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Nigerian Bar Association (NBA) AGC 2019

Weekly Summary of South Africa Judgments----Vol 11 CONSTITUTIONAL COURT OF SOUTH AFRICA Mlungwana and Others v S and Another (CCT32/18) [2018] ZACC 45 (19 November 2018) Heard On: 21August 2018 Delivered on: 18 November 2018 Summary: Regulation of Gatherings Act 205 of 1993 — section 12(1)(a) — declaration of constitutional invalidity SUMMARY OF

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Weekly Summary of South Africa Judgments----Vol 10 - https://mailchi.mp/af78328a92a8/weekly-summary-of-south-africa-judgments-vol-10

of Land Act 68 of 1981 — sections 19, 20 and 26 — purchaser not obliged to make payment until recordal complete by seller. Credit Act 34 of 2005 — section 129 — notice of default — draw default to the attention of the consumer— specify amount of arrears.

Weekly Summary of South Africa Judgments----Vol 10 CONSTITUTIONAL COURT OF SOUTH AFRICA Amardien and Others v Registrar of Deeds and Others [2018] ZACC 47 Heard On: 7August 2018 Delivered on: 28 November 2018 Summary: Alienation of Land Act 68 of 1981 — sections 19, 20 and 26 — purchaser not obliged to make payment until recordal complete by sel...

Weekly Summary of South Africa Judgments----Vol 9 - https://mailchi.mp/cb0230ddb8f7/weekly-summary-of-south-africa-judgments-vol-9

Please read the summary of the SCA judgment, which is the Volume 4 of our Publication, for a more detailed summary of the facts of this case, and this will give you better context of this case.

Weekly Summary of South Africa Judgments----Vol 9 CONSTITUTIONAL COURT OF SOUTH AFRICA Diener NO v Minister of Justice and Correctional Services and Others (CCT03/18) [2018] ZACC 48 Heard On: 6 September 2018 Delivered on: 29 November 2018 Summary: Companies Act – Chapter 6 – sections 135(4) and 143(5) – business rescue p

Weekly Summary of South Africa Judgments--Vol 8 - https://mailchi.mp/5f4cf027aa3b/weekly-summary-of-south-africa-judgments-vol-8

Weekly Summary of South Africa Judgments----Vol 7 THE SUPREME COURT OF APPEAL OF SOUTH AFRICA De Beer v S (1210/2016) [2017] ZASCA 183; 2018 (1) SACR 229 (SCA) (5 December 2017) Heard on:2 November 2017 Delivered: 5 December 2017 Summary: Criminal Law and Procedure: appeal to high court against conviction of rap

WEEKLY SUMMARY OF SA JUDGMENTS----VOL 6 CONSTITUTIONAL COURT OF SOUTH AFRICA Booysen v Minister of Safety and Security (CCT25/17) [2018] ZACC 18; 2018 (9) BCLR 1029 (CC); 2018 (6) SA 1 (CC) (27 June 2018) Heard on:22 August 2017 Delivered: 28 June 2018 _________________________________________

WEEKLY SUMMARY OF SA JUDGMENTS----VOL 5 THE SUPREME COURT OF APPEAL OF SOUTH AFRICA Msimango v The State Case No: 698/2017 Heard on:02 November 2017 Delivered: 01 December 2017 _________________________________________________________________________ Summary: Criminal Law – appellant convicted of o

WEEKLY SUMMARY OF SA JUDGMENTS----VOL 4 THE SUPREME COURT OF APPEAL OF SOUTH AFRICA Diener N.O.

WEEKLY SUMMARY OF SA JUDGMENTS----VOL 2 CONSTITUTIONAL COURT OF SOUTH AFRICA Ramuhovhi and Others v President of the Republic of South Africa and Others. Case CCT 194/16 Heard on: 16 May

WEEKLY SUMMARY OF SA JUDGMENTS----VOL 1

CONSTITUTIONAL COURT OF SOUTH AFRICA
State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) LtD

CCT 254/16

Date of hearing: 9 May 2017 Date of judgment: 14 November 2017

SUMMARY OF FACTS: This is a leave to appeal from SCA to the Constitutional Court, in a matter to determine whether an organ of state can request for a review and setting aside of its own decision, by invoking the Promotion of Administrative Justice Act 3 of 2000 (PAJA). This case involves the State Information Technology Agency SOC Limited (SITA), provides information technology services (IT services) to State departments. Gijima Holdings (Pty) Limited (Gijima), is one of the private service providers whose services have in the past been enlisted by SITA. On 27 September 2006, SITA and Gijima concluded an agreement (SAPS agreement) in terms of which Gijima was required to provide IT services to the South African Police Service on behalf of SITA. On 25 January 2012 SITA terminated it with effect from 31 January 2012. As a result of this Gijima lost R20 million in future revenue, which triggered Gijima’s urgent application against SITA in the High Court of South Africa on 1 February 2012.

