the south african law reports - april 2008
MEC, DEPARTMENT OF AGRICULTURE, CONSERVATION AND ENVIRONMENT AND ANOTHER v HTF DEVELOPERS (PTY) LTD, 2008 (2) SA 319 (CC)
Protecting the environment - Adequate notice ito ECA & PAJA
The respondent owned certain immovable property which it planned to subdivide into residential stands for sale to individual buyers. After the respondent began clearing the property for purposes of construction, the department addressed a letter to the respondent wherein it identified the property as “virgin ground”, the cultivation or use of which was considered to have a substantial detrimental effect on the environment in terms of s 21(1) of the Environment Conservation Act 73 of 1989 (ECA), and was therefore prohibited in terms of s 22 of the ECA unless written authorisation was granted.
The respondent contended that, on a proper interpretation of s 31A of ECA, the notice in terms of s 31A was invalid for want of compliance with the 30-day notice and comment procedure provided for in s 32 in respect of “directions” issued in terms of the ECA. The SCA upheld the respondent’s contention and set aside the directive. The department then made application for leave to appeal to the Constitutional Court against that decision.
Held, that an analysis of the provisions of the ECA indicated that the term 'direction' appeared in two separate contexts, namely (1) directions applicable to members of the public generally which had to be published in the Government Gazette (see ss 16(2) and 20(8)); and (2) directions applicable to specific persons or entities (ss 31 and 31A).
Held, that in the second context, a 30-day notice and comment procedure was neither appropriate nor required.
Any exercise of power in terms of s 31A was, however, subject to procedural fairness requirements in the form of s 36 of the ECA and in terms of administrative review under the Promotion of Administrative Justice Act 3 of 2000 (PAJA). In terms of s 3 of PAJA a direction could only be issued in terms of s 31A of the ECA if the person affected were given adequate notice and a reasonable opportunity to make representations: although PAJA contemplated that, where reasonable and justifiable in the circumstances, those requirements could be deviated from.
In light of the serious harm already caused and the threat of continuing harm, the 48-hour notice period, which the respondent did not struggle to meet in submitting its representations, was adequate by the procedural fairness standards required by PAJA.
ATM SOLUTIONS (PTY) LTD v OLKRU HANDELAARS CC AND ANOTHER
2008 (2) SA 345 (CPD)
Mandament van Spolie & Specific Performance
In terms of a written agreement the applicant was permitted to install one of its ATMs in the first respondent’s premises. The agreement provided that the applicant shall use and occupy such premises for the sole purpose of placing and operating therein, an ATM on the terms and conditions recorded.
The first respondent, without the consent of the applicant, removed the applicant’s ATM to a storeroom on the premises, where it was inaccessible to customers and installed in its place, an ATM belonging to the second respondent. The applicant applied for a spoliation order directing the respondents to restore the installation of the ATM to the position and in the manner it formerly occupied on the premises.
In its founding affidavit the applicant stated that it was in peaceful and undisturbed possession of the ATM device, at all material times. The first respondent showed convincingly that the applicant had not been in actual physical possession or control of the ATM. The respondents contended that the mandement van spolie was not the appropriate remedy to be resorted to where specific performance of contractual obligations is claimed.
The court held that the applicant’s claim in essence amounted to a claim for specific performance of its contractual rights - something which, according to the authorities, was not permissible by means of the mandament van spolie.
The applicant failed to establish its entitlement to spoliatory relief on the facts of the case.
ADVTECH RESOURCING (PTY) LTD t/a COMMUNICATE PERSONNEL GROUP v KUHN AND ANOTHER, 2008 (2) SA 375 (CPD)
Restraint of Trade & Severability Clause
The applicant made application in the High Court to interdict a former employee, the first respondent, from continuing to act in breach of a restraint of trade clause incorporated in her contract of employment. The first respondent and her new employer, the second respondent, resisted the application because (1) the restraint was allegedly too wide and therefore invalid; and (2) the severability provisions contained in the contract allegedly did not save the agreement from invalidity.
The Court held that inter alia that:
In the context of the constitutional rights to freely choose one's trade, occupation or profession and the right to dignity, the position has to be that an employer is required to justify a restraint, i.e. the employer must prove the reasonableness of a restraint.
A party is not entitled to draft an all-encompassing contract which, on its own wording, is plainly unenforceable for being overbroad, too wide in scope, and then, under the guise of a severability clause, to request a court to develop what is, in effect, an entirely different contract.
The court referred to Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (A) at 16H – 17A: “…it is in my view not open to parties to a contract to say to a court “take our agreement, such as it is, excise from it all that is bad, and retain what is good, and provide us with a contract which is legal and enforceable, even though it may not be what we originally had in mind”.
Such an approach would offend the fundamental rule that the court may not make a contract for the parties.
BROOKS v MINISTER OF SAFETY AND SECURITY, 2008 (2) SA 397 (CPD)
Action by dependant against police - father unfit to posses a firearm
The plaintiff’s father was convicted of various crimes, including murder, and sentenced to 20 years imprisonment, which he was serving at the time of institution of the action. The plaintiff claimed damages under several heads arising from his father’s incarceration and loss of a proper education opportunity as a result of that loss.
The plaintiff alleged that there had prior to the episode, been several incidents from which police officers had obtained direct knowledge that his father was unfit to posses a firearm but that they had taken no steps to have him declared unfit to possess a firearm. The plaintiff alleged that the police officers owed a legal duty to all persons who might be prejudicially affected, in the event of his father using his weapons to kill or injure, to initiate the necessary procedure to have him declared unfit to possess a firearm.
Held: that the court was being asked to extend delictual liability, by allowing the claim of a dependant where the breadwinner had by his own intentional act rendered himself unable to support his dependant, to a situation where no liability existed previously. The crucial question was whether there were any considerations of public or legal policy which required such extension.
Held, further, that as a matter of public and legal policy the State should not be burdened by claims for loss of support by the dependants of persons who by their own acts had rendered themselves unable to support their dependants.
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