4 Approval by ethics committees

All clinical trials conducted in South Africa, including multinational trials, must apply for and receive ethical approval. Ethical approval must be granted by an accredited research ethics committee (REC) based in South Africa. RECs are responsible for ensuring that ethical norms and standards are met, but also for the safeguarding of the rights of the human participants and ensuring that a clinical trial is scientifically relevant in South Africa.

As mentioned above, the NHA in section 72 provides for the establishment of a National Health Research Ethics Council (NHREC), which must:

"(a) determine guidelines for the functioning of health research ethics committees;

(b) register and audit these health research ethics committees;

(c) set norms and standards for conducting research on humans..., including ... for conducting clinical trials;

(d) adjudicate complaints about the functioning of health research ethics committees and hear any complaint by a researcher

(e) refer to the relevant statutory health professional council matters involving the violation or potential violation of ethical or professional rules

(f) institute ... disciplinary action as ... prescribed against any person found to be in violation of any norms and standards or guidelines ...; and

(g) advise the national department and provincial departments on any ethical issues concerning research." (s 72(6) of the NHA)

Section 69 of the NHA provides for the establishment of the National Health Research Committee. This committee must:

"(a) determine the health research to be carried out by public health authorities; (b) ensure that health research agendas and research resources focus on priority health problems; (c) develop and advise the Minister on the application and implementation of an integrated national strategy for health research; and (d) coordinate the research activities of public health authorities." (s 69(3) of the NHA)

Specific provision is also made for research on or experimentation with human participants in section 71 of the NHA. This section provides for a wide variety of matters, including the conditions for research involving human participants in general, research involving a minor for therapeutic purposes, and research involving a minor for non-therapeutic reasons. The provisions found in the NHA are also supplemented by various regulations made in terms of the Act. Section 11, which provides for health services for experimental or research purposes, may also be relevant.

Currently, RECs must pay additional attention to Covid-19 trials, which are categorised as involving innovative therapy and, owing to this classification, additional control and review measures are imposed on the trial (see in general, De Vries "Research on COVID-19 in South Africa: Guiding Principles for Informed Consent" 2020 110(7) SAMJ 635-639 https://doi.org/10.7196/SAMJ.2020.v110i7.14863). Once ethical approval is granted, the clinical trial may be registered.

 

5 Registration of clinical trial

After MCC and ethical approval has been obtained, the person responsible for the trial, the sponsor or principal investigator, must apply to the Department of Health (DoH) to have the trial registered.

The DoH must record the trial on the South African National Clinical Trial Register and award the trial a number. Only once the trial has been registered with the DoH and awarded its unique number may the trial commence (South African National Clinical Trial Register and National Health Research Ethics Committee "South African National Clinical Trial Registry (SANCTR) and National Health Research Ethics Committee (NHREC)" (2020) http://www.crc.uct.ac.za/sites/default/files/image_tool/images/53/documents/Reg/CRC%20website_Regulatory%20Content_updated%2020171204_SANCTR_NHREC.pdf (accessed 2020-11-16)). At this stage, the monitoring plan also takes effect.

 

6 Monitoring plan

The sponsor or principal investigator must have in place a monitoring plan that stipulates the review and monitoring of the trial. Normally, such review is done on a six-monthly basis as clinical trials may last years. However, owing to the rapidly changing dynamics of Covid-19, SAHPRA currently allows for an expedited two-week abridged Covid-19 interim progress report form for clinical trials. This report deals specifically with safety and futility monitoring (South African Health Products Regulatory Authority "Clinical Trials" (2020) https://www.sahpra.org.za/clinical-trials/ (accessed 2020-11-16)).

The prescribed form must be completed two-weekly from the date of approval of the clinical trial and even if participant enrolment has not yet started. It does not, however, replace the required six-monthly progress report.

 

7 Approval granted and roll-out

After the trial delivers fruitful results - that is, the successful development of a vaccine - the vaccine must be registered with SAHPRA. Only then may it be marketed, sold, prescribed or administered in South Africa, regardless of any foreign approval thereof by another country. This means, for example, that even if the Pfizer BioNTech vaccine is fully approved abroad by the American Food and Drug Administration (FDA), it will still have to be locally approved and registered by SAHPRA. Note that, should a foreign regulatory authority that is recognised by SAHPRA (such as the FDA) already have approved the vaccine, SAHPRA may allow for expedited approval and registration within South Africa.

The registration of a new biological medicine, which includes a vaccine, is undertaken by the Biological Medicines Evaluation and Research Unit (BMERU), a sub-unit of SAHPRA. BMERU is responsible for the evaluation of applications for the registration of biological medicines, the evaluation of applications for amendments to registered biological medicines, communicating with the pharmaceutical industry on matters of policy, the establishment of regulatory frameworks for the use of blood products and stem cells, and the establishment of pertinent regulatory frameworks for vaccines (South African Health Products Regulatory Authority "Biological Medicines Evaluation and Research Unit" (2020) https://www.sahpra.org.za/biological-products/ (accessed 2020-11-16)).

Once SAHPRA and BMERU have concluded their evaluation of the registration application, taking into account any expert committee recommendations and all required documentation, it will decide whether a new biological medicine meets all requirements for registration.

If so, the medicine will be registered and may then be made available in South Africa.

 

8 Conclusion

This note has explained the process to be followed in approving new medication for human use within South Africa. Although the South African framework for the approval of new medication, such as a Covid-19 vaccine is clear cut, the virus has proved to be wiley; and constant vaccine improvement and development will be necessary. This in turn will make the processes discussed above even more important so as to ensure safe and efficient, legal and ethically sound vaccine availability. In the meantime, we wait with masked and bated breath.

Larisse Prinsen

University of the Free State

^rND^1A01^nCI^sTshoose^rND^1A01^nCI^sTshoose^rND^1A01^nCI^sTshoose

CASES

 

Dismissal arising from flouting Covid-19 health and safety protocols - Eskort Limited v Stuurman Mogotsi [2021] ZALCJHB 53

 

 

1 Introduction

The Labour Court judgment handed down by Tlhotlhalemaje J in Eskort Limited v Stuurman Mogotsi (JR1644/20) (2021) ZALCJHB 53 (Eskort Limited) on 28 March 2021 raised the topical issue of fairness regarding the dismissal of an employee for gross misconduct and negligence related to his failure to follow and/or observe COVID-19-related health and safety protocols put in place at the workplace (Eskort Limited supra par 1).

In light of the above, the objectives of this case note are twofold. First, it examines the parameters under which the employer can discipline an employee for flouting the COVID-19 safety protocols and regulations. Secondly, it also considers the extent to which the employer can take appropriate action against an employee who wilfully refuses to obey the lawful and reasonable instructions of the employer during COVID-19 times.

 

2 Overview of the factual matrix

The employee (Mr Mogotsi) was employed as Assistant Butchery Manager by Eskort Limited (employer). Subsequently, the employee was charged with the following offences (Eskort Limited supra par 4): first, gross misconduct related to his alleged failure to disclose to the employer that he had taken a COVID-19 test on 5 August 2020 and was awaiting his results; secondly, gross negligence, in that after receiving his COVID-19 test results (which were positive), he had failed to self-isolate, had continued working on 7, 9 and 10 August 2020, and had consequently placed the lives of his colleagues at risk. It was further alleged that in the period during which he had reported for duty, he failed to follow the health and safety protocols at the workplace, including adherence to social distancing (Eskort Limited supra par 4).

Subsequent to his dismissal, the employee referred an alleged unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). At the arbitration hearing, the employer led the evidence of two witnesses to prove that the employee (Mr Mogotsi) was guilty of the allegations that had precipitated his dismissal. Similarly, the employee also

led evidence in his case (Eskort Limited supra par 6). The employer's first witness testified that it was common practice for the employee (Mr Mogotsi) to travel to and from work with a colleague, Mr Mchunu, in a private vehicle. On 1 July 2020, Mr Mchunu did not feel well and consulted with a medical practitioner, who booked him off sick from 1 to 3 July 2020 and extended his sick leave on 4 July 2020. Mr Mchunu was subsequently admitted to a hospital on 6 July 2020 and was informed on 20 July 2020 that he had tested positive for COVID-19 (Eskort Limited supra par 6.1). The witness further testified that at about the time that Mr Mchunu initially fell ill, his colleague Mr Mogotsi also started experiencing chest pains, headaches and coughs. According to the witness, the employee then consulted a traditional healer, who booked him off on 6 and 7 July 2020 and from 9 to 10 July 2020 (Eskort Limited supra par 6.2).

Upon being booked off by the traditional healer, the employee (Mr Mogotsi) was informed by management to stay at home. He nonetheless reported for duty after 10 July 2020. This was even after he became aware of Mr Mchunu's positive results (Eskort Limited supra par 6.3). The employee took a COVID-19 test on 5 August 2020 and was informed on 9 August 2020 via "SMS" that he had tested positive. The employer was unimpressed with the employee's conduct and raised a concern that despite having taken a COVID-19 test on 5 August 2020 and being informed of his positive results on 9 August 2020, he had reported for duty on 7, 9, and 10 August 2020, and came to the premises to hand in a copy of his results (Eskort Limited supra par 6.4).

In addition to the above, the second witness of the employer placed on record certain fundamental issues. First, the employer had COVID-19 policies, procedures, rules and protocols in place, and all employees had been constantly reminded of these through memoranda and various other means of communication posted at points of entry and also through emails (Eskort Limited supra par 6.5). Secondly, the employee was a member of the in-house "Coronavirus Site Committee", and was responsible, inter alia, for informing all employees [about their duties] if they suspected that they might have been exposed to COVID-19 (Eskort Limited supra par 6.6).

Furthermore, when the employer conducted its own investigations after the employee's test results were made known, it was discovered that on 10 August 2020, a day after he had received his results, he was observed in video footage at the workplace walking in the workshop without a mask, and hugging a fellow employee (Ms Milly Kwaieng) (Eskort Limited supra par 6.7). Upon his test results being known, and after further investigations and contact tracing, a number of employees who had contact with him had to be sent home to self-isolate, including Kwaieng and others who had other comorbidities (Eskort Limited supra par 6.8).

Under cross-examination, the employee testified that he received the test results on 9 August 2020 but alleged that he did not know he needed to self-isolate. He conceded having hugged Kwaieng on 10 August 2020, and having walked on the shop floor without a mask. His excuse was that he was on a phone call at the time and that he needed to remove his mask to have a clearer conversation with his caller. His main contention was that, despite asking for direction after he had reported ill and informing management that he had been in contact with Mr Mchunu, nothing was done, as business had continued as usual when he reported for duty (Eskort Limited supra par 6.11).

 

3 The decision of the CCMA and the Labour Court

Given the above evidence and having regard to relevant provisions of the Labour Relations Act (66 of 1995), the CCMA Guidelines, the Code of Good Practice: Dismissal, and relevant cases, the CCMA commissioner held that the employer had failed to justify the sanction of dismissal in light of its own disciplinary code and procedure, which called for a final written warning in such cases; it had thus deviated from its own disciplinary code and procedure (Eskort Limited supra par 7.4). Consequently, this made the dismissal of the employee unfair.

Aggrieved by the decision of the CCMA commissioner, the employer lodged an application to review the commissioner's award on various grounds, including that he had failed properly to apply his mind to the evidence placed before him, and had made findings that were not those of a reasonable decision maker (Eskort Limited supra par 8). The Labour Court, per Tlhotlhalemaje J, held that the findings of the commissioner on the issue of the appropriateness of the sanction and the relief granted were entirely disconnected from the evidence placed before him, and consequently this made his award reviewable (Eskort Limited supra par 9).

Tlhotlhalemaje J also cautioned that the CCMA commissioner/s ought to be wary of refusing

"to determine disputes involving dismissals for ordinary misconduct, simply because the employee (in most times unrepresented and throwing everything in the mix), happened to have alleged that he/she was victimised, harassed, discriminated against, or any other allegation that would divest the CCMA of jurisdiction." (Eskort Limited supra 7 par 11)

In the Labour Court's view, where such allegations are made, a commissioner is duty bound to look at the real nature of the dispute, irrespective of how the parties label the cause of a dismissal, before deciding whether the CCMA has jurisdiction to determine the dispute. The Labour Court held further that the mere mention of "victimisation" or "discrimination" by an employee at arbitration proceedings is not a gateway to the Labour Court (Eskort Limited supra par 11).

The Labour Court held that an important consideration in this case is that the commissioner had decisively concluded that the employee's conduct was "extremely irresponsible" in the context of the pandemic, and that he was therefore "grossly negligent". According to the court, that conclusion on its own, given the facts of this case, ought to have been the end of the matter, and the dismissal ought to have been confirmed (Eskort Limited supra par 12).

In its conclusion, the Labour Court held that the CCMA commissioner had failed to take into account the totality of circumstances as stated in Sidumo v Rustenburg Platinum Mines Ltd (2008 (2) SA 24 (CC)) (Sidumo case). The Sidumo case reads, in the relevant part:

"In approaching the dismissal dispute impartially, a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee's challenge to the dismissal. ... [O]ther factors will require consideration. For example, the harm caused by the employee's conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his/her long-service record. This is not an exhaustive list." (Sidumo case par 78)

To this end, the Labour Court held that the sanction of dismissal was appropriate. In the first place, the employee was aware that he had been in contact with Mr Mchunu, who had tested positive for COVID-19. On his own version, he had experienced known symptoms associated with COVID-19 as early as 6 July 2020. Be that as it may, the employee had recklessly endangered not only the lives of his colleagues and customers at the workplace, but also those of his close family members and other people he may have been in contact with (Eskort Limited supra par 17.1). Secondly, the employee's conduct came about in circumstances where, on the objective facts, and by virtue of being a member of the "Coronavirus Site Committee", he knew what he ought to do in an instance where he had been in contact with Mr Mchunu and where on his own version, he had experienced symptoms he ought to have recognised. He nonetheless continued to report for duty as if everything was normal, despite being told on no less than two occasions to stay at home during July 2020 (Eskort Limited supra par 17.2). Thirdly, the Labour Court held that the employee's conduct was not only irresponsible and reckless but was also inconsiderate and nonchalant in the extreme (Eskort Limited supra par 17.3). He had ignored all health and safety warnings, advice, protocols, policies and procedures put in place at the workplace related to COVID-19, of which he was aware of given his status not only as a manager but also part of the "Coronavirus Site Committee".

According to the Labour Court, the evidence presented before the CCMA commissioner showed that the employee was not only grossly negligent and reckless, but also dishonest. He had failed to disclose his health condition over a period of time, sought to conceal the date upon which he had received his COVID-19 test results, and completely disregarded all existing health and safety protocols put in place not only for his own safety but also for the safety of his co-employees and the applicant's customers (Eskort Limited 10 par 17.6).

Lastly, the Labour Court held that the egregious nature of the employee's conduct was such that "a trust and working relationship between him, the applicant, and his fellow employees, cannot by all accounts be sustainable" (Eskort Limited supra par 17.7). The Labour Court declared that the dismissal of the employee was procedurally and substantively fair. The court made an order setting aside the award of the CCMA commissioner, and substituting it with an order that the dismissal of the employee was substantively fair (Eskort Limited supra par 21).

