Cluver Markotter Ingelyf verwelkom ons nuwe Assosiate

Dit is met trots dat ons aankondig dat die kandidaatprokureurs wat in 2014 by ons aangesluit het, op 5 Februarie 2016 as Prokureurs van die Hooggeregshof van Suid-Afrika toegelaat is.

Ons is opgewonde dat hulle al drie voortaan by Cluver Markotter Ingelyf as Assosiate sal praktiseer en is seker dat hulle ʼn positiewe bydrae sal lewer tot die diens wat ons aan ons kliënte bied.

Herna Beviss-Challinor het haar BA Regte (2011) en LLB (2013) grade aan die Universiteit van Stellenbosch behaal. Herna is nou `n toegelate Prokureur en Notaris en is reeds `n gewaardeerde lid van ons Litigasie-afdeling waar sy voortaan as Assosiaat sal praktiseer.

Marnes de Wet het sy BComm Regte (2011) en LLB (2013) grade aan die Universiteit van Stellenbosch behaal. Marnes is toegelaat as beide `n Prokureur en Notaris en het gedurende sy klerkskap waardevolle ondervinding opgedoen in ons Litigasie-afdeling, waar hy nou aansluit as Assosiaat.

Retha Oosthuizen het haar BComm Regte(2011) en LLB (2013) grade aan die Universiteit van Stellenbosch behaal. Retha is reeds `n geruime tyd deel van ons Kommersiële-afdeling en sal nou as toegelate Prokureur, Notaris en Aktebesorger by die span as Assosiaat aansluit.

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Cluver Markotter Incorporated welcomes our new Associates 

We are proud to announce that the candidate attorneys who joined Cluver Markotter Incorporated in 2014, were admitted as Attorneys of the High Court of South Africa on 5 February 2016.

We are excited to have all three attorneys practising as Associates at Cluver Markotter and believe they will make a positive contribution to the services delivered to our clients. 

Herna Beviss-Challinor obtained her BA Law (2011) and LLB (2013) degrees at the University of Stellenbosch and is now an admitted Attorney and Notary Public. Herna is already a familiar face in our Litigation Department where she will be practising as an Associate. 

Marnes de Wet completed his BComm Law (2011) and LLB (2013) degrees at the University of Stellenbosch. He was admitted as both an Attorney and Notary Public. During his time as candidate attorney Marnes gained valuable experience in our Litigation Department and he will continue to work in this department as an Associate.

Retha Oosthuizen completed her BComm Law (2011) and LLB (2013) degrees at the University of Stellenbosch. Retha has been a valued member of our Commercial Department as candidate attorney and will now join the team as an Associate, being an admitted Attorney, Notary Public and Conveyancer.

The application of the talem qualem rule

In situations where a wrongdoer causes some form of damage to a victim, the victim might suffer more damage than one might usually expect. This might be caused by the specific circumstances in which the victim finds himself/herself, which leads to the victim suffering more damage than the average person. Would this be an acceptable defence for the wrongdoer, or must the victim’s existing circumstances be ignored when establishing the liability of the wrongdoer?

An example of the above mentioned is where the victim is in such an adverse financial position that he/she is unable to mitigate the damage caused by the Defendant.

The case of Smit v Abrahams 1994 (4) SA 158 (K) dealt with the matter at hand and is still the leading authority relating to the aforementioned question. In the case of Smit, the Plaintiff was involved in a motor vehicle accident in which the vehicle he owned was damaged beyond economical repair. The Plaintiff not only claimed the market value of the vehicle as damages from the Defendant, but also the cost of a rental vehicle for a period of three months in order to conduct his business. The extent of the Plaintiff’s damage was therefore partly caused by his own financial position and the fact that he could not afford a replacement vehicle at the time. These type of situations are known as thin-skull (or egg-skull) cases, where the circumstances of the Plaintiff influence the amount of damages suffered. In general, the thin-skull rule dictates that a Defendant cannot use the extraordinary vulnerability of the Plaintiff as a defence. This is also referred to as the talem qualem rule. The rule is based on the principle that you take your victim as you find them.

In the judgement, the thin-skull question is discussed as part of the court’s enquiry into the issue of legal causation. With regards to legal causation it is held that a rigid approach should not be followed, but rather a more flexible approach. This flexible approach should be based on reasonableness and fairness and each case should be dependent on its own facts. The fact that the Plaintiff’s damage was partly caused by his own financial vulnerability, is merely one of the factors to be considered when establishing whether or not the damage suffered was sufficiently relevant to the wrongdoer’s conduct.

It was held that, considering the facts at hand, the Plaintiff was entitled to hire a replacement vehicle in order to conduct business and that this would satisfy the criterion of reasonableness and fairness. Because of the fact that the Plaintiff was not in the financial position to buy a new vehicle after the accident and a vehicle was necessary for him to conduct the business, it was regarded as fair and just that the Defendant should carry the expense of hiring a replacement vehicle.

