Would you like MyLawyer to contact you? Please complete the fields below.

Category: Law (page 1 of 3)

I’ve been pulled over by the police, what are my rights?

August 12, 2022 / / Comments Off on I’ve been pulled over by the police, what are my rights?

Being pulled over by the police is often an intimidating and frightening experience for many. In many situations, it’s an experience in which the police exploit motorists who do not know their rights and in other situations, it’s one in which drivers receive a go-to jail card for non-compliance with a police official’s instructions. It is therefore of utmost importance that all road users are aware of their rights and responsibilities when being pulled over by a police official.

According to the Arrive Alive guidelines, there is a distinction between a roadblock and a roadside check.

Roadblocks

A roadblock, as the name suggests, is when then the police or traffic officials cordon off a road in both directions, physically “blocking” the flow of traffic, so that the police can stop and inspect a vehicle for purposes of carrying out their constitutional mandate. Roadblocks are regulated in terms of the South African Police Service Act (hereinafter the SAPS Act). Section 13(8) of the SAPS Act provides that “The National or Provincial Commissioner may, where it is reasonable in the circumstances in order to exercise a power or perform a function referred to in section 215 of the Constitution, in writing authorise a member under his or her command, to set up a roadblock or roadblocks on any public road in a particular area or to set up a checkpoint or checkpoints at any public place in a particular area.” In summation, section 13(8) provides that:

  • written authorisation that specifies the date, approximate duration, place, and object of the roadblock must be issued;
  • proper signage, traffic cones, and barriers must be set up near the roadblock;
  • a search and seizure without a warrant is allowed in circumstances where it is reasonably necessary to achieve the object specified in the written authorisation; and
  • failure to stop at a roadblock is a criminal offence punishable by law.

It is important to note that the power to give written consent by the National or Provincial Police Commissioner is a power that has been delegated to relevant station commanders. A motorist being pulled over at a roadblock has the right to request a police officer to produce proof of the abovementioned written consent/authorisation and the police official will be obligated to produce such written authorisation. If the police official refuses to produce such authorisation, he/she must be reported to the station commander, provincial commissioner, or national commissioner.

Exceptions to the abovementioned roadblock rules

It is also important to note that there are certain circumstances that may warrant a deviation from the abovementioned rules. A roadblock may still be set up and a search and seizure may still be conducted without prior written authorisation if there are reasonable grounds to suspect that:

  • a person who has committed an offence in terms of Schedule 1 of the Criminal Procedure Act, has been involved in the commission thereof is, or is about to be, travelling in a motor vehicle in a particular area;
  • a person who is a witness to such an offence is absconding and is, or is about to be, travelling in a motor vehicle in a particular area and that a warrant for his or her arrest has been issued, or that such a warrant will be issued if the information at the disposal of the law enforcement official is brought to the attention of the magistrate, regional magistrate or judge referred to in that section, but that the delay in obtaining such warrant will defeat the object of the roadblock;
  • a person who is reasonably suspected of intending to commit an offence and who may be prevented from committing such an offence by the setting up of a roadblock is, or is about to be, travelling in a motor vehicle in a particular area;
  • a person who is a fugitive, after having escaped from lawful custody is, or is about to be, travelling in a motor vehicle in a particular area;
  • any object which is concerned in; may afford evidence of; or is intended to be used in the commission of an offence and which is, or is about to be, transported in a motor vehicle in a particular area and that a search warrant will be issued by a Court and that any delay in obtaining one will lead to the loss of the opportunity to act.

Roadside checks

A roadside check differs considerably form a roadblock in that it involves a traffic officer often stationed on the side of the road who then pulls drivers over at random, thus the flow of traffic is not completely blocked off or severely affected. Roadside checks are regulated in terms of the National Road Traffic Act (hereinafter referred to the NRTA).

The NRTA does not permit search and seizure without a warrant, but also does not forbid law enforcement officers from doing so.

At a roadside check, a traffic officer may do the following:

  • Demand to see any document in terms of road traffic and transport legislation.
  • Seize the document if it is fraudulent.
  • Search a person or property if they consent, or when there are reasonable grounds to do so.
  • Temporarily forbid a person to continue to drive or be in charge of a vehicle if they seem mentally or physically unfit to do so.
  • Require any person to furnish their name, address, and other particulars if the officer reasonably suspects the person of having committed an offence.
  • Ascertain the dimensions of the load on, or the mass, axle mass load, or axle unit mass load of, any vehicle, or the mass of any combination of vehicles, loaded or unloaded, and if necessary for the purpose of ascertaining such mass.

