Southern African Legal Information Institute (SAFLII)

SAFLII Weekly National and Provincial Gazette Update.

HEARSAY EVIDENCE AND ALLEGATIONS OF "K" WORD AT WORK The appellant, CTP Gravure, operates as a printing company engaged in the printing of magazines and brochures. The employee, Mr Hlongwane, commenced employment with the appellant in 2005, and at the time of his dismissal, he was employed as an operator. The employee further served as a shop steward of the union. The employee attended a section 189A facilitation meeting where he alleged that the appellant had engaged the employment services of nine casual workers. A heated discussion later ensued, regarding these allegations, between the employee and Logtenberg, the Divisional Managing Director. The employee lodged an internal grievance against Logtenberg, alleging that he had used abusive language towards him. Lawrence, the Production Manager, later came to learn, from numerous employees, that the employee was alleging that Logtenberg had used the “k” word during their confrontation. The employee was fired after a disciplinary hearing in his absence, on charges that he made false, malicious and damning allegations against Logtenberg, in that he misrepresented the fact that Logtenberg referred to him by using the “k” word. In the arbitration award, the arbitrator at the bargaining council refused to admit the hearsay evidence led by the appellant, and, as no other evidence was presented to sustain its case that the employee had committed the misconduct alleged, it was determined that the appellant failed to establish any wrongful conduct on the part of the employee and the dismissal was found to be unfair. The Labour Court dismissed the review application. The arbitrator only made his ruling on the admissibility of the hearsay evidence in his arbitration award. The prejudice to the parties, particularly the party leading the hearsay evidence, in receiving a belated section 3(1)(c) ruling on the admissibility of its evidence at judgment or award stage is obvious: such party leading the hearsay evidence is unable to decide whether to lead further evidence in light of the ruling. However, in this case not only did the arbitrator find that the hearsay evidence was oral in nature, he also found that the evidence presented by Lawrence, in respect of specific employees, constituted third or even fourth-hand hearsay evidence where the employees who had reported to Lawrence had heard the rumour from their fellow co-workers or the “shop floor”. Importantly, it was the evidence of the appellant that it had no intention to call the other employees to give evidence against the “errant” employee. The court does not believe that there are sufficient grounds to set aside a (on the whole) reasonable arbitration award in a case where the appellant’s case was solely based on a workplace rumour.

Medupe and Others v African National Congress and Others (003/2024) [2025] ZASCA 22 Summary: Administrative law – constitution of a voluntary association – interpretation of rule 12.2.4 of the African National Congress constitution – the constitution the rules and regulations issued in terms thereof, constitute an agreement between members and the voluntary association – to be interpreted in accordance with principles applicable to the construction of contracts – legal principles restated. 👉: https://lnkd.in/eP33wV2P

FAMILY DISPUTE AND CURATOR BONIS The applicant noticed significant cognitive decline in his father, the respondent, leading to concerns about his capacity to manage his affairs. The respondent, a 79-year-old restaurateur with significant assets, including the well-known Willoughby’s restaurant, has shown signs of dementia, including memory loss, impaired judgment and difficulty managing his affairs. The applicant alleges that his sister and aunt, along with their spouses, have taken control of their father’s finances and restricted his communication with him. Two medical practitioners, Dr Spammer and Dr Mason, confirmed the respondent’s cognitive decline and recommended the appointment of a curator. Despite the respondent’s claims of having a trusted support system, his cognitive decline, particularly in executive function, severely impacts his ability to make informed decisions. There are concerns about potential exploitation by family members and the cancellation of follow-up medical appointments. The medical evidence, including the reports of Dr Spammer and Dr Mason, supported the need for a curator. An independent expert, Prof Niehaus, appointed to review the medical evidence, confirmed the need for a curator. The applicant had proven, on a balance of probabilities, that the respondent suffers from a major neurocognitive disorder (dementia) that renders him incapable of managing his affairs. The respondent’s trusted support system was insufficient to protect him from potential exploitation and mismanagement of his assets. The need for the curator to investigate family tensions and propose ways to reduce acrimony was emphasized, given the deep divisions within the family. The papers are sadly replete with the reality that the financial success of the applicant and the wealth of the family had resulted or contributed in significant conflict and deep division within the family. Different caucus groups have formed together with outsiders actively opposing each other, creating a hostile, combative and tense atmosphere. It is apparent however that during this feud, suspicions and negative emotions towards polarised groups, anger, resentment, bitterness and self-preservation have become a prevalent feature within the family dynamic. It is hard to imagine that a young Jens Tibshraeny, with the support of his wife, Elizabeth, had started a business which had boomed into success with hard work and sacrifice, only to have its exponential achievements haunt them in their old age and divide their family. Tibshraeny v Tibshraeny (5299/2024) [2025] ZAWCHC 117 (18 March 2025) https://lnkd.in/dwtY6BUy

