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Month: March 2022

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)

Beyond reasonable doubt: What does it mean?

March 22, 2022 / / Comments Off on Beyond reasonable doubt: What does it mean?

We have all seen the courtroom dramas where the accused are charged with criminal offences, and the State has to prove its case. Similarly, we are very familiar with the phrase, “beyond reasonable doubt”. But what does the phrase mean, and where does it fit in court cases?

Background: 

In litigation, there is a distinction between civil litigation and criminal litigation.

Civil litigation in its simplest form is a dispute between two parties, whether people or companies/institutions. The party instituting the action must prove his case. This duty is referred to as the burden of proof or onus. The burden of proof in civil litigation is that the party alleging an occurrence must prove it on a balance of probabilities. This essentially means that something occurred more likely than not.

In criminal litigation, the State must prove its case against an accused regarding an alleged crime that was committed. Here the burden of proof is that the State must prove the accused’s guilt beyond a reasonable doubt. The State will execute its duty if it proves all elements of a particular crime beyond a reasonable doubt.

What is beyond reasonable doubt? 

In the case of Woolmington v Director of Public Prosecutions,1 it was established that there rests no onus on the accused to prove their innocence. That burden lies on the State and at no stage is the stage relieved of this burden of proof.

Proving a case beyond reasonable doubt includes the following: 2

  • The State must prove that the accused committed an unlawful act or omission (hereinafter, referred to as “active”, which may include an omission). This is whether an act is prohibited by common law or statute. Murder is a common law crime that we all ought to know is a prohibited act.
  • If the offence is consequential in nature, the State must prove a causal link between the act and the result of such an act constituting the crime. If a person throws a brick and causes that person’s death, the act of throwing the brick would constitute a causal. Therefore, the State must prove that the accused threw the brick, which caused the victim’s death.
  • The unlawfulness of the act must also be proven by the State insofar as there are no defences forming grounds for justification of the act. This would be, inter alia, a private defence necessity and consent. In the above example, depending on the circumstances and if all requirements are met, a person may be deemed to have acted in self-defence. If charged with a crime, he may be acquitted on the grounds that his prohibited actions were justified.
  • The State must prove that the perpetrator is criminally liable by establishing fault. Fault is established by proving that the perpetrator either had the intention to act or was negligent. Whether intention or negligence must be proven is dependent on the alleged crime. If an accused is charged with murder, the State must prove that he had the intention (dolus) to cause the death of another. Considering the crime of culpable homicide, the State must only prove negligence.The exception to this rule is when mental illness is advanced as a defence. In this case, the burden of proof shifts to the accused and must prove on the balance of probabilities.
  • Lastly, the State must prove guilt on the part of the accused.

Considering proof of guilt beyond reasonable doubt, the court does not need certainty but rather a high degree of probability. Absolute certainty cannot be acquired. Therefore, proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. If the evidence against a man is so strong, leaving only the remote possibility in his favour, and if that remote possibility is possible but not in the least probable, the State has proven its case beyond a reasonable doubt. 3

Why is the burden of proof of criminal matters heavier than civil matters?

A well-known philosophical principle is that it is better to spare a guilty person than to make an innocent person suffer.

Lastly, our Constitution affords every person the right to be presumed innocent.

Reference List:

  • L.E.A.D Criminal Court Practice 2020
  • Miller v Minister of Pensions [1947] 2 All E.R 372 at 373
  • Woolmington v Director of Public Prosecutions 1935 A.C. 462

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)

Neighbourly disputes over building plans

March 22, 2022 / / Comments Off on Neighbourly disputes over building plans

Disputes between neighbours tend to ensue where an owner decides to build on or renovate their property and the neighbouring owner believes that such building works will have a detrimental effect on their property rights. Neighbours who are disgruntled by the noise nuisance, possible obstruction of an existing view from their property, or the aesthetic features of the building works, may feel it necessary to object to the building works.

