MAREVA INJUNCTION
Civil procedure – Mareva injunction – Interdict sui generis in South Africa – SARS wishing to preserve assets for claim on customs liabilities – Movement of funds and assets to defeat claim – Provisional anti-dissipation order confirmed.
CSARS v Moloto [2022] ZAGPPHC 832 at [14]-[29]
Facts: Bustque 542 (Pty) Ltd and Mr Moloto are liable to pay SARS R64 million and R112 million, respectively, in respect of customs dues. According to SARS they are busy dissipating assets by transferring them to the other respondents and these are the assets which ought to satisfy a judgment to be obtained for the custom liability. SARS seeks to preserve those assets.
Application: SARS obtained a provisional order ex parte. The present application is for the final confirmation or discharge of the order.
Discussion: The Mareva injunction remedy and its origins; the English law position pre-Mareva; the South African law position; the requirements, such as assets that may be removed and the difficulty of recovery; that an applicant must show an intention, as opposed to forming a reason to believe; that the applicant must show that the respondent acts with a mala fide intent; whether SARS showed an intention to defeat the claim; and that our law recognises an interdict sui generis for matters of this nature.
Findings: From the conduct of Moloto and Bustque, the most plausible inference to be drawn was that the movement of funds and assets happened with one sole intention and that was to defeat the claim of SARS. SARS met the requirements of the interdict sui generis.
Order: The provisional anti-dissipation order is confirmed with terms as set out in the order, including the appointment of a curator bonis.
MOSHOANA J
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R2 MILLION FOR UNLAWFUL ARREST AND DETENTION
Delict – Unlawful arrest and detention – Two years and one month – Harsh conditions in jail – Forcibly tattooed over body by inmates – Contracting HIV – Award of R2000,000.
MAT v Minister of Police [2022] ZAGPPHC 813 at [24]-[31] and [51]-[53]
Facts: Plaintiff was arrested without a warrant by the police on charges of housebreaking and theft. He appeared before the magistrates’ court and applied for bail, which was opposed by the police, and consequently denied by the court. He remained incarcerated for two years and one month, until the charges were withdrawn and he was released.
Claim: For damages arising from unlawful arrest and detention.
Discussion: The police investigation into the break-in and theft from a school; that the plaintiff said that he gave the police goods that his friends had left at his house; that the plaintiff testified that the jail was dirty and overcrowded, with violence and fighting among the inmates and police brutality, and that the food was unhealthy; how plaintiff was tattooed by force by the inmates, resulting in him contracting HIV; he was released back to the community with tattoos all over his body, which he hates and people think that he is a criminal; and the testimony of the clinical psychologist that he was traumatised and developed severe depression.
Findings: The arresting officer did not properly exercise his discretion to arrest the plaintiff and the arrest was unlawful. The investigating officer never interviewed the plaintiff or his family members nor did he confront the plaintiff with his statement for all the period he was detained. The investigating officer testified against granting bail to the plaintiff and he was not granted bail due to the information provided. The Minister is liable for plaintiff’s detention until his release.
Order: The plaintiff is awarded damages in the sum of R2,000,000.
MAZIBUKO AJ
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ECTA AND PROOF OF EMAILING
Civil procedure – Service of court process by email – Proof of sending – Deeming provisions in ECTA not triggered by mere allegations of having sent an email – Production of evidence of emailing required – Electronic Communications and Transmissions Act 25 of 2002, s 23.
Acrow Limited v South Mead t/a Meister Cold Store [2022] ZAGPPHC 802 at [18]-[38]
Facts: The taxation of respondent’s bill of costs by the Taxing Master proceeded in the absence of the applicant. Respondent insisted that its attorneys’ costs consultants had sent an email to the applicant’s attorneys to which the notice of set down was allegedly attached. The applicant denies that it received the email and notice of set down.
Application: Seeking a rescission or setting aside of the taxation of the respondent’s bill of costs.
Discussion: That the respondent invokes the deeming provisions of section 23(2) of the Electronic Communications and Transmissions Act 25 of 2002 (ECTA) to avert the onus or duty to provide the requested proof of emailing of the notice of set down; whether the email attaching the notice of set down of the taxation of the bill of costs was sent by the costs consultants and received by the applicant’s attorneys; service of court process by email and Uniform Rule 4A; entry of a data message into the information system of the addressee; the onus on the addressee and the sender; and the provision of a “sent report”.
Findings: It was incompetent for the respondent to merely seek refuge in the deeming provisions of section 23(b) without first demonstrating the completion of the requirements of section 23(a) regarding the sending of the message. The application of the deeming provisions of section 23(b) is not triggered by mere allegations of having sent an email, but by the production of the evidence of emailing: automatically generated “sent report” following a successful transmission of emailed information. The required proof of the sending of the email is accessible only to the respondent and costs consultants from the system that was used to send the email. A failure to provide proof of emailing is a disproval of the respondent’s allegation that the notice of set down was emailed to the applicant’s attorneys.
Order: The application succeeds on the ground of the irregularity in respect of service of the notice of set down of the taxation of the bill of costs.
MBONGWE 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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