My Lockdown Experience

By Sinothile Zondi, Durban intern

 

I live in Effigham, a suburb of Durban North, with my sister. We each have a young child. During the lockdown we have both been working from home. My suburb consists of mostly formal housing, with some shacks on the outskirts. Shack dwellers come into the suburb for shopping and work. There is quite a large population of foreign nationals who are entrepreneurs. Most of the locals are friendly towards them.

With the lockdown it was hard to shop as there are not many shops in the area. One day I was walking to buy bread and was stopped by a policeman who asked why I was walking so far from home. Generally to go shopping I have to take a taxi to central Durban which takes about 40 minutes or more. Last week I had to explain to a taxi driver that he was not allowed to carry a full load of passengers. There were 15 people in the taxi so I decided to get out. The passengers were wearing masks but the driver wore his around his neck. They only seem to put the mask on when they see the police. There was no sanitiser available when boarding the taxi and I used my own.

There is a clinic and a community feeding scheme at the library, which operates of a container. People go and collect bread and food. I have seen the council handing out food parcels. Once when I was going to buy bread during Level 5 they called informal residents to the container. No one wore masks and there were no hand sanitisers. Over 50 people were crowding around with their children and fighting over the food and it was chaos, with no social distancing being observed.

I feel unsafe in my community because of this behaviour. I try to go out as seldom as possible. I don’t know if there are any infections in my community. Testing in the area has been announced but I don’t know if any testing has been done.

The stores where we shop do observe the regulations. They provide sanitisers, keep numbers down and insist on people wearing masks. The local church has been handing out food parcels door to door which is very encouraging. There is a problem of hunger in the area but homelessness is not very obvious here. Most homeless people shelter in town. The problems are mostly in the informal settlements where there is a lack of water and formal toilets.

 

Click here for our complete June 2020 Newsletter

Demystifying “Draconian, Irrational and Infringement of Privacy” Laws

Demystifying “Draconian, Irrational and Infringement of Privacy” Laws

This month’s guest is Lebogang George, a legal consultant specialising in Information, Communications and Technology (ICT) Law, IT Governance as well as Data Protection and Privacy Law. Her passion for Human Rights stems from her first job as a Legal Intern at ProBono. Org from 2011 to 2012.

Pandemics have a way of elevating economic inequalities and revealing the injustices occurring in marginalised communities. There is no doubt that what COVID-19 has revealed, amongst other things, is how it is disproportionately impacting disadvantaged communities. While laws and regulations are put in place to mitigate the damage that the pandemic will cause and to protect and save as many lives as possible, there are some laws and regulations that seem arbitrary, counterintuitive and even draconian. For the most part, these laws seem irrational and infringing on certain rights simply because they are not explained thoroughly, and information is not easily accessible and elucidated to those that it impacts the most. What this article hopes to achieve is to demystify the so-called “draconian, irrational and infringement of privacy” laws brought about as a reaction to the COVID-19 pandemic.

As the spread of COVID-19 became more rampant it was apparent that the Government had to act decisively in curbing the spread of the virus, especially in the more vulnerable and marginalised communities. Managing the spread of the virus and flattening the curve meant the introduction of contact tracing, another uncharted legal territory that had to be resorted to. In the amended Disaster Management Regulations gazetted in April 2020, contact tracing would be used to trace people who are known or reasonably suspected to have come into contact with anyone known or reasonably suspected to have contracted COVID-19. The Disaster Management Regulations would allow the Government to set up a COVID-19 tracing database which would assist the Department of Health to track persons who are reasonably suspected to have come into contact with Covid-19 infected persons. This meant that information such as identity numbers, passport numbers, full names, phone numbers, physical residential addresses, COVID-19 test results and full details of persons they had come into contact with would be needed and therefore collected. This also meant that Government would need to galvanise mobile networks to assist them as the use of cell phone data would be imperative in contact tracing. The sharing of location data would allow the location of data subjects to be traced, electronic communication service providers would process collected data for the government to use for the purpose of tracking subjects to combat the spread of COVID-19.

It is important to note and reiterate that there are laws and regulations that have come into effect specifically to control and contain the spread of COVID-19. Where, on the face of it, it appears as if these laws exist to limit certain rights, such as the right to privacy and protection of personal information, what is key to also note and reiterate is that the apparent limitation is justified and these laws and regulations are by no means in contravention of any rights. In terms of section 36 (1) of the Constitution of the Republic of South Africa, No. 108 of 1996 the general requirement for the limitation of any right is that it may be limited only in terms of the law of general application “to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”.

