Articles

JUSTICE NEWS ( 12 January 2024,[email protected])

JUSTICE NEWS ( 12 January 2024, [email protected] )

A.      Today, Friday, 12 January 2024, in Daly v Road Accident Fund ( full citation thereof is obtainable on request),  South African High Court, Northern Cape Division, Kimberley, ordered the Road Accident Fund(RAF) to pay the plaintiff compensation for 100% of her proven or agreed damages resulting from the injuries she sustained in the motor vehicle collision which occurred on 21 June 2015.  RAF was also ordered to pay R1,500.000.00 for loss of earnings, to undertake in writing to pay 100% of the costs for future accommodation in a hospital or nursing home or any other medical treatment,  and to pay the plaintiff’s costs and expert witnesses’ reasonable fees. Although it was a long legal battle, this case shows that sometimes justice delayed is not necessarily denied.

• Author: Adv. MD Maluleke,12 January 2024

JUSTICE NEWS ( 11 January 2024,[email protected])

JUSTICE NEWS ( 11 January 2024,  [email protected])

1.       On 10 January 2024 High Court of South Africa Gauteng Division, Johannesburg, granted a decree of divorce, dissolving the marriage of a very long duration. The Court also granted a partial forfeiture of patrimonial benefits of marriage against the husband on grounds of substantial misconduct on his part, in that he was abusive toward his wife and children. The abuse was ongoing and persistent, with a lasting effect.  Furthermore, he did not contribute much to the joint estate.  However, his wife, in addition to having made bigger contribution to the joint estate, also had to fulfill the traditional role of a housewife, mother, and homemaker.

NB: FULL JUDGMENT OR CITATION THEREOF IS OBTAINABLE ON REQUEST  VIA EMAIL: [email protected]

• Author: Adv. MD Maluleke, 11th January 2024

JUSTICE NEWS ( 10 January 2024,[email protected])

JUSTICE NEWS ( 10 January 2024, [email protected])

1. On 9 January 2024  the Appeal  Court in Mbombela, Mpumalang,  South Africa, dismissed the appeal with costs, including costs of Senior Counsel and Junior Counsel[1]. The unsuccessful appeal was against the High Court’s order requiring the appellants( i.e the trustees of the trust ) to provide the minor child’s representative and the executrix of the deceased’s estate with supporting documents to account for  R 800 000,00 difference between R4 200.000.00 loan amount the executrix of the deceased estate was aware of and R3 4000.000.00 less loan amount reflected in the furnished financial statement of the trust. Both the High Court and the Appeal Court held that the trustees are under duty to explain themselves, to justify their actions and conduct, to maintain accounts and to be ready with correct accounts of all their dealings and transactions carried on during the currency of the mandate.

• Author: Adv. MD Maluleke,10th January 2024

JUSTICE NEWS

JUSTICE NEWS ( 9^TH January 2024, [email protected] )

1.       On 5^th January 2024 North West High Court, Mafikeng, South Africa, found that it lacked necessary jurisdiction over the matter because the plaintiff did not reside within its area of jurisdiction, but resided in Springs, Gauteng, falling within the area of jurisdiction of Gauteng High Court Division. It then dismissed the plaintiff’s application for default judgment for R600 000 Facebook defamation claim. No order as to costs was made.

2.       In its judgment, the Court re-affirmed these trite principles :  A court can only adjudicate a dispute over which it has jurisdiction. A judgment or an order granted in the matter where it lacks jurisdiction, is a nullity. A civil court has jurisdiction in an area  where the cause of action arose or where the defendant resides.

ADV. MD MALULEKE’S COMMENT: Nothing in this judgment precludes the defendant from instituting the proceedings or legal action afresh in a competent court having necessary jurisdiction over the matter.