In cases where the thin-skull rule comes into question, the court will have to determine whether it is reasonable and fair to state that the damage suffered by the Plaintiff and particularly the extent thereof, was caused by the Defendant’s conduct.

The thin-skull rule, as originally contemplated and formulated, is not directly applied in South African law. However, the applicable principle, namely that the Plaintiff’s vulnerability does not serve as an acceptable defence, is considered as a factor when the element of causation is considered.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

 

 

 

Differences between public and private schools in South Africa

In terms of Section 5 (3) (a) of the South African Schools Act No 84 of 1996 no learner may be refused admission to a public school on the grounds that his or her parents is unable to pay or has not paid the school fees as determined by the Governing Body. However, this Act does not make provision for independent “private” schools with regard to fees.

Section 5 (3) (a) of the South African Schools Act No 84 of 1996 has incorporated Chapter 2 Section 29 (1) (a) of the Constitution of the Republic of South Africa 1996 in terms of which everyone has the right to basic education. Therefore no child can be sent home or refused to participate in certain activities or sports due to arrears school fees[1]. Public schools must provide for equitable criteria and procedures for the total, partial or conditional exemption of parents who are unable to pay school fees.[2] This means that should a parent find themselves retrenched during the third term of school, they can apply for subsidiary for the tuition of the last term and their child / children can continue their education.

The South African Schools Act[3] does not make provision for independent “private” schools. Private schools are governed by the Private Schools Act No 104 of 1986, which does not make any mention of arrears school fees and whether or not children are still allowed their right to basic education if their parents find themselves in a financial struggle. The Private Schools Act focuses more on the regulations of a school itself and how to become a private school.

The problem relating to this is the fact that the children suffer. At the time of entering their children into a private school, the parents are financially stable. However, what happens if a parent suddenly find him/herself retrenched? Furthermore, the above problem is aggravated by the fact that private schools are struggling to obtain funds from the Government for subsidies. Race-based inequalities in subsidies to independent schools have been eliminated since 1994. Since then, subsidy levels have differed somewhat per province. But extreme pressure on the non-salary components of provincial education budgets, especially in 1997/98 and 1998/99, has resulted in a sharp decline in the per learner value of independent school subsidies, and considerable uncertainty as to the future trend of independent school funding by provincial education authorities.[4]

[1] South African Schools Act No 84, Section 41 (7)
[2] South African Schools Act No 84 of 1996, Section 39(2) (b)
[3] South African Schools Act No 84 of 1996
[4] South African Schools Act No 84 of 1996: Rules and Regulations

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

Who is to blame?

Emily and Nathan were a happily married couple in their early thirties with two minor children. Emily was a stay at home mom and Nathan was the breadwinner of the family. The family decided to take a vacation in Sun City, which ended tragically when Nathan was fatally injured on a Valley of the Waves ride. Who was to take care of the family now that Nathan was no longer there and who was to pay the price for the family holiday that ended in a tragic loss?

If the question of negligence is hanging in the air then the obvious word to pop into one’s mind would be that of delict. In Kruger v Coetzee 1966 (2) SA 428 A 430E-G the formulation for negligence was established by Holmes in two steps:

(a) a diligens paterfamilias in the position of the defendant –

(i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and

(ii) would take reasonable steps to guard against such occurrence; and

(b) the defendant failed to take such steps.

In the case of Za v Smith (20134/2014) [2015] ZASCA 75 (27 May 2015) the father and breadwinner of the family died in a tragic accident while on vacation at a mountain resort close to Ceres, Western Cape, after falling off a sheer precipice (a steep rock or cliff). The wife of the deceased took the matter to the Supreme Court of Appeal, who considered three elements, namely wrongfulness, negligence and causation.

The background facts were taken into account, namely the fact that the park was used for recreational purposes for the public upon paying an entry fee. Furthermore, the 150 metres gorge drop where the deceased fell to his death was not visible, especially in snowy weather, nor were there any signs of warning.

Wrongfulness:

The court a quo did not find the Respondents to be wrongful as they did not have the duty to warn guests of the danger that was blatantly apparent to them. However, in the abovementioned case it was reiterated that ”the test for wrongfulness is whether it would be reasonable to have expected the defendant to take positive measures, while the test for negligence is whether the reasonable person would have taken such positive measures; confusion between the two elements is almost inevitable. It would obviously be reasonable to expect of the defendant to do what the reasonable person would have done. The result is that conduct which is found to be negligent would inevitably also be wrongful and visa versa.”[1]

If the abovementioned case is taken into consideration then Emily would most likely be successful in her application for compensation for herself, as well as in her capacity as mother of the two minor children, if it is found that Sun City Holiday Resort was negligent and wrong

[1] Za v Smith (20134/2014) [2015] ZASCA 75 (27 May 2015)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).