Author: My Lawyer (page 1 of 21)

Can I avoid a drawn-out legal battle when I get divorced?

This article gives a brief overview of the normal divorce procedure, and how the procedure differs if the parties are able to reach an agreement before even issuing a summons for divorce. It also underlines the benefits of concluding a settlement at an early stage.

Normal procedure in an opposed divorce:

Divorce proceedings can lead to a long, drawn-out and very expensive procedure if the parties are not able to reach a settlement before going to trial. Once the plaintiff issues a summons for divorce and the summons has been served on the defendant, the defendant has ten days to defend the matter, and a further twenty days to answer to the allegations contained in the particulars of the claim. Because divorce proceedings can take years to finalise, especially in the High Court, there is also the possibility of an interim maintenance application in both the Regional and High Court, which leads to further delays.

Once both parties have discovered what documentation they wish to use at trial, a pre-trial conference needs to be conducted in order for the court to determine whether the matter is trial ready. If the matter is declared trial ready, a trial date will be allocated, and the parties can be up to three years down the line from the date of issuing the summons.

Settlement before the summons has been issued:

The abovementioned procedure can be avoided to a large extent, if the parties who decide to get divorced, agree to do so on an amicable basis from the start, and is able to reach a settlement before instituting legal proceedings. The settlement agreement in divorce proceedings is referred to as a “consent paper”.

Especially in divorces with regards to marriages in community of property, or marriages out of community of property where the parties do not have substantial assets to divide, it is a viable option to conclude a settlement as soon as possible, as the division of the assets should be fairly simple.

Consent paper:

The parties need to address all the patrimonial consequences of the divorce in the consent paper. An agreement needs to be reached on the division of movable and immovable assets, and the possible realisation of certain assets in order to make the division of the assets easier. Furthermore, if there are minor children involved in the divorce, a settlement needs to be reached as to with which parent the minor children will reside, and the visiting rights of the other parent. The maintenance of the minor children will also need to be addressed, and the possible rehabilitative/lifelong maintenance of a maintenance dependent spouse.

Procedure of a settled divorce:

If the parties reach a settlement by means of a consent paper before a summons is issued, the consent paper will be attached to the particulars of the claim of the summons. The summons will still need to be issued and served by the sheriff on the defendant. Once the summons has been served, and the ten days to defend the matter has passed (which will happen in a case which was settled before the issuing of the summons), the plaintiff in the matter can request a date from the registrar of the court on the unopposed roll. Once a date is received, the matter still needs to be set down in accordance with the rules of court, and the defendant needs to be notified of the date. However, on the court date itself, only the plaintiff and his/her legal representative need to be in court. The terms of the consent paper will then form part of the divorce order.

Benefits of an early settlement:

The benefits of reaching an early settlement in a divorce are that the parties will not have to spend large sums on legal costs, which would be the case if a divorce is opposed and go to trial. It will also ensure the swift conclusion of the matter, which can be concluded in a few months. Children benefit from a swift settlement of a divorce, as they do not have to live through a drawn-out legal battle, in which they usually become bargaining tools. Thus, an early settlement is an outcome which should be endeavoured for, as it is in the best interests of all parties involved.

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)

Racism in the workplace – it’s not always black or white

This article discusses two Constitutional Court judgments which deal with racism, or perceived racism, in the workplace. It briefly outlines the facts surrounding each dispute and then examines the Constitutional Court judgments in greater detail. The article notes that certain parallels exist between the two judgments and concludes by remarking on the importance of rules in the workplace which prohibit racist words and conduct.

Introduction

This article discusses two recent Constitutional Court judgments, which deal with racism, or perceived racism, in the workplace. Although each judgment and respective outcome should be understood in the context of the specific facts, certain parallels are worth noting. Both judgments had to decide whether the language used in the context was racist. In both cases, the employees concerned were dismissed by the employer and the employer’s decision was challenged by way of arbitration proceedings. In both cases, the arbitrator directed that the employees be reinstated. The Constitutional Court, in both cases, applied its well-known Sidumo test to decide whether or not the awards should be upheld. The test determines whether the decision made by the arbitrator is one which a reasonable decision-maker could not reach. The test ensures the constitutional rights to fair labour practices and administrative action which is lawful, reasonable and procedurally fair. The two judgments are now discussed.

