Louis Case Reports

JAILED FOR FAILING TO PAY MAINTENANCE

FAMILY – Maintenance – Contempt – Divorce settlement agreement made order of court – Wilfully disobeyed order – Non-compliance also mala fide – Best interests of children severely undermined – Clear that would not comply with coercive order – Only appropriate sanction was direct and unsuspended imprisonment – Guilty of contempt and ordered to undergo three months’ imprisonment.

ENM v LTM [2023] ZANWHC 34 at [35]-[74]

Facts: Applicant and respondent were married in community of property from 2002 until 2014 when the final decree of divorce was granted. They have three minor children. The settlement agreement was drafted and presented to the applicant by the first respondent. It was incorporated into the divorce order. The respondent is an accountant and businessman and the sole director of an accounting firm.                         

Application: Seeking an order declaring that respondent has not complied with the order of 2014 and has also not complied with the order of 2018 which was that the accounting firm (second respondent) pay 75% of what is due. Applicant seeks that both respondents be found to be in contempt of court.

Discussion: How the respondents failed to comply with the provisions of the settlement agreement which was made an order of court and the later order; that applicant had to make ends meet to support the minor children, had to sell the one immoveable property, the bank is seeking for foreclose on the remaining property and that the amounts owed under the settlement agreement were calculated at over R7 million; and the requirements of contempt of court.

Findings: The respondent was aware of the maintenance order and the obligations it imposed on him. He has intentionally, deliberately, and wilfully disobeyed the order. The best interests of the children in this case are severely undermined. His non-compliance was also mala fide. He is a recalcitrant respondent who declared unequivocally during the hearing that he would not comply with the court order. His conduct indicates that a coercive order will not be appropriate in this case. The only sanction that would be appropriate is direct, unsuspended imprisonment.

Order: It is declared that respondent is guilty of the crime of contempt of court for failure to comply with the orders made in 2014 and 2018. He is sentenced to undergo 3 months’ imprisonment and must submit himself at the Mafikeng Police Station within 24 hours.

MORGAN AJ

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SELF-DEFENCE IN HIJACKING SITUATION

CRIMINAL – Murder – Self-defence – Attempted hijacking – Three deceased – Accused and his cousin in shoot-out – Accused felt a continued and consistent threat to his life and that of his cousin – Number of shots fired commensurate with the threat – Accused justified in warding off the attack – Discharged on count 1 and found not guilty on counts 2 and 3 – Criminal Procedure Act 51 of 1977, s 174.

State v Ebrahim [2023] SS124-2021 (GJ)at [117]-[130]

Facts: Mr Ebrahim was fetched by his cousin in a Mercedes because they were going to buy hunting equipment. He testified that on their way a Golf stopped in front of their car and that a man who was wearing a balaclava emerged with a gun. He heard shots and saw a muzzle flash come from inside the Golf. He and his cousin both fired at the Golf while they retreated. After the shootout he noticed that his magazine was empty and could not recall if he fired 14 or 15 bullets.

Charges: The accused, Mr Ebrahim, was charged with three counts of murder.

Discussion: The case of the State that the accused exceeded the bounds of self-defence; the reliance by the State on eyewitness testimony and forensic evidence; the testimony that the driver and passenger in the Golf were pulled out the vehicle and shot while on the ground; that flame burns and muzzle imprints would have been expected if the two deceased were shot in the execution-style manner described; discharge at the close of the State case and section 174 of the Criminal Procedure Act 51 of 1977; and that the accused was discharged on count 1 but not on counts 2 and 3.

Findings: The accused was clear and unambiguous in his testimony. He and his cousin found themselves in a hijacking situation. The Golf was linked to a case where the owner of the Golf was robbed of his vehicle. A Judge should take care not to assess the events like an armchair critic. The accused and his cousin were faced with a hijacking and had to defend themselves. The accused felt a continued and consistent threat to his life and that of his cousin. The number of shots fired was commensurate with the threat that he experienced and he was justified in warding off the attack.

Order: The court having discharged the accused on count 1, finds the accused not guilt on counts 2 and 3, and he is therefore acquitted of all charges.

ALLY AJ

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DUTY TO PROTECT AGAINST CYBERCRIME

CONTRACT – Financial loss – Cybercrime – Universally recognised as a scourge – Contractual obligations to clients – Client’s email hacked and funds paid out to fraudster’s account – Duty to employ procedures and technological systems to eliminate threats as far as reasonably possible – No scope to import a proviso that the client has the duty to prevent hacking – Investment company liable.

Gerber v PSG Wealth Financial Planning [2023] ZAGPJHC 270 at [55]-[103]

Facts: Mr Gerber had a share portfolio with PSG investments of R855,413, which was to serve as retirement funds for him and his wife. Hackers of Mr Gerber’s email managed to impersonate him and convinced a representative of PSG, who managed the portfolio, to transfer an initial R250,000 of the funds into a different account. Another payment wiped out most of his investment. An attempt to get a further transfer of R400,000 from Mrs Gerber’s portfolio aroused suspicious because of grammar errors in Afrikaans.

Claim: A claim in contract for loss sustained due to the electronic transfer of Mr Gerber’s funds which were under the control of PSG into the bank account of a fraudster.

Discussion: That Business Email Compromise (BEC) fraud is rife in this technological age; that PSG seeks to import a tacit term into the contract which it contends excludes its liability; that it denies, in any event, that it breached the express terms of the contracts; that PSG pleads an alternative claim of estoppel; and its contentions that plaintiff was negligent in that he did not take all reasonable steps to protect his computer system against hacking.

Findings: To import the proviso that PSG wishes into the fraud protections would be counter-intuitive. It has not established the tacit term contended for. Mr Gerber testified that his system was password protected and that he had an effective virus protection software installed. The deficiencies in the checking process were clear. PSG ignored its own protocols. The checking machinery yielded the result that the different account was not verified as being legitimate, yet it took the decision to override this information.

Estoppel by facilitation: PSG has not established that anything the plaintiff did or failed to do resulted in the hacking. Plaintiff was protected by a contract which put the duty to prevent fraud of this nature on PSG. The proximate cause of the loss was not the hacking, it was the failure to employ the necessary and contractually prescribed vigilance when monies held in trust were sought to be paid into a different account.

Order: PSG is ordered to pay R811,488.98 with directions given for the interest on the R250,000.

FISHER J

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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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