Talking Point July 2014

A succinct discussion of selected topical, legal matters

I take great pleasure in submitting the July 2014 edition of Talking Point to you.

This issue contains a variety of topics, including a crook, murder, racial quotas, and an unfortunate baboon.

Richard Rorty, an American academic and philosopher who died in 2007, was the main proponent of neo-pragmatism, and in his prime regarded as the most famous philosopher in the world.  He also authored some memorable quotes:

Solidarity is not discovered by reflection, but created.  It is created by increasing our sensitivity to the particular details of the pain and humiliation of other, unfamiliar sorts of people.  Such increased sensitivity makes it more difficult to marginalize people different from ourselves by thinking, ‘They do not feel as WE would,’ or ‘There must always be suffering, so why not let THEM suffer.”

My sense of the holy is bound up with the hope that  someday my remote descendants will live in a global civilization in which love is pretty much the only law.”

Always strive to excel, but only on weekends.”

As always, I would greatly appreciate your feedback on Talking Point. Please email me at

Regards Charl Theron

In this issue:



Bureaucracy gone mad!

Matt– by Matt van Eden

In Macrae v State, a judgment of the Supreme Court of Appeal on 28 March 2014, the accused eventually experienced justice, despite the deplorable conduct of many State and judicial officials.

On 10 October 2006, at the request of a conservation officer from the Directorate Nature Conservation, the owners of a game lodge (Dr and Ms Macrae) took in a baboon that had been seized by the police. The conservation officer handed a formal document titled Certificate of Handover to Institution to the Macraes.

However, the following day a senior informed the conservation officer that under Treasury regulations the baboon should have been sent to a Treasury approved zoo. This resulted in some exchanges between the conservation officials, who demanded the return of the baboon, and the Macraes, who contended it was now theirs.

On 18 October 2006, two nature conservation officers, a vet, a third party, the police officer who originally seized the baboon, and two members of the flying squad, stormed the Macrae’s game lodge in convoy to retrieve the baboon.

However, the baboon was not present, as the Macrae’s son and the baboon had gone for a walk. Dr Macrae did not take kindly to the invasion, and Ms Macrae supported him. The police then arrested the Macraes.

The National Prosecuting Authority prosecuted the Macraes for theft of the baboon and obstructing the administration of justice. The Macraes made the fatal error of representing themselves at the trial in the Magistrate’s Court. They were found guilty, and their appeal to the High Court, Pretoria was dismissed.

At last in the SCA sanity prevailed. The Macraes had not stolen the baboon, it had voluntarily been placed in their care, so they were acquitted of theft. The Macrae’s refusal to hand over the baboon was in good faith and based on their belief that the baboon was theirs, so they lacked the intent to obstruct the administration of justice. The Court held that the Macraes arrest lacked any legal foundation, and set aside their convictions and sentences. As an aside, the State could not produce the alleged Treasury regulations.

The Court was mild but firm in its criticism of the State and judicial officials in what it described as “a classic instance of bureaucratic overreach”.

As for the baboon, after the Macraes were found guilty, it was taken out of their care and placed in a shelter, where it burned to death in a fire.

Murder or Culpable Homicide?

Jerome casual– by Jerome Veldsman

Mkhize v S, a judgment of the Supreme Court of Appeal on 14 April 2014, illustrated the fine line between murder and culpable homicide, and the potential considerable difference in sentence.

If an accused unlawfully causes the death of another human being –
• intentionally – he is guilty of murder
• (merely) negligently – he is guilty of culpable homicide.

Mkhize, a long serving police officer with considerable experience in handling firearms, whilst inebriated, intervened in a drunken brawl, was then brutally assaulted by the deceased, and fatally shot the deceased at close range in the front and back.

He was prosecuted in a regional Magistrate’s Court. The Magistrate held that Mkhize had shot the deceased in revenge, convicted him of murder, and sentenced him to 12 years’ imprisonment. Mkhize appealed to the KwaZulu-Natal High Court, to no avail; and then appealed to the SCA.

In the SCA, the main question was whether State had proved beyond a reasonable doubt that Mkhize unlawfully and intentionally killed the deceased, including that he did not act:
• in private defence; or
• in putative private defence.

The test for private defence is: Would a reasonable person in the position of the accused have acted in the same way? If the answer is in the affirmative, the accused is acquitted, as then the killing would have been lawful.

If an accused fails the test for private defence, he may still succeed with putative private defence. Even if a reasonable man in the position of the accused would not have acted in the same way, if the accused honestly (but incorrectly) believed his life to be in danger, and killed someone in purported protection of his life, his conduct is unlawful. However, his erroneous belief may exclude intent (and thus a conviction of murder); and at worst for him he can then be convicted of culpable homicide.