Rustenburg Platinum Mine v SAEWA obo Bester and Others

Mr Bester was an employee at Rustenburg Platinum Mine. An incident occurred on 24 April 2013, the details of which were disputed. The Constitutional Court ultimately accepted that Mr Bester interrupted a safety meeting and demanded that a car which was parked next to his own be removed. He pointed his finger at the applicant’s chief safety officer, Mr Sedumedi, and loudly commanded, “Verwyder daardie swart man se voertuig”, in reference to another employee’s 4×4 vehicle, otherwise he would take the matter up with management.

Mr Bester was forthwith suspended pending the outcome of a formal disciplinary enquiry. He was charged with two acts of misconduct, namely: insubordination for disrupting the safety meeting and for making racial remarks, which breached a workplace rule prohibiting abusive and derogatory language. On 28 May 2013, Mr Bester was dismissed by the applicant after being found guilty on both grounds.

Mr Bester referred the dispute to the CCMA for arbitration and the arbitrator’s award was taken on review to the Labour Court, the Labour Appeal Court and ultimately to the Constitutional Court. The arbitrator concluded in his award that the dismissal was both substantively and procedurally unfair and ordered the reinstatement of Mr Bester. However, the arbitrator misdirected himself on the facts and found in favour of Mr Bester that in the context the words “swart man” were used, it was innocuous and for the purpose of identification. This defence had not been raised and was unsupported by evidence. Mr Bester’s defence was to deny making the statement.

In the Constitutional Court, Theron J, in a unanimous judgment, held that to regard the words “swart man” as innocuous in the context, ignores South Africa’s past of institutionally entrenched racism. The objective test had to be applied to the correct facts. On this basis, “swart man” was “racially loaded and derogatorily subordinating”. The arbitrator’s conclusion was one that a reasonable decision-maker could not have reached. The sanction of dismissal was reinstated, due to Mr Bester’s dishonesty in denying making the statement and his lack of remorse.

Duncanmec (Pty) Limited v Gaylard N.O. and Others

In this case, nine employees participated in an unprotected strike and were filmed singing a struggle song which featured lyrics that translate to, “Climb on the rooftop and shout that my mother is rejoicing when we hit the boers”. The employees were found guilty of participating in an unlawful strike action and also for singing a racially offensive song. After being given a final warning for the former offence, they were dismissed on the latter offence. Duncanmec justified its decision by contending that the conduct of the employees irreparably eroded the trust relationship between employer and employees.

Before the Bargaining Council, the arbitrator ordered the reinstatement of the employees, reasoning that the employees showed remorse and that the employment relationship had not broken down irretrievably. In addition, it was necessary to distinguish between singing a song which could cause harm and referring to someone in racist language.

The Constitutional Court, in a unanimous judgment written by Jaftha J, noted that increasing instances of racism in the workplace were becoming worrisome. It held that the use of the word “boer” in isolation was not racist or a racially offensive word, but that in the particular case, its use in the song sung by the employees was inappropriate and racially offensive. The Court, however, in applying the Sidumo test, held that the arbitrator had not acted unreasonably, nor, as contended by Duncanmec, applied her own sense of fairness in determining that the dismissal was substantively unfair. The award was therefore upheld.

Conclusion
In conclusion, in the light of these two recent judgments, it is evident that racism in the workplace is a recurring issue with which courts must deal to hold individuals accountable if their conduct is found to be racially offensive and an infringement of constitutional rights. However, it is unrealistic to expect that courts, or the threat of legal action, can prevent persons in the workplace from persisting with racist behaviour. It is therefore important that employers have adequate rules in place which expressly prohibit racist words and conduct, so that violations can be dealt with expeditiously and effectively. The judgments also indicate that should those found guilty of racism show no remorse, dismissal will be viewed as an appropriate sanction.

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)

Reference List:

  • Duncanmec (Pty) Limited v Gaylard N.O. and Others [2018] ZACC 29.
  • Rustenburg Platinum Mine v SAEWA obo BESTER and Others [2018] ZACC 13.
  • Sidumo v Rustenburg Platinum Mines Ltd 2008 2 SA 24 (CC).

Understanding the functions of the commission for conciliation, mediation and arbitration

This article briefly discusses the procedure which is followed when a dispute is referred to the Commission for Conciliation, Mediation and Arbitration. It explains what the different functions of conciliation and arbitration are and in what order these forms of dispute resolution should be conducted in order for the process to function optimally.

I have a dispute which has been referred to the CCMA. How does the process work?

