Legal Articles and Guides

The Auditor-General has been requested to carry out a forensic audit on the latest cost breakdown of improvements to President Jacob Zuma’s Nkandla home because the Department of Public Works did not provide this information to Treasury, the DA claims. According to a report in Die Burger, the Treasury noted in its report to the Constitutional Court that it had not managed to get the latest figures from Public Works. DA MP Patricia Kopane says it is ‘unacceptable’ that the department didn’t co-operate with Treasury, thus forcing the latter to make assumptions in its estimation of the costs to be paid by Zuma. ‘We therefore requested the office of the AG to investigate the department’s financial contribution to the Nkandla project and to bring the findings to Parliament.’ AG spokesperson Africa Boso says they will make a decision once the request is formally received.

The City of Tshwane has been interdicted from making a payment of R950m to its controversial prepaid smart metering service provider PEU Capital Partners. The order stands until the pending review of the original contract has been finalised, says a Moneyweb report. It notes that before reading the order of the Gauteng High Court (Pretoria), Judge Bert Bam said the more he reads about the matter (in court documents), the more concerned he gets.

The Land Claims Court has ruled that market value is not the sole determinant for compensation when land was being expropriated for restitution purposes, says a Business Day report. Although the judgment remained within the boundaries of the Constitutional Court’s and Land Claims Court’s earlier approach to expropriation, it emphasised that while market value should be considered, this was not the only factor. Acting Judge Tembeka Ngcukaitobi said that the Constitutional Court and Land Claims Court had adopted a two-stage approach to determine just and equitable compensation: first to determine the market value; then to consider the other factors. 

The recent decision by three traditionally Afrikaans universities – Free State, Pretoria and Stellenbosch – to give more emphasis to English as a medium of instruction and assessment has sparked an outcry by Afrikaans lobby groups, which are planning to take the matter all the way to the Constitutional Court if necessary. AfriForum has already challenged the decision in the Free State High Court where judgment has been reserved, notes a Business Day report. ‘Afrikaans has a right to survive. This ... is about the supremacy of the Constitution,’ Johan du Toit SC, representing AfriForum, argued in that matter. The report says those calling for Afrikaans universities to remain as such argue that the Constitution guarantees everyone education in their mother tongue. Their stanc e is that Afrikaans communities have a constitutional right to demand tertiary education in Afrikaans. ‘This matter is likely to go all the way to the Constitutional Court, which will need to clarify section 29 (2) of the Constitution, which guarantees the right to be taught in your mother tongue,’ says Alana Bailey, the deputy CEO of AfriForum.

The struggle by a US-based Cape Town father for custody of his daughter is in the hands of Western Cape High Court Judge Siraj Desai after a Ohio court ruled against him, finding an earlier order he had obtained for temporary sole parental rights and responsibilities had been improperly granted. The man has a claim pending in the Western Cape High Court in terms of The Hague Convention for the return of the child to the US, notes a Weekend Argus report. His wife has countered that they were married by Muslim rites only and therefore their marriage was not recognised as valid, which, according to her lawyers, means she has sole custody of the child, unless a court orders otherwise.

The SA Human Rights Commission says it has taken racist ranting motorist Vicki Momberg to the Equality Court for hate speech. According to a News24 report, the commission said it has been aware of the issue as early as February after the police officer involved in the incident lodged a complaint. South Africans reacted with outrage after eNCA released a video of a visibly upset and highly charged Momberg after a smash-and-grab incident in Johannesburg. In the clip, she is reportedly seen clutching a phone and shouting, ‘One k***** is bad enough. This happens all the time, all the time. The k****** here in Joburg are terrible. I'm so sick of it.’

The silicosis case was back in court yesterday (Thursday), with lawyers representing mine workers arguing that allowing gold-mining companies to appeal against the Gauteng High Court (Johannesburg) landmark class action judgment would delay the resolution of the case, while litigants were dying without compensation, says a Business Day report. It notes May’s class-action certification judgment paved the way for billions in claims by former goldmine workers suffering from silicosis and tuberculosis. The size and scope of the class action is unprecedented. If the lawsuit were to go ahead on the basis certified by the High Court, it will be against almost all the major mining companies involved in goldmining in SA since 1965, including parent companies. It would cover their conduct for more than 50 years and th ere could be between 17 000 and 50 000 claimants. 

