Case Law Competition! 10 Prizes!

Are you a candidate attorney or pupil? Write a case law summary and we will pick the 10 best writers and they will each receive a one-year subscription to Spartan Case Law where you get (1) daily case law emailer with the latest cases and legal news (2) case law podcast (3) access to the online index (4) Actuarial Case Law Review. These prizes are being generously sponsored by Rui Lopes of Lopes Attorneys Inc. The instructions for the competition are below.

This competition forms part of their recently launched Project Balloon, where they take things as a law firm to the next level in defining the legal landscape and how they, as attorneys, are tasked with creating and driving the change we all want to see.

?Lopes Attorneys Inc is a market-leading specialist law firm, having won Specialist Law Firm of the Year at the 2022 African Legal Awards, and steered by Managing Director and Founder, Rui Lopes. The firm prides itself on the concept of equality of opportunity and this has resonated very deeply with them, but more importantly for Lopes Attorneys, it is how they put it into practice. The ability to access information, staying up to date with recent developments is something that one cannot negotiate with in the legal profession. Additionally, the firm prides itself in defining the legal landscape and being the creators and drivers of the change we want to see within society.

To this end, Lopes Attorneys Inc has sponsored 10 subscriptions for deserving individuals within the legal profession, providing them with the ability to stay ahead of the curve, harness the full extent of their future legal careers and putting into practice what their slogan is, “Sustainability | Simplified”. Lopes Attorneys Inc has opened this opportunity for other law firms to follow suit in creating and putting into practice, the concept of equal opportunity.

INSTRUCTIONS

Please summarize the case of Radebe v PRASA [2023] ZAGPJHC 269 which can be found here https://www.saflii.org/za/cases/ZAGPJHC/2023/269.html

We are looking for writers who can:

1.?Identity the essence of the case and the important components.

2.?Write clearly and unambiguously so that the reader can easily grasp the whole case.

3.?Break the case up into the adapted FIRAC method used by Spartan Case Law.

4.?Examples are below.?Remember, less is more! Be clear, be concise, be accurate.

5.?Use plain English, with shorter sentences preferred.

Submit your summary to Louis at [email protected] by 6pm on Thursday 25 May 2023.

The selection panel of Rui Lopes , Soyeon Podbielski , Preneshan Pillay and Louis Podbielski will choose the top ten submissions and we will announce the winners on Monday 29 May 2023.

EXAMPLES OF THE ADAPTED FIRAC SUMMARIES

Spur Group v Montgomery [2023] ZALCCT 21

Facts: Mr Montgomery (respondent) commenced employment with Spur group (applicant) as an Area Manager in 2010 and in 2012 was promoted to Development Manager, chiefly responsible for the Panarottis Pizza Pasta and Casa Bella brands. The market in which Spur operates is highly competitive and its development teams are engaged in constantly identifying prospective new sites for restaurants throughout the country. In May 2022 respondent tendered his resignation and he intends to take up employment with, or to render consultancy services to, Bossa Café. Bossa is a direct competitor, operates 17 restaurants and is aiming to “aggressively expand its franchise operations”.

Application: To enforce a restraint of trade agreement on an urgent basis.

Discussion: The terms of the restraint; how respondent sought the admission of what were termed “confirmatory affidavits”; that respondent had access to applicant’s internal server which included the business cases for all existing and prospective restaurants, business plans, franchise applications and other information; that respondent also seeks to rely on the fact that the applicant has not enforced restraint of trade covenants against former employees in the past; and respondent’s contention that his knowledge of the workings of the applicant is now “stale” after nine months.

Findings: The court is satisfied that applicant’s proprietary interests are directly and substantially prejudiced by respondent’s intended employment by Bossa. Applicant argued that if respondent had taken up employment with another player in the market that does not that does not pose such a threat, he would likely be able to do so, without facing the enforcement of the restraint against him. Respondent has not established that he will suffer any significant prejudice if the restraint is upheld. He has not discharged his onus to prove the enforcement of his restraint agreement is unreasonable or contrary to public policy.

Order: Respondent is restrained until 31 May 2024 from being employed by or rendering any service to Bossa and restrained from acting in breach of the restraint clauses of the Employment Agreement.

RABKIN-NAICKER J

TLM v MEC for Health, Gauteng [2023] ZAGPJHC 442

Facts: In 2016, the plaintiff, TM, attended a friend’s engagement party. There was an altercation and he was pulled from behind, fell back and twisted his knee. TM says that a friend took him immediately to the Chiawelo Clinic and thereafter he was taken by ambulance to Chris Hani Baragwanath hospital. A vascular surgeon, Dr Palweni, diagnosed a blockage to a blood vessel which cut off the blood supply to TM’s right lower limb. Several operations ensued but these were unsuccessful and his right leg was amputated above the knee.????

Claim: For damages, contending that the staff at Baragwanath wrongfully and negligently failed to identify the nature of his injury in time to save his right leg.

Discussion: That TM was left substantially untreated for seven hours before he was seen by an orthopaedic surgeon and referred to Dr Palweni; that there was no suggestion that the medical student overlooked any critical features, but rather the criticism is that the medical student’s observations were not acted upon; that injuries of the type TM sustained carry a 30% risk of amputation, even if they are immediately attended to; and the contention that TM did not immediately seek treatment because he was drunk at the party.

Findings: The failure to take steps to address the occlusion of TM’s popliteal artery in the seven and a quarter hours was negligent. The evidence renders the probabilities clear: had action been taken at or shortly after 04h30 to treat the popliteal artery occlusion, it is more likely than not that the amputation of TM’s limb would have been avoided. It was negligence at Baragwanath, rather than any delay attributable to TM, that probably caused the loss of his limb.

Order: The MEC is liable for 100% of the plaintiff’s agreed or proven damages.

WILSON J

George v Xolani [2023] ZALCJHB 70?

Facts: Applicant is employed by the Municipality in a fairly senior position. He was served with disciplinary charges and a notice to appear before an enquiry to answer to several charges of gross dishonesty. These pertained to alleged misrepresentations he had made when applying for the post. Investigations revealed that he was dismissed from the previous municipality on serious charges of financial misconduct, fraud and corruption. Numerous postponements ensued and the disciplinary enquiry finally proceeded and was completed, but for the outstanding outcome of the Chairperson.

Application: Applicant initially urgently sought to interdict the Chairperson from making any findings against him and in the end sought a final order declaring the appointment of the Chairperson to be null and void.

Discussion: Aside from all the contrived legal arguments, the facts of the case depict an applicant who, because he was literally avoiding the disciplinary hearing, took his time until he hit a brick wall when the chairperson refused yet another postponement. Without his legal representative, who had abandoned him when a postponement was not granted, the applicant was on his own and had nowhere to escape, other than approaching this court. The Municipality and the Chairperson unnecessarily indulged the applicant in his antics over prolonged periods, until their patience ran out. The applicant, as encouraged by his legal representatives, was abusive of the disciplinary process.

Findings: This is now familiar and habitual abuse of the urgent court by employees in senior positions in government, especially municipalities. They will take all means necessary in order to avoid the conclusion of the disciplinary enquiries. When all the strategies deployed to avoid the hearing comes to nought, the next step is to seek sanctuary from this court, with contrived and legally unsustainable urgent applications. These antics are exhausting to the court’s resources and financially draining for the already financially depleted municipalities or government departments. This is the antithesis of the primary purpose and objectives of the Labour Relations Act 66 of 1995 to have labour disputes resolved expeditiously.

Order: The urgent application is dismissed. The applicant is ordered to pay the municipal council’s costs on an attorney and client scale.

TLHOTLHALEMAJE J