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Curatorship – what does it entail?

There are various reasons why someone would need to be appointed to safeguard another’s affairs, ranging from financial, personal or otherwise. This need could arise due to mental illness, physical disability, or illness set on by old age. Whatever the reason, an interested party may approach the High Court for the appointment of a curator bonis or a curator ad personam. This process is known as a curatorship application.

Curatorship is put in place to safeguard another's affairs.

A curator must remain independent and fiercely protect his client’s rights.

Types of curators

There are typically three types of curators, namely:

a.) Curator ad litem – a curator for litigation. This curator litigates on behalf of the patient;

b.) Curator bonis– a curator of goods. This curator protects the patient’s financial and proprietary interests; and

c.) Curator ad personam – a curator for the person. This curator sees to the patient’s daily living needs, for example, needs arising at a care facility where the patient may reside.

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Who is susceptible to curatorship?

Any person incapable of managing their own affairs may be placed under curatorship. It could be that the person is mentally ill or physically disabled; it could also be that the person has a gambling addiction or a substance dependency and as a result thereof squanders his estate.

In matrimonial matters, curators could be used to safeguard the interests of minor children, where such interests often form the very dispute between parents and which may not always be sufficiently protected by an overworked family advocate.

A person who is compis mentis (in other words, a person with full mental capacity), but incapable of managing his own financial affairs may be declared a prodigal. In such an instance, a curator bonis may be appointed without the need for a curator ad litem. This is particularly useful in awards for damages where the amount awarded needs to be protected, but the person is of sound mind.

What is the process?

Initially, a request for the application of curatorship is brought by a friend, family member or care-giver. In some cases, an institution may bring the application.

In accordance with Rule 57 of the Uniform Rules of Court, the High Court is then requested to make an order declaring the patient to be of unsound mind and incapable of managing his own affairs. Supporting affidavits by two medical practitioners, of which one must be a psychiatrist, must be provided.

The Court will then appoint a curator ad litem. This person will generally be an Advocate or an Attorney nominated by the person bringing the application, whose duty will be to represent the patient and compile a report on the investigation into possible curatorship appointment candidates. The findings will then be presented to the Master of the High Court, as well as the Court.

The curator ad litem is also responsible for recommending the appointment of a curator bonis or ad personam. The curator ad litem’s report is filed with the Master of the High Court who files a report either refusing or accepting the curator ad litem’s findings. If the Master approves the appointment, he will give a list of the powers to be held by the curator. The matter is then set down again for hearing and a final order will be granted by the judge.

It is imperative to remember that in South Africa, there is no legal enduring power of attorney. Thus, if the patient has given a family member or a friend a power of attorney to act on his behalf, this power of attorney falls away if the patient’s mental capacity diminishes below the legal threshold. Should this person continue to act in terms of the power of attorney, their actions amount to fraud.

In conclusion…

The best interest of the patient, minor or prodigal is what should be uppermost in the mind of a curator. A relationship of great trust is created and it is of the utmost importance that the curator does not abuse his/her position.

It is furthermore vital that the curator remain independent and fiercely protect his client’s rights, free from any fear of reprisal, and not hide behind instruction.

Our Estate Planning department offer comprehensive advice on all aspects of Estates, the formation of Inter Vivos and Will Trusts, Trust Management, the appointment of Curatorships, administration of Deceased Estates and the drafting of Wills. Please don’t hesitate to contact one of our expert attorneys with any queries.

Abrahams & Gross Attorneys

t   021 422 1323  |  e  info@abgross.co.za

Disclaimer

The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.

 

Consent to travel with your child: what happens when it is withheld?

Travel is considered beneficial to the upbringing of a child

The High Court can waiver the necessary consent to travel with a minor child

South African Immigration Regulations state that a parent travelling with a minor child must produce the child’s unabridged birth certificate (or adoption certificate in respect of adopted children), as well as an affidavit granting consent from the other parent reflected on the child’s birth certificate. This affidavit must explicitly grant his or her permission for the minor child to enter into or depart from the Republic of South Africa.

What happens when such consent from the other parent is withheld?

Generally speaking, travel is considered to be beneficial to the upbringing of the child, unless such travelling is dangerous (i.e. to a war-zone country) or the non-consenting parent has reason to believe the child will not return to the Republic. Judges are slightly wary of granting consent to travel to a county which is not party to the Hague Convention on Civil Aspects of Child Abduction, however, they won’t deny an application based on speculation.

