<strong>Guest slot:</strong> Validation of a postnuptial agreement

Guest slot: Validation of a postnuptial agreement

By Amorette Gangel, Associate, BDK Attorneys

 

On 26 May 2020, the Constitutional Court dismissed an application by an appellant who sought to have a postnuptial agreement, which was entered into between a married couple during the course of their marriage and not sanctioned by Court, declared valid. 
 
In the matter of AM v HM, a couple were married out of community of property by way of an Antenuptial Contract. During the course of their marriage the parties entered into a postnuptial agreement whereby it was agreed that the wife would be entitled to half of the matrimonial estate upon divorce, contrary to the terms of the Antenuptial Contract. 
 
The postnuptial agreement intended for the marital regime of the parties to be altered from out of community of property to in community of property. However, Section 21 of the Matrimonial Property Act, 1984 (Act 88 of 1984) dictates that should a married couple intend to change their marital regime, leave from the Court must be sought. 
 
Subsequently, the parties instituted action for divorce and the wife sought to enforce the postnuptial agreement. The Regional Court dismissed the wife’s claim on the basis that the enforcement of the postnuptial agreement was contrary to Section 21 of the Act and that at the time of signing the agreement, divorce was not contemplated. 
 
The matter was taken on appeal to the High Court who overturned the decision of the Regional Court. The matter was subsequently taken on appeal to the Supreme Court of Appeal who upheld the decision of the Regional Court. The Supreme Court held that the wife had failed to prove that the postnuptial agreement was in contemplation of divorce. 
 
The matter was then brought before the Constitutional Court who dismissed the matter on the basis that the appellant (the wife) sought to ventilate new issues which were not previously argued before the High Court and Supreme Court of Appeal.
 
It is imperative that when parties seek to alter their marital regime, application first be made to a High Court for such leave (permission). An agreement which is in contemplation of divorce may be enforced and relied upon by parties. However, a postnuptial agreement which seeks to alter the marital regime must first be approved by the court.

 

 

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Is parental maintenance legally recognised?

Is parental maintenance legally recognised?

By Melissa Engelbrecht,, Legal Intern – Cape Town

 

When the word maintenance is mentioned, many often think of a woman claiming maintenance in respect of a minor child or a wife claiming maintenance from her soon to be ex-husband. But too often we overlook the possibility that as one gets older, the role of caretaker is reversed. The question then arises: can parents claim maintenance from their children?

In terms of the Maintenance Act 99 of 1998, parents and children have a reciprocal duty of support and the basis for a child’s duty to support his or her parent(s) is the sense of dutifulness or filial piety.

It is of utmost importance to keep in mind that like any other application made to court there are criteria that need to be met on the part of the person to be maintained and the ability to support on the part of the person from whom support is being claimed. More specifically, a parent would need to prove his/her dependence on the child’s support as well as prove that the child in question has the ability to take on this added responsibility of maintaining the parent.
South African courts have confirmed common law, in so far as that a parent can claim maintenance from his or her child. The aspect that required some clarity was what a parent was entitled to in terms of this support. This question was expressly dealt with in the case of Van Vuuren v Sam, where Rabie JA referred to the same criteria as aforementioned but also emphasised that support of parents must be confined to basic needs, namely food, clothing, shelter, medicine and care in terms of illness. However, this judgment did not create precedent as the same question was addressed in Surdus v Surdus where the court held that the quality of the parent(s) life needed to be

assessed and the support would need to be aligned with that.
When making an application of such a nature, more external factors are taken into consideration such as the issue of siblings, extra income and the quality of the parent(s) life. To discuss this in a practical sense, our courts would not allow parents to target one child because he or she has a slightly better paying job than their siblings. Where parents are working or receive a government grant, this will also be taken into consideration.