 

4 Analysis of Eskort Limited v Stuurman Mogotsi

4 1 The employer's duty to ensure a safe working environment

The Labour Court judgment is welcomed as it compels employers to take the existing COVID-19 health and safety measures and protocols seriously. COVID-19 has taken dreadful control of the world and is described as an invisible enemy. It is an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). The disease was first identified in 2019 in Wuhan, the capital of Hubei, China, and has since spread globally, resulting in the 2019-2020 coronavirus pandemic (Musa, Sivaramakrishnan, Paget, and El-Mugamar "COVID-19: Defining an Invisible Enemy Within Healthcare and the Community" 2021 42(4) Infection Control & Hospital Epidemiology 495-497; Chauhan, Jaggi, Chauhan and Yallapu "COVID-19: Fighting the Invisible Enemy with MicroRNAs" 2021 19(2) Expert Rev Anti Infect Ther. 137-145).

COVID-19 typically spreads during close contact and via respiratory droplets produced when people cough or sneeze. The WHO keeps a live count of the numbers of those who have perished. As of 6 May 2021, there had been 154 815 600 confirmed cases of COVID-19, including 3 236 104 deaths as reported to the WHO (WHO "WHO Coronavirus (COVID-19) Dashboard" https://covid19.who.int (accessed 2021-04-07)).

The drive to curb the COVID-19 pandemic, and its global health and economic effects, is unprecedented (WHO "Impact of COVID-19 on People's Livelihoods, their Health and our Food Systems" (13 October 2020) https://www.who.int/news (accessed 2021-04-07)). South Africa has not been spared. As of 6 May 2021, South Africa's confirmed mortality cases owing to COVID-19 stood at 54 620 deaths (National Institute for Communicable Diseases (6 May 2021) https://www.nicd.ac.za (accessed 2021-05-07)). With the third/fourth wave approaching, the death toll was expected to rise dramatically as elsewhere in the world (Buthelezi "A Third of SA's Covid-19 Survivors May Be at Risk of Reinfection, Warns Discovery" (6 May 2021) https://www.news24.com/fin24/companies/health/a-third-of-sas-covid-survivors-may-be-at-risk-of-reinfection-warns-discovery-2021050; Businesstech "South Africa's Third Covid-19 Wave Could Hit Earlier Than Expected: Expert" (18 April 2021) https://businesstech.co.za/news (accessed 2021-05-07)).

Henceforth, employers have a duty to take reasonable care for the safety of their employees in all conditions of employment (Joubert v Buscor Proprietary Limited 2013/13116 (2016) ZAGPPHC 1024 (9 December 2016) par 16 and 26; see also Lewis and Sargeant Essentials of Employment Law 8ed (2004) 23; Denyer Employer's Common Law Duty to Take Reasonable Care for the Safety of His Worker's Industrial Law and its Application in the Factory (1973) 47-48). The duty to provide a safe workplace relates to the employer's responsibilities imposed by the common law to ensure that the workplace is reasonably safe. In contrast, the employer's duty to provide a safe work system relates to ensuring that the actual mode of conducting work is safe (SAR & H v Cruywagen 1938 CPD 219 229; Tshoose

"Employer's Duty to Provide a Safe Working Environment: A South African Perspective" 2011 6(3) Journal of International Commercial Law and Technology 165; Tshoose "Placing the Right to Occupational Health and Safety Within a Human Rights Framework: Trends and Challenges for South Africa" 2014 47(2) Comparative and International Law Journal of Southern Africa 276-296). There is no specific legislation dealing with COVID-19; however, the Disaster Management Act 57 of 2002 (as amended) is the overarching legislation regulating and dealing with issues arising from COVID-19 (Tshoose and Ndlovu "COVID-19 and Employment Law in South Africa: Comparative Perspectives on Selected Themes" 2021 33(1) SA Mercantile Law Journal 25-56).

Section 24(a) of the Constitution of the Republic of South Africa, 1996 guarantees the right of everyone to an environment that is not harmful to their health or well-being. To give effect to the constitutional provision above, various overarching pieces of legislation were passed in South Africa to regulate employees' safety and compensation in the workplace. These are the Occupational Health and Safety Act (85 of 1993) (ÓHSA), Compensation for Occupational Injuries and Diseases Act (130 of 1993) (COIDA), Mines Health and Safety Act (29 of 1996) (MHSA), and the Occupational Diseases in Mines and Works Act (78 of 1973) (ODIMWA).

The overall objective of these pieces of legislation is to protect employees with regard to their safety in the workplace. However, viewed individually, they serve different purposes. OHSA and the MHSA deal with the health and safety of employees in the workplace. In contrast, COIDA and ODIMWA deal with the aftermath of injury or disease - for example, payment of compensation to injured employee/s. This approach is informed by the ILO conventions regarding employment injuries. They include the ILO's Minimum Standards Convention 102 of 1952 and its Employment Injury Benefits Recommendation 121 of 1964. The above pieces of legislation guarantee the right of everyone to a safe environment.

The Disaster Management Act Regulations set out other specific measures to be taken by employers - for example, social distancing, screening of employees, sanitising and disinfecting the workplace, monitoring and ensuring that employees wear their cloth masks. Similarly, employees are obliged to comply with measures introduced by their employer as required by the Regulations (Directive by the Minister of Employment and Labour in terms of Regulation 10(8) of the regulations issued by the Minister of Cooperative Governance and Traditional Affairs in terms of s 27(2) of the Disaster Management Act 57 of 2002).

Section 8(1) of OHSA places an express obligation on the employer to maintain a working environment that is safe and healthy. On the issue of a healthy working environment, the employer must ensure that the workplace is free from any risk to the health of its employees as far as is reasonably practicable. There is a clear obligation on the employer to manage the risk of contamination in the workplace, specifically considering COVID-19 (Olivier "The Coronavirus: Implications for Employers in South Africa" (6 March 2020) https://www.webberwentzel.com/News/Pages/the-coronavirus-implications-for-employers-in-south-africa.aspx (accessed 2020-04-14)). Practically, the employer can ensure a healthy working environment by keeping the workplace clean and hygienic, promoting regular hand-washing, promoting vaccination of employees, proper ventilation, and keeping employees informed on developments related to COVID-19 (WHO "WHO Healthy Workplace Framework and Model: Background and Supporting Literature and Practices" (2010) https://www.who.int/occupational_health/healthy_workplace_framework.pdf (accessed 2020-04-14) 15-16).

4 2 The employee's duty to disclose his/her COVID-19 status under POPI Act and other relevant laws

Since the advent of the COVID-19 pandemic, information relating to infected employees has become a vital resource in managing the spread of the disease, and in protecting other employees and members of the community. Consequently, it is important also to unpack briefly how this confidential personal information is handled and disclosed in terms of the Protection of Personal Information Act, and its Regulations (Protection of Personal Information Act 4 of 2013 (POPI Act)).

The purpose of the POPI Act is to regulate the processing (including collection, use, transfer, matching and storage) of personal information by public and private bodies. The POPI Act gives effect to the constitutional right to privacy. In so doing, it balances the right to privacy with other rights and interests, including the free flow of information within South Africa and across its borders. The POPI Act adopts a principle-based approach to the processing of personal information. It sets out eight conditions for the lawful processing of personal information: accountability, processing limitation, purpose specification, further processing limitation, information quality, openness, security safeguards, and data subject participation. These principles apply equally to all sectors that process personal information. The Act prescribes certain conditions for the lawful processing of personal information. Personal information relating to a person's health is considered to be special personal information, owing to its sensitive nature, and a higher degree of protection is afforded to such information (De Bruyn "The POPI Act: Impact on South Africa" 2014 13(6) International Business & Economics Research Journal 1315-1334; for further reading on the POPI Act, see Burns and Burger-Smidt A Commentary on the Protection of Personal Information Act (2018) ch1 -18).

Similarly, section 14(1) of the National Health Act provides that all patients have a right to confidentiality (National Health Act 63 of 2001 (NHA)). This is consistent with the right to privacy provided for in section 9 of the Constitution. Notwithstanding the above, section 14(2)(a)-(c) of the NHA makes an important exception to the general rules of absolute confidentiality set out in the POPI Act and the Health Professions Council of South Africa Guidelines (Health Professions Council of South Africa "Guidelines for Good Practice in the Health Care Professions" (2016) (HPCSA Guidelines) https://www.hpcsa.co.za/pdf (accessed 2021-05-06)).

Specifically, if the non-disclosure of a patient's medical information would pose a serious threat to public health, then the medical information must be disclosed. For the disclosure to be justified, the risk of harm to others must be serious enough to outweigh the patient's right to confidentiality and privacy (s 14(2)(a)-(c) of the NHA). Collecting important information about the spread of COVID-19, while also protecting the patient's identity, is in line with both the POPI Act, and the Constitution. In terms of the POPI Act, information must be de-identified as soon as it has been used for the purpose it was collected. The de-identified data can then be disclosed to the public to keep it informed of the spread of the disease (Schindlers Attorneys "Testing Positive for Covid-19: Public Health vs Privacy" (2020) https://www.schindlers.co.za/2020/testing-positive-for-covid...11257 (accessed 2021-05-06)).

The gist of the matter is that a patient's right to privacy and confidentiality is a priority However, since the COVID-19 pandemic has been declared a national state of disaster under section 27(1)-(3) of the Disaster Management Act (57 of 2002), the right to privacy must be weighed against the risk of harm to the public health. The POPI Act, HPCSA Guidelines, the NHA, and the Constitution are amenable to the conclusion that public health outweighs the protection of personal information and the right to confidentiality and privacy (Donaldson and Lohr Health Data in the Information Age: Use, Disclosure, and Privacy (1994) 136-179).

In summary, it is clear that an employee has a duty to disclose his/her COVID-19 status in the following cases: first, where the risk of harm to others outweighs the patient's right to confidentiality and privacy; and secondly, where such a disclosure will play a role in assisting the government to find effective solutions to deal with the health, economic, and social impacts of COVID-19.

The first and second points (raised above) affect the duty of the employee to disclose his/her COVID-19 status. Section 36 of the Constitution provides that there is no absolute standard that can be laid down for determining the reasonableness and necessity of infringing fundamental rights in a democratic society; these circumstances have to be balanced on a case-by-case basis (S v Makwanyane 1995 (3) SA 391 par 104). In this balancing process, the relevant considerations will include the nature of the right that is limited, and its importance to an open and democratic society based on freedom and equality; the purpose for which the right is limited and the importance of that purpose to such a society; and the extent of the limitation, its efficacy, and (particularly where the limitation has to be necessary) whether the desired ends could reasonably be achieved through other means less damaging to the right in question (S v Makwanyane supra par 104).

4 3 Dismissal arising from flouting COVID-19 regulations

Generally, an employer cannot discipline an employee for what is done in the employee's private space and spare time (Van Niekerk, Christianson, McGregor,and Van Eck Law@Work 4ed (2017) 301) unless it can be shown that the conduct of the employee amounts to criminal misconduct that in some or other respect affects the business of the employer, or could be likely to affect other employees' rights to a safe working environment (Edcon Limited v Cantamesa (2020) 41 ILJ 195 (LC); Moloto and Gazelle Plastics Management (2013) 34 ILJ 2999 (BCA); Khutshwa v SSAB Hardox (2006) 27 ILJ 1067; Ibbett & Britten (SA) (Pty) Ltd v Marks (2005) 26 ILJ 940 (LC); see also Van Niekerk et al Law@Work 302).

That said, there are circumstances in which an employer can dismiss an employee for acts of misconduct committed outside the scope of his/her employment - for example, for flouting the COVID-19 rules and regulations. The case in point involves cases where the employee commits misconduct. Generally, misconduct is the most common ground upon which employers seek to justify dismissal of an employee. In these instances, the employee is disciplined for conduct that contravenes a disciplinary rule of the employer (Collier, Fergus, Cohen, Du Plessis, Godfrey, Le Roux and Singlee Labour Law in South Africa: Context and Principles (2018) 207-209). In order to show that the employee has been fairly dismissed, the employer must show that it has acted both substantively and procedurally fairly (on the procedural fairness requirement, see Schwartz v Sasol Polymers (2017) 38 ILJ 915 (LAC) par 16; Opperman v Commission for Conciliation, Mediation and Arbitration (2017) 38 ILJ 242 (LC) par 18; Hillside Aluminium (Pty) Ltd v Mathuse (2016) 37 ILJ 2082 (LC) par 71 -72; SA Revenue Service v Commission for Conciliation, Mediation and Arbitration (2014) 35 ILJ 656 (LAC) 34; Rennies Distribution Services (Pty) Ltd v Bierman NO (2008) 29 ILJ 3021 (LC) par 24; on substantive fairness, see Mathabathe v Nelson Mandela Bay Metropolitan Municipality (2017) 38 ILJ 391 (LC) par 22; Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation, Mediation and Arbitration (2006) 27 ILJ 1644 (LC) 1654).

In respect of substantive fairness, the employer ought to have a good reason for the dismissal, while on the procedural fairness front, the employer ought to follow the proper procedure before an employee can be dismissed or disciplined (McGregor, Dekker, Budeli-Nemakonde, Germishuys, Manamela and Tshoose Labour Law Rules (2021) 125-129). If the employer is unable to prove the misconduct on a balance of probabilities, then the employer may not dismiss the employee.

Furthermore, it should always be borne in mind that an employee should only be dismissed for gross or repeated serious misconduct. Likewise, the merits of a Policy of Progressive Discipline and the Code of Good Practice, which appears in Schedule 8 of the Labour Relations Act (66 of 1995), ought to be considered. Thus, the gravity of the offence concerned and its impact on the employment relationship needs to be assessed in light of the circumstances of each case (Tshoose and Letseku "The Breakdown of the Trust Relationship Between Employer and Employee as a Ground of Dismissal: Interpreting LAC Decision in Autozone" 2020 1 SA Mercantile Law Journal 156-174). The seriousness of the misconduct will determine whether or not dismissal is warranted (Tshoose and Letseku 2020 SA Mercantile Law Journal 156-174).

In a case where the employee has flouted COVID-19 regulations - for example, where an employee openly attends mass/social gatherings and posts about it (e.g., posting the name of his/her employer) on their social media, and continues to attend the office as normal. This has the potential not only to endanger the health and safety of employees who share a workspace, but also to damage the employer's reputation. The employer would be justified in taking disciplinary action against such employee/s in this situation. In fact, the Labour Court judgment in Eskort Limited has shown that in such circumstances the dismissal of an employee is warranted.

Manamela asserts that an employer may dismiss an employee who fails to comply and obey lawful and reasonable instructions in the form of an operational requirement dismissal (Manamela "Failure to Obey Employer's Lawful and Reasonable Instruction: Operational Perspective in the Case of a Dismissal: Motor Industry Staff Association and Another v Silverton Spraypainters and Panelbeaters (Pty) Ltd" 2013 25(3) SA Mercantile Law Journal 418-435). Proving an employee has not complied with the COVID-19 regulations in these kinds of situations is not always easy but, where there are suspicions and concrete evidence, formal disciplinary sanctions could be applied where an employer, following fair investigation, has a reasonable belief that misconduct warranting action has been committed.

