (para 112). The de-
with SA annually losing about R 2,2 bil- property from a third-party seller who fendant also made the argument ‘that it
lion’ (www.iol.co.za, accessed 1-6-2023)). subsequently appointed ENS as the con- is the responsibility of the debtor, who
Annually, cybercrime costs the country veyancer in the sale transaction. The chooses to make an electronic payment,
R 2,2 billion. In addition to this, South plaintiff proceeded to pay the deposit to ensure that it is paid into the right ac-
Africa (SA) had the highest incidents of due, and thereafter, paid the balance by count’ (para 113).
targeted ransomware and business e- way of electronic transfer directly to the Ultimately the court found that the
mail compromise (BEC) attacks of any defendant’s trust account. The plaintiff firm’s ‘banking details were financially
African country (see Craig (op cit)). was under the impression that she was sensitive information … and needed to
paying the balance into what she had be- be treated as such. … [C]oncluding that
What is BEC? lieved was an ENS account. Unbeknown the risk of BEC was foreseen by ENS’
E-mail account compromise is one of the to the plaintiff, her e-mail account was (para 126). Moreover, that ‘sending bank
most financially damaging online crimes. hacked and the e-mail containing the details by e-mail is inherently danger-
This cybercrime exposes the fact that ENS account details was intercepted and ous’ (para 127). ‘The risk of loss to Ha-
people rely on e-mails to conduct busi- changed to reflect the fraudster’s bank warden was highly foreseeable by ENS’
ness. This occurs when electronic com- account details. This ultimately resulted (see Broughton (op cit)).
munications are accessed and replaced in the money electronically transferred This is not the first time a law firm has
with e-mails that are similar to e-mails by the plaintiff being deposited in the been a victim of cybercrime. In the case
that may be expected by the recipient. fraudsters bank account. of Fourie v Van Der Spuy and De Jongh
The question the court dealt with was Inc and Others 2020 (1) SA 560 (GP) the
How it takes place ‘whether or not to impose liability for main question asked by the court was
Criminals implement a BEC scam in the pure economic loss sustained by the who bore the responsibility for pay-
following ways: plaintiff who fell victim to cybercrime ments lost due to cybercrime?
• ‘Spoof an e-mail account or website.’ through [BEC] as a result of the defend- In this matter the applicant claimed
This is done by the scammer slightly ant’s negligent omission to forewarn the payment of R 1 744 599,45 from the re-
varying the legitimate e-mail address plaintiff of the known risks of BEC and spondents, jointly and severally, the one
and tricking victims into thinking fake to take the necessary safety precautions paying the other to be absolved. The case
accounts are authentic. that are designed to safeguard against concerned a property transaction where
• ‘Send spearphishing e-mails. These the risk of harm occasioned by BEC from the seller of the property was prejudiced
messages look like they are from a eventuating’. due to the transfer attorney effecting
trusted sender to trick victims into re- The plaintiff argued that the law firm payment of the proceeds of the purchase
vealing confidential information. That owed her the duty to exercise reason- price of the property erroneously to an
information lets criminals access com- able care. In addition to this argument, unknown third party, thereby falling vic-
pany accounts … and data that gives she stated that ENS had the legal duty to tim to cybercrime.
them the details they need to carry out warn her of the danger of BEC, because ‘The court held that the transfer attor-
a BEC schemes.’ this was already on the rise and had be- ney was negligent and failed to exercise
• ‘Use malware. Malicious software can come prevalent. the requisite skill, knowledge and dili-
infiltrate company networks and gain The plaintiff argued that the firm gence expected of an average practicing
access to legitimate e-mail threads should have warned her, before mak- attorney and thus failed to discharge the
about billing and invoices. That in- ing any payment, that there should have fiduciary duty [owed] to [the] client by
formation is used to time requests been a verification process wherein she transacting via e-mail whilst being fully
or send messages, so accountants or would have been asked to verify her ac- aware that fraud is prevalent in the at-
financial officers don’t question pay- count details, and the defendant should torneys profession and despite that be-
ment requests. Malware also lets crim- have loaded its trust account details on ing so, not employing any measures to
inals gain undetected access to a vic- online banking systems so that the ac- ensure that neither do they nor the cli-
tim’s data, including passwords and count number would not have to be sent ent fall victim to the plague of fraud and
financial account information’ (see FBI out on unprotected and unsafe emails cybercrime’ (Ade Nyongo ‘What happens
‘Business e-mail compromise’ (www. (see Tania Broughton ‘Leading law firm when your attorney pays your money to
fbi.gov, accessed 1-6-2023)). ordered to pay victim of cybercrime’ the wrong person?’ (www.golegal.co.za,
(www.groundup.org.za, accessed 1-6- accessed 1-6-2023)).
Recent BEC in SA 2023)).
In Hawarden v Edward Nathan Sonnen- The judge stated that the defendant Tips to avoid cybercrime
bergs Incorporated [2023] 1 All SA 675 should have used secure means when In 2019, the Law Society of South Africa
(GJ), the Gauteng Local Division High communicating with her to ensure that (LSSA) released an advisory note to attor-

DE REBUS – JULY 2023

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 PRACTICE NOTE – MEDICAL LAW

neys concerning BECs. The advisory was will assist you in confirming the correct by phoning or sending another confir-
aimed at ensuring that attorneys’ clients bank details. [Firm’s name] will not ad- mation e-mail before paying money over.
are made aware of the risk of potential vise of any change in bank details by way From the above cases, it is clear that the
fraud with the intention of preventing of an e-mail or other electronic commu- courts will not be in favour of a party
firms from falling victim to fraud and/ nication. If you should receive any com- that was deemed to be negligent.
or cybercrime while ensuring attorneys munication of this nature, please report What is further clear from the afore-
fulfil their duty of care to clients by mak- it to the person attending to your matter’ mentioned cases is, firms or companies
ing them aware of the cybercrime risk. (see LSSA advisory ‘Cybercrime: Business should be extra vigilant when conduct-
Due to the pervasiveness of cyber- e-mail compromises’ (www.lssa.org.za)). ing business via e-mail. There is no blue-
crime, the LSSA recommended that the This paragraph can also serve as a notice print on the steps a firm should take
below wording should appear on all on the company’s website – preferably in order to avoid liability. Surrounding
communications to clients, where bank- on the home page – as well any other av- circumstances will be of importance in
ing transactions of high value may be enues or mechanisms a company uses to determining whether a firm or company
performed alerting the client to BECs: communicate to clients. is responsible by looking at the steps
‘Criminal syndicates may attempt to In addition to this, in 2020 the Legal taken to prevent the occurrence of loss
induce you to make payments due to Practice Council (LPC) in the same breath through cybercrimes. It is suggested that
[firm’s name] into bank accounts which advised legal practitioners to be careful if a firm implements the tips above to
do not belong to the firm and are con- when sending out correspondences with prevent the occurrence of falling victim
trolled by criminals. These frauds are bank account details, and when making to a cybercrime, such as having various
typically perpetrated using e-mails or payments into bank accounts for which notices alerting clients of the potential
letters that appear materially identical details are provided by e-mail. In the risk of fraud and following a strict veri-
to letters or e-mails that may be sent to notice the LPC created an ethical duty, fication process it would have taken rea-
you by [firm’s name]. Please take proper which placed on legal practitioners the sonable steps on its side to uphold its
care in checking that these e-mails do duty to ensure that appropriate systems duty to exercise reasonable care toward
emanate from [firm’s name]. Before mak- are put in place to ensure payments, par- its clients.
ing any payment to [firm’s name] please ticularly from trust accounts, are paid to
ensure that you verify that the account correct accounts (see LPC notice ‘Fraud
into which payment will be made is a le- alert’ (www.derebus.org.za)).
gitimate bank account of [firm’s name]. Karabo Sekailwe Orekeng BA (Law)
If you are not certain of the correctness Conclusion BA (Hons) (Economics) LLB (Rhodes)
of the bank account, you may contact It is paramount for firms to use dedi- is a candidate legal practitioner at
[firm’s name] and request to speak to the cated verification process systems when
person attending to your matter. They transacting via e-mail. This can be done
DMS Attorneys. q

By
Muano
The common law ‘public healthcare
Mudzanani
defence’ remains a viable defence
despite the SCA ruling in Mashinini

T
he Mashinini v Member of the defence’ in most of its disputes. Court dure the appellant sustained a bile duct
Executive Council for Health and judgments show that when pleaded, this and hepatic artery injury. This meant
Social Development Gauteng defence has the capacity of reducing that emergency management, endoscop-
Provincial Government (SCA) monetary penalties significantly. ic management and a bile duct recon-
(unreported case no 335/2021, 18-4- The common law ‘public healthcare struction was required, and same was
2023) (Zondi JA (Schippers and Gorven defence’ has been an effective legal plea performed at Greys Hospital. However,
JJA and Mali and Siwendu AJJA concur- for the Department of Health since it because of the injuries sustained during
ring)) case raises questions. Before the was first successfully raised in the case the failed operation the appellant had to
common law development of the ‘public of MSM obo KBM v Member of the Execu- undergo various corrective surgical pro-
healthcare defence’ the Department of tive Council for Health, Gauteng Provin- cedures aimed at correcting the damage
Health used to settle claims of medical cial Government [2020] 2 All SA 177 done to her. It was on these facts that
negligence in monetary compensation. (GJ). This remained the case until it was the appellant brought a case against
Sometimes these compensations would raised and was unsuccessful in the case the Gauteng Department of Health and
be in the millions per case as in MEC for of Mashinini. The objective of this article its organs on 18 January 2017 for the
Health and Social Development, Gauteng is to assess whether the ‘public health- failed surgical procedure. The appellant
v DZ obo WZ 2018 (1) SA 335 (CC). This care defence’ remains a viable defence claimed for general damages, loss of
reality affected the fiscal responsibilities for the Department of Health on medical future earnings, past medical expenses,
of the department and would mean that negligence matters wherein the depart- and future medical expenses. The De-
with each payment honoured, the citi- ment has been found liable. partment of Health did not dispute the
zens of South Africa who cannot afford claims and raised the common law ‘pub-
private healthcare and rely on public Background lic healthcare defence’.
sector healthcare were left with fewer The applicant in the Mashinini case was
resources in their health care system. a 39-year-old professional nurse who un-
Common law public
To solve this problem, the government derwent a surgical procedure at Tambo healthcare defence
has been pleading ‘public healthcare Memorial Hospital. During the proce- The ‘public healthcare defence’ was first

DE REBUS – JULY 2023

-5-
PRACTICE NOTE – MEDICAL LAW

raised as a theory in the case of DZ obo Local Division High Court, and the court submitted by the plaintiff. For now, the
WZ. In this case the Gauteng Depart- held that the standard of health provided Mashinini case and future similar cases
ment of Health was found to be liable for in the public sector need not be the same like it, are best viewed as an exception
R 23 272 303 of which R 19 970 631 was as that of the private sector, it only need- to the common law rule, where the De-
in respect of future medical expenses. ed to be of a reasonable standard. This partment of Health has failed to prove
They raised a defence to pay directly for meant that before the Mashinini case, the that it will fully undertake the duty to
each future medical expense each time it Department of Health need not pay com- provide future medical services to a rea-
was required. However, the court found pensation in monetary form where they sonable standard to that in the private
this defence to be contrary to the ‘once can provide medical services required, sector. Therefore, the Mashinini case is
and for all’ rule and, therefore, was un- in the public sector, and the medical the exception and not the rule. Litigants
successful. However, the Member of the services provided need only to be of a should be aware that the common law
Executive Council for the Department reasonable standard. So, if the standard ‘public healthcare defence’ remains a
of Health in the Eastern Cape who was has become easier to meet; then why was defence accepted by the court. Litigants
amici curiae raised two defences, one, the department unsuccessful in pleading should also expect the Department of
‘public healthcare defence’ in terms of the ‘public healthcare defence’ in the Health and other state organs to raise
which the delict claims for future medi- Mashinini case? some form of the common law ‘public
cal expenses against the Department of In the Mashinini case the SCA held that healthcare defence’ as it has been effec-
Health may be satisfied by providing the Department of Health had failed to tive when raised. Common law has been
healthcare services in the public sector. provide evidence to counter that offered set, but it is not without a requirement
Second, the ‘undertaking to pay defence’ by a medical expert, Professor Damon to meet its burden of proof. Each time a
to pay for those medical services that Bizos, who stated that the way govern- state organ raises this kind of defence,
public healthcare sector could not pro- ment institutions were operated meant they would be expected to reasonably
vide. Though the Gauteng Department of they were not capable of providing medi- prove that they can offer the services the
Health was unsuccessful in this case, the cal services to an appellant with compli- plaintiff needs to a reasonable standard.
Constitutional Court was more willing cated medical conditions, which would
to hear the later defence brought by the require immediate access to specialist
Eastern Cape Department of Health. surgeons. The SCA then ruled that the
The same defence (‘public healthcare lack of evidence led by the defence, and Mudzanani Muano LLB (Northwest
defence’) was properly brought in the available evidence led by the appellant, University) is a Legal Intern at the
Gauteng Local Division High Court, and which remained unchallenged meant Department of Health.
the court had an opportunity to rule on that the medical treatment in the future q
‘public healthcare defence’ in the matter and the cost of providing such treat-
of MSM obo KBM v Member of the Execu- ment would be paid in monetary form
tive Council for Health, Gauteng Provin- amounting to R 879 314. The lack of evi-
cial Government [2020] 2 All SA 177 (GJ). dence challenging Prof Bizos testimony
When the ‘public healthcare defence’ was imperative in this case and the deci-
was raised, the court held the wider in- sion of the court appeared to have been
terest of justice provides a requirement driven by his submission. This judgment
for common law to be developed where has raised a lot of questions with some
it permitted compensation in kind. This suggesting that the court might revert
meant that the Department of Health to the standard where compensation for
need not offer monetary compensation medical expenses was paid in monetary
in cases were the plaintiff claimed money form and not in kind.
for private future medical expenses that
may also be offered in the public health- Conclusion
care sector to the same standard. The The Mashinini case does not overrule
common law ‘public healthcare defence’ the established common law ‘public Download your latest issue of De Rebus
was further developed in case of TN obo healthcare defence’. It simply places at www.derebus.org.za/PDFDownload
BN v MEC for Health, Eastern Cape 2023 the burden of proof on the Department
(3) SA 270 (ECB) from the Eastern Cape of Health to fully challenge testimony

DE REBUS – JULY 2023

-6-
 PRACTICE NOTE – PROPERTY LAW

By Anton Must compliance with management

Sean
Myburgh reg 25(1) and (2) of the Sectional Titles
Schemes Management Act be pleaded in
claims for payment of overdue levies?

I
n an appeal against a decision of a vides a mechanism by which the body amounts and the interest thereon before
magistrate’s court in Body Corpo- corporate must publish the resolution to legal proceedings are instituted.
rate of Kleber v Sehube and Anoth- the owners. This regulation is essential As such, these regulations respect-
er (GJ) (unreported case no 2021/ to enforce the resolution and the liability fully are not only administrative and for
A3094, 9-11-2021) (Sutherland DJP), that arises therefrom. In the absence of good order but serve to prescribe com-
the Gauteng Local Division High Court compliance with reg 25(1) the resolution pulsory steps by the body corporate with
decided that no reference to reg 25(1) or would be nothing more than a secret de- a view to the institution of legal proceed-
(2) of the Management Rules as per the cision made by the body corporate. ings. They are procedural requirements
Sectional Titles Schemes Management There is a further reason why the reso- to be able to institute legal proceedings.
Act 8 of 2011 needs to be pleaded to sus- lution must be published to the owners There are many regulations and stat-
tain a cause of action to recover levies and that is so that any owner may chal- utes that prescribe compulsory steps be-
due and payable by owners. lenge the levies raised by way of the dis- fore legal proceedings may be instituted
The High Court held that these spe- pute mechanisms set out in the Act and and averments that these steps were
cific regulations are for administrative regulations and which must be informed complied with are, therefore, essential
purposes and good order and are not of in the reg 25(1) notice. to establish the right to institute the le-
part of the cause of action. The High Regulation 25(2) is triggered if an own- gal proceedings. These issues are, there-
Court held that the liability to pay lev- er does not pay the levy by the due date. fore, to be distinguished from the issue
ies arises when the resolution to pay is If the levy is overdue a body corporate of liability for that purpose.
passed. The liability to pay such levies must comply with reg 25(2). It is the next While it can be argued that the word-
is not dependent on the giving of the no- compulsory step that the body corpo- ing of these regulations does not spe-
tices set out in reg 25(1) and (2). rate must take in the process to recover cifically say that legal proceedings may
No doubt it is correct that the liability overdue levies. When the levy is overdue not be instituted unless the regulations
to pay levies arises when such a resolu- this also triggers interest on the overdue are complied with and the 14-day period
tion is passed by the body corporate. amounts at the rate that was passed by has run out, I believe that in the context,
The question that ought to arise is that the resolution. The daily amount of in- that is what the regulator had in mind. It
if there are any procedural steps that a terest must be set out in this notice, and would be at odds with reg 25(2) to reason
body corporate must take before it may this is so that the owner can determine that action may be taken by way of legal
institute legal proceedings to recover the exact amount to be paid, inclusive of proceedings before the 14-day period
overdue levies and interest. interest on any given day. has run out.
The High Court devoted three para- Importantly, the notice must inform An owner who receives such a notice
graphs to the relevance of these two the owner that if the overdue amount will, therefore, know that he has 14 days
regulations. Respectfully, the judgment and interest is not paid within 14 days to pay in order to prevent the institution
in my mind does not really deal compre- from giving of the notice, the body cor- of legal proceedings and that no such
hensively with the purpose of these two porate intends to act for the recovery proceedings will be instituted until the
regulations. thereof. 14-day period has run out.
By way of s 3 of the Act all the owners Taking action to recover overdue No doubt body corporates, by this de-
are liable to pay levies to a body corpo- amounts, in my mind and in the context, cision of the High Court, will contend
rate. The amount and nature of such lev- can only mean legal action or proceed- that pleading compliance with these two
ies are determined by the body corpo- ings. regulations is not required for purposes
rate when they pass a resolution to that Because the word ‘must’ is used, it of legal proceedings to recover overdue
effect. This resolution also determines, follows that the body corporate must af- levies and interest. However, I would
inter alia, when the levies are payable ford 14 days to the owner before it may suggest that this may not be aligned to
(due date) and the interest rate that will take action to recover the amounts. In the aim and purpose of these regula-
be charged on all overdue amounts. my opinion, the only reasonable inter- tions and would advise to rather comply
Logic dictates that the owners should pretation that can be attributed to this with the regulations and to only insti-
be informed of such a resolution. This is regulation is that a body corporate may tute action after the 14 days have lapsed
the first purpose of reg 25(1) namely to not sue until the notice has been given and to plead compliance therewith to be
publish the resolution to the owners so and until the 14 days have lapsed. The on the safe side.
that all the owners know what amounts purpose of the notice and its content is
they are to pay and by when and what to afford the owner a period of 14 days
interest will be charged on any overdue before legal proceedings are instituted Anton Sean Myburgh BLC (UP) LLB
amounts. As such, I believe that com- against the owner to make payment so (Unisa) is a legal practitioner at An-
pliance with reg 25(1) is a crucial step that legal proceedings can be prevented ton Myburgh Attorneys.
before action can be taken to recover with the associated costs.
q
overdue levies and also because it is per- The purpose of reg 25(1) and (2) is,
emptory by the use of the word ‘must’. therefore, to confirm the liability for
There is nothing in reg 25(1), which is levies, to publish the amounts and
at odds with s 3 of the Act and in fact it due dates to the owners and to afford
confirms the liability for levies and pro- 14 days to the owner to pay overdue