As a result of this urgent application, SITA and Gijima entered into a settlement agreement to compensate Gijima for the loss of its future revenue due to the termination of the SAPS agreement, and the settlement terms included rendering IT services to the Department of Defence (DoD). Gijima was concerned whether SITA had complied fully with its procurement processes, to which SITA assured Gijima severally that it had the authority to enter into the settlement agreement. The agreement concerning these services was extended several times, however, a payment dispute subsequently arose between the parties. When the dispute could not be resolved, Gijima instituted arbitration proceedings in September 2013, which SITA objected to by claiming the unconstitutionality of the DoD agreement. On 20 March 2014, the arbitrator held that he did not have jurisdiction to adjudicate on constitutional matters.

In the High Court, SITA brought an application to set aside the DoD agreement on the same grounds, and the Court held that the decision to award and renew the DoD agreement qualified as administrative action in terms of the provisions of PAJA. However, SITA's application was outside the 180-day period stipulated in section 7(1) of PAJA, most especially, SITA had not even sought an extension of this period. The Court held that PAJA applies, because a decision to award and renew the DoD services agreement qualifies as administrative action as defined in PAJA. The Court concluded that it would not be just and equitable to set aside the main agreement between the parties, and the application was dismissed with costs.

In the SCA’s majority judgment, Cachalia JA held that a decision by an organ of state to enter into an agreement for services constitutes administrative action in terms of PAJA. The Court found that the conclusion of the settlement agreement had the capacity to affect Gijima’s rights, and the Court further held that SITA’s repeated assurances that the DoD agreement had been validly concluded would have created a legitimate expectation that that contract would be honoured. The majority concluded that PAJA applies to review applications instituted by organs of state and dismissed the appeal with costs, because the application was brought after the expiry of the 180-day period.

LEGAL QUESTIONS: 1) By what means may an organ of state seek the review and setting aside of its own decision? May it invoke the Promotion of Administrative Justice Act (PAJA) in this process? (2) Does PAJA apply when an organ of state seeks to review its own conduct? (3) Does the decision to award the DoD agreement stand?

RATIO DECIDENDI: In entering the DoD agreement, SITA acted contrary to the dictates of the Constitution. Section 172(1)(a) of the Constitution enjoins a court to declare invalid any law or conduct that it finds to be inconsistent with the Constitution, and the award of the contract falls within this. The Constitutional Court in its judgment, held that PAJA does not apply when an organ of state applies for the review of its own decision and that an organ of state seeking to review its own decision must do so under the principle of legality. The Court held that in interpreting section 33 of the Constitution and PAJA itself, it cannot be said that an organ of state seeking to review its own decision can be a beneficiary of the rights under section 33. Also, the Court ruled that “section 33 of the Constitution creates the right to just administrative action can be enjoyed by private persons only, and that the State is the bearer of obligations under that section.”

However, under section 172(1) (b) of the Constitution, a court deciding on a constitutional matter has wide remedial powers. It is empowered to make “any order that is just and equitable”, because it is bounded only by considerations of justice and equity. In this case, SITA had delayed for just under 22 months before seeking to have the decision reviewed, and also, Gijima, from the outset was concerned whether the award of the contract complied with legal prescripts, because it raised the issue with SITA repeatedly, which SITA affirmed that a proper procurement process had been followed.

DECISION: (1) Leave to appeal is granted. (2) The appeal is upheld in part. (3) The order of the High Court of South Africa, Gauteng Division, Pretoria is set aside, and replaced with the following:

(a) By awarding the DoD contract to Gijima as service provider, and the subsequent decisions to extend of that contract, SITA acted contrary to the Constitution and therefore declared the award of the contract constitutionally invalid.

(b) Ordered that the declaration of invalidity must not have the effect of divesting Gijima of rights it would have been entitled to under the contract, but for the declaration of invalidity.

(c) The applicant must pay the respondent’s costs, including costs of two counsel, in the High Court, the Supreme Court of Appeal and in this Court.