While prima facie it may seem as though contact tracing is in contravention of the Protection of Personal Information Act, No. 4 of 2013 known as POPIA, the Information Regulator, who is the authority appointed to enforce and ensure compliance with POPIA once the Act becomes fully effective, issued a Guidance Note on 3 April 2020 to assure the public that contact tracing and the Disaster Management Regulations were not in conflict with POPIA and that public and private bodies, in the attempt to contain and reduce the spread of COVID-19, should be proactive in their compliance with POPIA when processing personal information of data subjects who have tested or are infected with COVID-19 or have been in contact with such data subjects.

Below are some salient questions and points with regards to contact tracing and POPIA.

    1. Your rights in terms of POPIA
      The right of privacy is enshrined in the Constitution which expressly states that everyone has the right to privacy. POPIA is aimed at facilitating the protection of privacy. The lawful processing and collecting as well as sharing of personal information is regulated by POPIA and persons collecting, processing and sharing any personal information will need to seek consent first from the data subject i.e. the person to whom the personal information relates.
      Sections 9 – 11 of POPIA go further to protect the data subject’s rights by providing conditions for processing personal information, which are that it must be lawful, minimal – in that it must only be collected for the purpose it is supposed to serve – and the collection and processing of such personal information is justified and meets the objectives for which it was collected in the first place.
    2. Have your rights changed due to COVID-19 and the Disaster Management Act Regulations?
      This is important. The answer is, No. The Disaster Management Act regulations have not impacted on the privacy of the South African people, their rights have not been infringed or taken away. Where processing and collection of personal information is imposed by law and/or protects the legitimate interest of the data subject or where the processing and collection of personal information is necessary for performance of a public law duty by a public body, or processing is necessary for pursuing legitimate interests, the collection and processing is lawful and justified. The objective of contact tracing is to prevent a serious and imminent threat to public safety and/or a public health, health of data subject or other individuals that the data subject has come into contact with. Contact tracing therefore passes the lawful, minimality, justification and legitimate test provided for in POPIA.Consent is therefore not necessary where the collection of data and personal information is to detect, contain and prevent the spread of COVID-19, where the collection of personal information is done to exercise public duty to pursue a legitimate purpose – that of curbing the spread of COVID-19 and saving lives. Having said that, under the Guidance Note issued by the Information Regulator in April, consent in the context of COVID-19 cannot be withheld by a data subject.
    3. The Impact of contact tracing on your rights in terms of POPIA.
      Covid-19 has not impacted on the rights of any individual in terms of POPIA. It has only limited them in a reasonable and justifiable manner. When personal information is collected from a data subject it must still meet the requirements of POPIA, in that it must be lawful, justifiable, reasonable, there is a legitimate interest, minimality, and the purpose has to be clearly specified. The collection of personal information is for purposes of contact tracing which tracing seeks to detect, contain and prevent the spread of COVID-19 as well as prevent deaths and save lives.Personal information and data collection for purposes of contact tracing must not be retained longer than authorised to achieve the purpose of detecting, containing and preventing the spread of COVID-19 unless the information required is for historical, statistical or research purposes and adequate safeguards are in place. Further, destruction and deletion must be done in a manner that prevents reconstruction.
    4. What are your personal information and data privacy rights post-level 4?
      As the country cautiously enters into level 3 and more industries, churches and places of work reopen as well as schools, contact tracing will become more important and necessary. A reopening of most businesses means more interactions and increased movement, which is how the virus spreads. Contact tracing will be used to detect and record these movements. Employers will be allowed to request specific information on the health status of an employee in the context of COVID-19 as the movement of an employee under level 3 will no longer be limited to grocery stores for essentials but will be increased to churches and other places. In terms of the Guidance Note an employee can be forced to undergo testing, the data subject cannot refuse to give consent and a person who has tested positive has a duty to disclose his/her status for the safety of others and for the purpose of enabling the government to take appropriate measures to address, combat and prevent the spread COVID-19.

    We are living in unprecedented times and every day we are entering into uncharted waters. There will be laws that are confusing, that look like they are designed to infringe on our rights to freedom and to privacy. It falls upon us as legal practitioners to demystify these laws and where in fact they infringe upon human rights or have the potential to infringe on human rights and/or on the rights to privacy, we must challenge them in a responsible manner, bearing in mind the balancing act between constitutional rights and saving and preserving life.

     

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Matrimonial Property Regimes and their Consequences

Matrimonial Property Regimes and their Consequences

 By Naeelah Williams, Staff Attorney, Cape Town

 

It is safe to say that all couples who are in the process of tying the knot hope from the outset that their journey to marriage will be as stress free and pleasurable as possible. Most couples however, still want personalised and detailed planning and co-ordination for their big day and the costs of the wedding can be exorbitant.

While this is a beautiful time in the couple’s life, and a time for celebration, many couples disregard the importance of the matrimonial property regime that will govern their marriage.