With regard to the issue of misconduct committed outside working hours, the jurisprudence of the South African courts and academic discourse has shown that a link between an employee's off-duty misconduct and the employer's business can exist (Edcon Limited v Cantamesa 2020 41 ILJ 195 (LC); Moloto and Gazelle Plastics Management (2013) 34 ILJ 2999 (BCA); NEHAWU obo Barness v Department of Foreign Affairs (2001) 6 BALR 539 (P); Khutshwa v SSAB Hardox 2006 27 ILJ 1067; cf Tshoose "The

Employers' Vicarious Liability in Deviation Cases: Some Thoughts From the judgment of Stallion Security v Van Staden 2019 40 ILJ 2695 (SCA)" 2020 34(1) Speculum Juris Journal 42-50). Courts have found that such a link exists where the employee's conduct had a detrimental or intolerable effect on the efficiency, profitability, or continuity of the business of the employer (NEHAWU obo Barness v Department of Foreign Affairs supra). In the absence of the aforementioned link, the employer cannot discipline the employee as it is then regarded as non-work-related conduct. As discussed above, the employer will have to prove that the misconduct affected the business negatively, or that the business lost or could lose clients or even that it could bring the company name into disrepute. In short, the employer will have to prove it has a legitimate interest in the matter (Le Roux "Off Duty Misconduct: When Can It Give Rise to Disciplinary Action?" 2011 20(10) Contemporary Labour Law 91 -97).

In light of the above discussion, it becomes clear that an employer can discipline an employee for flouting the COVID-19 regulations. In fact, the Labour Court in Eskort Limited v Stuurman Mogotsi (supra) has conspicuously outlined the circumstances under which the employer can take appropriate action against an employee who wilfully refuses to obey the lawful and reasonable instructions of the employer in the time of COVID-19.

 

5 Concluding remarks

COVID-19 is a terrifying pandemic that may endanger humanity if it spreads and cannot be controlled. Following the Labour Court judgment in Eskort Limited, it is now clear that should an employer issue a lawful and reasonable instruction to its employees, even in the midst of a pandemic, the employee is obliged to adhere to it and could face dismissal for failure to comply (Botha v TVR Distribution (2020) 12 BALR 1282 (CCMA)). The Labour Court judgment advances the need for more to be done at both the workplace and in our communities in ensuring that employers, employees, and communities be sensitised to the realities of COVID-19, and to further reinforce the obligations of employers and employees in the face of, or in the event of exposure to, this pandemic (Eskort Limited supra par 2).To conclude, employers are encouraged to update their policies to include specific guidelines on the conduct of employees during COVID-19 and to make it clear to employees that what they do during these times of the pandemic could "cost them their job".

CI Tshoose

University of Limpopo

^rND^1A01^nAndré^sMukheibir^rND^1A01^nAndré^sMukheibir^rND^1A01^nAndré^sMukheibir

CASES

 

Barking up the wrong tree - the actio de pauperie revisited - Van Meyeren v Cloete (636/2019) [2020] ZASCA 100 (11 September 2020)

 

 

1 Introduction

It is trite that the South African law of delict follows a generalising approach (Loubser and Midgley The Law of Delict in South Africa (2017) 19-20; Neethling and Potgieter Law of Delict (2020) 4-5). This entails that liability will only ensue when all the elements of delict are present. South African law does not recognise individual "delicts" (Loubser and Midgley The Law of Delict in South Africa 19; Neethling and Potgieter Law of Delict 4). The generalising approach followed in South African law is qualified in that there are three main delictual actions, namely the actio legis Aquiliae for patrimonial loss; the actio inuriarum for loss arising from intentional infringements of personality rights; and the Germanic action for pain and suffering, in terms of which a plaintiff can claim compensation for negligent infringements of the physical-mental integrity (Loubser and Midgley The Law of Delict in South Africa 19; Neethling and Potgieter Law of Delict 5). This approach is further qualified in that numerous actions dating back to Roman law still exist in our law today. Included in this mix are the actions for harm caused by animals, such as the actio de pauperie, the actio de pastu, and the actio de feris, each with its own requirements (Neethling and Potgieter Law of Delict 435-440; Scott "Die Actio de Pauperie Oorleef 'n Woeste Aanslag Loriza Brahman v Dippenaar 2002 (2) SA 477 (HHA)" 2003 TSAR).

There have been questions as to whether these actions, in particular the actio de pauperie, still form part of South African law. In Loriza Brahman v Dippenaar (2002 (2) SA 477 (SCA) 487) the defendant claimed that the actio was no longer part of the South African law (par 14). The Supreme Court of Appeal (SCA) per Olivier JA held that the actio de pauperie had been part of South African law for more than 24 centuries and not fallen into disuse (par 15). Olivier JA held that the fact that the action is based on strict liability (one of the arguments raised against it) is no reason to ban it from South African law as strict liability was increasing and in suitable instances fulfils a useful function (par 15).

The SCA, again, recently confirmed the continued existence of the action in South African law in the case of Van Meyeren v Cloete ((636/2019) [2020] ZASCA 100 (11 September 2020) 40). In this case, the SCA had to decide whether to extend the defences against liability in terms of the actio de pauperie to the negligence of a third party that was not in control of the animal. The defendant held that the court should develop the common law in this regard. Considering both case law and the requirements for the development of the common law, the SCA held that such an extension could not be justified.

 

2 Facts

Mr Gerhard Cloete, a gardener and refuse collector, was on his way to the shop, pulling the trolley in which he collects refuse. While walking past the Van Meyeren house, minding his own business, he heard dogs behind him. Three dogs subsequently attacked him from behind. The dogs belonged to Van Meyeren, who was the appellant in the case. The dogs savaged Mr Cloete, and this resulted in his left arm being amputated. Mr Cloete claimed damages in terms of the actio de pauperie and in the alternative, on the basis of negligence (presumably in terms of the actio legis Aquiliae). Mr Cloete's presence in the place where he was attacked was lawful and he had done nothing to provoke the dogs. The dogs also attacked Mr van Schalkwyk, a passer-by who had come to Mr Cloete's assistance. Nobody was at home at the time of the incident.

By all accounts, the dogs, mixed breed with pit-bull features, had never attacked anyone and slept in the house. They had the run of the house and the garden, which was fenced and sealed off from the street by means of a padlocked gate. Whether the gate was in fact padlocked on the day of the incident is uncertain. Mr and Mrs van Meyeren testified that the gate was at all times locked with two padlocks. They alleged that the gate had been opened by an intruder. Photographs taken on the day of the incident showed no padlocks. A photograph taken some time later showed the gate with two heavily rusted padlocks (see discussion in 3 1 and 3 2 below).

 

3 Judgment

3 1 Court a quo

The plaintiff claimed damages in terms of the actio de pauperie in the court a quo and succeeded (see Scott "Conduct of a Third Party as a Defence against a Claim Based on the Actio de Pauperie Rejected - Cloete v Van Meyeren [2019] 1 All SA 662 (ECP); 2019 2 SA 490 (ECP)" 2019 82(2) THRHR for a case discussion of the decision of the court a quo). Initially, the defendant denied that his dogs had been responsible for the attack and if they had been, it was because an intruder had attempted to break into the front door and had broken open the gates to the garden where the dogs were kept. He denied liability and negligence.

The defendant eventually conceded that the dogs were his and that they had acted contra naturam sui generis. The court had to decide two questions, namely whether the fact that the gate had allegedly been opened and left open by an intruder could constitute an exception to liability in terms of the actio and if so, if the plaintiff could establish liability in terms of the actio legis Aquiliae? (Cloete v Van Meyeren 2019 2 SA 490 (ECP) 6). The defendant bore the onus of proving that the gate was left open by an intruder. While the Court regarded the defendant as an unsatisfactory witness, it nevertheless accepted that the gates had been locked and later broken open by an intruder (Cloete v Van Meyeren supra par 16). As there was no negligence, the court held that liability in terms of the actio legis Aquiliae had to fail.

Dealing with the actio de pauperie, the Court commenced by looking at the history of the action (par 18), referring to the historical overview in Lever v Purdy (1993 (3) SA 17 (AD) 21C-25F as cited in Cloete par 20). With reference to the Lever case (supra) the court a quo found that there were two categories of conduct of third parties that would serve as a defence against the actio de pauperie, namely (a) where the third party through positive conduct provoked the animal; and (b) where the third party who was in control of the animal, culpably lost control.

In the present case, the defendant relied on the second defence but did not succeed. In Lever v Purdy (supra), the defendant argued that the negligence of the intruder who left the gates open but was not in control of the animals would be sufficient to bring the so-called "wider" exception as a complete defence against the actio de pauperie. Lowe J argued that while the existence of the "wider exception" finds some support in case law, there is no support for such an extension in Roman law or Roman-Dutch law. Looking at previous cases such as Lever v Purdy (supra) and Loriza Brahman v Dippenaar (supra), Lowe J stated that he could "find no convincing support either in principle or flowing from the rules as to pauperian liability justifying the extension of a pauperian defence or exception as contended by the defence" (par 40). The plaintiff's claim in terms of the actio de pauperie was, therefore, successful (par 42).

According to Scott (2019 THRHR 331), the outcome of this judgment had to be welcomed, as it was in accordance with the approach that the liability of an owner of a domestic animal was based on the risk principle. This is because the person who keeps such an animal creates potential danger, and this justifies holding the owner liable, even in the absence of fault (see discussion below in 4 3).

3 2 Supreme Court of Appeal

The defendant appealed to the SCA, where the court per Wallis JA dismissed the appeal (par 43).

The SCA dealt with three issues, namely:

(a) The treatment of the factual evidence in the court a quo;

(b) Whether the actio de pauperie was still part of South African law and if so;

(c) Whether the third-party defence should be extended to a situation where the harm would not have occurred, but for the negligent conduct of the third party in circumstances where the third party had no control over the animal.

3 2 1 The treatment of the factual evidence in the court a quo

Wallis JA criticised the court a quo's handling of the "unsatisfactory and speculative evidence" of the defendant (par 13). The onus of proving that the evidence was correct rested on Van Meyeren. The court was not obliged to accept an improbable explanation merely because there was no other explanation or that the alternative seemed even less probable to the judge (par 13). Wallis JA identified two possibilities, namely (a) the gates were not sufficiently secured to keep the dogs inside, and (b) there was an intruder (the explanation proffered by the Van Meyerens). The issue, in this case, was whether the explanation of the Van Meyerens (that the dogs escaped) was, on a balance of probabilities, the only conclusion that could be reached. Mr van Meyeren bore the onus of proof and did not discharge it. His defence should, therefore, have failed (par 13).

3 2 2 Is the actio de pauperie still part of South African law?

Wallis JA summarised the recent history of the action, starting with O'Callaghan v Chaplin (1927 AD 310), including a discussion of Loriza Brahman v Dippenaar (supra par 15-10). From the case law, it is clear that the actio de pauperie was and is a part of our law (see discussion below).

Wallis JA described the contra naturam requirement as reflecting an element of anthropomorphism (see discussion below) in that "for the owner to be liable, there must be something equivalent to culpa in the conduct of the animal" (par 19 referring to SAR and H v Edwards 1930 AD 3 9-10). If the animal has not acted contra naturam the owner will not be held liable. The onus, in this case, is on the owner to prove that the animal did not act contra naturam (par 19).

3 2 3 Should the third-party defence be extended to a situation where the harm would not have occurred, but for the negligent conduct of the third party in circumstances where the third party had no control over the animal?

Mr van Meyeren argued that the defence recognised in Lever v Purdy (supra) should be extended to exempt the owner from liability for harm caused by the animal in a situation where the harm occurred as a result of the negligent conduct of a third party, irrespective of whether the third party had control over the animal or not.

Wallis JA (par 23) referred to Lever v Purdy (supra), citing the two instances identified in that case where the conduct of a third would constitute a defence against the actio de pauperie, namely (a) striking or provoking the animal in some way; and (b) where the third party was in control of the animal and failed to prevent the animal from causing harm to the victim. These cases were identified by Joubert JA upon a reading of the common-law sources. The minority decision of Kumleben JA referred, in passing, to a wider exception, but, according to Wallis JA, nothing in Lever v Purdy (supra) supported the wider third-party defence.

Wallis JA, stated that "these rather cryptic references in and to the old writers on the Roman-Dutch law" do not serve as a clear authority to indicate the existence of a wider defence (par 31).

Van Meyeren argued that the law in this regard should be developed to provide for the wider defence. Wallis JA (par 32, referring to Mighty Solutions (Pty) Ltd t/a Orlando Service Station v Engen Petroleum Ltd 2016 (1) SA 621 (CC) 38) summarised the court's power to develop the common law, stating that the power is vested in the High Courts, Supreme Court of Appeal, and the Constitutional Court, by virtue of section 173 of the Constitution. This power has to be exercised "in accordance with the interests of justice" (par 32). The courts are enjoined by section 39(2) to "promote the spirit, purport and objects of the Bill of Rights". When considering whether to develop the common law, a court has to do the following (par 32): (a) determine what the common law position is; (b) consider the underlying reasons for this position; (c) ask whether the rule offends the spirit, purport and object of the Bill of Rights; and (d) consider in which way the common law could be amended, and take into consideration the effects of the change on the particular area of the law.

Wallis J, having had already set out the common-law position (as per (a) above), proceeded to look at (b), namely the underlying reason for the actio, which, according to him was that between the owner of the dog and victim, it is "appropriate" for the owner to bear that harm, instead of the victim (par 33). Insofar as (c) is concerned, the appellant did not rely on any specific provision of the Bill of Rights; he also did not (correctly so, according to Wallis JA) allege that the limited exception offended the spirit, purport, and objects of the Bill of Rights. This, according to Wallis JA, was correct, because the actio in fact serves to protect the right to bodily integrity in section 12(2); the right to dignity in section 10; and the right to life in section 11 (par 34). The court held that the actio exists to protect these rights and it is right to rather develop the actio in ways that can protect these rights (par 34).

Counsel for the appellant submitted that given the levels of crime in South Africa it was reasonable for people to want to protect themselves and not everyone could afford sophisticated security systems (par 35). Wallis JA held that while this is true, deterrence and restraint do not mean that the intruder has to be killed or maimed (par 35).In this particular case, furthermore, the dogs harmed an innocent bystander, not an intruder; and this took place, not on the premises of the owner, but in the street (after the dogs escaped). The right to keep a dog for the protection of the home is extensive but this right becomes irrelevant where the dog harms someone outside the home (par 36). The appellant did not deny that the requirements for the actio de pauperie were met but claimed that fault was absent. However, as stated by Wallis JA, fault had never been a requirement for the actio de pauperie and a defence of absence of fault will not preclude pauperian liability.