CONSTITUTIONAL COURT OF SOUTH AFRICA
Ferguson and Others v Rhodes University

CCT 187/17

Date of judgment: 7 November 2017

SUMMARY OF FACTS: This is a leave to appeal application against an order of the Supreme Court of Appeal, who had earlier refused application to appeal against the order of High Court of South Africa, Eastern Cape Division, Grahamstown (High Court). Earlier, Rhodes University had obtained an urgent interim interdict against a group, including the applicants, engaged in protest action on the University’s campus, which the High Court had made final- albeit in a form and scope considerably different from the original interdict granted.

The applicants were part of an organisation known as Chapter 2.12 Movement, that embarked on campaigns against r**e culture and gender-based violence at Rhodes University in April 2016, which even the High Court described as addressing an issue that is “deeply emotional, relevant and challenging”. This protest action led to kidnapping of two male students of the university who were suspected of r**e, and the protesting students also disrupted classes, erected barricades at the entrance of the university, and incurred damages to the university’s property.

This led to the university approaching the High Court for an interim interdict, which was granted with wide scope. The applicants and a group of the university’s academics known as “Concerned staff at Rhodes University”, objected the interdict and made submissions for the interdict to be discharged on the basis that it was “unlawful and unconstitutional”. The High Court still made the interim interdict final, though with some limited scope this time around. The High Court ruled that the parties to pay their costs. Upon appeal by the applicants against this order, the High Court refused the appeal, and ruled that the applicants pay the costs of the respondents. The applicants subsequently applied for leave to appeal to the Supreme Court of Appeal, which was dismissed with costs also. At the Constitutional Court, the applicants raised a fundamental constitutional issue that impacts their freedom of expression and right to protest as enshrined in s 16 and 17 of the Constitution respectively.

LEGAL QUESTIONS: (1) Is the granting of the final interdict including costs order against the applicants in the application for leave to appeal in the High Court constitutionally appropriate? (2) If not, what relief should the Court consider granting?

RATIO DECIDENDI: As a result of the constitutional nature of this case as it relates to its impact on a number of rights, including the rights to freedom of expression, to assemble and protest, to education, and to property. In addition to these rights, is the issue of costs that impacts access to justice, which cumulatively makes this case a very important one that must be granted leave to appeal.

Based on the principle established in Biowatch Trust v Registrar, Genetic Resources ([2009] ZACC 14; 2009 (6) SA 232 (CC)) (Biowatch) that describes what the Court called the “chilling effect” cost orders could have on parties seeking to assert their constitutional rights (even when they unsuccessfully do so), exceptions are permitted to awarding costs to unsuccessful litigants in cases of affirming constitutional rights. The Biowatch principle does not any way immunise all constitutional litigations from the risk of an adverse cost order, it all depends on the facts of the case. This principle was also upheld in Hotz v University of Cape Town ([2017] ZACC 10; 2017 (7) BCLR815 (CC)) (Hotz). Therefore, the Court held that High Court did not exercise judicial discretion in ruling on the matter of costs, because it did not appropriately apply the Biowatch principle in its decision.

DECISION: (1) Leave to appeal is granted only against the order of the Supreme Court of Appeal upholding the High Court of South Africa, Eastern Cape Division, Grahamstown’s order on costs in the application for leave to appeal in the High Court. (2)The appeal on costs is upheld. (3) The cost orders of the High Court and the Supreme Court of Appeal in the application for leave to appeal are set aside. (4) Each party was ordered to pay its own costs in the High Court, the Supreme Court of Appeal and in the Constitutional Court.

Note : Section 16 of the Constitution reads: “(1) Everyone has the right to freedom of expression, which includes—(a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research. (2) The right in subsection (1) does not extend to—(a) propaganda for war ; (b) incitement of imminent violence; or(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm." Section 17 of the Constitution reads: “Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.”

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
Road Accident Fund V Mphirme

Case No: 1036/2016

Heard: 1 September 2017 Delivered: 2 October 2017

SUMMARY OF THE FACTS : This case, which came on appeal from the Free State Division of the High Court, Bloemfontein (the court of first instance), and requires clarifications on whether RAF is obliged to pay for the cost of a domestic servant required by an injured claimant through the issuance of an undertaking under s 17(4)(a) of the RAF Act 56 of 1996. The Court quo held that by reason of the RAF Amendment Act 19 of 2005, the Fund was no longer competent to so, though it ruled in favour of the respondent. Consequently, RAF approached this court on appeal.