What motorists may do when being pulled over

As a motorist, you are entitled to demand to see an official’s certificate of appointment and you are also entitled to see the written authorisation for a roadblock. You are entitled to refuse to submit to a search at a roadside check unless there exists reasonable grounds for a search.

Conclusion

It is advisable to be compliant with officials at all reasonable times. Approach officers with respect and do not be arrogant with them. If you are of the opinion that your rights are being violated, do not put up a fight with the officers at the roadblock or roadside check; instead, report the officer to the station commander or provincial authorities or call your attorney.

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)

TALEM QUALEM: Take the victim as you find him

August 12, 2022 / / Comments Off on TALEM QUALEM: Take the victim as you find him

Legal causation can be distinguished from factual causation. Factual causation can be described as answering the question of whether the conduct of a wrongdoer caused the harm suffered by the plaintiff. The test for factual causation is found in the phrase “sine qua non” meaning “but for the conduct” the harm would not have been there.

In Lee v Minister of Correctional Services, the Court had to determine liability when the Plaintiff contracted TB while he was held at Pollsmoor Prison. The Court determined that the prison was negligent in its policies to minimise the transfer of the disease between inmates. Despite the Prison’s negligence, it could not be held that it was liable for the specific case of transfer of the virus as the exact origin and moment of transfer of the virus could not be determined.

In terms of Legal causation, the courts have held that the test for legal causation is more flexible, the extent of liability attributed to the wrongdoer must be established and the test of “reasonable foreseeability” can be applied to answer the question.

The talem qualem rule is used in what is sometimes referred to as “thin skull” cases. It arises when a plaintiff has some underlying weakness (physical, psychological, or financial) that causes a plaintiff more serious injury or loss because of the defendant’s conduct than what would have been the case if the underlying weakness was not there. The Defendant is usually ignorant of the fact that the Plaintiff has a defect or weakness until such defect causes more harm or injury.

In essence, the rule means that a “wrongdoer” must take the victim as he finds him. The question is whether the wrongdoer should be held liable for the harm that was aggravated by the existence of the weakness and could the consequences have been foreseen by the wrongdoer.

In Gibson v Berkowits the plaintiff sued the defendant for pain and suffering and loss after a procedure that caused her further treatments and ongoing medical treatment, as well as short-term pain and dysfunction. As a result of the pain and dysfunction, the Plaintiff experienced a loss of interest in her physical appearance which resulted in her being demoted at work, and she developed a severe depressive disorder. The Court found that her depressive condition was justifiably linked to the defendant’s negligence and that her predisposition to depression and ability to deal with trauma was a good example of a “thin skull” case. The Court held that psychological sequelae following physical injury are reasonably foreseeable and that the wrongdoer can be held liable for the psychological injury even though it is further removed from the negligent conduct.

Financial “thin skull” is illustrated in the case of Smit v Abrahams where the Plaintiff claimed the cost of the rental of a replacement vehicle after his vehicle was damaged and he could not afford the repairs. The Court investigated the rule and concluded that the fact that the plaintiff has an “egg-skull” is just one of the factors that must be considered when applying the flexible test for causality and that all the circumstances should be considered in terms of fairness, reasonableness, and justice before the damage is imputed to the wrongdoer.

  • Dutton I, The Practitioners Guide to Medical Malpractice in South African Law. 2015 (Cape town)
  • 2013(2) SA 144 CC
  • 1996 (4) SA 1029 (W)
  • 1994(4) SA 1 (A)

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)

Maintenance claims from life partner’s estate 

August 12, 2022 / / Comments Off on Maintenance claims from life partner’s estate 

“Should a person who has shared her home and life with her deceased partner, born and raised children with him, cared for him in health and in sickness, and dedicated her life to support the family they created together, be treated as a legal stranger to his estate, with no claim for subsistence because they were never married? Should marriage be the exclusive touchstone of a survivor’s legal entitlement as against the rights of legatees and heirs?”  SACHS J Volks N.O. v Robinson [2005] ZACC 2; 2009 JDR 1018 (CC)

In 2016, statistics revealed that approximately 3.2 million South Africans live together as co-habitants outside the boundaries of marriage. South African common law has also significantly been developed to accommodate the rights of people who choose to cohabit outside of marriage. In light of this, it seems that South African Courts have accepted that cohabitation outside of marriage is now widely practised and accepted across the globe. This is evidenced in the Judgment handed down by the Constitutional Court in Bwanya v The Master of the High Court Cape Town (The Bwanya Case). 

