Louis Case Reports

DELICT AND RUGBY INJURY

Delict – Negligence – Rugby injury – Second injury inflicted by incompetent first aid personnel – Whether public school hosting a sports tournament took reasonable steps to ensure the presence of competent and suitably equipped first aid provider.

MEC for Education, North West v Foster [2023] ZASCA 11 at [26]-[36]

Facts: When Mr Foster was in matric he was playing in a rugby game when he was tackled by a player from the opposing team and while on the ground another player fell on top of him. He sustained an injury to his neck as a result of the impact. Two first aid personnel carried him off the field without stabilising his neck with a spine board or solid neck brace. This caused a second injury and despite undergoing surgery twice, the doctors informed him that he would not walk again.                        

Appeal: Against the judgment of the High Court in favour of Mr Foster where the MEC was found liable for his proven or agreed damages a result of the manner in which he was carried off the field, which aggravated the existing cervical spine injury.

Discussion: How Mr Foster He was carried off the rugby field, against his protestation, by two first aid personnel and that it was undisputed that this caused his second injury; section 60 of the Schools Act 84 of 1996 and the liability of the MEC; that the schools had to take reasonable steps to ensure that competent and sufficient first aid personnel were present at the games to deal adequately with foreseeable injuries; the Chartaprops defence and that the school used the services of an independent contractor, being the trauma services.

Findings: The evidence shows that the trauma services employees were hopelessly incompetent and ill-equipped. It was only discovered after this tragic incident that the employee did not have the necessary qualifications and competence to do the work. The steps the school took in preparation of the games to prevent the foreseeable injuries were not reasonable under the circumstances.

Order: The appeal succeeds only regarding the punitive costs order against the MEC.

MOCUMIE JA (VAN DER MERWE JA, CARELSE JA and GOOSEN AJA concurring.)

Masipa AJA (dissenting) from para [37]

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CAUSE OF ACTION AND ARBITRATION AWARD

ARBITRATION – Award – Cause of action – Original agreement unlawful – Whether award giving rise to new independent cause of action or whether statutory prohibition permeating through award – Unlawful credit agreement in this case cannot be upheld by enforcing arbitral award – National Credit Act 34 of 2005.

Blacher v Josephson [2023] ZAWCHC 27 at [49]-[99]

Facts: The parties were previously close and long-standing friends. The appellant, who is an admitted but non-practising advocate, served as trustee of the respondent’s personal trust. In 2015 appellant approached the respondent, who had recently sold his house, to borrow money from him. The respondent advanced R2,5 million and acknowledgment of debts (AODs) were signed. Over time he paid the respondent R3,086,500 but the respondent declared a dispute which he referred to arbitration in terms of a clause in the third AOD.

Appeal: Against the judgment of the High Court whereby an arbitral award, which directed the appellant to make payment to the respondent of the sum of R1,535,000 together with interest and costs on the attorney-client scale, was made enforceable by an order of court.

Discussion: That the arbitrator was of the view that on a proper interpretation of the terms of the third AOD it was clear that the appellant intended to bind himself to make payment of an additional R2,5 million; the appellant’s contention that he signed the AOD on the mistaken understanding that he was merely intending to confirm his original indebtedness; the court a quo could find no difficulty with the arbitrator’s findings that the third AOD constituted a compromise and that the provisions of the National Credit Act 34 of 2005 (NCA) did not apply, and found that its enforcement would not perpetuate any unlawful prior agreements, nor would be contrary to public policy; and the lawfulness of contracts and the Cool Ideas and Benefeld cases.

Findings: On the requirements of the NCA of registration for credit providers the first two AODs were unlawful agreements. The third AOD did not transform the unlawful nature of such agreements into something new and valid. The arbitral award in turn did not serve to replace the original, underlying cause of action. Giving effect to party autonomy by enforcing an arbitral award which serves to uphold and endorse credit agreements which are unlawful and to subvert the Act and encourage non-compliance therewith by credit providers would be against public policy.

Order: The appeal is upheld. The order of the Court a quo is replaced with one dismissing the application for the enforcement of the arbitral award.

SHER J (LE GRANGE J and GAMBLE J concurring.)

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STRICT BRANCH MANAGER DISMISSED

Labour – CCMA – Review of award – Test – Labour Court being misled into treating the case for a review as if it were an appeal – Commissioner finding that branch manager at bank unfairly dismissed – Misdirection of Labour Court in treatment of evidence of subordinate staff – Manager appointed to clean up an ill-disciplined branch and turned it into a top performer – Review court’s rationale for setting the award aside cannot stand.

Makuleni v Standard Bank [2023] ZALCJHB 19at [14]-[42]

Facts: Mrs Makuleni was employed by Standard Bank as a branch manager. In a disciplinary enquiry the allegations against her were that she was disrespectful and offensive towards her subordinates and that she failed to motivate them. She was suspended and later dismissed for misconduct. At the CCMA the Commissioner found that that she had been unfairly dismissed and ordered her reinstatement with full retrospectivity.

Appeal: Against the decision of the Labour Court in a review of the Commissioner’s decision that set aside the award and declared that she had been fairly dismissed.

Discussion: That multitude of incidents mentioned by the several witnesses were supposed to have occurred during a period of up to two years prior to her suspension and many, but not all, were only vaguely located in time; the Commissioner’s view that Mrs Makuleni’s personal circumstances and her 23 years of exemplary service were not properly weighed; the findings of the Labour Court and that to meet the review test the result of the award has to be so egregious that no reasonable person could reach such a result.

Findings: It was a misdirection by the Labour Court to accept that the subordinate staff who were witnesses against Mrs Makuleni had no motive to lie and paint her in a bad light. She had been appointed to clean up the branch and she was exacting, demanding, inclined to micro-manage and to be authoritarian. The branch had been in need of rehabilitation owing to it having been neglected and ill-discipline having set in. Under her leadership the branch became the third best performing branch in the bank’s business. The court was also misdirected in finding that the correspondence of the several tales constituted a type of self-supporting corroboration. A curious and unfortunate omission in the evidence was information about what proportion of the staff at the branch held pejorative views about Mrs Makuleni. Advanced management training would have been appropriate for an incongruence in managerial style, not dismissal. The degree of robustness which characterises the reality of CCMA arbitrations is exactly the rationale for subjecting them to a review and not an appeal. The courts must be cautious not to undermine the legislative intent. The review court’s rationale for setting the award aside cannot stand.

Order: The appeal against the order of the court a quo is upheld and the award is confirmed. Provision is made for time for the parties to interact before she reports for duty to resume her employment.

SUTHERLAND JA (MUSI JA and KATHREE-SETILOANE AJA concurring.)

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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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