PURE ECONOMIC LOSS AND HIJACKED BUILDING Changing Tides is the owner of a property in Jeppe Street, Johannesburg, on which is fixed an 11-story building known as Chung Hau Mansions. It brought an application to evict approximately 249 men, women and children who were unlawfully occupying the property. The property was colloquially referred to as a "hijacked building". An order was granted in 2012 in terms of which the City of Johannesburg was directed to provide all those whose names appear in the document entitled "List of Residents of Chung Hua Mansions” with temporary shelter where they may live secure against eviction, in a location as near as possible to the area where the property is situated, by a certain date, provided that they are still resident at the property and have not voluntarily vacated it. Changing Tides contended that the City’s failure to comply with the order not only caused it to suffer financial damages but was also wrongful and resulted in the infringement of the occupier’s right to adequate housing in terms of section 26(1) of the Constitution in that it left them to live in increasingly squalid and dangerous conditions. Further, it deprived Changing Tides of its right to property in contravention of section 25(1) of the Constitution for three years in that it could not renovate the property and rent it out to students until early in 2017, when it ought to have been able to do so in early 2014. Changing Tides’s case is one of pure economic loss. It was apparent that the City failed to accommodate the occupiers and that the accommodation tendered was either non-existent, inadequate or unacceptable. On behalf of Changing Tides, it was submitted that the City of Johannesburg lacked the political will or intention to comply with its legal and constitutional duty, and its supine attitude resulted in an ongoing breach of the rights and caused Changing Tides to suffer financial loss. In circumstances where the City of Johannesburg agreed to the dates set out in order, in the full knowledge of all the relevant factors, Changing Tides submitted that there could be no question that the latter’s wrongful conduct was, at best, grossly reckless. The court agree with Changing Tides. Changing Tides suffered a loss of income for three years. The expert witnesses have agreed on the quantum of damages. The conduct of the City and its Stalingrad approach to the litigation from the commencement of the dispute justifies an order of costs on a punitive scale between the attorney and own client. The City must pay the plaintiff damages in the amount of R12,374,993 with mora interest of 11,75% per annum from the date of summons to the date of final payment. Changing Tides 74 (Pty) Ltd v City of Johannesburg (40135/2016) [2025] ZAGPJHC 279 (14 March 2025) https://lnkd.in/dxtaCXsp

OCCUPATIONAL HEALTH AND SAFETY — CHAIRS AT WORK The chief inspector of Occupational Health and Safety had upheld contravention notices issued by inspectors under the Occupational Health and Safety Act 85 of 1993 (OHSA). The notices alleged that the appellant, Truworths, had failed to comply with Regulation 8(b) of the Facilities Regulations (FR), which requires employers to provide seating facilities for employees who normally work standing, where reasonably practicable. The inspectors directed Truworths to provide seats with backrests at cash desks in two of its stores. Truworths appealed to the Labour Court under section 35(3) of OHSA, seeking to set aside the contravention notices and the chief inspector’s decision. What the two inspectors needed to consider, when conducting an inspection in the stores of the appellant, relating to compliance with section 8 of the FR, were the following factors. First, are employees that perform their work whilst seated provided with an ergonomically sound seat? The answer is that this is not applicable, as the employees do not ordinarily perform their work whilst seated. Second, are the employees that ordinarily perform their work standing in the store provided with an opportunity to sit in order to rest? The answer to this question was in the affirmative. And finally, are seats with backrests provided where the work performed by employees allow for such seats to be used? The answer to this last consideration is also that it is not appliable, because the employees do not perform their work whilst seated. It follows that section 8 of the FA was not contravened. The inspectors did not seem to understand what their duties actually were, and gave unfounded directions based on a misapplication of the FR. The inspectors had not been issued with the required certificates under section 28(2) of OHSA, rendering their inspections and contravention notices invalid. Even if the certificates were not required, the inspectors had misapplied Regulation 8(b) by dictating where seating should be placed without considering what was "reasonably practicable." The inspectors failed to assess whether seating was available elsewhere in the stores or whether the employees' work could be effectively performed while sitting. The chief inspector further erred by placing an onus on Truworths to prove that providing seating at the cash desks was not reasonably practicable and by considering an irrelevant factor (the lack of a hazard assessment) that was not raised in the contravention notices. The appeal was upheld. The contravention notices were set aside.

