Louis Case Reports

CHILD’S BEST INTERESTS

Family – Children – Mother seeking to relocate to the UK with the child – Acrimonious relationship between mother and father – Co-parenting and joint decision making highly likely to result in ongoing legal intervention and lengthy and costly stalemates – Child’s best interests – Mother granted leave to relocate.
CF v SG [2022] ZAWCHC 204 at [31]-[43]

Facts: The applicant (mother) was schooled in the UK and studied and worked there. She met the respondent (father) when she returned to South African. She moved in with him and they started a business together. They had interpersonal difficulties and applicant moved out when their daughter was 8 weeks old. Acrimonious legal proceedings followed.                      
Application: Applicant seeks the court’s leave to relocate to the UK with the daughter, M.
Discussion: That the father has only exercised supervised contact with M; the mother and father are unable to communicate meaningfully; the experts’ opinions on the parents and the allegations against each other; the father’s alcohol dependency and autism diagnosis; the conclusion by one of the experts that the mother seeks to relocate to the UK for the sole purpose of taking M as far away from the father as possible; and another expert’s opinion that the longer the mother remains in South Africa the more traumatised she becomes, that the father has a profound negative impact on the mother’s wellbeing, that if the mother stays longer the young child will become more aware and detrimentally affected by the stress and emotional preoccupation of her parents as well as the conflict between them, and that co-parenting and joint decision making is highly likely to result in ongoing legal intervention and lengthy and costly stalemates.
Findings: It is clearly in M’s best interests that the mother be allowed to relocate with her.
Order: The mother is granted leave to remove the minor child, M, from South Africa and to relocate with her to the United Kingdom.
CLOETE J

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SETTLEMENT AGREEMENT MADE ORDERS OF COURT

Civil procedure – Settlement agreement – Made order of court – Litigation not commenced – Dispute insufficient – Issue must be properly before the court, and but-for the settlement agreement, court would have entertained that dispute.
Capital Profound v Guilt Food [2022] ZAMPMBHC 78 at [19]-[26]

Facts: Applicants and Guilt Food concluded a one-year lease agreement. Guilt Food gave notice of its intention to vacate the leased premises before expiry and a cancellation agreement was concluded. This provided for reinstatement of the premises, hand-over of the keys and for payment of rental and other amounts owing.
Application: To make the agreement an order of court, on the strength of clause 18 which provides that the agreement will be incorporated into and made an order of court.
Discussion: That no litigation preceded the conclusion of the cancellation agreement; the contention that Eke v Parsons (CC) drew a distinction between direct and indirect issues or lis between parties, and that in this case the the matter was indirectly on an issue between the parties; the cases of Growthpoint Properties v Makhonya Technologies (GP); Avnet v Lesira Manufacturing (GJ) and PL v YL (ECG); and whether there had to be litigation between the parties before the court could make a settlement agreement an order of court.
Findings: On a proper construction of Eke v Parsons, the Constitutional Court held that where litigation had not yet commenced, a settlement agreement may not be made an order of court. There must be not only be a dispute between the parties that led to the settlement agreement, but the issue or lis concerned must be properly before the court, and but for the settlement agreement, the court would have entertained that dispute.
Order: The application is dismissed.
GREYLING-COETZER AJ

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DISMISSAL FOR GROSS INSUBORDINATION

Labour – Dismissal – Gross insubordination – Questioning or challenging CEO during meeting – Complied with instructions – Employees have freedom of expression in workplace – Insubordination not gross insubordination warranting dismissal.
Independent Risk Distributors v CCMA [2022] ZALCJHB 282 at [32]-[36]

Facts: During a meeting called to address the underperformance of the sales reps, the CEO told the reps to home and reflect on their performance, and return to the office the next day with a better understanding. According to the company, Mr Ndlovu questioned or challenged the instruction in a rude and disrespectful manner. A disciplinary hearing was held where he was charged with gross insubordination and then dismissed.
Application: The company seeks to review and set aside the award at the CCMA that the dismissal was substantively unfair and for Nr Ndlovu to be reinstated.
Discussion: The evidence of the witnesses at the CCMA; that Mr Ndlovu asked why he was part of the poor performers being sent home; that the general manager said that non-performance was a team issue; the witness who said that Mr Ndlovu interrupted the CEO every time he tried to speak and that his tone was unacceptable and disrespectful; another witness who said that they were all scared of losing their jobs; and the distinction between insubordination and gross insubordination.
Findings: Mr Ndlovu’s questions at the meeting were aimed at seeking clarification regarding why he was also being sent home, despite not having poorly performed, and once that clarification was given, he complied with the instruction to go home. The insubordination was not gross insubordination to warrant a dismissal. It was telling that it was the general manager who was offended and not the CEO. Employees do not lose their constitutional rights, such as freedom of expression, merely by reason of being in the workplace.
Order: The application is dismissed.
RADEBE AJ

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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