The Apex court was left with the task of deciding whether the definition of “Survivor” as defined in Section 1 of the Maintenance of Surviving Spouses Act was invalid and resultantly unconstitutional to the extent that it does not include the words “surviving partner of a permanent life partnership terminated by death”.

Ms Bwanya and the deceased Mr Anthony Ruch were involved in a relationship that consisted of all the characteristics of a marriage. In 2014, Ms Bwanya moved in with Mr Ruch on a permanent basis, they attended many social gatherings together, and Mr Ruch often introduced Ms Bwanya to his friends as his wife. In 2015, the couple even planned to conceive a child to solidify their relationship. In the same year, Mr Ruch also proposed to Ms Bwanya and they planned to get married in 2016, after the Labola negotiations. Mr Ruch, however, passed away in November 2016.

After Mr Ruch’s passing, Ms Bwanya lodged a claim for maintenance against Mr Ruch’s estate in terms of the Maintenance of Surviving Spouses Act. The basis for her claim was that the permanent life partnership shared between herself and Mr Ruch had most, if not all, the characteristics of a marriage. Her claim was rejected by the executor on the basis that she was not married to Mr Ruch. Ms Bwanya then challenged the constitutionality of sections 1 and 2 (1) of the Maintenance of Surviving Spouses Act.

Section 2(1) of the Maintenance of Surviving Spouses Act provides that a surviving spouse has the right to lodge a maintenance claim against his or her deceased spouse’s estate if they are unable to support themselves. Section 1 of the Act defines a “survivor” as the surviving spouse in a marriage dissolved by death. The Court in the Bwanya Case had to consider whether the exclusion was still merited.

The Apex Court took cognizance of the increasing popularity of permanent life partnerships and the creation of many families within this category. In the words of  J. Madlanga, “We should be wary not to so emphasise the importance of the institution of marriage as to devalue, if not denigrate, other institutions that are also foundational to the creation of other categories of families. And this must be so especially because the other categories of families are not only a reality that cannot be wished away, but are on the rise.”

The court found that all categories of families deserve legal protection, including permanent life partnerships. The court also emphasised that permanent life partnerships are intimate relationships that are meant to last until the death of one or both partners and that it is a relationship that is often characterised by a reciprocal duty of support. In light of the above, the Constitutional Court ruled that the exclusion of permanent life partnerships in the definition of “survivor” as found in Section 1 of The Maintenance of Surviving Spouses Act was constitutionally invalid. In the same breath, the Court also found that Section 2(1) of the Maintenance of Surviving Spouses Act was constitutionally invalid to the extent that it only confers a maintenance benefit on a surviving spouse.

The order in the Bwanya Case brings about a significant change in South African Law. Prior to the judgment, a surviving partner of a permanent life partnership could not claim maintenance from their deceased partner’s estate. Now, both heterosexual and same sex life partners can now claim maintenance benefits from their deceased life partner’s estate. The Legislature has now been given 18 months to take steps to cure the constitutional defects in the Maintenance of Surviving Spouses Act.

Our family law experts are more than capable to provide sound legal advice to anyone seeking further advice on maintenance claims.

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)

Convictions under the doctrine of common purpose

July 11, 2022 / / Comments Off on Convictions under the doctrine of common purpose

“If I was present at the scene where my peers committed a crime and I had knowledge of the crime being committed, is that sufficient evidence for a Court to convict me in terms of the doctrine of common purpose even if this is not alleged in the charge sheet or indictment?”

The doctrine of common purpose is defined as an agreement to commit a crime or active association in a joint unlawful enterprise by two or more persons, where each person is responsible for the criminal conduct of the other if it falls within their common design. This may generate certain questions and uncertainties with regards to the accused’s rights and other legislative pieces, such as the Criminal Procedure Act, 51 of 1977 (hereafter the “CPA”).

When searching for your rights as a South African citizen, one must always start at the beginning being the Constitution of the Republic of South Africa, 1996 (hereafter “the Constitution”) which is seen as the primary source of every South African’s rights. Section 32(1)(a) and (b) of the Constitution deals with access to information and holds that everyone has the right to access any information held by the state as well as any information held by another person which is required for the protection or the exercise of any rights. Furthermore, section 35(3)(a) of the Constitution deals with persons who are arrested, detained and accused, and states that every accused person has the right to be informed of the charge with appropriate detail to answer it. The latter, therefore, ensures a person the right to a fair trial. The golden rule, as encompassed in the case of S v Pillay, is that clear and unmistakable language needs to be used in the indictment or charge sheet to inform the accused of the charge he or she needs to meet.