The question that must accordingly be posed is, do neighbours have a legal right to object to building works? And if not, what other remedies are available?

The National Building Regulations and Building Standards Act (“NBA”) provides for the promotion of uniformity in the law relating to the erection of buildings in the areas of jurisdiction of local authorities. The NBA does not create a legal requirement for an owner to inform their neighbour(s) of a building plan application. In terms of the NBA, neighbours also do not have the right to object to building plans.

In Walele v City of Cape Town and Others, the Constitutional Court confirmed that neighbours do not have a general right to be informed of or have access to building plans or to object against them prior to approval. However, the Constitutional Court further held that the rights of neighbours are adequately protected by the duty placed upon the local authority to consider the rights of neighbouring landowners in term section 7 of the NBA.

It is important to note that there might exist a legal requirement for an owner to inform their neighbour(s) of a building plan application in terms of the by-laws of a specific local authority.

There are also certain exceptions to the general rule confirmed in the Walele case. Neighbours must be notified of building plans in the following instances:

  1. Where the application for the approval of building plans is made at the same time as an application for rezoning of the said property; or
  2. Where an application is made for the removal of a restrictive condition or covenant, for example, an application for the relaxation of a building line.

The local authority may also, in its discretion, invite neighbours to object to the building plans.

If an objection is submitted, it will not necessarily prevent the building plans from being approved. The local authority shall consider the objection and exercise its discretion whilst also considering the rights of the neighbours in terms of Section 7 of the NBA.

If the applying owner did not follow the correct procedural steps, aggrieved neighbours may have recourse in terms of the Promotion of Administrative Justice Act 3 of 200 (“PAJA”). An aggrieved neighbour could potentially have the decision of the local authority to accept the building plans reviewed if such neighbour has a right or legitimate expectation that was detrimentally affected by the decision. A legitimate expectation could, however, according to established legal principles, only arise from express representations or practices.

An aggrieved neighbour would have to exhaust all available internal remedies, if available, before instituting review proceedings under PAJA.

Should you be aggrieved by a neighbour’s building plans or works, it is advisable to consult with the local authority and your attorney to discuss the reasons for your objections and the possibility of lodging an objection in the prescribed form.

Sources:

Badenhorst PJ, Pienaar JM & Mostert H Silberberg and Schoeman’s The Law of Property 5 ed (2006) Durban: Butterworths.

The National Building Regulations and Building Standards Act.

Van der Walt AJ The Law of Neighbours 2010 Cape Town: Juta.

Walele v City of Cape Town and Others 2008 (6) SA 129 (CC).

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

Who takes the fall for spillage incidents in shopping centres?

March 22, 2022 / / Comments Off on Who takes the fall for spillage incidents in shopping centres?

This question of liability amid spillage cases has never been fully settled in our law until recently when the case of Holtzhausen v Cenprop Real Estate (Pty) Ltd and Another [2021] 2 All SA 457 (WCC) created some doubts on the legal position of an owner or manager of a shopping mall in “spillage cases”. Spillage cases refer to instances where a floor becomes unsafe when something is accidentally spilt onto it. These cases help determine who is responsible if an injury is sustained as a result of the spillage, who should pay for the consequent medical costs, and who will be liable in a potential civil claim for additional patrimonial damages.

In the Cenprop case, the plaintiff had instituted a legal action against the defendants: the mall owner and the management company. The plaintiff sustained injuries after she had taken a fall in the Goodwood Mall (which is owned by the first defendant and managed by the second defendant) due to slippery floors in the mall. The slippery floors were caused by rainfall on the day of the incident and the patrons of the mall tracking water into the mall as they entered.  The plaintiff argued that the defendants were negligent in that they knew, or ought to have known, that the area on which the plaintiff had taken a fall was slippery when it became wet and therefore should have taken steps to prevent injuries to patrons.