The Commission for Conciliation, Mediation and Arbitration (“CCMA”) is a state-funded institution which acts as the centrepiece of the statutory dispute resolution system in the employment sphere. The CCMA, however, operates independently from the state.A dispute is referred to the CCMA within 30 days of the date when the dispute arose. When a dispute is referred to the CCMA, the first step in the process is that the Commissioner (the objective party presiding over the matter), who will act as a conciliator, assists the parties to reach a mutually agreed upon outcome. The conciliator cannot make any binding determinations during this process. Therefore, there is no obligation on the parties to accept the suggestions of the conciliator. What is also important to note is that the proceedings are confidential and conducted on a “without prejudice” basis, therefore, whatever is said during the said proceedings cannot be used against either party later in the process. Conciliation is not defined in the Labour Relations Act 66 of 1995 (“LRA”), however, in practice, the Commissioners tend to make use of mediation, conducting a fact-finding exercise, subsequently making a recommendation to the parties, which is regarded as an advisory arbitration award.

After conciliation has failed, the Commissioner will issue a certificate stating that the dispute remains unresolved after conciliation proceedings have been conducted (certificate of outcome). The referring party will then have the option to refer the matter to arbitration by completing an LRA Form 7.13 and serving it on all the relevant parties, including the CCMA, within 90 days after the date on which the certificate of outcome was issued. The director of the CCMA may direct that the parties conduct a pre-arbitration conference. The purpose of the said conference is so that the parties can simplify the matter and clearly define what the dispute is.

Arbitration is essentially a hearing based on the merits of the dispute. The arbitrator will give all the parties an opportunity to prove and argue their case. After the arbitrator has heard the parties’ cases, the arbitrator must make a finding, which any reasonable decision-maker could come to based on the available evidence. Reasons for the arbitrator’s decision may be provided. The arbitrator’s decision is final and binding on the parties, subject to a review application in the Labour Court. The arbitrator may also make an order as to costs in accordance with the CCMA rules.

It should also be noted that in 2002, amendments to the LRA were introduced, which also provide for what is now known as “con-arb”. What this entails is that the Commissioner will have to commence arbitration immediately after conciliation was found to be unsuccessful. However, a party to the proceedings may object to con-arb, whereafter the procedure as discussed above will then follow in the alternative.

When a dispute is referred to the CCMA, the first step in the process is that the Commissioner will attempt to settle the matter by way of conciliation which might include mediation, conducting a fact-finding exercise, subsequently making a recommendation to the parties, which is regarded as an advisory arbitration award. When the dispute remains unresolved, the matter will then be finalised on arbitration.

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)

Sources:

  • CCMA Rules
  • Labour Relations Act 66 of 1995
  • Country Fair Foods (Pty) Ltd v CCMA (1999) 11 BLLR 1117 (LAC)
  • CCMA website – https://www.ccma.org.za/Advice/CCMA-Processes/Arbitration
  • Law@work 3rd Edition (2015) A van Niekerk, M Christianson, M McGregor, E Smith, BPS van Eck

Prize draw or promotional competition – a promoter’s legal compliance checklist

If one opens almost any newspaper, magazine or website, one is confronted with a myriad of promotional competitions and, especially, competitions conducted using SMS or MMS technology. For this reason, the promoters of such competitions will need to realise that the Consumer Protection Act 68 of 2008 (the “CPA”), which came into effect on 1 April 2011, has certain far-reaching implications which are likely to apply to such competitions and educate themselves as to its specific requirements.

The CPA replaced the repealed Lotteries Act 57 of 1997 and became effective on 1 April 2011. Section 36 of the CPA imposed the stringent definitions of a “promoter” and “promotional competition”, which includes competitions where prizes can be won regardless of whether a participant shows any skill or ability. Given these rather wide definitions and the very low-value threshold of R1.00 prescribed in terms of Regulation 11(4) of the CPA Regulations, it is clear that the vast majority of competitions conducted in South Africa from 31 March 2011 will be governed by the CPA.

Promoters, including promoters of SMS or MMS competitions, will be in contravention of the CPA where:

  • they indicate that a participant has won a competition if no competition has been conducted, the person has, in fact, not won the competition or the person is required to meet a previously undisclosed condition or to pay a further sum of money in order to receive the prize; or
  • a participant is informed that he has a right to a prize when, in fact, he does not have such right, where the prize was generally offered to other similar participants, or where the participant is required to pay a further amount for the prize or to purchase any goods or services.

