De Vos NO and others v Minister of Justice and Constitutional Development and others 2015 (9) BCLR 1026 (CC)

OVERVIEW

The question the court dealt with was whether the operation of section 77(6) of the Criminal Procedure Act 51 of 1977 unjustifiably limited or threatened the rights to freedom of persons and the rights of children.

Furthermore, whether the lack of judicial discretion in the application of both subparagraphs 77(6)(a)(i) and (ii) was unconstitutional.

 FACTS

The cases of Mr Llewellyn Stuurman and Mr Pieter Snyders were consolidated and heard together because of the similarities between the relief claimed as well as the legal principles the claims we based. Both were men suffered from mental disabilities and were facing charges of murder and rape respectively. They were represented by their mothers as court appointed curators' ad litem.

Stuurman

Mr Stuurman is charged with murder, having allegedly stabbed a 14 year old girl to death on 10 June 2005 when he was also 14 years old. During the the trial in the regional court in Oudtshoorn, he was referred by the court for observation in terms of sections 77(1), 78(2) and 79(2) of the CPA.

It appeared from the evidence that Mr Stuurman had sustained a serious head injury at the age of 5, which left him severely mentally handicapped. The three psychiatrists who examined him expressed differing opinions on certain aspects, but were unanimously of the view that he would be unable to understand basic court proceedings.

Snyders

Mr Pieter Snyders was born with Down syndrome and as a result he had cognitive deficits. In 2013, Mr Snyders was arrested and charged with the rape of an 11 year old girl. According to the complainant, the rape happened five to six years earlier.

When he appeared at the Blue Down's Magistrate's Court, he was referred in terms of section 77(1) of the Act to an enquiry in order to determine his capacity to understand the proceedings.

The enquiry found that Mr Snyders was born with Down syndrome with moderate grade mental retardation. Their clinical diagnosis of him was one of "moderate mental retardation".

In terms of section 79(4)(c), he was found to be unfit to stand trial and in terms of section 79(4)(d), he was found to be "not able to appreciate the wrongfulness of the alleged offence and act accordingly". It was found that Mr Snyders would not be able to stand trial as his cognition would never improve.

The magistrate ordered in terms of section 77(6)(a)(i) that he be detained in a psychiatric hospital or prison pending the decision of a judge in terms of section 47 of the Mental Health Care Act. The matter was reviewed because the magistrate failed to enquire if there was insufficient evidence to satisfy the court on a balance of probability that the accused had committed the act that he had been charged with. The High Court set aside the order, sent is back to the Magistrates Court.

HIGH COURT summary

The court found that section 77(6)(a) did not permit a presiding officer to (a) determine whether an accused person continued to be a danger to society, (b) evaluate the individual needs or circumstances of that person, or (c) consider whether other options were more appropriate in the light of the individual circumstances of the accused.

Section 77(6)(a) is overbroad. It limits or threatens the rights of persons to freedom and the rights of children. The limitations are not justifiable in terms of the limitations clause, are inconsistent with the Constitutions and are therefore invalid. The declaration was referred to the Constitutional Court for confirmation.

IN THE CONSTITUTIONAL COURT

In Constitutional Court declined to confirm the High Court order. The court found section 77(6)(a)(i) inconsistent with the Constitution and invalid to the extent that it provided for compulsory imprisonment of accused persons and compulsory hospitalisation of children. It allowed the presiding officer no discretion to deal with the child appropriately.

There was no appropriate procedural safeguard accompanying the deprivation of freedom mandated by section 77(6)(a)(ii), under which a person was more readily institutionalised without the ordinary safeguards prescribed by the Mental Health Care Act. The effect of this provision was an arbitrary deprivation of freedom.

PRECEDENT

The Court made an order declaring section 77(6)(a)(i) and 77(6)(a)(ii) to be inconsistent with the Constitution and invalid to the extent that it provides for compulsory imprisonment of an adult accused person and compulsory hospitalisation or imprisonment of children.

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De Vos NO and another v Minister of Justice and Constitutional Development [2014] 4 All SA 374 (WCC)

OVERVIEW

The question the court dealt with was whether the operation of section 77(6) of the Criminal Procedure Act 51 of 1977 unjustifiably limited or threatened the rights to freedom of persons and the rights of children.

Furthermore, whether the lack of judicial discretion in the application of both subparagraphs 77(6)(a)(i) and (ii) was unconstitutional.

