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17/01/2022

Spoliation

Is the mandament van spolie available to remedy a denial of access to a computer server and e-mail?

The facts in Blendrite (Pty) Ltd and Another v Moonisami and Another 2021 (5) SA 61 (SCA) were that Mr Moonisami (the first respondent) and Mr Palani (second appellant) were directors of Blendrite (Pty) Ltd (first appellant). Palani was in factual control of Blendrite. A dispute arose between the pair and Palani claimed Moonisami had resigned. Moonisami contested this. Ultimately Palani caused Blendrite (via instruction to Global Network Systems (Pty) Ltd (second respondent)) to terminate Moonisami’s access to Blendrite’s e-mail and server.

Moonisami then approached the KZD, claiming his peaceful and undisturbed possession of access had been unlawfully denied him. He was successful, obtaining an order that his access be restored. Blendrite and Palani then applied for leave to appeal, but this was refused, causing them to apply for and receive such leave from the SCA.

The SCA, per Gorven AJA, upheld the appeal. It pointed out that while it was true that the mandament van spolie was available where incorporeal property was spoliated, the issue here was whether the prior access to an e-mail address and company network and server amounted to quasi-possession of an incorporeal which qualified for protection by a spoliation order. The SCA emphasised that only quasi-possession of a supply of a service that arose as an incident of possession of corporeal property was protected by the mandament. Here, however, Moonisami’s prior access was not an incident of possession of corporeal property because he did not possess any movable or immovable property in relation to his erstwhile use of the server or e-mail address. The SCA pointed out that any entitlement to use the server and e-mail address was wrapped up in the contested issue of whether the Moonsami remained a director of Blendrite and might relate to the terms of his contract of employment. It was a personal right enforceable, if at all, against Blendrite. Since Moonisami’s prior use did not amount to quasi possession of incorporeal property, it was not protectable by the mandament. The SCA, therefore, set aside the KZD’s order, replacing it with an order dismissing the application.

Source: De Rebus

14/01/2022

Family law:

Existence of marriage where alleged wedding ceremony did not fulfil legal requirements:

The plaintiff in Botha v Steyn [2021] 4 All SA 87 (KZD) instituted action seeking a decree of divorce against the defendant, as well as payments of R 100 000 per month and half of the nett value of the defendant’s estate.

Having met and become engaged in 2005, the parties resided together, travelling between London and South Africa (SA). In 2007, they hosted a ceremony which was meant to be a wedding ceremony. Guests were flown from SA to London at the defendant’s expense and the parties exchanged rings at the ceremony. However, the wedding was not registered as there was insufficient time to obtain a marriage licence. On their return to SA, the parties cohabited as husband and wife until December 2007 when the marriage began floundering. By 2009 the relationship had ended permanently, and in 2014 the plaintiff started the litigation in this matter by issuing summons against the defendant.

The evidence of an English solicitor, consulted by the defendant on discovering the problem regarding obtaining of a marriage licence, testified that he had advised the defendant that the ceremony could proceed as a ‘blessing ceremony’. He also stated that he had been requested by the parties after the ceremony, to draw up an agreement regulating their cohabitation as they were not married. The plaintiff was said to have been aware of the legal status of the relationship at that point. The defendant also called an expert in English law as a witness. Her testimony was that the absence of a marriage licence meant that there was no marriage. The court’s only task was to determine whether there had been a valid marriage. It found the plaintiff to be a poor witness who failed to prove that she had been married to the defendant.

The court was satisfied that there was never a marriage contracted between the plaintiff and the defendant and, therefore, there could be no talk of a decree of divorce. The plaintiff was always aware that there never was a marriage existing between her and the defendant as the prerequisites for a marriage in English law had not been met. She knew that the ceremony had no legal effect and that they would need to undertake another ceremony in terms of the marriage laws of SA if they were to be validly married.

It was held by Hadebe J that the defendant had made an overwhelming case for the dismissal of the plaintiff’s action with costs, which costs should be granted at a punitive scale.