Crucially, section 36(3) requires that a promoter should “not require any consideration to be paid by… any participant… other than the reasonable costs of posting or… transmitting an entry” and Regulation 11(1) specifies that the “reasonable cost of electronically transmitting an entry shall not exceed R1.50”.

A promoter would similarly fall foul of the CPA, where he requires participants to make payment for the opportunity to participate in the competition or where he requires the purchase of any goods or services and the price charged for those goods or services “is more than the price… ordinarily charged for those or similar goods or services without the opportunity of taking part in (the) competition”.

For the purposes of ensuring fairness, the CPA requires that a promoter may not award a prize to any person who is a director, member, partner, employee or agent of, or consultant to, the promoter or to the supplier of any goods or services in respect of the competition.

Practical Requirements

A promoter should ensure that his invitation for participants to take part in his competition includes details on:

  • how a participant should accept the invitation to participate;
  • how the results will be determined;
  • the competition’s closing date;
  • the means by which the results of the competition will be made public; and
  • the person from whom or the place from where a copy of the competition rules may be obtained.

The promoter will be deemed to have satisfied these requirements if this information is available directly on the medium through which a person participates in the competition, on a document accompanying any medium or in any advertisement which is published, and which draws attention to the promotional competition.

Any provision in the rules of a promotional competition requiring a prize winner to:

  • permit the use of his image in marketing materials;
  • participate in any marketing activity; or
  • be present when the prize draw takes place, or the winners are announced,

without offering him the opportunity to decline such requirement, will be null and void.

The Regulations also require the promoter to ensure that certain specified professional persons oversee and certify the manner in which the competition was conducted and report his/her findings through the promoter’s internal audit reporting or validation and verification procedures. There is also a strict requirement regarding record keeping for a period of 3 years.

Non-compliance by promoters of the provisions of the CPA and its Regulations may result in the competition being declared void and in contravention of the CPA. The imposed offences under the CPA range from a fine or imprisonment (or both) for a period not exceeding 10 years or a fine or imprisonment (or both) for a period not exceeding 12 months or to both, depending on the severity of the contravention. In addition, administrative fines imposed by the Tribunal in respect of prohibited or required conduct is particularly onerous as such fines are set at the greater of 10% of the guilty party’s annual turnover during the preceding financial year or R1 million.

Conclusion

Promoters of promotional competitions and, in particular, competitions conducted using SMS or MMS technology, should ensure that they are aware of the various requirements and obligations placed upon them by the CPA. Great care should be taken when conducting competitions which will fall within the realm of the CPA as and from 31 March 2011, since the Commission and the Tribunal are likely to take a very dim view of promotional competitions which do not comply with the requirements of the CPA and its 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)

Reference List:

  • The Lotteries Act 57 of 1997
  • The Consumer Protection Act 68 of 2008 and its Regulations
  • Naudé T & Eiselen S, Commentary on the Consumer Protection Act, Juta, 2014

POPI AND YOUR PAYROLL

The requirements of the POPI Act stipulates that an entity is required to take reasonable measures of a technical, as well as organisational nature, to ensure the adequate safeguarding of personal information. Personal Information, according to the Protection of Personal Information Act, 2013 includes the following:

  1. Information relating to the following of a person:
  • Race/nationality/ethnic/social origin/colour
  • Gender/sex
  • Pregnancy
  • Marital status
  • Sexual orientation
  • Age
  • Physical or mental health/well-being/disability
  • Religion/conscience/belief
  • Culture/language
  • Birth
  1. Education, medical, criminal, employment or financial history of a person
  2. Identifying number, email address, telephone and physical address, location information, online identifier
  3. Biometric information
  4. Personal opinions, views or preferences
  5. Explicitly or implicitly private or confidential correspondence
  6. Views of others about that person
  7. Name, if it appears together with other personal information about that person or if the name would reveal information about that person

Personal information may only be processed (collected, stored, received, organised etc.) if the following conditions are complied with:

  1. Accountability

All the conditions below must be complied with.

  1. Processing

Personal information may only be processed if the processing is lawful and in a reasonable manner which does not infringe the privacy of the data subject

  • Consents
  • Necessary to carry out a contract to which the data subject is a party
  • Obligation imposed by law
  • Protects legitimate interest of data subject
  • Necessary for a proper performance by a public body
  • Processing is necessary for pursuing the legitimate interests of the responsible party or of a third party to whom the information is supplied

Information must be collected directly from the data subject unless the information is obtained from a public record, then the data subject consented would not prejudice a legitimate interest of the data subject or if the collection is necessary in terms of a law.