Furthermore, Wallis JA held that where the conduct of either the victim or third parties exonerate the owner from liability in terms of the actio de pauperie, it is because the conduct directly caused the incident in which the victim suffered harm this refers to circumstances where the owner is unable to prevent the harm from taking place.

Wallis JA referred again to Lever v Purdy (supra), this time to the minority decision of Kumleben JA, in particular to the following points raised by Kumleben:

(i) The South African law of delict is based on the fault principle - in this regard, Wallis JA pointed out that vicarious liability is strict, as well as liability in terms of certain statutes (par 40);

(ii) Kumleben JA held that if one had to weigh up the interests of the owner, who was not at fault, and that of the victim, who had suffered damage as a result of the conduct of the animal, "considerations of fairness and justice favoured the owner". According to Wallis JA, this interpretation is incorrect, given the constitutional values that he mentioned earlier. Also the dog's owner can obtain insurance cover in terms of a household insurance policy (par 42).

In the final instance Wallis JA recognised that many South Africans choose to have dogs, both for companionship and for protection. This gives rise to responsibilities. When someone chooses to have an animal and someone is harmed by the animal while being innocent of fault, the interests of justice require that the owner should be held liable for the harm that ensued (par 42).

 

4 Discussion

4 1 The actio de pauperie of yesteryear

The actio de pauperie originated in the Twelve Tables (O'Callaghan v Chaplin supra 313; Kaser Roman Private Law (1984) 252; Neethling and Potgieter Law of Delict 435; Polojac "Actio de Pauperie Anthropomorphism and Rationalism" 2012 8(2) Fundamina 119; Zimmermann The Law of Obligations (1990) 1096) and is said to have been around as early as 450BC (Zimmermann The Law of Obligations 1097).

The action was a noxal action, meaning that the owner of an animal that caused harm either had to pay compensation or to give the animal to the injured party (Kaser Roman Private Law 252; Polojac 2012 Fundamina 137; Zimmermann The Law of Obligations 1099; Lever v Purdy supra 21A; O'Callaghan v Chaplin supra 314). Zimmermann writes that animals were regarded to have committed the delict, and "[t]he victim of the injury was thus allowed to wreak his vengeance upon the body of the animal - in the very same way as if the wrongdoer had been a human being" (Zimmermann The Law of Obligations 1099; see also Polojac 2012 Fundamina 137). If, however, the animal was owned by someone, the victim could not just kill the animal because by so doing he would be infringing the rights of the owner (Zimmermann The Law of Obligations 1099). He could, however, request the surrender of the animal, which was known as noxae deditio (Zimmermann The Law of Obligations 1099; see also O'Callaghan v Chaplin supra 315; Lever v Purdy supra 21A).

Eventually, a claim for damages was regarded as a more appropriate remedy as the idea of private vengeance underpinning the law of delict fell away (Zimmermann The Law of Obligations 1100). According to Zimmermann, in classical and post-classical Roman law the victim could choose between claiming damages from the owner or the surrender of the animal (The Law of Obligations 1100; see also Polojac 2012 Fundamina 137).

Another rule - noxa caput sequitur - provided that the owner at the time of litis contestatio was liable for damages, rather than the owner at the time the harm was caused (Zimmermann The Law of Obligations 1100; see also O'Callaghan v Chaplin supra 314; Lever v Purdy supra 21A). Moreover, if the animal died before litis contestatio, the right to institute the action fell away (Zimmermann The Law of Obligations 1100).

According to the Twelve Tables, the animal had to be a quadrupes, specifically a domestic animal (Polojac 2012 Fundamina 123, Zimmermann The Law of Obligations 1101; O'Callaghan v Chaplin supra 314). Although the word "quadrupes" had both a wide meaning (which included wild animals) and a narrow meaning (which was limited to domestic animals) the Twelve Tables used the narrow meaning (Polojac 2012 Fundamina 123). According to Polojac, dogs were initially not included within the ambit of the actio de pauperie; this only happened once the action was extended by the lex Pesolania de cane (Polojac 2012 Fundamina 124; see also O'Callaghan v Chaplin supra 370). Polojac (2012 Fundamina 124) argues that in Classical Roman times the action was only applicable to domestic animals, even though there seem to be varying opinions about this.

Insofar as the contra naturam requirement is concerned, Polojac notes that the earliest sources included this requirement (Polojac 2012 Fundamina 134; see also Lever v Purdy supra 201; O'Callaghan v Chaplin supra 313314). The animal had to show ferocity beyond its instinctive feritas, in other words, the ferocity had to be contra naturam (Zimmermann The Law of Obligations 1102). According to Zimmermann, this requirement was introduced by Roman lawyers to limit the liability of the owners (Zimmermann The Law of Obligations 1102). Polojac notes that because of the "obvious anthropomorphism in its approach to domestic animals" this requirement has been contentious in the literature (see Polojac 2012 Fundamina 134-137).

The actio de pauperie was received in the Netherlands (Lever v Purdy supra 20I-21A). There is uncertainty whether the noxal requirement fell into disuse (O'Callaghan v Chaplin supra 318; see however Knobel "Remnants of Blameworthiness in the Actio de Pauperie" 2011 74 THRHR 633 634; Neethling and Potgieter Law of Delict 436; Lever v Purdy supra 21A). The actio came into South African law via Roman-Dutch law (Lever v Purdy supra 21A).

4 2 The actio de pauperie today

4 2 1 Requirements

To succeed with the actio de pauperie the following requirements have to be met (Knobel 2011 THRHR 637, Loubser and Midgley The Law of Delict in South Africa 458-462; Louw "Verwere by die Actio de Pauperie" 2001 De Jure 159, Neethling and Potgieter Law of Delict 436-437; Scott THRHR 321; Scott 2003 TSAR 194):

(a) The defendant must be the owner of the animal at the time the harm is inflicted. It is not enough that he has control over the animal; he must be the owner in terms of the property law definition of ownership (Loubser and Midgley The Law of Delict in South Africa 459).

(b) The animal must be a domestic animal; the following animals are examples of animals recognised by our law as being domesticated: dogs; cats; livestock; bees; horses; mules; and meerkats (Neethling and Potgieter Law of Delict 386; Loubser and Midgley The Law of Delict in South Africa 459).

(c) The animal must have acted contra naturam sui generis. This means that the animal must have acted contrary to what can be expected of a reasonable animal of that kind. The "flipside" of this requirement is that the animal must have caused the damage sponte feritate commota or from inward vice. In Loriza Brahman, the Court held that the yardstick is the conduct of the genus (in this case cattle) and not a specific species (Brahman cattle - see supra par 18). As mentioned above, in Van Meyeren Wallis JA speaks of "an element of anthropomorphism [that] underlies the pauperien action" (par 19):

"It attributes to domesticated animals the self-constraints that are generally associated with human beings and attaches strict liability to the owner on the basis of the animal having acted from inward vice".

The owner in this case bears the onus of proving that the animal did not act contra naturam sui generis (Van Meyeren supra par 19).

Neethling and Potgieter (Neethling-Potgieter-Visser Law of Delict (2015) 386) are of the opinion that the contra naturam requirement should be abolished for the following two reasons (Law of Delict 386; this is not mentioned in the latest edition of the book):

(i) The requirement points to a "personification or humanisation (see above, Wallis JA describing the test as anthropomorphic) of an animal by virtue of the "reasonable animal" test. They describe this line of reasoning as "artificial and thus undesirable".

(ii) The requirement lends itself to a wider variety of interpretations, thus leading to legal uncertainty and also resulting in any harmful conduct being classified as contra naturam, which would then on the basis of policy considerations be felt to found an action for damages.

Knobel is also of the opinion that the contra naturam requirement "in the vast majority of applications [...] can only function [...] as a fiction or catch-phrase denoting a standard of behaviour imposed by the law on domestic animals, and one containing unacceptable remnants of blameworthiness at that" (Knobel 2011 THRHR 639). According to Knobel, the best way to rid the actio de pauperie of notions of blameworthiness is to drop the contra natura requirement all together (2011 THRHR 641, 643).

Loubser and Midgley (The Law of Delict in South Africa 460) note that the courts apply the contra naturam test inconsistently, and that some cases follow a subjective approach by referring to the "innate wildness, viciousness or perverseness" of the animal, while others follow an "objective or reasonable animal" approach. They also identify a third approach, which takes both objective and subjective factors into account.

(d) The plaintiff must have been present lawfully at the place where the harm was inflicted (Van Meyeren supra 20; O'Callaghan v Chaplin supra 326; see Neethling and Potgieter Law of Delict 384 about the approaches to this, namely whether the requirement is a lawful purpose or a legal right on the part of the plaintiff. Neethling and Potgieter (Law of Delict 438) regard the "legal right" approach as being preferable).

The following defences can be raised against the actio de pauperie (Neethling and Potgieter Law of Delict 437; Loubser and Midgley The Law of Delict in South Africa 462-463):

(a) Vis maior or an act of God;

(b) Culpable or provocative conduct on the part of the victim;

(c) Culpable or provocative conduct on the part of a third party;

(d) Provocation by another animal;

(e) The person who was attacked was not on the property lawfully (Van Meyeren supra 20; O'Callaghan v Chaplin supra 326 - the court uses the example of a housebreaker who is bitten by a dog); and

(f) Volenti non fit iniuria.

In Lever v Purdy (supra) the court identified two instances where the culpable conduct of a third party could constitute defences against the actio de pauperie (21C-25F; see also Van Meyeren v Cloete supra 23):

(a) Where a third party through a positive act (such as provocation) caused the animal to inflict an injury upon the victim; or

(b) Where the third party was in control of the animal and failed to prevent the animal from harming the victim.

The court in Lever v Purdy (supra 21C-25 F) traced these defences back to Justinian and through Roman-Dutch Law to the present day.

In the Van Meyeren case the appellant wanted the court to develop the common law to allow for the third-party defence to be extended to a situation where the harm would not have occurred "but for" the negligent conduct of the third party in circumstances where the third party had no control over the animal. As indicated above, both the court a quo and the SCA held that the third-party defence could not be extended in this manner.

4 3 Is it time to put the actio de pauperie to rest?

From case law dating back to O'Callaghan v Chaplin (supra) it is clear that the action has been a part of South African law for decades:

"In my opinion, therefore, obsolescence of the option of noxae deditio, leaving the basis of liability under the law of the Twelve Tables intact, would be a perfectly possible, and indeed a satisfactory, legal position"

In Loriza Brahman v Dippenaar (supra) the defendant argued that the actio had fallen into disuse (see also Scott 2003 TSAR 194). The court held:

"[t]he time to carry the actio de pauperie to the grave, despite its age, has not yet arrived" (own translation from the Afrikaans)." (par 16)

An argument in favour of retaining strict liability for damage caused by animals is that of the risk theory. Knobel (2011 THRHR 639) regards it as the best explanation of why certain forms of delictual liability are strict, rather than fault-based. Scott describes the actio de pauperie as the oldest form of risk liability (2003 TSAR 194). Neethling and Potgieter (Law of Delict 434) write that the risk theory "provides a satisfactory explanation for most of the instances of strict liability which are recognised in our law." The risk principle entails that the defendant creates the risk by keeping the animal; hence, that is a justification for holding him liable should that danger materialise (Knobel 2011 THRHR 639; Scott 2019 THRHR 331). This sentiment is echoed by the courts. In the Loriza Brahman case (supra 16) the Court held as follows:

"[I]f one follows the approach that delictual liability ought to be based on fault, the actio de pauperie would appear as "not elegant and anomalous". If, however one's point of departure is a broader vision of delictual liability, that includes deserving cases of risk liability, then the question only is whether the actio de pauperie fulfils a deserving role." (own translation from the Afrikaans).

Loubser and Midgley (The Law of Delict in South Africa 438) see regard liability as "a type of tax on activities that attract such liability, rather than a penalty for engaging in it".

Knobel (2011 THRHR 639) states that even though the actio has its origin "in a more primitive legal system" in terms of which an owner is punished for harm caused by the animal to punish an owner for harm caused by an animal, strict liability can be justified in a modern legal system based on the risk principle.

 

5 Conclusion

The actio de pauperie remains a part of South African law despite the fact that our law of delict follows a generalising approach. In addition, the SCA has brushed aside questions regarding its continued existence in South African law. In Van Meyeren v Cloete (supra) the SCA reiterated the stance it adopted in the Loriza Brahman case, namely that the action remains a part of our law. The SCA has held, furthermore, that the third-party defence should not extend to the situation where the harm would not have occurred "but for" the negligent conduct of the third party in circumstances where the third party had no control over the animal. According to several authors, the risk principle is a justification for the continued presence of the actio in modern South African law as a form of strict liability. Keeping domestic animals comes with the risk that they may cause harm and if this risk materialises, it should be the defendant who is held liable for the harm that ensues from the conduct of the animal. (Knobel 2011 THRHR 639, Scott 2019 THRHR 331). The actio de pauperie, despite the onslaughts on its existence, lives another day and in the same guise.

André Mukheibir

Nelson Mandela University

^rND^1A01^nKonanani Happy^sRaligilia^rND^1A01^nKodisang Mpho^sBokaba^rND^1A01^nKonanani Happy^sRaligilia^rND^1A01^nKodisang Mpho^sBokaba^rND^1A01^nKonanani Happy^sRaligilia^rND^1A01^nKodisang Mpho^sBokaba

CASES

 

Breach of the implied duty to preserve mutual trust and confidence in an employment relationship: a case study of - Moyo v Old Mutual Limited (22791/2019) [2019] ZAGPJHC 229 (30 July 2019)

 

 

1 Introduction

This case note is intended to revisit the contentious aspect of the implied duties of South African labour law in the individual employment relationship. Significantly, the case note intends to remind the reader about the importance of adhering to certain implied duties in the contract of employment. In this regard, the implied duty to preserve mutual trust and confidence is the central theme of this case note. On the one hand, the implied duty to safeguard mutual trust and confidence imposes an obligation upon the employer to conduct itself in a manner not likely to destroy, jeopardise, or seriously damage the trust relationship and confidence in the employment relationship. On the other hand, this implied duty is becoming a significant yardstick used by employers to address contractual labour disputes in South Africa. In order for an employer to invoke this implied duty, it must be expected that the employee would have to conduct him or herself in a manner likely to demonstrate to his employer loyalty, good faith and cooperation.

Against this background, the recent case of Moyo v Old Mutual (22791/2019) [2019] ZAGPJHC 229 (30 July 2019) (Moyo) demonstrates the impact of a breach of the implied duty to preserve mutual trust and confidence on the employment relationship. This case note intends to examine the implied obligation that rests upon the employer to safeguard trust and confidence in the relationship. The case note further reflects on the implied duty of employees to safeguard and protect mutual trust and confidence. After all, trust forms the basic fundamental core of the employment relationship, and any breach of this duty is likely to result in an irretrievable breakdown of the employment relationship. Once there is a breakdown of trust and confidence, it remains a mammoth task to restore the relationship.