But what if the charge sheet or indictment does not disclose any offence or material element of the crime at all?

Before 1959, if charge sheets or indictments omitted any material element of a crime or did not disclose an offence, even if evidence proved the omitted element during a trial, the accused could not be found guilty. However, this position changed with the CPA, as section 88 states that even if the charge sheet or indictment does not disclose an essential element of the relevant offence, the defect shall be cured upon evidence presented at trial, which proves the element that should have been averred.

Another option to the prosecutor is to amend the charge sheet or indictment. This can be done with section 86 of the CPA, which allows for amendment in the following scenarios:

  • Where a material element of the offence is not averred;
  • If a material difference arose between the allegation in the charge sheet and the evidence that was led;
  • Where words have been omitted, errors have been made, or words unnecessarily inserted.

Thus, sections 86 and 88 combined create the effect that a charge sheet may be amended any time before judgement is made, save that it is not prejudicial to the accused.

The question is whether sections 86 and 88 of the CPA suffice to convict an accused on the doctrine of common purpose if this offence is not alleged in the charge sheet or indictment. The case of Msimango v The State (698/2017) [2017] ZASCA 181 gives clarity on the issue.

In this case, the Appellant together with another accused committed certain crimes. The Appellant was convicted of the crimes on the following counts:

  • Count 1: robbery with aggravating circumstances;
  • Count 2: attempted murder, where he shot a victim in the mouth; and
  • Count 3: attempted murder, where the other accused assaulted a victim with a meat cleaver.

With regard to count 3, the regional magistrate convicted the Appellant on the doctrine of common purpose, even though this was not averred in the charge sheet, nor did this form part of the State’s case against the Appellant.

The Supreme Court of Appeal (hereafter “SCA”) considered section 35(3)(a) of the Constitution together with other case law and held that a person can only be convicted on a charge based on the doctrine of common purpose if it is averred in the charge sheet, if the charge sheet is amended to portray the charge in terms of section 86 of the CPA, or if all material elements are proved during trial.

References: 

  • S v Thebus (2003 (2) SACR 319 (CC)) para 18.
  • Msimango v The State (698/2017) [2017] ZASCA para 14.

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)

Transfer duty. No surprises. Part I

July 11, 2022 / / Comments Off on Transfer duty. No surprises. Part I

Transfer duty is a duty levied for the benefit of the National Revenue Fund on the value of any property acquired by any person by way of a transaction or in any other way, or on the amount by which the value of any property is enhanced by the renunciation of an interest or restriction upon the use or a disposal of that property. The value of the duty is determined by the Minister of Finance and is based on a sliding scale relative to the value of the property.

Property is defined in the Act to mean land in the Republic of South Africa and any fixtures thereon. It includes any real right to land, for example: a right of usufruct; any right to minerals and a lease of such right; a share or member interest in a residential property company; a contingent right to any residential property held by a discretionary trust. The acquisition which is a consequence of an agreement for consideration with respect to property held by that trust accompanied by any substitution of variation of the trust’s loan creditors or a substitution or addition of any mortgage bond or accompanied by the change of any trustees of that trust, and finally a share in a share block company.

Residential property is in turn defined as any dwelling-house, holiday home, apartment, or similar abode, as well as improved or unimproved land zoned for residential use in the RSA, including any real right thereto. Excluded from this definition is an apartment complex, hotel, guesthouse, or similar structure consisting of five or more units held by a person and used for renting to 5 or more persons, who are not connected persons, as defined in the Income Tax Act and finally, the fixed property of a vendor forming part of an enterprise as defined in the Value Added Tax Act.

A residential property company is a company that holds property that is residential property, or a contemplated contingent right held by a discretionary trust. In turn, it is qualified that the fair value of the property or contingent right must comprise more than 50% of the aggregate fair market value of all the assets of the company or trust.

Finally, a transaction in respect of land is defined as an agreement whereby one party agrees to sell, grant, waive, donate, exchange, lease, or otherwise dispose of the land to another person. Similarly, in relation to shares, an agreement whereby one party agrees to sell, waive, grant, donate, cede, exchange, issue, buy back, convert, cancel, or otherwise dispose of the shares to another party will constitute a transaction. In respect of a discretionary trust, the substitution or addition of any beneficiaries with a contingent right to any property of the trust, which constitutes residential property will also constitute a transaction or transfer.

It is therefore clear that the sale of shares constitutes a transaction. The company in question is a residential property company whose sole asset is the house, and therefore transfer duty will be payable and will be paid on the fair market value of the property/land.