An unfortunate reality is that many marriages in South Africa end in divorce. It is only at this stage that some couples question and attempt to dispute the matrimonial property regime governing their marriage, which becomes rather difficult.

There are three types of matrimonial property regimes in South Africa; namely, marriage in community of property; marriage out of community of property with the accrual; and marriage out of community of property without the accrual. These regimes are governed in terms of the Matrimonial Property Act 88 of 1984.

The most popular regime is marriage in community of property. The reason for this is due to the fact that it is the default regime and requires no antenuptial contract. The belief that couples will live happily ever after, in addition to the high costs associated with wedding ceremonies, often result in couples not wanting to incur the additional upfront costs of lawyers’ fees in drawing up an antenuptial contract. This however, can result in unwanted ramifications in the long run. Being married in community of property results in, and is not limited to, one being jointly responsible for any debt incurred by one’s spouse, which includes debt that was incurred before marriage. As a result, many regard the consequences of this regime rather steep. Couples are however allowed to amend their matrimonial property regime to one of out of community of property. Section 21 (1) of the Matrimonial Property Act provides that a married couple may jointly apply to court to amend their current matrimonial property regime.

It is prudent to note at this point that there are quite a number of requirements that have to be met in order to amend a marital regime. This includes, amongst other things, sound reasons for the proposed change, notice of the intention to amend to be given to the Registrar of Deeds, which must be published in the Government Gazette and two local newspapers, a draft notarial contract to be submitted and proposed to register and to be annexed to the application, as well as confirmation that no other person will be prejudiced by the proposed change.

When a couple decides to separate and divorce, there are various issues to consider, especially when there are minor children involved. It is crucial for the couple to try and limit any adverse consequences the children may suffer as a result of the divorce. Further consideration will have to be given to maintenance of the children and spouses as well as the division of assets. It is always best to try to resolve any disputes that may arise during this hard time amicably. Reaching an amicable agreement or settlement results in the divorce being finalised speedily and without undue delay, thus saving on legal costs while limiting adverse effects on the children.

It is important to reiterate that it is of paramount importance that both parties to the marriage understand the implications and consequences of the type of matrimonial property regime they are entering into. Unfortunately, couples focus so much on the big day that they disregard the implications of neglecting to make a well-informed decision regarding the regime that will inevitably govern their marriage.

 

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Debunking the concept of sentencing in criminal proceedings

Debunking the concept of sentencing in criminal proceedings

By: Shadreck Masike, Legal Intern, Cape Town

 

There is an underlying principle in criminal justice system jurisprudence in South Africa which entails that justice must not only be done, but also be seen to be done.1 This ought to be understood in the sense that justice must be seen to be done right from the arrest of an accused person up to the time of acquittal or, where the accused is found guilty, the sentencing of the convicted individual.

The sentencing stage of a convicted person normally attracts mixed reactions from members of society, and even the legal fraternity, on whether the sentence given is appropriate or not, or whether it justly compensates for the wrong that the offender has committed. This is especially true in serious crimes in which the community is effectively involved, such as murder, rape and armed robberies. The public often questions why offenders get different sentences for the same crimes, for example, one person may get 40 years behind bars for rape, while another gets 15 years for the same crime. In the innocent eyes of the ordinary man, justice would not have been done nor be seen to be done to both the victims and society at large. Is such difference in the treatment of offenders convicted of the same crime permitted? Well, yes, and for the following reasons:

Firstly, a judicial officer (a judge or a magistrate) has wide discretion when it comes to sentencing a convicted person, the only limitation being that such discretion must be exercised reasonably, rationally, judiciously and within the confines of the law. Once a judicial officer has such a wide discretion, then it is only natural that for one crime, Judge X will hand down a different sentence to Judge Y. However, the gap between the sentence must not be too wide since the presiding officers are bound by common law sentencing principles that must always be referred to before the sentence is passed. These principles can be summarised as “the sentence must be one that fits the criminal as well as the crime, is fair to society, and is blended with a measure of mercy according to the circumstances.”2 According to this quotation, there are four things that should be looked at before a sentence is handed down, that is, (i) the crime (ii) the criminal (iii) the interests of the society and (iv) the circumstances. When these are looked at individually, the last principle would be to blend the result with a measure of mercy before handing down the sentence. As can be seen here, although the crime might be the same, the criminal will not be the same, the interests of the society might also be the same, but the circumstances of the crime will be different. What Judge X might consider to be merciful, is not what Judge Y considers to be so. The net effect is such that the sentence will be different.

