Tikbox League v Du Toit [2023] ZAGPPHC 2025
CONTRACT – Contra bones mores – Boxing contests
To arrange fights between members of public – Contest whereby members intentionally apply bodily force to each other to settle disputes – Common purpose to gain profit and fame – Consequential participation possibly constituting organized crime – Embodies what is regarded as crimes of assault, culpable homicide and even murder – Contest has not been legalized nor could lawful consent be granted – Proceeds of unlawful contracts and activities – Illegal, contra bones mores and unenforceable – Application dismissed.
Facts: Tikbox (applicant) conducts business as a promotion company, specifically pertaining to the hosting and promotion of “for fun” Tik Tok star fights, in a safe and controlled manner, for the benefit of the stars, through promoting same. Tik Tok stars are people, made famous by their multitude of followers of their posts on the TikTok-platform, to the extent that they get paid by the latter. Du Toit (respondent) alleges that he had a business idea to arrange for influencers who have disputes with each other to meet in person for boxing events, which events would be open to the public after they had bought tickets. The first event was hosted in March 2023 and generated an income, which quickly became the centre of the dispute between the parties.
Application: The applicant seeks to declare the respondent a delinquent director of the applicant and seeks his removal as director. It further seeks that the respondents be ordered to effect payment of the ticket sales to the applicant.
Discussion: Before the court can turn to the questions as per the relief sought, it must first ensure that the purse was not filled with the proceeds of unlawful contracts and activities. The nature and intended purpose of the contract is an agreement between parties, to host and promote a boxing event where members of the general public, having a social media feud, are set about a contest whereby they intentionally apply bodily force to each other in an effort to settle same, to the spectacle of the public, all involved with a common purpose to gain profit and/or fame. Embarking upon the question whether the relevant contract and the business is lawful, the court clarified that assault, like culpable homicide and murder, and the conspiracy to commit same, is unlawful and a crime. The next question that arises is whether an intentional application of force to the body on another may be regarded as a justification in our law in the instance of consent. The crime and the type of act in question must be of such a nature that the law recognises consent to the commission of such an act as a ground of justification. Lawful consent is narrow and far more complex than the ordinary defined concept of the word consent.
Findings: Boxing is tightly regulated by the South African Boxing Act 11 of 2001, its regulations and by the Safety at Sports and Recreational Events Act 2 of 2010, to legalize the sport so that lawful consent can be granted by the participants and to justify the intentional application of bodily force to each other. The undisputed facts have shown that the contest has not been legalised nor could lawful consent be granted in the instance. For this event, act, business, or contract to be lawful, absent legislation and public policy not to the contrary, the consent must be one where the intention is not to inflict injury to the extent that it carries with it an inherent or imminent risk of serious injury or death. The act to engage random members of the public, in a contest which is inherently dangerous to the extent that the participants may be seriously injured or even killed, is contra bones mores and unlawful, and so is the contract which the parties seek to enforce.
Order: The application is dismissed.
LE GRANGE AJ
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Competition Commission v Bank of America Merrill Lynch [2024] ZACAC 1
COMPETITION – Banks – Single overarching conspiracy
Commission alleging manipulation and extortion of normal competitive conditions in trading of USD and ZAR currencies – Reference to engagements in messaging chatrooms – Tribunal concluding that referral affidavit contained adequate details to justify conclusion of conspiracy between foreign and local banks to manipulate trading – Whether subject matter jurisdiction in respect of local peregrinus and incola banks established – Court finding cases against several of the banks to be lacking – Competition Act 89 of 1998, s 4(1)(b).
Facts: The Competition Commission decided to prosecute 28 banks, including South African and foreign banks, which the Commission alleges colluded and conspired with each other to manipulate the foreign exchange rate in respect of the United States Dollar (USD) and the South African Rand (ZAR) to their own benefit. The Commission brought the case on the basis that the respondent banks had contravened section 4(1)(b)(i) and (ii) of the Competition Act 89 of 1998. The Commission alleged that, with effect from September 2007 until at least September 2013, the respondent banks reached an agreement or coordinated their activities to participate in a single overarching conspiracy. The participants of the conspiracy pursued a single anti-competitive economic objective, namely, the manipulation and the extortion of normal competitive conditions in the trading of the USD/ZAR currency.
Appeal: The litigation relating to this complaint has a long and torturous history. Following appeals by a number of the respondent banks and a cross appeal by the Commission, a decision was taken by this court in 2020 to give the Commission a final opportunity to file a new referral affidavit to substitute and replace the referral affidavit found wanting. It did so. The Tribunal concluded that the referral affidavit, which extended to 106 pages, contained adequate details to justify a conclusion that, read as a whole, it prima facie showed that there was a single overarching conspiracy (SOC) between foreign and local banks to manipulate trading of the USD/ZAR currency pair.