The parent who wishes to travel must then apply to the High Court for a waiver of consent to travel with the minor child. This means that an application will be brought stating that consent for the minor child to travel has been unreasonably withheld and that the Court, as Upper Guardians of all minor children, should waive the non-consenting parent’s refusal to consent. The application will first need to be endorsed by the Office of the Family Advocate before being place before the Court.

Remember, this is only applicable if the other parent is named as such on the child’s birth certificate, is still alive and enjoys co-guardianship of the minor child. If you, as the parent wishing to travel, have sole guardianship of the minor child, or are the only parent named on the birth certificate, then you are free to travel without consent.

Abrahams & Gross’s Family Law department deals with all legal issues affecting the family. If consent to travel with your minor child is being unreasonably withheld from your child’s other parent, contact our Family Law specialist, Vera Kruger.

 Abrahams & Gross Attorneys

t   021 422 1323  |  e  info@abgross.co.za

Disclaimer

The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.

Do same-sex permanent partners have a right to inherit?

Gay couples have a right to inherit

Same-sex partners have intestate succession rights

The Civil Union Act 17 of 2006 (CUA) legalised and regulated same-sex marriages. But what happens in a same-sex permanent partnership where a partner dies intestate, meaning without a will? Can the surviving partner inherit the estate?

On 30 November 2016, the Constitutional Court handed down judgment in Laubscher N.O. v Duplan and Another (CCT234/15) [2016] ZACC 44 [2017] (2) SA 264 (CC) (Laubscher). This matter dealt with the continued recognition of intestate inheritance rights for same-sex permanent partners.

 

Background to the court case

The deceased and respondent lived together for twelve years during which time they reciprocally supported each other. Their partnership was neither solemnised nor registered in terms of the CUA. The deceased died intestate, meaning he had no will and his estate fell to be devolved in terms of the laws of intestacy, The Intestate Succession Act 81 of 1987 (ISA).

The legal question is whether the laws of intestacy recognise the respondent and deceased’s partnership regime as one under which benefits of inheritance can be granted, the questioned provision being section 1(1) of the ISA.

The applicant is the brother of the deceased (and only surviving child of their parents) as well as the executor of the estate.

Gory v Kolver case found ISA unconstitutional

The court in Gory v Kolver 2007 (4) SA 97 (CC) (Gory) adopted a reading-in exercise to remedy section 1(1) of the ISA after it had been found to be unconstitutional insofar as it excluded from its provision the words, “or partner in a permanent same-sex partnership in which the partners have undertaken reciprocal duties of support” from inheriting.

Thereafter, the CUA was enacted to make provision for the registration and solemnisation of civil unions between same-sex couples. The CUA provides similar rights to partners in same-sex marriages in terms of the Marriages Act 25 of 1961 as with those of opposite sex marriages. It does not give the same recognition to life partners who elect not to marry or same-sex partners who elect not to solemnise and register their relationship.

The Laubscher matter thus concerns the consequences and effects of Gory following the enactment of the CUA.

The judgment is written by Mbha AJ, while a short dissent from Froneman J was also included.

What were the arguments?

Applicant argued that, notwithstanding Gory, the CUA required solemnisation and registration of a partnership in order for it to be recognised and enjoy the benefits provided by its protective legal ambit. In the premise, respondent could not qualify for inheritance under ISA.

Respondent argued that the Gory judgment gave him the right to inherit.

The essential arguments were:

  1. Applicant argued that Gory was an interim measure effective until Parliament resolved the underlying mischief (being the impugned provision or the unconstitutionally regarded section 1(1) of ISA). Respondent argued that Gory is not an interim remedy that was to expire when the CUA came into force. Gory amends section 1(1) of the ISA which amendment must endure indefinitely until repealed or replaced.
  2. Applicant argued that section 13(2)(b) of the CUA brought same-sex couples out of the legal cold and thus the CUA repeals Gory. Respondent argued that the CUA does not repeal Gory insofar as the positions stemming from each are not compatible.
  3. The maxim cessante ratione legis cessat ipsa lex (meaning when the reason for the law falls away, the law itself ceases to exist) was argued to have application by applicant. This is in so far as section 13(2)(b) of the CUA replaced the law created through reading in by Gory. Respondent, on the other hand, argued that the purpose of Gory is to qualify same-sex permanent partners as capable of inheritance despite their marital status. In the premise, the purpose of the law has not fallen away since only some of the people protected by Gory are now also protected under the CUA.