Moreover, there are also legislative interventions when it comes to sentencing. More often than not, the statute which establishes a crime will specify that the offender shall be liable to pay a fine not exceeding a particular amount, or to imprisonment not exceeding a particular period. This means that a presiding officer will be left to exercise his/her discretion within the confines set out by legislation as above. In addition, there are also crimes that are considered so serious that the legislature provides mandatory minimum sentences in respect thereof. Presiding officers will also exercise their discretion to the extent that they do not impose lesser sentences than those stipulated. Be that as it may, it does not guarantee the same sentences for the same crimes for reasons already provided here.

In conclusion, people who commit the same crimes will generally receive different sentences owing to the fact that the court looks beyond the crime itself or the interests of society, but also looks at the offender and the circumstances surrounding the commission of the crime. With the latter, the court looks at whether there were aggravating circumstances (facts that favour a heavy sentence) or mitigating circumstances (facts that favour a lesser sentence), albeit in the context of a similar crime.

 

1 S v Tshilo 2000 (4) SA 1078 (CC)
2 S v Rabie 1975 (4) SA 855 (A) at 862

 

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Reasonable chastisement…is it really reasonable?

Reasonable chastisement…is it really reasonable?

By Steven Miller (Volunteer Durban office, extern and final year law student, University of Michigan Law school. Steven came to SA for three months as part of one of his final year modules. Regrettably, he had to leave because of the COVID-19 pandemic and was unable to complete his stay with us.)

 

Last September, the Constitutional Court held that the common law defence of reasonable chastisement was inconsistent with the values of the Constitution.3 Without this defense, corporal punishment is indistinguishable from the legal definition of assault. This judgment thus effectively banned the practice of corporal punishment throughout South Africa, even in the home.4 While such a position is hardly radical given the growing consensus of international law, pediatric medicine, and the Court’s own precedents, it once again places the Court squarely at odds with popular opinion in South Africa and raises serious questions about how such a judgement can be enforced.

A relevant case is where defendant YG invoked the defence of reasonable chastisement while appealing his conviction of assault to the High Court in Johannesburg.5 YG was convicted of assault in the Magistrate’s court after he struck his son, ostensibly as punishment for watching pornography. At common law, a parent may “for the purpose of correcting what is evil in the child, inflict moderate and reasonable corporal punishment, always however with the condition that it is moderate and reasonable.”6 YG contended that since he was Muslim, and pornography was forbidden by his religion, he was within his rights to strike the boy to promote his moral development.7 The High Court found that YG’s actions had far exceeded what was reasonable under the circumstances, so the defence was unavailable to him.8 However, the court then took the additional step of saying that even if the actions had been a proportional response to the child’s misdeeds, YG would still be guilty of assault because the defence of reasonable chastisement was inconsistent with the Constitution.9

On appeal, the Constitutional Court upheld the decision, abolishing the defence. Unlike the broad approach taken by the High Court however, the Constitutional Court focused its reasoning on s 12(1)(c) of the Constitution guaranteeing that everyone has a right to be “free from all forms of violence from both public and private sources,” and the right to dignity under s 10. For its section 12 analysis, the court first acknowledged that since reasonable chastisement is an affirmative defence against a crime, a parent would only need to invoke it when their actions would otherwise constitute assault. Then it concluded that since such chastisement, by design, uses physical pain to encourage a child to modify his behavior, the assault would always be “violent” in nature, thus triggering the protections of s 12.10 The Court also concluded that corporal punishment violated children’s rights to dignity under s 10 of the Constitution because of the intense feelings of shame and feeling of less-than-ness that comes with such chastisement.11 The Court then concluded that corporal punishment did not constitute a reasonable limitation of these rights under s 36 because of the availability of less restrictive means of punishment and the paramount importance of children’s best interest.12
This decision is unsurprising given the Court’s prior precedents. In 1995 the court banned corporal punishment in state detention centres13 and in 2000, the Court upheld a statutory prohibition on corporal punishment in schools14. It is however the first time the Court has extended such a prohibition into the home, something the Christian Education case explicitly declined to do.15 The judgment is also in line with a growing consensus in international law and pediatric medicine. Since Sweden first banned the practice in 1979, a growing number of countries have also decided to outlaw corporal punishment.16 Additionally, courts in Kenya, Namibia and Zimbabwe have all issued judgments limiting corporal punishment in various settings,17 so South Africa’s decision is by no means an outlier. Various organisations, both legal and medical, have also discouraged the use of corporal punishment for years now, decrying it as both a violation of children’s rights and an ineffective and often counterproductive method of instruction.18

Be that as it may, this judgment still raises one large question for proponents of the ban – enforcement. Even ten years after Christian Education, almost half of all South African school children reported being subjected to corporal punishment in schools.19 And that’s in a public sphere ostensibly subject to full public oversight. Globally, underreporting is one of the most serious challenges facing public officials tasked with addressing domestic violence, even in cases of partner abuse where the victim is a legal adult. Given their dependence on their caretakers, children will be even less likely to report incidents of corporal punishment. Perhaps as a way to make the judgment more palatable to parents concerned about criminal prosecution for striking their children, the court invoked the doctrine of de minimis non curat lex (the law does not concern itself with trifles) to suggest that some touching, while technically assault, is so trivial as not to warrant judicial intervention.20 Given the challenges inherent in enforcing this judgment, the court may be surprised at just how many incidents of corporal punishment count as trifles. While this judgment represents a win for proponents of abolishing corporal punishment, much assistance from parliament will be needed to implement the ruling.

