CIVIL PROCEDURE – Exception – Claims against CAA – Actions by commercial airline and director against Civil Aviation Authority – Decisions grounding entire fleet of airplanes – Claims for defamation and breach of duty of care – Argued by the CAA that no such duty of care exists under our law – Failure to give required notice to organ of State – Reliance by CAA on section of Act on lack of liability of its employees acting in good faith – Exceptions dismissed with costs – Civil Aviation Act 13 of 2009, s 99.
Facts: Cemair conducts the business of a commercial airline and Mr Van der Molen is a director. Under the Civil Aviation Act 13 of 2009 (the CA Act) the Civil Aviation Authority (CAA) has an oversight and regulatory function in relation to the conduct of such a business. Mr Salela, an Airworthiness Inspector, made certain administrative decisions in his official capacity with the CAA during December 2018 and January 2019 which had the effect of grounding Cemair’s entire fleet of airplanes. Certain statements were made by the CAA on its website relating to the grounding.
Claim: Two actions were brought, one by Mr Van der Molen for defamation and one by Cemair based on the alleged breach by the CAA of its duty of care towards the airline. It is contended that the CAA halted its business without reasonable grounds for doing so, grounding the plaintiff’s entire fleet under circumstances where the CAA’s investigation only pertained to one aircraft, and that there was a failure to comply with the procedures in the CA Act. The CAA has raised exceptions.
Notice to organ of State: The contention raised by the CAA on non-compliance with the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 and that because there has not been the requisite notice the court is entitled to find, on exception, that the actions are fatally defective. The failure to state that there has been notice in terms of the Act or that it is intended that condonation for the lack of filing of the notice will be sought does not affect the integrity of the cause of action pleaded. The lack of notice is a point external to the pleading. Such points must be raised by way of special plea. The exceptions in terms of the Act are not competently raised.
Section 99 of the CA Act: The section reads that no employee of the Civil Aviation Authority is liable in respect of anything done or omitted in good faith in the exercise of a power or the performance of a duty. Cemair alleges that the defendants took the decisions intentionally and in bad faith and in a manner that was unfair. This puts the pleaded claim outside of the limitation in section 99. The exception based on this section must also fail.
Duty of care: The legal duty on the part of the defendants for which Cemair contends in its pleadings rests on the alleged breach of the CAA’s statutory duty and duty of care at common law. It is argued on behalf of the CAA that there exists no such duty under our law and that the argument that there be an extension of the Aquilian Action to accommodate such a duty is unsustainable. A court must be satisfied that a novel claim is inconceivable under our law as potentially developed under section 39(2) of the Constitution before it can uphold an exception premised on the alleged non-disclosure of a cause of action. This exception must also fail.
Order: The exceptions are dismissed with costs.
CRIMINAL – Murder – Self-defence – Appellant shooting dead under-cover policeman and his suspect – Convicted of two counts of murder – Witness testimony found untrustworthy and containing serious contradictions – Policeman had been carrying gun and was involved in brawl with suspect at time – Appellant saying that under-cover policeman pointed firearm – Version that he acted in self-defence is reasonably possibly true – The two shots fired was also not a disproportionate response to neutralise the imminent threat – Conviction and sentence on both counts set aside.
Facts: Constable Sigcu was a policeman doing under-cover work. One night he was dressed in civilian clothes and in the process of arresting Bongani Jack for allegedly dealing in drugs. Mr Horn (appellant) was employed by the City of Cape Town as a law enforcement officer. His partner, Officer Blom, was on duty with him in the central business district of the City. They came across Sicgu and Jack and appellant fired two shots with his service pistol which killed them both.
Appeal: Against conviction with leave of the Supreme Court of Appeal. The appellant was convicted in 2021 by the court a quo on two counts of murder and sentenced to a term of ten years imprisonment on the first count and on the second count to a term of seven years imprisonment. The sentences were ordered to run concurrently.