 FACTS

The cases of Mr Llewellyn Stuurman and Mr Pieter Snyders were consolidated and heard together because of the similarities between the relief claimed as well as the legal principles the claims we based. Both were men suffered from mental disabilities and were facing charges of murder and rape respectively. They were represented by their mothers as court appointed curators' ad litem.

Stuurman

Mr Stuurman is charged with murder, having allegedly stabbed a 14 year old girl to death on 10 June 2005 when he was also 14 years old. During the the trial in the regional court in Oudtshoorn, he was referred by the court for observation in terms of sections 77(1), 78(2) and 79(2) of the CPA.

It appeared from the evidence that Mr Stuurman had sustained a serious head injury at the age of 5, which left him severely mentally handicapped. The three psychiatrists who examined him expressed differing opinions on certain aspects, but were unanimously of the view that he would be unable to understand basic court proceedings.

Snyders

Mr Pieter Snyders was born with Down syndrome and as a result he had cognitive deficits. In 2013, Mr Snyders was arrested and charged with the rape of an 11 year old girl. According to the complainant, the rape happened five to six years earlier.

When he appeared at the Blue Down's Magistrate's Court, he was referred in terms of section 77(1) of the Act to an enquiry in order to determine his capacity to understand the proceedings.

The enquiry found that Mr Snyders was born with Down syndrome with moderate grade mental retardation. Their clinical diagnosis of him was one of "moderate mental retardation".

In terms of section 79(4)(c), he was found to be unfit to stand trial and in terms of section 79(4)(d), he was found to be "not able to appreciate the wrongfulness of the alleged offence and act accordingly". It was found that Mr Snyders would not be able to stand trial as his cognition would never improve.

The magistrate ordered in terms of section 77(6)(a)(i) that he be detained in a psychiatric hospital or prison pending the decision of a judge in terms of section 47 of the Mental Health Care Act. The matter was reviewed because the magistrate failed to enquire if there was insufficient evidence to satisfy the court on a balance of probability that the accused had committed the act that he had been charged with. The High Court set aside the order, sent is back to the Magistrates Court.

Present case

In the present case, both Stuurman and Snyders argued for an order declaring section 77(6)(a) of the criminal procedure Act 51 of 1977 unconstitutional. Stuurman focused on section 77(6)(a)(i) while Snyders attacked both sub-paragraphs 77(6)(a)(i) and 77(6)(a)(ii).

The Minister of Justice and Constitutional Development, the Minister of Health and the Director of Public Prosecutions, Western Cape all opposed this application. Cape Mental Health and Down Syndrome South Africa joined the application for the most part favouring the application and the relief claimed.

PRECEDENT

The court found that section 77(6)(a) did not permit a presiding officer to (a) determine whether an accused person continued to be a danger to society, (b) evaluate the individual needs or circumstances of that person, or (c) consider whether other options were more appropriate in the light of the individual circumstances of the accused.

Section 77(6)(a) is overbroad. It limits or threatens the rights of persons to freedom and the rights of children. The limitations are not justifiable in terms of the limitations clause, are inconsistent with the Constitutions and are therefore invalid. The declaration was referred to the Constitutional Court for confirmation. Constitution Court case summary

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Buzzard Electrical v 158 Jan Smuts Avenue Investments 1996 (4) SA 19 (A)

OVERVIEW

Whether the owner of a property is unduly enriched by improvements made to his/her property by a contractor who has concluded an agreement with a third party for the work.

FACTS

158 Jan Smuts Avenue Investments is an investment company that owned a plot in Johannesburg. It hired a contracting company to develop that plot. That company subcontracted the electrical work to Buzzard Electrical. Buzzard Electrical completed the work of the plot which had brought about necessary or useful improvements equal in value to the contract work sum with the original contractor.

The contractor company was then placed in liquidation. Initially, Buzzard Electrical stayed on the property claiming a builder's lien over the property because the owner had been unjustifiably enriched. The parties agreed that Buzzard should vacate the plot, and that Buzzard would be paid if the owner was subsequently held liable. Buzzard left the plot and brought at action of unjustified enrichment to the Transvaal Local Division of the Supreme Court(now South Gauteng High Court, Johannesburg).

Finding that it was bound by the decision of the full bench in Gouws v Jester Pools (Pty) Ltd 1963 (3) SA 563 (T)[link to summary:goo.gl/Ub6dzf  ], the court upheld an exception raised by the investment company that, in fact it was the owner who was contractually obliged pay the contractor and therefore any enrichment was at the expense of the contractor company and not Buzzard.