Aveng Mining Shafts and Underground v Commissioner for the South African Revenue Service (1192/2023) [2025] ZASCA 20 Summary: Value-Added Tax Act 89 of 1991 (the Act) – vendor conducting enterprise of shaft sinking and mining construction activities – whether input tax on charges for accommodation and food acquired by vendor for specific project employees deductible from output tax – s 17(2)(a)(i)(bb) of the Act – whether accommodation and food acquired for making taxable supplies of entertainment in the ordinary course of vendor’s enterprise – whether supplied to employees for a charge – if so, whether all direct and indirect costs of such entertainment covered. 👉: https://lnkd.in/dZynCz89

SAFLII Weekly National and Provincial Gazette Update.

LIFE INSURANCE POLICY PAY-OUT REFUSED A life insurance policy was issued in respect of which Ms Naidoo was the nominated beneficiary. The policy was taken out by the plaintiff’s late mother, Sandra Naidoo, who died of natural causes in 2016, after a short illness. Mr Subbiah was the insurance broker, acting as an intermediary and independent financial advisor of the late Sandra Naidoo, at the time of the inception of the life insurance policy. Upon the death of Sandra Naidoo, the plaintiff, as the nominated beneficiary, sought payment from Discovery in accordance with the contractual terms. However, Discovery notified the plaintiff in writing that the claim was rejected, and the contract was declared void by reason, inter alia, of Sandra Naidoo having misrepresented her income in her application, stating that she earned R35,000 per month in her declared “nominated occupation” as a supervisor at Shoprite Checkers, Chatsworth. Instead, her gross income earned was only R5,455.89 per month. In addition, Discovery averred that Sandra Naidoo breached the contractual requirement to disclose, in good faith, to Discovery a simultaneous application for life insurance with any other insurer. Discovery averred that Sandra Naidoo had simultaneously applied for a life policy with Old Mutual. Discovery’s position, further, is that if Sandra Naidoo had disclosed her simultaneous application for life cover with Old Mutual, Discovery would have provided her with significantly lower life cover (based on the fact that she had already succeeded in obtaining cover with Old Mutual), or it may have decided not to offer her any cover at all on the basis that she was covered to the fullest extent, based on her age and verifiable income. An investigator for Discovery made a report that there were a number of policy's taken with Discovery in which Mr Subbiah featured prominently as a broker. Between the period 2014 to 2016, Mr Subbiah was the broker to no less than eight clients who had pacemakers inserted. The investigator discerned a wider pattern involving a number of insured clients who had pacemakers inserted, including Mr Dhurgasamy, who was in a long term relationship with Sandra Naidoo. A closer scrutiny of her bank accounts reveals payment of large sums received from a number of persons, many of whom who were associated this syndicate. There was no proper explanation from the plaintiff or Mr Dhurgasamy as to the movement of large amounts of money into and out of Sandra Naidoo’s account. Under cross examination, Mr Dhurgasamy confirm that he consulted with the plaintiff and her legal team in preparation for his evidence, and that he too was engaged in litigation against Discovery. Naidoo v Discovery Life Limited and Another (10163/2016) [2025] ZAKZDHC 9 (13 March 2025) https://lnkd.in/dV-eyWkp

CHILDREN TO BE TOGETHER The case involves a dispute between the applicant (father) and the first respondent (mother) over the primary care of their two minor children, S (born in 2017) and M (born in 2021). The parents, who are married but separated, initially agreed that the father would move to Johannesburg with S to seek employment, while the mother and M would follow later. However, the mother decided not to move to Johannesburg. The father chose not to return to Pietermaritzburg when he received that news, but remained in Johannesburg with S. Thus, for the past three years, the two children born of their marriage have remained separated from each other: M with her mother and S with his father. The father had a history of drug addiction and had relied heavily on his extended family to care for S, while the mother had been the primary caregiver for M. The mother was not herself blemish-free as regards the use of substances. While the father’s drug addiction had worsened and had led him to use increasingly more addictive substances, the mother’s own substance use did not escalate, and she did not follow him down the slippery road to harder drug use. Due to his addiction, the father was twice admitted to treatment centres to help rid him of his dependency. It is important to keep siblings together and there exists a need to prioritize the best interests of the children over the parents’ personal interests. Sharing a home and a relationship with a sibling allows a child to observe and copy social skills already possessed by their sibling and being with a sibling helps the development, over time, of emotional intelligence. The father had acted in his own interests rather than the best interests of the children. He had chosen to remain in Johannesburg despite the opportunity to return to Pietermaritzburg, where the children could have been reunited. His actions had disrupted the family unit and placed his needs above those of his children. A proposed consent order that would have maintained the status quo of separation was rejected, as it was formulated at the instance of the father in an attempt to salvage something from what was becoming a desperate situation for him, and it did not serve the children’s best interests. The primary care of both children was awarded to the mother, with the father granted specific contact rights, including weekend visits, shared school holidays, and daily telephone/video contact. D.R.R v S.D.R and Another (8947/2022P) [2025] ZAKZPHC 26 (13 March 2025) https://lnkd.in/dPNB59Gk