 

2 Facts of the case

Mr Peter Moyo was an employee and also the Chief Executive Officer (CEO) of Old Mutual Limited (Old Mutual), the employer (Moyo v Old Mutual (22791/2019) [2019] ZAGPJHC 229 (30 July 2019) par 1). This court action was triggered by a series of events that began in March 2018 when Moyo questioned certain conflict-of-interest elements involving Mr Trevor Manuel, (Chairperson of the Board governing the employer) and Rothschild (Moyo v Old Mutual supra par 3). This conflict of interest stems from a large multibillion rand commercial project on the delisting of Old Mutual PLC from the London Stock Exchange and the proposed listing of the employer on the Johannesburg Stock Exchange (Moyo v Old Mutual supra par 3). It is important to note that Manuel was a director of all these companies.

As soon as it became apparent to Moyo that there was a potential conflict of interest on the part of Manuel, he openly voiced his concerns and cautioned him not to participate in the discussion meetings (Moyo v Old Mutual supra par 5). However, Manuel ignored and failed to act on Moyo's objections, proceeding to participate in the discussion of this matter. From that point onward, Moyo noticed that his employment relationship with Manuel turned sour (Moyo v Old Mutual supra par 6) because Manuel continued to ignore Moyo's further advice relating to improper non-disclosure of a payment amounting to millions of rand paid by the employer in respect of the chairperson's legal fees (Moyo v Old Mutual supra par 7). Efforts to restore a good employment relationship between Moyo and Manuel yielded no results. On 23 May 2019, Moyo was suspended and was ultimately dismissed on 17 June 2019 for failure to discharge his fiduciary duties as a director of the employer. It was alleged that Moyo made certain disclosures about payment of Manuel's legal fees before allegations of a conflict of interest were then made against him in respect of another matter. This prompted Moyo to lodge an application in the High Court reinstating him to his position as CEO of Old Mutual.

 

3 Legal issues

Legal issues arising from this case are (a) whether the dismissal of Moyo was in line with the parties' contractual obligations and (b) whether the Protection of Disclosures Act (26 of 2000) is applicable in the matter.

 

4 Analysis of the employment relationship

The employee and employer relationship is founded on obligatory duties to work by the former, and the duty to pay wages and salaries by the latter (Fouche "Common Law Contract of Employment" in A Practical Guide to Labour Law 8ed (2015) 16 par 266). These obligatory duties fall within the confines of the contract of employment, even though not all these duties may invoke contractual elements. However, the Moyo case espouses all elements of an employment relationship, which is founded on the prescripts of contractual obligations.

The employment relationship between Moyo and Old Mutual can best be described as one where labour is bought and sold as a commodity (Davidson The Judiciary and the Development of Employment Law (1984) 7). In this instance, Old Mutual as an employer owns labour and further regulates Moyo, who is an employee. In the words of Kahn Freund, "there can be no employment relationship without a power to command and a duty to obey, that is, without this element of subordination in which lawyers rightly see the hallmark of the contract of employment" (Davies and Freedland Kahn Freund's Labour and the Law 3ed (1983) 9). Furthermore, Strydom rightly justified this regulation when he asserted that the "employer's right to control the workforce is the cornerstone of the employment relationship" (Strydom The Employer Prerogative from Labour Law Perspective (LLD Thesis UNISA) 1997 1-38). Thus, the control dynamism of the employment relationship is deeply embedded in the jurisprudential philosophy of the contract of employment. In other words, the duty of subordination forms a central part in the contract of employment. The duty of subordination entails that the employee ought to conduct him or herself in an honest and obedient manner and also be willing to cooperate with the employer at all material times (Impala Platinum Limited v Zirk Bernardus Jansen (JA100/14)). In terms of power dynamics, this expressly implies that Old Mutual finds itself in a position of authority over Moyo. In return, Moyo is expected to carry out his employment duties subject to Old Mutual authority and further to obey the lawful orders that the employer expects him to carry out.

Generally, disobeying the lawful commands of the employer by an employee may constitute the misconduct of insubordination. For this reason, the discipline and ultimate dismissal of the employee may be justifiable, as long as those actions are compliant with both the substantive and procedural requirements for dismissal.

 

5 Implied duty to safeguard of mutual trust and confidence in Moyo

Although the duty to safeguard trust and confidence in the employment relationship was not expressly explored in the Moyo case, its implied significance could evidently be felt in the case. This is because this duty imposes an obligation on both parties in the contract of employment. However, it is significant to note that a much greater obligation of this duty is imposed on the employer. In the present case, the employer is Old Mutual. In the landmark case of Malik v Bank of Credit & Commerce International (In liquidation) [1998] AC 30) (Malik), Lord Steyn held that an employer may not, "without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee" (par 45). The Malik case laid a greater obligation at the doorstep of the employer not to act in a manner likely to breach mutual trust and confidence. In other words, not only is Moyo expected to act in good faith and fair dealing, but so too is Old Mutual.

The same principle of good faith and fair dealing was raised in the case of Wallace v United Grain Growers Ltd 1997 CanLII 332 (par 139), where Judge McLachlin held:

"A contract of employment is typically of longer term and more personal in nature than most contracts, and involves greater mutual dependence and trust, with a correspondingly greater opportunity for harm or abuse. It is quite logical to imply that parties to such a contract would, if they turned their minds to the issue, mutually agree that they would take reasonable steps to protect each other from such harm, or at least would not deliberately and maliciously avail themselves of an opportunity to cause it."

In the same vein, Moyo's contract of employment appointing him as CEO of the employer was a permanent one and depended heavily on a trust relationship between employee and employer (par 3).

Consequently, Moyo owed a fiduciary duty to desist from acting contrary to the interests of Old Mutual. This fiduciary duty takes centre stage in the employment relationship between employee and employer. This notion was further upheld in the case of Council for Scientific & Industrial Research v Fijen ((1996) 17 ILJ 18 (A) 26D-E), where it was found:

"It is well established that the relationship between employer and employee is in essence one of trust and confidence and that, at common law, conduct clearly inconsistent therewith entitles the 'innocent party' to cancel the agreement ... It does seem to me that, in our law, it is not necessary to work the concept of an implied term. The duties referred to simply flow from naturalia contractus."

Once there is a breakdown of trust, therefore, termination of the employment contract may be justified as a result of the conduct of both parties in the employment relationship.

Against this background, this note now intends to examine the Moyo case based on the arguments advanced by both parties to the contract of employment. The case note further intends to reflect on what caused the judge to arrive at his decision. Such an examination would take into account the following:

(a) Confidential information

The principles of individual employment law dictate that an employee is expected to safeguard confidential information gained in the course of employment. Furthermore, the employee may not disclose such confidential information for personal gain whatsoever. One classic case on the protection of confidential information is Cooler Ventilation Co Ltd (SA) Ltd v Liebenberg (1967 (1) SA 686 (W) 691), where it was held that "an employer is entitled to be protected from unfair competition, as it is called in American law, brought by confidential information of his business to a rival by an employee or ex-employee." However, it was evidently clear from the Moyo case that the employee was actually persecuted for objecting to the non-disclosure of payments in respect of Manuel's legal fees (Moyo v Old Mutual supra par 7). Moyo further highlighted that these payments were quite irregular and improper (Moyo v Old Mutual supra par 7). In the end, Judge Mashile found:

"The discovery of the alleged conflict therefore came well after the disclosures. For this reason, the connection is apparent - disclosure followed by alleged conflict and then the occupational detriment. On the understanding that causality was the only issue, I find that the Applicant [Moyo] should be protected." (Moyo v Old Mutual supra par 62)

It is evident from the above judgments that in the contract of employment, employees have an implied duty not to use information obtained at their workplace to advance personal interests contrary to those of their employers on the one hand. Furthermore, an employer is expected to protect those employees who protect the information gained during their course of employment against those who seek to use confidential information against the employer's interests.

(b) Conflict of interest

It is a generally accepted principle of employment law that an employee may not engage him/herself in conduct that would result in a conflict of interest with the employer. In other words, an employee is under an obligation to promote the interests of the employer in the course of the employment contract. This assertion was also confirmed in Prinsloo v Harmony Furnishers (Pty) Ltd ((1992) 13 ILJ 1593 (IC)), where it was held in paragraph 5 that

"at common law an employee is under an obligation to enhance the business interests of his employer and to avoid a conflict of personal interests and those of his employer. He should not involve himself in an undertaking that is in competition with his employer."

Having said that, an employee who engages in conflicting activities against those of the employer's interests is virtually dishonest and, as such, should be disciplined.

It is evident in the Moyo case that Manuel, who was simultaneously a director of Old Mutual PLC, the chairman of Old Mutual, and the chairman of Rothschild had subjected himself to three actual and/or potential conflicts among these entities (par 5). Therefore, Moyo's protest against and objection to Manuel's continued disregard of his conflicted role was justifiable and did not warrant dismissal. It was for this reason that Judge Mashile held:

"The conclusion that the Respondents [Old Mutual Limited] first accused the Applicant [Moyo] of conflict of interest and misconduct and then denied him of the procedures laid down in the contract, specifically clause 25, is unavoidable. Having done so, they then invoked Clause 24.1.1, which in reality had nothing to do with the situation that they faced with the Applicant. The point is Clause 24.1.1 was incorrectly applied and the dismissal cannot be justified on that ground. Both the suspension and subsequent dismissal were unlawful." (par 67)

In light of this judgment, the employee ought to guard against all forms of conflict of interests emanating from the contract of employment. Furthermore, dismissal is justifiable against an employee who actively engages him/herself in activities contrary to the employer's interests.

 

6 Conclusion

This case note has managed to cement a view that the implied duty to preserve mutual trust and confidence remains a thrust of the contract of employment. In this context, a brief analysis of the employment relationship also laid a foundation for this case note. The implied obligations imposed on both employer and employee were revisited. In doing so, the case of Moyo was used to advance the importance of the implied duty to protect mutual trust and confidence. Furthermore, a thorough examination of the conduct of both Moyo and Old Mutual Limited that had the potential and likelihood to destroy or seriously damage the employment relationship of confidence between the two parties. At the centre of this relationship, it is clear that good faith and loyalty reigned supreme on the part of Moyo to his employer. Towards the end, the case note examined the importance of non-disclosure of confidential information and avoiding conflict of interest.

The case of Moyo also draws some lessons that both parties to the contract of employment should honour at all times. Most importantly, the employer ought to refrain from acting in a manner likely to destroy the contract of employment. The employer further ought to be reminded of the fact that this duty does not only lie with the employee, but also heavily rests on itself.

Konanani Happy Raligilia

University of South Africa (UNISA)

Kodisang Mpho Bokaba

University of South Africa (UNISA)

^rND^1A01^nDelano Cole^svan der Linde^rND^1A01^nDelano Cole^svan der Linde^rND^1A01^nDelano Cole^svan der Linde

CASES

 

Warrantless searches and awards for damages in light of the judgment in - Shashape v The Minister of Police Case No.: 1566/2018

 

 

1 Introduction

The law of criminal procedure is "double functional" in that it not only dictates the proper procedure for the execution of police functions but also serves as a ground of justification in substantive law against otherwise unlawful conduct (see Joubert The Criminal Procedure Handbook 13ed (2020) 8). Nevertheless, personal liberties, even in the pursuit of justice in a country overrun by crime, cannot be sacrificed indiscriminately simply to further the diligent investigation of crime (see Packer "Two Models of the Criminal Process" 1964 113(1) University of Pennsylvania Law Review 1-68; Van der Linde "Poverty as a Ground of Indirect Discrimination in the Allocation of Police Resources: A Discussion of Social Justice Coalition v Minister of Police 2019 4 SA 82 (WCC)" 2020 23 Potchefstroom Electronic Law Journal 1-28; South African Police Service "Crime Situation in Republic of South Africa Twelve (12) Months (April to March 2019_20)" (31 July 2020) https://www.saps.gov.za/services/april_to_march_2019_20_presentation.pdf (accessed 2020-09-01)).

An example of personal liberties being sacrificed in favour of the pursuit of justice is the search and seizure of private spaces of individuals. Search and seizure may be effected both with and without a warrant and is regulated by the Criminal Procedure Act 51 of 1977 (CPA). However, where a police official acts outside of this legislative matrix, his or her conduct is not regarded as lawful; he or she may not rely on official capacity as a ground of justification against an (unlawful) search. In such instances, the Minister of Police may be vicariously liable in delict owing to the unlawful conduct of police officials. Such cases are relatively rare.

This contribution will focus on two specific aspects - namely, search and seizure conducted without a warrant, and subsequent awards for damages based on unlawful, warrantless searches. The recent judgment in Shashape v The Minister of Police (WHC (unreported) 2020-04-30 Case no 1566/2018 (Shashape)) is discussed against this backdrop.

 

2 Relevant constitutional principles

Police search and seizure affects two specific and interrelated constitutional rights. These rights are the right to dignity under section 10 of the Constitution of the Republic of South Africa, 1996 (the Constitution) and the right to privacy under section 14 of the Constitution. Section 10 simply states that "[ejveryone has inherent dignity and the right to have their dignity respected and protected". Human dignity is furthermore a foundational value of our constitutional democracy. In this regard, section 7(1) holds that "[the] Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom". The right to privacy is, however, more elaborate. Section 14 provides:

"Everyone has the right to privacy, which includes the right not to have-

(a) their person or home searched;

(b) their property searched;

(c) their possessions seized; or

(d) the privacy of their communications infringed."

Section 14 is therefore quite elaborate in the sense that it provides for constitutional protection against arbitrary search and seizure. Section 36 of the Constitution, however, allows for the limitation of rights under "reasonable and justifiable" circumstances. The right to privacy must, for example, be balanced against the State's (and society's) legitimate interest in maintaining law and order (see Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd In Re: Hyundai Motor Distributors (Pty) Ltd v Smit No 2001 (1) SA 545 (CC) par 55; Thint (Pty) Ltd v National Director of Public Prosecutions; Zuma v National Director of Public Prosecutions 2009 (1) SA 1 (CC) par 73-80; Magobodi v Minister of Safety and Security 2009 (1) SACR 355 (Tk) par 7; Tinto v Minister of Police 2014 (1) SACR 267 (ECG) par 50). In Minister of Safety and Security v Van der Merwe (2011 (5) SA 61 (CC) par 56), Mogoeng CJ moreover held that when courts consider the validity of search warrants, they "must always consider the validity of the warrants with a jealous regard for the search person's constitutional rights". Furthermore, the Supreme Court of Canada in Thomson Newspapers Ltd v Canada (Director of Investigation and Research, Restrictive Trade Practices Commission) ([1990] 1 SCR 425 508) succinctly points to the consequences of reckless search and seizure:

"The suspicion cast on persons who are made the subject of a criminal investigation can seriously, and perhaps permanently, lower their standing in the community. This alone would entitle the citizen to expect that his or her privacy would be invaded only when the state has shown that it has serious grounds to suspect guilt. This expectation is strengthened by virtue of the central position of the presumption of innocence in our criminal law. The stigma inherent in a criminal investigation requires that those who are innocent of wrongdoing be protected against overzealous or reckless use of the powers of search and seizure by those responsible for the enforcement of the criminal law. The requirement of a warrant, based on a showing of reasonable and probable grounds to believe that an offence has been committed and evidence relevant to its investigation will be obtained, is designed to provide this protection."

