MARIKANA MASSACRE AND EXCEPTIONS
Exception – Claim against Mr Ramaphosa, Sibanye and the government – Marikana massacre – Alleged collusion – Alleged interventions and pressure exerted on ministers and police – Several grounds of exception upheld – Exception relating to causation fails.
Sivuka v Ramaphosa [2022] ZAGPJHC 450 at [8]-[72]
In 2012 a police tactical response team shot and killed 34 striking workers and seriously wounded and arrested many others, who were part of a gathering on public land near the town of Marikana. The plaintiffs are 329 mineworkers who have instituted action against Mr Ramaphosa, Sibanye (formerly Lonmin) and the government. They seek R977 million as patrimonial loss and R164 million as constitutional/exemplary/punitive damages. Mr Ramaphosa and Sibanye have raised several grounds of exception in relation to the plaintiffs’ particulars of claim.
Van Oosten J discusses the approach to exceptions; the contentions that the three defendants were acting in concert and that there was collusion between the state and capital which resulted in the massacre; that the liability of Mr Ramaphosa is premised on emails exchanged between him and his colleagues at Sibanye; and the allegations that his interventions caused pressure to be exerted on the police leadership and that he made several phone calls to ministers to exert pressure on them to take violent action with speed. It is contended that Sibanye breached its duties to its employees and unlawfully colluded with the police with the aim of ending the strike by any means. The court comments on particulars of claim and the pleading of facts, as well as the incorporation of documents, and that irrelevant and superfluous allegations are impermissible. Rule 18(4) requires a clear and concise statement of the material facts relied on.
Mr Ramaphosa contended that the emails and phone calls did not constitute actionable incitement or other wrongful conduct, so the court looks at the contents of the emails and upholds the first ground of exception. As to whether Mr Ramaphosa in his personal capacity, as director of Lomnin, owed any of the listed duties to the plaintiffs, this second ground of exception is upheld because he did not owe them such duties. As to Mr Ramaphosa’s interventions and pressure exerted and causation and whether the chain of events was too remote, the court finds that the plaintiffs’ allegations satisfied the test of causation and the third ground of exception must fail. The exception relating to the alleged collusion is upheld, as well as the exception relating to the various capacities and duties of Mr Ramaphosa. As to the grounds of exception raised to the claim for punitive, constitutional or exemplary damages, a decision at this stage would be premature and not in the interests of justice. The court then deals with Sibanye’s grounds of exception, where there is some overlap with Mr Ramaphosa’s grounds.
~
PIERCING THE CORPORATE VEIL
Company – Director liability – Piercing the corporate veil – Misrepresentations regarding vehicle sold at auction – Judgment obtained against company – Director’s conduct – Personally liable – Companies Act 71 of 2008, s 20(9).
Kolisang v Alegrand General Dealers [2022] ZAGPJHC 431 at [11]-[31]
Ms Kolisang attended a public auction arranged by Alegrand at its premises where she purchased a vehicle described as a 2012 Golf GTI motor vehicle for R177,560. She later cancelled the sale agreement and returned the vehicle when she discovered that it was actually a 2010 model. The company refused to refund the purchase price and she obtained default judgment. She has travelled a long road in trying to execute against the judgment, during which it was discovered that the director, Mr Jassat, had resigned as director and that the business address of the company changed. Ms Kolisang now approaches the court to pierce the company veil and obtain relief against Mr Jassat for the judgment debt granted against the company.
Nichols AJ discusses section 20(9) of the Companies Act 71 of 2008; Ms Kolisang’s contention that the director represented the company at all material times and he specifically represented that the motor vehicle was as described; that the director averred that he sold the company and that a clause of the agreement provided for his indemnification; section 76(3) of the Act and a director’s fiduciary duties; the requirement for piecing the corporate veil of an unconscionable abuse of the juristic personality of a company as a separate legal entity; and fraud and the improper use of a company or conduct of the affairs of a company. The court finds that the misrepresentation by the director was fraudulent, alternatively dishonest or improper conduct and it was intended to induce the applicant to purchase the motor vehicle. The director conducted himself in a manner that was not in the best interest of the company, but rather designed to protect himself from personal liability.
It is declared that Alegrand General Dealers and Auctioneers (Pty) Ltd shall be deemed not to be a juristic person, but a venture of Mr Jassat personally, in respect of its obligations to Ms Kolisang pursuant to the judgment. Mr Jassat is declared personally liable for the judgment debt of R177,560.
~
CONTRACT AND BREACH CLAUSE
Contract – Repudiation – Cancellation – Breach clause – Notice – Security company claiming damages for breach – Whether clause offending public policy – Whether compliance with breach clause.
EC Security v BC of Saffron Gardens [2022] 41835-19 (GP) at [51]-[107]
EC Security and the body corporate entered into an agreement for the provision of security services and one of EC’s standard contracts was used. A “breach clause” required the body corporate to inform the management of EC in writing when a breach occurred, giving them 14 business days to rectify the breach. EC now claims damages based on breach of contract, while the body corporate contends that EC failed to comply with its contractual obligations in that it did not provide the expected standard of security services and that these breaches were communicated to it.
Du Plessis AJ discusses the terms of the contract; that EC had to comply with the body corporate’s security and emergency procedures and policies; EC’s contentions that it complied with its obligations; the body corporate’s argument that EC’s services were of poor quality and that it lawfully cancelled the contract; the various complaints about the services; what amounts to breach; the materiality of the breach; the options of a party on breach; positive malperformance and the test for repudiation; whether security companies have a higher duty in in fulfilling their contractual obligations; whether the accumulation of many faults could constitute a breach; and the Consumer Protection Act, plain language and standard contracts. The court finds that the body corporate did not follow the steps set out in the breach clause to cancel the contract. They did not make their intention to cancel the contract in clear and unequivocal language. EC could impute from their conduct and words that the body corporate no longer wanted to be bound by the contract. EC could therefore elect to cancel the contract and claim damages.
Unfortunately EC’s proof of its damages was based on the testimony of the EC general manager and no financial statements or other evidence of its expenses was provided. This was not sufficient proof of its loss of profits and wasteful expenditure, so the court was unable to award any damages. The claim is dismissed with costs.
ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
You can read his full CV and more about Louis on his LinkedIn profile where he shares interesting and recent cases.
