Month: May 2018

CAN THE POLICE SEARCH A PERSON WITHOUT A WARRANT OF ARREST?

This article focuses on primarily whether the police may search a person without a warrant of arrest. On the face of it, it would appear that the search and seizure of a person and premises are in contravention with the Bill of Rights, more specifically section 14 of the Constitution of the Republic of South Africa.

With the enactment of the Constitution, there have been a number of constraints on search and seizure powers by police officials. Section 14(a) of the Constitution specifically protects the right not to have a person or their home searched. A person’s home, it is widely accepted, constitutes the highest expectation of privacy. According to section 36 of the Constitution, rights in the Bill of Rights may be limited by a law of general application, if the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

The Criminal Procedure Act allows the police to search any person or any container or premise of that person without a search warrant. It also allows the police to seize any article reasonably believed to have been used to commit a crime or that is reasonably believed to be evidence that could assist the state in proving that an offence was committed. This can be done only if the owner gives consent for the search or if the police officer has reasonable grounds to believe that a search warrant would have been issued and a delay in conducting the search would have defeated the purpose of the search and seizure operation.

What this essentially means is that a police officer can search you personally or can search your car or house even when no search warrant was obtained and even when you did not give permission for such a search. However, such a type of search without a warrant can only be executed where there are reasonable grounds to believe that a search warrant will be issued to the relevant police official should he apply for it and that the delay in obtaining such warrant would defeat the object of the search.

According to the relevant case law, a police officer must have a reasonable suspicion that a person committed an offence or that a person is in possession of an article used or to be used in the commission of an offence. A mere assertion by a police officer that he or she had such a suspicion without any evidence to back it up will not do. This means that where a police officer stops you in the street and decides that you are a drug dealer merely because of your appearance, he or she will not be able to merely argue that there is a reasonable suspicion that you committed an offence or are in possession of an article used in the commission of an offence and, hence, will not be entitled to search you.

In terms of the South African Police Act 68 of 1995 the National or Provincial Commissioner may where it is reasonable in the circumstances in order to exercise a power or to perform a function of the service, authorise in writing a member under his command to set up roadblocks on any public road. Any member of the South African Police Service may, without a warrant, search any vehicle at such a roadblock. However, such a search without a warrant in a roadblock may only be conducted upon the written authorisation by the National or Provincial Commissioner of the South African Police Service.

It is of paramount importance that a police official exercise his or her discretion in conducting a search without a warrant carefully and does not infringe a person’s right to privacy as entrenched in section 14 of the Constitution. It is also important to note that a search and seizure by a police official must be reasonable and justifiable in terms of the Constitution.

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)

References:

  • The Criminal Procedure Act 57 of 1977
  • The South African Police Service Act 68 of 1995
  • The Constitution of the Republic of South Africa,1996
  • Geldenhuys T,The Criminal Procedure Handbook, Juta, August 2010

CHOOSING MEDIATION WHEN RESOLVING DISPUTES

If I suggest mediation to a party with whom I have a dispute, am I signalling that I lack confidence in my own case?

Mediation offers many advantages to parties for resolving a range of disputes, when compared to litigation and arbitration. The mediator must however be properly qualified. Lawyers, who understand mediation, have an important part to play in assisting their clients in the mediation process.

Many disputes which parties take to court are settled just before trial, but after the heavy legal costs of preparing for trial have been incurred.  However, a substantial majority of such disputes could have been resolved much earlier by mediation.

Mediation may be defined as “a confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute.”

Several aspects of this definition require comment. Mediation usually takes place through an agreement between the parties.  However, in some jurisdictions, court rules can prescribe court-annexed mediation, whereby the parties must first try mediation before they can refer the dispute to court. Unlike litigation or arbitration, where an outcome is imposed, a settlement achieved by mediation only binds the parties once they both agree to it. The mediator’s function is to assist the parties in reaching a settlement.  Also, unless the agreement to mediate provides otherwise, a party may withdraw from mediation at any stage, thereby terminating the process.

Advantages include a considerable saving in time and costs. Moreover, a settlement reached by the parties is typically not just based on their legal rights, but takes their current and future interests into account. Even commercial disputes involve more than legal rights and financial payments.  In the mediation process, broken relationships can be restored. Even if mediation does not fully resolve the dispute, the issues can be substantially narrowed, reducing the duration and costs of subsequent litigation or arbitration. Mediation also takes place “without prejudice”. Parties may freely participate in mediation without the danger of any concessions or admissions made in the attempt to settle being used against that party in subsequent litigation or arbitration. Because of these advantages, in countries like Ireland, a lawyer must certify that the benefits of mediation have been explained to the client before the client commences court proceedings.

Mediation can however have disadvantages. It is not realistically possible to reach a fair settlement before the parties and the mediator have adequate information regarding the dispute, which may be in documents possessed by only one of the parties. There is also the danger of a party agreeing to mediation as a delaying tactic or in an attempt to gauge the strength of the other party’s case, but with no intention of reaching a settlement.