 

3 Freedom of Religion South Africa v. Minister of Justice and Constitutional Development and Others [2019] ZACC 34
4 Id. at para. 28.
5 YG v S (A263/2016) [2017] ZAGPJHC 290.
6 Freedom of Religion South Africa [2019] ZACC 34 at para. 10, quoting R v Hopley (1860) 2 F&F 202.
7 YG (A263/2016) [2017] ZAGPJHC 290 at paras. 3-4.
8 Id. at para. 20
9 Id. at para. 25.
10 The court did acknowledge that that assault is not necessarily coextensive with “violence,” as used in s 12. For example unwanted sexual contact could constitute common law assault while not constituting “violence.”
11 Id. at para 47.
12 Id. at 23-25.
13 S. v Williams and Others (CCT 20/94) [1995] ZACC 6.
14 Christian Education South Africa v Minister of Education (CCT4/00) [2000] ZACC 11.
15 Christian Education (CCT4/00) [2000] ZAAC 11 at para. 48; Williams (CCT20/94) ZACC 6 at para.
16 Benyam Dawit Mezmur, Don’t Try This at Home? Reasonable or Moderate Chastisement and the Rights of the Child in South Africa with YG v S in Perspective, Speculum Juris Vol 32 No 2 (2018).
17 Id. at FN 7 citing Ex parte: Attorney-General in Re: Corporal Punishment by Organs of State (SA 14/90) [1991] NASC 2 (5 April 1991) (Namibia); S v Chokuramba (HH 718-14 CRB R 87/14) (31 December 2014) (Zimbabwe); Pfungwa v Headmistress of Belvedere Junior Primary School (HH 148-17 HC 6029/16) [2017] ZWHHC 148 (3 March 2017) (Zimbabwe).
18 See e.g., UN Committee on the Rights of the Child (CRC), General comment No. 8 (2006): The Right of the Child to Protection From Corporal Punishment and Other Cruel or Degrading Forms of Punishment (Arts. 19; 28, Para 2; and 37, inter alia), 2 March 2007, CRC/C/GC/8, available at: https://www.refworld.org/docid/460bc7772.html; Joan Durrant and Ron Ensom, Physical Punishment of Children: Lessons From 20 Years of Research, Canadian Medical Association Journal 184(12), Sep 4, 2012.
19 UNICEF, Violence Against Children in South Africa 22 (2012), http://www.cjcp.org.za/uploads/2/7/8/4/27845461/vac_final_summary_low_res.pdf.
20 Freedom of Religion [2019] ZACC 34 at para. 35.

 

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COVID-19 Lockdown: What does this mean for employees?

COVID-19 Lockdown: What does this mean for employees?

By Seshni Govender – Staff attorney, Durban

As the COVID-19 outbreak spreads through society, the rules and norms in the workplace are changing. With South Africa in a 21-day lockdown for the first time in its history, many people are left with unanswered questions. Employers and employees are concerned about the impact this will have on their employment. Many employers were forced to shut down businesses and employees are forced to stay at home as a result.

During the period of the 21-day lockdown employees can fall into the following groups:
– Essential services employees;
– Employees who can work from home;
– Employees who cannot work from home or go in to work.

Essential services employees have been defined in terms of the Disaster Management Act, 57 of 2002: Amended Regulations, and not the Labour Relations Act, 66 of 1995. This group of employees is obligated to go to work despite the lockdown regulations that have been imposed by the President. These employees will be paid their salaries and will have to carry out their daily tasks as stipulated in their employment contracts. Should an employee refuse to work, or not go to work, then the principle of “no work no pay” will come into effect and the employee may face a disciplinary hearing.

In terms of the Occupational Health and Safety Act, 85 of 1993 employers must ensure that the working environment is safe for the employee. In this instance an employer must have gloves, masks, hand sanitisers and other protective gear available to employees who are required to work during this period. Employers must also ensure that social distancing is practised during working hours. Should employers not adhere to the aforementioned, then employees may refuse to work due to unsafe working conditions.

