Louis Case Reports

DUTY OF RUNNERS IN RACE

Delict – Running race – Plaintiff knocked down by athlete – Race through area where non-runners to be expected – Athlete should have kept a proper lookout – Plaintiff negligent in her movements while aware that race was in progress near her – 70% contributory negligence.

Davids NO v Western Province Athletics [2022] ZAWCHC 217 at [50]-[75]

Facts: One Sunday morning, Ms Salie and a friend took a stroll along Cape Town’s famous Promenade. Western Province Athletics (WPA) had organized a race that went along the Promenade and an athlete, Ms Kalmer, knocked Ms Salie to the ground. Ms Salie sustained a fracture of the hip and underwent hip replacement surgery. She sued the WPA and Ms Kalmer for her damages.                 

Appeal: Against the High Court’s dismissal of her claim. Ms Salie died from causes unrelated to the incident and Ms Davids was substituted as the executor of the deceased estate.

Discussion: The video footage of the Spar Ladies’ Race; the layout of the area along the 10km route leading up to the collision; that Ms Salie had been asked to take a photograph of others; the witness who said that Ms Kalmer shouted “get out of my way”, pushed Ms Salie out of her way, and continued running; whether Ms Salie had been warned of the approach of Ms Kalmer; and the testimony of Ms Kalmer.

Findings: Ms Kalmer entered a race which wound its way through an area where the prospect of encountering non-runners along the way was entirely foreseeable. She was thus under a duty to keep a proper lookout for any such potential obstacles as she sped along both the Promenade and the sidewalk in her quest to achieve maximum points on the day. Had Ms Kalmer been keeping a reasonable lookout on the day in question, it would have taken little effort to avoid Ms Salie and not seriously affected her chances of competing in the race. However, Ms Salie’s negligence was considerably more in moving to hand back the camera, knowing that the race was in progress near her. Her contributory negligence was 70%. As to the duties of the marshalls, the High Court correctly dismissed the claim against WPA.

Order: The order of the court a quo is replaced with one dismissing the claim against WPA and upholding the claim against Ms Kalmer. The plaintiff is entitled to recover 30% of the proven damages.

GAMBLE J (BAARTMAN J and MANGCU-LOCKWOOD J concurring.)

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INTERPLEADER AND OWNERSHIP OF GOODS

Civil procedure – Execution – Attachment – Interpleader – Claimant the husband married out of community of property – Couple operating close corporation and claimant benefiting through intermingling process – Not proving ownership of most of the items – Uniform Rule 58.

Sheriff of the High Court for District of Bellville v Walker [2022] ZAWCHC 214 at [17]-[24]

Facts: The sheriff attached the itemised movable goods at a residence shared by Mr Walker and Ms Crouse pursuant to a writ of execution granted against Ms Crouse in favour of A Batchelor & Associates Inc.   

Claim: Mr Walker filed interpleader proceedings claiming that certain movable assets that were attached and removed by the Sheriff were his sole and exclusive property. This assertion was based on the fact that he and Ms Crouse are married to each other out of community of property. A copy of the ante-nuptial contract was provided.

Discussion: How Ms Crouse owed the attorney firm for legal fees for a matter in which they had to withdraw because they contend that the she gave them false instructions regarding a claim against the Road Accident Fund; the bill of costs for R538,477.55; that Mr Walker no longer has receipts or invoices as proof of his acquisition of the listed items; the contentions that the couple did not disclose the earnings of a close corporation; and that Mr Walker conceded that the items for which he claims exclusive ownership, which forms the basis of the interpleader claim, were ultimately bought with monies derived from the business operations conducted by him on behalf of his wife.

Findings: Mr Walker throughout the existence of the marriage benefited immensely from the close corporation through an intermingling process from his wife. The claimant only managed to prove that only two items 4 do not belong to Ms Crouse. Concerning the other items, there was no conclusive proof that they do not belong to Ms Crouse.

Order: The claimant’s interpleader is upheld in respect to Items 1 and 4 and dismissed for all the other items.

MANTAME J

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DISSENTING SHAREHOLDERS AND FAIR VALUE

Company – Shares – Dissenting shareholders – Fair value – Determination methods discussed – Variety of methods used – None appear to use net asset value as the sole or proximate indicator – Companies Act 71 of 2008, s 164.

BNS Nominees v Arrowhead Properties [2022] ZAGPJHC 848 at [27]-[61]

Facts: BNS is the registered shareholder of the shares in Arrowhead, while Breede is the beneficial owner of these shares held by BNS. Arrowhead and Gemgrow advised the market of a potential transaction that was later indicated as a share swop. BNS voted against the resolutions but was later advised that the special resolution approving the scheme had been adopted. BNS demanded to be paid full value for its shares and Arrowhead made an offer of R3,75 per share, which was rejected.

Application: Breede and BNS seek in terms of the Companies Act 71 of 2008 to request the court to appoint appraisers to make the determination of the fair value of the shares and also seek further information from the company. Arrowhead’s counter-application seeks an order determining the fair value of the shares at R3,75 per share.

Discussion: The section 164 process; whether the court should appoint an appraiser; defining fair value; the net asset value (NAV) of Arrowhead and the contention that the value was R6,90; a “market based” approach; the cash value of the swap value; and that there are a variety of methods used to establish fair value and none appear to rely on NAV as the sole or proximate indicator of fair value. As to appointing an appraiser, in this case it would amount to the abdication of a judicial function to an expert.

Findings: The applicants have not made out a case that the offer of R 3,75 per share does not represent fair value.

Order: The main application is dismissed. The counter application is upheld in that it is determined that R3,75 per share was the fair value of the shares held by all dissenting shareholders in Arrowgem.

MANOIM 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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