DE REBUS – JULY 2023

-7-
PRACTICE NOTE – LEGAL PRACTICE

Navigating multilingualism
in the South African justice
By
system: Challenges and
Bonginkosi
Ngubeni
solutions for accurate
interpretation in South
African courts

T
he importance of accurate in- One potential solution is to provide context and clarification in cases where
terpretation in criminal pro- more comprehensive training to inter- interpretation is particularly challeng-
ceedings cannot be overstat- preters in the relevant legal terminology, ing. This approach would require the in-
ed. The ability of defendants particularly in the official languages of volvement of professionals with special-
to fully understand the charg- SA. The National Qualifications Frame- ised skills, such as linguists or cultural
es against them and participate in their work Act 67 of 2008 provides for the experts, and could be supported by the
own defence is a fundamental aspect of development of national standards and Legal Practice Act 28 of 2014, which
a fair trial. However, in South Africa (SA), qualifications for education and train- provides for the regulation of legal prac-
the lack of legal terminology in many ing, including for interpreters. Investing titioners in SA.
languages poses a significant challenge in interpreter training and supervision, The challenge of accurate interpreta-
to accurate interpretation, particularly in in line with these standards, could ulti- tion in South African courts, requires a
cases where an accused’s freedom, rights mately improve the accuracy of interpre- multifaceted approach that involves in-
or even their good name is at stake. tation in criminal cases. vesting in interpreter training and super-
Section 35 of the Constitution guar- Another potential solution is to ex- vision, exploring the use of technology,
antees the right to a fair trial, includ- plore the use of technology, such as and utilising a range of resources and
ing the right to an interpreter if the ac- real-time translation software or remote expertise to ensure that the accused
cused does not understand the language interpreting services, to supplement or receives a fair trial. By doing so, we can
used in court. However, this right is not replace human interpreters in certain uphold the principles of justice and en-
always realised in practice, particularly situations. The Electronic Communica- sure that all parties involved in court
for speakers of less common languages tions and Transactions Act 25 of 2002 proceedings are able to fully understand
or dialects. This can result in inaccurate provides a framework for the use of and participate in the process, regard-
interpretation, which in turn can lead to electronic communications and trans- less of the language they speak.
wrongful convictions or acquittals. actions in SA, including the use of Although strides are being made to en-
The issue of inaccurate interpreta- electronic signatures and data messages. sure that the justices system works for
tion has been brought to light in several This Act could be used to explore the the benefit of all parties, I believe that
cases, such as the Thandi Maqubela trial use of technology in court proceedings, improvements can be made especially
(S v Maqubela 2017 (2) SACR 690 (SCA)), with careful consideration of the poten- in the lower courts.
where an interpreter’s errors resulted tial limitations and risks.
in a retrial and ultimately an acquittal. In addition to interpreter training and
This case underscores the potential con- technology, courts could consider using Bonginkosi Ngubeni LLB (Unisa) is a
sequences of inaccurate interpretation a combination of interpreters and expert legal consultant at Niemann Grobb-
and the importance of addressing this witnesses who are fluent in the relevant elaar Attorneys in Bethlehem.
challenge. languages and can provide additional
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Bail application: Are there exceptional
circumstances?

Picture source: Gallo Images/Getty

By
Andrew
Jeffrey
Swarts

W
hen a person has been
arrested with or without
a warrant in terms of
s 50(1)(a) of the Crimi- ceptional circumstances’ in a schedule Result of not challenging
nal Procedure Act 51 of 6 bail application are not defined. No
1977, they shall be informed of their direct causes were attached to what the exceptional
right to apply and be released on bail constitutes ‘exceptional circumstances’. circumstances advanced
or be informed their further detention In Mvambi v S (GJ) (unreported case no by the appellant
in terms of s 50(1)(b) and s 50(6)(a) re- A113/2021, 4-2-2022) (Malangeni AJ) at
spectively. In the event that somebody In Fourie v S (GP) (unreported case no
paras 19, 20 and 22, the court held that
has been arrested and the case brought A107/2020, 8-6-2020) (Rabie J), the ap-
the burden is on the appellant in a bail
against them is of a more serious nature, pellant was charged with nine counts,
application to provide ‘that exceptional
they might fall under s 60(11)(a) of the among others – robbery with aggravating
circumstances exist which in the inter-
Criminal Procedures Act, which provides circumstances; attempted murder; and
est of justice permit his [or her] release’.
that: ‘Notwithstanding any provision of malicious injury to property to name but
The court held that normal or ordinary a few. The charges against the appellant
this Act, where an accused is charged circumstances do not amount to ex-
with an offence – fell under s 60(11)(a). The burden was
ceptional circumstances. The court in on the appellant to advance exceptional
(a) referred to in schedule 6, the court Mvambi referred to Jonas that an urgent
shall order that the accused be detained circumstances in order to discharge the
serious medical condition and a cast- burden placed on him in terms s 60(11)
in custody until he or she is dealt with iron alibi can be considered exceptional
in accordance with the law, unless the (a). The charges emanated from a cash
circumstances. In Nhlapo v S (GP) (un- in transit heist where the armoured ve-
accused, having been given a reasonable reported case no A07/2023, 17-2-2023)
opportunity to do so, adduces evidence hicle was physically forced off the road.
(Ally AJ) at para 5, the court referred Shots were fired at the armoured vehicle
which satisfies the court that exception- to exceptional circumstances as, ‘more
al circumstances exist which in the inter- while being at the side of the road. The
than what can be described as the run- occupants inside the armoured vehicle
ests of justice permits his or her release.’
of-the-mill bail applications.’ The court were forced to open it under threat that
in Nhlapo held that the appellant ‘must
How the courts have dealt the robbers would use explosives to gain
present cogent evidence’ that will be entry if they did not comply. It was sub-
with the ‘exceptional able to ‘stand up to scrutiny’ in order to mitted by the defence that the matter
circumstances’ requirement convince the court on a ‘preponderance should be dealt with as a matter falling
In S v Jonas and Others 1998 (2) SACR of probabilities’ that the appellant is a under schedule 5. They argued that the
677 (SE) it was held that the term ‘ex- candidate for bail. appellant was not physically involved

DE REBUS – JULY 2023

- 10 -
 FEATURE – CRIMINAL LAW

in the robbery. The court rejected the that the appellant’s father was in the warrant of arrest that same day and was
defence’s contention and stated that if court the day the bail application was brought before a different magistrate
the allegations are true, the appellant heard and that he was present at every the next day. The matter was struck of
acted in concert with the perpetrators postponement prior to that day. The the roll for a second time in as many
and his intention was to the accom- court dismissed the version of the ap- days. On appeal, the judge requested
plish the desired outcome and as such pellant on the bases that every assertion submissions form the offices of the Na-
he should face the same consequences. made by the appellant was rebutted by tional Director of Public Prosecutions
The court proceeded with the bail ap- the state. The court in dismissing the ap- (NDPP) in Port Elizabeth and Grahams-
plication as a schedule 6 offence. It was pellant’s application stated that: ‘The ap- town. The Port Elizabeth offices of the
submitted by the state that the appellant pellant against the presumption of inno- NDPP submitted that s 60(11)(a) ‘makes
was an employee of SBV as the Head of cence regularly finds himself in conflict no distinction between accused per-
Logistics. The state alleged that the ap- with the law, being released on bail on sons who appear for the first time’ and
pellant manipulated the route taken by very serious charges and being arrested those released on bail, there attendance
the occupants of the vehicle the day of while on bail. That, in itself, undermines should be secured by warrant of arrest.
the robbery in order to execute the rob- the proper functioning of the bail system By issuing a summons, it is contrary to
bery. It was found that the appellant did and contributes to bringing the admin- the intention of the provision. The Gra-
not have the mandate to change routes. istration of justice into disrepute in the hamstown offices of the NDPP submitted
The appellant submitted that he would eyes of society.’ that the magistrate should have held a
stand his trial and that he had no rela- In S v Mathebula 2010 (1) SACR 55 s 342A inquiry in order to determine
tives abroad. The state did not place (SCA) at para 12, the court held that: what caused the delay in the finalisation
anything before court in opposing ‘Thus it has been held that until an ap- of the investigations and then should
the application. The state did not plicant has set up a prima facie case of have applied its mind based on the out-
do anything to rebut the appel- the prosecution failing there is no call come of the inquiry. The court in Hewu
lant’s denial that he did not com- on the state to rebut his evidence to that stated that each case should be dealt
mit or was involved in this crime. effect.’ The difference in how the state with on its own merits but concluded
The court held that: ‘It would appear opted to apply itself in the Maponyane that in the present case the court should
that the state had adopted this line of case as opposed to the Fourie case is evi- have held a s 342A inquiry in order to as-
approach on the assumption that the ap- dent in the outcome of both cases. The certain what caused the delays. The court
pellant had all to do in order to succeed proactive approach by the investigator in held at para 23 that: ‘Section 60(11) of
with his application for bail.’ The court the Maponyane case, by bringing the rel- the Act does not constitute an absolute
in this matter found in favour of the ap- evant information to the attention of the bar to a court’s refusal to postponement
pellant after proving exceptional circum- court, to place the court in a position to and a decision to strike it from the roll
stances, the court found that the version determine that exceptional circumstance in terms of s 342A(3)(a).’ The court also
of the appellant stood unchallenged by did not exist. held that: ‘If it later transpires that the
the state. trial can be proceeded with and be com-
Unintentional consequences pleted soon, the re-arrest of the accused
When is the state required of a schedule 6 bail could be justified.’ The court in Hewu
was willing to accept both submissions
to challenge and rebut the application made by the different NDPP’s offices,
exceptional circumstances but the method to be followed will be in-
In many schedule 6 offences, one finds
advanced by the defence? that the investigation has been dragged
dicative of the case before court.

In Maponyane v S (NWM) (unreported on for too long and the state requests a
case no CAB 07/2022, 2-9-2022) (Pe- remand for the investigations to be com-
Conclusion
tersen J), the accused were charged with pleted. It is in the defence’s discretion to In S v Mabena and Another [2007] 2 All
attempted murder, kidnapping, robbery, request that the matter be struck from SA 137 (SCA) at para 6, the Supreme
pointing of firearm, possession of a fire- the roll to ‘give the state ample time to Court of Appeal confirmed that the ‘po-
arm and possession of ammunition. The conclude the investigation’. Should the tential factors for and against the grant
court at para 8 concluded that the appel- matter be struck from the roll, how do of bail’, listed in the Act, s 60(4), are
lant relied predominantly on his person- you secure the attendance of the ac- no less relevant than what they are in
al circumstances and that he believed cused before court when the investiga- a schedule 6 bail application. In almost
the state’s case was weak. In his affidavit tion is completed? Does the state opt for every bail hearing the appellant recites
the appellant stating that: ‘The learned a summons? Section 60(11)(a) states that the provisions of s 60(4) and assert that
magistrate erred in failing to attach the ‘the court shall order that the accused be the state’s case against them is weak. On
necessary weight to the personal circum- detained in custody.’ This is a manda- the former assertion the court in Mathe-
stances of the appellant.’ The appellant tory provision, and the detention of the bula at para 15 held that: ‘Parroting the
adduced evidence by way of affidavit, accused is the subject of this provision, terms of ss (4) of s 60 … does not es-
that he is a father of three. His continued until he is dealt with in terms of the law. tablish any of those grounds, without
incarceration makes it difficult to sup- The provision indicates that his deten- the addition of facts that add weight
port his children financially. He stated tion is to be secured first and his deten- to his ipse dixit.’ On the latter assertion
that he is employed at his father’s place tion shall be by way of a court order. the court in Mathebula at para 12 stated
of business and that his father is a sick This indicates that his detention shall be that, ‘he [the appellant] must prove on
elderly man. His continued incarceration by way of warrant of arrest. In order to a balance of probability that he will be
placed a strain on the family business. properly understand the provision, the acquitted of the charge.’
The investigator in this matter testified case of S v Hewu and Others 2017 (2)
that one of the mothers confirmed that SACR 67 (ECG), might be of assistance. In Andrew Jeffrey Swarts LLB (Unisa)
she had two children by the appellant, the Hewu case, the postponements were is an aspirant prosecutor at the
but that she had not received mainte- numerous and because of that the mag- National Prosecuting Authority in
nance money for more than a year from istrate struck the matter from the roll. Upington.
the appellant. It was also pointed out The appellant was arrested with a J50 q

DE REBUS – JULY 2023

- 11 -
 Picture source: Gallo Images/Getty
The Kapa case: A landmark ruling
redefining the admissibility of hearsay
evidence in criminal trials

probative value of which depends upon pened to be the only eyewitness, repu-
the credibility of any person other than diated his statement, and his evidence
the person giving such evidence’. As a was expunged, meaning, no weight was
general principle, hearsay evidence is attached to it.
inadmissible. As Mbatha AJ who wrote Mr Kapa was thus convicted on a
for the minority in this judgment puts it, charge of murder of Mr Bungane (the
the reason for its inadmissibility is that deceased), who was accused of stealing
‘the statutory interests of justice test for his items including a car radio. His con-
the admission of hearsay evidence has viction was based on a statement made
a constitutional dimension, and the ad- by Ms Dasi, the deceased’s girlfriend.
mission of hearsay might be so unfair Ms Dasi, however, did not live to give
as to infringe the [accused’s] fair trial evidence, for she died shortly before the
rights’ (see para 4 of the judgment where commencement of the trial. Mr Kapa op-
By the judge referred to Savoi and Others v posed the state’s application to have Ms
Thembeka National Director of Public Prosecutions Dasi’s statement admitted as an excep-
Ratshibvumo and Another 2014 (5) SA 317 (CC); and tion against hearsay evidence. After ap-
S v Ndhlovu and Others 2002 (6) SA 305 plying the provisions in the Hearsay Act,
(SCA) at para 16). The Hearsay Act, how- the High Court admitted the statement

T
ever, provides for the exceptions to the as evidence. Ms Dasi’s statement was the
he Constitutional Court (CC) rule under which hearsay evidence may only evidence that directly implicated
judgment in Kapa v S 2023 (4) be admitted. It is apposite to detail the Mr Kapa in the commission of murder
BCLR 370 (CC) handed down nature of hearsay evidence led in Kapa against the deceased. Without this state-
on 24 January 2023 marked before considering the exceptions to the ment, there could not have been any
a ground-breaking departure rule against hearsay. conviction as none of the state witnesses
from the approach and treatment of Mr Kapa was one of the seven accused incriminated Mr Kapa.
hearsay evidence that has so far been who stood trial in the Western Cape Di- Mr Kapa’s applications for leave to
standard practice. To unpack the gist of vision High Court facing several charges appeal against conviction and sentence
the judgment, it is necessary to revisit forming part of vigilantism in Khayelit- were dismissed by both the High Court
what hearsay evidence is, what the law sha, including two of murder. Mr Kapa and the Supreme Court of Appeal. The CC
provides and how this has been treated was convicted on one of the murder had to decide whether the admission of
by the courts over the years. charges and was sentenced to 15 years’ hearsay evidence tendered in the form of
Section 3(4) of the Law of Evidence imprisonment. He was acquitted on the a statement made by Ms Dasi, infringed
Amendment Act 45 of 1988 (the Hear- rest of the charges. One of the reasons against his constitutional right to a fair
say Act) defines ‘hearsay evidence’ as that led to his acquittal is that one of trial. Three of the CC justices held that
‘evidence, whether oral or in writing, the the state witnesses, Mr May, who hap- it did and they based their reasoning on

DE REBUS – JULY 2023

- 12 -
 FEATURE – CRIMINAL LAW

the judgments of Ndhlovu and S v Rama- bative value of the statement in a piece- rectly hinted, a possibility that Ms Dasi
vhale 1996 (1) SACR 639 (A). However, meal fashion. It should instead apply a could have disavow her statement too,
six justices who decided for the majori- holistic approach, assessing whether on had she lived to give evidence cannot be
ty, took a different approach saying: ‘But the whole the statement was of adequate excluded.
where the interests of justice, constitu- probative value in light of all of the other With this judgment, the question that
tionally measured, require that hearsay circumstantial evidence taken together. begs to be asked is what impact it would
evidence be admitted, no constitutional Approached in this way, the outcome have on all the cases in which witness-
right is infringed’ (para 101). Interest- must be different’ (para 98). es are killed before giving evidence. Mr
ingly, by referring to the interests of jus- The CC was alive to the prejudice suf- May lived to give evidence and through
tice, the CC (through the majority judg- fered by Mr Kapa in admitting the hear- cross-examination, no weight could be
ment) was referring to the provisions of say evidence, when it held: ‘The preju- attached to the statement he gave to
the Hearsay Act, which happened to be dice occasioned to the applicant as an the police. Ms Dasi died shortly before
the basis on which Ramavhale, Ndhlovu accused person by the admission of the the trial started, and her statement was
and the minority judgment were centred. hearsay evidence is significant. The ac- admitted without any question to the
This necessitates the visitation of the cused was deprived of an opportunity to author as she was no more, resulting in
Hearsay Act itself. cross-examine the witness, which could the conviction of the accused. It does not
Section 3 of the Hearsay Act provides – have shed light on the credibility and look like the death (or even killing) of
‘Hearsay evidence – reliability of the witness, her powers of state witnesses would serve any benefit
(1) Subject to the provisions of any oth- observation, and so forth.’ It, however, to the accused persons as it may even
er law, hearsay evidence shall not be quoted from Ndhlovu (at para 24) with worsen their situation.
admitted as evidence at criminal or approval, where the following was held: Whether the new dispensation adds
civil proceedings, unless – ‘The Bill of Rights does not guarantee value to the jurisprudence of criminal
(a) each party against whom the evi- an entitlement to subject all evidence to law, will depend on where one stands. Mr
dence is to be adduced agrees to cross-examination. What it contains is Bungane and Ms Dasi’s family was elat-
the admission thereof as evidence at the right (subject to limitation in terms ed that justice could still be done even
such proceedings; of section 36) to “challenge evidence”. in death. Mr Kapa, however, felt preju-
(b) the person upon whose credibility Where that evidence is hearsay, the right diced having been deprived of a right to
the probative value of such evidence entails that the accused is entitled to re- cross-examine anyone implicating him
depends, himself testifies at such sist its admission and to scrutinise its in wrongdoing, especially that which led
proceedings; or probative value, including its reliability. to his incarceration. Whatever the posi-
(c) the court, having regard to – The provisions enshrine these entitle- tion, hearsay evidence as it is treated by
(i) the nature of the proceedings; ments. But where the interests of justice, the courts, would never be the same. The
(ii) the nature of the evidence; constitutionally measured, require that impact thereof in cases that up to now
(iii) the purpose for which the evidence hearsay evidence be admitted, no consti- would have been withdrawn by the state
is tendered; tutional right is infringed’ (para 101). due to unavailability of state witnesses,
(iv) the probative value of the evidence; The court concluded that, ‘it bears remains to be seen.
(v) the reason why the evidence is not emphasis that the fact that the evidence
given by the person upon whose in question evidently strengthens the
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credibility the probative value of prosecution’s case does not render the
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evidence should be admitted in the only consideration – the court must also
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ground other than that such evi- pointers of truthfulness, reliability, and Visit www.derebus.org.za
dence is hearsay evidence.’ probative value for the statement to be
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held: ‘Courts are generally hesitant to say evidence in criminal trials. The ad- your device.
admit hearsay evidence that is decisive missibility of hearsay evidence has been
in convicting an accused. The Supreme made easier even when it is decisive in
Court of Appeal in Ndhlovu stated that convicting an accused. The prejudice to
“admitting or relying on hearsay evi- be suffered by the accused persons was BAIL AP
EXCEPT PL
ICATIO
NS: AR
JULY 202
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Rule 43 IONAL E TH
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Is the Roa ? a case
inheritas d Accident Fund redefining : A landmark

nificant part in convicting an accused” needs not look very far to see the con- damnosa an hearsay the adm ruling
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should only be done “if there is compel- sequences of this decision. It is common
are re
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adhered
to
The com
mon law

ling justification for doing so.”’ in cases involving vigilantism for wit-
healthcare ‘public
remains defence’
a viable
despite defe
the SCA nce
rulin
in Mashini g