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 employer’s responsibility in workplace harassment

July 11, 2022 / / Comments Off on The employer’s responsibility in workplace harassment

This article will briefly discuss the common law option available to employees who are exposed to a form of discrimination in the workplace, specifically sexual harassment and the employer’s failure to adequately address the issue.  The focus of the discussion will be on a recent High Court case, Phil-Ann Erasmus v Dr Beyers Naude Local Municipality and Xola Vincent Jack.

The Plaintiff, a former Municipality employee, was sexually assaulted by her immediate supervisor. The work environment became unbearable for the Plaintiff and she could no longer cope due to Post Traumatic Stress Disorder she experienced. Accordingly, the Plaintiff resigned from her position at the Municipality.

According to section 186(1)(e), read with section 191 of the Labour Relations Act, 66 of 1995 (“LRA”), the conventional remedy afforded to an employee in a similar position would be a constructive dismissal claim that can be lodged at the CCMA. The essential feature of a constructive dismissal is that the employee terminates the employment relationship due to the intolerable nature thereof. The decision of the employee is not entirely voluntarily as it is caused by the employer’s actions and/or omissions. Even though the employee makes the decision to resign, it is still seen as a form of dismissal.

Section 6(3) of the Employment Equity Act, 55 of 1998 (“EEA”) provides that sexual harassment is seen as a form of discrimination and, therefore, an employee would also be entitled to the remedies afforded by the Act, which includes a claim for damages and compensation.

Notwithstanding the aforementioned conventional remedies, the Plaintiff pursued a delictual claim sourced in common law.

The plaintiff’s claim for damages consisted of past and future medical expenses, past and future loss of income, general damages, and contumelia in the sum of R4,028,416.80. The issues of liability and quantum were separated, and the court was first asked to determine whether the employer and the perpetrator are liable, jointly, and severally, to pay the damages.

In the first judgment, the court found that the employer and the perpetrator were liable to pay the Plaintiff such damages as she may be able to prove she suffered in consequence of the sexual harassment.

In determining the quantum, the court looked at the facts of the matter, specifically the impact of sexual harassment in the workplace and the employer’s decisions after becoming aware of the offence.  The court criticised the employer for the inadequate manner in which it handled the matter. The employer, on contentious legal advice and without any satisfactory reason, took a decision not to suspend the perpetrator. Furthermore, the employer elected to instruct the perpetrator to rather remain at their Klipplaat office and not have any contact with the plaintiff, who was based in the Jansenville office. In addition to failing to ensure that the perpetrator did not have contact with the plaintiff, the employer also failed to prioritise disciplinary proceedings against the perpetrator. A hearing was only held more than half a year after the harassment. The enquiry chairperson recommended a sanction of two weeks’ unpaid suspension.

The employer raised legal arguments in terms of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (“COIDA”) to avoid liability, which the court rejected.

The court concluded that the employer had failed in its legal duty to protect the Plaintiff from further trauma occasioned by any interaction with the perpetrator pending the disciplinary enquiry. The court, referring to Ntsabo v Real Security CC 2003 24 ILJ 2341 (LC), where it was held that the employer had effectively supported the harasser by not sanctioning him, found that the stance adopted by the employer demonstrated a disturbing lack of appreciation of its legal obligation to have provided the Plaintiff with a safe working environment. As a result, the court found the employer and the perpetrator to be jointly and severally liable, the one paying the other to be absolved, to pay the damages to the Plaintiff in the amount of R4 million.

What is also noteworthy to mention is that subsequent to the aforesaid judgment, the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace was gazetted on 18 March 2022, which serves as a guideline for employers when dealing with harassment in the workplace.

As outlined in the aforementioned judgment, employees who are subject to discrimination in the workplace, which are not adequately dealt with by the employers, will be eligible for not only the conventional claims contained in the LRA and EEA but also for delict. The employee will thus be able to decide on which grounds to pursue their claim.

Employers have a duty to all employees to show respect to victims of discrimination that occurs in the workplace and to provide a safe working environment. The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace has been enacted to provide guidance to employers to ensure that these cases are dealt with adequately. A delictual claim will also be available to employees who are exposed to other forms of discrimination in the workplace, as listed in the EEA.

Reference List: 

  • Phil-Ann Erasmus v Dr Beyers Naude Local Municipality and Xola Vincent Jack (2021) 42 ILJ 1545 (ECG)/ (2021) 32 SALLR 6 (ECG) REPORTED CASE.
  • PE v Ikwezi Municipality and Another 2016 (5) SA 114 (ECG).
  • Ntsabo v Real Security CC 2003 24 ILJ 2341 (LC).
  • Labour Relations Act, 66 of 1995.
  • Employment Equity Act, 55 of 1998.
  • South African Labour Law Reports 2021 37th Annual Seminar-B van Zyl.