(Also see Magajane v Chairperson, North West Gambling Board 2006 (2) SACR 447 (CC) par 70; Tinto v Minister of Police supra par 51-52.)

In this case, the Supreme Court of Canada inter alia reminds us that the execution of search and seizure must be performed keeping in mind that the suspect is presumed innocent (enshrined in s 35(3)(h) of the Constitution). An unlawful search may also impact the right to freedom and security of the person (especially under s 12(1)(c) and (e)). Section 25 also comes into play as it stresses that "[n]o one may be deprived of property except in terms of law of general application". In the context of the ensuing discussion, it becomes evident that (unlawful) searches are unfortunately also associated with a degree of undue physicality.

 

3 Search and seizure under the CPA

This section sets out the legislative framework for warrantless searches under the CPA, as well as the guidelines for warrantless searches performed based on information provided by informers, including anonymous informers. This is followed by an analysis of the most pertinent cases where damages were awarded based on warrantless searches. (The scope of this discussion therefore does not include instances of unlawful arrest or detention without a facet of search and seizure.) This section serves as a contextual background to the discussion of the Shashape judgment.

3 1 Relevant provisions dealing with warrantless searches

Section 20 of the CPA refers to articles susceptible to being seized, namely an article

"(a) which is concerned in or is on reasonable grounds believed to be concerned in the commission or suspected commission of an offence, whether within the Republic or elsewhere;

(b) which may afford evidence of the commission or suspected commission of an offence, whether within the Republic or elsewhere; or

(c) which is intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence."

Furthermore, according to section 22 of the CPA, a warrantless search may be effected against any persons, containers or premises, to seize an article listed in section 20. This may only occur in a few instances, namely:

"(a) if the person concerned consents to the search for and the seizure of the article in question, or if the person who may consent to the search of the container or premises consents to such search and the seizure of the article in question; or

(b) if he on reasonable grounds believes-

(i) that a search warrant will be issued to him under paragraph (a) of section 21(1) if he applies for such warrant; and

(ii) that the delay in obtaining such warrant would defeat the object of the search."

A warrantless search and seizure may, therefore, take place if a person who is authorised to do so consents to such a search in terms of section 22(a) of the CPA. This includes, most patently, the owner or tenant of a property. The consent provided must also be, as Du Toit points out, of a certain quality (Du Toit "Circumstances in Which Article May Be Seized Without Search Warrant" in Van der Merwe (ed) Commentary on the Criminal Procedure Act RS 63 (2019) 30E). A person can only give valid consent if he or she has the capacity to do so and has been informed of the purpose of the search (Du Toit in Van der Merwe (ed) Commentary on the Criminal Procedure Act 30E). A failure to properly inform someone of the purpose of the search will consequently render the "consent" and the subsequent search invalid (Magobodi v Minister of Safety and Security supra par 16). "Capacity" must also be understood in the sense of "authorisation". In S v Motloutsi (1996 (1) SACR 78 (C)), a warrantless search was effected based on the consent of a person who had no authority to give such consent. A lessee had given consent to search a sitting room that he had sublet to the accused. The court correctly held that this search was unlawful (see S v Motloutsi supra 87). A police official should ascertain whether a person has the authority to give consent before issuing a request for a warrantless search (Magobodi v Minister of Safety and Security supra par 14). Furthermore, if an item falls outside the scope of section 20, the question of consent and the validity to conduct a search becomes irrelevant (Sigwebendlana v Minister of Safety and Security (ECMHC (unreported) 2013-02-28 Case no 27/94; Magobodi v Minister of Safety and Security supra par 13). A person must also be informed of his or her right to refuse consent and to be informed of such right of refusal (Magobodi v Minister of Safety and Security supra par 14).

Section 22(b)(i)-(ii) involves a two-pronged inquiry. If, in terms of section 22(b)(i), a police officer has reasonable grounds to believe that a warrant would have been granted under section 21(1) (by means of a warrant issued by a judicial officer), a warrantless search may also be effected. In addition this, the officer must under section 22(b)(ii) on reasonable grounds believe that the delay in obtaining the search warrant would lead to obstructing the aim of the search. This typically covers instances where a suspect might be evading justice or where it is believed that the suspect might destroy evidence, or might otherwise attempt to evade justice if officers had first to obtain a search warrant. In S v Brown (ECPEHC (unreported) 2019-02-05 Case no CC 18/2018), a member of the Organised Crime Unit, Shaw, was patrolling the coast and noticed suspicious activity, where some of the accused were removing items from the ocean, placing it in bags and then in a vehicle's boot. Upon approaching the scene, he was obstructed by some of the parties and the latter fled the scene. A car chase ensued but Shaw managed to catch up with one party, Renier. Shaw enquired about the contents of the boot from this party who informed him that it was abalone (S v Brown supra par 17-20). It is clear that had Shaw obtained a search warrant, it would probably have frustrated the object of the search because the accused were in the process of leaving the scene. In Seapolelo v Minister of Police, Republic of South Africa (NWHC (unreported) 2018-03-0263/17 Case no 64/2017), the officers asserted that they were tracing persons allegedly involved in an armed robbery. The suspects had stolen a firearm and a cellphone and one of the suspects was alleged to have entered the home of the plaintiff. Considering the fact that the items were capable of being hidden without difficulty, the court agreed that the officers had reasonable grounds to believe that a warrant would have been granted to them and that a delay would have obstructed the object of the search. This would still have rung true - regardless of the absence of consent - and the court appeared not to believe the plaintiff's version regarding the absence of consent to search (par 33, 35-36). In S v Motloutsi, it was held that although the police officer in question had reasonable grounds to believe that a warrant would have been granted, the objective of the search would not have been defeated had he obtained a search warrant (S v Motloutsi supra 80 and 87). In that case, the officer contended that a warrant was not obtained from the warrant-officer on duty because such a warrant does not have "the same credibility as a warrant issued by a magistrate", and that obtaining one from a magistrate would have frustrated the objectives of the search (S v Motloutsi supra 80 and 87). The court, however, held that there was a "conscious and deliberate violation of the accused's constitutional rights", and held further that the evidence obtained was inadmissible (S v Motloutsi supra 88). An underlying supposition of the court appears to be that the ground under section 22(b) becomes irrelevant when there is a reliance on consent as the ground of the warrantless search (see Nombembe v Minister of Safety and Security (1998 (2) SACR 160 (Tk); Du Toit in Van der Merwe (ed) Commentary on the Criminal Procedure Act 30E). The facts in Seapolelo v Minister of Police can be distinguished slightly here as it appears that the police relied on both grounds for a warrantless search listed in section 22 and the court did not believe the plaintiff's version of events regarding the absence of consent (par 35-36).

Furthermore, the "reasonable grounds" under section 20 (relating to the items susceptable to seizure) must be established on objective grounds. In Magobodi v Minister of Safety and Security, for example, Miller J held that there was an absence of reasonable grounds in deciding to search the vexed vehicle. The court pointed out that there was a lack of information to point to a conclusion that the vehicle was an article described in section 20 (Magobodi v Minister of Safety and Security supra par 16). There must, consequently, at least be "a reasonable suspicion" that the article in question is one that is described under section 20 (Ngqukumba v Minister of Safety and Security (ECMHC (unreported) 2011-10-20 Case no 1354/2010 par 17). Didcott J in Ndabeni v Minister of Law and Order (1984 (3) SA 500 (D)) held that the CPA "calls for the existence in fact of reasonable grounds" and the determination of whether these facts exist "must be determined objectively" (Ndabeni v Minister of Law and Order 511; see also Watson v Commissioner of Customs and Excise 1960 (3) SA 212 (N) 216). In fact, it has been held that a subjective belief by a police officer is essentially irrelevant and is considered a mere "by the way" (Ndabeni v Minister of Law and Order supra 511).

Finally, section 29 of the CPA also states that a search and seizure, whether of a person or premises "shall be conducted with strict regard to decency and order".

3 2 I heard it through the grapevine: Warrantless searches based on information provided by informers

In instances where warrantless searches are effected based on information provided by a police informer, the information must measure up to a certain standard in order to comply with the "reasonable grounds" standard required by the CPA. The Canadian case of Regina v Zammit ([1993] 15 CRR (2d)) has been relied on for guidance on the standard with which informer information should comply (Tinto v Minister of Police supra par 65; Du Toit in Van der Merwe (ed) Commentary on the Criminal Procedure Act 30K-30L). This case, however, relies heavily on the dicta in R v Debot ((1986) 30 CCC (3d) 207 (Ont CA) (Debot I) 275 and R v Debot [1989] 2 SCR 1140 (Debot //)). In Debot I, the court held that an informer's assertion that he or she had obtained the vexed information from "a reliable informer" personally would constitute an insufficient basis for granting a warrant. The "underlying circumstances" that led to the "tip" must, therefore, be disclosed to the relevant judicial officer. The same logic applies to a warrantless search and "a mere conclusory statement" would be insufficient. The informer's tip must contain enough detail to satisfy officials that

"it is based on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance". (Debot / supra 218-219)

Martin JA held further that these criteria need not be present in all cases.

In Debot //, the Supreme Court of Canada (per Wilson J) held that "the totality of the circumstances [must meet] the standard of the necessary reasonable grounds" (Debot II supra 219). Wilson J continued as follows:

"In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Secondly, where that information was based on a 'tip' originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search?" (Debot II supra 1168)

Wilson J also agreed with Martin JA that officials must consider the "totality of the circumstances".

In this regard, the court in Mabona v Minister of Law and Order (1988 (2) SA 654 (SE)) refers to the circumspect treatment by courts of informer information. Jones J held that the information falls into the same category as "accomplices, quasi accomplices and police traps" and their tips "must be subjected to close and careful scrutiny" and corroboration before their information can be trusted (supra 658). Other safeguards are also missing, such as the fear of perjury when testifying under oath (the credibility of which is closely monitored by the courts) and the lack of a formal complaint or statement - all exacerbated by the informer's insistence on anonymity (see Mabona v Minister of Law and Order supra 659). Pickering J relied on these sentiments in Tinto v Minister of Police (supra). In that case, a police officer attempted to conduct a warrantless search (no search was ultimately effected) based on information provided by informers. The informers were known to the police and had provided reliable information "nine times out of ten" in the past. The plaintiff (and those who accompanied him) acted suspiciously by remaining in the plaintiff's motor vehicle for a prolonged period of time in the parking lot of a known crime "hotspot". The persons who accompanied the plaintiff furthermore walked between various banks and the vehicle. The cumulative conduct was thus in line with the known modus operandi of bank robbers (par 66-67). Pickering J relied on the standards set out in Debot I and Debot II and asserted that the reports by informers were detailed; "not based on mere gossip or rumour" and not merely a conclusory statement; pertained to information regarding a known crime hotspot and therefore the police had objective grounds to request a search (par 71 -72).

It is therefore clear from a reading of the relevant case law that information supplied by informers must essentially also comply with the standard of reasonableness; attempts should be made to corroborate this information; and informer information must, in general, be treated with a degree of circumspection.

3 3 Overview: Previous cases dealing with damages for wrongful searches

In Pillay v Minister of Safety and Security ((2004/9388) [2008] ZAGPHC 463 (2 September 2008)), a 62-year-old woman was subjected to an unlawful search and seizure. The police broke through two security gates and two doors (located on the perimeter walls and main entrance to the house). Door frames and locks, cupboard door locks as well as internal doors were damaged during the process. The house was left in a chaotic state as cupboards were emptied, and clothes scattered throughout the house. The plaintiff was also subjected to a body search. So terrified by the experience was she that she called the South African Police Service (SAPS) flying squad to come to her aid. The sequence of events traumatised the plaintiff to such an extent that she was diagnosed with post-traumatic stress disorder (PTSD) by her psychiatrist. The plaintiff's symptoms included "flash-backs and reliving the traumatic event, anxiety, mood disturbances, upsetting dreams, persistent avoidance, sleep disturbances, impaired concentration, memory deficiencies, depression, feelings of guilt, rejection and humiliation" (supra par 7). Her psychiatrist gave a general prognosis that was "not positive" and confirmed she would need further treatment. The plaintiff's treatment at that time consisted of medication and counselling. However, he explained that her symptoms had subsided over time (supra par 6-7). The defendant's expert psychiatrist, Dr Fine, came to a similar conclusion citing "chronic and ongoing PTSD and major depressive disorder" [sic] coupled with dysfunctional behavioural and mood patterns. This had led to the loss of amenities of life as well as emotional distress. Dr Fine, ironically, indicated that the plaintiff still suffered from severe psychiatric lesions years after the incident and that she would require lifelong intermittent treatment as her prognosis was poor (supra par 8).

Meyer J essentially rejected the references to previous awards by the parties as the learned judge pointed out that these were "not directly comparable" to the factual matrix in the present case. The court pointed towards the following broad factors in ascertaining the general damages claimed, specifically: the trauma suffered by the plaintiff; the gross violation of her privacy; her feelings of humiliation and degradation; her chronic PTSD; her poor prognosis; the probability of lifelong psychiatric treatment; caution against awarding extravagant awards for general damages; and fairness towards the defendant (supra par 10). Regarding the last factor, the court cited De Jongh v Du Pisanie NO (2005 (5) SA 457 (SCA)). In that case, the Supreme Court of Appeal (SCA) rejected the court a quo's sentiments that frugal (or conservative) awards for serious injuries are at odds with a civilised society. Brand JA held that it is not society that is paying the damages but the defendant - in other words, the frugality of society is irrelevant in ascertaining the award (supra par 60). Brand AJ further evoked the words of Holmes J in Pitt v Economic Insurance Co Ltd 1957 (3) SA C 284 (D), where it was held that

"the Court must take care to see that its award is fair to both sides - it must give just compensation to the plaintiff, but it must not pour out largesse from the horn of plenty at the defendant's expense." (Pitt v Economic Insurance Co Ltd 287)

The court in Pillay concluded that R150 000 would be appropriate in the circumstances (par 11).

As to special damages for damage to the plaintiff's property, the court pointed solely towards the reasonable costs for repairs. This amounted to R21 049 (supra par 12). There was also a third claim relating to monies and jewellery that had disappeared from the plaintiff's safe but the court found that the plaintiff had failed to discharge her onus sufficiently for the court to find that the police were responsible for that as well (supra par 13-17).