In holding that the interests of justice nesses to recant their statements during
ni

demand the admission of the hearsay trial for reasons such as fearing for their Pension
inte
The dan
busines
gers of
to reform rest in divorce: s e-m

evidence, Majiedt J who wrote for the lives. This is exactly what Mr May did in s 7 of the Is compromisail
Divorce Act?it time e
employe Employe
e after dism r to reinstat
issal was e and pay
and sub procedu

majority held that the minority judg- this case and it worked in favour of the
stantive rally
ly unfair

ment ‘impermissibly evaluates the pro- accused. As the minority judgment cor-

DE REBUS – JULY 2023

- 13 -
 Picture source: Gallo Images/Getty
Is the Road Accident Fund an inheritas damnosa?
and to consumers outside the organisa- with neither its duty to uphold the fun-
tion and its embrace of diversity. damental rights enshrined in the Con-
39.1.1.8 These challenges have been stitution nor the duties imposed upon
compounded by a dearth of appropriate it by its statute.’ The question may be
skills … at all levels of the RAF organisa- asked whether and why this assessment
tion. The result has been that the organ- may be true.
isation has floundered in the quicksand On reflection the following aspects in-
of its own inertia or has succumbed to fluence the fortunes of the RAF −
an epidemic of consultants’. • external environment in which the
Damning judicial criticism of the RAF RAF functions and funding; and
since 2002 was frequent and common- • past management decisions and legis-
place. To date the RAF’s delinquency lation.
featured in 34 cases. In some instances,
By the protection of s 15(3) of the Road Ac-
External environment:
Professor cident Fund Act 56 of 1996 (RAF Act), Sources of RAF liability
Hennie protecting officials against personal li-
ability, was forfeited – recently in Hlatsh- • RAF Act
Klopper
wayo and Another v Road Accident Fund The RAF exists as a road crash victim
(MM) (unreported case no 3242/2019, (RCV) social security compensation fund

T
24-1-2023) (Legodi JP (Mphahlele DJP for the personal consequences of road
he Report of the Road Acci- and Mashile J concurring). Bertelsmann traffic crashes (RTCs). The mechanism
dent Fund Commission, 2002 J in Ketsekele v Road Accident Fund 2015 employed, is the suspension of delictual
commented on the Road Ac- (4) SA 178 (GP) remarked that whomso- liability of the wrongdoing driver of a
cident Fund (RAF) as follows: ever should manage the RAF is: ‘Saddled motor vehicle and the transferral thereof
‘39.1.1.7 … The RAF continues with an inheritas damnosa, a cursed to the RAF. Motor vehicle drivers/owners
to experience difficulty with its restruc- inheritance that would doom it to fail contribute to the RAF through the pay-
turing as a modern corporate entity, its virtually immediately. The compensa- ment of a fuel levy. The sole beneficiary
restyling as a service-oriented provider tion of road accident victims requires a of the system is the third party (RCV)
of benefits, the remoulding of attitudes radical change that should be free of the (see Smith v Road Accident Fund 2006
to employees within the organisation shackles of an institution that complies (4) SA 590 (SCA)) who is afforded the

Fatalities South Africa /100 000 WHO /100 00 middle

income countries average

Annual average 14 000 42* 19.2

2015 Labuschagne 13 591 41*

2015 Lancet 20 180 70*

* Based on 2022 SA population of 60 million.

Table 1

DE REBUS – JULY 2023

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 FEATURE – MOTOR LAW

Injuries Number Non-serious Serious

2015 Labuschagne 265 029 202 509 62 520

Based on 2006 hospital admissions 363 446 290 757* 72 689*

* Using the ratio in the Labuschagne report.

Table 2

greatest possible protection against the could be considerably more (SA popula- 56 of 1996’ 2007 (70) THRHR 469).
possibility that he would, in the absence tion has grown by 24% in 2006 to 60 mil- Apart from the possible unlawful ex-
of the RAF Act, be unable to recover his lion in 2022 (see Worldometer (op cit)). penditure, this policy exposes the RAF
damages personally from the wrongdo- The primary source of RAF liability is to liability where the supplier claim is
ing driver (see ss 19(a), 21 and 22 of the death and injury caused by unlawful and admitted but, when a personal claim
RAF Act and Aetna Insurance Co v Minis- negligent driving of a motor vehicle. The is subsequently lodged, it is estab-
ter of Justice 1960 (3) SA 273 (A) at 285). state of SA road safety for the past ten lished that admission of the suppli-
years and resultant RAF personal claims, ers claim was erroneous (see Daniels
• RTCs, fatalities, injuries and is reflected in Table 3 (see Road Traffic and Others v Road Accident Fund and
resulting claims Management Corporation (RTMC) Road Others (WCC) (unreported case no
Traffic Reports 2010 − 2020 and RAF 8853/2010, 28-4-2011) (Binns-Ward
RTCs and their frequency and conse- Annual Reports 2010 − 2020). J)).
quences for RCVs are indisputably pivot- • The withdrawal and suspension during
al to the RAF’s fortunes. Internationally • Governance 2004 of all existing settlement offers
road fatalities are used to indicate road resulting in a flood of summonses.
Over the past 13 years, there have been
safety. Table 1 is a comparative road fa-
seven Ministers of Transport. The RAF’s
• The unilateral implementation of pay-
tality table comparing South Africa (SA) ment in instalments of compensation
chief executive officer (CEO) is appointed
to international World Health Organisa- for loss of income and maintenance
for five years. During this period, there
tion (WHO) statistics (WHO ‘Road safety’ without the RAF Act authorising such
were three and two acting RAF CEOs.
(www.who.int, accessed 10-5-2023); Lee instalments and without the RAF
Rondganger ‘South Africa’s roads deaths • Funding having the administrative capacity
are a “national crisis”’ (www.iol.co.za, to properly administer deferred pay-
accessed 10-5-2023); F Labuschagne, E The RAF is currently funded by a fuel ments, resulting in unnecessary legal
de Beer, D Roux and K Venter ‘The cost levy of R 2,18 per litre. Table 4 shows costs.
of crashes in South Africa 2016’ (www. 2010-2020 funding, claims payments • Unofficial capping of claims for non-
satc.org.za, accessed 10-5-2023); Lancet and administration costs of the RAF (see patrimonial loss by introducing an
Global Burden of Disease Study (chief RAF Annual Reports 2010-2020). arbitrary internal injury quantum list
contributors Christopher JL Murray, Alan not based on legal principle or prec-
D Lopez, Mohsen Naghavi, and Haidong Management and edent, and informing staff that devia-
Wang) (www.thelancet.com, accessed 10-
legislation tion will result in disciplinary steps.
5-2023); Worldometer (www.worldom- • Exclusively issuing only undertakings
eters.info, accessed 22-3-2023)). Faced with the RAF problem, successive for future medical expenses without
Besides fatalities, RTC injuries impact RAF managements made and instigated adequate administrative resources.
road users. Table 2 shows the number some decisions, legislation and meas- • In order to manage cash-flow, an in-
of serious and non-serious RTC injuries ures thought to be solutions and/or RAF struction to enter an appearance to
both established and probable (based service delivery enhancements. From defend all summonses, whether de-
on public hospital trauma admissions) own experience and discussions with fence is justified or not (see Daniels)
(see Labuschagne (op cit) report table RAF staff, examples since 2002 are: ending in a R 10 billion legal bill in
6 at p 32; RG Matzopoulos, M Prinsloo, • Adjustment of the staff structure by 2020 (see Hennie Klopper ‘Is the Road
A Butchart, MM Peden and CJ Lombard the introduction of more claims han- Accident Fund’s litigation in urgent
‘Estimating the South African trauma dlers and fewer claims’ assistants, need of review?’ 2019 (March) DR 10).
caseload’ (2006) 13 International Journal having a negative effect on productiv- It also resulted in the loss of efficacy
of Injury Control and Safety Promotion ity and resulting in increased in litiga- of the anti-litigation measure con-
49; Amy Williams Investigation into the tion. tained in s 17(3)(b).
factors contributing to malpractice litiga- • Acceptance and payment of suppliers • Amendment of s 17(1) in 2008 intro-
tion in nursing practice within the private claims without corresponding person- ducing a serious injury threshold for
healthcare sector of Gauteng (MNurs, al claims being lodged (see HB Klopper non-patrimonial loss substantially
Stellenbosch University, 2018). ‘Supplier’s claims in terms of section increasing administrative and legal
The current probable RTC trauma count 17(5) of the Road Accident Fund Act costs and causing further delays. Also

2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020

Fatalities 13 967 13 954 10 977 10 170 10 367 10 613 14 071 14 050 12 921 12 503 9 969

Claims 85 369 74 162 52 445 47 159 53 230 62 436 71 664 73 860 92 101 103 423 102 086

Note: Average overall staff count = 2 363

Table 3

DE REBUS – JULY 2023

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FEATURE – MOTOR LAW

2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020

Funding 12 683 14 526 17 104 18 143 20 156 20 680 33 206 33 342 37 341 43 239 41 241
Rmil

Claims 13 555 28 798 45 807 31 580 25 934 29 703 34 222 31 965 36 941 44 578 45 766
+ Admin
Rmil
Surplus/ (872) (14 272) (28 703) (13 437) (5 778) (7 023) (1 016) 1 377 400 (1 338) (4 525)
(Deficit)
Rmil
Table 4

abolishing the right to recover pre- The current stopgap of appointing the agerial decisions and/or legislative
summons costs by repealing s 17(2). State Attorney seems to be unsatisfac- attempts to solve a misidentified RAF
• Proposing and expending consider- tory (see eg, Tshabalala v Road Ac- problem.
able resources on the formulation and cident Fund (GJ) (unreported case no Despite the perceived delinquency of
promotion of the Road Accident Bene- 12133/2018, 23-3-2023) (Gilbert AJ); the RAF, an analysis of 13 years of RAF
fit Scheme (RABS), which was rejected Zulu v Road Accident Fund (GP) (un- claims completion performance shows
by Parliament. reported case no 89670/18, 1-3-2023) that it completes an average of 94% of
• An attempt to side-line attorneys (in (Mogotsi AJ). the number of claims annually lodged
the belief that attorneys were the • Recent attempts to amend the RAF and spends an average of 106% of income
source of the RAF’s problems) by the claims regulations by internal decree on settlement of claims (RAF Annual
introduction of a direct payments (see Nel v Road Accident Fund (GP) (un- Reports 2006 − 2020). The high claims
scheme (see Law Society of SA and reported case 22142/2021, 7-5-2021) volumes resulting from abnormally high
Others v Road Accident Fund and An- (Neukircher J) and Mautla and Oth- RTC incidence and underfunding over
other 2009 (1) SA 206 (C)). ers v Road Accident (GP) (unreported decades has caused a current accumu-
• To save costs, the attempted exclusion case no 29459/2021)). Also, efforts to lated backlog of 359 190 claims. This
of attorneys by the introduction and amend the RAF Act and common law represents a contingent RAF liability of
active propagation of ‘direct claims’ by rejecting and litigating claims by some R 50 billion (calculated using the
where the RAF acts on behalf of a foreigners and claims for medical ex- 2020 average personal claim payment of
claimant. Many direct claimants have penses paid by a medical aid (see Mu- R 279 950).
been prejudiced by the RAF either al- dawo v Minister of Transport and Road The government has a constitutional
lowing their claims to prescribe or Accident Fund (GP) (unreported case duty to ensure road safety (see Klopper
be under settled (see Gert Nel ‘Road no 11795/2022); Discovery Health Hennie ‘The right to road safety’ 2018
Accident Fund “direct claims” versus (Pty) Limited v Road Accident Fund (June) DR 20). The government’s failure
public interest’ 2018 (Aug) DR 26. and Another (GP) (unreported case no to effectively comply with this duty (as
Also see Tosholo v Road Accident Fund 2022/016179, 26-10-2022) (Mbongwe expressed by SA’s unacceptably high
(WCC) (unreported case no 449/2018, J); Van Heerden v Road Accident Fund road fatality rate) is the main, real, and
4-5-2023) (Wathen-Falken AJ)) caus- (ECGq) (unreported case no 845/2021, actual basic root cause of the RAF prob-
ing more litigation. Ostensibly direct 4-10-202) (Rugunanan J); Mawila v lem.
claims, ‘serious injury’ assessments/ Road Accident Fund (15105/2022, 28- All of the above considerations, make
disputes and the promotion of RABS 11-2022); Malgas v Road Accident Fund the RAF an inheritas damnosa. Ultimate-
may have contributed to a virtual dou- (ECGq) (unreported case no 126/2020, ly, it is the unfortunate third party as
bling of administrative costs for 2011 1-12-2022) (Van Zyl DJP); SJJW v Road sole beneficiary of RAF social security,
− 2014 (RAF Annual Report 2015/16). Accident Fund (WCC) (unreported case who is the only and hapless victim of
• Termination of RAF panel attorney no 19574/2017, 8-2-2023) (Van Zyl such a damned inheritance.
contracts in 2019/2020 (ostensibly AJ)).
in response to Klopper ‘Is the Road
Accident Fund’s litigation in urgent Discussion and conclusion
need of review?’ (op cit)) and cf Road Much of the RAF malaise is attributable
Accident Fund and Others v Mabunda to mainly four factors −
Incorporated and Others and a related • abnormally high incidence of RTCs Professor Hennie Klopper BA LLD
matter [2023] 1 All SA 595 (SCA)) af- and resultant flood of claims; (UFS) is an Emeritus Professor
fecting some 300 High Court defended • lack of adequate funding; at the University of Pretoria and
cases without any effective strategy to • no political and managerial continuity; legal practitioner at HB Klopper in
deal with claims of affected plaintiffs and Pretoria. q
after termination (see Hlatshwayo). • exacerbation by futile and costly man-

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DE REBUS – JULY 2023

- 16 -
 FEATURE – CUSTOMARY LAW
Picture source: Gallo Images/Getty

By Prof
Fareed
Moosa

Rule 43 and Muslim divorces: Can relief be granted

if the marriage was dissolved by Sharia law?

R
ule 43 of the Uniform Rules of and Others 2020 (3) SA 409 (WCC) at para (a) by one spouse against the other for
Court was promulgated in GN 25(g)). Secondly, while an applicant must maintenance pendente lite;
R48 GG999/12-1-1965 and has deliver a sworn statement in the form of (b) for contribution towards the costs of a
largely remained untouched. a declaration, a respondent must, within pending matrimonial action’.
In S v S and Another 2019 (6) ten days, deliver a sworn reply in the form The power of judicial review is crucial to
SA 1 (CC) at para 53, the court held that of a plea. Neither may adduce additional a democratic order and the maintenance
r 43 requires revision. In MD v MD (GJ) (un- affidavits, save with leave from the court. of the rule of law, both foundational val-
reported case no 2021/43212, 2-2-2023) An applicant who discloses only informa- ues engrained in s 1 of the Constitution.
(Bezuidenhout AJ) at para 11, Bezuiden- tion favourable to her case acts dishonour- That power must be protected against un-
hout AJ labelled the truncated procedures ably and may be denied relief (see SK v JLK due erosion through legislative means. For
stipulated in r 43 to be ‘discriminatory (WCC) (unreported case no 3198/23, 24-3- this reason, as an ouster, s 16(3) must be
and … inconsistent with the constitution’. 2023) (Thulare J) at para 17). interpreted strictly through the lens of its
Undoubtedly, this rule serves a useful pur- wording, context, purpose, and s 39(2) of
pose. Object of article the Constitution (see Chisuse and Others
Rule 43 permits a plaintiff wife at the This article challenges the correctness of v Director-General, Department of Home
wrong end of the economic wrung to the view that a blanket bar exists against Affairs and Another 2020 (6) SA 14 (CC)
obtain maintenance pendente lite and a appeals to all orders granted in r 43 pro- at para 47).
cost contribution from her more affluent ceedings. This article demonstrates that Section 16(3)(a) and (b) envisage pro-
spouse. Rule 43 does not permit a spouse, a limited right of appeal exists. Further- ceedings between spouses. Therefore, it
as of right and without more, to be main- more, it is argued that this right is useful does not bar an appeal against a ruling,
tained in a way ‘sufficient to keep him or in litigation undertaken within the frame- such as, in EW v VH, which refuses relief
her in the same lifestyle as that enjoyed work crafted in Women’s Legal Centre under r 43 on the basis that the protago-
during the marriage’ (BR v DR (WCC) (un- Trust v President of the Republic of South nists are not spouses owing one another a
reported case no 14189/2022, 17-3-2023) Africa and Others 2022 (5) SA 323 (CC) at duty of support. In casu, the majority (per
(Kusevitsky J) at para 4). Relief granted un- para 86 for the benefit of persons in Sharia Cloete et Slingers JJ) dismissed an r 43 pe-
der r 43 is predicated on the existence of (Muslim) marriages. tition on the basis that the applicant failed
a reciprocal duty of support (see EW v VH to prove the existence of a permanent
(Women’s Legal Centre Trust as Amicus Ambit of appeals bar life partnership in a familial setting aris-
Curiae) [2023] 2 All SA 404 (WCC) at para The starting point is s 16(3) of the Supe- ing from her cohabitation with respond-
43). On divorce, that duty ceases, except as rior Courts Act 10 of 2013. In S v S, s 16(3) ent. Section 16(3) does not oust appellate
otherwise provided in legislation (see EH v was declared constitutional. Section 16(3) jurisdiction on the issue whether a High
SH 2012 (4) SA 164 (SCA) at para 12). is an ouster clause constraining judicial re- Court was correct in finding that an appli-
Rule 43 is geared to facilitating inexpen- view. It reads: ‘Notwithstanding any other cant fell beyond r 43’s net. If this ruling is
sive and expeditious relief. These goals law, no appeal lies from any judgment or overturned on appeal, then the case would
are achieved, first, by our courts adopting order in proceedings in connection with be remitted back for adjudication on the
a robust adjudicative process (see CT v MT an application – merits of the relief sought under r 43, un-