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)

Private prosecution: Is justice attainable even if the state fails us?

July 8, 2022 / / Comments Off on Private prosecution: Is justice attainable even if the state fails us?

Members of the public, and specifically victims or those close to them, are often disheartened by the National Prosecuting Authority (“NPA”) and its decisions not to prosecute persons who have allegedly committed a criminal offence. The Criminal Procedure Act (“the CPA”), however, contains two sections that can be relied on to bypass the NPA, by privately prosecuting persons who have allegedly committed criminal acts. These sections have recently been shoved in the spotlight thanks to the successful private prosecution of Faizel Hendricks, who was found guilty in January 2022 of murdering his partner Rochelle Naidoo in 2005. This is the first time that an accused has been convicted after being privately prosecuted.

The first section that details the terms in which a person can be privately prosecuted is found in section 7 of the CPA, where it states that an individual may institute proceedings if a certificate has been issued by the Director of Public Prosecutions (“DPP”) confirming that the NPA does not intend to prosecute the alleged criminal. This certificate is also known as a certificate nolle prosequi. Section 7(1) of the CPA states the following:

“(1) In any case in which a Director of Public Prosecutions declines to prosecute for an alleged offence:

(a) any private person who proves some substantial and peculiar interest in the issue of the trial arising out of some injury which he individually suffered in consequence of the commission of the said offence;

(b) a husband, if the said offence was committed in respect of his wife;

(c) the wife or child or, if there is no wife or child, any of the next of kin of any deceased person, if the death of such person is alleged to have been caused by the said offence; or

(d) the legal guardian or curator of a minor or lunatic, if the said offence was committed against his ward,

May… either in person or by a legal representative, institute and conduct a prosecution in respect of such offence in any court competent to try that offence.”

The second is section 8 of the CPA, which makes provision for a private prosecution to be instated under a statutory right. Section 8(1) reads as follows:

“(1) Anybody upon which or person upon whom the right to prosecute in respect of any offence is expressly conferred by law, may institute and conduct a prosecution in respect of such offence in any court competent to try that offence.”

Section 8(2) further states that private prosecution under this section may only be instituted after consultation with the Attorney General, and only if the Attorney General has withdrawn his/her right to prosecute in respect of any specified offence or specified category of offences. Private prosecutions under section 8 can be done by natural or juristic persons and do not require a certificate as referred to in section 7 of the CPA.

Hendricks was prosecuted in terms of section 7 of the CPA, when Rochelle Naidoo’s parents instituted action after the Cape Town District Court, during its inquest in 2008, found that it could not determine who held the firearm at the fatal moment when Rochelle Naidoo was shot (Hendricks averred that she committed suicide). The DPP declined to prosecute and Rochelle’s parents subsequently instituted proceedings in the Malmesbury Regional Court, where Hendricks was found guilty of murder in July 2014 and sentenced to 15 years imprisonment. Hendricks appealed the verdict but was unsuccessful in his appeal as the Western Cape High Court confirmed the conviction and sentence in January 2022.

It is clear from sections 7 and 8 of the CPA, as well as Mr Hendricks’ conviction, that justice can be obtained by victims and/or their families in circumstances where the NPA decides not to prosecute a person who has allegedly committed criminal acts. However, this justice is neither swift nor affordable when one considers the formalities that must be complied with and the accused’s right to appeal, which can cause significant delays for the persons instituting the private prosecution as well as significant legal costs (which include expert witnesses’ fees, such as pathologists and ballistic experts, which would normally be paid for by the State). The private prosecution of Faizel Hendricks confirms this as it took the Naidoo family 10 years to finalise this matter to attain justice. Yusuf Asmall, Rochelle’s father, confirmed the high financial and personal costs involved in this matter when he stated that “[i]t’s been a painful journey. It was a costly affair”.

In conclusion, the CPA does provide possible avenues for victims and their families to attain justice in circumstances where the NPA decides not to prosecute. However, these avenues are only available to those who have significant resources and time, and are thus only available to a select group of South Africans.

Reference List:

  • https://www.iol.co.za/capeargus/news/family-finds-closure-after-17-year-battle-to-get-justice-for-their-slain-daughter-32cc2d3b-0b92-4e3d-b108-ab6ae2c32c79
  • Criminal Procedure Act

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)

Where does the law stand on bullying?

April 26, 2022 / / Comments Off on Where does the law stand on bullying?

