Body Corporate of Sunnyside Gardens v Perreira [2023] ZAGPPHC 1960
CIVIL LAW – Defamation – Letter from attorneys
Sent to plaintiff, board of trustees and managing agent at sectional title scheme – Plaintiff understood accusation of “illegitimately utilizing the electricity of the common property” to be calling him a thief – Submission that the communication was privileged cannot be sustained – Corporate body is not somehow immunised from liability for defamation perpetrated within its own ranks – Ordinary person would have understood the letter to convey that plaintiff was not merely accused of wrongdoing based on complaints received but was guilty of wrongdoing – Award of R50,000 by magistrate upheld and appeal dismissed.
Facts: Mr Perreira is the is the owner of a unit in Sunnyside Gardens sectional title scheme. He is a 67-year old retiree and has lived in Sunnyside Gardens for the past fifteen years. He is a religious man, a Catholic, and happily married with two adult children. At the centre of the case is a letter written by attorneys Kleynhans & Swanepoel from the Body Corporate (appellant) to Mr Perreira concerning his conduct at Sunnyside Gardens. Specifically, that Perreira was using his garage for an impermissible purpose, a carpentry business, and in doing so, he was illegitimately using the electricity of the common property and causing a nuisance to his neighbours.
Appeal: The magistrate found that the letter, which was sent to all members of the Board of Trustees of Sunnyside Gardens and its managing agent, was defamatory of the Mr Perreira and awarded R50,000 in damages with interest and costs. The appellant asks that the magistrate’s order be set aside with costs and replaced with an order that the defamation action be dismissed with costs. Mr Perreira defends the judgment and order.
Discussion: Mr Perreira understood the accusation of “illegitimately utilizing the electricity of the common property” to be calling him a thief – stealing from the Body Corporate. The magistrate concluded that the Mr Perreira was consistent in his testimony, whereas the appellant’s witnesses were at times unreliable, with aspects of their testimony being nonsensical or improbable. It was evident, moreover, that there was a history of conflict between the Mr Perreira and the appellant’s witnesses. The submission that the communication was privileged cannot be sustained: the communication was generated as a communication to Mr Perreira himself and was so sent. The submission that there was no third party communication can also not be sustained, as there was communication to all members of the Board of Trustees, comprising several persons, both to mandate the letter and when receiving copies once generated and sent. The submission presupposes that a corporate body is somehow immunised from liability for defamation perpetrated within its own ranks, or at least within the ranks of its governing body, which is plainly incorrect.
Findings: The magistrate’s evaluation of the evidence in light of the requirements cannot be faulted. An ordinary person of reasonable intelligence would have understood the letter to convey that Mr Perreira was not merely accused of wrongdoing based on complaints received but was guilty of wrongdoing. The letter was defamatory both on its plain meaning, and because it implied squarely that Mr Perreira does not abide the rules and misuses the common property electricity for his personal use, effectively by stealing it. Contrary to the submission of the appellant, and as the Magistrate found, the letter as framed did not merely inform Mr Perreira of complaints that have been received and provide an opportunity to respond thereto. The letter as framed, squarely concluded, not least implied, that Perreira was guilty of the conduct. The magistrate was aware of the factors personal to Mr Perreira, a retiree living in a small community and being humiliated therein, and losing the trust of his community. His whole world was thereby affected by an accusation of being a person who steals electricity from the common property and is a nuisance to his neighbours.
Order: The appeal is dismissed with costs. The judgment and order, including the award of R50,000 as given by the trial magistrate, is upheld.
BARIT AJ (COWEN J concurring)
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Sibiya v Road Accident Fund [2023] ZASCA 171
COSTS – Taxation – Contingency fee agreement
Attorney filing affidavit with taxing master that no contingency fee agreement existed – Referred to Judge President for directions – Uniform Rule 70(5A)(d)(ii) is not a referral for consideration of a contingency fee, or attorney and client fee agreements – Purpose is to deal with misbehaviour of party or legal representative before taxing master – Ensuing orders cast aspersions on attorney’s professional competence and ethical behaviour – Audi alteram partem – Handling of matter by court in chambers was irregular, a hearing by ambush and a breach of one of fundamental principles of our law, the right to be heard – Uniform Rule 70(5A)(d)(ii).
Facts: Mr Sibiya appointed D-S Attorneys to lodge a claim against the RAF for damages arising from a motor vehicle accident. He signed an attorney and client fee agreement with D-S Attorneys for their services. The RAF conceded the merits of Mr Sibiya’s claim and tendered payment of his costs on a party and party scale. The party and party bill of costs was subsequently set down for taxation and Mr Krige had already filed an affidavit with the taxing master to the effect that no contingency fee agreement existed between Mr Sibiya and D-S Attorneys. The taxing master posed certain questions to D-S Attorneys regarding there being no contingency fee agreement and the matter was referred to the Judge President for directions in terms of Uniform Rule 70(5A)(d)(ii). This provides that “Where a party or his or her attorney or both misbehave at a taxation, the taxing master may . . . adjourn the taxation and refer it to a judge in chambers for directions with regard to the finalisation of the taxation.”
Appeal: The High Court delivered an extensive joint judgment and in respect of Mr Sibiya’s matter granted and order reviewing and setting aside the fee agreement due to its illegality and providing that the plaintiff is not obliged to pay any fee or costs to his or her attorneys of record. The Legal Practice Council was to consider whether the conduct of Mr Krige in concluding the fee agreement as he did which has now been found to be illegal, constituted unprofessional conduct and if so to take such steps as it might deem appropriate.
