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

Month: October 2020

Widening the ambit of the law by re-defining “harassment”

October 14, 2020 / / Comments Off on Widening the ambit of the law by re-defining “harassment”

The Domestic Violence Act 116 of 1998 (“the Act”) was enacted to recognise that domestic violence is a serious social evil. Because there is a high incidence rate of domestic violence within South Africa and victims of domestic violence are among the most vulnerable members of society, the Act seeks to afford the maximum protection from domestic abuse that the law can provide.

The Domestic Violence Amendment Bill (“the Bill”) was introduced to Parliament in September 2020.

The Bill amends and inserts certain definitions, and further provides for the manner in which acts of domestic violence and matters related thereto must be dealt with by certain functionaries, persons and Governmental departments.

The definition of “harassment” in the Act and in the Bill differ significantly.

The definition of “harassment” in the Act is as follows:

‘“harassment” means engaging in a pattern of conduct that induces the fear of harm to a complainant including—

  • repeatedly watching, or loitering outside of or near the building or place where the complainant resides, works, carries on business, studies or happens to be;
  • repeatedly making telephone calls or inducing another person to make telephone calls to the complainant, whether or not conversation ensues;
  • repeatedly sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant’.

In terms of the Bill, “harassment” now means—

‘directly or indirectly engaging in conduct that the respondent knows or ought to know—

  • causes harm or inspires the reasonable belief that harm may be caused to [a] the complainant or a related person by unreasonably—(i) following, watching, pursuing or accosting the complainant or a related person, or loitering outside of or near the building or place where the complainant or a related person resides, works, carries on business, studies or happens to be;
    (ii) engaging in verbal, electronic or any other communication aimed at the complainant or a related person, by any means whether or not conversation ensues; or
    (iii) sending, delivering or causing the delivery of letters, packages, facsimiles, electronic mail, texts, photos, videos, recordings or other objects to the complainant or a related person, or leaving them where they may be found by, given to, or brought to the attention of, the complainant or a related person; or
  • amounts to sexual harassment of the complainant or a related person’.

The most prominent changes in the definition of “harassment” are as set out below.

  1. Harassment now includes both direct and indirect conduct. This assists a court that is grappling with a harassment application where the conduct of the perpetrator does not technically fall within the ambit of direct harassment.
  2. In terms of the Bill, the definition of harassment is now extended to include conduct that the perpetrator knows or ought to know causes harm or inspires the reasonable belief that harm may be caused. Therefore, a perpetrator can no longer hide behind the guise that he or she did not know that the conduct causes harm or inspires the reasonable belief that harm may be caused.
  3. The word ‘repeatedly’ is removed in the Bill. This means that a perpetrator need not repeatedly engage in conduct that falls within the definition of harassment. This change can, therefore, be interpreted to mean that a single act could fall within the ambit of ‘harassment’ in terms of the Bill.
  4. The Bill includes as ‘harassment’ conduct that causes harm or inspires the reasonable belief that harm may be caused to the victim or a related person. Therefore, if a perpetrator harasses someone related to the victim, this will also constitute harassment of the victim.

To summarise, the Bill introduces several changes to the definition of ‘harassment’ in the Act. These changes are positive, as they widen the ambit of ‘harassment’ to cover more situations where conduct could amount to harassment, thereby allowing a court to adequately deal with a perpetrator.

Reference List:

  • The Domestic Violence Act 116 of 1998.
  • The Domestic Violence Amendment Bill.

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 adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

It’s Time to Ramp Up the Way You Protect Personal Information

October 14, 2020 / / Comments Off on It’s Time to Ramp Up the Way You Protect Personal Information


Data is everywhere. In fact, because of the nifty autosave setting on the word processer used for writing this sentence, new information is being added to the Internet as it is typed. Every day we are engaging in hundreds or even thousands of little data exchanges. When we take stock of these minute transactions, it’s alarming how much of the information being collected, sent, and stored on the internet is personal information.

Whenever you give out personal information (whether in written, oral, digital, or any other form), you’re essentially giving over information about yourself in the hope that whoever is on the receiving end will use your information responsibly, ethically, and lawfully. Without protection for the personal information we use, we would put ourselves at great risk.