In Minister of Safety and Security v Augustine (2017 (2) SACR 332 (SCA)), the respondents comprised a family of four who were subjected to a search without a lawful warrant at 02:00 in the morning. This was followed by insults, humiliation and intimidation by inter alia pointing firearms at them. The third respondent was pushed to the ground by the boot of an officer and a rifle was pointed at his head. The first respondent was then ordered to lie down and also had a rifle pointed at his head. A vast number of officers, between 30 and 45, had furthermore entered the premises (supra par 7-9). The respondents were under the initial impression that they were being burgled. They were only informed after 30 minutes that the "intruders" were police officers who subsequently discovered that they were at the wrong house (supra par 10-12). Locks, doors, and glass panes had been broken in the process and the respondents experienced humiliation as neighbours witnessed the police leaving their house (supra par 11 and 14). The respondents suffered a range of psychological consequences owing to the conduct of the police, which was attested to by an expert clinical psychologist. This included insomnia, flashbacks, PTSD, reduced level of general functioning, dysthymia, anxiety, guilt, self-blaming, psychosis, aggressive impulses, irritability, and paranoia. The first respondent's work performance was impacted and the third and fourth respondents suffered academic problems. The first respondent additionally suffered a heart attack and the family had to relocate owing to the negative association with their previous home (supra par 19-24).

Gorven AJA referred to the role of comparable awards and held that they should be used as guidance and not be followed slavishly (par 28). Reference is made to De Jongh v Du Pisanie (supra), where it was held the consequences of the harm might be more or less serious than a case currently under consideration; and that should consequently impact the award (De Jongh v Du Pisanie supra par 63). Courts should further refrain from mechanically applying the consumer price index (Augustine supra par 28). The SCA further referred to other comparable cases, varying in degrees of comparability, including Pillay (see Kritzinger v Road Accident Fund ([2009] ZAECPEHC 6 (24 March 2009); Minister of Police v Dlwathi [2016] ZASCA 6 (20604/14; 2 March 2016); Minister of Safety and Security v Van der Walt 2015 (2) SACR 1 (SCA)). The facts in Kritzinger v Road Accident Fund do not concern police action at all but they do, however, deal with emotional shock and trauma. Further, the facts in Minister of Safety and Security v Van der Walt are distinguishable from Pillay and Shashape in that the case deals with unlawful detention rather than a warrantless search. Minister of Police v Dlwathi also deals not with a warrantless search, but with assault. Gorven AJA points towards the "aggravating factors" present in the case, including the fact that it occurred at 02:00 in the morning and that the events traumatised the respondents to the extent that they had to relocate. The family as a whole was impacted in such a way that they could not even adequately comfort each other (Augustine par 34). The court also censured the police for their unlawful conduct, which was quite the opposite of their constitutional duty to protect inhabitants of the country (Augustine par 37; also see s 12(1)(c) of the Constitution; K v Minister of Safety and Security 2005 (6) SA 419 (CC); Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC); the Preamble to the South African Police Service Act 68 of 1995). The applicants were further censured because there were "deliberate falsehoods" presented to the court regarding a document that was found bearing the name of Eugene, the actual suspect they were looking for. The appellants purported to have found these documents in the home of the respondents, which would have justified their warrantless search. The appellants also misrepresented the fact that the semi-detached home of the respondents was in fact the same house Eugene was living in. This was also false (Augustine supra par 18 and 37). In addition, there was also a patent attempt to thwart efforts to report this conduct either to the police or the Independent Police Investigative Directorate (Augustine supra par 15). The SCA consequently dismissed the appeal and agreed with the court a quo's award of R200 000 (for the first to third respondents each) and R250 000 (to the fourth respondent, who displayed the most significant psychological impact) (Augustine supra par 35 and 38).

The court in Augustine referred to Marwana v Minister of Police (ECPEHC (unreported) 2012-08-28 Case no 3067/2010), which is sufficiently comparable to Shashape and Pillay. The plaintiff in Marwana v Minister of Police was employed as a domestic worker. She was arrested (without a warrant) and detained at the police station the day after a robbery occurred at her employer's residence. She was not present on the day of the robbery. The police took the plaintiff to her home and searched her home without her authorisation (supra par 4). Tshiki J held that the plaintiff would not have been able to consent in any case as she was not acting autonomously owing to her detention, assault, and never having been informed of her rights (supra par 18). There was also an absence of a search warrant. The plaintiff was subjected to an assault when she was struck by a wooden plank "and strangled with a plastic bag" (supra par 4). A medical practitioner confirmed the extent of her injuries, which included bruises on her upper arms and back, wrist abrasions, and bruises on her knees. The medical practitioner also relayed that the plaintiff informed him of strangulation with a plastic bag. This incident caused the plaintiff to soil herself (supra par 4). The court awarded damages for unlawful arrest and detention (R55 000), assault (R90 000) and unauthorised entry (R10 000). Note that the amounts were split as there were three separate and distinguishable events. The court referred to the fact that the plaintiff was unlawfully detained for approximately 30 hours but it regarded the assault as a particular violation of the plaintiff's rights - specifically, her rights to privacy and dignity (supra par 19-22). Tshiki J did not regard the unlawful search in as serious a light as the other violations because "there is no evidence that they had done something wrong or anything beyond their mandate" (supra par 22). The court, however, did specifically consider whether the ground under section 22(b) of the CPA was present but it seems to be implied that the police had no reasonable grounds to search the plaintiff's residence. One can, therefore, conclude that, as in Marwana v Minister of Police, an unlawful search on its own - in other words, without any damage to property, assault or psychological lesions - would attract an award for damages of R10 000.

 

4 Shashape case

4 1 Pertinent facts

The plaintiff, Ms Shashape, sued the Minister of Police for R100 000 in damages for an unlawful search and seizure and unlawful entry of her premises (Shashape supra par 1). The particulars of claim averred that a warrantless search and seizure, effected by two police officers, occurred on 24 March 2018 while she was not at the premises. This search and seizure was claimed to have been effected without her consent, as would have been required under section 22(a) of the CPA, or without a warrant in terms of section 25(1)(a) relating to State security, or without a warrant under section 21(1). It was further averred that the police officers did not have reasonable grounds to believe that a warrant would have been granted to them if they had applied (s 22(b) read with s 21(1)(a); and s 25(3) read with s 25(1)). It was further averred that there were no reasonable grounds to believe that offences under the Drugs and Drug Trafficking Act 140 of 1992 had been committed or that there was a prospect that such offences were to be committed (see s 11(1)(a)). It was also alleged that the search had not been conducted in an orderly manner (s 29 CPA). Consequently, the unlawful entrance and search of the residence of the plaintiff constituted a violation of her constitutional rights to dignity and privacy, which caused the plaintiff to suffer harm in the amount of R100 000.

The plaintiff, a gospel singer and cultural dancer, left her home along with her group to record an album on 24 March 2018. No one remained in the house and the plaintiff requested her mother (who lived directly behind her) to keep an eye on her house. This was because the two external doors, as well as the kitchen door of the plaintiff's house, were unable to lock. In the kitchen were strips of beef hanging, "cut like biltong" (Shashape supra par 9 and 19). While at the studio, the plaintiff's brother (who lived with his mother behind the plaintiff's residence) phoned the plaintiff and informed her of police officers who had arrived at her house. The plaintiff requested to speak to one of the officers, an Inspector Phiricwane. Ms Shashape instructed the latter not to enter the house until she arrived - and he replied that he had already done so and had found meat in her kitchen relating to livestock that had been slaughtered and stolen at a nearby farm the previous evening. They had effected this warrantless search based on an "anonymous tip" (supra par 20 and 23). After this exchange, the plaintiff returned (with her children and the cultural group in tow) and found all the doors that had been closed open and four police vehicles leaving the premises while two remained. There was also "a large number of curious onlookers in her premises". Her home was in disarray and the kitchen was being searched in a disorderly fashion (supra par 21 -22). After relaying the information regarding the alleged slaughter and theft of the livestock and the anonymous tip, the plaintiff indicated that she had no knowledge of this incident and the meat she purchased was purchased at an abattoir. She could not provide a receipt to the officers as she had bought the meat along with three others for a total of R1 200 (she had contributed R300) (supra par 22-24). The next day (25 March 2018), an officer from the Stock Theft Unit seized a strip of beef so that it could be compared to the heads of the stolen livestock. The plaintiff rebutted and queried how this could be done considering that the meat was already dry, but the officer "informed her that he had his ways of doing so" and the plaintiff never heard from him again (supra par 25). The plaintiff was never charged, arrested, or prosecuted relating to the alleged stock theft and slaughter.

Here, Gura J considered the applicable legal principles relating to warrantless search and seizure. He then proceeded briefly to discuss consent to permit a warrantless search under section 22(a) of the CPA. Ultimately, the court held that the plaintiff did not consent to the search, and neither did her relatives (supra par 28-29). It is submitted that they would in any event not have been authorised to consent to such a search (see Motloutsi supra 87). The court does not refer to the ground under section 22(b) directly but merely holds that "the searching official will have to show that reasonable grounds existed at the time when he decided to enter and search the plaintiff's premises without a search warrant" (and references Alex Cartage (Pty) Ltd v Minister of Transport 1986 (2) SA 838 without context). Gura J further asserts, correctly, that search and seizure is an infringement of our constitutionally protected right to freedom and must be done in a just and reasonable fashion, considering the particular circumstances (Shashape supra par 29). The court accepted the plaintiff's version of events and correctly found that the search and seizure occurred outside of the framework of section 22 of the CPA and the Minister of Police was "therefore wholly liable for the plaintiff's damages" (Shashape supra par 33).

4 2 The court's approach to the determination of the quantum

The court in Shashape considered the impact of the wrongful search on the plaintiff's life - especially the social and financial impact. The general trend, especially regarding the former, was that the community that once supported her, started to ostracise her owing to gossip and speculation that she was a stock thief.

Gura J discussed the plaintiff's testimony in which she recounted specific incidents that have led to her embarrassment. At a singing and dancing showcase the week following the unlawful search, she was humiliated after audience members boycotted and dismissed her. The parents of the children who belonged to her singing group refused to let them continue in the group and even her children were questioned at school regarding their mother's involvement in stock theft. The plaintiff was rendered incapable of performing as she usually did and also ceased selling CDs. The sales of her CDs had previously garnered approximately (she did not keep any records of her sales) R8 000 per month. The plaintiff consequently developed insomnia and hypertension. The hypertension started to impact her vision. To the plaintiff's family she in effect became persona non grata and was the first to be suspected if anything was stolen in the neighbourhood. The situation was described as disgraceful to the family and led her to feel unsafe in the community (supra par 34-38).

The court considered Augustine and Pillay as discussed above, but focused predominantly on the facts of the cases and not the underlying principles in reaching their decisions (discussed in more detail below) (Shashape supra par 39-40). Gura J correctly pointed out that the harm suffered by the plaintiff was less severe than in Augustine and Pillay but the court still took cognisance of the "untold misery" caused to the plaintiff and her family, which was evident from her demeanour as she delivered her testimony. The court pointed towards her mental as well as psychological health as well as the impact on her constitutional rights, specifically privacy and dignity. This had all impacted on her earning capacity and standard of living as she was left to rely on the maintenance she received from the father of her children and her welfare grant (Shashape supra par 42-43). Gura J also noted that the plaintiff had no source of fixed income and "[d]espite that she is still a singer and dancer, there is no one to entertain because who is interested to listen to the lyrics of a suspected thief" (supra par 43).

The court took the above circumstances into account, as well as the "limited resources which the respondent has at its disposal" and awarded the plaintiff R96 000 in compensation (supra par 44-45).

4 3 Discussion of Shashape judgment

The court found that the original warrantless search and seizure was unlawful but it did not comprehensively espouse or discuss the grounds under section 22 of the CPA. The court only referred to consent as a ground (s 22(a)) but did not pertinently refer to the two-pronged ground under s 22(b). As alluded to above, it has been held (see Magobodi v Minister of Safety and Security supra par 16) that the ground under section 22(b) becomes invalid where the consent given was invalid but in this case, consent never appeared to be at issue. The plaintiff was absent from her home and therefore could not provide consent. It appears from the judgment that the family did not consent to the search either and even if they had done so, they would not have been authorised to do so. The more relevant ground to discuss was under section 22(b) - in other words, whether there was a reasonable belief by the officers that they would have been granted a warrant had they applied for one, and that the delay in obtaining a warrant would have thwarted the objective of their search. The court merely referred to the absence of reasonable grounds but it did not refer to these grounds at all.

It is submitted that this ground was in any event absent as well. The police relied on information provided by an "anonymous tip". Gura J also failed to discuss the principles relating to police reliance on informers (see heading 3 2 above). There was in any case not much to address, but it bears mentioning that the information supplied by the alleged informer did not comply with the Debot I and II standards. There was no mention as to whether there was an attempt to corroborate the information or whether the information was based solely on rumour and gossip in order to establish reasonable grounds for the search. Over and above that, it does not appear as if the Minister of Police (the defendant) had much of a defence to the plaintiff's allegations. In fact, the court held "that there is no explanation at all, let alone a reasonable account why the police decided to search the plaintiff's house" and further that the defendant had failed to discharge its onus in justifying the warrantless search (par 31).

Pillay is distinguishable, as the court in Shashape pointed out, in that the plaintiff in the former case had experienced severe emotional trauma, which was exacerbated by the fact that she was also subjected to a body search. The plaintiffs in Pillay and Shashape further differed in age and there were also comprehensive psychiatric reports substantiating Ms Pillay's claims -which reports pointed towards the need for lifelong psychiatric treatment.

The unlawful search in Shashape was not as egregious as that in Pillay (R150 000 award) or Augustine (R250 000 awards) as it did not involve the element of physicality and property damage but was also not as minimal as the search in Marwana v Minister of Police (R10 000 award), which involved a mere unlawful search. What makes the facts in Shashape distinguishable from those in Marwana is that the former involved lasting and intense humiliation and loss of esteem in her community, which led to the effective destruction of her life's passion and source of income. This is exactly the type of harm the court spoke of in Thomson Newspapers Ltd v Canada (Director of Investigation and Research, Restrictive Trade Practices Commission); search and seizure may irreparably impact the social standing of a subject and therefore a suspect's right to privacy and presumption of innocence should be guarded zealously. The author does not attempt to suggest whether or not the award was appropriate but it appears to be in line with previous comparable awards. It is however unfortunate that the plaintiff could not prove her patrimonial harm as that would probably have increased her award.

 

5 Conclusion

The Shashape case provided an opportunity to revisit the principles relating to warrantless search and seizure and subsequent awards for damages flowing from such unlawful conduct.

The execution of a search and seizure, especially when done without a warrant, involves a delicate traverse of the constitutional spectrum. This involves protections of a person's right to privacy, dignity, freedom and security of the person, property rights and the presumption of innocence. These rights and values must be weighed against the police's constitutional duty to investigate crime and protect the inhabitants of the country. However, this balance can only be maintained through the careful consideration of objective facts. At the time of the execution of a warrantless search, the subject thereof is mostly only a suspect. Regardless of the strength of the evidence, all persons subjected to searches (of all kinds) must be treated with dignity and respect, with due consideration of their right to privacy and the presumption of innocence. Nevertheless, malfeasance often occurs during warrantless searches. This, necessarily, invokes the double functionality of the law of criminal procedure, as police officials faced with a claim for damages against an unlawful search cannot rely on the execution of their duties as a ground of justification.