Source: De Rebus

04/08/2021

Criminal law

The presumption that the owner was the driver of a vehicle is not applicable to an owner of a trailer hired out to customer:

In National Minister of Transport v Brackenfell Trailer Hire (Pty) Ltd and Others 2021 (1) SACR 463 (SCA) a trailer-for-hire business (the respondents), had experienced problems with the national application of the presumption in s 73(1) of the National Road Traffic Act 93 of 1996 (the Act). As owners, they were presumed in terms of the subsection to have driven the trailers in a manner that contravened the provisions of the Act, whereas the trailers in question had in fact been driven by their customers. Their frustrations had caused them to launch an application in the WCC for an order, inter alia, declaring that the presumption was not applicable to trailers. This was opposed by the National Minister of Transport (the appellant). It appeared that the traffic-enforcement agencies had experienced difficulties in establishing the owners of the motor vehicles in circumstances where their cameras were only able to pick up the registration number of the trailer, which obscured the rear registration plate of the vehicle being driven. This had led to them targeting the respondents for prosecution by virtue of being the owners of the trailers involved.

Their application was successful leading to the Minister taking the matter on appeal. The SCA, per Petse DP (Dambuza JA, Van der Merwe JA, Weiner AJA and Goosen AJA concurring), found that the word ‘drive’ was defined in the Act with reference to the meaning of the word ‘driver’ as defined, and ‘driver’ meant someone who drove or attempted to drive any vehicle and included someone who rode or attempted to ride a pedal cycle or lead any draught, pack or saddle animal or herd or flock of animals. Thus, the element of ‘driving’ in relation to a trailer in tow was lacking and it was illogical to speak of such when in fact what happened was that it was the towing vehicle that was being driven when it was propelled by manipulating its controls with the trailer in tow. A trailer, not being self-propelled, had no engine or controls to manipulate its speed and direction independently of the towing vehicle. The court further noted that it was difficult to conceive of a situation where one could truly speak of a trailer being driven on a public road and that s 73(1) could only apply to a vehicle that was itself capable of being driven. It therefore followed that s 73(1) was not applicable to a trailer. The decision of the WCC was accordingly upheld, and the appeal was dismissed with costs.

Source: De Rebus

04/08/2021

Family law – marriage

Proprietary rights in black marriages:

In Sithole and Another v Sithole and Another 2021 (6) BCLR 597 (CC), the High Court made an order declaring s 21(2)(a) of the Matrimonial Property Act 88 of 1984 unconstitutional and invalid to the extent that its provisions maintain and perpetuate the discrimination brought about by s 22(6) of the Black Administration Act 38 of 1927, which provided that marriages of black couples concluded under the Black Administration Act before 1988, would automatically be out of community of property. The High Court declared that all marriages of black persons concluded out of community of property under s 22(6) before 1988 were marriages in community of property. A spouse in a marriage so declared to be a marriage in community of property was, however, given leave to apply to the High Court for an order that the marriage would remain one out of community of property, notwithstanding the High Court’s order. The High Court referred its order to the CC for confirmation.

The first applicant, a black woman married to the first respondent since 1972, had brought the application in the High Court, together with the second applicant, the Commission for Gender Equality. The first applicant had contributed financially throughout the years of the marriage. She and her husband bought an immovable property, which became the family home. When the marriage relationship between them deteriorated, the first applicant was faced with the possibility of losing the value of her share of an estate, which she had helped to build up. For religious reasons she was unwilling to have the marriage dissolved by divorce and, therefore, would not be able to utilise the remedy provided by s 7(3) to (5) of the Divorce Act 70 of 1979 to secure an equitable distribution of the couple’s assets.

The second respondent was the Minister of Justice and Correctional Services, cited in his capacity as the cabinet member responsible for the administration of the Matrimonial Property Act, and as the representative of the government.

The CC in a unanimous judgment confirmed the High Court’s declaration of invalidity.

The judgment observed that s 22(6) of the Black Administration Act created the default position that black couples were married out of community of property. They were permitted to marry in community of property if, in the month prior to their marriage, they jointly declared to a magistrate, commissioner or marriage officer that they intended their marriage to be a marriage in community of property and of profit and loss. Section 22(6) applied only to marriages of Black people and not to marriages of other races.