While data protection policies had been in place all over the world for a while, South Africa came a little late to the proverbial party. Having passed the Protection of Personal Information Act (POPIA) in November 2013, it has taken almost seven years for it to be put into effect. On the 1st of July 2020, the Act was finally put into effect with a year’s grace period for data-collectors to become compliant.

This means that the information you process regarding data subjects (people whose personal data is being collected and processed) will soon be subject to very strict data protection regulations in order to uphold privacy standards mandated by the Constitution.

POPIA outlines eight general conditions under which personal information may be processed and used as of the 1st of July 2020. These conditions are as follows:

  1. Accountability
    For private information to be adequately protected, there must be someone who takes responsibility for the handling thereof. For this reason, POPIA requires someone to be appointed as responsible party for the collection and processing of information of data subjects. The appointed party must ensure that the conditions outlined in POPIA are complied with as it relates to the purpose and means of collecting, processing, storing, and disposing of personal data.
  2. Processing Limitation
    This condition requires personal information to be processed lawfully and without infringing on the privacy of the data subject. The data may only be processed for the purpose for which it was required. There are also a wide range of other limitations on the protection of data that relate to consent, withdrawals of, and objections to the processing of the data subject’s personal information. Further limitations are given regarding how, and from whom, the data may be collected.
  3. Purpose Specific
    According to POPIA, compliance requires that all data be collected for a specific purpose that is clearly defined and lawful. Not only should the purpose for data collection be specific, the data subject must be made aware of what this purpose is prior to the processing of their data. Additionally, data records may only be kept as long as it is used for achieving its specific purpose, after which the data must be destroyed.
  4. Further Processing Limitation
    Any further processing of the personal information of the data subject must be similar to, or compatible with, the original purpose for which it was collected.
  5. Information Quality
    The party responsible for the protection of personal information must ensure, by all reasonable means, that the data is complete, accurate, not misleading, and up to date. Any changes must be related to the original purpose for which the data was collected.
  6. Openness
    All processing operations must be documented and maintained by the party responsible for the processing of personal information. The data subject also reserves the right to be notified of any information collected as well as the particulars of the information and those collecting and keeping it.
  7. Security Safeguards
    Personal information must be kept safe from damage or loss as well as unlawful access. The responsible party must inform the data subject of all reasonably foreseeable risks to the collection of information, and must take measures to safeguard the information and maintain and update these measures as is necessary. Further measures must be put in place when the personal information is used by a third-party entity. Furthermore, the data subject must be made aware of any possible security breaches in which their information may have become compromised.
  8. Data Subject Participation
    The data subject reserves the right to request access to any information collected about them and have the right to know who has access to the information. They may also request that the responsible party correct or dispose of information under their control that is inaccurate, irrelevant, excessive, out of date, incomplete, misleading, obtained unlawfully, or that no longer serves its intended purpose. The data subject must be notified of any changes made.

Please note, however, that these conditions outlined above pertain to the most general cases of data collection, processing, storing and disposal. There are a multitude of exceptions to the conditions outlined above that may be relevant to your situation and purpose for processing personal information. So, in order to ensure compliance, it is highly advisable to speak to your attorney regarding the responsible and lawful processing of personal information.

The onus now falls on you to keep your data subjects’ information safe by becoming compliant with POPIA and avoid unnecessary trouble due to the mismanagement of personal information.

Reference list:

This article is a general information sheet and should not be used or relied upon as 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 advisor for specific and detailed advice.  Errors and omissions excepted (E&OE).

Mediate rather than litigate

October 14, 2020 / / Comments Off on Mediate rather than litigate

Wikipedia’s definition of mediation is “a structured, interactive process where an impartial third-party assists disputing parties in resolving conflict through the use of specialised communication and negotiation techniques”. Mediation, when utilised in law, is a form of alternative dispute resolution. Parties that are involved in a dispute may choose the mediation process to resolve the issues between them, either before commencing with legal action or just after legal action has been instituted but before Judgment has been handed down. It is a voluntary process that must be agreed upon by both parties.

The objection of mediation is to obtain a resolution that is mutually agreeable to both parties. The appointed mediator must remain impartial throughout the mediation process and cannot impose a decision on the parties. They cannot judge or arbitrate, but rather assist the parties by advising them, which may, ultimately, result in the parties achieving a settlement agreement. It does happen that mediation does not resolve the dispute, but as a consequence of the discussions, the parties can identify and limit the key issues in dispute, discuss options to resolve the disputes and investigate areas of compromise.