• Author: Adv. MD Maluleke,9th January 2024

PENDING APPEAL PROCESSES

PENDING APPEAL PROCESSES

1.       Under the authority of section 18(1) of the Superior Courts Act 10 of 2013, as amended ( “SCA” ), the default position is that an application/Petition for leave to appeal or an appeal against a final decision automatically suspends the operation and execution of such final decision pending a decision of such application/petition or of such appeal, unless:

1.1.the judgment creditor or any other  interested party ( “ Applicant”)  applies to Court to order otherwise ( for example, to make an order giving leave to the judgment creditor to execute the impugned  final judgment,  pending appeal processes),

1.2.the Applicant proves on a balance of probabilities that he/she/it will suffer irreparable harm if the Court does not order otherwise, and that the other party will not suffer any irreparable harm if the Court orders otherwise, and

1.3.the  Court under exceptional circumstances  orders otherwise  (for example, the Court makes an order staying the execution of the impugned  final judgment, pending appeal processes).

2.       Under the authority of section 18(2) of the  SCA,  the default position is that an application/Petition for leave to appeal or an appeal against an interim  decision( i.e. an interlocutory order not having the effect of a final judgment ) does not  automatically suspend  the operation and execution of such  interim  decision pending a decision of such application/petition or of such appeal, unless:

2.1.The judgment debtor  or any other  interested party ( “ Applicant”)  applies to Court to order otherwise ( for example, to make an order staying execution of the impugned  interim  judgment,  pending appeal processes,

2.2.the Applicant proves on a balance of probabilities that he/she/it will suffer irreparable harm if the Court does not order otherwise, and that the other party will not suffer any irreparable harm if the Court orders otherwise, and

2.3.the Court under exceptional circumstances  orders otherwise  (for example, the Court makes an order staying the execution of the impugned  interim  judgment,  pending appeal processes).

3.       Where there is an automatic stay in terms of section 18(1) of the SCA or in terms of an order of court, no execution can be carried out. Any execution which might be carried out is a nullity( see case law cited in the posted article above).

4.       If a court orders otherwise, as contemplated in subsection 18(1) of the SCA, the aggrieved party has an automatic right of appeal to the next highest court, and if such appeal is noted, the appeal  court must deal with such appeal as a matter of extreme urgency; and such impugned order will be  automatically suspended pending the outcome of such appeal [ see section 18(4) of the SCA].

Written by Adv. MD Maluleke , Sunday,30/07/2023 , Email: [email protected]

• Author: Adv. MD Maluleke, 31 July 2023

LEAVE TO APPEAL OR, OF NOTING OF AN APPEAL, AGAINST A FINAL

THE LEGAL EFFECT OF THE FILING OF AN APPLICATION( OR PETITION) FOR LEAVE TO APPEAL OR, OF NOTING OF AN APPEAL,AGAINST A FINAL JUDGMENT/FINAL ORDER OF THE COURT BELOW

