Louis Case Reports

CONTEMPT FOR REFUSING FATHER ACCESS TO SON
ND v PT [2022] ZAGPJHC 13

A father brought an urgent application seeking an order of contempt against the mother pursuant to her allegedly failing to comply with an order of the court granted by Clarke AJ. This order regulating the father’s contact with their minor son who is about 19 months of age. The father alleges that in contravention of this order the mother failed to facilitate video calls every afternoon, failed to pay the social workers costs and failed to allow his contact with the child.

Crutchfield AJ notes that shortly after delivery of the judgment, the mother withdrew the divorce proceedings, forcing the father to launch divorce proceedings afresh. The mother also applied for leave to appeal the judgment, which was dismissed with costs on an attorney and client scale.
Clarke AJ had found that the mother flagrantly disregarded the father’s role as a parent, denying him contact for almost the entire young life of the child and relocated with the child to Cape Town without telling the father, intending to alienate the child from him.

The mother was aided and abetted by her attorney, who, as an officer of the court was under a duty to act in the best interests of the child and not to advance the mala fide cause of his client. The attorney’s willingness to fuel the flames of conflict was evident from both the tone and content of his correspondence as annexed to the founding affidavit and the reply, both to the applicant’s attorneys and even to and about the Family Advocate.

The mother is found to be in contempt of the order granted by Clarke AJ and is committed to prison for 20 days, suspended on condition that she complies with the order.
The mother is ordered to pay the costs of the application on an attorney-and-client scale.

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LIABILITY FOR ELECTROCUTION AT A COMPLEX
SD v Ncube [2022] 48584-2017 (GP)

An 11-year-old boy who stayed at a complex offered to wash his mother’s car and went to fill a bucket at the communal tap. He was electrocuted and stuck to the tap until the electricity was turned off. His mother sued the defendants and the trial proceeded on the issue of liability. This was complicated by the chain of instructions and roles players involved. Ms Ramlakan was a tenant at the complex and had been unhappy with the kitchen. Mr Dembo had appointed Mr Mynhardt to deal with maintenance and repairs at the unit. He appointed Mr Carr to carry out improvements on the kitchen, but his two workers drilled the wall and damaged the electrical installation. So Mr Carr contracted Mr Ncube to fix the damage, but he did this badly. Ms Ramlakan noticed that she received an electrical shock when she touched the taps so she asked for it to be fixed, but it was not done by that evening, so she left the electricity supply off the next day when she went to work. Mr Carr’s two workers returned to work on the kitchen and switched on the electricity and created the dangerous situation where the boy was electrocuted.

Millar J discusses that it was accepted that Mr Ncube’s work had directly caused a dangerous situation; and whether Mr Carr’s two workers by switching off the electricity and turning it on again, when they knew of the danger, created an intervening cause which severed the chain of liability between Mr Ncube and the incident the following day. The court finds that this switching on was unusual, unexpected and not reasonably foreseeable, so the action against Mr Ncube must fail. The body corporate was unaware of the danger and what occurred was not reasonably foreseeable, so the action against it also had to fail.

The court then turns to Mr Dembo, who chose Mr Mynhardt as his representative in dealing with the repairs at Ms Ramlakan’s unit. And that Mynhardt had a duty to inform Mr Dembo of the dangerous situation, but did not. It is found that the knowledge of the dangerous situation must be imputed to Mr Dembo. Mr Carr was an independent contractor and it appeared that the two workers who switched on the electricity were themselves independent contractors. Both Mr Dembo and Mr Carr are found liable for the negligent omissions and/or acts of their agents or employees.

Mr Dembo is found liable for the damages as may be proved and the third party, Mr Carr, is found liable to indemnify Mr Dembo for 50 % of such amount.

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FREE SPEECH AND HELEN ZILLE’S TWEETS ON COLONIALISM
Premier, Western Cape v Public Protector [2022] ZASCA 16

After Ms Helen Zille had visited Singapore, she made certain tweets about the impact of colonialism on South Africa, when she was still the Premier of the Western Cape Provincial Government. A complaint about the tweets resulted in the Public Protector conducting an investigation and then submitting a report where certain remedial action was recommended. Ms Zille approached the Pretoria High Court to review and set aside the findings in the Protector’s report. The High Court declined to review the Public Protector’s decision and Ms Zille was granted leave to appeal to the Supreme Court of Appeal.

Molemela JA discusses whether Ms Zille’s tweets violated the Executive Ethics Code, as contended for by the Public Protector, or whether they enjoyed the protection of free speech enshrined in s 16(1) of the Constitution, as contended for by Ms Zille; and particularly the limitations in s 16(2)(b) and incitement. The court finds that the Protector’s conclusion that 16(2)(b) was implicated constituted a material error of law and she further wrongly concluded that the Ethics Code was breached.

The appeal is upheld and the order of the High Court replaced with one reviewing and setting aside the findings and remedial action in certain paragraphs of the Protector’s report.

[36] It bears mentioning that what is undeniable is that Ms Zille continued to post further tweets despite realising that a number of twitter users were affronted by her initial tweets. This might well be indicative of insensitivity on her part. The fact of the matter is that insensitive speech still falls under the purview of protected speech. Despite Ms Zille’s tweets having clearly offended some sensibilities, I am unable to find anything that takes her tweets out of the realm of protected speech.

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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

You can read his full CV and more about Louis on his LinkedIn profile where he shares interesting and recent cases.

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