On appeal, the Appellate Division held that the owner received nothing more that he/she had contracted with the original contractor. The subcontractor could have enforced his contractual rights against the original developer. The contract with the original contractor was the causa of the enrichment of the owner and therefore the enrichment of the owner was not sine causa.

PRECEDENT

Where an owner contracts out the improvements to his property to a contractor and that contractor sub-contracts out the work to be done, this subcontractor (the third party) cannot claim the enrichment is unjustified as the causa is the contract between the owner and the original contractor.

This is contrasted with the situation in Gouws v Jester Pools (Pty) Ltd 1968 (3) SA 63 (T) [link to summary:goo.gl/Ub6dzf ] where the contract between the developer and subcontractor were not as a result of an initial contract with the owner, a scenario on which this court left undecided.

Gouws v Jester Pools (Pty) Ltd 1968 (3) SA 563 (T)

OVERVIEW

Whether the owner of a property is unduly enriched by improvements made to his/her property by a contractor pursuant to an agreement with a third party who has misrepresented himself as the owner.

FACTS

On the 12^th of November 1964, Jester Pools (Pty) Ltd concluded a written agreement for the construction of a swimming pool for a contract price of R 1640 on a property in Bryanston with M Wolf, whom they believed was the owner of the property. This property in fact belonged to Gouws.

Jester pools constructed the pool according to the terms of the agreement. In January 1965 took back possession of the property from Wolf who later disappeared without paying Jester Pools for it.

Jester Pools brought an enrichment action against Gouws in the Transvaal Provincial Division (now North Gauteng High Court, Pretoria) for an amount of R 1000, the actual expenditure for the construction of the pool. The action failed, with the court finding that Gouws was enriched at Wolf’s expense and not Jester Pools.

PRECEDENT

Where a person contracts out to a third party improvements to an owner’s property without that owners authorisation, it is that person who is impoverished and not the third party as those improvements were sine causa. The causa between the impoverished person and the third party in the contract.

This is contrasted with the situation in Buzzard Electrical v 158 Jan Smuts Avenue Investments 1996 (4) SA 19 (A) [link to summary:  ] where the contract between the developer and subcontractor were as a result of an initial contract with the owner.

Willis Faber Enthoven (Pty) Ltd Reciever of Inland Revenue 1992 (4) SA 202 (A)

OVERVIEW

This case dealt with whether an error iuris  (an error in law) could form the basis of the condictio indebiti

FACTS

In 1984 Willis Faber and Co (Pty) Ltd made payments amounting to R 209 627.15 to the Receiver of Inland Revenue for taxes it believed were due and payable in terms of the law. In December 1985 Willis Faber and Robert Enthoven and Co merged to trade as one company, Willis Faber Enthoven (Pty) Ltd, the appellant in this case.

In the Transvaal Provincial Division of the Supreme Court(now North Gauteng High Court) it was accepted that the payment were not due and payable but that the error was one in law and not one of

 fact. This meant that it could not form a basis for the condictio indebiti in terms of the established authority [Rooth v The State (1888) 2 SAR 259 and Benning v Union Government (Minister of Finance) 1914 AD 420].

On appeal, the Appellate Division (now the Supreme Court of Appeal) decided that there is no logic in the distinction drawn between errors in fact and errors in law for the purposes of the condictio indebiti and that either would be sufficient to succeed with the condictio indebiti.

PRECEDENT

The court rejected the distinction between error facti and error iuris for the purposes of the condictio indebiti. Error uiris could now form the basis of the condictio indebiti.

Nortje v Pool 1966 (3) SA 96 (A)

OVERVIEW

This case dealt with the nature and extent of unjustified enrichment and the general enrichment action.

It also dealt with a landowner's liability for useful improvements to his/her property

FACTS

In 1958 Nortje and others(the plaintiffs) concluded a written agreement with Albertus Pool (Pool) by which Pool granted them exclusive rights to prospect for kaolin(a type of clay) on two farms owned by Pool. Part of the agreement was that they could also exploit the kaolin if any was found in terms of the conditions laid out in the agreement.

They spent considerable amounts of money and subsequently discovered exploitable amounts of kaolin. It was later discovered that their agreement with Pool was invalid because it did not comply with section 3 of the General Law Amendment Act 50 of 1956. 

Pool died in 1962 and the executor of his estate refused to consent to the attestation of the contract. The plaintiffs then brought an action against Pool's estate in the Cape Provincial Division, claiming that Pool and his estate had unjustifiably been enriched by the expense of R 4 557 incurred by them on the discovery of kaolin.