To add impetus to his argument, the applicant relied on the judgment of Volks N.O. v Robinson and others (2005) 5 BCLR 446 (CC) (Volks) wherein the court noted that partners to a same-sex relationship have the choice whether or not to marry and thus are afforded the same rights as opposite-sex couples. Thus to apply Gory further would result in a discrimination to opposite-sex partners. The logic of similar reciprocal duties of support does not necessitate equalisation in that particular way. To the contrary, it creates a new form of unfair discrimination against unmarried couples who do not wish to marry.

In addition the amicus curiae (friend of the court) submitted that there exists no sound policy reason to undo the protections afforded in Gory. There has since, for over 10 years, been no action from the Legislature in this regard. To recognise different family forms and relationships is more in line with our Constitutional tenets.

The Court’s decision…

  1. The reading-in remedy in Gory as an ‘interim measure’?

At the time the Gory order was made, the court was alive to the fact that imminent legislation would be enacted, but nevertheless employed a reading-in remedy to cure the unconstitutionality of section 1(1) of ISA. The court made it clear that this was to persist for an indefinite period, subject to amendment or repeal by Parliament. More than 10 years later, Parliament has failed to effect relevant legislation. Thus the court cannot agree the remedy provided in Gory is an interim which is no longer of any force.

  1. The interplay between the Gory order and CUA

Has the mischief which Gory sought to resolve been resolved in the CUA, either through a contextual or interpretative approach? The enactment of the CUA entitled same-sex couples to ‘marry’ and thus enjoy the same benefits and status as heterosexual couples. What is left to be remedied by Parliament is the situation where same-sex couples who elect not to ‘marry’ in terms of the CUA but nonetheless provide reciprocal duties of support, do not share in the benefits that heterosexual couples do.

  1. Whether the reason for the law has fallen away

The reasoning above self-evidently proves that the reason for the law has not fallen away.

The Volks case

The question in Volks was whether the protection afforded in the Maintenance of Surviving Spouses Act 27 of 1990 (MSSA) to a ‘survivor’ could extend to include a surviving permanent life partner. The present matter is concerned with a right to benefit in terms of section 1(1) of the ISA.

Froneman J provides a succinct argument regarding the imports of Volks. What appears is that the difference between the subject-matter of intestate succession and post-death maintenance of spouses does not adequately clarify why this principle of legitimate legislative choice, preferring the formality of marriage, should apply in one case but not the other. In Volks, the marriage created a duty of support, whereas in Gory, the existence of a factual duty of support provided the justification for removing the impediment of marriage in order to attain legislative protection.

Courts have approached this by reasoning a) the discrimination lay in the lack of entitlement to marry and remedied this by removing the disentitlement, and b) to recognise the many forms of cohabitation and reciprocal duties of support outside of formal marriage institutions. The former relates to an unreasoned moral preference to a marriage-centric approach.

In conclusion, same-sex partners have intestate succession rights

The enactment of the CUA (specifically section 13(2)(b)) does not go so far as to amend section 1(1) of the ISA as required by Gory. In the premise, same-sex partners will continue to enjoy intestate succession rights under section 1(1) of the ISA in terms of Gory, and until such time as the legislation is specifically amended or the judgment repealed.

Our Estate Planning and Litigation departments always offer comprehensive advice on all aspects of estates, wills and inheritance, ensuring that you and your loved ones are sufficiently provided for. Please don’t hesitate to contact one of our expert attorneys with any queries.

t   021 422 1323  |  e  info@abgross.co.za

 

Disclaimer

The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.

 

Restaurants: can they charge a non-refundable deposit for reservations?

A recent trend amongst South African restaurants, in particular at fine-dining establishments and stylish boutique eateries, is to request a non-refundable deposit upon making reservations.

The question is, however, whether restaurants are entitled to such a deposit?

restaurants are entitled to request a non-refundable deposit from patrons when a reservation is made

If a patron does not honour his booking, restaurants are allowed to charge a cancellation fee.

In terms of the Consumer Protection Act 68 of 2008 (CPA), restaurants are entitled to request a non-refundable deposit from patrons when a reservation is made. This is to make provision in the event the patron does not honour their booking.

Section 17(3) of the CPA also allows a restaurant to charge a cancellation fee when the patron cancels the booking without adequate notice, as agreed, or if the patron does not arrive at all.

“Section 17(3): A supplier who makes a commitment or accepts a reservation to supply goods or services on a later date may—

(a)   require payment of a reasonable deposit in advance; and

(b)   impose a reasonable charge for cancellation of the order or reservation, subject to subsection (5).”

The restaurant’s point of view

It is important to take the position of the restaurant into account in this discussion, as the restaurant is a service provider that stands to lose business if they hold a table open for a customer while turning other potential patrons away. If the restaurant then receives a cancellation from the customer, then the table was not producing revenue for the restaurant.