In recent years, reports of bullying incidents have been on the increase in schools and have reached a point where some have tragically resulted in loss of life, causing a growing concern amongst parents. Bullying can take many forms, some more severe than others, and affects victims in various ways. Sadly, due to technological advancements, many of these incidents are captured on video and shared on all social media platforms. This often leads to the issue exceeding beyond the school environment into the wider community, which can have repercussions for perpetrators, victims, parents, and educators. The complexity, magnitude, and severity of the forms of bullying that we are now witnessing have raised many legal questions. But what does the law in South Africa say regarding this issue?

The laws and legal principles applied to children take into account their age, their level of maturity, and their ability to fully appreciate and understand the seriousness of the consequences of their actions. A distinction is made between the following:

  • Children under the age of 7 lack the legal capacity, meaning they can’t be held legally liable for their actions.
  • A child who is 7 years and older lack the legal capacity; however, this presumption can be rebutted, resulting in legal accountability.
  • A minor between the ages of 15 and 18 may be held legally accountable.

Children share the same human rights enlisted in the Constitution of the Republic of South Africa as adults, and in addition to these, enjoy additional rights explicated in Section 28 of the Children’s Act (2005), which allows a child or a guardian to bring a case of bullying to court. It safeguards and protects children’s rights and, for this reason, does not aim to punish the bully, but rather rehabilitate him/her through appropriate programmes and processes.

Regarding the regulation of incidents in schools, the South African Schools Act (1996) requires schools to adopt a code of conduct or a set of rules around learner behaviour and enforce appropriate disciplinary measures where necessary. According to the Act, it is the school’s responsibility to take appropriate action and if it fails to do so, the school can be held liable for damage, injury, or loss suffered by a learner.

Furthermore, the Child Justice Act (2008) recognises the criminal element of bullying and provides a separate criminal justice system for children – with a focus on restorative justice (rehabilitation). If there is proof of criminal intent, a child may be held criminally liable from as young as ten years old.

The Protection from Harassment Act 17 of 2011 brought some balance of power by granting a victim permission to apply for a protection order against their bully.

The provisions contained in these statutes serve to offer protection to children in cases of bullying, as each child has a responsibility to respect and promote the rights afforded to them and to not deprive anyone else from enjoying them. Failure to observe these rights attracts legal accountability.

In terms of criminal law, depending on the nature and extent of the act of bullying, a perpetrator may face charges of assault with or without the intent to inflict serious bodily harm, intimidation, crimen injuria, etc. In terms of civil law, claims for damages may arise against the school and/or the Department of Education and/or the bully. The facts of each case determine the route it will take legally.

In the more extreme cases, where a minor dies as a result of the bullying act, the deceased’s family may still claim for emotional shock, trauma, grief and/or constitutional damages (if circumstances permit).

To prevent bullying from escalating to a criminal level in schools, educators and parents must take proactive measures, such as implementing an anti-bullying policy. Every learner should recognise the harm bullying can have on his/her peers, as well as understand the consequences that come with this behaviour. Educators and parents must cultivate an environment of mutual respect, non-judgement, and active listening to model the kind of behaviour children must emulate.

Reference List:

  • The Constitution of the Republic of South Africa, 1996
  • The Children’s Act, 2005
  • The South African Schools Act, 1996
  • https://www.golegal.co.za/protect-child-bullied/
  • https://www.adams.africa/litigation/bullying-in-schools-what-does-the-law-say/

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)

Keeping things fair in the business race

April 26, 2022 / / Comments Off on Keeping things fair in the business race

The purpose of the Competition Act 89 of 1998(“the Act”) is to promote the efficiency, adaptability, and development of the economy, and to ensure that small and medium-sized enterprises have equitable opportunities. Certain practices, including restrictive horizontal practices, restrictive vertical practices, and abuse of dominance, are prohibited in terms of the Competition Act.

The Competition Act 89 of 1998 (“the Act”) was enacted to promote and maintain competition in South Africa, to ensure that small and medium-sized enterprises have an equitable opportunity to participate in the economy and to promote a greater spread of ownership, particularly amongst historically disadvantaged persons. This article will outline some of the prohibited practices/agreements in terms of the Act.

RESTRICTIVE HORIZONTAL PRACTICES

Section 4(1) (b) of the Act prohibits any agreement, concerted practice, or decision that involves restrictive horizontal practices. These are agreements that would have the effect of substantially preventing or lessening competition in the market, by:

  • Directly or indirectly fixing a purchase or selling price (or any other trading condition);
  • Dividing the markets by allocating customers, suppliers, territories or specific types of goods and services, or
  • By collusive tenders.

