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Month: July 2022

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)

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