DIVORCE – VARIATION OF SETTLEMENT AGREEMENT
JN v NN [2022] 2283-2021 (ECM)
The parties were married out of community of property with the inclusion of the accrual system during 1996. After the wife engaged in an affair, they were divorced in 2019 and entered into a settlement agreement which was made an order of court. That agreement included a non-variation clause. The applicant (former wife) now seeks a variation of that order and claims that at the time of consultation with the attorney she believed she was not entitled to any part of the respondent’s estate, which she estimated as worth about R10 million. She claims the attorney did not explain the accrual system to her. The respondent contends that the applicant made a conscious decision not to claim anything because she wanted an amicable divorce and was in a rush to join her lover.
Govindjee J discusses whether the Plascon-Evans rule applies in rescission applications; whether the relief sought was final in nature; the messages between the parties at the time of the divorce and the correspondence to the attorney; that the inherent jurisdiction of the High Court does not include the right to tamper with the finality of judgments other than in specific circumstances provided for in the rules or the common law; the effect of a settlement (consent) order; Rule 42(1)(c) and whether there was a mistake common to the parties; the threshold for the court to countenance fraud; the applicant’s negligence flowing from her haste to finalise the divorce; and whether it is was in the interests of justice to grant the relief sought. The application is dismissed.
Unfortunate as this is for the applicant, the judgment should also serve as a salutary reminder to legal practitioners of the possible dire consequences for their clients in cases where they choose or attempt to represent both parties in proceedings where money or rights are involved. While these joint consultations may commence in a spirit of goodwill, or in an attempt to expedite matters and save costs, once the shoe pinches, it is inevitable that the legal practitioner, and by extension the profession, lands in the crosshairs.
Para [45]
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ALCOHOL BAN – DISASTER REGULATIONS
South African Breweries v President of RSA [2022] ZAWCHC 102
South African Breweries (SAB) seeks to have the alcohol ban in Regulation 44 and Regulation 86 promulgated in December 2020 by the Minister of COGTA declared unlawful and of no force and effect. SAB contends that the regs were not necessary to achieve the purposes in section 27(3) of the Disaster Management Act 57 of 2002, such as protecting the public or combating disruption, and further that the regs impermissibly infringe constitutional rights to dignity, privacy, bodily and psychological integrity and freedom to trade.
Allie J discusses mootness; the relevant provisions in the Disaster Management Act 57 of 2002 (DMA) and the regulations; the context prior to the promulgation of the regulations such as the new variant and the second wave; the principle of legality and the doctrine of separation of powers; the role and function of expert witnesses; the view that an alcohol ban cannot be construed as a significant or primary explanation for a reduction in trauma cases because other restrictive measures were contributing factors; the relationship between alcohol consumption and healthcare capacity; whether doctors can observe whether a patient has consumed excessive alcohol; the constitutional rights argument; freedom to trade rights; the right to dignity and privacy; the right to bodily and psychological integrity; the interpretation of the word “necessary” in section 27(3) of the DMA; the ultra vires challenge; the applicability of section 36 of the Constitution on the limitation of rights; the rationality test; and the application of PAJA and procedural fairness.
The court finds that the Minister acted procedurally fairly and rationally given the exigencies of the second wave of the virus, that there was no luxury of time to consult more broadly when the applicable variant was highly transmissible, Covid-19 related deaths had escalated substantially and the health system was in danger of collapsing. The application is dismissed. In accordance with the Biowatch principle, each part is to bear its own costs.
(Cloete J concurred.)
* Ndita J gives a dissenting judgment from para [289] and finds that the provisions violated the applicants’ constitutional rights, and that the prohibition was not justified in an open and democratic society.
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FIREARM LICENCE RENEWALS
Firearms – Licence lapsed – Renewal – No express or implied prohibition against new application – Firearms Control Act 60 of 2000 ss 13-20.
Minister of Police v Fidelity Security Services [2022] ZACC 16 at [27]-[68]
Fidelity is one of the largest security service providers in South Africa, with 60 offices in major cities and towns countrywide. It owns more than 8,500 firearms, used by its security officers to execute their tasks. It attempted to renew some 700 licences that had lapsed, but the police refused to consider the applications. The High Court dismissed their application with costs on a punitive scale, on the basis that Fidelity had, notwithstanding the decision in SA Hunters, persisted in asking the Court to order the authorities to consider the applications for renewed or new licences. Minister of Safety v SA Hunters [2018] ZACC 14 had found sections 24 and 28 of the Firearms Control Act 60 of 2000 regarding renewal and termination of licences to be constitutionally valid. The Supreme Court of Appeal found the State parties’ reliance on SA Hunters to be misplaced. It upheld the appeal and found that Fidelity was entitled to apply afresh for new licences to possess the firearms. The Minister appeals to the Constitutional Court.
Majiedt J and Rogers AJ discuss when a gun owner allows its licence to lapse, whether the owner can make a new application to possess the firearm, or whether the owner has irretrievably lost its right to ever regain lawful possession of the firearm; the provisions of the Act; the approach to interpretation; the implications of SA Hunters for this case; ownership and possession; the statutory context of fresh licence applications; jurisdictional prerequisites of applications for possession licences; an implied prohibition; constitutional considerations; forfeiture and destruction;and amnesty provisions. The appeal is dismissed.
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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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