The courts system has been transformed so that all courts up to the Constitutional Court are led by black men and women, Chief Justice Mogoeng Mogoeng told the Black Managment Forum on Friday, notes a Sunday Tribune report. Speaking at the forum’s 40th anniversary celebration, he said 65% of the country’s judges were now black. ‘There are 1 233 magistrates, of which 741 are African, which represents 60%, and 545, or 44%, are women. Seven of the nine Regional Court presiding officers are Africans – 78%. Of the 17 Chief Magistrates, eight are African and 10 are women,' he said. ‘Nelson Mandela said he felt like a black man in a white man’s court because the police officer, prosecutor and the judicial officer were all white. Now the court system has been transforme d. The prosecution and the police have been similarly transformed. Madiba would be proud to learn that his dreams are fast becoming a reality,’ noted Mogoeng.

The Western Cape High Court has blown the lid off a practice which sees attorneys charge hefty fees to lodge batches of standardised, unopposed voluntary surrender (forced sequestration) applications in instances where they could have offered better solutions to their debt-ridden clients, says a report in The Sunday Independent. Judge Lee Bozalek estimated that one firm must have been taking around 80 applications a month to court. ‘The same valuator and the same method of valuation has been utilised in each case, and more than adequate provision has been made for the attorneys’ fee, including minor disbursements, in amounts ranging between R14 000 and R15 000,’ he said. He expressed his concerns in a recent judgment handed down in several separately-lodged applications for volun tary surrender, but it wasn’t the first time he had raised the issue. ‘Very little, it seems to me, if anything, has changed, and these applications are still being brought in significant numbers,’ he said. The Debt Counsellors Association of SA described the practice as an exploitation of the Sequestration Act. Association president Paul Slot said sequestrations were costly, and not the best option for consumers with small amounts of debt and no major assets.There are three options open to consumers who find themselves trapped in debt – sequestration, administration and debt review. The best option was debt review, although it was the one used the least.

A Durban woman, Mary Govender, has lodged a complaint with the Equality Court after Magistrate Ismail Malek voiced his disapproval of her wearing a 'low cut' dress when she appeared briefly before him in October in a SARS matter. Govender, who considers her dressing to be 'glamorous with a little bit of sexy', demanded in her application that Malek apologise and pay R50 000 damages for 'demeaning' her in open court, notes a Sunday Tribune report. However, on Friday, Malek, who was represented by Advocate Joe Nxusani SC, asked Magistrate Gert van Rooyen, to discharge the matter. He said Govender’s legal team had failed to make a case in presenting their argument. Malek is not liable to pay damages because, as a judicial officer, he has immunity from civil claims. The advocate said the immunit y could be waived only if Malek had acted with malefide intent. But, Nxusani said, no such intent had been proved against Malek. Govender’s attorney, Dennis Matotoka asked: 'Are judicial officers above the law and cannot be held accountable? I concede there is initial immunity, but we have the Constitution and Malek’s conduct has to be consistent with the Constitution, especially when it degrades and undermines.’ The attorney also told Van Rooyen that if he granted Nxusani’s application it would deny the court the opportunity to test Malek’s evidence.

KZN High Court (Durban) Judge Themba Sishi has ordered the state to pay up after Thabani Biyela was arrested and held for months on a rape charge of which he was ultimately found not guilty, says a report in The Mercury. Sishi said the arresting officer had ‘failed miserably’ to analyse the complainant’s statement given to him before Biyela’s arrest. ‘He did not have good grounds for suspecting the plaintiff,’ the judge said. Biyela was arrested at his Cato Crest home in February 2012. He spent just under eight months behind bars, during which time he was tried and found not guilty. According to his evidence, the warrant officer who arrested Biyela was acting on information from the mother of a young rape victim that Biyela was the rapist. She led police to his house and she and her daughter pointed him out, the warrant officer said. The defendants were ordered to pay Biyela damages, the amount of which was yet to be determined.

The Gauteng High Court (Johannesburg) ruled recently that the Ekurhuleni Metropolitan Municipality could not cut off power to a tenant with a utility bill in its own name to force the landlord to pay outstanding rates, says a report in The Mercury. The court was ruling on an appeal in a dispute between the Ekurhuleni Municipality and Anzotrax, which trades as Topbet Germiston. The court was so annoyed by the metro’s litigation that it awarded a punitive costs order against it. Local legal experts said, however, this did not mean that the decision was binding on other provincial High Courts. They said it could only have a national implication once it went to the SCA or the Constitutional Court. In the case, the municipality had claimed it was allowed to disconnect in accordance with its cred it and debit control policies, which allowed it to consolidate separate accounts on the basis of the owner and tenant being jointly and severally liable for payment of all debts owing in respect of the property. The judges felt that this could ‘lead to manifest absurdities and could never have been the intention of the lawgivers’. They found there was ‘no legal basis’ for holding an owner or landlord and a tenant liable in regard to the owner’s rates and taxes. A punitive costs order was imposed on Ekurhuleni.