Employers must obtain the employee’s consent for their personal information to be collected and used. They must be aware of the third parties (or other individuals) who might have access to it.

  1. Purpose Specification

Personal information must be collected for a specific, defined and lawful purpose related to a function or activity of the responsible party.

Records of information must not be retained for a longer period than is necessary. If it is kept for research, statistical or historical purposes, then it can be kept for longer if there are adequate safeguards in place from the records being used for other purposes.

The responsible party (the employer) must ensure that safeguards are in place to protect the data from being used for other purposes. Employees obtaining these types of personal information of other employees should have a clause in their employment contracts dealing with confidentiality.

  1. Further Processing Limitation

Further processing of personal information must be in accordance or compatible for the purpose it was collected for (see Section 15). It will not be incompatible if the data subject consents or the information is used for historical, statistical or research purposes and the responsible party ensures that the further processing is carried out solely for such purpose and will not be published in an identifiable form.

The employer must obtain the employee’s consent if further processing takes place and it is not compatible with the reason it was collected for.

  1. Information Quality

A responsible party must take steps to ensure the information is accurate, complete and not misleading.

  1. Openness

The data subject (employee) must be aware of the information being collected, or if information is not collected from the data subject, the source where it is collected from, the purpose for the collection etc. unless the data subject consents to the non-compliance. The responsible party must take reasonable steps to ensure that the data subject is informed.

If personal information of the employee is collected by a third party via the employer, the employee needs to be aware of it unless the employee consents to non-compliance.

  1. Security Safeguards

The responsible party must ensure the integrity and confidentiality of the information in its possession or under its control by taking reasonable and appropriate measures to prevent loss or damage to personal information and unlawful processing of information.

Anyone processing personal information on behalf of a responsible party may not disclose the information.

Data subjects must be notified if personal information has been accessed or acquired by an unauthorised person (or the responsible party has reasonable grounds to believe so).

The employer or third party should ensure that employee data is treated as confidential information. Our suggestion would be to include a confidentiality clause in the employment contracts. Passwords must also be set up on the systems.

  1. Access to personal information

A data subject (employee) has a right to request access to personal information, also to correct or delete it.

Although financial information is not specifically dealt with in the above mentioned Protection of Personal Information Act, according to the Basic Conditions of Employment Act, it is an offence for any person to disclose information which that person acquired while exercising or performing any power or duty in terms of this Act and which relates to the financial or business affairs of any other person, except if the information is disclosed in compliance with the provisions of any law.

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)

THE ROLE OF A RECOGNITION AGREEMENT AT THE WORKPLACE

I have been approached by a trade union to enter into a Recognition Agreement with them. The trade union is of the opinion that it is entitled to be recognised at my business given that they represent a certain number of employees. Do I have to enter into discussions with the trade union?

A trade union will be successful in gaining recognition at a workplace if it can prove to the employer or to the CCMA that it has sufficient representation amongst the employees. The question is, what constitutes sufficient representation?

The Labour Relations Act (“LRA”) splits “trade union representivity” into two categories:

  1. Full representivity based on a simple majority of members employed at a workplace (50% + 1); and
  2. Partial representivity based on the concept of “sufficient” representation (20% – 50%).

If a trade union can prove that its members at the workplace represent a majority of all the employees employed at the workplace, the union will be legally entitled to recognition. That is, it will be entitled to organisational rights provided for by the LRA.

These rights are:

  • Access to the workplace by a union official to meet with its members and to conduct elections.
  • Deduction and pay over of union subscriptions.
  • Election of trade union representatives (i.e. shop stewards).
  • Leave for trade union activities.
  • Disclosure of information.

If a union does not have a majority but does become merely “sufficiently” representative it only has the right to access to the workplace, deduction of union subscriptions and leave for union activities. The concept of a “sufficiently representative trade union” is not defined by the LRA, which leaves it to the arbitrators at the CCMA to decide whether the union is sufficiently representative or not.

