Southern African Legal Information Institute (SAFLII)

PAY FOR TIME NOT WORKING AFTER REINSTATEMENT Mr Masinga (applicant) was dismissed on 3 July 2019 whereafter he referred an unfair dismissal dispute to the CCMA. He was ultimately successful in his referral and was retrospectively reinstated. For this the value of the monies owing to him was calculated as being R138,000. The applicant was directed to report for duty on 6 January 2020, but when he did, he was advised to return home until further notice. Almar Investments (respondent) then brought review proceedings on 22 January 2022 which were dismissed by this court on 16 August 2022. The respondent then permitted the applicant to return to work on 1 September 2022. The applicant seeks payment for the period of time between the date of his reinstatement in terms of an arbitration award and the date on which he actually returned to the service of the respondent. The applicant is not required to starve or exist in a state of perpetual poverty or remain destitute in the face of the rejection of his tender of services. He, and others in his position, must do what they can to exist. The respondent elected to review the arbitration award and to set in place a course of litigation which it had to foresee could result in it being indebted to the applicant. It is a risk that any employer seeking to review on order of reinstatement takes. The respondent turned the applicant away on 6 January 2020 and did not call on him to tender his services until 1 September 2022. It would be perverse should the respondent be able to reject a tender of services and then snatch at a bargain of the applicant having to earn an income by other means. In the absence of proof that the applicant in fact had other employment, the court must accept the version under oath of the applicant that he did not. The respondent is ordered to pay R931,997.80 made up of R736,000 being outstanding remuneration owed to the applicant and R195,997.80 in respect of interest. Masinga v Almar Investments (Pty) Ltd (J564/23) [2024] ZALCJHB 381 (8 October 2024) https://lnkd.in/dbeYupn8

Polovin v Director of Public Prosecutions and Others (1230/2022) [2024] ZASCA 140 Summary: Criminal law and procedure – private prosecution – review – whether leave to appeal should be granted in terms of s 17(2)(b) read with s 17(1)(a)(i) and (ii) and section 17(6)(a)(i) and (ii) of the Superior Courts Act 10 of 2013 in relation to the merits – whether the jurisdictional requirements for the issue of a certificate of nolle prosequi were met – whether the Acting Director of Public Prosecutions was entitled to reissue the certificate of nolle prosequi – whether the certificate of nolle prosequi may include further charges other than that originally charged by the State prosecutor – whether the second respondent had sufficient standing to pursue the private prosecution and whether that prosecution was in accordance with public policy. 👉: https://lnkd.in/duZs8TpW

COIDA AND TEACHER STABBED BY PUPIL The plaintiff was an educator employed by the Department of Education, Eastern Cape, at Nontswabu Junior Secondary School. On a day in 2011 an altercation occurred between the plaintiff and a learner. The plaintiff’s colleagues intervened and the learner left the school premises only to return later with a knife, which he used to stab the plaintiff, who sustained injuries, both physical and psychological. The plaintiff issued summons against the defendant, his employer, claiming damages in delict. The defendant raised a special plea to the effect that the plaintiff was precluded from instituting an action against his employer in that he had failed to comply with section 35(1) of the Compensation of Occupational Injuries and Diseases Act 130 of 1993 (COIDA). It is the defendant’s contention that the altercation that occurred, which resulted in the plaintiff being stabbed, was an occupational injury, alternatively an accident, as envisaged in COIDA. Mullins AJ gives a useful discussion of the case law at paras [17]-[32]. The test to be applied is not whether the injury occurred during the course of the educator’s employment (which it did) but whether it arose out of, or was incidental to, the employee’s employment. Thus, a soldier can hardly be heard to complain if, in the line of duty, he is shot; and a security guard, whose job it is to protect property from being broken into, can hardly be heard to complain if he is assaulted by persons breaking into the property. A doctor working in a psychiatric hospital in which there are violent patients would be in a similar position. The role of an educator is to educate learners. As an educator often has to deal with large groups of learners it goes with the territory that they, the learners, will on occasion become unruly and that friction between them and the educator will occur. There will always be those learners who test the boundaries. It is for this reason that the Department has rules, as do schools, governing what is, and what is not, acceptable behaviour. Incidental to an educator’s employment is the enforcement of those rules. However, that a disgruntled learner would, or even may, assault an educator in the exercise of his duties, is not something that arises out of his employment and/or is incidental thereto. The incident giving rise to the plaintiff’s injuries was not an accident as defined by COIDA and the special plea stands to be dismissed with costs. Ndiki v MEC for Education, Eastern Cape Province (128/2014) [2024] ZAECBHC 25 (3 September 2024) https://lnkd.in/d9NN2ysA