Many employees fall under the second category, which are employees who can work from home. These employees are entitled to be paid as long as they can carry out their duties. The employer may put in place specific deliverables to ensure that the employee is working at home i.e. timesheets, weekly calls, emails, progress reports, etc. Should an employee fail to carry out the daily tasks set by the employer while working from home, the employer can institute disciplinary action against the employee as set out in the employee’s employment contract.

However, the question that arises when it comes to the third category of employees, is what will happen to them since they are unable to work? When we look at the business imperatives of a company, some employees’ jobs are linked to the business premises, such as cleaners. These employees are at risk of being arrested should they go to work and break the lockdown rules and regulations. Employers are therefore left with the daunting task of deciding what they should do with their employees during this crisis.

The options that are open to them are the following:
– Pay the employees in full;
– Pay their employees half of their salary;
– Force their employees to take annual leave; or
– Offer their employees a loan, which can be recovered at a later stage.

It has come to light that many employers are favouring the third option, which is to force employees to take annual leave. This has not been taken well by Government. Labour Minister T. W. Nxesi reiterated in a media briefing in Pretoria that the Government has made funds available to businesses to mitigate some of the losses experienced due to the shutdown. Employees will be entitled to benefits under the Unemployment Insurance Fund and the COVID-19 Benefit Fund that the Unemployment Insurance Fund has established as an instrument to mitigate the effects of the layoff of employees during the lockdown. Therefore, the Labour Minister has stated clearly that no employer should force his or her employees to take annual leave or leave without pay during the period of the lockdown.

This pandemic has created many hurdles and it will be interesting to observe how employers react to the challenges they are presented with and the impact this will have on the workplace. COVID-19 will have a lasting impact on the work environment, as it has forced us to explore alternative ways of working that were previously thought to be closed to us. One thing is for certain: at the end of this we can expect to see a very changed South African employment landscape.

 

Click here for our complete April 2020 Newsletter

South Africa’s National Lockdown and Civil Liberties

South Africa’s National Lockdown and Civil Liberties

By Shadreck Masike – Intern, Cape Town

The world has not faced a global crisis to the proportions being posed by the COVID-19 pandemic since World War II. Since its outbreak in late 2019, the pandemic has ravaged societies starting in Wuhan, China, spreading to the rest of Asia and the Middle East, Europe, the Americas and now Africa; infecting over a million people globally with a death toll of around 50 000 and rising, as at the time of writing. Its rapid spread necessitated the adoption of swift measures to curtail and contain its spread which has seen many countries embarking on national lockdowns where all non-essential services have been suspended and people ordered to stay at home. With confirmed corona virus cases standing at 1 380 and the total number of deaths at 5 as at 2 April 2020, South Africa has not been spared, with the President declaring a State of National Disaster and a concomitant 21 day National Lockdown which commenced at midnight on 27 March 2020 and was since extended for a further two weeks. To ensure compliance with the National Lockdown, all the country’s security forces were deployed to the streets including the South African National Defence Force (SANDF).
Since the lockdown there has been wild speculation as to its effect on the Bill of Rights. Does the lockdown suspend the operation of the Bill of Rights, either partially or in its entirety? Such questions and fears were compounded further by reports of brutality and harassment against members of the public by security forces, in particular members of the SANDF. It has been reported, with evidence from video footage, that members of the army are beating people seen loitering in the streets, especially in township communities. Video footage has surfaced of people being beaten, forced to roll on the ground in military fashion and doing squats, prompting the Defence Minister to issue a statement clarifying that such conduct by soldiers is unlawful and not in conformity with their mandate in respect of enforcing the lockdown regulations. The question that then remains is what effect the lockdown has on the civil liberties of our people?
The lockdown was effected pursuant to Regulations published by Government Gazette Notice 318 of 18 March 2020, as subsequently amended by Government Notice R. 398 of 25 March 2020. These Regulations were made under Section 27(2) of the National Disaster Management Act of 2002. Essentially, they are meant to restrict the movement of people locally, between cities and metros, amongst other things. The role of security forces then is to ensure that the restrictions on movement and gatherings are adhered to. Although the cited Regulations limit the exercise of human rights as espoused in the Bill of Rights, such limitation is permitted in terms of Section 36 of the Constitution, which provides that the exercise of rights may be limited by law of general application provided that the limitation is necessary, justified and reasonable in a democratic society. However, such limitation must only be to the extent that it is necessary to preserve, amongst other things, public health, as in this case. This entails that even the rights that are directly limited by the Lockdown Regulations are not suspended in their entirety, but only limited to the extent that such limitation is necessary for the preservation of public health, and in this case, to contain the spread of Covid-19. To that end, the Bill of Rights is not suspended, nor are the security forces now enjoying impunity to commit human rights violations in the name of the lockdown. They are there to enforce law and order.

