DISCOVERY AND SELF-INCRIMINATION
CONSTITUTION – Fair trial – Self-incrimination – Discovery – Whether the right not to be compelled to give self-incriminating evidence extends further than testimonial utterances – Party to a civil action is entitled to refuse to discover material that may tend to incriminate them in parallel criminal proceedings arising from the same facts – Constitution, s 35(3)(j).
MTN v Madzonga [2023] ZAGPJHC 188 at [18]-[29]
Facts: Mr Madzonga was an employee of MTN. In the main action, MTN alleges that he issued instructions to an attorney, Ms Nxusani, for work that was not needed and which was never performed or which carried no value. Mr Madzonga authorised payment and Ms Nxusani’s firm was paid over R12 million.
Application: MTN seeks to compel discovery of the firm’s financial records to assist it in proving its case.
Discussion: That Ms Nxusani says that the documents may, if disclosed, tend to incriminate her and her firm in parallel criminal proceedings arising from the same facts underlying MTN’s cause of action in this case; the privilege against self-incrimination in the context of civil proceedings to compel discovery; a discussion of the case law, Erasmus and Herbstein & Van Winsen, the position in the UK; and section 35(3)(j) of the Constitution and whether the right not to be compelled to give self-incriminating evidence extends further than testimonial utterances.
Findings: Rights in the Bill of Rights must be interpreted generously and purposively. There is presently no statutory limitation on the right against self-incrimination that applies in the context of civil discovery proceedings. It is a valid objection to making discovery in civil proceedings that a party honestly believes the material sought to be discovered may incriminate them in parallel criminal proceedings arising from the same facts. The respondents’ objection to discovering the documents MTN seeks to compel must be upheld.
Order: The application is dismissed with costs.
WILSON J
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PROTECTED DISCLOSURE AND DISCIPLINARY ENQUIRY
LABOUR – Disciplinary hearing – Protected disclosure – Employee alleging protected disclosure and seeking inquiry conducted by arbitrator – Employee cannot merely make allegation – Allegation must be one made in good faith – A contravention must not only be alleged it must prima facie factually exist – Required jurisdictional facts set out – Labour Relations Act 66 of 1995, s 188A(11).
Mohlala-Mulaudzi v Property Practitioners Regulatory Authority [2023] ZALCJHB 19 at [42]-[62]
Facts: Ms Mohlala was appointed in 2019 as the CEO of the Property Practitioners Regulatory Authority. Her appointment was for a fixed term and they had concluded a written contract of employment. The Authority presented allegations of misconduct and a disciplinary hearing was to be held before an advocate. Ms Mohlala invoked the provisions of section 188A(11) of the Labour Relations Act 66 of 1995 (LRA) by requiring that an inquiry be conducted by an arbitrator. She contended that the holding of an inquiry would contravene the Protected Disclosures Act 6 of 2000 (PDA). Delays included an approach to the CCMA and Ms Mohlala seeking legal assistance, until the Authority decided to terminate the employment relationship summarily with immediate effect.
Application: Urgently seeking a declaration that the summary dismissal effected by the Authority was in breach of the contract of employment and is in breach of the section 188A of the LRA process.
Urgency: Litigants tend to approach court seeking specific performance under the banner of section 77(3) of the Basic Conditions of Employment Act 75 of 1997 and, in order to place a foot at the door, disavow perennially obtainable and adequate reliefs provided for in the LRA. The misapprehension is that once section 77(3) of the BCEA and the disavowal of the LRA remedies are alleged, a need magically emerges for the granting of an urgent relief. Rule 8 of the Labour Court Rules requires reasons for urgency and why urgent relief is necessary. Harm to job prospects, reputation and the dilution of a right to seek specific performance are not are an answer to the question why urgent relief is necessary. Ms Mohlala has failed to show that she is entitled to an urgent relief.
Protected disclosures: A new strategy seems to have been crafted to stall internal disciplinary hearings by invoking an alleged protected disclosure and section 188A(11). An employee cannot merely make a simple allegation of contravention of the Disclosures Act in order to invoke the subsection. The allegation must instead be one made in good faith. A contravention must not only be alleged it must prima facie factually exist. The provisions of the section are evocable if the following jurisdictional facts are present in this order:
(1) The employee must make a protected disclosure. (2) Thereafter, the employer must subject the employee who already made a protected disclosure to an occupational detriment. (3) Once so subjected, an employee must allege honestly and sincerely that a causal connection does exist between his or her protected disclosure and the occupational detriment.
Nowhere in her founding papers does Ms Mohlala allege that she made a protected disclosure on a particular day and to whom. In the court’s view the intention was patently to stall the disciplinary steps as it is often done in this court by executive employees.
Order: The application is struck off the roll due to lack of the necessity for urgent relief.
MOSHOANA J
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DONATION MADE AFTER PROVISIONAL SEQUESTRATION
INSOLVENCY – Sequestration – Liquidated claim – Donation made to respondent after provisional sequestration – Intended to settle debts – Donation made to insolvent during insolvency vesting in provisional trustee – Debt not settled and applicants retaining requisite locus standi to move for a final order of sequestration.
Corruseal Corrugated KZN v Zakharov [2023] ZAWCHC 48 at [18]-[23]
Facts: Mr Zakharov (respondent) was at the helm of Exotic Fruit and Corruseal KZN and Corruseal Gauteng (applicants) supplied packaging materials with credit facilities. Respondent put up a personal suretyship for Exotic’s future indebtedness to both applicants, who ended up being owed R16 million and R1,2 million. Exotic was liquidated and the applicants proceeded against defendant for the amounts owed. Summary judgment was granted for the applicant at only R500,000 each, because that had been the credit limit and respondent argued that credit above the limit had prejudiced him as surety.
Application: The extended return day of a provisional order of sequestration granted against respondent.
Discussion: The contention by the respondent that, with the assistance of a friend who donated funds, an amount of R1,28 million had been paid in settlement of the two judgments plus interest, and accordingly there was no liquidated amount still owing, so applicants had no locus standi to proceed with the sequestration application; and the argument for the applicants that amounts paid after provisional sequestration vested in the Master and could not be used so as to extinguish debt owed to the applicants; and section 20 of the Insolvency Act 24 of 1936 and the effect of sequestration on the insolvent’s property.
Findings: A donation made to the insolvent during insolvency falls vests, in this case, in his provisional trustee, despite the friend’s intention to settle the debts to applicants and spare respondent a final order of sequestration. So the debt has not been settled and applicants retain the requisite locus standi to move for a final order of sequestration. The respondent has not taken the court into his confidence by attempting to demonstrate that his assets exceed his liabilities, notwithstanding the prima facie case of insolvency set up by the undisputed nulla bona returns of the sheriff. In light of the other factors the court finds that applicants have established that the respondent is factually insolvent.
Order: The rule nisi is confirmed and the respondent’s estate is placed under final sequestration.
GAMBLE J
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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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