Discussion: The Commission emphasized the existence of numerous engagements in chatrooms on the Bloomberg instant messaging platform whose participants were competing traders engaged in the USD/ZAR currency pair and the frequent presence of competing traders in the Bloomberg chatrooms. The referral alleges that there were two central implicated chatrooms in the conspiracy which were employed by multiple traders from multiple competing banks which, in the view of the Commission, was the site of engagement and conduct implementing the terms and furthering the objectives of the SOC. See para [63] for the discreet pieces to the legal puzzle created by this litigation, including whether subject matter jurisdiction in respect of local peregrinus and incola banks has been established.
Findings: The Commission based its entire case on a SOC in which all of the respondent banks were said to be participants. It behoved the Commission to provide significant further details in the referral affidavit over and above its initiation referral affidavit to show that this overall conspiracy could be proved to include all the respondent banks. Compounding the difficulty of this ambitious cause of action as developed by the Commission was the fact that a number of the banks were peregrini as a result of which the Commission was required to make a showing of both personal and subject matter jurisdiction. An occasional participation in a chatroom or unspecified conduct which is tenuously inferred as being part of the overall conspiracy is insufficient to meet the jurisdictional requirements. Much was made in the referral affidavit and by the Commission’s counsel of consistent prices being observed across time and banks. A fundamental problem with this submission and which percolates itself throughout the referral affidavit is the inability to distinguish between information which is in the public domain, that is information available to all banks who simply have access to Reuters or a similar screen available to all banks, and information that could only be the product of some form of nefarious cartel activity.
* See the conclusions at paras [174]-[182] and the finding at paras [183]-[188].
Order: The order of the Competition Tribunal of 30 March 2023 is set aside and replaced with one dismissing the applications by BNP Paribas, JP Morgan, Credit Suisse Securities and HSBC. These respondents must file their answering affidavits to the referral within 40 days of the order of this court. There is no order as to costs.
DAVIS AJA (NUKU JA and NKOSI AJA concurring)
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FAMILY – Divorce – Separation of issues
Applicant having cancer diagnosis and seeking separation of decree of divorce from other issues including maintenance and redistribution – Claiming undue strain and seeking divorce to have closure with respondent – Diagnosis life threatening and not terminal – Decree of divorce will not give relief to applicant when division of estate still hanging over his head – Court not persuaded that alleged harm justified disruption of roll and resultant prejudice to other members of public by allowing applicant to jump queue – Application dismissed – Uniform Rule 33(4).
Facts: The parties were married in 1995 out of community of property and by antenuptial contract with the exclusion of the accrual system. Only one of the two children born of the marriage was still a minor. The last child will also turn a major in 2024. The applicant instituted the divorce action in 2020 and the respondent left the common home, a farm, in that year. The applicant was diagnosed with colon cancer and underwent surgery but was later diagnosed with stage 4 metastatic liver cancer for which he had chemotherapy.
Application: The applicant previously sought a preferential or expedited trial date but this was opposed by the respondent who contended that the applicant has declined to discover documents which the defendant believes are relevant to the matters in issue, particularly his medical records and the bank statements of various entities in which he has an interest. The court now considers an urgent opposed application for an order for a separation of the decree of divorce from the other issues which include spousal maintenance, child support and a redistribution order.
Discussion: The applicant was concerned that if he did not obtain a decree of divorce imminently, he will continue to be under undue strain on his day-to-day life. He wanted to move on with his life and have closure with the respondent. The stress and shame of being married to the respondent affected his already compromised health. The continued litigation was traumatic to his elderly mother, his children and extended family who were desperate for the parties to divorce. Given the cancer, its stage and the rate at which it progressed, he could not wait for months for this application to be determined. He wished to be divorced as a matter of urgency. The respondent’s case was that the application was an abuse of court process as it would not change the applicant’s physical or emotional status but allow him to be in a position to conceal income and assets. The respondent alleged that the applicant has a history of hiding money in the accounts of others, including one of his girlfriends who is also his accountant.
Findings: Whilst applicant’s diagnosis may be life threatening, it is not terminal. The stress of this process will not subside simply because a decree of divorce was granted whilst the other issues remained pending. The issues in dispute are beyond the bonds of the marriage and the divorce will only be finalized once all the issues have been ventilated and especially division of income and assets have occurred. The court is unable to find any explanation how the granting of an urgent decree of divorce will grant relief to the applicant’s alleged agony when the estate division, which is at the heart of the acrimonious litigation between the parties and the primary source of their distress, will still be hanging over his head in the very same action. The court was not persuaded that the kind of harm that the applicant alleged justified the disruption of the roll and the resultant prejudice to other members of the public whose matters would take longer to be heard as they had to wait for the applicant’s case to jump the queue.
Order: The application is dismissed with costs on attorney and client scale.
THULARE J
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