DE REBUS – JULY 2023

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FEATURE – CUSTOMARY LAW

less the appeal court deems it expedient to riage under the Divorce Act is conferred divorce is firmly recognised in Women’s
decide same in the interests of the parties’ on a finite group, the judgment’s spirit Legal Centre Trust.
rights to speedy, cost-effective justice. supports the view contended for here that Irrespective of the process followed to
A proper interpretation of the word ‘law’ the election applies equally to prospective terminate a Muslim marriage and its tim-
in s 16(3)’s context for purposes of the spouses in Muslim marriages generally. ing, spouses or former spouses may now
phrase ‘[n]otwithstanding any other law’ The restrictive language used in the order claim post-divorce maintenance and asset
necessitates that it be understood through is regrettable. redistribution under ss 7(2) and (3) of the
the prism of constitutional supremacy en- Secondly, s 7(3) of the Divorce Act will Divorce Act respectively. This begs the
trenched in s 2 of the Constitution, and as apply to Muslim marriages ‘regardless of question: Pending such litigation, can re-
a foundational value in s 1(c). As a result, when it was concluded’ (para 86(1.7)(b)). lief be granted under r 43 after the mar-
the Constitution, as law, falls beyond the Section 7(3) empowers ‘[a] court granting a riage was dissolved by Sharia law? I submit
ambit of ‘law’ for s 16(3)’s purpose. Put decree of divorce’ to grant a redistribution ‘no’ − the duty of support underpinning
differently, the Constitution’s status as of assets ‘on application’ by any spouse. this rule falls away on divorce, including
‘the supreme law’ means that s 16(3) can- Thirdly, s 12(2) of the Children’s Act 38 of by Sharia law (save for a husband’s duty
not override the Constitution or its provi- 2005 will apply to ‘a prospective spouse to maintain his wife during Iddah). If re-
sions. The decision in S v S at para 58 must in a Muslim marriage concluded after the lief is granted under r 43 despite evidence
be understood against this backdrop. date of this order’ (para 86(1.8)). Fourthly, of a lawful dissolution by Sharia law, then
In casu, the court recognised that cases ss 3(1)(a), 3(3), 3(4)(a), (b), and 3(5) of the that ought, it is submitted, to constitute
may arise ‘where strict adherence to the Recognition of Customary Marriages Act grounds for an appeal envisaged in S v
rules [of court] is at variance with the 120 of 1998 apply to prospective Muslim S. An order under r 43 can be financially
interests of justice’ because, on the one marriages. Fifthly, ‘[i]f administrative or crippling and personally devastating. The
hand, a litigant who bears the brunt of an practical problems arise in the implemen- obligations created must be complied with
r 43 order is unable to seek variation un- tation of this order’, then ‘any interested ‘in form and spirit’ (SS v VV-S 2018 (6)
der r 43(6) owing to the absence of a ‘ma- person may approach this court for a vari- BCLR 671 (CC) at para 23), failing which
terial change’ in circumstances while, on ation of this order’ (para 86(1.10)). contempt proceedings may ensue and a
the other hand, ‘there is a need to remedy In Women’s Legal Centre Trust, the court contemnor’s imprisonment ordered (see
a patently unjust and erroneous order’ emphasised that the true problem requir- Bannatyne v Bannatyne (Commission for
(para 58). In such ‘exceptional cases’ an ing redress is the absence of a dispute Gender Equality, as Amicus Curiae) 2003
appeal would be an appropriate remedy to resolution mechanism that deals with ‘the (2) SA 363 (CC) at paras 27-28).
avert grave injustice that would flow from consequences of the dissolution of a Mus- Finally, the declarations of unconstitu-
the r 43 order. The appellate power in lim marriage, particularly as regards the tionality in Women’s Legal Centre Trust
these circumstances was sourced in s 173 equitable distribution of assets and the and the relief crafted by the court changed
of the Constitution. It contains a reservoir protection of children’ (para 58). Hence, the landscape of our law of marriage.
of inherent judicial powers to administer the court fashioned interim relief that ad- Women’s Legal Centre Trust brought a
justice. dressed these concerns, while at the same decisive break from our disgraceful past
time recognising the validity of Sharia in the treatment of Muslim marriages and
Rule 43 and Muslim marital law. At para 60, it affirmed that the consequences flowing from their ter-
the constitutionality of that law was not at mination. As a result of this ground-break-
divorces issue in casu. ing judgment, the basis for the approach
No fixed rules can be laid down as to when Consequently, the judgment and order followed in AM v RM 2010 (2) SA 223 (ECP)
an appeal ought to be allowed to remedy a in Women’s Legal Centre Trust makes it and SJ v SE 2021 (1) SA 563 (GJ) in relation
patently unjust and erroneous r 43 order. plain that Muslims can continue to prac- to the application of r 43 as compared to
Each application for leave to appeal would tice Sharia law by, inter alia, solemnising that contended for above in this article has
have to be decided on its own merits. A and terminating marriages according to fallen away – with respect, they no longer
real danger exists for substantial injustice its tenets. Subsequently, Meer J went a hold as good precedent.
to arise from an r 43 order granted erro- step further. In Benjamin and Another v In both cases, relief was granted under
neously in litigation occurring within the FNB Trust Services (Pty) Ltd NO and Others r 43 despite a Talaq occurring. However,
judicially created mechanism in Women’s [2022] 4 All SA 687 (WCC) at para 77, she in both, the court justified its decision on
Legal Centre Trust. held that ‘given the practice of Islamic law the basis that a constitutional challenge
In casu, the apex court declared the by South African Muslims since at least was raised in the main action, which po-
common law, the Marriage Act 25 of 1961, the 1790s’, Sharia law is part of South Af- tentially impacted the Talaq. In AM v RM,
and the Divorce Act 70 of 1979 unconsti- rican customary law. Whether the judge’s Revelas J held that r 43 applied because
tutional to the extent that they each fail to view will receive widespread judicial en- the constitutional challenge raised would,
recognise as valid marriages those solem- dorsement remains to be seen. if upheld, affect ‘the status and effect of
nised according to Sharia law but not The preceding discussion shows that the talaq’ (para 10). In SJ v SE, Modiba J
registered as civil marriages. The declara- Muslim marriages (nikah) may validly be held: ‘Treating the Islamic marriage … as
tions of invalidity were suspended for 24 terminated through a Shariah compliant dissolved by the issuing of the Talaq …
months to enable the state to enact appro- Talaq or Faskh, or by court order under will result in a grave injustice … pending
priate legislation. Pending its enactment, the Divorce Act. The requirements to law- the determination of the divorce action
the court formulated the following stop- fully terminate marriage under Sharia where she seeks to raise constitutional is-
gap measures: First, Muslim marriages law is usefully discussed in Benjamin. No sues’ (para 45).
subsisting at 15 December 2014 ‘may be spouse in a Muslim marriage has the right
dissolved in accordance with the Divorce to demand that its dissolution occur pur-
Act’ (para 86(1.7)). For this purpose, the suant to the civil law in the Divorce Act.
entire Divorce Act was declared applica- South African law embraces freedom of re- Prof Fareed Moosa BProc LLB (UWC)
ble, ‘save that all Muslim marriages shall ligion and the right of different communi- LLM (UCT) LLD (UWC) is a legal
be treated as if they are out of community ties to practice their culture and customs. practitioner and Associate Professor
of property; except where there are agree- As a result, there is no impediment to the in the Department of Mercantile and
ments to the contrary’ (para 86(1.7)(a)). lawful termination of a marriage by Sharia Labour Law at the University of the
Although the court order indicates that law, even while civil divorce proceedings Western Cape.
the election to terminate a Muslim mar- are underway. The right to invoke a Sharia
q

DE REBUS – JULY 2023

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 FEATURE – YOUNG THOUGHT LEADERS

A legal profession where rules are not only read

in books, but are practised and adhered to

By
Kgomotso
Ramotsho

S
handukani Mudau is a 28-year-
old candidate legal practitioner
and former President of the
Black Lawyers Association Stu-
dent Chapter National Execu-
tive Committee (BLA-SC NEC).
Ms Mudau was born in Vyeboom village
near Vuwani. She completed her matric
at Tshipakoni Secondary School where
she completed grade ten to matric. After
passing matric she enrolled to study an
LLB at the University of Venda.
She graduated in 2022 and attended
the School for Legal Practice at the Uni-
versity of Venda campus, which was
launched in 2021. After completing law
school, she was afforded an opportunity
to work as a candidate legal practitioner
at Mashabela Attorneys Inc and was the Candidate legal practitioner, Shandukani Mudau.
first candidate legal practitioner to be
registered under legal practitioner Sikh-
anyiso Moyo. had stabbed him, nothing was done. It dore Roosevelt described in his speech
was only the community that took mat- titled ‘Citizenship in a Republic’ popular-
Kgomotso Ramotsho (KR): Why did you ters into their own hands, which was ly known as ‘Man in the arena’. It is a pro-
choose to study law? not enough to me. I had questions as to fession that is very jealous and requires
Shandukani Mudau (SM): Growing up why the police did not do anything? Why you to prepare extensively for it to yield
we did not have career options and the were those accused of killing my brother a positive outcome, it requires patience,
only fields, which seemed respectable not brought to justice and why were they persistence, passion, and self-discipline.
within the community was teacher, po- still alive and he was not? Why is our le- You must be in the arena to win and
lice officer or lawyer. At that time, I just gal system not assisting the marginal- make it in this profession. It is a profes-
wanted to be a magistrate, not knowing I ised? I felt that we had a legal system, sion that is not too friendly and does not
had to be an admitted legal practitioner which was not for us since we could not have room for making mistakes, as that
and work my way up. Lucky enough my access it at the time. one simple mistake can cost you millions
father was a police officer and I would I then decided to study law to bring or a client’s freedom.
try on his clothes during plays at church awareness to previously disadvantaged I am learning that the legal system is
or at school and I got the nickname ‘Ser- members of the community who are fac- not immune to change, however, it is
geant Mudau,’ which I low key loved ing different kinds of crimes on a day- moving at a slow pace. Women are be-
and I always said ‘law chose me’. Dur- to-day basis and to be able to solve dis- ing embraced within the legal profession
ing my matric year my half-brother was putes within communities. even though we are still overlooked and
stabbed to death and the way in which undermined by our male counterparts
it affected my father and siblings was KR: As a candidate legal practitioner, especially in law firms. We still have
very bad. Following the tragic death of what are some of the lessons you are women that are expected to give sexual
my late brother, no arrest was made even learning about the legal profession? favours in order to be within the system
after witnesses came forth to say who SM: The legal profession is what Theo- and have their articles registered.

DE REBUS – JULY 2023

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 The legal profession is not so friend- ate with them in future, which led them attorneys. ‘The Transvaal Supreme Court
ly to candidate legal practitioners, in a to abandon their complains. held that because the word “attorney”
sense that most of our fellow candidate We provided legal assistance to our had always referred to people “of that
legal practitioners are being exploited by leaders across the country who would get class who have always been capable of
their principals and ill-treated, whereas arrested and suspended during strikes being attorneys, namely men, Bristowe J
some are not even compensated for the or while advocating for students. We went on to say that admitting women as
work that they do and they are scared to further partnered with the South African attorneys could also lead to them being
even do anything or to leave the firms Union of Students in order to assist Stu- admitted as advocates “a change which
where they are being ill-treated. dent Representative Council members would mean an enormous difference in
with legal services when they require it. the practice of the courts in this coun-
KR: You were the President of the BLA- This is done through the BLA Provincial try” and he clearly did not mean a posi-
SC NEC. What are some challenges that Executive Committee (PEC) across the tive change’ (Bracher (op cit)).
law students and candidate legal practi- country, when a need for such services Ms Schlesin failed and was turned
tioners have brought to your organisa- arises, we would communicate with PEC away, she also had to pay costs of the
tion for you to address? members, and they would assist. application for the Law Society. Made-
SM: During my term as the President of The Safety and Security Sector Educa- line Wookey resorted to compelling the
the BLA-SC NEC, my office used to ad- tion and Training Authority was one of Incorporated law society to register her
dress issues surrounding articles and vo- the programmes that had and still has articles with an attorney and notary
cational work programmes. What I have issues when it came to disbursement of practising. ‘Maasdorp JP found that be-
realised is that we have a lot of students candidate’s stipends. Candidates would cause there was no positive law in exist-
who after completion of their degrees, go for more than four months without ence disqualifying women from being
get stuck without finding articles be- getting paid. We addressed these issues enrolled as attorneys, her application
cause no one is willing to employ a grad- through our Treasurer office and further succeeded. Maasdorp JP came to the
uate that does not have Practical Legal escalated the matter to the BLA as it was conclusion that women were equally
Training. The programme is expensive also in charge of the programme. entitled with men to be enrolled as at-
for those students who used the Nation- torneys on giving proof of the necessary
al Student Financial Aid Scheme while KR: Are young legal practitioners being qualifications. The laws, he held, made
still doing their degrees. As a result after heard and given platforms? enrolment compulsory except for good
completion of their degrees, these stu- SM: Young legal practitioners are being cause shown. As no good cause had been
dents go and work as cashiers or petrol given a platform through organisations, shown why women should not be enti-
attendants just to survive, in the hopes such as the BLA and others. The BLA tled to sign articles and to become at-
of raising funds to pay for the fees for has established young professionals, torneys once they attained the required
school for legal practice, which increases which will be formally launched in No- qualifications, the application was grant-
every year. In an attempt to assist such vember during the AGM. Such platforms ed’ (Bracher (op cit)).
graduates and to raise those funds for will give candidates a platform to voice It is because of this victory that today
them, the BLA-SC looked at bursaries the problems that they go through on a we have the Women Legal Practitioners
that used to assist associations, such day-to-day basis. Some of the aims and Act, which was promulgated by publica-
as the Black Lawyers Association (BLA), objectives of the BLA as per s 3.1 of the tion in the Government Gazette. On the
that fund such students and pay for BLA constitution is to ‘promote, protect 10 April 1923 women were officially and
their fees. In our attempt we approached and uphold the rights and interests of constitutionally recognised to be admit-
the Treasurer and Education offices on its members’, it also strives ‘for the em- ted as attorneys of the High Court as
reviving the programme, which I hope powerment of all disadvantaged people well as a notary or conveyancer. Today
the current president together with his especially women and young legal prac- women are flourishing in these depart-
collective finalise on and bring back that titioners’ as per s 3.6. ments and doing exceptionally well.
funding programme through the BLA. We also have organisations such as The Women Legal Practitioners Act
During my term as president, we re- the Law Society of South Africa, which is states as follows: ‘Women shall be enti-
ceived a lot of letters challenging us to now focusing on empowering young le- tled to be admitted to practise and to be
address some of the requirements of be- gal practitioners and giving them a space enrolled as advocates, attorneys, nota-
ing a candidate legal practitioner, which to grow and deal with issues that affect ries public or conveyancers in any prov-
some firms were requiring, such as a young people, most especially candidate ince of the Union, subject to the same
graduate must have their own car and legal practitioners. terms and conditions as apply to men,
a valid driver’s licence. We found these and any law in force in any province of
requirements to be absurd and discrimi- KR: This year South Africa is celebrat- the Union regulating the admission or
natory because most of our graduates ing the centenary of the Women Legal enrolment of persons as advocates, at-
especially those who are from disadvan- Practitioners Act 7 of 1923. Do you torneys, notaries public or conveyancers
taged backgrounds were automatically have any thoughts on this? shall henceforth be interpreted accord-
disqualified from being candidate legal SM: ‘The first woman to appear in the ingly’ (Bracher (op cit)).
practitioners. We addressed these issues law reports seeking to be admitted as an The gap from the 10 April 1923 and
together with the BLA and such require- attorney was Sonya Schlesin (Schlesin v 2023 is very big, however, we are not
ments were scraped and any firm that Incorporated Law Society 1909 TS 363)’ yet at a point where we can say women
still requires a graduate to have such can (Patrick Bracher ‘The slow rise of women are equal to men. The legal profession is
be reported to the Legal Practice Council in the legal profession’ 2020 (Sept) DR not so friendly to women. ‘We are still
(LPC). 14). After having her application to be not anywhere near where we should be’,
Most of our female members would admitted as an attorney turned away women are now taking space and ‘lead-
complain of harassment from their Ms Schlesin never gave up nor neglected ing in sufficient numbers in all branches
seniors in the profession while doing the fight for her admission. Back then of the profession’ (Bracher (op cit)) and
vocational work and articles. When we women were not recognised to have the have to bring ten times the hard work
offered assistance, they would opt to re- same benefits or recognition as men, than their male counterparts.
main anonymous for fear of having no women were inferior to men and the The former Chief Justice of the Or-
one believing them or wanting to associ- courts decorum did not cater for women ange Free State, Melius de Villiers wrote

DE REBUS – JULY 2023

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 FEATURE – YOUNG THOUGHT LEADERS

an article ‘Women and the legal profes- women do not have to work ten times SC University of Venda branch. I was
sion’ (1918) 35 SALJ 289 (see Bracher (op harder and sacrifice to be accepted with- elected the first female chairperson of
cit)). He states in his article that ‘intel- in the profession. the branch in 2020. Shortly after that
lectually the average woman will be at A profession whereby a woman is not I was elected as the Academic Trans-
least as capable as the average man to expected to perform on the same ladder formation Officer to serve at the NEC,
be an attorney or advocate and that “the as men because men and women will which I excelled in, until the end of of-
administration of justice will be greatly never be the same. Women must take fice. I was then elected to serve as the
benefited by women” being admitted he care of their families whereas men do National Deputy Chairperson of the
went on to say, relying on the “interest of not, and such gives men an advantage to BMF-SC wherein I was elected in Decem-
the community at large”, that the “point be ahead as they have more time to pre- ber 2022, and term of office will end in
is that of motherhood”. He justified this pare than women. December 2023. The BMF-SC stands for
by saying: “For the sake of perpetua- ‘the development and empowerment
tion of the race, … women are by nature KR: Who are some of the women you of student leadership, primarily among
what they are; if in the part assigned to look up to in the legal profession and black students at tertiary institutions,
women by nature an injustice is done why? and the creation of leadership structures
to them or a hardship is inflicted upon SM: The woman that I look up to is Ma- and processes, which will enhance the
them, these are none of man’s doings, baeng Denise Lenyai who has just been abilities and capabilities’ of students on
nor can he with the best wishes in the appointed to be a Judge of the Gauteng entering the labour market or corporate
world do anything to make things other- Division of the High Court. She is a for- world (https://wcbmf.wordpress.com,
wise. A revolt against nature by women mer Deputy President of the BLA and accessed 20-6-2023).
may be successful, but it is the commu- also former President of the LSSA to My role within the BMF-SF is to ensure
nity at large that would have to suffer for name a few of her achievements. I look that the organisation runs smoothly, and
it. And a revolt against nature is involved up to Ms Lenyai because of the way in that the memorandum of incorporation
in any proposal to allow women to enter which she carries herself within the legal is adhered to by our branches across the
the legal profession’ (Bracher (op cit)). profession, she is the epitome of dignity, country, most of all addressing issues
calmness, determination, hard work and that are affecting our general member-
KR: What kind of legal profession do a God fearing woman. ships such as financial exclusions where-
you envisage, as a young black woman? We all know that the legal profession by the organisation offers bursaries and
SM: I envisage a legal profession that is is not friendly to women, especially short-term lessons from ALX Africa
free from discrimination, and everyone those who thrive to make a change and programmes whereby in the end partici-
is treated equal regardless of their skin be visible even with all the odds stacked pants gets certificate.
colour, a legal profession where the LPC against her she still made it and pros- I am a member of South African Wom-
will have Board Exams Question papers pered from having her firm closed down en Lawyers Association in good standing
in one language and not in Afrikaans to becoming a judge of the Gauteng Di- and looking forward to joining other or-
and English. While Afrikaners are being vision, that has to be dedication, self- ganisations such as the LSSA and partak-
given preference by being examined in discipline, hard work and God’s grace. ing in the activities that they have.
their own mother language, a profession The reason why I chose Ms Lenyai is
where we all write one paper in one lan- because I have had the opportunity to KR: Where do you see yourself in the
guage, which is English. work and interact with her when she was next five years in the legal profession?
A profession that is accessible to eve- still the General Secretary of the BLA. I SM: I see myself being a director of my
ryone and not only the privileged, a pro- have learned to remain calm when faced own law firm and studying towards an
fession where rules are not only read in with challenges and to also be a solu- agriculture related degree since I have
books, but are practised and adhered to, tion to other people’s problems without interest in farming and horticulture.
a profession free from corruption within expecting a reward in the end, but most
the court officials wherein you must pay importantly to always give back to the
a certain registrar to get a date, which is community. Kgomotso Ramotsho Cert Journ
recent and not far. (Boston) Cert Photography (Vega)
A profession whereby women are KR: Besides the BLA, which other or- is the news reporter at De Rebus.
not afraid to hold high office ranks be- ganisation are you a part of and what is q
cause they are always undermined and your role there?
talked down by their male and female SM: I am a member in good standing
colleagues. A profession whereby we as of the Black Management Forum (BMF)

