RAMDIN v PILLAY AND OTHERS 2008 (3) SA 19 (D)
Citation 2008 (3) SA 19 (D)
Case No 2291/2007
Court Durban and Coast Local Division
Judge Levinsohn DJP
Counsel ME Stewart for the plaintiff.
A Moodley for the defendants.
Flynote: Prescription - Extinctive prescription - Debt - What constitutes - Section 10(1) of Prescription Act 68 of 1969 - Meaning of 'debt' - Including claim for repayment of moneys held in attorney's trust account.
Headnote : A claim for repayment of moneys held in an attorney's trust account constitutes C a 'debt' as contemplated in s 10(1) of the Prescription Act 68 of 1969. Such debt becomes 'due', as contemplated in s 12(1) of the Act, upon demand by the client and prescribes three years later. (Paragraphs [22] and [23] at 24J - 25B.)
POLICE AND PRISONS CIVIL RIGHTS UNION AND OTHERS v MINISTER OF CORRECTIONAL SERVICES AND OTHERS (No 1) 2008 (3) SA 91 (E)
Citation 2008 (3) SA 91 (E)
Case No No 603/2005
Court Eastern Cape Division
Judge Plasket J
Counsel JG Grogan for the applicants.
JW Eksteen SC (with NJ Sandi) for the respondents.
Flynote :
Court - High Court - Jurisdiction - Application for review of summary dismissal of State employees - Section 157(1) and (2) of Labour Relations C Act 66 of 1995 (LRA) not limiting jurisdiction of High Court under s 169 of Constitution - High Court not restricted to remedies in ss 193 and 194 of LRA - If Promotion of Administrative Justice Act 3 of 2000 applicable, remedies in s 8 thereof may be awarded - If decisions challenged reviewable under s 1(c) of Constitution, remedies in s 172 of Constitution may be awarded.
Headnote :
It is clear from the terms of s 157(1) and s 157(2) of the Labour Relations Act 66 of 1995 that they do not purport to oust the jurisdiction of High Courts to determine the constitutionality of conduct of organs of State in the field of employment.
On the basis of Administrator, Transvaal, and Others v Zenzile and Others 1991 (1) SA 21 (A) it has to be concluded that such power to dismiss is a public power and that, all other elements of the definition of 'administrative action' in s 1 of PAJA being present, a decision to dismiss correctional officers is subject to review in terms of s 6(2) of PAJA. If, however, such decisions are not administrative decisions for purposes of the PAJA, they would nonetheless be exercises of public power and thus be reviewable for compliance with the founding constitutional value of the rule of law, entrenched in s 1(c) of the Constitution. (Paragraphs [54], [55] and [64] at 116A - B, 116D - E and 121B - C.)
The line of reasoning in some decisions of the Labour Court that Administrator, Transvaal, and Others v Zenzile and Others (supra) is no longer of application that, first, because the Labour Relations Act has been extended to virtually all employment relationships, it is no longer necessary for the principles of administrative law to be applied in the field of employment relationships in the public sector; and, secondly, that it is impermissible for one act to involve both labour law and administrative law: labour law and administrative law are different and may not overlap. Both lines of reasoning I represent a parsimonious approach to fundamental rights and an austere formalism that is at odds with a proper approach to fundamental rights: they fail to give individuals the full measure of their fundamental rights. There is nothing incongruous about individuals having more legal protection rather than less, or of more than one fundamental right applying to one act, or of more than one branch of law applying to the same set of facts.
This also does not necessarily mean that there is a conflict between the PAJA and the Labour Relations Act which would mean that the latter trumps the former in terms of s 210 of the Labour Relations Act: the protections afforded by labour law and administrative law are complementary and cumulative, not destructive of each other simply because they are different. Once again, there is nothing incongruous about this. In many of the cases dealing with the issue of whether the High Court's jurisdiction has been ousted, statutory provisions created special remedies in particular fields but, despite that, the courts held that their ordinary review jurisdiction had not been excluded. The overlap of two or more branches of law is not unusual in our legal system. (Paragraphs [58] and [60] - [61] at 118B - C and 119A - E.)
BE BOP A LULA MANUFACTURING & PRINTING CC v KINGTEX MARKETING (PTY) LTD 2008 (2) SA 327 (SCA)
Citation 2008 (2) SA 327 (SCA)
Case No 042/07
Court Supreme Court of Appeal
Judge Harms ADP, Navsa JA, Lewis JA, Hurt AJA and Malan AJA
Counsel M Wagener (attorney) for the appellant.
J Viljoen for the respondent.
Flynote :
Payment - 'In full and final settlement' - Effect of - General principles of offer and acceptance apply.
Compromise - Offer of - Acceptance - Payment 'in full and final settlement' - Cheque sent 'in full and final settlement of account' - Whether being offer of compromise - Depositing of cheque - Whether amounting to acceptance of offer of compromise.
Compromise - Payment 'in full and final settlement' - Whether amounting to offer of compromise - Tender of cheque 'in full and final settlement' - Test for - Whether, objectively construed, cheque constituting offer of compromise.
Tender - 'In full and final settlement' - When amounting to compromise of disputed claim - Plaintiff retaining cheque tendered 'in full and final settlement' - Effect.
Headnote :
The respondent instituted action in the High Court for a money judgment against the appellant. The appellant raised the defence of compromise in that the respondent had deposited and received payment on a cheque sent to it by the appellant marked 'in full and final settlement'. The full bench of the High Court found, confirming the decision of the trial court in favour of the respondent, that the inscription on the cheque had not been an offer of compromise but simply a confirmation of what the appellant believed it owed the respondent; alternatively, even if the cheque were an offer of compromise, the appellant had not regarded payment of the cheque as acceptance of the offer. On appeal
Held, that the principles of offer and acceptance governed whether an agreement of compromise was concluded. The first question was whether the cheque constituted an offer of compromise, in other words whether the proposal objectively construed was intended to create binding legal relations and appeared like that to the offeree. (Paragraph [10] at 332B.)
Held, further, that on the facts the cheque objectively constituted an offer of compromise and amounted to an invitation to deposit the cheque to indicate its acceptance. (Paragraph [12] at 333D.)
Held, further, that whether the respondent's depositing of the cheque and retention of the money constituted acceptance of the offer of compromise depended on the facts. (Paragraph [13] at 333E - F.)
Held, further, that, by retaining the proceeds of the cheque and appropriating it, the respondent became bound by the terms of the offer. Although actual consensus between the parties might have been lacking, the appellant acted reasonably in relying on the impression that the respondent was accepting the offer of compromise and compromising its claim. (Paragraph [14] at 334B - C.) Appeal upheld.
The decision of Van Zyl J in Be Bop a Lula Manufacturing & Printing CC v Kingtex Marketing (Pty) Ltd 2006 (6) SA 379 (C) set aside.
