Isimangaliso Wetland Park Authority v Sibiya [2024] ZAKZPHC 4
ADMINISTRATIVE – Self-review – Delay – Organ of State established to manage wetland park
Decision to convert fixed-term contracts of four respondents to permanent employment – Delay in this case in excess of four years and eight months – Prejudicial to respondents and offends principle of finality – Explanation for delay not full and not reasonable – Matter does not appear to involve serious breach of any constitutional duty – Applicant not able to clearly establish illegality of impugned decision – Does not have reasonable prospects of success on merits of review – Application dismissed.
Facts: The Isimangaliso Wetland Park in Zululand is one of this country’s most beautiful natural parks, rich in its biodiversity and unique in the ecosystems that it supports. It is, indeed, deserving of its name, for isimangaliso means “a miracle” in isiZulu. The applicant is an organ of State established to manage and control this natural jewel, which is a World Heritage site. The four respondents are employees of the applicant. Each of the respondents were initially employed by the applicant on a fixed term contract. During 2018 a decision was apparently taken by the applicant’s Board of Directors that the fixed term contracts of members of the applicant’s Executive Staff Component should be converted to contracts of permanent employment (the impugned decision). The fixed term contracts of employment of the respondents were converted to contracts of permanent employment on different dates in 2018, 2019 and 2021.
Application: The applicant now believes that the impugned decision was invalid and seeks a declaratory order to this effect and an order that the permanent appointments of the four respondents be reviewed and set aside. The applicant submits that the impugned decision and the subsequent conversion of the various employment contracts of the respondents contravenes the provisions of the World Heritage Convention Act 49 of 1999 (the Act) and the Regulations.
Discussion: Because it is an organ of State, the applicant may not rely on the provisions of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) in seeking to review the impugned decision and has brought its review application premised upon the principle of legality. There are, however, no prescribed time periods within which a legality review must be commenced, unlike a review brought in terms of PAJA. All that is required in a legality review is that it must be initiated without undue delay. The delay in this matter is in excess of four years and eight months. The applicant does not provide a full explanation for the entire period of the delay, nor a reasonable and satisfactory explanation, and the explanation ignores the first three years of the period after the taking of the impugned decision. Notwithstanding the apparent realisation in 2020 that the conversions may be invalid, the fourth respondent’s fixed term contract was still converted to full time employment in 2021.
Findings: The delay has, without question, occasioned prejudice to the respondents and it offends the principle of finality. The applicant conceived of the plan to convert the employment contracts of the respondents and carried that plan out. It knew why that plan was implemented but has thereafter reposed in a catatonic like state. It now suggests that its lengthy period of inactivity should be disregarded on the flimsiest of explanations and that it should be allowed to act in a fashion that could cause substantial prejudice to the respondents. The matter does not appear to involve a serious breach of any constitutional duty. The applicant has not been able to clearly establish the illegality of the impugned decision and does not have reasonable prospects of success on the merits of the review.
Order: The application is dismissed with costs.
MOSSOP J
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Godongwana v Mdwaba [2024] ZAGPJHC 46
CIVIL LAW – Defamation – Declaratory order – Allegations that applicant tried to solicit bribe
Respondent acting on things said to him at restaurant without further questioning – Respondent’s reliance on his subjective “belief” in truthfulness of what he was told is not a defence of truth – Declared that allegations, specifically that he was party to solicitation of bribe from the respondent or his company, are defamatory and false – Respondent also interdicted – Declared that publication of the statement is unlawful and that respondent is liable to pay damages.
Facts: Thuja, which is a company where Mr Mdwaba (respondent) is director, concluded a contract with the Unemployment Insurance Fund (UIF). Payments to Thuja never occurred and the respondent believes that Thuja’s efforts to implement the contract are being undermined by the Ministry represented by Minister Nxesi. It appears that, at the Codfather restaurant in Johannesburg, a certain T and J informed the respondent that a bribe was required from him. The respondent did a television show on Newzroom Afrika where he alleged that the applicant was one of the Ministers who tried to solicit a bribe of R500,000,000 from the respondent. The respondent alleged that the applicant was conniving to siphon money in the UIF, referred to as a “gate pass fee”, which is 10% of the contract amount. The respondent is alleged to have repeated these false and defamatory statements during an interview on 702 Radio, on Sunday World podcast, as well as on ENCA.
Application: An urgent application in terms of Uniform Rule 6(12) comprising of a declaratory order and an interdict against the respondent and his company. The declarator is to the effect that the statements made about the applicant in the media, that he was party to the solicitation of a bribe from the respondent, are defamatory and false.