SEQUESTRATION AND ADVANTAGE TO CREDITORS SARS seeks to place the estate of the respondent under provisional sequestration. It was argued on behalf of both Mr Shabangu and the Trust that despite the indebtedness and acts of insolvency, the court should find that the issue of a provisional order for their sequestration should not be granted as there was no advantage to creditors in doing so. The argument rested on two legs. The first was that SARS had immense powers in terms of the Tax Administration Act 28 of 2011 (TAA) and that as it was a preferent creditor, it ought to use the TAA to procure payment. An order for the sequestration of the estates of Mr Shabangu and the Trust was a last resort until they had exhausted the measures afforded to them by the TAA and complied with it. The second leg was that since preservation orders relating to the assets of both had been granted in favour of SARS in terms of section 163 of the TAA, there was in fact no advantage to creditors if the orders sought were to be granted. It is the case for SARS that Mr Shabangu is in control of a complex corporate structure of which the Trust is a part and that through this control, despite the non-payment of his debts, he continues to enjoy what was argued was a lavish and luxurious lifestyle. Having regard to the fact that both the assets of Mr Shabangu and the Trust are subject to preservation orders in terms of section 163 of the TAA, it is somewhat inexplicable that Mr Shabangu has been able to finance and maintain such lifestyle in circumstances where the source of his funds is unknown and undisclosed by him. There is nothing before the court to explain this. It is not in dispute that the assets of both Mr Shabangu and the Trust are subject to a section 163 preservation order. Despite all his assets and those of the Trust being placed under curatorship and SARS having squarely raised his lavish lifestyle in its founding papers, Mr Shabangu failed to deal with the allegations or to disclose the source of the funds from which his lifestyle is financed. Having regard to these facts alone, that there would be an advantage to creditors for the granting of the order sought. Notwithstanding the granting of a preservation order, Mr Shabangu and the Trustees of the Trust have simply ignored it. The blatant disregard for the preservation order is egregious and makes plain the necessity for the granting of an order for provisional sequestration. Commissioner for the South African Revenue Services v Shabangu and Another (121282/2023; 121275/2023) [2024] ZAGPPHC 1014 (15 October 2024) https://lnkd.in/dYCsKH3g

DISMISSAL AND DRUNK DRIVING ACCIDENT The respondent employee was employed by the applicant, South African Breweries (SAB). At the time of his dismissal, the respondent was an accounts manager at SAB. The respondent was provided with a company vehicle to use in the course of his duties. He was involved in a collision with the company issued vehicle resulting in the vehicle being written off. According to SAB, on account of the respondent’s version that he had only one alcoholic drink, SAB believed that this would not have caused the respondent to be over the legal blood alcohol limit. SAB was provided with a report from the SAPS which indicated that the respondent’s blood alcohol content at the time of the accident was four times the legal limit. The CCMA commissioner’s primary basis for finding that dismissal was not an appropriate sanction was that the investigation was withdrawn against the respondent at a particular point in time, and the respondent was dismissed only 22 months later when the charges were instituted. SAB argued that the commissioner failed to consider that the reason the investigation was withdrawn at the time was not because of any sense of forgiveness or condoning of the respondent’s conduct, but rather because of the respondent’s dishonesty in his written statement which did not shed light as to the true nature of the misconduct as well as the seriousness thereof. Had the respondent been honest in his written response, he would not have continued with his employment for a further 22 months, and such lapse in time would not have been a factor before the subsequent arbitration. Ultimately, the commissioner appears to have inadvertently rewarded the respondent for dishonest and deviant behaviour in the workplace. This was unreasonable. While it was not a charge on its own, the fact that the respondent was deviant and dishonest in his explanation to SAB regarding his level of intoxication, certainly reflects the respondent’s lack of remorse and trustworthiness and is indicative of the fact that progressive discipline would unlikely be successful. The respondent did not merely consume an insignificant cup or tot of alcohol but consumed a significant amount causing his blood alcohol level to be four times the legal limit. It was so excessive that it caused him to black out. The commissioner failed to consider the seriousness of the misconduct which was a breach of the legal alcohol consumption limit while driving. The applicant’s dismissal was fair. South African Breweries (Pty) Ltd v Commission For Conciliation, Mediation and Arbitration and Others (JR1584/21) [2024] ZALCJHB 383 (4 October 2024) https://lnkd.in/eQhps_tr