In the Cape Provincial Division the plaintiffs claimed that;

-The action was allowed by way of an extension of the action of the bona fide possessor for compensation for his impensae utiles(useful, beneficial, expenditures made to promote the improvement of a thing);or

-The action was allowed by way of an extension of the action of the bona fide occupier;or

-The action was allowed by way of an application of a general enrichment action.

The Cape Provincial Division allowed an exception brought by the defendant and subsequently, in this case the appeal was dismissed by the Appelate Division.

The majority of the Appelate Division held that (1) the plaintiffs' claim did not fall within the scope of the action of the bona fide possessor for compensation for his impensae untiles, (2) the circumstances of the case did not justify an extension of the action of bona fide occupier for improvements and that; (3) no general enrichment action exists in South African law.

PRECEDENT

The court rejected the existence of a general enrichment action. It explained that there had merely been an ad hoc extension of the specific existing actions found in Roman and Roman-Dutch law as applied in South Africa today. The court also stated that a general enrichment action may yet be recognised but must be developed gradually over time.

As of the date of this post (07/04/2018) no such general enrichment action had yet been recognised. Feel free to comment and update me if the law on this has changed.

Magnum Financial Holdings (Pty) Ltd (in liquidation) v Summerly 1984 (1) SA 160 (W)

Magnum Financial Holdings (Pty) Ltd (in liquidation) v Summerly 1984 (1) SA 160 (W)

Epstein v Epstein 1987 (4) SA 606 (C)

Epstein v Epstein 1987 (4) SA 606 (C)

Volks v Robinson 2005 (5) BCLR 446 (CC)

Volks v Robinson 2005 (5) BCLR 446 (CC)

Facts

The case of Volks v Robinson arose from a dispute over the interpretation of the Maintenance of Surviving Spouses Act, 1990 (the Act). The Act provides for the maintenance of surviving spouses and children of deceased persons. In this case, the surviving partner of a deceased person claimed maintenance under the Act, but her claim was denied on the grounds that the Act did not apply to same-sex partnerships.

Issues

The main issue in the case was whether the Act should be interpreted to include same-sex partnerships.

Reasons

The Constitutional Court (CC) held that the Act should be interpreted to include same-sex partnerships. The CC reasoned that the Act was passed to protect the financial security of surviving spouses and children and that this protection should be extended to all spouses and children, regardless of the sexual orientation of the deceased person. The CC also held that the Act should be interpreted in a way that is consistent with the Constitution, which guarantees equality to all people, regardless of their sexual orientation.

Conclusion

The CC allowed the appeal and held that the Act applies to same-sex partnerships. This means that surviving partners in same-sex relationships are entitled to claim maintenance under the Act.

Summary

The case of Volks v Robinson is a landmark case in South African law. It is the first case in which the CC has considered the rights of same-sex couples in the context of the Act.

The CC's decision in Volks v Robinson is based on the following principles:

• The Act should be interpreted in a way that protects the financial security of all surviving spouses and children, regardless of the sexual orientation of the deceased person.
• The Act should be interpreted in a way that is consistent with the Constitution, which guarantees equality to all people, regardless of their sexual orientation.

The CC's decision in Volks v Robinson has a number of implications. First, it means that same-sex couples now have the same rights to maintenance under the Act as heterosexual couples. Second, the decision means that the Social Security Agency (SASSA), which administers the Act, will now need to pay out more money in maintenance to same-sex couples. Third, the decision may have implications for other areas of law, such as family law and inheritance law.

The decision has been welcomed by LGBTQ+ rights activists and legal experts. However, some commentators have criticized the decision, arguing that it will place an undue burden on SASSA and that it will lead to an increase in litigation.

Overall, the decision in Volks v Robinson is a significant case in South African law. It is likely to have a lasting impact on the rights of same-sex couples and on the way that SASSA administers the Act.

Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA)

Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA)

Facts

Mr. Du Plessis was a passenger in a motor vehicle accident caused by the negligence of another driver. Mr. Du Plessis was seriously injured in the accident and sustained quadriplegia. He was unable to work and required lifelong care and assistance.

Mr. Du Plessis claimed damages from the Road Accident Fund (RAF) for his loss of earnings, medical expenses, and pain and suffering. The RAF admitted liability for the accident but disputed the quantum of damages.

Issues

The main issue in the case was whether Mr. Du Plessis was entitled to claim damages from the RAF for the loss of support from his partner, Mr. Erasmus. Mr. Erasmus and Mr. Du Plessis had been in a same-sex relationship for a number of years and had entered into a contract with each other in which they agreed to support each other financially and emotionally.

