Dausab v Minister of Justice [2024] NAHCMD 331
CONSTITUTION – Equality – Homosexuality
Applicant challenges validity of common law offences of sodomy and unnatural sexual offences – Challenges all statutory enactments incorporating these crimes – Various forms of sexual conduct committed by male person with another male person are not regarded as criminal, if committed by male person with female person – Differentiation which impugned laws accord to homosexual men amounts to unfair discrimination and thus unconstitutional – Constitution (Namibia) articles 8 and 10.
Facts: The applicant is homosexual and forms part of the LGBTQ community in Namibia. He is directly impacted by the common law offences of sodomy and unnatural sexual offences which criminalises an act committed in private between two consenting male adults. His decision to start living openly as a gay man came at a personal cost as he continues to experience intolerance and opprobrium. The Constitution guarantees protection against inhuman and degrading treatment, but he is not free to be himself. It is very hard for a homosexual to live in a country where one is supposed to have the freedom to do what one pleases, provided one respects the law, but where sodomy is criminalised. Homosexuals are automatically classified as criminals because for many persons, being a homosexual is equivalent to committing the offence of sodomy.
Application: The applicant challenges the validity of the common law offences of sodomy and unnatural sexual offences, as well as all statutory enactments, which refer to or incorporate these crimes, on six constitutional grounds, namely, that the impugned laws: (a) irrationally and unfairly differentiate on the basis of sex and sexual orientation and therefore violate Article 10 of the Constitution; (b) unlawfully limit the right to dignity as contained in Article 8 of the Constitution; (c) unjustifiably limit the applicant’s right to privacy as contained in Article 13(1) of the Constitution; (d) unjustifiably violate the right to freedom of association in Article 21(e) of the Constitution; (e) unjustifiably violate the right to freedom of expression in Article 21(a) of the Constitution; and (f) the crime of “unnatural sexual offences” is unconstitutionally vague.
Discussion: The impugned laws do take into account the physiological differences between the male and female genders. The question that then follows is whether those laws have been shown to be rationally connected to a legitimate governmental purpose. Can it be said that to criminalise consensual anal intercourse between consenting males in private, simply because we consider it to be immoral, shameful and reprehensible and against the order of nature, is so important an objective, as to outweigh the protection against unfair discrimination? What threat does a gay man pose to society, and who must be protected against him? The sexual conduct is an offence, if committed by a male person with another male person, but not regarded as criminal if committed by a male person with a female person or between female persons. The question that springs to mind is, what is rational about criminalising one sexual activity and not the other?
Findings: That homosexuality is an abominable vice and that a section of our society cannot tolerate its presence, it remains possible that this common opinion is a compound of prejudice and personal aversion (representing no conviction but merely blind hate rising from unacknowledged self-suspicion). It is a contradiction to accept that criminalising anal sex between man and man and not between man and woman amounts to differentiation but is not discrimination. The law of consensual sodomy is arbitrary and unfair and is based on irrational considerations. The impugned laws differentiate between people or categories of people, that is, between male and female and between gay men and heterosexual men. The criminalisation of anal sexual intercourse between consenting adult males in private, is outweighed by the harmful and prejudicial impact it has on gay men and its retention in our law is thus not reasonably justifiable in a democratic society. The differentiation which the impugned laws accord to gay men amounts to unfair discrimination and is thus unconstitutional.
Order: The common law offence of sodomy is declared unconstitutional and invalid. The common law offence of unnatural sexual offences is declared unconstitutional and invalid. The inclusion of the crime of sodomy in schedule 1 of the Criminal Procedure Act 51 of 1977 is declared unconstitutional and invalid. Section 269 of the Criminal Procedure Act is declared unconstitutional and invalid. The inclusion of the crime of sodomy in schedule 1 of the Immigration Control Act 7 of 1993 is declared unconstitutional and invalid. The inclusion of the crime of sodomy in section 68(4) of the Defence Act 1 of 2002 is declared unconstitutional and invalid.