The fact of this case involves a middle-aged mother of three children who was a passenger in a motor vehicle that was involved in a head on collision with another motor vehicle. The circumstances surrounding this accident made the appellant liable to the respondent for damages as a result of the bodily injuries she sustained during the accident. RAF consented that it will be 100% liable for the respondent’s proven or agreed damages, which included almost all of the outstanding issues relating to the respondent’s claim, including a sum in respect of her general damages as well as her past hospital expenses, and an order in respect of these agreed damages was granted by consent on 17 November 2015. However, the parties could not agree on the claim relating to the cost of providing domestic assistant, which was left for the next day, the 18 November 2017. By the next day, the parties agree to a domestic assistant for the respondent, and a fair and reasonable sum was agreed upon.

However, the main contention by the Fund is that its liability was discharged by giving an undertaking under s17(4) of the Act, which the respondent contended to, insisting to be paid the agreed amount in a lump sum. The court quo agreed with the respondent based on the definition of undertaking in RAF Amendment Act 19 of 2005. Thus, the appeal to this Court.

LEGAL QUESTIONS: Does the current law discharges the RAF of its liability to pay the costs of employing a domestic servant required by an injured claimant by issuing an undertaking under s 17(4)(a) of the Road Accident Fund Act 56 of 1996?

RATIO DECIDENDI: In arriving at the decision, the Court considered the origin of making an undertaking to cover the loses of a plaintiff involved in a motor accident. It started by looking at the common concept of calculating the past, present and future loss of a plaintiff in this situation. Also, the Court considered various legislation on “third party” involved in road accident. Legislations like Compulsory Motor Vehicle Insurance Act 56 of 1972 (s 21(1C) entitles defendants sued for damages to furnish undertakings to compensate the third party for ‘”the costs of future accommodation in a hospital or nursing home or treatment of or rendering of a service or supplying of goods to him’ once such costs were incurred”

The successive legislation, Multilateral Motor Vehicle Accidents Fund Act 93 of 1980 (art 43(a)) s 8(5) the Motor Vehicle Accident Act 84 of 1986, and s 17(4) of the RAF Act 56 of 1996, also had a similar provision. As decided in Road Accident Fund v Arendse, (NO [2002] ZASCA 150; 2003 (2) SA 490 (SCA) para 9)., the purpose of the legislative provisions is to help resolve the quantification problem of future loss.

Therefore, as a result of these provisions, it is understood that the essence of undertakings as envisaged by those statutory provisions were not applicable only to medical and hospital expenses, but includes services rendered by a curatrix bonis, an assistant to help an injured farmer. Excluding and limiting the undertaking solely to medical and hospital expenses completely ignores the historical dimension of the statutes and the purpose of these undertakings. “The provision of an undertaking serves not only to avoid the difficulties of quantification of such claims, it serves also to provide a claimant who will require future treatment or the rendering of services with a measure of security of access to such services that payment of a lump-sum award cannot provide. This, in my view, serves to protect the dignity of claimants. In my view, had the legislature intended as significant and far-reaching an amendment of s 17(4)(a) as is suggested by the Mphirime judgment, then it would have effected it in clear and unambiguous terms. This it has not done” (Goosen J in Barnard NO v The Road Accident Fund [2016] ZAECPEHC 71; 2017 (1) SA 245 (ECP)).

The fact that s 17 of the Act does not clearly define what an undertaking covers, it has given rise to several and different interpretations. It is to resolve this conundrum and these conflicting judgments that the Fund appealed to this court. However, the decision of the Constitutional Court in Law Society of South Africa & others v The Minister for Transport & another had already made several provisions of the RAF Amendments Act 19 of 2005 inconsistence with the Constitution. The apex Court ruled that pending the fixing of the unconstitutional provisions of the Act 19 by the Minister of Transport, s 17(4)(a) applies to all undertakings for compensation by the Fund. Therefore, as at 2016, when the Court quo ruled on this matter, the Minister of Transport had not fixed this unconstitutionality, which makes the judgment of the Court quo inconsistent with the earlier ruling of the Constitutional Court, because the Court quo applied the amended provisions of RAF Amendments Act 19 of 2005 in arriving at its decision.

Also, referring to the provisions of s 17(4)(a), the Court stated that “the Fund ‘shall be entitled . . . to compensate’ by way of furnishing an undertaking. No provision is made for a claimant to refuse such an undertaking should the Fund exercise its right to do so. The appeal must therefore succeed”. The Court rejected the attempt to interpret s 17(4)(a) to include the cost of domestic servant, and rather insisted that it would not speak for the Minister of Transport who has the responsibility in introducing a new legislation that deals with the ambiguity. On the issue of costs, the Court agreed with the position of the Fund in not seeking costs from the Plaintiff, even if the Fund won, because the matter on “appeal was brought as a test case for the public good”.