Delano Cole van der Linde

Stellenbosch University

^rND^1A01^nLarisse^sPrinsen^rND^1A01^nLarisse^sPrinsen^rND^1A01^nLarisse^sPrinsen

NOTES

 

(Don't) hold your breath: the South African Covid-19 vaccine approval process and regulatory framework

 

 

1 Introduction

The world seemed to sigh in relief in early November 2020, when it was announced that the Covid-19 vaccine developed by Pfizer and BioNTech showed itself to be 90 per cent effective in early data analysis. This announcement was followed by one from Moderna Inc that its vaccine in development was showing to be almost 95 per cent effective. Soon after, numerous other companies announced the efficacy of their respective vaccines and roll-out plans and policies were made and even implemented.

However, this sigh of relief was perhaps premature. Although these announcements were good news on the face of it, they also brought to light some concerns. The fast pace at which the vaccines were developed and made available for human use raises various ethical and legal issues as well as questions related to the safety and efficacy thereof. The correct dosage and timing of vaccination is still not fixed, vaccine expiration periods and the discovery of new variants of the Covid-19 virus has further added to these concerns (BusinessTech "Expiring Vaccines Doomed South Africa's Rollout Plans From the Start" (2021) http://www.businesstech.co.za/news/government/467932/expiring-vaccines-doomed-south-africas-rollout-plans-from-the-start-report/ (accessed 2021-03-18)). In addition, uncertainty exists regarding the approval process that should be followed for these vaccines. This last concern forms the focus of this note.

In South Africa, the above issues have been exacerbated by a less-than-smooth vaccine roll-out. In early February 2021, Minister of Health Dr Zweli Mkhize announced that South Africa would halt the roll-out of the Oxford/AstraZeneca vaccine, which had arrived in the country only a week before. This was due to the publication by the lead investigator in the trial describing the results as "disappointing" as shown against the South African N501Y variant of the virus. As a result, the South African government entered into negotiations with the Serum Institute of India (SII) for the Johnson & Johnson "silver bullet" vaccine, and embarked on a new roll-out plan, involving the vaccination of healthcare workers and an evaluation of the vaccine in the field (Ellis "South Africa Switches to J&J 'Silver Bullet' as AstraZeneca Vaccine Falters Against Local Variant of Coronavirus" (2021) http://www.dailymaverick.co.za/article/2021-02-08-south-africa-switches-to-jjs-astrazeneca-vaccine-halted/ (accessed 2021-03-18)). The Johnson & Johnson vaccine and roll-out plan, however, was not free of controversy, as it later emerged that the plan comprised not a "roll-out" of the vaccine, but rather a clinical trial since proper approval and registration for the use of the vaccine had not (yet) been granted (Wa Afrika "Don't Use South Africans as Vaccine Guinea Pigs" (2021) http://www.iol.co.za/sundayindependent/news/dont-use-south-africans-as-vaccine-guinea-pigs-6bc4358e-49c2-4435-96a9-62142effc965 (accessed 2021-03-18)).

The National Control Laboratory for Biological Products (NCL), which is one of twelve laboratories worldwide contracted to perform vaccine testing for the World Health Organisation is in the process of testing various vaccines on behalf of the South African Health Products Regulatory Authority (SAHPRA). As variants of the virus become more prevalent, scientists are being pushed to develop vaccines targeting multiple versions of the relevant pathogens; as a result, Pfizer, Moderna, Johnson & Johnson and AstraZeneca have started development on booster shots to accompany their vaccines (BusinessTech http://www.businesstech.co.za/news/government/467932/expiring-vaccines-doomed-south-africas-rollout-plans-from-the-start-report/). Although vaccinations have now started, the virus is unlikely to be eradicated soon; next-generation vaccines will have to be developed (Ellis http://www.dailymaverick.co.za/article/2021-02-08-south-africa-switches-to-jjs-astrazeneca-vaccine-halted/). Again, questions may be raised as to how these new vaccines and boosters should be approved and registered for use.

The back-and-forth roll-out of vaccines in South Africa is alarming, does little to instil a sense of trust in the powers-that-be and adds to the general confusion and concern regarding a vaccine against Covid-19. To say the least, the current situation is less than ideal. Although we might still need to hold our breath, behind a mask, a little longer, the author feels somewhat assured knowing that South Africa has a well-established procedure for the approval of new medications, although it is not exactly swift. The aim of this piece is therefore explanatory in nature as it seeks to set out the process whereby new medicines are approved and registered in South Africa.

 

2 Approving a clinical trial in South Africa

The extensive and well-defined South African framework for the regulation of medicines is established and developed by various legal instruments. These are the Medicines and Related Substances Act 101 of 1965 (Medicines Act), the National Health Act 61 of 2003 (NHA) and the South African Good Clinical Practice Guidelines (Department of Health South African Good Clinical Practice: Clinical Trial Guidelines 3ed (2019) https://sahpra.org.za/wp-content/uploads/2020/01/31828e7f4thCombinedChapt3rdRevisedNHREC_CTC_SAGCP24May2019_v3clean_Draftforcomment_10.07.2019.pdf (accessed 2020-11-16)) (Good Practice Guidelines).

Certain other regulations and policies are also relevant to the creation and functioning of this framework and, of course, all these instruments exist under the ever-present and supreme South African Constitution (Constitution of the Republic of South Africa, 1996).

In terms of the Constitution, the State is obliged to realise progressively the socio-economic rights of all South Africans and this incudes access to healthcare as provided for by section 27. In order to facilitate fair and equal access to healthcare in South Africa, the NHA provides for a structured and uniform healthcare system. Chapter 2 of the NHA also provides extensively for the rights and duties of healthcare users and personnel and includes specific provisions related to health services for experimental or research purposes (s 11 of the NHA). Chapter 9 of the NHA also provides detailed provisions related to national health research and includes the establishment of a National Health Research Ethics Council (NHREC) and research ethics committees (RECs). The NHA further provides for the creation of topic-specific regulations such as those related to research involving human participants or the various regulations regarding the NHREC and RECs. The Good Practice Guidelines serve a similar purpose to the NHA regulations as they provide for further detailed scientific and ethical standards to be met for any clinical trial involving human participants.

The Medicines Act, as amended (Medicines and Related Substances Amendment Act 72 of 2008 and Medicines and Related Substances Amendment Act 14 of 2015), establishes and empowers SAHPRA. SAHPRA is a National Department of Health entity, which assumes the roles of the Medicines Control Council (MCC) and the Directorate of Radiation Control (DRC). This means that, at its core, it is tasked with the monitoring, investigation, inspection, registration and evaluation of all health projects in South Africa against standards of safety, efficacy and quality. This includes clinical trials (South African Health Products Regulatory Authority "Who We Are" (2020) https://www.sahpra.org.za/who-we-are/ (accessed 2020-11-16)).

As the name suggests, SAHPRA is the South African regulatory authority for the regulation of health products intended for human use and the conducting of clinical trials, the licensing of manufacturers, wholesalers and distributors of medicines and medical devices. In terms of section 2B(1)(a)-(c) of the Medicines Act, SAHPRA must:

"(a) ensure the efficient, effective and ethical evaluation or assessment and of medicines, medical devices and IVD's that meet the defined standards of quality, safety, efficacy and performance, where applicable;

(b) ensure that the process of evaluating or assessing and registering of medicines, medical devices is transparent, fair, objective and concluded timeously;

(c) ensure the periodic re-evaluation or re-assessment and ongoing monitoring of medicines, medical devices and IVD's."

Although not pertinent to this note, in terms of the Medicines Act read with the Hazardous Substances Act 15 of 1973, SAHPRA also regulates radiation-emitting devices and radioactive nuclides (South African Health Products Regulatory Authority "Acts and Regulations" (2020) https://www.sahpra.org.za/acts-and-regulations/ (accessed 2020-11-16)).

In South Africa, clinical trials may not be conducted, nor may medicines be marketed, prescribed, sold or administered without prior SAHPRA approval. It must be mentioned that SAHPRA is a regulatory authority and does not in and of itself undertake any trials. It approves the trials of researchers and manufacturers and ensures that the set safety, efficacy, quality and ethical standards have been met.

The process of approval is as follows and will be discussed in more detail below:

 

 

3 Approval by the Medicines Control Council

In order to obtain approval for a clinical trial, the sponsor or principal investigator must apply to the MCC for approval of the trial to be conducted on human participants. A "sponsor" may be a pharmaceutical company or any other organisation responsible for the financing and management of a clinical trial whereas a "principal investigator" is a South African-based scientist who is responsible and accountable for the conducting and reporting of the trial.

The process of application is set out by the Regulations Relating to Medical Devices and In Vitro Diagnostic Medical Devices (IVDs) (GN 1515 in GG 40480 of 2016-12-09) which, in broad strokes, provide that:

1. A person who desires to initiate or conduct a clinical trial must apply to the MCC on a prescribed form for authorisation to conduct such a trial.

2. Such a trial must be conducted in accordance with the Good Practice Guidelines.

3. No clinical trials may be conducted without the prior authorisation of the MCC.

4. The person responsible for conducting the clinical trial must submit progress reports to the MCC every six months from the date of commencement of the trial and 30 days after the completion or termination of the trial.

5. Adverse events must, however, be reported as soon as is practically possible.

6. The MCC may request any additional information, may inspect a clinical trial or withdraw its authorisation if it is of the opinion that the safety of the participants is compromised or the scientific rationale behind the trial has changed.

However, MCC approval is only the first step in obtaining approval as ethical approval for the trial must also be obtained.

 

4 Approval by ethics committees

All clinical trials conducted in South Africa, including multinational trials, must apply for and receive ethical approval. Ethical approval must be granted by an accredited research ethics committee (REC) based in South Africa. RECs are responsible for ensuring that ethical norms and standards are met, but also for the safeguarding of the rights of the human participants and ensuring that a clinical trial is scientifically relevant in South Africa.

As mentioned above, the NHA in section 72 provides for the establishment of a National Health Research Ethics Council (NHREC), which must:

"(a) determine guidelines for the functioning of health research ethics committees;

(b) register and audit these health research ethics committees;

(c) set norms and standards for conducting research on humans..., including ... for conducting clinical trials;

(d) adjudicate complaints about the functioning of health research ethics committees and hear any complaint by a researcher

(e) refer to the relevant statutory health professional council matters involving the violation or potential violation of ethical or professional rules

(f) institute ... disciplinary action as ... prescribed against any person found to be in violation of any norms and standards or guidelines ...; and

(g) advise the national department and provincial departments on any ethical issues concerning research." (s 72(6) of the NHA)

Section 69 of the NHA provides for the establishment of the National Health Research Committee. This committee must:

"(a) determine the health research to be carried out by public health authorities; (b) ensure that health research agendas and research resources focus on priority health problems; (c) develop and advise the Minister on the application and implementation of an integrated national strategy for health research; and (d) coordinate the research activities of public health authorities." (s 69(3) of the NHA)

Specific provision is also made for research on or experimentation with human participants in section 71 of the NHA. This section provides for a wide variety of matters, including the conditions for research involving human participants in general, research involving a minor for therapeutic purposes, and research involving a minor for non-therapeutic reasons. The provisions found in the NHA are also supplemented by various regulations made in terms of the Act. Section 11, which provides for health services for experimental or research purposes, may also be relevant.

Currently, RECs must pay additional attention to Covid-19 trials, which are categorised as involving innovative therapy and, owing to this classification, additional control and review measures are imposed on the trial (see in general, De Vries "Research on COVID-19 in South Africa: Guiding Principles for Informed Consent" 2020 110(7) SAMJ 635-639 https://doi.org/10.7196/SAMJ.2020.v110i7.14863). Once ethical approval is granted, the clinical trial may be registered.

 

5 Registration of clinical trial

After MCC and ethical approval has been obtained, the person responsible for the trial, the sponsor or principal investigator, must apply to the Department of Health (DoH) to have the trial registered.

The DoH must record the trial on the South African National Clinical Trial Register and award the trial a number. Only once the trial has been registered with the DoH and awarded its unique number may the trial commence (South African National Clinical Trial Register and National Health Research Ethics Committee "South African National Clinical Trial Registry (SANCTR) and National Health Research Ethics Committee (NHREC)" (2020) http://www.crc.uct.ac.za/sites/default/files/image_tool/images/53/documents/Reg/CRC%20website_Regulatory%20Content_updated%2020171204_SANCTR_NHREC.pdf (accessed 2020-11-16)). At this stage, the monitoring plan also takes effect.

 

6 Monitoring plan

The sponsor or principal investigator must have in place a monitoring plan that stipulates the review and monitoring of the trial. Normally, such review is done on a six-monthly basis as clinical trials may last years. However, owing to the rapidly changing dynamics of Covid-19, SAHPRA currently allows for an expedited two-week abridged Covid-19 interim progress report form for clinical trials. This report deals specifically with safety and futility monitoring (South African Health Products Regulatory Authority "Clinical Trials" (2020) https://www.sahpra.org.za/clinical-trials/ (accessed 2020-11-16)).

The prescribed form must be completed two-weekly from the date of approval of the clinical trial and even if participant enrolment has not yet started. It does not, however, replace the required six-monthly progress report.

 

7 Approval granted and roll-out

After the trial delivers fruitful results - that is, the successful development of a vaccine - the vaccine must be registered with SAHPRA. Only then may it be marketed, sold, prescribed or administered in South Africa, regardless of any foreign approval thereof by another country. This means, for example, that even if the Pfizer BioNTech vaccine is fully approved abroad by the American Food and Drug Administration (FDA), it will still have to be locally approved and registered by SAHPRA. Note that, should a foreign regulatory authority that is recognised by SAHPRA (such as the FDA) already have approved the vaccine, SAHPRA may allow for expedited approval and registration within South Africa.

The registration of a new biological medicine, which includes a vaccine, is undertaken by the Biological Medicines Evaluation and Research Unit (BMERU), a sub-unit of SAHPRA. BMERU is responsible for the evaluation of applications for the registration of biological medicines, the evaluation of applications for amendments to registered biological medicines, communicating with the pharmaceutical industry on matters of policy, the establishment of regulatory frameworks for the use of blood products and stem cells, and the establishment of pertinent regulatory frameworks for vaccines (South African Health Products Regulatory Authority "Biological Medicines Evaluation and Research Unit" (2020) https://www.sahpra.org.za/biological-products/ (accessed 2020-11-16)).

Once SAHPRA and BMERU have concluded their evaluation of the registration application, taking into account any expert committee recommendations and all required documentation, it will decide whether a new biological medicine meets all requirements for registration.

If so, the medicine will be registered and may then be made available in South Africa.

 

8 Conclusion

This note has explained the process to be followed in approving new medication for human use within South Africa. Although the South African framework for the approval of new medication, such as a Covid-19 vaccine is clear cut, the virus has proved to be wiley; and constant vaccine improvement and development will be necessary. This in turn will make the processes discussed above even more important so as to ensure safe and efficient, legal and ethically sound vaccine availability. In the meantime, we wait with masked and bated breath.

Larisse Prinsen

University of the Free State