Section 22(6) of the Black Administration Act was repealed by the Marriage and Matrimonial Property Law Amendment Act 3 of 1988. The Amendment Act deleted s 22(6) of the Black Administration Act and inserted ss 21(2)(a) and 25(3) into the Matrimonial Property Act. The effect of the repeal for Black couples was that those who were married out of community of property under s 22(6) of the Black Administration Act had the opportunity to change their matrimonial regimes within two years from 2 December 1988. Couples were required to do so by executing and registering a notarial contract to that effect. Section 21(2)(a) of the Matrimonial Property Act permitted couples to make the accrual system provided for in Chapter I of the Matrimonial Property Act applicable to their marriages. It provided, inter alia, that ‘spouses to a marriage out of community of property entered into before the commencement of the Marriage and Matrimonial Property Law Amendment Act 3 of 1988, in terms of s 22(6) of the Black Administration Act … may cause the provisions of Chapter I of this Act to apply in respect of their marriage by the ex*****on and registration … of a notarial contract to that effect.’

Applicants contended that although various amendments made to the Matrimonial Property Act had ameliorated the discriminatory legacy of s 22(6), they did not remedy or reverse the negative impact of s 22(6) on black spouses. The default position of those marriages continued to be that they were out of community of property unless the couples had taken steps to alter their matrimonial property regime.

The court found that the impugned provisions perpetuated the existence of a special matrimonial regime for black couples who concluded their marriages before 1988. Marriages of black people were treated differently from those of other races. There was no justification for this differential treatment. The discrimination complained of was on one of the grounds listed in s 9(3) of the Constitution. In terms of s 9(5) of the Constitution, discrimination on one or more of the grounds listed in s 9(3) is presumed to be unfair unless proven otherwise. It was open to respondents to attempt to show that the discrimination was fair. They had not done so. It was in any event clear that they would not have been able to do so.

The provisions of s 21(2)(a) of the Matrimonial Property Act were inconsistent with the Constitution. The High Court order, therefore, had to be confirmed. Henceforth, the default position would be that all marriages which in terms of the Black Administration Act were automatically out of community of property were now marriages in community of property. Affected couples would have the option, like married couples of other races, to opt out and change their matrimonial regime to be one out of community of property, if they wished.

The court’s order would not affect the legal consequences of any act or omission existing in relation to a marriage before the court’s order was made. Nor would the order be permitted to undo completed transactions in terms of which ownership of property belonging to any of the affected spouses had since passed to third parties. A saving provision or generic order should be made in favour of a person claiming specific prejudice arising from the retrospective change of the matrimonial regime, to approach a competent court for appropriate relief.

Source: De Rebus

08/06/2021

Property

Cancellation of lease agreement due to breach of contract and obtaining of order of eviction:

In terms of a lease agreement entered into with the first respondent, the appellant (Shevel) took occupation of a flat on 1 February 2013. In 2019, he fell into arrears with three months’ rent due. The first respondent gave him notice and cancelled the agreement on 30 April 2019. The applicant failed to vacate the property, causing the first respondent to obtain an eviction order.

In his appeal against the eviction order, the appellant claimed that he had not had a fair trial in the court a quo, that the magistrate had erred in relation to his earning capacity, and that if the present court confirmed the order, he would be rendered homeless.

In contending that he had not had a fair trial, the appellant complained that his legal representative failed to prepare adequately for the hearing and, further, did not adhere to his instructions. Having considered the record of proceedings in the court a quo, and in particular the detail traversed in the submissions to the court, the present court held that the appellant’s complaint was unfounded.

On the evidence around the appellant’s income in Shevel v Alson Development Sea Point (Pty) Ltd and Another [2021] 2 All SA 260 (WCC), the court accepted that he might not have earned the amount pointed to in the lower court, as the said amount was made up of earnings and money obtained from friends of the appellant. The alleged misdirection was not material, and the court confirmed the correctness of the finding that there was sufficient money available to the appellant every month to enable him to find alternative accommodation. The court’s view that the appellant was unlikely to be rendered homeless, based on the evidence, was also confirmed on appeal.

The magistrate had properly exercised his discretion under s 4(6) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 in evicting the appellant and giving him just more than a month to vacate. There was no reason to interfere with the order of eviction or its terms.

