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Clare Fincham

Tel:         011 431 1237
Mobile: 073 613 3670

clare@saslaw.org.za

 

Eastern Cape Chapter

Date: 6 December 2017

Dear All,

RE: LABOUR COURT STAFF MARK THE RELOCATION OF THE LABOUR COURT

1. The Committee invited the Labour Court staff to celebrate today the successful relocation of the Labour Court to its new premises in the High Court building in Bird Street.

2. On behalf of all members of SASLAW and on behalf of the labour law fraternity as a whole, congratulations to the Labour Court staff for all their hard work, enthusiasm, professionalism and for always being willing to go the extra mile to assist practitioners.

3. Those who were able to attend were: Ntomboxolo Mpolweni, Zukiswa Ntozo, Theophilus Siphiwo Xoli, Sandra Gerber, Pamela Notshulwana, Daniel Sigoxo, Faeeza Hermans and Nombulelo Mafu.

4. For those members of staff who could not attend because they were required to work through lunch hour, we missed you. We trust that the Office of the Chief Justice will, when it comes to the payment of overtime, comply with the Basic Conditions of Employment Act and any relevant collective agreements.

Kind regards

Peter Kroon SC

 


Date: 5 December 2017

Dear All,

NEWSFLASH: DELICTUAL DAMAGES FOR AN UNPROCEDURAL SUSPENSION?

1. In an opposed exception argued on Thursday, 30 November 2017, in the Bhisho High Court, a member of the South African Police Services (“the SAPS”), claimed that the Divisional Commissioner had acted negligently and wrongfully in suspending him.

2. Instead of addressing his complaint by way of judicial review or interdict or referring an unfair suspension dispute to the Safety and Security Sectoral Bargaining Council, he elected to characterize his grievance as a civil claim based in delict.

3. Interestingly, he claimed a million rand as a solatium (it must have been a particularly harrowing suspension).

4. The SAPS objected to the formulation of the claim on the basis that it did not contain sufficient allegations (facta probanda) to sustain a cause of action. In essence, the SAPS contended that even if the allegations were proved to be true, this would not salvage the claim because there could be no actionable civil wrong flowing from a negligent omission by the State.

5. In a judgment handed down earlier today, 5 December 2017, Van Zyl DJP upheld the exception with costs.

6. Interestingly the Learned Judge referred to the decision of Dendy v University of the Witwatersrand & Others (2007) 28 ILJ 2215 (SCA) wherein an aggrieved job applicant, who had applied for the position of chair of law of Wits, contended that, owing to certain procedural irregularities and the failure to furnish him with reasons, he could pursue a claim based on the actio iniuriarum. In a decision, which was also dealt with by way of exception, the Supreme Court of Appeal disagreed.

Kind regards

Peter Kroon SC

 


 QUOTE OF THE MONTH – DECEMBER 2017

All practitioners have had the experience where a witness which they led did not, as it were, cover himself in glory in the box. Such may be the case where the witness has made a succession of concessions in response to a sequence of quickfire leading questions posed by the cross examiner, and it seems that all has been lost in the space of few minutes.

When this has happened, it is not uncommon for your opponent, in argument, to address the Judge with the refrain “but this is what their own witness said” (as if the probative value of the evidence depended on the identity of the party who called the witness).

In the recent high-profile criminal prosecution of Greek businessman, Christopher Panayiotou, Chetty J demonstrated how, just because concessions emanate from a witness called by your opponent, this does not mean that this evidence should not be subject to judicial scrutiny and properly evaluated:

“[29] ... Having been suborned to recant his extra curial statements his acquiescence to the plethora of leading questions put to him accentuates the deception whereby he inveigled the prosecution into calling him as a witness.

[30] This is best illustrated when, after being cajoled into validating Breakfast’s claim to blindness, he readily assented to a multitude of propositions, inter alia, that he had not only been assaulted, browbeaten into submission, forced to accompany the police to search his home and the place where the R31 000.00 was recovered, ill-treated but forced to append his signature to prepared statements. Whilst it is correct that the right of full cross-examination includes the employment of leading questions, the weight of the evidence thus procured is minimal where, as here, Siyoni’s partisanship is glaring....”

[1] State v Panayiotou & others (case no. CC26/2016)

 


JOKE OF THE MONTH – DECEMBER 2017

It was Oscar Wilde who said that “work is the curse of the drinking classes”.

Sometimes employees find themselves in difficulties, if not dire straits, as a result of substance abuse or other self-destructive behaviour.

Some employees slip into gambling addiction which in turn may adversely impact on their performance in the workplace.

As appears from the illustration below, what is required from the employer is a sensitive and empathetic approach in terms of which practical guidance and counselling is offered.

ec comic dec2017

Comic Credit: Explosm, LLC.

 


QUOTE OF THE MONTH – OCTOBER 2017

It has often been stated by Courts that, notwithstanding our adversarial system, litigation is not a game and whilst the Courts must ensure fair play between opposing sides, ultimately Judges preside to dispense justice.

In a decision delivered in July 2017 in the Port Elizabeth High Court, erstwhile Labour Court Judge, Revelas J, commented as follows:

“judges are not umpires whose sole function is to ensure that the rules of the game are observed by both sides, but they are administrators of justice who are tasked with seeing that justice is done.”

Binta v Hlasela & Another (1776/2016) [2017] ZAECPEHC 35 (11 July 2017) at para [25]

 


JOKE OF THE MONTH – OCTOBER 2017

What do you call an arrogant and snooty fraudulent employee who is going down?

A condescending con descending.

ec comic 2017

 


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Eastern Cape Committee:

Adv Peter Kroon              -              President

Marion Fouché                -              Vice president

Theo Potgieter
Anusha Rawjee
Mark Thys
Awonke Desi
Leon van Staden
Mogie Govender

 


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