DE REBUS – JULY 2023

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 THE LAW
REPORTS
May 2023 (3) South African Law Reports
(pp 1 – 326); May 2023 (1) South African
Criminal Law Reports (pp 447 – 564)

This column discusses judgments as and when they are pub-

lished in the South African Law Reports, the All South African
Law Reports, the South African Criminal Law Reports and the
By Johan Botha and Gideon Pienaar (seated); Butterworths Constitutional Law Reports. Readers should
Joshua Mendelsohn and Simon Pietersen
note that some reported judgments may have been overruled
(standing).
or overturned on appeal or have an appeal pending against
them: Readers should not rely on a judgment discussed here
without checking on that possibility – Editor.
Abbreviations
GJ: Gauteng Local Division, Johannesburg
GP: Gauteng Division, Pretoria consent was required for MH and K to Regulator v National Consumer Tribunal
LCC: Land Claims Court relocate permanently from SA. and Another 2023 (3) SA 225 (GP) the GP
MM: Mpumalanga Division, Mbombela This was the situation that the WCC in four interrelated appeals dealt with
SCA: Supreme Court of Appeal was confronted with in MH v OT 2023 (3) the legality of the ‘on the road fees’ (OTR
WCC: Western Cape Division, Cape Town SA 159 (WCC), an opposed application by fees) customarily added to the financed
MH for an order that would allow her to prices of cars sold through dealerships.
relocate to the Netherlands permanently In issue was not the legality of the fees
Children with K. themselves, but rather whether they
An opposed overseas relocation of a In its judgment the WCC (per Cloete J) were legal under the National Credit Act
minor child: MH, a Dutch mother living pointed out that when a court sat as up- 34 of 2005 (the Act).
in South Africa (SA), wanted to return to per guardian of a minor child, there was The National Credit Regulator (NCR)
her homeland permanently with her five- no ‘onus’ in the conventional sense, so had in 2017 issued compliance notices
year-old son, K, who was born in SA in that in relocation matters the courts had against three vehicle finance houses –
May 2013. The boy, over whom MH had to take an overall view of the situation to Volkswagen Financial Services SA (Pty)
in 2015 been granted full parental rights determine whether the parent’s decision Ltd (VWFS), Mercedes-Benz Financial Ser-
and responsibilities, had a Dutch pass- to relocate was a reasonable one. Not vices SA (Pty) Ltd (MBFS) and BMW Finan-
port, and spoke that language. But his every relocation should be approached cial Services SA (Pty) Ltd (BMWFS) – con-
biological father, OT, also Dutch, with only from the child’s perspective, nor taining findings that they had charged
whom MH had been involved in an ac- would the child’s best interests always consumers OTR fees disguised as ser-
rimonious relationship while they were trump all other rights. vice and delivery fees in contravention of
both living in SA, opposed the relocation While there was little doubt in the various stipulations of the Act. The NCR
on the ground that it would destroy his WCC’s mind that K wished to maintain ordered the finance houses to reimburse
relationship with K. frequent contact with his father, it had the affected consumers. The finance
The discord between MH and OT was to weigh this against K’s rights to – houses then successfully approached
the primary reason why MH wanted to • develop in an environment free of the National Consumer Tribunal to have
leave SA for the Netherlands. It was in strife between his parents; and the compliance notices set aside and the
her view detrimental to both her and K’s • have his primary attachment figure, OTRs refunded (back) to them.
wellbeing to live here under such stress- MH, free from the anxiety that had The NCR appealed to the GP, which
ful circumstances. She also cited better permeated her life since at least his proceeded to hear four consolidated
employment prospects and an improved birth. statutory appeals involving the Tribunal,
lifestyle for her and K in the Netherlands, The WCC emphasised that MH’s rea- the finance houses, and the NCR, which
where they would have the support of sons for wishing to relocate were clearly appealed the Tribunal’s order for the
her nuclear family. OT argued that none bona fide and reasonable, that there refunding of the OTRs. The parties pro-
of this was a sufficient reason for reloca- were no compelling reasons to override vided the GP with a joint practice notice
tion and that, given the level of distrust her decision, and that the bond between in which they asked the GP to determine
between the parents, the odds were that K and the OT was such that it could with- whether the charging of the OTR fees was
his close and burgeoning relationship stand separation. In the light of these contrary to ss 100, 101 and 102 of the
with K would be ruined if MH and K left considerations, the WCC on 4 July 2018 Act, which between them prescribe the
SA. OT had by this time acquired perma- authorised WH to remove K permanently types and nature of fees, or services that
nent residence in SA and was involved to the Netherlands. credit providers may charge consumers
in a stable relationship with a South Af- under instalment sale agreements. Sec-
rican woman. An agreement, which was Consumer protection tion 100 deals with prohibited charges
made an order of court provided that OT The legality of the ‘on the road fees’ and provides that a credit provider may
had contact rights with K and that his charged in car sales: In National Credit not charge a consumer fees, charges or

DE REBUS – JULY 2023

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FSP Number 33621
LAW REPORTS

commissions prohibited by the NCA. Sec- Contingency fee fees, or less, if the litigation was success-
tion 101 deals with the cost of credit and ful. The agreement in question clearly
prohibits a credit agreement from re- agreements (CFAs) constituted a CFA and was illegal for
quiring from the consumer payment for What do they look like? In TM obo MM non-compliance with the Act.
anything but the principal debt, interest v MEC for Health, Mpumalanga 2023
and certain specified fees and charges, (3) SA 173 (MM), an action against the Criminal law
‘plus the value of any item contemplated Member of the Executive Council (MEC)
Inquests – magistrate holding informal
in section 102’ (our italics). Section 102, for Health on behalf of a child who was
instead of formal inquest constituting
which contains a list of these items (fees diagnosed with cerebral palsy arising
irregularity but not vitiating findings:
or charges that may form part of the from alleged medical negligence at child-
Todd v Magistrate, Clanwilliam and Oth-
transaction: initiation fees, connection birth, Legodi JP was presented with a
ers 2023 (1) SACR 481 (WCC) concerns
fees, delivery fees etcetera). It provides draft order of settlement, submitted to
an application for the review of the find-
that the credit provider may not charge be made an order of court by agreement
ings of an inquest arising from an inci-
for them unless the consumer appoints between the parties. Accompanying the
dent in which the deceased died in a fall
the credit provider as his or her agent in draft order was an affidavit from the
from a cliff. When she fell, the deceased
arranging for the service concerned. OTR plaintiff’s attorneys, which stated that
was in the presence of her husband, the
fees are never mentioned. ‘neither the plaintiff nor plaintiff’s legal
applicant and only witness. The magis-
In a split judgment, the majority of representatives entered into a [CFA] as is
trate found in terms of s 16(2)(d) of the
the GP (per Malungana AJ, Millar J con- contemplated in terms of section 4(1) of
Inquests Act 58 of 1959 (the Act) that,
curring) pointed out s 100 prohibits the the Contingency Fees Act No 66 of 1997’
although there were no direct witnesses
credit provider from charging or impos- (the Act).
to the incident, the available circum-
ing monetary liability on the consumer Concerned that the fee agreement
stantial evidence strongly indicated foul
in respect of prohibited fees or charges, amounted to a CFA without complying
play on the applicant’s part. The mag-
and that the credit provider imposes with s 4 of the Act, the MM issued sev-
istrate, therefore, ruled that her death
no obligation or financial liability when eral directives to the plaintiff’s attor-
was brought about by an act or omission
it finances the principal debt predeter- neys requiring more information on the
that prima facie involved or amounted
mined by the dealer. And s 101 is trig- exact nature of the fee agreement. They
to an offence on the applicant’s part.
gered only if the credit provider charges replied that there was no success fee in-
Aside from challenging these findings,
for the goods or services prohibited in volved, but that, having ascertained that
the applicant contended that the magis-
s 100 as that would increase the cost it was a prosecutable claim, they agreed
trate had erred in holding a non-public
of credit. Dealers and credit providers to recover reasonable attorney and own
inquest into the deceased’s death based
thus perform separate, complimentary client fees, as well as all disbursements
solely on affidavits and without recourse
roles during the ‘pre-agreement’ stage not recovered in the party and party bill
to oral evidence, and despite the rec-
that culminates in the conclusion of the of costs. It was common cause that the
ommendations of the Director of Pub-
credit agreement. Therefore, the finance plaintiff was indigent and unable to pay
lic Prosecutions and the request by the
houses do not charge OTR fees when fees upfront.
daughter of the deceased.
they include them in credit agreements: The MM disagreed with their reply,
The WCC (per Lekhuleni J, Allie J con-
they are added to the purchase price holding that it was common cause that
curring), agreed that the magistrate’s de-
during the initial negotiations between payment of legal fees was dependent on
cision to hold an informal inquest was
consumers and dealers, that is, during the success of the litigation and was to
wrong and that inquest magistrates were
the pre-agreement stage. The finance be paid from the capital amount that
ordinarily under an obligation to call for
houses then financed the principal debt, may be recovered in the litigation. All
oral evidence. The WCC was neverthe-
consisting of the purchase price and the was, therefore, dependent on a ‘no win,
less of the view that this did not mean
other extras, including the OTR fees. no fee’ model or on the so-called ‘suc-
that the magistrate’s decision had to be
There was, therefore, no merit in the cess fee’. An agreement where fees and
reviewed. More was required. The ap-
NCR’s argument that in VWFS and the disbursements were paid out of the capi-
plicant had to satisfy the court that the
other finance houses had charged the tal amount on favourable finalisation of
exercise of the magistrate’s discretion
consumers OTR fees in contravention of the matter could be nothing else but a
was so unreasonable and capricious that
the Act. The dealers had imposed them CFA.
it infringed his fundamental rights. But
at the initial stage of the sale process. The MM further held that agreements –
the applicant did not show that he had
In the premises, the GP ruled in favour • without upfront or immediate pay-
suffered any prejudice pursuant because
of the finance houses that they did not ment of fees for legal services ren-
of the magistrate’s decision to hold an
contravene ss 100, 101 or 102 of the Act, dered; or
informal inquest.
upheld their appeals and dismissed the • for payment of fees from the capital
As to the findings on the facts, the
NCR’s appeal. amount arising from successful litiga-
WCC was not persuaded that the appli-
In a firm dissent Moshoana J argued tion were meant to be controlled by
cant had given a plausible explanation
that the view that the value of items the Act subject to oversight by the
of what really caused the deceased, an
contemplated in s 102 is not part of the courts as per s 4 of the Act.
accomplished sportswoman, to fall. She
principal debt because it is ‘charged’ by Any entitlement to fees for services
was an accomplished cyclist and was
the dealer, is absurd and contrary to in respect of proceedings payable in the
medically sound and physically fit. The
aims of the NCA. Logically, if a sum in- event of the success would be unlawful
circumstances were such that they de-
cluding an OTR is charged by the dealer at common law unless there was compli-
manded an answer, which only the ap-
and then imposed on the consumer as ance with the Act. Accordingly, one may
plicant could provide and which he had
part of the deferred amount, then the not enter into a fee agreement based on
failed to do. Since there were no grounds
credit provider effectively ‘charged’ or a specific or implied agreement that fees
for setting-aside of the magistrates’ deci-
‘imposed a monetary liability’ on the would only be paid in the event of the
sion, the WCC dismissed the application.
consumer, thereby violating ss 100(1)(a) success of the litigation, without comply-
and 102 of the Act. Moshoana J would, ing with the Act. Neither can one dodge
therefore, have ruled against the finan- the Act by specifically or impliedly pro- Murder – a finding of premeditation
ciers, dismissing their appeals, and up- viding that a legal practitioner would does not require that death was pre-
holding the NCR’s appeal. only be entitled to charge their normal meditated or planned: In S v Dube 2023

DE REBUS – JULY 2023

- 24 -
(1) SACR 513 (MM) the accused was con- his application for oral argument and quiries created such an obligation. The
victed of housebreaking with the intent directed that the parties should prepare SCA ruled that they did not, with the
to assault and murder. Intention in the to argue the merits if called on to do so. result that there had been no obligation
form of dolus eventualis was found to The facts were that a doctor, Dr Miller, on Mr Mapholisa to approach the appeal
be present. The only remaining issue to had treated a patient, and a third party committee before proceeding in the GP.
be considered was whether the murder had complained to the HPCSA that Dr Accordingly, the GP had erred in finding
could be considered premeditated in Miller had conducted himself unprofes- such a duty and in dismissing the review
circumstances where the accused had sionally. The Council conveyed the com- on that basis.
only intended to inflict bodily harm on plaint to one of its constituent boards, As to the merits, the question was
the deceased. If so, the matter fell within the Medical and Dental Professions whether the PCC (and the GP) had been
the ambit of s 51(1) of the Criminal Law Board, which appointed a Committee of correct in their findings that the third
Amendment Act 105 of 1997 and the Preliminary Inquiry to investigate the al- party who had lodged the complaint
accused faced the prospects of a pre- legations. The Committee’s finding (and with the HPCSA had lacked standing to
scribed sentence of life imprisonment. resultant resolution) was that Dr Miller do so. This turned on the breadth of
The facts were that the accused had was guilty. The Registrar of the HPCSA the term ‘complainant’ in the regula-
been celebrating his birthday at a tav- then appointed Mr Mapholisa as a pro tions, and whether it accommodated a
ern when he was phoned by his brother forma complainant. Mr Mapholisa pre- person in the third party’s position. The
who asked him where he was. On being pared charges and conveyed these to SCA ruled that it did because the term
informed, his brother said that he would Dr Miller, who declined an admission of was very broadly defined and reading it
join him there, but failed to do so. After guilt fine. broadly would allow the PCC to attain its
leaving the tavern the accused passed Thereafter, the inquiry proceeded be- objective of exercising its powers in the
his girlfriend’s home. He stopped there fore the PCC. Dr Miller raised a prelimi- public’s best interests. Such wide read-
and discovered his brother and girl- nary point that the third party who had ing would also best promote the protec-
friend engaging in sexual activities. He lodged the complaint lacked locus standi tion of the public.
broke down the door, entered the house because he was not his patient and was, The SCA accordingly granted leave to
and stabbed his girlfriend at least five therefore, unable to give evidence as to appeal and granted and upheld the ap-
times, one of which severed her carotid what had transpired. This PCC upheld peal, setting aside the GP’s order and
artery, causing her death. the point. replacing it with an order that the PCC’s
The MM took the view (per Roelofse Mr Mapholisa then brought proceed- decision on the absence of locus standi
AJ) that it was not the death that had to ings in the GP to review the PCC’s deci- be set aside and substituted with an or-
be premeditated or planned, but rather sion. Dr Miller met them with a point in der dismissing the doctor’s preliminary
the aim of the criminal act. The judge limine that the Promotion of Adminis- point that the third-party complainant
illustrated the principle as follows: If A trative Justice Act 3 of 2000 (PAJA) re- lacked standing.
had premeditated an assault on B, and quired Mr Mapholisa, as the pro forma
carried out the assault, while foreseeing complainant, to first exhaust his right International law
that the assault might cause B’s death, of appeal to an appeal committee of the
B’s murder was premeditated despite PCC before approaching a court. Application of the ‘foreign act of state
that the original plan was only an as- The GP upheld the point and dis- doctrine’ and principle of state immu-
sault. Applying the principle to the facts, missed the application. It also found nity by a South African court: In East
the accused was guilty of murder as con- that the PCC had been correct in finding Asian Consortium BV v MTN Group Ltd
templated by s 51(1). that Mr Mapholisa lacked standing. The And Others 2023 (3) SA 77 (GJ), the GJ
GP refused leave to appeal, and on Mr (per Wepener J) had to consider a num-
Other criminal law cases Mapholisa’s petition, the SCA referred ber of issues separated in terms of
the dispute to oral argument. r 33(4) of the Uniform Rules of Court
Apart from the cases discussed above,
The issue before the SCA was whether from an action that the plaintiff, East
the material under review also contained
Mr Mapholisa ought to have exhausted Asian Consortium BV (EAC) – a company
criminal cases dealing with –
its internal remedy as PAJA required. incorporated in the Netherlands – had
• committal to regional court; This raised the further issue of whether instituted against the MTN Group Ltd
• medical parole; PAJA applied, which narrowed down to (the first defendant) and associated en-
• parole for life imprisonment; whether PAJA applied where one organ tities (second to fourth defendants). In
• questioning on guilty pleas; of state reviewed the decision of another the particulars of claim to that action,
• sentencing for fraud; organ of state as in this case. EAC claimed that after responding to an
• the conduct of a prosecutor; and The SCA (per Mali AJA in a unanimous international tender invitation issued by
• the conduct of the presiding officer. judgment), adopting the reasoning in the Iranian government, it was granted
State Information Technology Agency a private licence for the purposes of im-
Review SOC Ltd v Gijima Holdings (Pty) Ltd 2018 plementing and operating a GSM-type
Does the path to review for an organ of (2) SA 23 (CC), ruled that it did not. (In cellular phone system public network in
state wishing to review the decision of Gijima the CC held that PAJA availed Iran. EAC claimed that MTN, through the
another organ of state fall under PAJA, only private persons because it gave ef- bribery of Iranian officials, persuaded
or the principle of legality? Mapholisa fect to the constitutional right to just ad- Iran to break its agreement with EAC and
NO v Phetoe NO and Others 2023 (3) SA ministrative action, which was enjoyed replace it with MTN. EAC claimed delict-
149 (SCA) was an application against an only by private persons). ual damages flowing from MTN’s wrong-
order of the GP dismissing an applica- Consequently, the principle of legal- ful interference in its contractual rights,
tion to review a decision of the Profes- ity enabled the review, and the common alternatively competition with EAC for
sional Conduct Committee (the PCC) of law, not PAJA, regulated the procedure. those rights. Various preliminary issues
the Health Professions Council of South Under the common law there was no relating to jurisdiction had to be decided
Africa (the HPCSA). After the GP refused duty to exhaust internal remedies. first, including the question of the choice
leave to appeal, Mr Mapholisa, a pro for- This raised the question whether the of law applicable in determining whether
ma complainant appointed by the HPC- Health Professions Act 56 of 1974 or the a claim for damages flowed from the
SA, petitioned the SCA. The SCA referred regulations governing misconduct in- particulars of claim and whether MTN