As the date stipulated in the eviction order had come and gone, the court had to affix a new date by which the appellant had to be out of the property. It was pointed out that the country was under a Level 3 Lockdown under the Disaster Management Act 57 of 2002, which made the eviction of persons from their places of residence subject to ministerial regulation. Having regard to the circumstances of this matter, the court held that it would not be just and equitable to suspend the operation of the eviction order until the suspension of the current State of Disaster. The court was satisfied that it would be just and equitable to order the appellant to vacate the flat within four weeks of its order.

Source: De Rebus

30/03/2021

Education

May a special needs school refuse to readmit a troubled and misbehaving learner until she was ‘cured’?

Young R, just 12 years old, diagnosed with foetal alcohol syndrome, cognitive impairments behavioural disorders and epilepsy, was admitted as a learner at a special needs school but later refused entry. She had started using s***f, alcohol and the respondents were willing to allow her to attend school and reside in the school hostel once her ‘issues’ were attended to. She was effectively barred from school until such time as the respondents were satisfied that she had been ‘cured’. These were the sad facts the FB, per Mathebula J, had to deal with in Cassim NO v MEC, Department of Social Development, Free State and Others 2021 (1) SA 184 (FB). The applicant, R’s curator ad litem, had applied on a semi-urgent basis for an order compelling the school to admit her. The participating respondents, the school and its governing body, in the first place denied urgency on the ground that the country was in COVID-19 lockdown, requiring the closure of schools, and argued that there was therefore no compelling reason for the court to urgently consider the matter.

The FB ruled that the arguments raised in opposition to urgency lacked merit since courts would always come to the aid of the vulnerable where their welfare and life were under threat and were ignored by those tasked with the responsibility to protect them. It would, in the light of this, be an absurdity to put the matter in abeyance until the COVID-19 lockdown was lifted.

The FB then observed that the conditions imposed by the respondents for R’s admission were unlawful since they effectively barred her from school until the respondents were satisfied that she had been cured. This attitude tended to perpetuate exclusivity and was unlawful because every child who had been admitted to school had to be allowed to attend school. The FB accordingly upheld the curator’s application.

Source: De Rebus

03/03/2021

Animals

The pauperien action:

A defence of non-custodian third party negligence? ‘Many people in South Africa choose to own animals for companionship and protection. That is their choice, but responsibilities follow in its wake. … People are entitled to walk our streets without having to fear being attacked by dogs and, where such attacks occur, they should in most circumstances be able to look to the owner of the dog for recompense.’

So ends the judgment in Van Meyeren v Cloete 2021 (1) SA 59 (SCA), in which the SCA had to deal with the question of whether it should extend pauperien principles by allowing the owner to escape liability on the ground of the negligence of a ‘non-custodian’ third party. The court a quo, the ECP, had refused to do so, leading to the present appeal by the owner.

The facts serve to illustrate the dilemma faced by the SCA. The respondent, Mr Cloete, an itinerant gardener and refuse collector, was on his way to the shops one afternoon, pulling his trolley down a street in suburban Port Elizabeth when – for no reason and without any warning – he was attacked by three dogs owned by the appellant, Mr Van Meyeren. The dogs, pit bull cross-breeds, savaged Mr Cloete to such an extent that neighbours who came to the scene thought he was dead. He survived, but his left arm was amputated because of his injuries.

Pleading his claim under the actio de pauperie and, alternatively negligence, Cloete instituted action to recover damages from Van Meyeren. Van Meyeren and his family had been away from home on the day in question. The garden could be accessed from the street through a gate through which the dogs had escaped. While it was usually padlocked, the SCA accepted in favour of Van Meyeren (but with reservations) that on the fateful day, the padlocks were damaged by an unknown intruder so that the dogs were able to escape.

The SCA per Wallis JA (Cachalia and Mocumie JJA and Ledwaba and Weiner AJJA concurring) cited the pauperien law on dog attacks as it was summarised by the AD in O’Callaghan NO v Chaplin 1927 AD 310. If the owner of a dog that attacks another person who was lawfully at the place where he was injured, and who neither provoked the attack nor by his negligence contributed to his own injury, is liable, as owner to make good the resulting damage. Liability was based on ownership alone, providing a remedy where it was impossible to impute negligence to the owner.