The law around the issue of parents claiming maintenance from their son-in-law or daughter-in-law is clear, and a parent cannot claim maintenance from them as a reciprocal duty exists between parents and child/ren and relates to them claiming from the nearest relative first. There are of course exceptions to this general rule – a parent can claim from his/her daughter- or son-in-law if the son or daughter is deceased and they can prove that they were financially dependent on the deceased.
A similar matter was dealt with in Osman v RAF, where Mrs Osman’s son died in a motor vehicle accident. The money claimed from the Road Accident Fund was due to the deceased’s wife, but Mrs Osman submitted a maintenance claim. Her son and his wife lived with her in the same house and he supported her financially as she was divorced and did not work. The court in this case looked at the neediness of a parent. Again, all she needed to prove was that she was dependent on the deceased. In this case the maintenance application was granted due to the fact that while her son was alive he would give her a credit card, buy groceries and pay her mortgage bond and this was enough for the court to establish neediness.

Times have indeed changed and with time the law too has evolved. The area of parental maintenance is still underutilised. At present we do not have a precedent-setting case and these matters are dealt with on a case by case basis where judges may use their discretion and other judgments as case guidelines.

 

 

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Section 7(6) of the Recognition of Customary Marriages Act 120 of 1998

By Phindile Cele, former Johannesburg intern

 

The coming into effect of the Recognition of Customary Marriages Act 120 of 1998 brought recognition of both monogamous and polygamous marriages, as in the past these types of marriages were recognised as customary unions. The Act introduced changes to ensure that customary marriages adhere to the principles provided by the Constitution. This is particularly evident in how the Act attacks the rules of patriarchy, and aims to ensure that women have the same status and capacity as their husband to acquire and dispose of their assets in a customary marriage. Previously, the matrimonial property system in customary marriages was regulated by the status differentiation between the rankings of houses in a polygamous marriage. The arrangement consisted of:

  • Family property: property acquired by the family head which has not been allocated to any of his wives’ houses, that he as the head has the right to use as he pleases; and
  • General property: property acquired by the wife and children of a household.
    This arrangement was considered unconstitutional as it placed women and their children at a disadvantage in that women involved in such marriages generally lack the opportunity to earn an income and acquire property. Previously a wife did not own any of her property during her marriage and would leave her marriage without having acquired any property because her capacity as a wife was limited to her husband’s exclusive capacity to administer the immovable property.

As a result, the Act now provides that the default matrimonial system for monogamous customary marriages is a marriage in community of property and of profit and loss, unless the parties enter into an antenuptial contract excluding community of property, profit and loss. Section 7(6) was enacted to ensure the protection of all parties who wish to enter into a customary marriage, especially women. This section provides that a husband involved in a customary marriage who wishes to enter into a further customary marriage with another woman after the commencement of the Act must make an application to the court to approve a written contract which will regulate the future matrimonial property system of his marriages. After taking into consideration the rights of all the interested parties, the court terminates the existing property system and distributes the property between the spouses equally.

Statistics however reveal that most parties who enter into customary marriages are indigent people who are based in areas where there are issues of inaccessibility to courts, which then results in section 7(6) being less effective. The Act as well is silent on the consequences of non-compliance. However, we find authority on the principle of non-compliance in the case of Mayelane v Ngwenyama. The Supreme Court of Appeal in 2012 heard that section 7(6) deals merely with the patrimonial consequences and that non-compliance does not render the marriage void. The court further found that the failure to comply with the mandatory provisions of this subsection cannot but lead to the invalidation of subsequent customary marriages, but the further marriage would be out of community of property. This however means that the consequences of their patrimonial interests are directly opposed to each other as we see the rights of both wives compromised. This is the reason why in most polygamous marriages we find that one spouse is married in community of property and the other spouse is married out of community of property. This creates conflict as the first wife’s property is often used to establish the prospective wife’s household, and the prospective wife would own nothing, while the first wife owns a share in her property with their husband. It is evident that a further customary marriage without a court-approved written contract influences one or both of the spouses negatively.

As it stands in terms of the Act, there is a need for development in terms of the consequences of non-compliance of section 7(6). There is a great need to advise and encourage those who are parties to a customary marriage, or those who are looking into entering into a customary marriage, about the consequences the law will present them with should they decide to enter into a further marriage without obtaining approval from the court.

 

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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.

 

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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

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