DECISION: 1)The appeal succeeds. There will be no order as to costs. 2) The order of the court a quo dated 25 February 2016 is set aside and is substituted with the following: ‘(a) It is declared that the cost of employment of a domestic assistant to the plaintiff is an expense that the defendant is entitled to pay in terms of an undertaking under s 17(40(a) of RAF Act 56 of 1996; The defendant is ordered to furnish the plaintiff with such an undertaking.’

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
SMYTH V INVESTEC BANK LTD 674/2016

Heard: 13 September 2017 Delivered: 26 October 2017

SUMMARY OF FACTS: The case, which began in the Gauteng Division of the High Court, Pretoria (High Court), is as a result of two agreements concluded as at January 2010, between Johannesburg Consolidated Industries Limited (JCI Ltd) and Randgold, on one hand, entitled “Revised Settlement Agreement”; and between Randgold and Investec, entitled “Litigation Settlement Agreement”. These two agreements related to four claims initiated by Randgold against JCI Ltd on one hand and Investec and Investec Bank UK on the other hand, which is a consequence of alleged breathtaking fraudulent scheme perpetuated by JCI Ltd against Randgold

As a result of these agreements, the first to seventh appellants (make up the first group) instituted the main application in the High Court, in which they sought the following relief against the respondents:

“1. Declaring that the conclusion of:

1.1 the agreement styled the “Revised Settlement Agreement” and concluded by the second respondent with JCI Ltd (JCI) on 20 January 2010 and which was ratified by a simple majority of the second respondent’s holders on 20 May 2010; and

1.2 the agreement styled the “Litigation Settlement Agreement” and concluded by the second respondent with inter alia the first respondent on 22 January 2010, the conclusion and ratification of which was a condition precedent to the Revised Settlement Agreement;

constitutes or involves an act or omission which is unfairly prejudicial, unjust or inequitable as contemplated in Section 252(1) as read with Section 252(3) of the Companies Act 61 of 1973 (“the Companies Act”).

2. In the light of paragraph 1 above, ordering the first respondent to purchase the applicants’ shares in the second respondent in the sum of R288.56 per share (or any other sum which the above Honourable Court [may] in its discretion determine) plus the ruling Randgold price at the time of such purchase.”

The second group, eight to thirty-fourth appellants, seeking similar relief in terms of s 252 of the Companies Act, sought leave to intervene in the main application as co-applicants. Also, the third group, comprising the thirty-fifth to forty-first appellants, and for convenience sake were referred to as ‘own name applicants’ in the court, also sought leave to intervene in the main application, seeking relief in terms of s 252. In the High Court, the first (Investec) and second (Randgold) respondent challenged the main application, which is the locus standi of the appellants, affirming that the applicants were not members of Randgold, and thus, could not seek relief under S 252 of the Companies Act, which the appellant vehemently disputed. Asserting that they, as beneficial owners of the shares in Randgold, and not their nominees, who stand to suffer patrimonial loss in Randgold. In addition to the main challenge, the first respondent challenged the application to intervene. According to the Court below, with the proper articulation of s 252 of the Act does not include a beneficial shareholder as a “member”. The Court also held that the legal interest asserted by the beneficial shareholder applicants did not avail them as they could not be joined as co-applicants (with their respective nominees) because they would not be asserting a claim under s 252 nor could they competently do so.

LEGAL QUESTION: (1)Whether the remedy provided for in s. 252 of the Companies Act 61 of 1973 (the Act) is available to beneficial owners of shares in a company who have elected to hold their shares through nominees.

(2) Whether beneficial owners who cannot invoke the remedy for which s 252 of the Act provides because their legal interest falls short of a right to assert a claim (locus standi), may nonetheless join as co-applicants together with their relevant nominees in proceedings for relief in terms of s 252 of the Act in relation to their shares by virtue of a direct and substantial interest in such proceedings.

RATIO DECIDENDI: According to this court, the core legislative provisions for this case are contained in s 252 and s 103 of Companies Act, the applicable provision of s 252 deals with “Member’s remedy in case of oppressive or unfairly prejudicial conduct”. Some portions of s 103 of the Act defines who are the “members” of a company. Section 105(1) of the Act requires every company to keep in one of the official languages, a register of its members and to forthwith enter therein the names and addresses of the members and, in the case of a company having a share capital, a statement of the shares issued to each member, and to distinguish each share by, inter alia, its claim or kind, and the amount paid therefor or agreed to be considered as paid on the shares of each member. In respect of each member, the company shall enter the date on which the member’s name was entered in the register of members and the date on which a member ceased to be such a member. Substantially, s 109 provides that the register of members is prima facie evidence of the matters entered in it in terms of the Act.