A successful mediation requires the appointment of an appropriately qualified mediator, who should usually have some expertise regarding the subject-matter of the dispute. The mediator must be properly trained and accredited by a reputable mediation service provider and have experience as a mediator. Mediation is a highly flexible process. For example, a mediator may hold side-meetings with one of the parties in the absence of the other, in order to discuss the dispute.  The mediator must win the trust of the parties regarding his or her integrity and ability to conduct the process with competence and firmness. Even if the parties have legal representation, the mediator is primarily responsible for ensuring the fairness of the process.

Lawyers are trained to play an adversarial role to win a case in court for their client. However, a lawyer who understands mediation, can provide valuable assistance in a mediation and the mediator’s task is often easier where the parties have competent lawyers. Their role includes helping the client prepare for the mediation and to understand the process, advising the client during the negotiations and assisting with drafting a settlement agreement once a settlement has been reached.

Mediation has long been used in South Africa for labour disputes, but is increasingly used for family disputes involving children, commercial matters and even in disputes regarding medical negligence. Government’s commitment to mediation’s potential for creating access to justice is demonstrated by a recent amendment to the Magistrates’ Courts Rules enabling pilot schemes for court-annexed mediation in Gauteng and the North West. Based on experience in other countries, court-annexed mediation can substantially reduce congested court rolls. Also, the SA Law Reform Commission is currently working on two separate projects involving mediation – one on family dispute resolution and the second on possible legislation to promote mediation generally. Mediation clearly has an important role to play in promoting access to speedy and affordable justice in South Africa.

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)

References:

  • Brand, Steadman & Todd Commercial Mediation: a User’s Guide (2nd edition 2016)
  • Irish Mediation Act 27 of 2017, definition of “mediation” and section 14
  • Magistrates’ Courts Rules (as amended on 18 March 2014) chapter 2
  • Rycroft “Settlement and the Law” 2013 SALJ 187-209
  • South African Law Reform Commission: Project 94 Alternative Dispute Resolution; Project 100D Family Dispute Resolution.

THE POSSIBILITY OF TERMINATING A SURROGATE AGREEMENT

Partial surrogacy agreements allow for the surrogate mother to terminate the agreement within 60 days after giving birth to the child. This article looks at the different outcomes surrogacy agreements may have.  

I entered into a gestational surrogacy agreement with a married couple. I am currently 8 months pregnant and have formed a bond with the baby. Will I be able to terminate the surrogacy agreement after the birth of the baby? 

The Children’s Act 38 of 2005 (“the Act”) makes provision for a valid surrogacy agreement. In terms of the Act, a surrogate agreement is concluded when ‘the commissioning parent(s) are not able to give birth to a child and the condition is permanent or irreversible’.

Prior to the introduction of modern technology, specifically that of reproductive techniques, ‘traditional or partial surrogacy’ was the only method available to women who had no uterus or abnormalities of the uterus to have children. Recently, artificial insemination is used to inseminate surrogate hosts in order for the surrogate mother to carry the child. The Act governs the artificial fertilisation of a surrogate mother.

There are two types of surrogacy agreements, namely partial surrogacy and full (gestational) surrogacy. Partial surrogacy is the method used in the case where the husband’s gamete together with the gamete of the surrogate mother, is inseminated into the internal reproductive organs of the surrogate mother. As a result, the child is genetically linked to the father and surrogate mother. Full surrogacy refers to the instance where the gametes of both the commissioning parents are inseminated into the internal reproductive organs of the surrogate mother. In essence, the surrogate mother has no genetic link to the child.

A surrogate to a partial surrogacy agreement has 60 days during which she can terminate the agreement after the birth of the child. However, in terms of gestational surrogacy agreement, the parties to the agreement are not given the option to terminate the agreement. Additionally, in this case, the surrogate mother cannot refuse to relinquish the child to the commissioning parents.

The law of contract in South Africa revolves around two main principles, namely pacta sunt servanda (Latin for “agreements must be kept”) and the freedom to contract.  These principles imply that the obligations arising out of the agreement must be enforced. The reality of these two principles is that they do not exist in isolation, as they are subject to legislative and judicial decisions. Despite meeting the ordinary requirements of a contract, a surrogacy agreement is a unique contract as there are conflicting human rights and interests involved when a dispute arises out of such an agreement.

Forcing a surrogate mother who is not genetically linked to the child to hand the child over to the commissioning parents when she refuses to do so has been described as a sacrifice of a woman’s reproductive autonomy to the principle of pacta sunt servanda. 

The fundamental rights and values of the Constitution cannot be ignored in surrogacy agreements as Section 12(2)(a) – (b) of the Constitution clearly provides “everyone the right to bodily and psychological integrity, which includes the right to make decisions [regarding] reproduction [and] to security in and the control over the body”.

For a surrogacy agreement to be valid it must meet the requirements set in chapter 19 of the Act. When such a surrogacy agreement is invalid, the common law position will apply insofar as the woman who gave birth to the child would be regarded as the legal mother of the child whether or not such a child has a genetic relation with her.