DE REBUS – JULY 2023

- 25 -
 LAW REPORTS

should succeed in special pleas claiming The GJ further held that Iran in any the respondents on the absence of con-
lack of jurisdiction because – event had immunity from the court’s ju- sent, but was met by verbal abuse. The
• the tender agreement granted Iranian risdiction by virtue of s 2 of the Foreign applicant served formal notice on the
courts exclusive jurisdiction; and States Immunities Act 87 of 1981. The respondents in January 2018, calling on
• the application of the foreign act of GJ accordingly upheld the special pleas them to remove their cattle within one
state doctrine and the principle of raised by MTN. month, to no avail. In October 2020, it
state immunity. served similar notices, once again with
The GJ held that the choice of law Land reform no response. That prompted the present
should be guided by the lex loci delicti The right of ESTA occupiers to graze application to the LCC (heard before
commissi principle, which stated that the cattle: In the matter of Moladora Trust v Cowen J).
applicable law is that of the place where Mereki and Others 2023 (3) SA 209 (LCC) A key question for consideration by
the delict was committed. This would the applicant, the Moladora Trust, ap- the LCC was whether the security of ten-
point to Iran since the pleaded facts sug- proached the LCC for an order against ure protected by s 25(6) of the Constitu-
gested that that was where the delictual the first to third respondents, who occu- tion and ESTA included rights of ESTA
conduct took place. pied, in terms of the Extension of Securi- occupiers to graze cattle. The LCC held
On the question of jurisdiction, the ty of Tenure Act 62 of 1997 (ESTA), part that it did not. An ESTA occupier derived
GJ proceeded and agreed with MTN that of the Trust’s farm situated in Dr Ken- any right to graze cattle on the land
the reference in the tender documents neth Kaunda district, North West Prov- they occupied by consent, and not as an
to ‘any dispute relative to these present ince, to remove all the grazing animals adjunct to any occupational rights con-
regulations or the call for competitive (presently nine cattle) under their con- ferred by s 6(2) of ESTA. However, the
bids to which they relate’ – in respect trol. The respondents, Magalone Mereki, LCC added, once consent to graze cattle
of which it was provided that Iranian Topies Mereki and Dikhotso Mereki, were was obtained, that right formed part of
courts had exclusive jurisdiction – en- the children of a former employee of the an ESTA occupier’s right of tenure pro-
compassed the present litigation. Trust, Mrs Meriam Mereki, who died, ac- tected by s 25(6) of the Constitution and
The GJ confirmed the endorsement by cording to the applicant, sometime ‘be- ESTA and was subject to the various pro-
South African courts of the foreign act fore 2017’. The applicant acknowledged tections provided by the latter, includ-
of state doctrine, which demanded that that Mrs Mereki had permission to graze ing those set out in ss 8 and 9, which
courts should decline to exercise juris- cattle. It insisted, however, that the re- imposed particular requirements for the
diction over acts done by foreign states spondents (who had continued living on termination of rights of residence, as
‘in the exercise of sovereign authority’. the farm since their mother’s death) did well as eviction.
The GJ held that since it was being asked not and that their right of occupation The LCC went on to hold on the facts
to sit in judgment of the implementation was for residential or housing purposes that the respondents had tacit consent
of Iranian government policy, it would only. The applicant alleged that the trus- to graze cattle. This was because of the
decline to exercise jurisdiction. tee, Mr Marius Nel, had sought to engage failure of the applicant to contest the re-

CM

MY

CY

CMY

DE REBUS – JULY 2023

- 26 -
 CASE NOTE – EMPLOYMENT LAW

spondents’ right to keep and graze cattle be compensated by the RAF by way of an such an undertaking, and a court was
for more than a year after the respond- undertaking issued in terms of s 17(4)(1) entitled to grant such an order. This ap-
ents’ mother’s death and the significant (a) of the Road Accident Fund Act 56 of plied also where orders by default were
delays that followed their response in 1996 (the Act) in the absence of a tender sought.
January 2018 to send a formal notice. to that effect by the RAF. Section 17(4)(1)
The LCC accordingly dismissed the ap- entitles the RAF to furnish an undertak- Other civil cases
plication. ing – as opposed to a once-off payment –
Apart from the cases discussed above,
to compensate a third party for costs of
the material under review also contained
Road Accident Fund (RAF) future medical expenses after the costs
criminal cases dealing with –
have been incurred and on proof thereof.
claims Relevant to this question was that, in re-
• slip and fall at a shopping mall;
Undefended claims: Default judgment sponse to the directive, the RAF’s chief
• the allocation of television broadcast-
ing licenses;
for order that future medical and hos- executive officer stated on affidavit that
pital expenses be paid by s 17(4)(1)(a) the RAF had, since the issuance of the
• the High Court’s jurisdiction where
a magistrates’ court had jurisdiction;
undertaking: In K obo M and Another directive, made a ‘blanket election’ to
and
v Road Accident Fund 2023 (3) SA 125 furnish undertakings in all matters
(GP), a full Bench of the GP answered where plaintiffs claimed future medical
• unlawful alienations and preferences
in company liquidations.
two questions referred to it by way of a expenses under s 17(4)(a).
directive issued under s 14(1)(a) of the The GP held that the right to furnish
Superior Courts Act 10 of 2013 by the the undertaking was specifically given to
Acting Judge President of that division, the Fund. A court had no jurisdiction to
both arising from the RAF’s failure to de- direct the Fund to furnish an undertak- Gideon Pienaar BA LLB (Stell) is a Sen-
fend or participate in the finalisation of ing where the Fund had made no such ior Editor, Joshua Mendelsohn BA LLB
actions against it. election. However, as result of the RAF’s (UCT) LLM (Cornell), Johan Botha BA
The first question was whether it was blanket election, once a plaintiff proved LLB (Stell) and Simon Pietersen BBusSc
competent for a court granting default its claim as contemplated in s 17(4)(a), LLB (UCT) are editors at Juta and Com-
judgment to order that a plaintiff’s claim it was entitled to claim an order cater- pany in Cape Town.
for future medical and hospital expenses ing for a direction to the Fund to furnish q

Employer to reinstate and pay

employee after dismissal
By was procedurally and
substantively unfair
Kgomotso
Ramotsho

Sibanyoni v Seriti Power [2023] 6 BALR 701 (CCMA)

T
he Commission for Concilia- claimed that the second hearing contra- terest of the company and was contrary
tion, Mediation and Arbitra- vened the double jeopardy rule and that to clause 8 of the Procedure for Handling
tion (CCMA) was required he had merely tried to defend himself Complaints of Sexual Harassment, Har-
to determine whether the when assaulted with pepper spray and assment, Violence and Bullying. It was
respondent acted fairly by bottles by the alleged victim. a serious act of misconduct, which was
conducting a second disci- The applicant was employed since 1 not expected from an employee of the
plinary hearing, and whether the discipli- May 2009 and was working as a Process company, particularly and employee at
nary hearing amounted to double jeop- Supervisor in a coal mining industry. He his level status.
ardy. The CCMA had to decide whether was paid a salary of R 40 000 per month The applicant was charged with sexual
the dismissal of Themba Sibanyoni (the and was dismissed on 2 September 2022, harassment at the first hearing. Based
applicant) was substantively fair and de- after a disciplinary hearing. He was on videotaped evidence, the presiding
pending on the Commissioner’s findings charged and dismissed for the following: officer had found that the woman at-
to also determine the appropriate relief. Acts of violence: It was alleged that on tacked the applicant with pepper spray
This was after the applicant was charged or about 20 December 2021 at or near and bottles. The respondent during the
with sexually harassing a woman in a Klipfontein Dam in Emalahleni, he en- disciplinary hearing relied on documen-
park outside working hours and was gaged in acts of violence against his sub- tary evidence and called five witnesses.
found guilty after a disciplinary hearing. ordinate, Thandeka Kekae. It is alleged One of the witnesses who is employed as
Seriti Power (the respondent) formulated that he kicked, strangled, and punched a security guard at Klipfontein Dam, said
new charges of assault and bullying, con- Ms Kekae on the body and face. he witnessed the assault of the applicant
vened a second disciplinary hearing, and His conduct as described above was by Ms Kekae. He added that applicant
dismissed the applicant. The applicant contrary to his duty to act in the best in- did not kick her. That he did not retaliate

DE REBUS – JULY 2023

- 27 -
 CASE NOTE – DIVORCE LAW

when he was attacked. Another witness, his view that the issue of violence (acts Code of Good Practice) at para 2.3, which
Tom Mashifane, testified that he was of violence) in the video were dealt with was gazetted in GN R1890 GG46056/18-
just an ordinary civilian visiting the park at the sexual harassment dispute. He 3-2022, states that the Code of Good
on the day in question. He was asked by added that the description of the charge Practice finds application in a situation
bystanders to assist as Ms Kekae was as- alone did not mean that evidence was where the employee is working, or which
saulting the applicant. When he spoke to not led on violence in the video. He is related to work.
her to calm down, she took pepper spray pointed out that the issue was dealt Commissioner Baloyi said that it was
and sprayed the applicant. The applicant with substantively and the chairperson established from the applicant’s first
was blinded and fell, and Mr Mashifane made a finding. His finding was not chal- hearing that he has not committed any
wrestled pepper spray from her. lenged nor overruled by the respondent. violation against the code, nor was he
The commissioner was told that the Commissioner Baloyi said that despite found guilty of committing any violence.
applicant did not act violently and did the charge at the second hearing being He added that it follows that there is no
not push Ms Kekae. Mr Mashifane said identified as ‘acts of violence’, the merits impact or reputational damage on the
he witnessed the event, and the appli- of the case are the same as were led at respondent. The applicant’s suitability
cant was trying to defend himself. the sexual harassment dispute in terms to work was given impetus by findings
The applicant challenged the proce- of the video. The commissioner pointed at his sexual harassment case. Commis-
dural and substantive fairness of his out that the charge under the ‘acts of vi- sioner Baloyi pointed out that the inci-
dismissal and sought reinstatement as olence’ clearly refers to violence in con- dent on the video of 20 December 2021
relief. The applicant raised two prelimi- tradiction with the procedure on ‘han- happened outside the application in
nary points for the CCMA to consider. dling complaints of sexual harassment, terms of the Code of Good Practice, as
The applicant alleged that the issue oc- harassment, violence and bullying’. well as the respondents’ own disciplin-
curred in his private time, away from Commissioner Baloyi said that with- ary code. ‘Acts of violence’ (violence) un-
the operations of the respondents and out analysing the substantive fairness der the respondent’s sexual harassment
had no impact on the business of the of the dispute, it was clear that the re- policy was found not to have occurred
respondent. The applicant also alleged spondent had relied on the same facts by the chairperson of the applicant’s
that the same issue was dealt with and as were presented at the sexual harass- first disciplinary hearing. Commissioner
concluded at a previous hearing where ment case. Commissioner Baloyi said Baloyi said that the applicant’s two pre-
he was exonerated. The second hearing the applicant was dismissed solely on liminary points succeed and his inquiry
amounted to double jeopardy. the same video presented at the sexual on the disputes stopped there. He added
The applicant claimed double jeopardy harassment disciplinary hearing with no that the applicant’s dismissal was proce-
in that the issue of acts of violence was new evidence presented. Commissioner durally and substantively unfair.
dealt with substantively at the sexual Baloyi concluded that the two hearings In deciding the remedy, Commissioner
harassment hearing and he was exoner- dealt substantively with the same mat- Baloyi said he considered the arbitration
ated by the chairperson of that hearing. ter, same parties, and the same merits. guidelines and s 193(1)(a) of the Labour
Commissioner Baloyi said that he would He pointed out that the applicant was Relations Act 66 of 1995. He added that
investigate the double jeopardy claims not found guilty of any ‘acts of violence’, he considered the severity of unfairness
first. However, in order for him to make that the respondent was not justified in of the applicant’s dismissal. The com-
a finding he would need to determine convening the second hearing and this missioner ordered reinstatement and
whether the acts of violence charge was amounted to double jeopardy. six months back pay was just and equi-
substantively dealt with in the sexual Commissioner Baloyi re-emphasised table, calculated as follows: R 40 000 x 6
harassment case. And if so, whether the that the applicant was dismissed for a months = R 240 000.
two hearings dealt substantively with the charge that emanates from the respon-
same matter, same parties, and the same dent’s policy on handling complaints
merits, whether the respondent was jus- of sexual harassment, harassment, vio- Kgomotso Ramotsho Cert Journ
tified to do so and whether the outcome lence, and bullying. The Code of Good (Boston) Cert Photography (Vega)
amounted to double jeopardy. Practice on the Prevention and Elimina- is the news reporter at De Rebus.
Commissioner Baloyi said that it was tion of Harassment in the Workplace (the
q

Pension interest in divorce:

is it time to reform s 7
By of the Divorce Act?
Mapakiso
Pita

CNN v NN [2023] 2 All SA 365 (GJ)

U
sually when parties divorce, a our the court order by paying the other ber 2022 (para 1.1). The same settlement
decree of divorce will indicate spouse as agreed by the parties or or- agreement was varied and the term ‘pen-
that the divorcing parties have dered by the court. sion interest’ was removed and replaced
agreed or been ordered to di- In CNN v NN, the parties had entered with ‘accrued pension benefit’ (para 1.1).
vide their estates equally, and as a result into a settlement agreement, which was The latter amendment was made an or-
the pension fund will be bound to hon- then made an order of court on 14 Octo- der of court (para 1.2). The legal issue

DE REBUS – JULY 2023

- 28 -
that this court had to determine was inform the applicant of his resignation tion 7(8) of the Divorce Act, and not an
whether it can vary and enforce a settle- (para 13). “accrued pension benefit”’ (para 35). Un-
ment agreement by replacing a statutori- The applicant was ‘incorrectly advised fortunately, the current legal framework
ly defined phrase ‘pension interest’ with … to approach this court to vary the di- makes provision for member spouses
‘accrued pension benefit’, a term not vorce order to allow her to claim … the to intentionally disadvantage their non-
statutorily defined in the Divorce Act 70 respondent’s accrued pension benefit’ member spouses’ claims to their retire-
of 1979 (para 2). and such an amendment would be unen- ment benefits by resigning after being
The facts of the case are briefly ex- forceable (para 13). The applicant sought served with a divorce summons (para
plained: The respondent resigned from to amend the court order that was made 35). Non-member spouses’ access to the
his employment and left his pension by the court, unaware of the respond- member spouses pension benefits is de-
fund on 7 May 2021, two months after ent’s pension status (para 17). The re- pendent on divorce and if they are ac-
being served with divorce summons spondent was not a member of a pension tive in their membership. At the time a
(para 3). Later, the party’s marriage was fund, at the time the divorce order was divorce order was granted the respond-
dissolved on 14 October 2022 and the granted therefore the order ‘could not ent was not a member of a pension fund
decree of divorce incorporated a settle- be enforced in terms of sections 7(1) and and the applicant could not be allocated
ment agreement (para 3). At the time 7(8) of the Divorce Act’ (para 17). a pension interest (para 36). This case
the decree of divorce was granted the The court held that this case highlight- calls for a legislative reform of s 7 of
respondent was not a member of a pen- ed ‘an important gap in the law regulat- the Divorce Act to ensure that there is
sion fund, thus did not have a pension ing pension interests in South Africa’. adequate legislative framework to pro-
interest which could be allocated to the As the law stands, there is not suffi- tect non-member spouses from member
applicant (para 3). cient legal framework that allows a non- spouses who resign from employment
‘At the time the divorce order was member spouse to claim pension bene- once served with a divorce summons.
granted, the respondent’s pension ben- fits of the member spouse, directly from
efits were still held by the fund’ (para 4). the fund if the spouse exits the fund be- • See also Mukwevho Donald ‘An explo-
After the divorce order was granted, the fore divorce (para 20). As a result, this ration of s 7(7) and 7(8) of the Divorce
applicant then approached the respond- gap opens the door for member spouses Act 70 of 1979: Towards a legislative
ent’s pension fund to claim payment to resign from the pension fund after be- reform’ in 2023 (June) DR 27 and Law
of what she believed belonged to her ing served with summons thus keeping Reports – ‘Family law’ in 2023 (June)
(para 4). It was then that the respond- their pension benefits from their non- DR 25.
ent’s pension fund informed her that member spouses (para 20). Section 7(7)
the respondent was no longer a member of the Divorce Act has created a legisla-
of the pension fund (para 5). The appli- tive framework that makes it possible Mapakiso Pita LLB LLM (Business
cant was informed that the divorce order for a non-member spouse to claim a por- Entities) (UFS) is a candidate le-
could not be enforced as it fell short of tion of the member’s pension interest as gal practitioner at Legal Aid South
the legislative requirements necessary at the date of divorce (para 26). Africa in Welkom.
q
for its enforcement (para 5). Of interest Section 7(8) facilitates the practicality
to the court, was that the respondent’s of s 7(7) in that it, among others, allows
fund advised the applicant to furnish a the divorce court a discretion to make a
divorce order, which would direct the portion of the member’s pension inter-
fund to pay a pension benefit instead of est to accrue to the non-member spouse
a pension interest (para 5). The applicant (para 28). However, in this case the ap-
was advised that the respondent’s pen- plicant was claiming a portion of the re-
sion interest had accrued, and his pen- spondent’s pension interest that accrued
sion interest was nil (para 5). before their divorce was granted (para
As a result of the contents of the let- 31). As such ‘the applicant [has relied] on
ter from the respondent’s pension fund, section 7(8) of the Divorce Act to claim
the applicant was encouraged to bring a pension benefit that [had] already ac-
an application to amend the phrase crued to the respondent through resig-
‘pension interest’ and replace it with ‘ac- nation’ (para 31).
crued pension benefit’ as contained in This case highlights a significant so-
the divorce order (see para 6). Further, cial issue regarding fund members who To be added to the
the court enquired from the applicant’s exit their funds when they are involved Law Society of South Africa’s
counsel whether such a statutorily rec- in divorce proceedings. When members
ognised phrase ‘pension interest’ could cash in their benefits, it ‘makes it diffi- WhatsApp account send
be replaced with the phrase ‘accrued cult for non-member spouses to claim us a message at
pension benefit’ and if such an amend- their entitled share of such benefits on
ment could be enforced in terms of the divorce’ (para 33). 071 663 9332
Divorce Act (para 7). In this case, the law was against the and we will add you to
Counsel for the applicant submitted applicant as she could not claim benefits
that ‘the phrase “pension interest” made that accrued to the respondent before a our list for announcements
it difficult for the applicant to claim her divorce order was granted as such was and advisories.
entitled portion of the respondent’s pen- outside the confines of s 7(8) of the Di-
sion benefit’ (para 10). Hence, the need vorce Act (para 35). The variation of the
to replace the phrase ‘pension interest’ divorce order sought by the applicant
with ‘accrued pension benefit’ as the could not stand in the face of s 7(8) of
pension benefit had accrued to the re- the Divorce Act (para 35).
spondent due to his resignation from In conclusion, ‘as the law stands, the
his employment (para 10). The applicant court can only order [a pension] fund to
was not aware that the respondent had pay a pension interest as defined in sec-
exited his fund as he had not bothered to tion 1 of the Divorce Act in terms of sec-