Reasons

The Supreme Court of Appeal (SCA) held that Mr. Du Plessis was entitled to claim damages from the RAF for the loss of support from his partner, Mr. Erasmus. The court reasoned that the RAF Act does not exclude same-sex partners from claiming damages for the loss of support. The court also held that it would be discriminatory to deny same-sex partners the right to claim damages for the loss of support, as this would violate their right to equality enshrined in the South African Constitution.

The court further held that the contract between Mr. Du Plessis and Mr. Erasmus was enforceable and that it created a legal duty of support between them. The court therefore found that Mr. Du Plessis had suffered a loss of support as a result of the accident and that he was entitled to claim damages from the RAF for this loss.

Conclusion

The SCA allowed Mr. Du Plessis's appeal and awarded him damages for the loss of support from his partner, Mr. Erasmus.

Summary

The case of Du Plessis v Road Accident Fund is a landmark case in South African law. It is the first case in which the SCA has considered whether same-sex partners are entitled to claim damages from the RAF for the loss of support.

The SCA's decision in Du Plessis v Road Accident Fund is based on the following principles:

• The RAF Act does not exclude same-sex partners from claiming damages for the loss of support.
• It would be discriminatory to deny same-sex partners the right to claim damages for the loss of support, as this would violate their right to equality enshrined in the South African Constitution.
• A contract between two people can create a legal duty of support between them.
• If a person suffers a loss of support as a result of an accident caused by the negligence of another person, they may be entitled to claim damages from that person.

The SCA's decision in Du Plessis v Road Accident Fund has a number of implications. First, it means that same-sex partners are now entitled to claim damages from the RAF for the loss of support. This is a significant victory for LGBTQ+ rights in South Africa. Second, the decision means that the RAF will now need to pay out more money in damages. Third, the decision may have implications for other areas of law, such as family law and employment law.

Amod v Multilateral Motor Vehicle Accidents Fund 1999 (4) SA 1319 (SCA)

Amod v Multilateral Motor Vehicle Accidents Fund 1999 (4) SA 1319 (SCA)

Facts

Ms. Amod's husband was killed in a road accident caused by the negligence of another driver. Ms. Amod and her two minor children were financially dependent on her husband. Ms. Amod claimed damages from the Multilateral Motor Vehicle Accidents Fund (MMF) for the loss of support she and her children had suffered.

The MMF denied liability on the grounds that Ms. Amod's marriage was not recognized by South African law. Ms. Amod and her husband had been married in a Muslim ceremony, but they had not registered their marriage with the civil authorities.

Issues

The main issue in the case was whether Ms. Amod was entitled to claim damages from the MMF for the loss of support she and her children had suffered, even though her marriage was not recognized by South African law.

Reasons

The Supreme Court of Appeal (SCA) held that Ms. Amod was entitled to claim damages from the MMF for the loss of support she and her children had suffered. The court reasoned that the MMF Act does not exclude spouses from claiming damages for the loss of support simply because their marriage is not recognized by South African law. The court also held that it would be discriminatory to deny spouses the right to claim damages for the loss of support on the basis of the status of their marriage.

The court further held that Ms. Amod and her husband had entered into a valid customary marriage under Muslim law. The court found that the custom of polygamy was not repugnant to South African law and that Ms. Amod was therefore the lawful wife of her husband.

Conclusion

The SCA allowed Ms. Amod's appeal and awarded her damages for the loss of support she and her children had suffered.

Summary

The case of Amod v Multilateral Motor Vehicle Accidents Fund is a landmark case in South African law. It is the first case in which the SCA has considered whether spouses married in a customary marriage are entitled to claim damages from the MMF for the loss of support.

The SCA's decision in Amod v Multilateral Motor Vehicle Accidents Fund is based on the following principles:

• The MMF Act does not exclude spouses from claiming damages for the loss of support simply because their marriage is not recognized by South African law.
• It would be discriminatory to deny spouses the right to claim damages for the loss of support on the basis of the status of their marriage.
• A customary marriage is a valid marriage under South African law, even if it is not registered with the civil authorities.

The SCA's decision in Amod v Multilateral Motor Vehicle Accidents Fund has a number of implications. First, it means that spouses married in customary marriages are now entitled to claim damages from the MMF for the loss of support. This is a significant victory for the rights of women and children in customary marriages. Second, the decision means that the MMF will now need to pay out more money in damages. Third, the decision may have implications for other areas of law, such as family law and inheritance law.