The request for the abovementioned deposit serves three purposes, namely:

  1. To secure the reservation;
  2. As financial security to cover a portion of the restaurant’s loss in the event of a cancellation without adequate notice, or non-arrival; and
  3. To penalise the patron for their last minute cancellation or non-arrival.

What is a reasonable deposit and/or cancellation fee?

Both the deposit and the cancellation fee have to be “reasonable”.

Section 17(5) of the CPA defines a charge as reasonable if:

  1. It does not exceed a fair amount in relation to the goods and services that were reserved;
  2. The length of notice of cancellation provided by the consumer is taken into account; and
  3. The reasonable likelihood that the service provider will find an alternative consumer between the time of being notified as to the cancellation and the time of the cancelled reservation.

The cancellation fee must be in proportion with the minimum loss suffered by the restaurant. A deposit is not reasonable if it is likely to exceed the cost of your meal.

A higher cancellation fee will be payable should the customer give inadequate notice of a cancellation. It will, however, be unreasonable for a restaurant to charge a cancellation fee in the event that the tables were actually resold or were able to be resold, as the CPA requires from restaurants to attempt to re-sell the tables in such an instance.

How is the deposit paid?

The deposit must be a cash deposit preferably made by EFT. Section 51 of the CPA provides that restaurants are not permitted to ask a consumer to provide his/her credit or debit card, bank account, ATM card, or any similar identifying document or device or provide a personal identification code, or number to be used to access the account of a consumer.

Some restaurants make use of “Dineplan”, which requires a pre-payment via credit card of a set amount per person. The credit card transactions are processed through a third party secure payment portal and the full amount will be refunded should the patron cancel the booking no later than 24 hours beforehand.

The restaurant’s responsibility

Section 65 of the CPA places a responsibility on a restaurant to take reasonable care and exercise diligence in looking after a consumer’s deposit. If reasonable care has not been taken, the restaurant will be liable to the customer for any loss resulting from a failure to comply with the above.

Section 47 of the CPA also provides that the restaurant should honour the reservation taken. The restaurant could be liable to compensate the consumer for costs directly incidental to its breach should it fail to honour its obligation towards the consumer. An example of these costs could be the consumer’s travel costs.

It is of extreme importance that restaurants have a clear cancellation policy in place that can deal with the manner in which the deposit will be utilised or retained in the event of a cancellation. This must also be communicated to the patron when the reservation is made and the deposit is paid.

Do deposits work?

Deposits are worth considering, especially in specialty restaurants with little to no walk-ins. These restaurants are seldom able to refill their “lost” seats. Since taking deposits, some restaurants are reported to have reduced cancellations and/or non-arrivals by as much as 75%.

Abrahams & Gross provides expert legal advice relating to litigation, regulatory law and other related legal matters. Please don’t hesitate to contact one of our attorneys with any queries.

Abrahams & Gross Attorneys

t   021 422 1323  |  e  info@abgross.co.za

Disclaimer

The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.

 

Be wise before you cannabise!

The Western Cape High Court handed down its judgment (Prince v Minister of Justice and Constitutional Development and Others; (4153/2012) [2017] ZAWCHC 30 (31 March 2017) in respect of the legality of the use of cannabis in the privacy of your own home. Ever since, there has been a lot of confusion regarding what your rights are.

Can government legitimately dictate what people eat, drink or smoke in their own homes?

Judgment affects cannabis related charges

High Court declared current cannabis legislation unconstitutional

The applicants in the matter, Gareth Prince and Jeremy Acton, approached court and asked that the court declare the provisions of sections 4 (b) and 5 (b) read with part 3 of Schedule 2 to the Drugs and Drug Trafficking Act 140 of 1992 (DDTA) and section 22 A (10) of the Medicines and Related Substances Control Act 101 of 1965 (the Medicines Act) unconstitutional in so far as it prohibits the use and enjoyment of cannabis in a private setting.

The essence of the question before court was to what extent and in what way government may dictate, regulate, or proscribe conduct to be harmful; as well as what the threshold of harm must be in order for government to intervene? Can government legitimately dictate what people eat, drink or smoke in their own homes or in properly designated areas?

State defence positioned cannabis as harmful and a public health priority

The state, in opposition to the case, argued that cannabis use is dangerous and harmful. They presented evidence which suggested that cannabis use has harmful effects, most notably on the brain and body. It was argued that it is a hallucinogen and causes a state of extreme relaxation or hyper activeness. It is also, inter alia, harmful to use cannabis when pregnant.