NDAUENDAPO J, UEITELE J and CLAASEN J
~
Fortein NO v Iprop Trading CC [2024] ZAFSHC 170
CIVIL LAW – Duty of care – Cybercrime – Business email compromise
Auctioneer purchased property from insolvent estate – Making payment to incorrect account due to intercepted email – Obligation on purchaser to ensure that bank account details are correct and that payment is made to seller and not to unknown third party – Failure to do so and payment made into incorrect account – Incorrect payment does not extinguish purchaser’s obligation and liability to pay debt.
Facts: The appellant, Ms Fortein, acted in her capacity as trustee of an insolvent estate and the respondent, Iprop Trading, is an auction house. The respondent offered to purchase certain movable property from the insolvent estate. It is contended that, in terms of an agreement, the respondent was to have transferred an amount of R58,250 into the bank account of which the details were received via email from the appellant. The appellant did not receive the payment and when the respondent provided the appellant with the email proof of payment, it was evident that the payment was made into a different banking account, at a different bank. Mr Fortein testified that although he is not in the employment of Karen Fortein Incorporated, he has been assisting the appellant as an insolvent consultant. He converted to practicing as an attorney in 2022. Mr Fortein was never contacted by anyone on behalf of the respondent to confirm the banking details of the insolvent estate.
Appeal: The appellant claimed the R58,250 in the magistrate’s court. The court a quo dismissed the claim and the alternative claim. The first claim was a contractual claim and the alternative claim was that the defendant was negligent in that they did not take reasonable care to ensure that the amount of R58,250 was paid. The court was not convinced that the plaintiff proved on a balance of probabilities that the defendant was negligent.
Discussion: Mr Fortein conceded that it was not stated in the email he sent that the respondent should call the appellant to confirm the banking details. He testified that he believes that the duty to have confirmed the banking details was the responsibility of the respondent. Mr Fortein further testified that he was aware of cyber-crime, but that it was not his duty to have advised the respondent to confirm the banking details telephonically. As representative of the insolvent estate, he fulfilled his duty to make sure that he receives the money by having sent the correct banking details to the respondent. The expert in digital forensics testified that the level of this type of fraud is extremely high in South Africa. He has personal knowledge thereof that the Law Society of South Africa has been highlighting this problem and has actually issued a number of warning notices or directives as to this risk. Ms Engelbrecht is the Financial Department Manager of the respondent and testified that she had no reason to doubt that the email was indeed from Mr Fortein, since the email address and signature were the same as previous communications and what further satisfied her in this regard is that Mr Fortein spelled her name incorrectly by adding an “e” on the end, like he did in previous emails which he sent to her.
Findings: The terms pertaining to payment as pleaded by the appellant had not been proven on a balance of probabilities by the appellant and the court a quo was correct to dismiss that claim. Regarding the alternative claim, the court considers several judgments on topic. The court agrees with the judgment of the full court in Mosselbaai Boeredienste v OKB Motors ta Bultfontein Toyota [2024] ZAFSHC 95. Central to the appellant’s case in Mosselbaai Boeredienste is that a person who sends an electronic mail is generally unaware of any fraudulent access to his or her electronic mail account and is unaware that the electronic mail which is received by the recipient has been intercepted, hacked and changed. There is an obligation on the purchaser to ensure that the bank account details contained in the invoice is in fact correct/verified and that payment is made to the seller and not to an unknown third party. Failure to do so, and where payment is made into an incorrect bank account, such incorrect payment does not extinguish the purchaser’s obligation and liability to pay the debt. In the circumstances the appellant’s alternative claim should have succeeded in the court a quo.
Order: The appeal against the dismissal of the first claim is dismissed. The appeal against the dismissal of the alterative claim is upheld and substituted with and order that the defendant is ordered to pay R58,250 together with interest a tempore morae.
VAN ZYL J (MBEHELE DJP concurring)
* See also Galactic Auto (Pty) Ltd v Venter [2019] ZALMPPHC 27 and Edward Nathan Sonnenberg Inc v Hawarden [2024] ZASCA 90.