Provision is further made for criminal liability against anyone found guilty of contravening the regulations, with the offender being liable to pay a fine or serve imprisonment not exceeding six months, or both. This means that even where an individual contravenes the provisions of the regulations and is arrested, the rights of arrested, accused & detained persons enshrined in the Constitution applies to them. The regulations do not equip the army with powers to impose punishment on alleged offenders in the form of beatings, squats or military rolls.

To avoid doubt, the Bill of Rights is still very much in operation, though some rights have been limited, and the abuse of the citizenry by military personnel remains fundamentally unlawful. It constitutes unjustified limitation of the Bill of Rights in a democratic society as contemplated by the South African Constitution.

 

Click here for our complete April 2020 Newsletter

COVID-19 Infection and the workforce

By Siyabonga Zondi – Intern, Durban Office

In the most unequal society in the world, which is currently going through a recession, perennial power cuts and one of the highest unemployment rates in the world, a deadly communicable virus outbreak is the last thing South Africa needed. Apart from the lives that may be lost, a major area of concern is an economy, which was already on a declining trajectory prior to the outbreak hitting South Africa’s shores, being made more vulnerable than ever and bordering on collapse. The people who will bear the brunt of this are the poor working class, who may be exposed to mass dismissals, unfair labour practices and a flouting of the basic conditions of employment.

This then begs the question: what role does the Labour Relations Act 66 of 1995 (LRA) and the Basic Conditions of Employment Act 75 of 1997 (BCEA) play in the wake of the COVID-19 outbreak? Do employees still enjoy the protection afforded by these two pieces of labour legislation, even in a time where employers may not be in a position where they are able to meet their obligations towards their employees?

Among the most pressing concerns by most employees is whether they can be dismissed due to contracting COVID-19. In terms Schedule 8: Code of Good Practice Dismissals, an employer is obligated to investigate the extent of an illness if an employee is temporarily unable to work. If the illness may result in a prolonged absence from work, alternatives to a dismissal must first be considered. The factors that should be taken into account when considering alternatives to dismissal include the seriousness of the illness, the period of absence, the nature of the employee’s job and whether a temporary replacement may be secured. Throughout the process the employee is to be afforded an opportunity to make recommendations. If all processes have been followed and no suitable alternative to dismissal is found, the employer would then have an option to dismiss the employee.

There are also situations where businesses may find themselves having to dismiss much of their workforce due to operational requirements. Dismissals based on operational requirements are carried out in terms of section 189 of the LRA. These requirements can be defined as technological, structural, economic or similar needs of the employer. The recommended recovery/isolation period for a person who is deemed to have COVID-19 is 14 days, which in itself would not justify a need to retrench the employee. This position would significantly change, however, where an employer would have several employees being infected and requiring time away for isolation or recovery. In this situation a retrenchment based on operational requirements would be necessitated.

The Occupational Health and Safety Act 85 of 1993 (OHSA) obligates an employer to maintain as far as reasonably practicable a safe working environment that is without risk to the safety and health of its employees. This, however, does not mean that an employee may refuse to come to work in fear of contracting COVID-19. Employees who stay away from work may be required to furnish reasons for their absence, and failure to provide them may result in the employee facing disciplinary action.

A point of much debate and uncertainty for many employees is the “no work, no pay” principle. To pay employees for work done is one of the obligations of the employer, but what happens if the employees show up at work but are unable to work for some reason or another because of COVID-19? In such a situation the employer is obliged to pay the employees, as they have made themselves available and shown up at work. The fact that something beyond their control has inhibited them from performing their duties should not result in the employees not being given their due remuneration. The employer may, however, have recourse to the temporary layoff of employees where normal business operations may not continue.

They say every generation has a war that it must fight. In the past it was the attainment of freedom and equality, both in general and in the workplace. Our labour legislation is now very liberal in its nature and promotes equality. The battle we now face is one of decreasing unemployment rates, and increasing the quality of life of all employees, in the wake of a weakened economy and a dangerous communicable virus.

 

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Birth certificates for undocumented minors

Birth certificates for undocumented minors

Lesley Blake studied at
Wits University and was
admitted as an attorney
in 1995. Her practice
consists of service to the
SMME market – general
legal advice, collections,
drafting agreements and
general litigation. The
practice is also slanted
towards Family Law
including access and
maintenance disputes.

Lesley Blake studied at Wits University and was admitted as an attorney in 1995. Her practice consists of service to the SMME market – general legal advice, collections, drafting agreements and general litigation. The practice is also slanted towards Family Law including access and maintenance disputes.

The Department of Home Affairs appears to have a policy (unrelated to any law that I can find) that they will only issue a Birth Certificate in the following circumstances:

  1. To a woman who is the mother of the child, personally appearing to bring that application;
  2. Where there is documentary evidence of the birth of the child in a South African hospital or medical facility;
  3. Where she has registered the birth within seven days.