The SCA pointed out that the actio had an element of anthropomorphism in that, for the owner to incur liability, the animal had to have acted from vice, or contra naturam sui generis. That is, there had to be something equivalent to culpa in its conduct. If it was merely frightened, in pain or provoked, then it had not acted contra naturam and the owner was not liable. Nor would the owner be liable if the injured party had been in a place where he should not have been, for example where an intruder was bitten by a watchdog, or where the animal was restrained and the injured party ventured within reach.

However, in Lever v Purdy 1993 (3) SA 17 (A) the AD recognised a third exception. Such as where the owner had appointed someone to look after the animal in his absence and the negligence of that person (the custodian) was the cause of the harm. Van Meyeren argued that the defence recognised in Lever v Purdy had to be extended to exempt the owner from liability where the harm would not have occurred but for the negligent conduct of a third party, irrespective of whether the third party had had custody or control of the animal.

After carefully analysing Lever v Purdy, the SCA ruled that there was nothing in that judgment to provide any support for the exception for which Van Meyeren contended. Roman-Dutch law provided no clear authority in favour of extending an owner’s exemption from liability for harm caused by their animal to instances where a third party’s negligence is involved without the third party having the custody or control of the animal.

The SCA then proceeded to the question of whether the common law should be developed by extending the exception in Lever v Purdy under s 39 of the Constitution. Counsel for Van Meyeren alluded to the high level of crime in South Africa and the right of people to protect their homes against criminals. The SCA parried this line of argument by asking why, if it was only in extreme circumstances permissible to shoot and kill an intruder in self-defence, it should be permissible to keep a dog that – irrespective of the level of threat – might kill or maim them? Moreover, Van Meyeren’s dogs did not harm an intruder but an innocent passer-by. The ambit of the right to keep dogs for protection at home was irrelevant where the dog had caused harm outside the home.

The SCA emphasised that Van Meyeren was seeking to escape liability on the basis that what had occurred here was not his fault. However, the absence of fault has never been a basis for avoiding pauperien liability. It proceeded on the basis of strict liability arising from ownership of the animal that caused the harm. Absence of fault was a ground for resisting aquilian liability, not a claim under the actio. Where the actions of the victim or third parties had been held to exonerate the owner from pauperien liability, it was because those actions directly caused the incident in which the victim was harmed in circumstances where the owner could not prevent that harm from occurring. Responsibility for the dogs had not passed from Van Meyeren to the intruder in the way it had passed in Lever, it still resided squarely with him as the owner.

Stripped of everything extraneous, Van Meyeren’s argument was nothing more than that he was not liable because the harm was not his fault. The SCA rejected the argument that control by the person whose negligence allowed the animal to escape was not a requisite for the extended exception to operate. It ruled that it would be inappropriate to undermine the principle of strict liability for harm caused by domestic animals by extending the exception in Lever v Purdy. The SCA accordingly dismissed the appeal with costs.

Source: De Rebus

04/02/2021

Children:

The right of an unmarried father to register a child’s birth in absence of the mother: Section 9(1) of the Births and Death Registration Act 51 of 1992 (the Act) provides for the notification of the birth of any child ‘born alive’; and s 9(2) that this notification is ‘[s]ubject to the provisions of section 10’. Section 10 deals with the notification of the birth of a child born out of wedlock, and makes the exercise by an unmarried father of his right under s 9(1) contingent on either the mother’s presence (s 10(1)(b)) or her consent (s 10(2)).

In Centre for Child Law v Director-General: Department of Home Affairs and Others 2020 (6) SA 199 (ECG) a Full Bench concluded that s 10 implicitly barred an unmarried father of a child born out of wedlock from giving notice of the child’s birth under his surname if the mother was absent. The ECG, per Rugunanan J (Revelas J and Mapoma AJ concurring) ruled that this was discriminatory not only against the father of a child born out of wedlock but also against the child born out of wedlock. In an unmarried father’s case, the discrimination was on the basis of marital status, directly violating his right to equality (in s 9(3) of the Constitution). Where the child was born out of wedlock, the discrimination was on arbitrary grounds because it had the effect that, absent the mother’s cooperation, the child – who had a legitimate claim to a nationality from birth – could be denied a birth certificate.

The court accordingly declared s 10 of the Act inconsistent with the Constitution and invalid to the extent that it did not allow an unmarried father to register the birth of his child in the absence of the child’s mother. The court ordered a reading-in or substitution as the appropriate remedy to expunge the bar presented by s 10 and to provide a mechanism for a child born out of wedlock to be notified in the surname of their father where the mother was absent.