The LRA requires that:

  1. ln order to qualify for sufficient representation, the union must be registered with the Department of Labour.
  2. Arbitrators who are attempting to establish whether a union qualifies as sufficiently representative must, in terms of the LRA, consider:
    1. The need to avoid excessive numbers of trade unions in a workplace.
    2. The need to minimise the financial and administrative burden on the employer.
    3. The nature of the workplace.
    4. The nature of the rights sought.
    5. The nature of the sector (industry) into which the workplace falls.
    6. The organisational history of the workplace or any other workplace of the employer.

If a union approaches an employer for organisational rights, the parties are required to meet to try to conclude a collective agreement. Where such meeting(s) fails to result in an agreement, the union is required to refer the dispute to the CCMA for purposes of conciliation.

It is therefore crucial for employers to be able to assess at the outset whether the trade union concerned is sufficiently representative or not. This is because, if the answer is “yes”, there is no point in refusing recognition.

Why would an employer sign a Recognition Agreement?

The purpose of a Recognition Agreement is to enable the employer to keep a tight control over the activities of the union and of the shop stewards. Without such an agreement the shop stewards can run riot. That is, they can stir up trouble and squander valuable production time dealing with union issues instead of earning the money they are paid.

Shop stewards have several trade union duties that can take them away from their normal production work. These shop steward duties include:

  • Wage negotiations. This may involve the shop steward in leading or assisting with the negotiations and in numerous preparatory and feedback meetings.
  • Hearing employees’ grievances and negotiating in this regard with the employer.
  • Representing employees at disciplinary hearings. This does not only use up time at the hearing itself. It can necessitate the shop steward spending protracted periods of time preparing for the hearing and dealing with appeals.
  • Attending training courses and conferences arranged by the trade union for purposes of developing the shop stewards’ knowledge and skills.
  • Holding meetings with members regarding union issues.
  • Representing members at the CCMA or bargaining council.

The Recognition Agreement must only contain the aforementioned organisational rights and nothing more. Anything else which the union might suggest is subject to negotiation and the employer is not obliged to accept it.

The employer should never include anything that is a management prerogative. The employer should not hand over management to the union.

References:

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)

PROTEST: YOUR RIGHT AND RESPONSIBILITIES

The right to protest is enshrined in the Bill of Rights under Section 17 and reads as follows: “Assembly, demonstration, picket and petition. Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.” The important part of this right is that this right is awarded to “everybody”, not just to citizens of South Africa.

Protesting is not just about government, but also serves as a channel of communication with other South Africans. Three things get unpacked in the South African Transport and Allied Workers Union and Another v Garvas and Others case, also known as the ‘SATAWU’ case.

Firstly, protesting serves as an instrument for democracy and people who are oppressed. Secondly, the foundational relevance of the right to protest was established. The important thing to remember when describing this right is that it affects other rights. The significance of this is that once you reduce the right, you are not only impacting on the right to protest, but rights like freedom of expression, association and other rights like these are impacted or taken away from you as well. Thirdly, self-actualisation; the act of fighting for something you are passionate about helps develop oneself. Everyone has the right to protest, even foreigners. There is a broad interpretation on the word “everyone”, as mentioned above.

The importance of this right is to prevent oppression and advocating for other democratic rights. This is a generous right which aims to stop brutal oppression. In the SATAWU case, the court held that once you have the intention to incite violence, the right falls away but if you don’t have this intention, Section 17 would be the defence to make use of.

If the protest involves more than 15 people, notice in terms of the Regulation of Gatherings Act is a requirement. No notice of a protest of a group of more than 15 people would constitute an illegal gathering and can lead to arrests being made. Section 17 of the Constitution grants one the right to protest. However, Section 12(1)(a) of the Regulation of Gatherings Act states that any person who organises and acts upon the gathering in respect of which no notice or no adequate notice was given, in accordance with Section 3, shall be guilty of an offence or shall be liable to a fine or imprisonment for a period not exceeding 1 year.

There are certain places protesters would require special permission from to be allowed to protest there. These places include protesting within 100 meters of Parliament, the Union Building or a Court Building. This means that one would not only give notice to these institutions but will actually need permission.

The most basic requirement for the limitation of the right is the law of general application, Section 36 of the Constitution. In other words, “people must know the law” and the right must be clear enough, accessible and precise so that the people who are affected by it can understand the extent of their rights and obligations. The second part of the Section 36 limitation is, that the “limitation is reasonable and justifiable in an open and democratic society”. This part can be interpreted in the sense that, even though the right is limited, it should be reasonable and not infringe more rights than what is necessary to achieve its purpose.

