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Month: August 2022

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)

Is your business covered for loss of income?

August 12, 2022 / / Comments Off on Is your business covered for loss of income?

It’s all well and good being paid out for your assets, but what about the foregone earnings in the meantime?

Small business owners who have a short-term commercial insurance policy are often not aware that they may not be covered for the loss of income, under a standard commercial policy.

Although a standard short-term insurance policy can assist SMEs to replace, repair or reinstate various assets following a loss, it does not provide cover against the loss of income as a result of a business being non-operational or not being able to provide a service following a covered loss.

Business Interruption cover is offered by insurers as optional cover to protect a business against the loss of income following an insured event. For this cover to come into effect following a loss, there needs to be a financial loss to the business as a result of the unforeseen incident caused by a peril that is insured in terms of the underlying commercial short-term insurance policy.

For instance, should a fire occur at business premises, the short-term insurance policy would cover costs related to repairing the building and replacing equipment or any other insured assets destroyed during the fire. Thereafter, Business Interruption cover would come into effect to cover the business against loss of income for the period it can’t operate.

Business Interruption cover can be extended to also protect businesses against losses due to incidents or disasters that occur at the premises of a third party, such as a supplier or customer. However, not all risks that occur outside the premises will be covered, if not specified.

A common question that SMEs usually ask about Business Interruption insurance cover is the amount of cover that is needed for their businesses. There isn’t a straightforward response to this question, as every business is unique and may not be impacted the same.

The ideal approach is working together with your broker to undertake a risk assessment exercise to identify potential risks that may impact the business, as well as the amount of time needed to recover. This will determine the amount of Business Interruption cover that a business should take out.

The impact of shutting down business premises and not being able to run operations will not only lead to financial losses and cash flow disruptions but could also threaten the survival of the business if it cannot fulfil its contractual obligations to customers and suppliers.

What Business Interruption insurance covers

Most business interruption insurance covers the following items:

  • Profits: Based on prior months’ performance, a policy will provide reimbursement for profits that would have been earned had the event not occurred.
  • Fixed costs: These can include operating expenses and other incurred costs of doing business.
  • Temporary relocation: Some policies cover the costs involved with moving to and operating from a temporary business location.
  • Commission and training costs: In the wake of a business interruption event, a company will often need to replace machinery and retrain personnel on how to use the new machinery. Business interruption insurance may cover these costs.
  • Extra expenses: Business interruption insurance will provide reimbursement for reasonable expenses (beyond the fixed costs) that allow the business to continue operating while the business gets back on solid footing.
  • Civil authority ingress / egress: A business interruption event may result in government-mandated closure of business premises that directly cause financial loss. Examples include forced closures because of government-issued curfews or street closures related to a covered event.
  • Employee wages: Coverage of wages is essential if a business does not want to lose employees while shut down. This coverage can help a business owner make payroll when they cannot operate.
  • Taxes: Businesses are still required to pay taxes, even when disaster hits. Tax coverage will ensure that a business can pay its taxes on time and avoid penalties.
  • Loan payments: Business Interruption coverage can help a business make their loan payments even when they are not generating income.

Source: Investopedia (www.investopedia.com)

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)

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