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)

References:

  • Brisley v Drotsky 2002 (4) SA 1 (SCA).
  • Lewis SV ‘The Constitutional and Contractual Implications of the Application of Chapter 19 of the Children’s Act 38 of 2005’ available at uwc.ac.za/xmlui/bitstream/handle/11394/1828/Lewis_LLM_2011.pdf?sequence=1 (accessed 20 April 2017)
  • http://www.casebriefs.com/blog/law/health-law/health-law-keyed-to furrow/reproduction-and-birth/johnson-v-calvert/2/
  • Children’s Act 38 of 2005
  • Constitution of the Republic of South Africa, 1996.
  • Brinsden PR ‘Gestational Surrogacy’ 2003 (9) 5 European Society of Human Reproduction and Embryology 483 – 491

CAN TRUSTEES BAN YOUR PET IN A SECTIONAL TITLE SCHEME?

Problems around the ownership of pets are common amongst owners of sectional title properties, but while laws may be imposed by the trustees of the homeowners’ associations, the requirement for a reasonable approach is entrenched in the very laws which govern how a sectional title scheme should be managed.

Where the trustees have reasonably, after following due process and considering all relevant factors, withdrawn their consent to keep a pet, the owner concerned is then not entitled to continue keeping that pet in the scheme.

This is according to the Prescribed conduct rule 1 in Annexure 9 of the Sectional Titles Regulations which deals with the keeping of pets, including reptiles or birds.

It states:

  1. “An owner or occupier of a section shall not, without the consent in writing of the trustees, which approval may not unreasonably be withheld, keep any animal, reptile or bird in a section or on the common property.
  2. When granting such approval, the trustees may prescribe any reasonable condition.”

The phrases, “may not unreasonably” and “may prescribe any reasonable”, clearly seek to assist in the creation of harmony amongst a community living side by side in a sectional title development.

These regulations exist to protect the pet owner from unreasonably strict rules, and equally, they must confer on the other owners the right to a nuisance-free and peaceful environment. This means that both parties need to consider each other’s needs.

This consideration, in granting or refusing consent, will be central to inquiry: will it unreasonably interfere with other’s rights to use and enjoy their units; and which conditions would be appropriate in these circumstances to ensure that the risk of nuisance is reduced to a reasonable level?

For this reason, owners or occupiers can only keep pets in a section or on any part of the common property with the written consent of the trustees. However, the trustees cannot unreasonably withhold that permission. An absolute prohibition to keep a pet could be considered unreasonable and if consent to keep a pet is unreasonably withheld, the owner can take the matter to court.

The trustees must furthermore, base their decision on the facts and circumstances of the particular case. The decision to either grant or refuse consent should be recorded in the minutes of the trustee’s meeting, giving reasons that illustrate they have applied their minds to the particular set of facts.

An example of a court case which arose from a dispute regarding permission to keep a pet in a sectional title development was Body Corporate of The Laguna Ridge Scheme No 152/1987 v Dorse 1999 (2) SA 512 (D), in which it was held that the trustees are obliged to individually consider each request for permission to keep a pet, and to base their decision on the facts and circumstances of each particular case.

A further extract from this case pointed out that trustees are not entitled to refuse an application on the basis that they are afraid of creating a precedent. The trustees were, in this case, found to have been grossly unreasonable and have failed to apply their minds when they refused the Applicant permission to keep a small dog.

The question of the reasonableness of the actions of the trustees, in granting or withholding permission and setting conditions, will turn on the nature of the pet concerned and the circumstances of the scheme. In dealing with any application for permission to keep a pet, the trustees should consider what type of pet it is, and whether there are already other similar pets at the scheme.

It is unlikely that any action by the trustees to remove a ‘companion animal’ or ‘service animal’, such as a guide dog owned by a blind or partially sighted owner, would be held to be reasonable in the absence of a clear nuisance caused by the animal. The fact that a person sometimes forms an extremely strong emotional tie with their pet could also be an important consideration when the trustees decide whether or not to grant permission.

The trustees are not, however, powerless in situations where the conditions of permission to keep a pet are not being met. The trustees can withdraw permission if it is reasonable to do so. Examples include if the pet is causing a nuisance to other owners or occupiers (e.g. barking persistently), or the pet is considered dangerous to other owners or occupiers.

Where the trustees have reasonably, after following due process, withdrawn their consent to keep a pet, the owner concerned is then not entitled to continue keeping that pet in the scheme. However, the enforcement of this could be tricky for the trustees. The body corporate is not entitled to forcibly remove a pet from an owner’s possession. This can only be achieved by a court order, if – for example – there are too many dogs being kept in an inadequate space, the trustees can get the assistance from the local SPCA who can be contacted to come to the scheme to do an inspection in loco. If it is justified, they will implement the necessary legal steps to have the dogs removed.

Careful consideration and the application of the principles as set out in the rules of the scheme and the above-mentioned regulations will lead not only to peaceful co-existence, but also healthy growth in property values for the developments implementing such approach. A harmonious board of trustees results in a happy community, which in turn will ensure a good name for any development.

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)

References:

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