The first defendant, the mall’s owner, denied these allegations by pointing out that it had discharged its legal duty by appointing a competent and professional contractor (the second defendant) to maintain, clean and check the mall to ensure that the mall was kept clean and would not be a danger to patrons. In turn, the second defendant, the management company, had acquired the services of a cleaning company and a security company to ensure that the mall was safe for its patrons.

Applicable law in regard to spillage cases 

In the case of Probst v Pick ’n Pay Retailers (Pty) Ltd [1998] 2 All SA 186 (W), the court made it clear that the owner or the entity in control of a shopping mall has a legal duty to take reasonable steps to ensure that the mall is reasonably safe for its patrons. Such a person or entity could be held liable where steps were not taken to ensure the safety of its patrons. The court further held that, although the owners or management of a mall may obtain the services of a cleaning company, the former still remains liable for any negligence on the part of the cleaning company to perform its duties with due care and in the event of a failure of its cleaning system.

Furthermore, in the case of Chartaprops 16 (Pty) Ltd and Another v Silberman [2009] (1) SA 265 (SCA), the Supreme Court of Appeal held and confirmed that a mall owner could conceivably be held liable for the wrongs committed by an independent contractor if the owner failed to take reasonable steps to prevent the risk of harm. In this case, the mall owner had acquired the services of a cleaning company and the owner had no knowledge of the services of the cleaning company being defective. The court held that the mall owner had taken all steps a reasonable person should have taken to ensure that the mall was safe for its patrons.

Thus, considering the above cases, the owner, person, or entity in control of a mall would only be liable for harm or danger that was foreseeable to the hypothetical reasonable man in its position, and is obliged to take no more than reasonable steps to guard against such harm occurring.

Court a quo 

The court a quo in the Cenprop case held that the mall owner was exempt from liability as he had appointed a duly qualified management company to attend to the daily running and maintenance of the mall. In turn, the management company had appointed a competent cleaning contractor to keep the premises clean and free of spillages and, in addition, security guards were tasked to be on the lookout for potential risks and to call the cleaners if they were needed. Therefore, the court was of the opinion that the first and second defendants had done all they could reasonably be expected to do.

The court further held that if any party had to be held accountable for the injuries sustained by the plaintiff, it would be the cleaning company as it bore the ultimate responsibility of ensuring that the mall was safe for its patrons.

Appeal court 

The court a quo’s judgment was taken on appeal to the full bench of the Western Cape High Court (Appeal Court), which overturned the finding of the court a quo. First of all, the Appeal Court held that the court a quo erred in holding that the cleaning company bore the ultimate responsibility. The Appeal Court, while referring to case law, made it clear that the mall owner, or the person or entity who may be in control of the mall, bears the ultimate responsibility of taking reasonable steps to safeguard patrons to a mall and to ensure that the floors are safe.

Spillage cases refer to instances where a floor that would in the ordinary course of normal everyday use be safe, becomes unsafe when something is accidentally spilt onto it. The Appeal Court came to the conclusion that this case did not fall within the ambit of so-called spillage cases as the rainwater brought into the mall by its patrons could not be considered a spillage and, secondly, the type of tile that was used on the floor was slippery when wet, and such risk could not be passed on to the cleaning company.

Therefore, the Appeal Court did not have to decide whether the cleaning company had an efficient cleaning system in place or whether its failure to mop up the water created liability for the cleaning company.

The Appeal Court found that the defendants were negligent because they had failed to take reasonable steps to ensure that the floors remained safe for its patrons when it rained. The Appeal Court pointed out that the defendants could have contracted the cleaning company to dry the sections of the floor that became wet when it rained, or could have closed the entrances that were exposed to the rain, but because such steps were not taken, the fault could only lie with the defendants.

This case clearly points out that even where a mall owner or management company employs the services of a cleaning company to attend to spillages and the like, the former bears the ultimate responsibility of ensuring the mall is safe for its patrons, be it in spillage cases or otherwise.

Mall owners and management companies need to be extra cautious in protecting patrons so as to avoid liability for patrons falling and injuring themselves when frequenting a mall.

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)

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