Discussion: That appellant said that he and his partner attempted to stop the assault of Jack and that Sigcu pointed a firearm at them; that the State relied on the evidence of three eye witnesses, CCTV footage, as well as a transcript of an audio recording, and the evidence of Captain Manuel who arrived on the scene 20 minutes after the incident and who questioned the appellant about what had transpired; and the court a quo’s findings that the appellant was not confronted with an immediate threat and did not act in self-defence, that he had the direct intention to kill Constable Sigcu, and that he also foresaw that he could kill Jack when he fired the shots.
Findings: It is not in dispute that Sigcu carried a firearm on his body when he wrestled with Jack and after the shooting it was found lying on the ground. There were contradictions in the witness testimony which was untrustworthy. Despite extensive cross-examination by the prosecution, the appellant did not materially deviate from his version of events. On a conspectus of all the evidence, there can be no doubt that Sigcu and Jack were involved in a brawl when the appellant and Blom arrived on the scene and that Blom shouted frantically, “Hey, put it down, put it down, down, down, down, down, down, down, down. Shoot him, shoot him.” The appellant’s version that he acted in self-defence is reasonably possibly true. The two shots fired was also not a disproportionate response to neutralise the imminent threat that Sigcu posed at the time. The state simply failed to discharge its onus on both counts and the convictions cannot stand.
Order: The appeal against the conviction and sentence on counts 1 and 2 is upheld. The conviction and sentence on both counts is set aside and the appellant is found not guilty and acquitted on counts 1 and 2.
LE GRANGE ADJP (CLOETE J and SAVAGE J concurring)
LABOUR – Restraint – Confidential information – Specialised software for hospitality industry – Knowledge of systems and strong customer relations – Employee intending to take up employment with competitor – Urgent interdictory relief sought – Substantial risk of trade connections and confidential information being taken to competitor – Could induce customers to follow her to another business – That confidential information in respondent’s head and not in a document does not mean that its unlawful disclosure cannot be interdicted – Interdict granted and effective for one year.
Facts: The applicants are related companies and involved with specialised software for the hospitality industry. The management solution software, Opera, is the system through which rooms are booked, customers are checked in, and invoices are generated. The applicants and HRS are direct competitors in the same market. Ms Kleynhans has been employed by Micros SA since November 2017 as an executive and a senior manager and was responsible for managing, advising and controlling all aspects of the business pertaining to Opera products. She handed in her resignation and she is currently serving out her notice period and intends to commence employment with HRS.
Application: Seeking urgent interdictory relief in which the applicants seek to enforce a contractual restraint of trade and confidentiality undertakings made by Ms Kleynhans, as a consequence of her intention to take up employment with HRS.
Discussion: That Ms Kleynhans agreed to a restraint of trade undertaking in her written employment contract and that there was also a non-disclosure agreement (NDA) in which Ms Kleynhans gave detailed confidentiality undertakings to Micros SA; that applicants contend that what differentiates a provider of these services is primarily its understanding of customer needs and its ability to design and price an offering made up of Opera products to its customers; the contention that the purpose of the restraint is to prevent its employees who acquire the knowledge of its product and who must, as part of their employment, develop strong customer relationships, from utilising that knowledge and those connections to offer the same Opera products to the same customer base.
Findings: There is a substantial risk that, should Ms Kleynhans be permitted to take up employment with HRS, she will take proprietary interests of the applicants to a competitor in the form of trade connections and confidential information. The conduct falls squarely within the scope of what the applicants sought to protect in the restraint undertaking. It is also inevitable that she would use the confidential information obtained during her employment at Micros SA in violation of her confidentiality obligations under the NDA. Ms Kleynhans has also developed relationships with customers of a nature that she could induce them to follow her to a new business. As for the confidential information in the form of business strategies, internal processes and trade secrets, the mere fact that the information may be in a respondent’s head and not in a document does not mean that its unlawful disclosure cannot be interdicted.
Order: Ms Kleynhans is interdicted and restrained, for a period of one year from the date of the order, from engaging in the establishment of the business of HRS in certain listed countries and engaging in the establishment of the business of any other firm within South Africa, and the SADC and the Indian Ocean regions, that competes directly or indirectly with the business of the applicants. See further directions in the order at para .
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