Discussion: The applicant is adamant that he never solicited a bribe from the respondent and never gave his “ok” to any illegal transaction relating to the contract between the respondent and the Department of Labour. The applicant also denies ever having sent an intermediary to speak to the respondent on his behalf. In fact, the applicant confirms that he has nothing to do with the dispute between the respondent and the Department of Labour. It is unfortunate that the respondent does not trust the police or that he is unwilling to provide the media with the names of the intermediaries. He should have verified the truth thereof and laid a formal charge. The respondent cannot expect the public to believe him and continue spreading these allegations without supporting proof. The respondent contends that he merely disclosed what was conveyed to him and that he never of his own volition accused the applicant of corruption.
Findings: The respondent’s reliance on his subjective “belief” in the truthfulness of what he was allegedly told is not a defence of truth. The only explanation given by the respondent is that he went to a dinner at Codfather and certain things were said to him. The respondent then went ahead to publish what he was told, without any further questioning of what was said to him. The respondent can have no “reasonable” belief that the statement is true when it is based on hearsay. The public cannot be expected to believe these statements where there is no proof to substantiate the allegations. No serious business person could have taken what happened at the restaurant Codfather as “evidence”. The respondent has more than 12,000 followers on Twitter and he wields considerable public influence, which in the absence of substantiated facts and untruthful allegations can and has caused serious damage to the dignity of the applicant. The relentless spreading of these statements shows an intent to injure.
Order: It is declared that the allegations made about the applicant in the statement, specifically that he was party to the solicitation of a bribe from the respondent or his company, are defamatory and false. It is declared that the respondent’s publication of the statement is unlawful and that he is liable to pay damages to the applicant. The respondent is interdicted from doing any interview that says or implies that the applicant tried to solicit a bribe in the amount of R500,000,000. The quantification of damages, an apology and retraction of the statements is referred to oral evidence. The respondent is to pay the applicant’s costs on an attorney and client scale, to include the costs of two counsel.
DOSIO J
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FAMILY – Divorce – Forfeiture – Plaintiff having withdrawn her pension to build house, buy car and pay for tertiary fees of children
Defendant seeking that plaintiff forfeit all benefits in house and his pension – Pleadings containing allegations of extra marital affairs from both sides – Defendant involved in extra-marital affair with child born out of wedlock – Plaintiff having obtained protection order and left because of continuous physical abuse – Defendant not proving any substantial misconduct on part of plaintiff and his claim for forfeiture failing – Plaintiff awarded 50% of defendant’s pension fund interest in GEPF – Divorce Act 70 of 1979, s 9(1).
Facts: The parties were married to each other in community of property in 1992. There were four children born from the marriage and they have all reached the age of majority with the last born having been born in 1999. The marriage relationship between the parties has reached such a state of disintegration that there is no reasonable prospect of restoration, although the parties disagree on the reasons for the breakdown. The parties have not lived together as husband and wife since 2014 and have continued to live separate and independent lives from each other.
Application: Plaintiff seeks an order including that she be awarded 50% of the defendant’s pension interest in the Government Employees Pension Fund (GEPF). The defendant instituted a counter-claim seeking an order that the plaintiff forfeit all benefits arising of the patrimonial benefits, namely the property situated in Emdo Park, Polokwane and the defendant’s pension interest held by the GEPF.
Discussion: The plaintiff testified that she withdrew her initial pension fund which was to the value of R1,298,834.66 during 2016. She utilized the money to build the house at Kwena Moloto which she and the children (although all majors now) were occupying, to pay debts incurred during the subsistence of the marriage, to pay for the tertiary fees of the children, to buy furniture and also to buy a Mercedes Benz motor vehicle. The parties had been married since 1992 and on paper have been married for over 33 years, however their marriage in reality only lasted to 2014 (22 years), after which they lived separate and independent lives. While the pleadings contained allegations of extra marital affairs from both sides, not much evidence was led on this issue by the defendant, apart from sketchy details.
* See the discussion on the duration of the marriage and Matyila v Matyila 1987 (3) SA 230 (W) at paras [26]-[27].
Findings: It was clear from the evidence of the defendant himself that he was indeed the one who was involved in an extra-marital affair as he told the court that he is staying with a woman and that a minor child, who was eight years old, was born out of wedlock. The plaintiff testified that the circumstances that led to the break-down of the marriage relationship is, amongst other factors, the physical abuse by the defendant. She even obtained a final protection order and ultimately left because of the continuous physical abuse by the defendant. The protection order was admitted as evidence in court. The defendant did not manage to prove that the plaintiff was the cause that gave rise to the break-down of the marriage. He did not prove any substantial misconduct on the part of the plaintiff and his claim for forfeiture must fail.
Order: The Plaintiff is awarded 50% of the defendant’s pension fund interest in the GEPF.
NAUDE-ODENDAAL J
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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 Spartan Case Law
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