Reference List:

  • The Bill of Rights Handbook Fifth Edition by Iaim Currie & Johan de Waal
  • Mlungwana and Others v S and Another (A431/15) [2018] ZAWCHC 3; [2018] 2 All SA 183 (WCC); 2018 (1) SACR 538 (WCC)
  • South African Transport and Allied Workers Union and Another v Garvas and Others (CCT 112/11) [2012] ZACC 13; 2013 (1) SA 83 (CC)
  • The Regulations of Gatherings Act 205 of 1993
  • The Constitution of 1996

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)

REVENGE PORN ON THE RISE: LEGAL RECOURSE IN SOUTH AFRICA

Introduction

In the digital era we find ourselves in – with the web, social media, smartphones and the ‘screenshot’ – it has become much easier for people to engage in a phenomenon known as ‘revenge porn’. This term is defined by the Merriam-Webster Dictionary as “sexually explicit images of a person posted online without that person’s consent especially as a form of revenge or harassment”. In South Africa, revenge porn is a growing problem with women being the main victims. Studies indicate that this practice disproportionately affects women, with female victims exhibiting a similar range of mental health problems comparable to rape survivors and in extreme cases it can result in suicide. Whether male or female, it is undoubtedly a violation of a victim’s constitutional right to privacy and a strong argument can be made for online abuse being treated as an extension of abuse in the non-digital world.

Current legal remedies in South Africa

When a sexually explicit image or video is posted online, practical considerations initially outweigh legal considerations. The main concern is having the photo or video removed as quickly as possible, before it goes viral. In addition, many people are advised to log off and delete their profiles from social media accounts, but in the long term this does not adequately solve the problem, it merely ignores it.

To date, the complexities of the law in this area lag behind technology and revenge porn is not yet a criminal offence in South Africa, although as discussed below, this position is likely to change soon. Nevertheless, victims have other available legal remedies, some more effective than others. One option for a victim of revenge porn is to sue for civil damages as it constitutes defamation of character. Another option is to sue for crimen injuria, which would involve a case being opened at the police station. Essentially the accused should be criminally prosecuted for violating the victim’s dignity. Alternatively, the Protection from Harassment Act 17 of 2011 offers a comparatively cheap remedy, which allows victims to apply for protection orders against perpetrators. South Africa’s Copyright Act 98 of 1978 in addition specifically provides for interdictory relief, which on an urgent basis could provide for the offending images being removed from online.

However, the above legal remedies are not without fault. Litigation can become a costly and lengthy affair, by which time the victim’s reputation has suffered irreparable harm. Copyright law is only applicable where the victim took their own image or video, such as a selfie.

The Films and Publications Amendment Bill of 2015

The Films and Publications Amendment Bill of 2015 (‘the Bill’) proposes the insertion of section 18F into the Films and Publications Act of 1996 (‘the Act’) which will criminalise revenge porn. Essentially section 18F provides that no person may expose through any medium, including social media and the internet, a private sexual photograph or film, if disclosure is made without consent of the subject, and with the intention of causing that individual harm. The prohibition applies even if the subject consented to the original taking of the photograph or film. Section 24E provides that a person contravening the prohibition in section 18F is guilty of an offence and liable on conviction to a maximum fine of R150 000.00 or to imprisonment not exceeding two years, or both such penalties.

On 6 March 2018, the Bill was passed by the National Assembly and transmitted to the National Council of Provinces for concurrence. This Bill seems closer to promulgation than the proposed Cybercrimes and Cybersecurity Bill of 2017, section 18 of which prohibits and criminalises the distribution of a data message of an intimate image without consent.

Conclusion

Although the proposed section 18F is a positive step, legislation which makes revenge porn a statutory offence should not be viewed as the answer. There is rightly the concern that even when the Bill becomes law, enforcement will remain problematic. The police must be adequately trained to deal with revenge porn, to ensure that the law is properly enforced. There is also a stigma associated with revenge porn so very few victims speak out, with even fewer reporting it to the police. Education about this issue remains vital, teaching people from a young age about consent, the value of privacy, the dangers of the digital era, what constitutes a criminal offence and ultimately that prevention is better than cure.

Reference list:

  • R Essop “Snap of shame: The rough road to stamping out ‘revenge porn’” Mail & Guardian(2018).
  • Sadlier & de Beer Don’t Film Yourself Having Sex (2014).
  • The Films and Publications Amendment Bill 2015.
  • The Films and Publications Act of 1996.
  • The Protection from Harassment Act 17 of 2011.