Source:De Rebus

17/11/2020

Neighbour law

Scope of duty of lateral support:

The court in Petropulos and Another v Dias 2020 (5) SA 63 (SCA) considered the scope of the duty to maintain lateral support between contiguous pieces of land – in particular whether it extends not only to land in its natural state but also to land with buildings on it.

The entire slope on which Mr Dias’ property was situated subsided and his property moved laterally and downwards towards an excavation on Ms Petropulos’ property. This resulted in extensive structural damage to Mr Dias’ property, which he attributed to excavations undertaken by Ms Petropulos and one Mr Venter on their respective properties. In Mr Dias’ claim for damages against both – based on strict liability for breach of the duty to provide lateral support – the trial proceeded only on separated issues. These included whether a common-law duty to provide lateral support to Mr Dias’ property was owed by Ms Petropulos and Mr Venter’s properties.

The trial court held that there was: The duty of lateral support owed not only in respect of land but also buildings constructed on the land, but not where such land has been ‘unreasonably loaded so as to place a disproportionate or unreasonable burden on the neighbouring land’. The SCA agreed with the court a quo that the duty of lateral support was not limited to land in its natural state (as in English law) but extended to buildings on the land; it, however, rejected the trial court’s qualification of this general principle as untenable. Dismissing the appeal, the SCA concluded that the excavations on Ms Petropulos’ property breached the duty to provide lateral support, and was linked sufficiently closely to the harm suffered.

Source: The Rebus

09/11/2020

Criminal law

Lawfulness of arrest and detention by police after arrest by civilian:

Mtshemla and Another v Minister of Police and Others 2020 (2) SACR 254 (ECM) was an appeal against the dismissal by the regional magistrate in the Mthatha Magistrate’s Court, of the appellants’ damages claim against the respondents for unlawful arrest and detention.

In their amended particulars of claim the appellants referred to the third respondent as ‘Warrant Officer Qotoyi’. They alleged that this warrant officer and another police officer had come to their house, where they found a motor vehicle. The appellants admitted to possession but not to the commission of any offence. Qotoyi and the other police officer had then told them that they were under arrest and they were taken to the local police station where they were detained. They spent two and a half days in custody in unpleasant conditions. It was only during the evidence of the second witness for the respondents, a constable who had taken over the matter as the investigating officer and who had had nothing to do with the arrest of the appellants, that it was discovered that warrant officer Qotoyi was not in fact a police official, but an employee of Netstar Vehicle Tracking Unit.

The respondents, in their plea, alleged that the police officers who had arrested and detained the appellants had been justified in doing so, and, interestingly, accepted the onus to prove the justification for the arrest, despite the fact that the person who carried out the arrest was in fact a civilian. The case ultimately argued by the respondents, however, appeared to be that the arrest was lawful by virtue of the fact that Qotoyi was entitled to arrest under the provisions of
s 42 of the Criminal Procedure Act 51 of 1977 (the Act), which dealt with a civilian arrest.

The ECM, per Griffiths J, held that it was abundantly clear that a reasonable suspicion had to reside in the mind of the peace officer at the time of the arrest of the person concerned. Since Qotoyi was not a police officer, he was not a peace officer and the respondents ought to have failed on that basis alone. The ECM held further that even if it were to give a vast amount of leeway in that regard and consider whether or not Qotoyi had the right in terms of s 42 to arrest the appellants and that, on that basis, the police officers who detained the appellants were clothed with legality in doing so, the respondents ought to have failed on that score as well. Qotoyi had made no allegation in his statement that the appellants had committed or attempted to commit any offence in his presence, and there was no statement to the effect that he reasonably suspected the appellants of having committed an offence referred to in sch 1 of the Act. The magistrate, therefore, ought to have found that the respondents had not established that the arrest itself was lawful and, that being so, the subsequent two and a half days’ detention was also unlawful. To simply detain the appellants, apparently on the say-so of a civilian who had arrested them, was not sufficient and there had to be an interrogation of some sort to ensure that the arrest was lawful. In the circumstances the court considered an award of damages of R 90 000 for unlawful arrest and detention to be appropriate.

Source: De Rebus

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