The SCA held that the State had –
• proved beyond a reasonable doubt that Mkhize had not acted in private defence, but
not proved beyond a reasonable doubt that Mkhize had not acted in putative private defence,
and accordingly, the SCA set aside the conviction of murder, and convicted Mkhize of culpable homicide.

The distinction was far from academic for Mkhize. In the specific circumstances of the case, including mitigating factors, the SCA sentenced Mkhize to five years’ imprisonment wholly suspended for five years.


Caution: Slippery when wet!

 by Taryn Herbert and Jerome casualNox Malumbete

In Avonmore Supermarket CC v Venter, a judgment of the Supreme Court of Appeal on 31 March 2014, a customer sued a supermarket for damages arising from injuries she sustained when she slipped on a damp floor.

An employee of the supermarket was attending to routine floor mopping.  The employee placed a sign warning that the floor was wet at one end of an aisle, mopped the floor of the aisle, and moved on before the floor was dry.

The customer walked into the aisle, saw the sign, but nevertheless slipped on the damp floor and fell.

The Court found in favour of the customer:

I accept that there is a need to mop the floors of a store to ensure that it is clean. However the manner of execution of that task is crucial. It is clear that the appellants conduct caused the danger. The routine cleaning operation was done during a busy period and the cleaner left behind him a damp floor. That should not have happened. The cleaning operation should have been conducted in such a manner that the cleaner ought to have worked on a small area and ensure that the area was dry before moving on. In my view, that would not have placed an onerous burden on him or his supervisor. This routine cleaning operation created a potential hazard to customers and in particular the respondent. The appellant had a duty to regulate its conduct in order to minimize or eliminate the risk of harm. I accordingly conclude that negligence has been established.”

Pay attention, these mopping rules apply to all spaces to which the public has access.


Inventive vehicle finance

Matt– by Matt van Eden

Scenematic (Pty) Ltd v First National Bank, a judgment of the High Court, Pretoria on 30 April 2014, was a tussle between a bank and its client as to who was to suffer the loss caused by a dishonest employee (Mr TJ Naudé) of the client.

Naudé bought a Mitsubishi Pajero in his personal capacity, and funded the purchase by way of an instalment sale agreement with FNB (trading through its division Wesbank). He ‘cleverly’ provided Scenematic’s bank account details as the account from which FNB was to collect the monthly instalments. Scenematic already had many large monthly debit orders, and Naudé hoped that his deceit would not be noticed.

The ruse worked well for more than three years (even after the termination of Naudé’s services). Then, one day an external auditor requested the source documents for the relevant debit order, and the ‘imposter’ debit order was exposed.

Naudé was perhaps a ‘man of straw’, so Scenematic also went after FNB. Scenematic claimed that FNB had undertaken tacitly or impliedly that it would perform its duties as a banker scrupulously and without negligence. This undertaking included that FNB would not debit Scenematic’s bank account without proper authority. As FNB had no authority to debit Scenematic’s account in respect of the Pajero, FNB was obliged to compensate Scenematic for the amounts wrongfully deducted from its account.

The evidence presented showed that FNB had been negligent. Naudé had entered into the instalment sale agreement in his own name. Yet, the bank official completed a Corporate Spif Transmissions Checklist in which she ticked a block indicating “Agreement signed by authorised signatory and resolution attached”. No such resolution was attached, or existed. The bank official also failed to verify the account number provided by Naudé.

Scenematic succeeded with its claims against Naudé and FNB.

Scenematic almost lost, as more than three year had expired before the fraud was discovered. Under the Prescription Act, the prescription period is deemed not to commence until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises, provided that a creditor shall be deemed to have such knowledge if it could have acquired such knowledge by exercising reasonable care. Scenematic’s excuse for not discovering the fraud earlier was not very convincing, but the Judge was kind.

Racial quota systems

Jerome casual– by Jerome Veldsman

In terms of section 9(3) of the South African Constitution, no person may unfairly discriminate directly or indirectly against anyone on one or more grounds, including (most prominently) race. The Promotion of Equality and Prevention of Unfair Discrimination Act is legislation enacted pursuant to section 9(3) to prevent or prohibit unfair discrimination.

Section 28 of the Equality Act places a duty and responsibility on the State, institutions performing public functions, and all persons to eliminate discrimination, in particular on the ground of race. In carrying out such duties and responsibilities, the State, institutions performing public functions, and others, must adopt viable action plans for the promotion and achievement of equality in respect of race.