On the 9th of March 2020, South African courts entered in the new era of the civil justice system. An amendment to the Uniform Rules of the High Court, Rule 41A, was introduced, requiring parties to consider mediation before litigation in the High Court. The Court may also recommend mediation to the parties if it deems it appropriate in a specific case. The High Court is, at times, intolerant of legal practitioners, who ignore the potential benefits of using alternative dispute resolution to resolve, define, limit, or dispose of disputes that are pending before the courts. It is now mandatory that Form 27 is to be attached to new matters being instituted in the High Court.

On the 1st of December 2014, the Rules of Voluntary Court-Annexed Mediation (Chapter 2 of the Magistrates’ Courts Rules) were approved by the Minister and came into operation. The objective of this chapter is to give effect to Section 34 of the Constitution of the Republic of South Africa 1996: “everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum”.

The question is, why would parties mediate to achieve a settlement rather than have a court determine a winner and loser? The following are just a few reasons.

  1. Faster and cheaper: The mediation process can resolve the dispute more swiftly than litigation and without incurring exorbitant legal fees.
  2. Flexibility:  The mediation process allows the parties involved to tailor the proceedings to their specific needs, as well as control over the outcome.
  3. Confidentiality: The mediation process is a confidential process, providing the parties with a sense of security, enabling them to negotiate in an open and honest environment.
  4. Relationships: The mediation process provides a forum where parties can resolve their dispute, while still maintaining their relationship.

In recent months, during the world-wide pandemic, mediation has come to the fore in the courts in order to reduce the litigation case load that the court is burdened with.

Successful mediation lays the foundation for collaborative, non-confrontational problem solving, which preserves important relationships.

Reference List: 

  • Constitution of South Africa 1996
  • Uniform Rules of the High Court

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 adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Being a victim of Medical Malpractice – your rights, the process and what to claim for

October 14, 2020 / / Comments Off on Being a victim of Medical Malpractice – your rights, the process and what to claim for

Consult: Firstly, it is highly recommended that you consult a personal injury attorney who specialises in medical malpractice claims. The attorney assists in determining the validity of the claim and advises on what to expect. The gathering of evidence is crucial and will ultimately validate whether there is a claim or not, this includes obtaining all medical records, expert opinions and, if relevant, witness statements.

Test: For a medical negligence claim to succeed, it must be proven that:

  • The hospital or healthcare provider undertook a legal duty of care in respect of the patient and must have obtained the patient’s informed consent;
  • The legal obligation of the healthcare provider or hospital to provide a certain level of care and treatment was breached;
  • The breach of this undertaking resulted in direct injury to the patient; and
  • The injury resulted in financial or emotional loss, or both, for the patient.

Some examples of common medical misconduct in South Africa include failure to keep adequate or accurate records; failure to disclose the material risks of procedures to patients; administration of the right treatment at the right time; and inadequate monitoring of injured or postoperative patients.

Claims: Depending on the complexity of the claim, the general heads of damages include past hospital and medical expenses; future medical expenses; past and future loss of earnings; and general damages for pain and suffering.

Summons: After obtaining all the necessary evidence to support the claim, a summons is issued and served to the medical practitioner or the medical institution. The allegations of negligence will typically be denied at first, but an offer of settlement may follow later, once they have concluded their own investigations into the matter.

Trial: If an offer of settlement is accepted, the matter will not go to trial. If, however, no offer is forthcoming or should an offer not be accepted, the matter will go to trial. Based on the evidence presented, the presiding judge will decide whether the claim is valid and, if the claim is successful, determine the compensation that will be awarded.

Costs: Some firms work on a contingency basis, meaning that fees are payable if the claim succeeds. The amount an attorney can charge if the claim is successful is governed by the Contingency Fees Act, 1997.

Duration: This depends on whether a settlement is reached out of court or whether the case goes to trial. It can take a substantial amount of time to collect evidence, obtain expert opinions, draft and issue a summons, wait for a response from the defendant, apply for a trial date, and finally go to trial. Unless a settlement is reached, one can expect a minimum of two or three years from the date of instituting your claim to the time when it is finalised.

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 adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

© 2024

Theme by Anders Noren — Up ↑