Rule 70(5A)(d)(ii): It is clear from the language of the provision that Rule 70(5A)(d)(ii) is not a referral for consideration of a contingency fee, or attorney and client fee agreements. Its purpose is to deal with misbehaviour of a party and his or her legal representative, or both, before a taxing master and nothing else. It is not a mechanism for bringing the fee agreement before a court, for determination of whether it is a contingency fee agreement or not. There was furthermore no evidence of any misbehaviour. The approach adopted by the Judge President’s office was procedurally flawed and irregular. A fundamental rule of our law is that a wrong process vitiates the proceedings. Astoundingly, the High Court proceeded with the irregular process of using Rule 70(5A)(d)(ii) even though Mr Krige had pointed this out in his affidavit. The High Court consciously disregarded what Mr Krige had pointed out. A proper consideration of all the documents indicates that nothing required the intervention of the Judge President at that stage, as the bill of costs to be taxed was on a party and party scale between the RAF and Mr Sibiya, following a capitulation on the merits of Mr Sibiya’s claim against the RAF.
Audi alteram partem: The High Court did not inform nor invite the parties, including the RAF, to make representations regarding the fee agreement and its legality. The rules of court require the parties to file their affidavits and heads of argument before the matter serves before a judge for a hearing. In that regard, no court may mero motu in chambers deal with matters that are not properly placed before it. The handling of the matter by the court in chambers was irregular, a hearing by ambush and a breach of one of the fundamental principles of our law, the right to be heard. A further reason why the audi alteram partem was imperative is that the orders which followed cast aspersions on Mr Krige’s professional competence and ethical behaviour, and resulted in a referral of the matter to the professional regulatory authority without him being afforded the opportunity to defend the findings.
Order: The appeal is upheld with no order as to costs. The order of the High Court is set aside and replaced with the following: “The referral by the taxing master in terms of rule 70(5A)(d)(ii) is dismissed.”
MBATHA JA (CARELSE JA, HUGHES JA, KOEN AJA and CHETTY AJA concurring)
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Rayment v Minister of Home Affairs [2023] ZACC 40
IMMIGRATION – Spousal visa – Termination of relationship
Requirement for foreign national to cease working or leave the country – Applicants living and working in South Africa – Dutiful and supportive parents and caregivers to their children – Requirement limits right to dignity; the right to human dignity of spouse or partner; the child’s right to human dignity if the couple have a child; the child’s section 21(3) right as a citizen and the child’s right under section 28(2) of Constitution – Declarations of invalidity – Immigration Act 13 of 2002, ss 10(6), 11(6), 18(2) and reg 9(9)(a).
Facts: In the Rayment matter the applicants are German (Ms Rayment), French (Mr Gondran) and Zimbabwean (Mr Tembo) nationals. In the Anderson matter, they are British (Mr Anderson) and Kenyan (Mr Ogada) nationals. With the exception of Mr Tembo the applicants in both matters have been residing and working in South Africa on the basis of so called “spousal” visas. During the course of the applicants’ relationships with their respective former spouses the applicants had children with their spouses. Their children were born in South Africa or they acquired South African citizenship on the strength of their parent’s citizenship. All the applicants have been living and working in South Africa for many years. All of them have been dutiful and supportive parents and caregivers to their children, sharing parental responsibilities with their partners both during their spousal relationship and after the termination thereof. The spousal visas are no longer valid. They ceased to be valid upon the termination of the spousal relationships which existed between the applicants and their respective spouses who are South African citizens.
Application: The two sets of applicants instituted their respective applications in the High Court and challenged the constitutional validity of various provisions of the Immigration Act 13 of 2002 and some of the regulations promulgated under that Act. The two applications are now before the Constitutional Court for the confirmation of the order of constitutional invalidity that was made by Sher J.
Discussion: Subject to one exception, a spousal visitor’s visa is valid only while the good faith spousal relationship exists. The exception is that the spousal visitor’s visa will fall away when the foreigner concerned is granted a permanent residence permit. The problem common to both sets of applicants in these two matters was that, where a foreign national is married to, or is in a good faith spousal relationship with, a South African citizen or permanent resident and has been issued with a spousal visa which allows him or her to reside and work in South Africa, the spousal visa expires when the marriage or good faith life partnership ends. When the foreign spousal visa expires, the foreign national is required to leave South Africa immediately. His or her continued stay in South Africa becomes illegal. If the foreign national needed to work in South Africa in order to survive, he or she suddenly will have no means of earning his or her livelihood once he or she is not allowed to work. If there is a child born out of the marriage or the good faith spousal relationship between the foreign national and the South African citizen or permanent resident, that child will be adversely affected.
Findings: The statutory requirement that a foreign national must leave South Africa in order to apply from outside to change his or her visa status limits: (a) his or her right to dignity; (b) the right to human dignity of the spouse or partner who is a South African citizen or a permanent resident; (c) the child’s right to human dignity if the couple have a child; (d) the child’s section 21(3) right as a citizen; and (e) the child’s right under section 28(2) of the Constitution. The court can see no legitimate purpose that is served by these limitations and the respondents have not suggested any. The Immigration Act and its Regulations unjustifiably limit the rights entrenched in the Bill of Rights as listed. To that extent the Immigration Act and the Regulations are inconsistent with the Constitution and invalid.
Order: It is declared that sections 10(6), 11(6), and 18(2) of the Immigration Act 13 of 2002 and regulation 9(9)(a) of the Immigration Regulations, 2014 published under GN R413 in Government Gazette 37679 of 22 May 2014 are inconsistent with the Constitution and invalid. The declarations of invalidity are suspended for a period of 24 months and a reading in is provided for the period of suspension.
ZONDO CJ (unanimous)
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