DE REBUS – JULY 2023

- 29 -
NEW LEGISLATION

By Shanay
Sewbalas and
Johara Ally
New legislation
Legislation published from
24 March – 19 May 2023

Acts Continuing Education and Training Act gaining Council for the Civil Engineering
16 of 2006 Industry (BCCEI): Exemptions Collective
Customs and Excise Act 91 of 1964
Amendment to notice relating to the Agreement. GN R3415 GG48627/19-5-
Amendment to part 2 of sch 4. GN R3372
change of seat of the Mpumalanga Com- 2023.
GG48518/5-5-2023.
munity Education and Training College. Bargaining Council for the Meat Trade,
Amendment to part 1 of sch 2. GN R3413
GN3408 GG48589/12-5-2023. Gauteng: Extension of amendment of
GG48605/17-5-2023.
Electoral Act 73 of 1998 Main Collective Agreement to Non-par-
South African Reserve Bank Act 90 of
Publication of reviewed lists of candi- ties. GN R3416 GG48627/19-5-2023.
1989
dates. GenN1793 GG48572/10-5-2023. BCCEI: Extension of Consolidated Ex-
Substitution of sch 2 to the Act. GN3357
Employment Equity Act 55 of 1998 emptions Collective Agreement to Non-
GG48490/2-5-2023.
Public Register Notice. GN3348 Parties. GN R3417 GG48627/19-5-2023.
GG48483/28-4-2023. Variation of Scope of the Bargaining
Bills and White Papers Immigration Act 13 of 2002 Council for the Fishing Industry. GN
Constitution Twentieth Amendment Notice of designation of a place as port of R3418 GG48627/19-5-2023.
Bill, 2023 entry and exit: Bulembu Airport (Bhisho). NBCEI: Cancellation of Government No-
Notice of intention to introduce a Private GN3384 GG48524/5-5-2023. tices. GN R3419 GG48627/19-5-2023.
Member’s Bill into Parliament and invita- Income Tax Act 58 of 1962 NBCEI: Cancellation of Government no-
tion for comment. GN3410 GG48589/12- Notice in terms of para 2D of the Sec- tices. GN R3421 GG48627/19-5-2023.
5-2023. ond Schedule to the Act. GN3356 NBCEI: Extension to Non-parties of the
GG48487/3-5-2023. Collective Bargaining levy agreement. GN
Government, General and Labour Relations Act 66 of 1995 R3422 GG48627/19-5-2023.
Bargaining Council for the Furniture National Bargaining Council for the Elec-
Board Notices Manufacturing Industry KwaZulu-Natal: trical Industry of South Africa: Extension
Banks Act 94 of 1990 Extension of period of operation of the to Non-parties of the Main Collective
Withdrawal of consent granted in terms Main Collective Agreement. GenN1778 Agreement. GN R3423 GG48627/19-
of s 34 of the Banks Act to maintain a GG48489/2-5-2023. 52023.
representative office of a foreign insti- Cancellation of Government Notice: Mo- Local Government: Municipal Electoral
tution in the Republic of South Africa: tor Industry Bargaining Council (MIBCO): Act 27 of 2000
Banco Santander Totta, SA. GenN1813 Autoworkers Provident Fund Collective Municipal By-elections – 24 May 2023:
GG48630/19-5-2023. Agreement. GN R3366 GG48518/5-5- Official list of voting stations. GenN1792
Notice by the Prudential Authority in 2023. GG48533/5-5-2023.
terms of s 69(7) of the Act. GenN1814 Cancellation of Government Notice: Municipal By-Elections – 24 May 2023:
GG48630/19-5-2023. MIBCO: Provident Fund Collective Agree- Official list of voting stations: KwaZu-
Withdrawal of consent granted in terms ment. GN R3367 GG48518/5-5-2023. lu-Natal – KZN291 – Mandeni – Ward
of s 34 of the Banks Act to maintain a MIBCO: Extension to Non-Parties of the 52901015. GenN1821 GG48636/19-5-
representative office of a foreign institu- Autoworkers Provident Fund Collective 2023.
tion in the Republic of South Africa: Mil- Agreement. GN R3368 GG48518/5-5- Medicines and Related Substances Act
lennium BCP. GenN1815 GG48630/19-5- 2023. 101 of 1965
2023. National Bargaining Council for the Exclusion of certain alcohol-based hand-
Competition Act 89 of 1998 Electrical Industry (NBCEI): Cancella- rubs from the operation of specified pro-
Notice in terms of s 43B(4)(b) of the Act tion of Government Notice. GN R3369 visions of the Act. GN3382 GG48524/5-
(as amended): Notice of extension grant- GG48518/5-5-2023. 5-2023.
ed: Online Intermediation Platforms NBCEI: Extension of National Pension and Notification of registration of medicines
Market Inquiry. GN3437 GG48634/19-5- Provident Funds Collective Agreement to in terms of s 17 of the Act, as amended.
2023. Non-Parties. GN R3370 GG48518/5-5- GN R3396 GG48571/12-5-2023.
Constitution 2023. National Environmental Management:
Transfer of administration and powers Bargaining Council for the Furniture Air Quality Act 39 of 2004
and functions entrusted by legislation Manufacturing Industry of the Western Publication of the eighth National
to certain cabinet members in terms Cape: Extension to Non-Parties of the Greenhouse Gas Inventory Report for
of s 97 of the Constitution. Proc N119 Main Collective Agreement. GenN1790 the Republic of South Africa. GN3393
GG48524/5-5-2023. GG48541/8-5-2023. GG48568/9-5-2023.
Construction Industry Development Bargaining Council for the Furniture National Water Act 36 of 1998
Board Act 38 of 2000 Manufacturing Industry KwaZulu-Na- Intention to Transform Irrigation Boards
Findings and sanctions of the investi- tal: Extension of period of operation of into Water User Association. GN3355
gating committee published in terms of the Provident Fund and Mortality Ben- GG48483/28-4-2023.
the Construction Industry Development efit Association Collective Agreement. Disestablishment of the Umfunda
Regulations, 2004 (as amended): Juvansu GenN1795 GG48589/12-5-2023. Yophongolo Water User Association.
Trading CC. BN436 GG48630/19-5-2023. Cancellation of Government Notice: Bar- GN3361 GG48513/3-5-2023.

DE REBUS – JULY 2023

- 30 -
Establishment of Makhathini Lower Pon- Heritage Site, a South African Compo- Request for comments from interest-
gola Water User Association. GN3362 nent of Maloti-Drakensberg Park World ed parties on the proposal to prohibit
GG48514/3-5-2023. Heritage Site. GN3381 GG48524/5-5- the export of certain ferrous and non-
Disestablishment of the Uphongolo 2023. ferrous waste and scrap metal and the
Dam Water User Association. GN3390 temporary suspension of the price pref-
GG48535/3-5-2023. Legislation for comment erence system insofar as it relates to
Pharmacy Act 53 of 1974 certain ferrous and non-ferrous waste
Correction Notice: Election/Appoint- Accounting Standards Board and scrap metal for a further period of
ment of Council Members (Board Notice Invitation to comment on Exposure Draft nine months. GenN1799 GG48598/15-5-
184/2018). BN433 GG48588/12-5-2023. 204 issued by the Accounting Standards 2023.
Regulation of Interception of Commu- Board. BN431 GG48483/28-4-2023. Draft notice for public comment: Trade
nications and Provision of Communi- Children’s Amendment Bill, 2023 policy directive issued in terms of s 5
cation-Related Information Act 70 of Notice of intention to introduce a Private and notice in terms of s 6 of the Act, on
2002 Member’s Bill into Parliament and invita- the exportation of ferrous and non-fer-
Certificate of exemption in terms of s tion for comment. GN3432 GG48630/19- rous waste and scrap metal: Internation-
46(3) of the Act. GN R3424 GG48627/19- 5-2023. al Trade Administration Commission of
5-2023. Civil Aviation Act 13 of 2009 South Africa Export Control. GenN1800
Tourism Act 3 of 2014 Civil Aviation Regulations, 2011. GN3389 GG48598/15-5-2023.
Members of the South African Tourism GG48529/5-5-2023. Labour Relations Act 66 of 1995
Board: Erratum. GenN1780 GG48508/2- Council for Medical Schemes Levies MIBCO: Extension to non-parties of the
5-2023. Act 58 of 2000 Motor Industry Provident Fund: Collec-
Traditional and Khoi-San Leadership Proposed levies on medical schemes is- tive Agreement. GN R 3395 GG48571/12-
Act 3 of 2019 sued in terms of s 3 of the Act. GenN1797 5-2023.
Formula for determination of number of GG48589/12-5-2023. Marketing of Agricultural Products Act
members of a Kingship, Queenship and Employment Equity Act 55 of 1998 47 of 1996
Principal Traditional Council. GN3433 Draft Employment Equity Regula- Deciduous fruit industry: Application
GG48630/19-5-2023. tions, 2023 for comment. GN3407 to benefit from a statutory levy in the
World Heritage Convention Act 49 of GG48589/12-5-2023. deciduous fruit industry. GenN1811
1999 Health Professions Act 56 of 1974 GG48630/19-5-2023.
Declaration of Management Authority Regulations relating to the Registration National Education Policy Act 27 of
for Robben Island Museum World Herit- of Orientation and Mobility Practitioners, 1996
age Site. GN3380 GG48524/5-5-2023. 2023. GenN1806 GG48628/18-5-2023. Proposed amendment to the National
Declaration of Management Authority International Trade Administration Act Policy for Determining School Calendars
for Ukhahlamba-Drakensberg Park World 71 of 2002 for Public Schools in South Africa.

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NEW LEGISLATION

National Environmental Management Construction Industry Development 2023.

Act 107 of 1998 Board Act 38 of 2000 Maximum retail price for liquefied petro-
Consultation on the Intention to Amend Standard for Developing Skills through leum gas. GN R3359 GG48503/2-5-2023.
the Transitional Arrangements in the Fi- Infrastructure Contracts: 31 March 2023. Amendment of the regulations in re-
nancial Provisioning Regulations, 2015. GenN1769 GG48483/28-4-2023. spect of petroleum products. GN R3360
GN3436 GG48633/19-5-2023. Standard for Developing Skills through GG48503/2-5-2023.
South Africa for comment. GN3373 Infrastructure Contracts: 31 March 2023. Political Party Funding Act 6 of 2018
GG48520/4-5-2023. GenN1779 GG48491/28-4-2023. Represented Political Party Fund.
National Environmental Management: Council for Medical Schemes Levies GenN1777 GG48488/2-5-2023.
Waste Act 59 of 2008 Act 58 of 2000 Rules Board for Courts of Law Act 107
Proposed amendments to the regula- Imposition of levies on medical schemes of 1985
tions and notices regarding extended issued in terms of s 2 of the Act. Amendment of Rules Regulating the
producer responsibility, 2020. GN3388 GenN1796 GG48589/12-5-2023. Conduct of the Proceedings of the Magis-
GG48527/5-5-2023. Critical Infrastructure Protection Act 8 trate’s Courts of South Africa. GN R3371
National Water Act 36 of 1998 of 2019 GG48518/5-5-2023.
Proposal for establishment of Mhlathuze Interim Critical Infrastructure Protec- Amendment of the Rules Regulating
Water User Association. GN3386 tion Regulations, 2022: Making regula- the Conduct of the Proceedings of the
GG48524/5-5-2023. tions contained in the schedule. GN3387 Provincial and Local Divisions of the
The revision of Regulations regarding GG48526/5-5-2023. High Court of South Africa. GN R3397
the Procedural Requirements for Water Domestic Violence Act 116 of 1998 GG48571/12-5-2023.
Use Licence Applications and Amend- Revision of National Instruction 7 of Amendment of the Rules Regulating the
ments. GN3434 GG48630/19-5-2023. 1999 in terms of s 18(3) of the Act. Conduct of the Proceedings of the Su-
Promotion of Administrative Justice GN3364 GG48517/4-5-2023. preme Court of Appeal of South Africa.
Act 3 of 2000 Electricity Act 41 of 1987 GN R3398 GG48571/12-5-2023.
Invitation for comments on the Draft License fees payable to licensed genera- Amendment of Rules Regulating the
Broad-Based Black Economic Empow- tors of electricity. GN3385 GG48524/5- Conduct of the Proceedings of the Magis-
erment Policy ‘B-BBEE Policy’ applica- 5-2023. trates’ Courts of South Africa. GN R3399
ble to the gambling industry. BN435 Firearms Control Act 60 of 2000 GG48571/12-5-2023.
GG48630/19-5-2023. Firearms Control Fees Amendment Reg- Skills Development Act 97 of 1998
Protection of Personal Information Act ulations, 2020. GN R3412 GG48604/17- Regulations for the establishment of the
4 of 2013 5-2023. National Apprenticeship and Artisan De-
Notice in terms of s 61(2) of the Act of a Liquor Products Act 60 of 1989 velopment Advisory Body as a legal body
proposed Code of Conduct for the Acad- Regulations: Amendment. GN3275 for apprenticeship and artisan develop-
emy of Science of South Africa. GN3409 GG48411/24-3-2023. ment consultation. GN3383 GG48524/5-
GG48589/12-5-2023. Local Government: Municipal Property 5-2023.
Skills Development Act 97 of 1998 Rates Act 6 of 2004 South African Weather Service Act 8 of
Draft Regulations for National Skills Assessment of rates. GN3400 2001
Authority to conduct investigations. GG48584/11-5-2023. Regulations regarding fees for the provi-
GN3431 GG48630/19-5-2023. National Minimum Wage Act 9 of 2018 sion of aviation meteorological services.
Spatial Planning and Land Use Manage- Medium-term targets for the nation- GN3411 GG48602/16-5-2023.
ment Act 16 of 2013 al minimum wage report. GN3392 Statistics South Africa
Notice of the Draft Norms and Standards GG48556/8-5-2023. Consumer Price Index, February 2023.
in terms of s 8 of the Act. GenN1812 Medium-term targets for the nation- GenN1788 GG48524/5-5-2023.
GG48630/19-5-2023. al minimum wage report. GN R3394 Consumer Price Index: March 2023.
Water Services Act 108 of 1997 GG48570/8-5-2023. GenN1816 GG48630/19-5-2023.
Intention to change the name of Umgeni Non-Profit Organisations Act 71 of Subdivision of Agricultural Land Act
Water to the proposed uMngeni-uThuke- 1997 70 of 1970 and Conservation of Agri-
la Water. GN3373 GG48519/3-5-2023. Regulations in respect of Amendments cultural Resources Act 43 of 1983
Intention to change the name of Bloem to the Act as contained in the General Revised tariffs, rates and scales for the
Water to the proposed Vaal Central Wa- Laws (Anti-Money Laundering and Com- goods and services provided by the De-
ter Board. GN3363 GG48515/3-5-2023. bating terrorism Financing) Amendment partment in terms of the Acts. GenN1786
Act 22 of 2022. GN3391 GG48542/8-5- GG48524/5-5-2023.
Rules, regulations, fees 2023. Revised tariffs, rates and scales for the
Occupational Health and Safety Act 85 goods and services provided by the De-
and amounts of 1993 partment in terms of the Acts. GenN1787
Compensation for Occupational Inju- Correction of publication on Major Haz- GG48524/5-5-2023.
ries and Diseases Act 130 of 1993 ard Installation Regulations. GN R3420
Regulations on pulmonary tuberculo- GG48627/19-5-2023.
sis associated with silica dust exposure Petroleum Products Act 120 of 1977 Shanay Sewbalas and Johara Ally
for the compensation fund made by Regulations in respect of the single max- are Editors: National Legislation at
the Minister under the Act. GN R3365 imum national retail price for illuminat- LexisNexis South Africa.
GG48518/5-5-2023. ing paraffin. GN R3358 GG48503/2-5- q

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DE REBUS – JULY 2023

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 EMPLOYMENT LAW

Employment law
By
update
Nadine
Mather ny was thus required to prove that there sought to use the loss of production to
was an agreement to work overtime to justify the sanction of dismissal, there
validate the instruction. were no details provided of the produc-
In respect of the four employees, it was tion lost nor the costs thereof.
Does a refusal to work noted as follows: The court held that an inquiry into
overtime constitute • The employment contract of one of the the appropriateness of the sanction en-
employees contained an agreement to tails an evaluation of the totality of the
insubordination? work overtime, which employment circumstances. Acts of insubordination
contract was only a few months old. do not justify dismissal unless they are
In Association of Mineworkers and Con-
• The employment contract of another serious and wilful. Further, the Code of
struction Workers Union obo Mkhonto and
employee did not, however, contain an Good Practice: Dismissal deems it inap-
Others v Commission for Conciliation,
agreement to work overtime. propriate for an employer to dismiss an
Mediation and Arbitration and Others
employee for a first offence, except if the
[2023] 5 BLLR 403 (LC), four employees, • While the employment contracts of the
misconduct is serious and of such gravity
employed by Andru Mining (the Com- remaining two employees did contain
that it makes a continued employment
pany), were dismissed for gross insubor- an agreement to work overtime, such
relationship intolerable.
dination for refusing to obey an instruc- agreement was entered into at the
In the present case, the arbitrator failed
tion from their site manager to work two commencement of their employment
to apply his mind to the fact that the in-
hours’ overtime. The employees’ normal and had since lapsed prior to the in-
subordination was the employee’s first
working hours were from 6am to 4pm, struction being issued.
offence and there was no evidence that
and they were instructed to work over- In the absence of an agreement to work
the employee acted wilfully and repeat-
time from 4pm to 6pm on a particular overtime on the day in question, the
edly. A progressive disciplinary sanction
day to meet production targets. The em- court found that the instruction from the
in a form of a warning would have been
ployees did not agree to work overtime. site manager in respect of three of the
sufficient. It followed that the sanction of
Disgruntled with the dismissal of the four employees was unlawful as it was in
dismissal in respect of the one employee
employees, the Association of Minework- breach of the BCEA.
concerned was unfair.
ers and Construction Union (AMCU) re- The court noted that whether a re-
The arbitrator’s award was thus re-
ferred a dispute to the Commission for fusal to obey an instruction amounts to
viewed and set aside. The court substi-
Conciliation, Mediation and Arbitration insubordination depends on various fac-
tuted the award with an order that the
(CCMA). The CCMA arbitrator found that tors, including whether the instruction
dismissal of the employees was substan-
as the employees did not object to work- was reasonable. In this regard, an un-
tively unfair and that the Company rein-
ing overtime when informed of the in- lawful instruction cannot be considered
state the employees with retrospective
struction, this amounted to an implied or reasonable. There was no evidence that
effect.
tacit agreement. Further, the employees supported the arbitrator’s finding that
had already agreed in their employment were was a tacit or implied agreement
contracts to work overtime as and when to work overtime. In the court’s view, an Nadine Mather BA LLB (cum laude)
required. Accordingly, the arbitrator agreement as contemplated in s 10 of (Rhodes) is a legal practitioner at
ruled the dismissals fair. the BCEA could only be inferred when an Bowmans in Johannesburg.
On review to the Labour Court, AMCU employee had worked overtime without q
contended that the employees did not prior consent. Otherwise, an employee
agree to work overtime due to safety is- would be under no obligation to work
sues and thus could not have been guilty overtime. Accordingly, the finding that
of gross insubordination as the instruc- three of the employees were guilty of
tion to work overtime was unlawful. The gross insubordination was unreasonable.
Company, on the other hand, contended While the instruction was lawful in
that the employees were bound by their respect of the one employee who had
employment contracts to work overtime agreed to work overtime in his contract
on request, and none of the employees of employment, which agreement was
had objected when the request was made. still valid, the court was required to con-
The issue before the court was whether sider the reasonableness of the finding By
the Company had proved the charge of that the employee was guilty as charged Moksha
insubordination. Section 10 of the Ba- and the appropriateness of the sanction Naidoo
sic Conditions of Employment Act 75 of dismissal.
of 1997 (BCEA) provides, among other It was common cause that the em-
things, that employees may not be re- ployee was aware that he had to work
overtime but failed to comply with the
Lock-out in response
quired or permitted to work overtime
except in accordance with an agreement. instruction. As regards the appropriate- to a strike: Distinction
Further, an agreement to work overtime, ness of the sanction, it was conceded that between a terminated and
which is concluded at the commence- the employee had never refused to work
ment of the employee’s employment, or overtime prior to this particular incident, suspended strike
during the first three months of employ- and it was only two hours of overtime National Union of Metalworkers of SA v
ment, lapses after one year. The Compa- that was lost. Although the Company Trenstar (Pty) Ltd (2023) 44 ILJ 1189 (CC)