At present, the topic of racial quotas is being debated in many on-going court cases, in universities (especially medical faculties), and in sport governing bodies. Under a racial quota system, a specific number or percentage of positions are set aside specifically for a designated race.

Are racial quotas a legitimate affirmative action measure to manipulate demographic profiles or unfair discrimination? Local case law is sparse. Only as an illustration, we briefly discuss USA case law.

Note that, due to the cultural, demographic, economic, political, and other differences between South Africa and the USA, the ultimate answer to the question in South Africa may be very different from that in the USA. Indeed, in the USA, affirmative action was designed to benefit percentagewise small minorities, at the cost of the majority. Whereas, in South Africa, affirmative action is designed to benefit the overwhelming majority at the cost of percentagewise a small minority. In a sense, what is an exception in the USA is the rule in South Africa. Perhaps using the same term for such vastly different endeavours may be misleading.

Regents of the University of California v Bakke (1978), a case in the (USA) Supreme Court, their highest court, is famous for (1) upholding the concept of affirmative action (in origin largely a USA product), but (2) striking down the application of racial quotas by the State and other public institutions.

The University denied Bakke, a white male, admission to its medical school, and he sued.

As the nine judges penned six different judgments, Bakke is a difficult judgment to unpack. Justice Powell (in effect, for the majority) found against racial quotas, as less restrictive programs, such as making race one of several factors in admission, would serve the same purpose. He held that the racial quota discriminated unfairly against Bakke. As the university could not prove that Bakke would not have been admitted even had there not been a racial quota, he ordered the university to admit Bakke.

The minority judgement of Justice Brennan (supported by three other judges) would have upheld a racial quota as legitimate to remedy disadvantages cast on minorities by past racial prejudice, provided it does not demean or insult any (non-designated) racial group.

In Grutter v Bollinger (2003) the Supreme Court revisited the Bakke case.

The University of Michigan denied Grutter, a white female, admission to its law school, and she sued.

The majority held that a race-conscious admissions process that favoured underrepresented minority groups, but that also took into account many other factors, and evaluated on an individual basis for each applicant, did not amount to an unconstitutional quota system.

The minority judgement of Chief Justice Rehnquist (supported by three other judges) would have struck the admissions process down as a thinly veiled and unconstitutional racial quota system.

Some European countries ban racial quota systems outright, but others accept them for narrow purposes. Brazil allows a racial quota system at universities. Malaysia has a pervasive racial quota system, including at universities and in the civil service.

Malaysia’s racial quota system favours the 70% majority ethnic Malays. The 1971 New Economic Policy was described as a temporary measure, but remains in place today. The NEP has benefitted the designated group, but has caused a continuing brain drain and a system of corrupt patronage. The NEP and its merit and demerit remain divisive in Malaysia, and dominate politics.

One can expect a divided South African Constitutional Court on the question of racial quotas, but not the strict scrutiny applied in the USA. Racial quotas may well pass constitutional muster in South Africa.

Precautionary suspension

Amien casual– by Amien Hoosain

Solidarity and Kotze v Public Health & Welfare Sectoral Bargaining Council is a curious judgment of the Supreme Court of Appeal on 6 May 2014.

Section 17(5)(a) of the Public Service Act provides that an employee who absents himself from his official duties –
• without permission for a period exceeding one month shall be deemed to have been discharged on account of misconduct; and
• without permission and assumes other employment, shall immediately be deemed to have been discharged on account of misconduct.

On 4 July 2007, Mr Kotze, an employ of the Free State Department of Health, was placed on ‘precautionary suspension’ pending the finalisation of allegations of misconduct against him. Three weeks into his suspension, he accepted other employment. The Department advised him that, because he assumed other employment, he has been deemed to have been discharged on account of misconduct.

Mr Kotze disputed his dismissal, but failed in an internal review, before the Bargaining Council, at arbitration, in the Labour Court, and in the Labour Appeal Court. In each instance, the prevailing argument was that an employee on suspension must remain available to report for duty at any time, if the suspension is lifted.

Mr Kotze succeeded in the SCA. The Court held that, as Mr Kotze was on ‘precautionary suspension’, he was not absent from his official duties without permission. Accordingly section 17(5)(a) was not applicable. The Court referred the matter back to the Bargaining Council, almost seven years later.

If a suspended employee assumes other permanent employment, it would be incongruous for him to return to his previous employ. Whether a suspended employee must remain wholly idle, is still not settled.