Author: GilesFiles

Malicious prosecution action: Retired judge awarded damages

Posted by | Jun 13, 2018 | , , , , , , , , , , , , |

Patel v National Director of Public Prosecutions The high court considered the test when dealing with a malicious prosecution action by the retired judge president of KZN and agreed that the NDPP and its employees were not only aware of what they were doing in instituting or initiating the prosecution and also must have foreseen the possibility that they were acting wrongfully, but nevertheless continued to act, reckless as to the consequences of their conduct (dolus eventualis).  The claim succeeded and substantial damages were awarded with costs.  Essence Malicious prosecution claim by retired judge president of KZN against the NDPP succeeds and damages of nearly R1m awarded with interest and costs  Judgment (4347/15) [2018] ZAKZDHC 17 (13 June 2018).  Upheld the claim and ordered the defendants to pay damages of R900,000 plus interest and costs.  Judges Ledwaba DJP  Related books Decision and reasons   The high court decided that the retired judge had proved that the defendants acted with animus injuriandi for a number of reasons, including the failure to consider a mediation process and that there was no reasonable prospect of a successful prosecution. Discussion by GilesFiles Quotations from judgment Note: Footnotes omitted and emphasis added INTRODUCTION [1] The plaintiff, the Honourable Mr Justice Chimantal Noratam Patel, the former Judge President of the Kwa-Zulu Natal High Court Division, instituted an action for malicious prosecution against...

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Restoring reputational rights: Unlawful competitive trading proved

Posted by | Jun 11, 2018 | , , , , , , , , , , |

Mountain Oaks Winery (Pty) Ltd v Smith The applicants built a reputation and goodwill over time by being certified as producers of organic wine since 2005 and restoring reputational rights was necessary.  “In the end, it is clear to me that a clear right has been shown to exist. As to the injury, I agree with the applicants that an injury has been actually committed or is one which is reasonably apprehended. It is continuous and although the statements were removed, there is a continuing violation of the applicants’ rights. Until the truth is published, the false information regarding the applicants’ organic status continues in circulation, and is likely to have stayed in the minds of those who read the website. Consumers may reasonably conclude that the Mountain Okes Wines are not certified organic or are no longer certified organic.  On the issue of another satisfactory remedy, as Nugent JA pointed out in Media 24, particularly at paragraph 71, “[t]here is no reason why a wrong must be left to fester, on the basis that damages can later salve the festering, when the wrong is capable of being repaired before the festering occurs”. The applicants contend also that the damages claimed may be difficult to assess”. [paras 70 and 71]  Essence Restoring reputational rights after rival trader published injurious falsehoods concerning the business of a competitor injuring reputation...

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Provincial heritage resources: Meaning of site in NHRA 1999

Posted by | Jun 11, 2018 | , , , , , |

Bryer NO v Heritage Western Cape The high court dealt with the authority concerning provincial heritage resources and the interpretation of s38 of the National Heritage Resources Act, 1999 and quoted with approval a passage from an as yet unreported judgment of the SCA in National Director of Public Prosecution (Ex Parte application) 2018 ZASCA (86) (31 May 2018) which reads as follows: ‘[15] The fundamental principle in the interpretation of statutes is that words must be given their ordinary meaning, unless that construction would lead to an absurdity. In the event of an ambiguity the court can examine the apparent purpose of the provision and the context in which it appears. In Cool Ideas 1186 CC v Hubbard & another [2014] ZACC 16; 2014 (4) SA 474 (CC); 2014 (8) BCLR 869 (CC) at 28, the court said “[a] fundamental tenet of statutory interpretation is that the words in a statute must be given their ordinary grammatical meaning, unless to do so would result in an absurdity. There are three important interrelated riders to this general principle, namely: (a) that statutory provisions should always be interpreted purposively; (b) the relevant statutory provision must be properly contextualised; and (c) all statutes must be construed consistently with the Constitution. …” See also Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA) para 18.’ ...

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Effective reasonable dissuasive: Fines imposed under GDPR

Posted by | Jun 8, 2018 | , , , , , , , |

Fines for violating provisions of the GDPR must be effective reasonable dissuasive and strict vicarious liability is not imposed, unlike section 99(2) of the Protection of Personal Information Act, 2013 (POPIA) which reads: “(2) In the event of a breach the responsible party may raise any of the following defences against an action for damages: (a) Vis major; (b) consent of the plaintiff; (c) compliance was not reasonably practicable in the circumstances of the particular case; or (d) the Regulator has granted an exemption… .”. By contrast section 60(3) of the Employment Equity Act (EEA) provides that an employer must be deemed to have contravened a provision of the EEA if the employer has failed to take the steps necessary to eliminate conduct which does not comply with the EEA. So senior managers who are able to prove that they did all that was reasonably practicable to ensure that employees would not contravene the EEA will be able to avoid being held vicariously liable for the contraventions by employees. It has been argued that section 99(2) of POPIA should be amended to include the following wording, namely: Despite subsection (1), an employer is not liable for the conduct of an employee if that employer is able to prove that it did all that was reasonably practicable to ensure that the employee would not act in contravention of this Act....

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Ne Bis in Idem principle: GDPR includes term for protection

Posted by | Jun 8, 2018 | , , , , , , , , , , |

The ne bis in idem principle (prohibiting double jeopardy) is applied in various international instruments such as the General Data Protection Regulation (GDPR). Literally translated it means ‘not twice about the same’. In  principle nobody should be judged twice for the same “offence“. Historically, the principle derives from the Roman law maxim bis de eadem re ne sit actio. “The ne bis in idem principle is included in many national, European and international legal instruments. Within the European Union’s area of Freedom, Security and Justice, the main legal sources are Articles 54 to 58 of the Convention Implementing the Schengen Agreement (“CISA”) and Article 50 of the Charter of Fundamental Rights of the European Union (“Charter”). In general, the objective of the ne bis in idem principle is to ensure that no one is prosecuted for the same acts in several Member States on account of the fact that he exercises his right to freedom of movement (see infra Gözütok and Brügge, Gasparini). The principle is also included as refusal ground in a large number of EU instruments on judicial cooperation in criminal matters, including mutual recognition instruments such as the Framework Decision 2002/584/JHA on the European Arrest Warrant (“FD EAW”) and the Directive 2014/41/EU on the European investigation Order in criminal matters. Moreover, the ne bis in idem principle is included in Article 4 of Protocol 7 to the European Convention on Human Rights (“Article...

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