DE REBUS – JULY 2023

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Section 76(1)(b) of the Labour Relations to the union’s strike action and, therefore, The court began first to address the
Act 66 of 1995 (LRA) reads: s 76(1)(b) was applicable. distinction made by the employer that
‘An employer may not take into em- NUMSA approached the Labour Court the strike was suspended and had not
ployment any person − (LC) on an urgent basis seeking an inter- terminated. On this issue the court held:
(a) … dict preventing Trenstar from employing ‘If employees are not refusing to work
(b) for the purpose of performing the replacement labour for the duration of and are not retarding or obstructing
work of any employee who is locked out, the lock-out. NUMSA argued that when work, they are not on strike, and no strike
unless the lock-out is in response to a the lock-out commenced, the strike had exists. This is the ordinary meaning of the
strike.’ ended and, therefore, the lock-out was an words used in the definition of “strike”.
An offensive lock-out is when an em- offensive lock-out, following which, re- If the employees were previously refus-
ployer, in the absence of the employees placement labour was not allowed. ing to work for a prescribed purpose, but
going on strike; prevents employees from Trenstar argued that NUMSA had not are no longer refusing to work, there is
entering its premises in an attempt to withdrawn the strike or the demand but not a strike. The fact that the grievance
force them into accepting a demand con- merely suspended it after which it could or dispute underlying the prescribed pur-
cerning a matter of mutual interest. Un- reinstate the strike at any time. pose remains in existence does not mean
der these circumstances, the employer, in The LC dismissed the application on that the strike has not come to an end;
keeping with s 76(1)(b), is not allowed to the approach that the lock-out was called a demand unaccompanied by a concerted
employ replacement staff. for in response to the ongoing strike and withdrawal of labour is not a “strike”’.
A defensive lock-out is when an em- hence s 76(1)(b) found application. The LC The court went further to find that
ployer locks out employees, in response held further that the fact that the lock-out the employer conflated an unconditional
to the employees engaging in strike ac- began when the strike was suspended was right to strike with a strike. Once a dis-
tion – in which case and as per the above not a determining factor in the dispute. pute has been conciliated and at the expi-
section, the employer is allowed to em- Pursuant to the court’s judgment, NUM- ry of the statutory notice period, a union
ploy replacement staff. SA abandoned its demand and the lock- acquires the right to strike. However, it is
The question before the apex court was out ended. only when the employees stop work, that
whether an employer, who embarks on a NUMSA nevertheless appealed the deci- the strike begins. During the period of
defensive lock-out, can continue to em- sion of the LC. The Labour Appeal Court suspending the strike, there is no strike,
ploy replacement staff once the striking declined to entertain the appeal on the rather an unconditional right to strike at
employees decide to suspend their strike basis that the dispute was moot. any time.
and wish to return to work. Put different- NUMSA, thereafter, approached the The court summarised its finding on
ly does a defensive lock-out change to an Constitutional Court (CC). this score as follows:
offensive lock-out, when striking employ- The CC found that it would be in the ‘The position in this case, therefore, is
ees decide to suspend their strike action interest of justice to grant leave to appeal, that the strike ended at 17h00 on Friday
and under which circumstances, replac- more so, considering the conflicting judg- 20 November 2020. A few hours earlier,
ing labour is not permitted. ments handed down by the LC regarding but after being notified that the strike
s 76(1)(b). would so end, Trenstar gave notice that
Background Before the CC, NUMSA argued that an it would commence a lock-out at 07h00
employer’s right to employ replacement on Monday 23 November 2020. Trenstar
The National Union of Metalworkers of labour, should end when a strike ends. in fact implemented the lock-out as no-
South Africa (NUMSA), on behalf of its This interpretation of s 76(1)(b), accord- tified. As from the Monday morning, the
members, demanded the respondent em- ing to NUMSA, would have the least im- employees’ absence from work was due
ployer, Trenstar, give its members a once pact on the constitutionally guaranteed to a lock-out, not a strike. Trenstar did
off gratuitous payment of R 7 500. Once right to strike. Such an interpretation ac- not reject the tender of services as unac-
Trenstar refused, NUMSA referred a mu- cords with the literal and common sense ceptable or incomplete. Instead, it exclud-
tual interest dispute to the Commission meaning of the phase ‘in response to a ed the employees from the workplace in
for Conciliation, Mediation and Arbitra- strike’ as set out in the section. Once a terms of a lock-out despite their tender
tion (CCMA). Conciliation failed after strike ends an employer may continue a of services.’
which NUMSA, on 23 October 2020, gave lock-out, but this would be an offensive In further support of its findings, the
the employer notice of its intention to lock-out, following which the prohibition court turned to the wording of the section
strike beginning 26 October 2020. of replacement labour must apply. under discussion. Section 76(1)(b) allows
The strike continued for a month where- Trenstar persisted with the distinction for replacement labour when the lock-out
after the union’s attorney, at 1:25pm on it drew between a suspended strike and a ‘is’ in response to a strike. The word ‘is’
Friday, 26 November 2020, wrote to the strike that has terminated. It argued that denotes present tense and not past tense.
employer and advised that the union had its notice calling for a lock-out was issued Stated otherwise, replacement labour is
decided to suspend its strike with effect while the strike was ongoing, despite the permitted because of an ongoing strike
from end of business that day and that its announcement of the suspension of the and not because of a strike that ended.
members would be returning to work on strike being already made at the time. The CC set aside the order of the LC
Monday, 23 November. In the same corre- Therefore, factually, the lock-out was in and replaced it with an order, which
spondence, it was clearly stated that deci- response to a strike. Trenstar continued would have prevented the employer from
sion to suspend the strike should not be to argue that the union only suspended employing replacement labour as from
construed as a withdrawal of the demand. the strike and could, at any time, reinsti- 23 November 2020. No order as to costs
In reply, sent shortly after receiving the tute their strike action. If the union was was made.
above letter, the employer wrote to the correct on its interpretation, then each
union and informed it that the employer time an employee issued a 48-hour notice
gives 48 hours’ notice of a lock-out to for a lock-out in response to a strike, all
begin at 7am on Monday, 23 November, the union had to do was to issue a notice Moksha Naidoo BA (Wits) LLB (UKZN)
the purpose of which being a demand suspending the strike immediately prior is a legal practitioner holding cham-
that the union and its members drop or to the expiry of the 48-hour notice period. bers at the Johannesburg Bar (Sand-
waive the demand of R 7 500 gratuitous This according to the employer would ton), as well as the KwaZulu-Natal Bar
payment. The employer went further to frustrate the purpose of a defensive lock- (Durban).
q
record that the lock-out was in response out.

DE REBUS – JULY 2023

- 34 -
 RECENT ARTICLES AND RESEARCH

Recent articles
By
and research
Kathleen
Kriel

Abbreviation Title Publisher Volume/issue

Advocate Advocate General Council of the Bar (2023) 36.1
AMTJ African Multidisciplinary Tax Journal Juta (2023) 3
DJ De Jure University of Pretoria (2023) 56
EL Employment Law Journal LexisNexis (2023) 39.1
(2023) 39.2
(2023) 39.3
ITJ Insurance and Tax Journal LexisNexis (2023) 38.1
(2023) 38.2
JACL Journal of Anti-Corruption Law University of the Western Cape, Fac- (2023) 7.1
ulty of Law
JCCLP Journal of Corporate and Commercial Juta (2022) 8.2
Law and Practice
JJS Journal for Juridical Science University of the Free State, Faculty (2023) 48.1
of Law
JLSD Journal of Law, Society and Develop- University of South Africa Press (2022) 9
ment
LDD Law, Democracy and Development University of the Western Cape, Fac- (2023) 27
ulty of Law

Administrative law Assassinations Conflict on taxation

Ally, N and Murcott, MJ ‘Beyond labels: Rabkin, F ‘Law matters’ (2023) 36.1 Ad- Diarra, S; Diakite, M; Tapsoba, SJA and
Executive action and the duty to consult’ vocate 66. Zongo, T ‘Foreign aid and domestic rev-
(2023) 27 LDD 93. enue mobilisation in conflict-affected
Wagener, GP ‘A conceptual framework countries’ (2023) 3 AMTJ 45.
for the legitimate elimination of the de-
Business e-mail
velopmental mandate by state-owned compromise Customary land tenure
companies in South Africa’ (2022) 8.2 Murata, C; Ndlovu, L; Ganyani, L and
Emmett, R ‘Liability for business e-mail
JCCLP 1. Odume, ON ‘Demystifying contempo-
compromise: Lessons from hindsight’
rary customary land tenure in legally
(2023) 38.2 ITJ.
plural Southern Africa’ (2022) 9 JLSD.
African Union
Class actions Customs revenue
Mushoriwa, L ‘The African Union’s quest
Anele, KK ‘Revisiting class action liti- Samara, BW ‘Impact of the AfCFTA
for a “peaceful and secure Africa”: An as-
gations against corporations in Nigeria: Agreement on customs revenue: Case of
sessment of Aspiration Four of Agenda
Lessons from the US experience’ (2022) Togo’ (2023) 3 AMTJ 237.
2063’ (2023) 27 LDD 55.
8.2 JCCLP 55.
Divorce law
Annuities Commerce Abduroaf, M ‘An analysis s 5A of the
De Villiers, WP ‘Can Sars cancel or cor- Tewari, DD and Ilesanmi, K ‘Clashing Divorce Act 70 of 1979 and its applica-
rect an erroneous IRP5 certificate itself, goals of SAICA and South African univer- tion to marriages concluded in terms of
the validity of an incorrect IRP5 certifi- sities: A need for reflection and realign- Islamic law’ (2023) 53 DJ 1.
cate and characteristics of an annuity’ ment’ (2022) 9 JLSD.
(2023) 38.2 ITJ. Drug law reform
Company law Foster, SW ‘The right to privacy in the
Appointing judges Mongalo, T and Scott, T ‘The role of decriminalisation of psilocybin mush-
Maswazi, B ‘The way we appoint acting beneficial ownership reporting obliga- rooms in South Africa’ (2023) 27 LDD 1.
judges needs a renovation’ (2023) 36.1 tions and the reckless trading provision
Advocate 57. to prevent front companies in terms of
Emolument attachment
Wallis, J ‘Is there a judge in the house?’ the Companies Act 71 of 2008’ (2022) orders
(2023) 36.1 Advocate 48. 8.2 JCCLP 29. Van der Merwe, S ‘Evaluating the role of

DE REBUS – JULY 2023

- 35 -
RECENT ARTICLES AND RESEARCH

judicial oversight in the context of the Grogan, J ‘Disciplinary action “short of resolution of commercial tax disputes’
post-2018 emolument attachment order dismissal” – how far can section 186(2) (2023) 3 AMTJ 103.
legal framework: Revisiting University of (b) be stretched?’ (2023) 39.1 EL.
Stellenbosch Legal Aid Clinic v Minister Tax policies
of Justice 2015 (5) SA 221 (WCC)’ (2023) Land governance Alinsato, AS and Zogbasse, S ‘Tax pol-
48.1 JJS 1. Chiwuzie, A; Prince, EM; Olawuyi, ST icy, corruption and poverty in WAEMU’
‘Women and land governance in select- (2023) 3 AMTJ 150.
Financial planning ed African countries: A review’ (2022) 9 Zanga, LN ‘An analysis of gender equal-
Maharaj, N ‘Duty of care: Prioritise your JLSD. ity and tax policies in Zimbabwe’ (2023)
maintenance responsibly’ (2023) 38.2 3 AMTJ 273.
ITJ. Lectures and speeches
Peith, M ‘Lovell Fernandez Memorial
Tax relief
Firearm control Lecture: The global shadow economy 23 Ndlovu, J and Mohale, E ‘Innovative ap-
Nortje, W and Hull, S ‘Disarming the dis- February 2023’ (2023) 7 JACL. proaches for tackling tax evasion in the
pirited South African: A critical analysis South African minibus taxi industry: Les-
of the proposed ban on firearms for self- Pension funds sons from Ghana, Zambia, and Zimba-
defence’ (2023) 27 LDD 123. bwe’ (2022) 9 JLSD.
Emmet, R ‘“Infrastructure” as defined in
Regulation 28 of the Pension Funds Act:
Foreign pension trust How too broad an interpretation could
Tax revenue
Muller, C ‘SARS Binding Class Ruling vitiate the intended policy objectives’ Bate, AP and Guedikouma, D ‘Impact
BCR080: Tax implications for resident (2023) 38.1 ITJ. of the AfCFTA on tax revenue in Togo’
beneficiaries of a Foreign Pension Trust’ Muller, C ‘The two-pot retirement sys- (2023) 3 AMTJ 1.
(2023) 38.1 ITJ. tem: The road so far’ (2023) 38.1 ITJ. Mhango, MB ‘Assessment of impact of
the COMESA-EAC-SADC Tripartite Free
Free trade Pension fund companies Trade Area on Tax Revenue in Malawi’
Oladejo, AO ‘Regionalisation and eco- (2023) 3 AMTJ 303.
Hanks, Jnr., JJ; Schiffer, MD and Shee-
nomic resilience in a pandemic: Making han, MF ‘Practice note: Responding to
a case for the African Continental Free stockholder proposals, director elec-
Tax revenue performance
Trade Area (AfCFTA)’ (2022) 9 JLSD. tions and say-on-pay votes’ (2022) 8.2 Chilima, IY ‘Application of autoregres-
JCCLP 84. sive distributed LAG models to evaluat-
Free trade on tax efficiency ing Malawi’s Tax Revenue Productivity
Alakonon, CB and Alinsato, AS ‘Free Refugee law and Tax Administration Reform’ (2023)
trade and tax efficiency in the West Afri- 3 AMTJ 170.
Amadi, VT and Vundamina, MND ‘Mi-
can Economic and Monetary Union: What gration and climate change in Africa: A
can we learn for the AfCFTA?’ (2023) 3 differentiated approach through legal Tax treaties
AMTJ 69. frameworks on the free movement of Doghmi, A ‘The impact of tax treaties on
people’ (2023) 27 LDD 31. the promotion of FDI: The case of Mo-
Gender law rocco’ (2023) 3 AMTJ 198.
Hagglund, K and Khan, F ‘The gendered Royalty tax rates
impact of corruption: Women as victims of Ibrahim, AJ ‘Royalty tax rate and the Taxation Laws Amendment
sextortion in South Africa’ (2023) 7 JACL. under-reporting dilemma in Tanzania’s Act
mining sector’ (2023) 3 AMTJ 90.
Human rights Daffue, H ‘Taxation Laws Amendment
Act, 20 of 2022’ (2023) 38.1 ITJ.
Paito, AO ‘Corruption and the realisa- Tax awareness
tion of human rights: The case of South
Sudan and the right to education’ (2023)
Shittu, AI ‘Tax awareness among micro- Unrest and violence
business owners in informal settings’ Du Plessis, W; Pienaar, JM; Koraan, R
7 JACL.
(2023) 3 AMTJ 254. and Stoffels, MC ‘2021 Measures to ad-
Joint estates dress violence and unrest in a time of
Oosthuizen, W and Botha, M ‘Pure risk
Tax compliance COVID-19’ (2022) 9 JLSD.
life policies: Marriages in community of
property’ (2023) 38.2 ITJ.
Gaalya, MS ‘Impact of tax compliance Women and children’s
enforcement initiatives in Uganda: Case
study of the value-added tax fraud cam- rights
Labour law paign’ (2023) 3 AMTJ 331. Shumba, N and Magadze, TO ‘Access to
Hakizimana, N and Santoro, F ‘Technol- justice dynamics for women and girls
Buirski, P ‘An apex error – further
ogy evolution and tax compliance: Evi- with disabilities: The Zimbabwean con-
thoughts on Marley Pipe’ (2023) 39.1 EL.
dence from Rwanda’ (2023) 3 AMTJ 125. text’ (2022) 9 JLSD.
Employment Law Journal ‘25th Anni-
Koloane, CT; Makananisa, MP; Sity-
versary – The latest amendments to the
oshwana, S and Tokwe, T ‘What drives Xenophobia
EEA’ (2023) 39.3 EL.
the tax compliance levels of sole traders
Employment Law Journal ‘Corona after- Kole, OJ ‘An analysis of violent attacks
in South Africa?’ (2023) 3 AMTJ 20.
math – dealing with “anti-vaxers” under in Gauteng, South Africa, in 2019: Xe-
Usman, I and Gimba, VK ‘Impact of im-
the LRA’ (2023) 39.2 EL. nophobic or not? – That is the question’
plicit tax on personal income tax compli-
Employment Law Journal ‘War crimes (2022) 9 JLSD.
ance behaviours’ (2023) 3 AMTJ 213.
– the NEHAWU strike and its aftermath’
(2023) 39.3 EL.
Grogan, J ‘Burning question – approach- Tax disputes Kathleen Kriel BTech (Journ) is the
ing interest arbitration under section 74 Aren, MLF ‘Proposition for an AfCFTA- Production Editor at De Rebus. q
of the LRA’ (2023) 39.2 EL. based Tax Dispute Court for the timely

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