~
Ngceke v Chief Financial Officer, Buffalo City Municipality [2024] ZAECELLC 34
MUNICIPALITY – Billing – Dispute – Exhausting internal remedies – Consumption of water
Cracked pipe causing leak – Applicant disputes liability for excessive charges and requires recalculation – No decision taken by CFO of municipality – No obligation on applicant to have exhausted an internal remedy – Municipality abysmally failed to meet its constitutional and legal mandate to applicant – Failure to comply with enquiries and appeals procedures unlawful – Local Government: Municipal Systems Act 32 of 2000, s 62.
Facts: The applicant is a consumer of municipal services and received a shocking monthly statement comprising of a hefty debit in the sum of R29,101.70 purportedly in respect of water consumed by her at the property. She doubted that the amount could be correct or consistent with her consumption of water and decided that the Municipality must have made a mistake in its calculations. She took the step of appointing a plumber to assess the property for any leakages. He opined that a leak existed between the municipal water meter and the fencing of the applicant’s property. The broken pipe was replaced at the applicant’s own cost even though the leakage had apparently emanated from municipal property. The applicant’s attorneys addressed a formal dispute to the Municipality on her behalf, marked for the attention of both the Chief Financial Officer and the Municipal Manager, challenging her supposed liability for the excessive charges. The Municipality has not replied to its substance or followed the applicant’s attorney’s suggestions regarding a common-sense resolution of the matter. The applicant disputes liability for the excessive charges and requires that the account be recalculated.
Application: The applicant seeks an order directing the respondents to comply with its enquiries and appeal procedure set forth in its credit control policy pursuant to her having lodged a dispute with it regarding the calculation of outstanding balances purportedly due by her on her consumer account. The charges in contention relate to billing for the consumption of water.
Discussion: In response to the accusation by the Municipality that she had supposedly not complied with the provisions of section 4(6)(h) of its Policy applicable at the time that dictates to a consumer what to do when water leaks are found on properties, the applicant clarified that not only did she declare the dispute formally in May 2023, but that during 2002 she had brought the fact of the leak (vouched for by a plumber as required) to the Municipality’s attention. She adverted to an affidavit made by her in which she explains that she had called in the services of the plumber at the time and in which she emphasizes what the problem was concerning the leak, and how he had resolved it. She claims that she had provided the affidavit to the Municipality’s officials at the time at their prompting. The applicant has adequately stated the basis of her dissatisfaction and the desired resolution of her dispute. Moreover, the dispute relates to specific charges raised on the account which the Policy behoves her to highlight. This she has done and there is more than enough information that has been placed before the respondents to cut right to the problem and to be constitutionally accountable to the applicant as per the guiding principles under their Policy.
Findings: The Policy that the respondents rely upon says nothing about a deemed decision and does not provide for a situation where the tardiness or neglect comes from the Municipality. This in effect means that a consumer invoking the dispute procedure is up a creek without a paddle as it were, if the Chief Financial Officer does not respond to the enquiry within the more than ample sixty days provided for in section 7(4) of the Policy. Since no decision has been taken by the Chief Financial Officer to date, there is no decision that falls to be considered on appeal by the relevant authority in terms of section 62 of the Local Government: Municipal Systems Act 32 of 2000. That means, in turn, that there was no obligation on the applicant to have exhausted an internal remedy before she turned to this court to intervene. The applicant has been traumatized by the excessive billing that has been in play for almost three years now. If a consumer cannot under the constraints of the Policy approach a municipal official at a counter and have their queries summarily dealt with or concerns allayed, they must at least be entitled to legitimately expect fair administrative procedures by accountable local government in accordance with the applicable policy in force at the time. The Municipality has failed to meet its constitutional and legal mandate to the applicant.
Order: The respondent’s failure to comply with the enquiries and appeals procedures detailed in the Policy, in respect of the enquiry lodged by the applicant, is declared unlawful. The respondent is directed, within 10 days, to respond appropriately to the applicant’s dispute in writing.
HARTLE J
~
ABOUT SPARTAN CASE LAW
The ultimate case law service, curated by experts in law reports.
- 14 recent cases summarized and delivered each morning at 6am in an interactive online experience.
- The latest legal news, articles and updates.
- Online case index with intuitive search functions and cases categorised under topics and sub-topics.
Find out more at the Spartan Caselaw website:
Spartan Case Law