1. On 18th July 2023 I was briefed to move an urgent application on behalf of the Municipality in the South African Labour Court. The urgent application was successful, in that the Court granted the urgent relief in favour of the Municipality and set aside the unlawful enforcement of the arbitration award and granted a stay of any further execution pending the appeal processes. Here are the salient facts of the case.
2. The Municipality dismissed the employee for serious misconduct. The employee referred the unfair dismissal dispute to conciliation, but to no avail. Thereafter, an arbitrator was appointed to resolve the dispute through arbitration.
3. On 9th February 2019 the arbitration award was issued in favour of the employee and the Municipality was ordered to reinstate the employee. Aggrieved by this award, the Municipality applied to the Labour Court for review.
4. The employee successfully opposed the review application. On 12th April 2023 judgment was delivered in favour of the employee, dismissing the review application.
5. On 04th May 2023 the Municipality delivered an application for leave to appeal which, once delivered, resulted in an automatic suspension of the enforcement of the underlying arbitration award pending appeal processes.
6. On 30th June 2023 the employee, despite being aware that leave to appeal application is still pending before the Honorable Labour Court, knowingly obtained notice of enforcement of the arbitration award without specifying an amount of judgment debt and an amount of interest therein.
7. On 07 July 2023 the Sheriff of the Court, acting upon the employee’s instructions, effected notice of attachment in execution and attached the Municipality’s movable assets and demanded payment be made to him within four(4) days, failing which , he would return to the Municipality’s premises and remove its attached movable assets/property.
8. On the 10th July 2023 the Municipality’s attorneys provided the Sheriff of the Court with a copy of the filed application for leave to appeal and called upon him to suspend execution pending the appeal processes. On 11th July 2023 the Sheriff of the Court refused to do so, saying that he would continue to remove the Municipality’s attached assets after the expiry of the given 4 days without payment being made to him.
9. On 12th July 2023 copies of the urgent application were duly served upon the Sheriff of the Court and the employee, notifying them that the urgent application would be heard on 18th July 2023. The following day, 13rd July 2023, the urgent application was filed with the Registrar of the Honorable Court.
10. Despite having received the copies of the urgent application, the Sheriff of the Court and the employee refused to voluntarily stay the enforcement of the award pending the appeal processes.
11. On 18th July 2023 the Labour Court granted an urgent order in favour of the Municipality, and set aside the unlawful enforcement of the arbitration award and granted a stay of any further execution pending the appeal processes. This decision is a correct decision.
12. It is clear from the provisions of section 18 of the Superior Courts Act 10 of 2013, as amended ( “SCA”) that, in the absence of the Court having ( under exceptional circumstances shown in an application by the other party) ordered otherwise, the default position is that the operation and the execution of the underlying arbitration award, final judgment or final order of the Court below is automatically suspended by the operation of law pending the decision of the application for leave to appeal, or of a petition for leave to appeal, or of an appeal1. Despite being fully aware of this default position, the Sheriff of the Court and the employee knowingly disregarded this default position and refused to stay the enforcement of the arbitration award pending the appeal processes.
13. The prevailing Statutory provision and the accepted common-law rule of practice in our courts is that, unless the court, on the application by a party, otherwise orders, the execution of a judgment is automatically suspended upon the filing of the application for leave to appeal, or of a petition for leave to appeal, or of a notice of appeal, with the result that pending the leave to appeal application, or a petition for leave to appeal or an appeal, the judgment cannot be carried out and no effect can be given thereto. If execution , by some oversight or otherwise, is allowed to proceed, such execution is a nullity2.
14. In light of above, it is respectfully submitted that on 18th July 2023 the matter was indeed urgent and was correctly heard as one of urgency in terms of Rule 8 of the Rules of the Labour Court and that the con- compliance with the Rules was correctly condoned.
15. Enforcement of the award and the Sheriff’s Notice of attachment were correctly set aside. The amount of judgment debt and mora interest allegedly due in terms of the arbitration award were not specified in the enforcement of the award document. Therefore, the process of execution had been issued for the levying and raising of an amount not specified in the enforcement of award document.
16. In any event, execution was a nullity because it had been allowed to proceed in the face of the law saying that, unless the court, on the application by a party, otherwise orders, the default position is that the execution of a judgment is automatically suspended upon the filing of the application for leave to appeal, or of a petition for leave to appeal or of an appeal, with the result that pending the leave to appeal application, or a petition for leave to appeal or a notice of appeal, the judgment cannot be carried out and no effect can be given thereto.
17. Furthermore, a Stay of any further execution was correctly granted so as to prevent the Sheriff and the employee from starting the execution process afresh which would have , in turn, induced the Municipality to bring another urgent application in the Labour Court for a stay of the operation and the execution of the arbitration award pending the decision of the application for leave to appeal, or of a petition for leave to appeal, or of an appeal.
18. To sum up, the legal effect of the filing of an application ( or, a petition ) for leave to appeal or, of the noting of an appeal, against a final judgment or a final order of the Court below is that, unless the court, on the application by a party, otherwise orders, the execution of a judgment is automatically suspended, with the result that pending the appeal processes, the judgment cannot be carried out and no effect can be given thereto. If execution , by some oversight or otherwise, is allowed to proceed, such execution is a nullity3.

• Author: Adv. MD Maluleke, 26th July 2023, Johannesburg, South Africa.