S 91A(3)(a) specifies that a company must enter in its members register every claim of securities, and the total number of securities held in uncertified form. s 91A(4)(b) provides that the transferee of uncertified shares becomes a member upon entering of his name in the subregister, and shall be recognized as thus by the company. And the subregister shall be part of register of members, and shall contain all information referred to in s 105 & 133 of the Act. Subsections 1 and 2 of s 112 of the Act provide to a company’s memo of incorporation have agreed to become members of the company, upon registration, must be entered in the company’s members’ register. Thus, becoming a member requires a person’s name to be registered in the company’s members register.

The Appellate Division in Sammel & others v President Brand Gold Mining Co Ltd (1969 (3) SA 629 (A) at 666C-D), ruled that a “nominee” is merely an agent of the transferee, because he (the nominee) is appointed to hold shares in his name on behalf of the another, the transferee. The Court further states that “The policy of the law is that a company shall concern itself only with the registered holder and not the owner or beneficial owner of the shares”. Thus, the nominee appears in the members register as a registered holder of shares. Also in Standard Bank of South Africa Ltd v Ocean Commodities Inc (1983 (1) SA 276 (A) at 289), the Appellate Division also ruled that companies should concern themselves only with registered owners of its shares, and not nominees.

Also in Dadabhay v Dadabhay & another (1981 (3) SA 1039 (A) at 1047D), Holmes AJA affirmed that a nominee shareholder takes directives from the beneficial shareholder. Also, in Oakland Nominees (Pty) Ltd v Gelria Mining & Investment Co (Pty) Ltd (1976 (1) SA 441 (A)), Holmes JA explained the concept of a nominee as “an agent with limited authority: he holds shares in name only. He does so on behalf of his nominator or principal, from whom he takes instruction”. The main basis of the appellants’ contention is that as beneficial shareholders, they suffer the prejudice contemplated in s 252 of the Act, instead of the nominees, even though the nominees are defined as members in terms of s 103 of the Act, it is therefore permissible to to go behind the register of members for purposes of s 252, reffering to Kalil v Decotex (Pty) Ltd & another ([1987] ZASCA 156; 1988 (1) SA 943 (A)) and also, Barnard v Carl Greaves Brokers (Pty) Ltd & others, Carl Greaves Brokers (Pty) Ltd & others v Barnard, Barnard v Bredenhann & others ([2007] ZAWCHC 2; 2008 (3) SA 663 (C)). However, the Court rejected this line of argument, because the cases recited had no connection to their arguments.

Thus, this Court affirmed that in interpreting s 252 of the Act, fundamental principle of statutory interpretation, which giving the words in a statute ordinary meaning, unless doing so would lead to absurdity, and this fundamental principle is subject to interrelated qualifications, such as: i)This statutory provision must be interpreted purposively; ii) This statutory provision must be put in context; iii) This statutory provision must be interpreted consistently with the Constitution, for it to be constitutionally valid.

Thus, the Court in defining the word ‘members’ as contained in s 252 of the Act, applied it in its natural interpretation. It then followed the view in Dadoo Ltd & others v Krugersdorp Municipal Council (1920 AD 5300) that “a Judge has authority to interpret, but not to legislate, and he cannot do violence to the language of the lawgiver by placing upon it a meaning of which it is not reasonably capable. Therefore, the court concluded on this matter that the legislation should be read as it is, that is, only those persons whose names appear on the company’s register and not the beneficial shareholder.

In ascertaining legal interest (locus standi), the Court affirmed that the fact that someone has a mere legal interest without the right to assert a claim, does not constitute a ground for “joinder and interventions as an applicant”. Rule 12 requires the right to claim, which is read with Rule 10, is a qualification for joinder as an applicant. This was contained in Vitorakis v Wolf 91973 (3) SA 928 (W)) and Shapiro v SA Recording Rights Assoc Ltd (Galeta Intervening) (2008(4) SA 145 (W)). That “only a registered member has locus standi to approach the court in terms of section 252” and not the beneficial holder of shares registered in another person’s name. Thus, a none registered member possesses no right to the protections and benefits of s 252. Thus, the Court concluded that the appellants did not have locus standi.

DECISION: The appeal was then dismissed with costs, including the costs of two counsel.

