FRAUD AND FAKE DEGREE
Contract – Fraud – Fake degree used to secure place in graduate programme – Whether contract void or voidable – Restitutio in integrum – Defendant ordered to disgorge what he received – Plaintiff entitled to execute against defendant’s pension benefits – Former Pension Funds Act 24 of 1956, s 37D(1)(b).
Umgeni Water v Naidoo [2022] ZAKZPHC 80 at [32]-[54]
Facts: Umgeni Water runs a graduate development programme. Mr Naidoo applied and represented that he had a BSc degree in Engineering from the University of KwaZulu-Natal. He put up a copy of his degree certificate and his academic results. His application succeeded and he was employed from 2008 to 2016.
Claim: Umgeni Water seeks repayment of all amounts that it paid Nr Naidoo on the basis that his representations were false and fraudulent and that he did not have a BSc degree.
Discussion: Whether Mr Naidoo graduated from the university with a BSc degree in Chemical Engineering; how he was first accepted into the programme; that later a private company was employed to conduct verifications and it emerged that the university had no record of his degree; the testimony of the manager from Umgeni Water; and the testimony of the acting head of central student records of the university on the degree certificate produced by Mr Naidoo.
Findings: Mr Naidoo was an untruthful witness and the degree certificate claimed by him was a forgery, as were the academic results. He acted fraudulently when he falsely represented the true state of his qualifications with the intention of securing the benefit of employment from Umgeni Water. Had the truth been known to Umgeni Water in 2008, no relationship with Mr Naidoo would have been countenanced or developed and no money would consequently have been paid to him. Mr Naidoo must be ordered to disgorge what he received from Umgeni Water arising out of the fraud that he perpetrated on it.
Order: Judgment is awarded for R2,203,565.04 and it is declared that Umgeni Water is entitled to execute against his provident fund. Mr Naidoo shall pay costs on the scale as between attorney and client.
MOSSOP J
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MEDICAL NEGLIGENCE AND CHARTAPROPS CASE
Delict – Medical negligence – Locum tenens at emergency ward – Negligent in leaving patient with nursing staff – Independent contractor engaged by doctors – No basis for liability to extend to them under vicarious liability or non-delegable duty of care.
Mohun v Phillips NO obo S [2022] ZASCA 186 at [33]-[45]
Facts: Mr S was brought to the hospital’s emergency unit by his wife after he consumed tablets in combination with alcohol. During the course of that evening Mr S became hypoxic and suffered from cardiac arrest, which led to permanent brain damage. Dr Mohun (first appellant) was that evening engaged as a locum tenens by Doctors G Sanpersad, R Maharaj & Associates (second appellant) who provided clinical care in the emergency unit for the hospital.
Appeal: The claim for damages was based on the grounds that Dr Mohun had acted negligently by failing to properly assess and monitor Mr S so as to timeously render appropriate treatment to him. The High Court found the appellants to be jointly and severally liable and the degree of fault at 65% of whatever damages might be proved.
First appellant: The expert testified on the effects of the intake of quantities of alcohol and pharmaceutical drugs on the brain and airways and that it was not sufficient to leave Mr S with the nursing staff, because they would not be able to pick up the subtle changes which could occur. The evidence of negligence and causation was overwhelmingly against the first appellant.
Second appellant: The first appellant was an independent contractor in relation to the second appellant. A principal is not liable for the civil wrongs of an independent contractor, except where the principal was personally at fault. The submissions on vicarious liability did not avail the respondents in light of the case of Chartaprops v Silberman which held that the relationships to which vicarious liability applies do not include the relationship of a principal and an independent contractor. The court declines the invitation to develop the common law by reconsidering the principle of non-delegable duty of care in circumstances where the victim was especially vulnerable. there was no legal basis upon which the second appellant could attract vicarious liability for the conduct of the first appellant.
Order: The appeal of the first appellant is dismissed while the appeal of the second appellant is upheld.
MABINDLA-BOQWANA JA (VAN DER MERWE JA, PLASKET JA, CHETTY AJA and MASIPA AJA concurring.)
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SLIP AND FALL – CHARTAPROPS DEFENCE
Delict – Slip and fall – Wet tiles at shopping centre – Rainy day – Chartaprops defence because independent cleaning contractor used – Defence not sustainable in this case – Extra precautions required due to slippery tiles in rainy weather – Disclaimer board obscured by merchandise.
Cenprop Real Estate v Holtzhauzen [2022] ZASCA 183 at [24]-[39]
Facts: On a rainy Saturday, Ms Holtzhauzen went to the Goodwood Mall. While holding her 11-month-old baby, she slipped and fell on the tiled floor, suffering a fractured elbow. She claimed damages arising from her injury against the management company in charge of the mall and its owner.
Appeal: The High Court dismissed Ms Holtzhauzen’s claim, but the full bench upheld her appeal. Cenprop and the owner appeal this judgment.
Discussion: The evidence that the floor in the passage had been wet and that there had been a “wet floor” sign at the entrance; the testimony of the expert witness that the tiles used in the mall were not appropriate because they lacked sufficient non-slip qualities; the photos of the disclaimer notice at the entrance which showed that the sign was hidden behind merchandise on display; and the employment of independent contractors to clean the floors (the Chartaprops defence).
Findings: The appellants’ argument that they were not liable because of the employment of the cleaning company as an independent contractor was to be rejected. In rainy weather the floors became wet and slippery from water carried in by customers. Rainy weather posed a special and foreseeable situation which ought to have been mitigated. The extra attention was not covered in the scope of work given to the cleaning company. The appellants should have taken active reasonable steps to guard against the possible danger. The Chartaprops defence cannot come to their aid. The appellants also did not take all necessary steps to ensure that the disclaimer board placed inside the mall was visible to the shoppers, as there were objects obstructing the notice.
Order: The appeal is dismissed with costs.
MOLEFE AJA (ZONDI JA, MOLEMELA JA, MABINDLA-BOQWANA JA and SALIE-HLOPHE 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
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