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RESTRAINT OF TRADE AND BEING ECONOMICALLY ACTIVE Mr Pillay was permanently employed by SGS in June 2004 as an inspector. Initially employed within SGS’ agricultural division, since 2006 his services were utilised within its minerals division. He informed SGS’ Regional Manager, Mr Ramlall, of his intention to take up employment with AHK, a known competitor in the field of testing and certification. He was reminded of his restraint of trade and confidentiality obligations and was advised to reconsider his future employment with AHK. Mr Pillay disputed that he was in possession of any of SGS’ confidential information or that AHK would obtain any unfair competitive advantage by virtue of his employment by it. SGS seeks to interdict Mr Pillay from being employed by AHK for the duration of the restraint agreement. By virtue of his position in its employ, Mr Pillay had forged relationships with SGS’s clients such that he was in a position to be able to influence their choice of service provider. It is evident that the nature of Mr Pillay’s functions whilst employed by SGS necessitated that he interacts with SGS’ clients on technical matters as one of his core duties. It is not, however, evident that in the performance of those functions he developed any close personal relationship with SGS’ clients which would enable him to induce their abandonment of SGS in favour of AHK. Whilst Mr Pillay would undoubtedly have to have been aware of SGS’ costings for the purposes of the preparation of quotations, he ceased to perform that function some one and a half years prior to his resignation. Mr Pillay stated that the consequences of enforcement of the restraint would render him incapable of working in the industry in South Africa, or anywhere else in the world, for the duration thereof, which would result in his complete financial ruin. Mr Pillay was employed by SGS for a period of 20 years, by far most of his working life. During that period, it is evident that he has acquired knowledge, skills and expertise in the field of the sampling of commodities. His abilities are, on SGS’ own version, such that his mere employment lends credibility to the services offered by an employer performing commodity analysis. It is difficult to imagine any position in either the logistics or transport industries which could benefit from his skills, and nor was the basis for such a suggestion explained, with reference either to Mr Pillay’s skills, or the type of job for which he may be otherwise qualified. In consideration of the parties’ competing interests the court is unable to find that SGS’ interest in the enforcement of the restraint agreement surpasses Mr Pillay’s interest in remaining economically active. An order enforcing the restraint would be unreasonable. The application is dismissed. SGS South Africa (Pty) Limited v Pillay and Another (D388/2024) [2024] ZALCD 36 (25 September 2024) https://lnkd.in/dPEW_zfE

RULE 43 – LIFESTYLE AND MAINTENANCE Gundelfinger AJ discusses a Rule 43 application where the parties had lived a comfortable, if not lavish, lifestyle. The applicant relied on the respondent for financial support and it appears that he was financially generous towards her, giving her expensive gifts including luxury motor vehicles, jewelry and designer clothing. They lived in an upmarket area and travelled abroad extensively. The respondent contends that the applicant is not financially constrained as she claims to be, which is evidenced by her recent purchase of an Audi Q5 RS worth R1,500,000. The court considers the parties’ respective means and orders the respondent to pay R65,000 monthly to the applicant, various expenses, and a first and initial contribution towards the applicant's legal costs in the sum of R1,000,000. The right to dignity is also impacted when a spouse is deprived of the necessary means to litigate. It has been established on the evidence and in argument that the respondent is a man of considerable financial means. He also has excellent prospects for future employment. The applicant alleges that she will need to employ the services of other experts such as an industrial psychologist to evaluate her future employability and income prospects and an actuary to determine her future financial needs to enable her to enter meaningful settlement discussions or mediation with the respondent. The applicant cannot be expected to liquidate her assets (which are meagre when compared to the respondent’s) to fund her litigation. The bill of costs presented by the applicant and the applicant’s claim for a contribution to her legal costs in the sum of R1 million is reasonable. F.B v J.B (2016/27614) [2024] ZAGPJHC 1003 (25 September 2024) https://lnkd.in/ejiTCWaY