SUPREME COURT OF APPEAL
QHINGA V STATE 1327/2016

Heard: 2 November 2017 Delivered: 15 November 2017

SUMMARY OF FACTS: The case was first heard at the Eastern Cape Local Division of the High Court, Bhisho (High Court), by Judge Dhlodhlo ADJP, and later heard by the full court of the same court, and there after it was heard by the Supreme Court of Appeal. This is a case involving a robbery incident that took place at Newlands community hall, near East London, which was been used for paying grants by App Pay Payment Services (APPS) to pay grants. A gang of armed men robbed employees of APPS of the grant money, robbed one security guard of his firearm, shot and injured the other security guard, fired shots at the police, and fled the scene with a car that was hijacked at the scene.

Consequent to these events, seven men were indicted of charges, including robbery with aggravating circumstances and attempted murder. However, after the lengthy trial, one of the seven was acquitted of all charges, whilst the remaining six (including the appellant) were convicted of the charges, and given lengthy terms of imprisonment. After unsuccessful appeal by the accused persons against both the conviction and sentencing, the Constitutional Court granted their request for a leave to appeal to a full court of the High Court against both the conviction and sentence. The full court varied the convictions and sentencing of the appellant, and confirmed convictions of three of the accused. With regards to the appellant, the only evidence against him was a pointing-out that amounted to a confession, combined with another further confession. The majority concurred that the point-out was enough for a conviction with regards to the first five counts. Whereas, the minority affirmed that the pointing-out process violated the appellant’s right to fair trial, was not made freely and voluntarily. Thus, the appeal to this Court

LEGAL QUESTIONS: (1) Whether the content of the appellant’s pointing-out was proved; and (2) Whether it ought to have been admitted in the first place.

RATION DECIDENDI: Based on the conduct of the police from the time the first appellant was arrested till when the pointing-out and confession was made, the state was unable to prove that this process was done freely and voluntarily, and without undue influence or pressure on the appellate by the police. Thus, this conduct of the police violates the Constitution and the South Africa Police Service Act 68 of 1995, most especially s 13(1) that defines the conduct of the police regarding the discharge of their constitutional duties. Thus, the whole process was not free of bias and undue pressure, on the first appellant, and thus, the Court held that the conviction could not stand, as there was no admissible evidence against the appellant.

CONCLUSION: At the conclusion of the hearing of this appeal we made an order in the following terms:

1 The appeal succeeds, and the appellant’s convictions and sentences are set aside.

2 Paragraphs 2 and 3 of the order of the court a quo are accordingly altered to read as follows:

‘2. That the appeal in respect of the first, third and fourth appellants is allowed and their convictions and sentences are set aside.

3. That the appeal in respect of the second, fifth and sixth appellants is dismissed.’

LABOUR APPEAL COURT
Minister of Public Service and Administration and others V PSA OBO Makwela JA4/2017

Heard: 07 September 2017 Delivered: 01 November 2017

SUMMARY OF FACTS: The dispute was first dealt with by an Arbitrator, who issued a binding award making a settlement agreement between Makwela (first Respondent), his employer and the Member of the Executive committee (MEC) (second appellant) that Makwela should translate in terms of the Occupation Specific Dispensation (OSD) into a particular post or higher salary. The Minister of Public Service and Administration and the MEC representative applied for rescission of the award on the ground that the minister ought to have been party to the arbitration proceedings. The relief sought was to set aside the award, which was claimed to have been erroneously granted, and an order that the Minister be joined in the proceedings be made. This rescission application was dismissed by the arbitrator (second respondent) of GPSSBC. The appellant approached the Labour Court for a review of the dismissal, which was unsuccessful, and this has warranted the appeal to the Labour Appeal Court.

LEGAL QUESTION (1) Whether the arbitrator erred in issuing an award within the context of section 144 of the Labour Relations Act 66 of 1995 (LRA); (2) Whether the Minister can be joined in the proceedings.

RATIO DECIDENDI: The court assessed the rescission application, and also the application to be joined in the arbitration proceedings by the Minister. Starting with the requirements to be joined, the party to be joined in any proceeding must have a direct and substantial interest in the claim, meaning he/she must qualify as a “necessary” party. This interest must be in respect of a legal right or obligation affected by the claim being litigated, that is, a legal interest. The court then evaluated the role played by the Minister with regards to the OSD, and how is she affected by the arbitration award. The court relied upon the Public Service Act, proclamation 103 of 1994, as section 5(6) (b) and section 3(6) of the Act provided guidance. Section 5 (6) (b) provides for an ancillary role by the Minister, in formalizing a collecting agreement in terms of Section 3(5) (a), and the advisory role provided for in section 3(6). The court then concluded that there is no self-standing executive role for the Minister established by section 5(6) of the Act, and that she has no role to play in the application of the provisions of OSD to an individual employee.

