DAGGA AT WORK AND PRINCE JUDGMENT
Labour – Dismissal – Testing positive for dagga – Zero tolerance for alcohol and drugs – Glass manufacturer with dangerous workplace – Prince judgment at Constitutional Court not interfering with definition of “drug” – Dismissal an appropriate sanction.
NUMSA obo Nhlabathir v PFG Building Glass [2022] ZALCJHB 292 at [47]-[91]
Facts: The applicants were employed by PG Building Glass as manufacturing operators and were dismissed after a disciplinary hearing where they were found guilty of misconduct. The charges were that they tested positive for dagga while at the workplace.
Application: NUMSA seeks to review and set aside an arbitration award at the bargaining council that the dismissal was substantively fair.
Discussion: The contention that the Constitutional Court in Prince has decriminalised dagga because “is not a drug, it is just a plant, it is a herb”; the employer’s witness who testified that the workplace is a dangerous environment with large forklifts, extremely hot processes and dangerous chemicals and that the very heavy glass could potentially cut or crush a person; the regulations to the Occupational Health and Safety Act 85 of 1993; the zero tolerance policy for drugs and alcohol; and the argument that dagga can legally be used in one’s private space for consumption and it is not illegal to possess or consume cannabis.
Findings: The applicants’ case was based on the interpretation of the Prince judgment and that since the Constitutional Court had legalised the consumption of dagga in private, dagga was no longer a drug, as contemplated in company’s alcohol and drug policy. On an analysis of that judgment it does not offer any protection to employees against disciplinary action should they act in contravention of company policies or disciplinary codes. It also does not interfere with the definition of a “drug”, nor did it declare dagga or cannabis to be a plant or herb. Dismissal was an appropriate sanction.
Order: The application for review is dismissed.
PRINSLOO J
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PATENTS AND UNCLEAN HANDS
Civil procedure – Abuse of process – Unclean hands doctrine – Law of patents not exempt – Leave to amend to introduce special plea on unclean hands – Permissive principle.
Villa Crop Protection v Bayer Intellectual Property [2022] ZACC 42 at [72]-[93]
Facts: Bayer holds a patent for a chemical called spirotetramat which is used in a plant protection product sold as Movento. It instituted infringement proceedings in the Court of Patents seeking to protect Movento from competition against Villa Crop’s product, which is known as Tivoli. Villa Crop disputed the validity of the patent and claimed that the patent was liable to be revoked because it formed part of the state of the art immediately before the priority date of the invention. Following the filing of their plea and counterclaim for revocation, Villa Crop filed an application for leave to amend its particulars. Villa Crop sought to introduce a special plea based on the principle of unclean hands and abuse of process by Bayer of its duty of good faith as a patentee. It alleged that a false statement or representation was made in the prescribed declaration required in respect of the application.
Appeal: Against the judgment and order of the Court of the Commissioner of Patents refusing Villa Crop leave to amend its plea.
Discussion: That Villa Crop’s reliance upon the unclean hands doctrine was on claim of contradiction; the contention that Bayer represented to European authorities that spirotetramat was protected by its basic patent but later, in South Africa, it represented that spirotetramat was a novel invention; and that the Commissioner reasoned that it was not in the interests of justice to embark on a protracted inquiry of the special plea as it would detract from the real issue in dispute in the action.
Findings: The Commissioner of Patents failed to adopt the permissive principle, but instead arrogated to herself a broad discretion to decide the application to amend under the capacious concept of the interests of justice. That is not our law. Courts do not decide for litigants what disputes the interests of justice permit them to pursue before the courts. A litigant has the right to frame the dispute that requires resolution and to formulate a defence. The courts have the power to prevent an abuse of process, of which the doctrine of unclean hands is a species. The law of patents is not exempted from the application of the doctrine.
Order: The appeal is upheld and the order of the Commissioner set aside and in its place Villa Crop is granted leave to amend by the introduction of its “special plea in limine”.
UNTERHALTER AJ (majority) at [54]-[93]
MATHOPO J (minority) at [1]-[53]
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DNA EVIDENCE AND CRIMINAL CONVICTIONS
Criminal – Evidence – DNA – Rape case where prosecution exclusively relied on DNA evidence – Probative value of DNA evidence in satisfying the standard of proof in criminal proceedings and how it is determined.
Tom v State [2022] ZAECMKHC 98 at [9]-[27]
Facts: The complainant was robbed and raped while her head was covered with a blanket. DNA material was extracted from what was identified as semen. The case went cold until three years later when the appellant was arrested on an unrelated charge and a reference DNA sample taken from him was found to match the DNA profile from the semen found on the complainant’s clothing.
Appeal: Against convictions for rape, robbery and related charges, with a sentence of life for the rape.
Discussion: That the prosecution exclusively relied on the DNA evidence for a conviction; what DNA evidence is; that its admissibility is subject to there being a sufficiently reliable scientific basis for the evidence to be admitted; the principles applicable to the admission of expert evidence; the determination of the probative value of the DNA evidence; and that that there was a geographical association between the appellant and the offences.
Findings: The trial court correctly rejected the appellant’s alibi defence when regard was had to its quality, and it is placed in the balance with the DNA evidence. A feature of the appellant’s evidence was its lack in detail and the trial court rightly also questioned its veracity. There was no reason to doubt either the matching data of the DNA evidence or the statistical conclusion based thereon. It was supportive of a conclusion beyond a reasonable doubt that the DNA profile of the appellant matched that of the sample collected from the complainant’s clothing. The State proved its case beyond reasonable doubt.
Order: The appeal is dismissed.
VAN ZYL DJP (MALUSI J and LAING J concurring.)
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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
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