In any circumstances apart from the above, all of us as role-players in the social welfare and legal environments have had endless difficulty in getting a birth certificate issued.

Where there is a biological unmarried father of the child, Home Affairs requires that he have a genetic test to prove his fatherhood. If so established, there are some instances where they issue the birth certificate to him, particularly when Home Affairs already have him as the father on their system or where the Children’s Court forces them to do so. Of course, the law is that both parents have parenting rights and there is no real reason in law why a birth certificate could not simply be given to a father. Nevertheless, it is likely one would need a court order to force them to do so.

In cases where the other aspect is not satisfied – for example when the mother is missing or the mother does not have documentary evidence of the birth, or where the birth was not timeously registered, there would be room to bring an application to force Home Affairs to issue a birth certificate. In each such application one would need to establish to the satisfaction of the Court that:

  1. The child is a South African – whether by birth or descent. Thus, place facts before the Court on affidavit about who the parents are and the place of birth of the child;
  2. There is good cause why the mother cannot appear to apply for the certificate;
  3. The person/s applying for the birth certificate have parental rights and responsibilities or ought to have them or are entitled to the issuing of the certificate. So even where the applicant is the aunt or a children’s home or a social worker, that person should be entitled to get the birth certificate and have a purpose for it.

As a final point, the application should be brought by way of a Notice of Motion and a Founding
Affidavit. Remember that it is very easy to lose an application by asking for more urgency than the
circumstances justify. Take your time and win the first time.

 

Click here for our complete April 2020 Newsletter

The Green Market Square furore

The Green Market Square furore

By: Mattew December – Intern, Cape Town

On 8 October 2019, a group of refugees commenced a sit-in protest at the Cape Town offices of the United Nations High Commission for Refugees (UNHCR) following a wave of xenophobic attacks on foreign nationals across the country. The group, which include about 624 men, women and children and 65 undocumented refugees, alleges that they are being persecuted in South Africa by a community insensitive to their plight as refugees and therefore are living in fear for their lives on a daily basis. Their demand to the UNHCR was to be relocated to a third country, which is not South Africa or their country of origin since, in both, they feared persecution. The UNHCR could not guarantee such a demand, citing international law on refugees, as well as their operational guidelines. Since no agreement could be reached concerning relocation, the City Council proceeded to forcibly evict them from the UNHCR premises, and an ugly scene of violence erupted, resulting in the Reverend Allan Storey of the Central Methodist Church offering them temporary shelter until their plight was addressed.

Until recently, the refugees have been staying in the Central Methodist Church right in the heart of the Cape Town CBD. The conditions of their stay there became a concern, with reports of violence between factions of refugees, poor sanitary conditions, health scares and fire risks owing to overcrowding.

The conditions were clearly degrading to say the least. This prompted the City of Cape Town to seek an order from the Western Cape High Court to enforce Municipal Regulations with regard to the occupation of the church by the protesters. Court hearings were also scenes of violence between the police and the protesters. The court ruled that the City has to ensure that the protesters’ human rights are protected before any penalties for infringing by-laws could be enforced. At the end of it all, it was a battle between the City to enforce by-laws by evicting the refugees, and the refugees resisting eviction until they were moved to another country that is not South Africa or their country of origin.

To many ordinary people who witnessed the debacle unfold, the refugees were the victims and the South African government, its agencies and the UNHCR were being insensitive to their plight. In the eyes of an innocent bystander, they were caught between a rock and a hard place; either to return to their communities in Cape Town and face persecution, or remain in the CBD facing running battles with the police. Some wondered why the UNHCR is not relocating them to a third country, which appeared to be the only logical thing to do to settle this crisis. But what does the law say?

Refugees are governed by International Law and the laws of the receiving country – in this case, South Africa. Generally, when a country receives a refugee, it is not at liberty in law to return that person to a country that they are fleeing from, by operation of the principle of non-refoulement. In the event that such a person returns to the country from which they fled, their refugee status is automatically revoked. Where a refugee is facing persecution in the country they fled to, two options are available; either they are returned to their country of origin or relocated to a third country. However, relocating them to a third country requires (a) individual determination of each case to determine the circumstances of the persecution and whether they warrant relocation, and (b) the availability of a third country that is willing to receive the refugees. In the present case, neither requirement has been met. The refugees are not willing to have each case be decided on its own merit and secondly, there is no country which has shown willingness to welcome the refugees. The refugees too are refusing to go back to their country of origin. Under such circumstances, there is nothing that the South African government or the UNHCR can do about the situation. A solution can only be found through the cooperation of the refugees, which has not been forthcoming owing to factional fights, and the availability of a third country willing to receive the refugees and settle them within their territory.

 

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