The court went further to state that the Minister’s role is defined in the legislation provided, which is confined to the issuing of instruments of general application, and not, in the least, in any legal sense, concerned with disputes concerning individual employees. The court also pointed out that the Minister and employee seems to have overlooked the absence of any legal connection.

DECISION: The court held that the Minister had no legal right at stake in the dispute referred to arbitration by Makwela, and that the appeal must fail.

LABOUR APPEAL COURT OF SOUTH AFRICA
Glencore Holdings V GEGI Joseph Sibeko

Case no: JA16/2016 LC Case no 2013/JR2189

Heard: 15 August 2017 Delivered: 01 November 2017

SUMMARY OF FACTS: On the 01 November 2017, the Labour Appeal Court handed down judgment in an appeal application from the Labour court, concerning a case of misconduct in the workplace by an employee. Sibeko occupied a very hazardous position as an employed dozer driver, which required him to wear protective safety gear that included protective ear muffs. There was an altercation that took place in which Sibeko refused to wear the usual muffs, and the employer managed to compile elements of refusing to comply with reasonable instruction, which led to Sibeko being charged with insubordination and dishonesty, and was eventually dismissed. At arbitration, the arbitrator concluded that the employer had not proven misconduct, with this conclusion not yet challenged, Sibeko sought for retrospective reinstatement.

The controversy arose when the arbitrator, who had held that the dismissal of Sibeko was substantively unfair, and refused to order reinstatement. The arbitrator concluded that Sibeko had behaved badly during the arbitration proceedings, affirming that this action demonstrated the broken employment relationship that made reinstatement an impracticable remedy. On review, Hardie AJ of the Labour Court set aside the arbitration decision, and substituted with reinstatement order. Thus, this is an appeal against the substitution of remedy. The proper interpretation of section 193 of the Labour Relations Act 66 of 1995 (LRA) is implicated in the award and in the review court’s judgment.

LEGAL QUESTIONS Were the provisions of section 193(2) of the LRA appropriately and justifiably applied?

RATIO DECIDENDI: The fundamental basis for this case is the right application of s 193(2) of the LRA, which the arbitrator discretionally waved in his ruling, and the arbitration’s conclusion was challenged at the Labour Court by the applicant. Section 193(2) of the LRA reads thus: ‘The Labour Court or the arbitrator must require the employer to reinstate or reemploy the employee unless-

(a) The employee does not wish to be reinstated or re-employed;

(b) The circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;

(c) It is not reasonably practicable for the employer to reinstate or re-employ the employee; or

(d) The dismissal is unfair only because the employer did not follow a fair procedure.’

In this case, (a) and (d) were inapplicable, because the employee wanted to be reinstated and the arbitrator rightly found that Sibeko’s dismissal was procedurally fair, but substantially unfair. However, the arbitrator relied on para (c) to refuse to reinstate Sibeko, because of his behaviour ad unfounded accusations throughout the trial made it impracticable to consider reinstatement as a remedy. Thus, the arbitrator relied on this reasoning to deviate from the provisions of S 193(2) of the LRA.

However, at the Labour Court, Hardie AJ , relying on the minority concurring judgment of Zondo JP in Maepe v CCMA (2008) 29 ILJ 2189 (LAC), that the ambit of para (b), “owing to the phrase ‘circumstances surrounding the dismissal…’ was limited to events up to the point of dismissal but not afterwards, such as arbitration proceedings”. The implication this is that the commissioner was wrong in applying the provision of para (c) in determining the practicability of reinstating Sibeko. Thus, Sibeko’s conduct during the proceedings did not qualify as an inhibition towards his reinstatement as a dozer driver. The true issue is not that Sibeko was justified in his outbursts, or that there is a degree of mitigation in the given circumstances for his poor manners, but rather that the functional role performed by a dozer driver within the employer’s organisation, including the functional rapport or lack therefore with his superiors, was not adversely impacted by such conduct, within the meaning of (c).

The Court upheld the findings and the reasoning of Hardie AJ as rightly justified, most especially his unquestionable analysis of the behaviour of Sibeko during the arbitration proceedings, which he found normal, considering the circumstances surrounding him. Also, the behaviour of the first respondent and witnesses also affirmed the rationale for Sibeko’s emotional outburst, which are often displayed in courts by legal practitioners too! Consequently, it is plain that Hardie AJ was correct to conclude that the award was indeed one to which a reasonable arbitrator could not have come.

DECISION

· Labour Court’s judgment setting aside award upheld.

· The appeal was dismissed with costs.