CONTRACT AND TERM IMPLIED BY LAW The applicant is a specialist obstetrician and gynaecologist. The applicant exercised his admission privileges at the hospital until he was suspended from practice for one year by the Health Professions Council of South Africa (HPCSA), after he pleaded guilty to two counts of unprofessional conduct. The applicant’s period of suspension from practice ended, and his suspension was lifted. Towards the end of his suspension, the applicant made it known that he wished to return to the hospital. At a meeting, the respondent’s board of directors resolved not to reinstate the applicant’s admission privileges. The applicant’s principal case is that the agreement in respect of his admission privileges has never been lawfully terminated and that he has a contractual right to those privileges. The respondent’s case is that the agreement giving rise to the applicant’s admission privileges contained a term implied by law to the effect that the applicant’s admission privileges would terminate should he no longer be able to practise his profession. The respondent contends the effect thereof was that when he was suspended from practice and his registration was deemed to be cancelled under the HPSCA the admission privileges were terminated by operation of law. Admission privileges may only be exercised by a medical practitioner who is entitled to practice and that once the applicant was suspended and his registration was deemed to be cancelled, he could not exercise admission privileges at the hospital. There is nothing unjust, unreasonable or unfair in implying the term into the contract concluded between the applicant and the respondent. On the contrary, there is every justification for such a term to be imported into the contract having regard to the provisions of the Health Professions Act 56 of 1974. Similarly, there is nothing unreasonable or unfair in importing the term into the contract. The parties were free to agree that a suspension from practice would not result in the applicant losing his admission privileges and that they would merely be suspended. They did not so agree. They left the circumstances under which the admission privileges would terminate to their unarticulated understanding. There was no suggestion that this unarticulated understanding incorporated a term that that the applicant’s privileges would only be suspended in the event of his suspension from practice. Finally, there is no suggestion that the failure to agree such a term was due to any bad faith on the part of the respondent. The applicant’s admission privileges were terminated by operation of law upon his suspension from practice. Ramdhin v Rondebosch Medical Centre (Pty) Limited (18180/2024) [2024] ZAWCHC 287 (7 October 2024) https://lnkd.in/dPZWdG9j

PRIVACY AND YOUR INFORMATION ON THE INTERNET The applicant, Mr Botha, is an insurance broker and the owner of a farm. The respondent, Mr Smuts, is a wildlife conservationist and activist. Mr Louw encountered a dead baboon and porcupine in cage traps. The animals appeared to him to have been exposed to suffering and distress. Outraged by what he saw, Mr Louw photographed the dead animals in the cages. He shared them with Mr Smuts. Mr Smuts did a Google search for Mr Botha which produced his insurance brokerage name, location and telephone number. Mr Smuts sent the photographs to Mr Botha through WhatsApp. He also called him and inquired whether Mr Botha had the required trapping permits. Mr Botha indicated that he had the necessary permits but was not willing to discuss the matter any further. Mr Smuts published a post on Facebook with a photograph of animals trapped in a cage; a photograph of Mr Botha and his minor daughter; a Google search location of Mr Botha’s insurance brokerage address (also Mr Botha’s residential address) and telephone number. Mr Botha initiated urgent legal proceedings against the respondents to remove the post. The High Court granted urgent relief in the form of a rule nisi with an interim interdict ordering Mr Smuts to delete the post and refrain from posting further with reference to Mr Botha, his family, his addresses and his insurance brokerage.   The Supreme Court of Appeal judgment reversed the High Court judgment which had ordered Mr Smuts to remove all references to the applicant, his businesses and his family, from a post on the Facebook page of the Landmark Leopard and Predator Project. The High Court had also interdicted Mr Smuts from making any further posts on Facebook with such references. Did Mr Botha have a reasonable expectation of privacy in respect to his ownership and control of his farm (including the trapping activities) and a reasonable expectation of privacy in respect of his insurance brokerage address? And what of his home address? At the Constitutional Court, the matter has produced four judgments. The second judgment agrees with the conclusion that Mr Botha’s home address should not be published. However, it does so by considering the responses to the post to determine whether the post results in a breach of privacy. It asks the question whether, at the time that Mr Botha sued for interdictory relief, he had a reasonable apprehension of ongoing or future threats to his privacy caused by the ongoing publication of Mr Smuts’ post. This is a novel approach to the determination of whether there is a breach of privacy rights. It is tenable to determine privacy by the unknown variable of the public response to the post? Does this approach penalises the publisher of the information due to the inappropriate reactions of others?   Botha v Smuts and Another (CCT 40/22) [2024] ZACC 22 (9 October 2024)   https://lnkd.in/dq26GuTk