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)

COURT INTERFERENCE IN A CONTRACTUAL RELATIONSHIP

When two or more parties enter into a contractual agreement knowingly and free from duress, the terms of the agreement must be upheld by each signatory. However, it must be noted when the contract is entered into under pacta sunt servanda, which means “agreements must be kept”, principles of fairness, good faith and reasonableness don’t play a part when circumstances leading to contract breach arise.

With regards to property law, for example, if a lease agreement states a date on which rental is due, then the party responsible for making this payment should meet this obligation. Failing to do so could enable the lessor to cancel the signed lease without notice and retake the property. Genuinely, because the lessee had agreed to the clause by signing the contract, that would then mean that they agree on the grounds of cancellation.

But if the late payment was due to circumstances beyond the lessee’s control, does the cancellation clause still stand?

If the lessee does not oblige with the lease cancellation, the lessor may approach a court to deliver judgement on the agreement and serve a notice of eviction. The lessee may argue that they acted in good faith and that the matter was beyond their control. The lessee may also argue that the implementation of the pacta sunt servanda principle varies from case to case and should be determined by the circumstances surrounding breach of the lease.

If the court chooses to hand down judgement based on the lessee’s argument, it is incorrect due to the freedom each party had when entering into a contractual agreement. Each party has bargaining power and should have, before signing, ensured that any possible errors were taken into account. Good faith and fairness don’t play a part when it comes to an agreement and a court cannot base that as the reason why the lessor should not have cancelled the lease.

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)

ARE FATHERS ENTITLED TO PATERNAL LEAVE?

Fathers could spend up to two weeks with their newborn babies, while adoptive parents and parents-to-be via surrogacy, could get up to 10 weeks of leave. This is due to the latest Labour Laws Amendment Bill 2017 (“amendment bill”), which was passed by the National Assembly in November 2017.

The current labour legislation provides that fathers who want to stay home with their newborn babies have to take family responsibility leave, which is limited to three days per annual cycle, or they must take their own annual leave for this purpose. They are only entitled to family responsibility leave once they have been employed for four months and work for at least four days a week. The current law also makes no provision for paternity leave for adoption parents or fathers-to-be via surrogacy. A mother is entitled to unpaid maternity leave of up to four months and she may also claim from UIF for 17-weeks during this period.

The position regarding paternal leave has, however, drastically changed since the end of last year. On 28 November 2017, the National Assembly passed the Labour Laws Amendment Bill. The amendment bill regulates the rights of fathers in taking paternal leave when their child is born. In terms of the amendment bill, fathers will be entitled to 10 days paternal leave on the birth of a child. In addition, the amendment bill provides for 10 weeks adoption leave for one parent when adopting a child under the age of two and ten weeks “commissioning parent leave” when an employee’s child is born by means of a surrogacy arrangement. The amendment bill also increases unemployment insurance benefits from 238 days to 365 days and increases maternity benefits to 66% of the earnings of the employee at the date of the application for unemployment insurance benefits.

Five things you need to know about the amendment bill:

  1. Fathers’ paternity leave could be up to two weeks

An employee who is a parent and not entitled to maternity leave, will now be entitled to 10 consecutive working days parental leave when that employee’s child is born. The Basic Conditions of Employment Act 75 of 1997 (BCEA) still provides that mothers are entitled to take maternity leave for up to four months.

  1. A father must have his name on the child’s birth certificate to qualify

Fathers must have their names on the newborn child’s birth certificate in order to apply for paternal leave. The purpose for this is to prevent dishonesty and ensure that the amendment bill cannot be used and abused.

  1. Adoptive parents and parents via surrogacy could get up to 10 weeks of parental leave

An employee who is an adoptive parent of a child less than two years old, is entitled to adoption leave of ten weeks consecutively. In the case of two adoptive parents, one of the employees is entitled to adoption leave and the other to parental leave. The same provision applies for parents-to-be via surrogacy.

  1. Family responsibility leave falls away

The father of a newborn may take three days family responsibility leave in terms of the BCEA –– but under the amendment bill, this no longer applies.

  1. The amendment bill might come into effect by June 2018

The amendment bill will be referred to the National Council of Provinces and if passed, will be submitted to the president for assent. This new amendment bill will bring South Africa in line with other countries, many of which offer between one to four weeks’ paternity leave.

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)

Reference List:

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