The Act provides that parties who conclude such an agreement must prove that there is a technological efficiency or any other gain that favours competition that results from the agreement.

RESTRICTIVE VERTICAL PRACTICES

Section 5 of the Act prohibits any other agreement if it is between parties in a vertical relationship (between a firm and its suppliers and/or customers), which has the effect of substantially preventing or lessening competition in a market. These agreements are prohibited unless a party to the agreement can prove that the technological efficiency or other pro-competitive gains resulting from it outweighs the negative impact on competition. An example of a vertically restrictive act would be the exclusive supply agreement between a supplier of key inputs and selected customers, as well as the practice of suppliers or producers prescribing minimum resale prices to its customers.

ABUSE OF DOMINANCE

The Act further prohibits abuse of dominance, which refers to anti-competitive practices perpetrated by dominant firms and may include the following:

  • Excessive pricing of goods or services to the detriment of customers;
  • Denying competitors access to an essential facility;
  • Price discrimination (such as unjustifiably charging customers different prices for the same goods or services; and
  • Exclusionary acts (such as refusing to supply scarce goods to a competitor, inducing suppliers not to deal with a competitor and buying up a scarce input required by competitors).

EXEMPTIONS

The prohibition of restrictive practices and the abuse of dominant positions may affect the manner in which business is conducted, negatively affecting economic development. The Act gives the Competition Commission the power to grant exemption from such prohibition on the application of an interested party. An exemption may be granted only if the agreement or practice is required to attain a certain objective, including any of the following:

  • Maintenance of promotion of exports;
  • Assistance of small firms controlled by historically disadvantaged persons to become competitive;
  • The change in productive capacity to stop a decline in an industry or promote economic stability of a designated industry; and
  • Exercise of intellectual property rights.

This Act makes it an offence for any person who is a director of a firm or has management authority to cause a firm to enter into agreements or practices that are competitively restrictive or perpetrate abuse of dominance. Parties found to have contravened provisions of this Act are subject to an administrative penalty.

REFERENCE

  • VISSER, An Overview of the Competition Act (Part 2) volume 2.

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)

Can I claim interim relief pending my divorce suit?

March 22, 2022 / / Comments Off on Can I claim interim relief pending my divorce suit?

Divorce can often be an extremely stressful and exasperating process, and even more so when one spouse enjoys complete financial stability and the other has to endure a dire financial position. Such cases clearly create a huge imbalance amongst parties to the divorce suit. South African law, however, provides relief for a party who may be prejudiced by this imbalance.

A spouse who plans on filing for a divorce or is currently in the process of getting divorced, may bring an application to the High Court for interim relief in terms of Rule 43 (or in terms of Rule 58 if the application is brought in the Magistrate’s Court) for an order granting any of the following:

  • Interim Maintenance (including child and spousal maintenance);
  • interim custody of the children and/or interim access to the children;
  • and/or a contribution towards the legal costs of the pending divorce proceedings.

The purpose of a rule 43 application 

A rule 43 application provides a relatively speedy and inexpensive remedy when maintenance is sought while the divorce proceedings are pending. Divorce proceedings can often be an extremely lengthy process and can, in some instances, take years to finalise. It is for this reason that a rule 43 application is available to a party seeking interim relief.

The procedure to obtain interim relief in terms of rule 43 

An application for interim maintenance can be served on the other spouse prior to the issuing or service of a divorce summons, simultaneously with the divorce summons, or after a notice of intention to defend is received.

The spouse seeking interim relief (the applicant) will have to file what is known as a ‘founding affidavit’ with the High Court. The founding affidavit must set out all the relevant facts related to the divorce and why the applicant is of the opinion that they are entitled to interim maintenance/relief from the other spouse (the respondent).

The applicant will need certain prescribed documentation to file an application for interim maintenance, including:

  • A notice in terms of rule 43, requesting the respondent to file an opposing affidavit within 10 days from receipt of the application;
  • an affidavit accompanying the rule 43 notice;
  • and an annexure setting out the applicant’s assets and expenses.

It should be kept in mind that a rule 43 order is an interim order and thus cannot be appealed. The rule 43 order remains in force until the parties to divorce proceedings settle or until the divorce is finalized. It is, therefore, of extreme importance that all relevant documents needed for the application are in order and sound legal advice is sought and obtained before bringing the application before a court. We have a number of professionals in our family law department who can assist you with your application.

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)

Older posts

© 2024

Theme by Anders Noren — Up ↑