As a result of all of the dangerous properties of cannabis, the state argued that the prevention of cannabis use is a necessity and public health priority.

Applicants successfully argued that cannabis does not cause undue harm or dependence

The applicants, on the other hand, successfully argued that the use of cannabis does not cause undue harm or dependence to the extent that it justifies prohibiting and criminalising the use thereof in a private setting.

Court declared current legislation unconstitutional

The court held that the current legislative regime is unconstitutional whilst making it clear that the court does not understate the importance of curbing drug abuse. Accordingly, the judgment only went as far as stating what people may or may not do in the privacy of their own homes.

All cannabis prosecutions which fall within the legal provisions which were declared unconstitutional should be stayed.

Interim measure will deal with cannabis related charges

So does that mean that you have the right to smoke cannabis at home?

The answer is, not yet.

In terms of section 167(5) of the Constitution, any order of constitutional invalidity must be confirmed by the Constitutional Court. This has not happened yet. Accordingly, the order is suspended pending confirmation by the highest court in South Africa.

Judgment affects cannabis related charges

However, the judgment did devise an interim measure to deal with cannabis related charges. The judgment held that all prosecutions which fall within the legal provisions which were declared unconstitutional should be stayed.

The practical effect of this is that if you get caught with cannabis, you will still be arrested and probably spend a night in jail. You will then appear in court after which the matter will be provisionally withdrawn.

You are best advised to stay away from cannabis… at least for now!

Abrahams & Gross provides expert legal advice relating to criminal law, litigation and other related legal matters. Please don’t hesitate to contact one of our attorneys with any queries.

Abrahams & Gross Attorneys

t   021 422 1323  |  e  info@abgross.co.za

Disclaimer

The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.

How the NCA impacts the in duplum rule

Literally translated, in duplum means ‘double the amount’. A part of South African law since the early 1800’s, it is a common law rule that specifies that interest on a debt will cease to run when the total amount of arrear interest has accrued to an amount equal to the outstanding principal debt.

In society where lending has become so easily accessible, the courts and legislature became obliged to develop the common law so as to afford greater protection to the consumer. For this very purpose, the legislature promulgated the National Credit Act No 34 of 2005 (NCA).

What does the common law say and how is it applied?

Prior to the passing of the NCA, the in duplum rule meant that arrear interest which accrued in respect of a debt could never exceed the outstanding capital amount.

The in duplum rule would apply and interest would stop running up until such time that a payment was made, whereupon interest would accrue up until the amount of interest owing equalled the outstanding capital amount. Historically, the courts have also held that any payments made would account for the outstanding interest before allocating to the capital debt.

Abrahams & Gross Dispute Resolution and Litigation team. can help creditors and debtors assess risk.

Both creditors and debtors need to be vigilant of risks.

Application of in duplum rule post NCA

The NCA was developed to enhance consumer protection. By doing so, the Act widened the ambit of the in duplum rule.

The NCA provides that despite any provision of the common law or a credit agreement to the contrary, the amounts contemplated in Section101(1)(b) to (g) of the NCA that accrue whilst the consumer is in default under the credit agreement may not, in aggregate exceed the unpaid balance of the principal debt under the credit agreement as at the time that the default occurs.

In terms of the common law, the in duplum rule was confined to arrear interest only. Section 103(5) of the NCA widened the ambit of the in duplum rule to mean all types of consideration. For example, a credit agreement may often require consumers to pay service fees, initiation fees, collection costs, cost of credit insurance and administration charges, in addition to interest.

Section103(5) of the NCA provides that the aggregate or sum total of the amounts as contemplated in Section101(1)(b) to (g) may not exceed the unpaid balance of the debt up until which time the in duplum rule will apply.

How litigation impacts in duplum

In Paulsen v Slip Knot Investments (2015), the Constitutional Court set aside the decision which held that, where the NCA is not applicable and the common law applies, interest will accrue up until litigation is commenced, providing at this time, the in duplum rule will be suspended up until judgment is granted. The debt would then be consolidated as at date of judgment and interest will begin to run afresh on the judgment debt amount. The Constitutional Court in its majority judgement provided that the in duplum rule would no longer be suspended upon commencement of litigation as this serves as too great of a prejudice to debtors who had a bona fide defence.

Debtor liability and creditor risk

The debtor potentially faces exposing himself to greater liability should he have no defence in terms of the common law. Conversely, in terms of the statutory in duplum rule, creditors risk losing interest on unpaid debt as in duplum is reached quicker when a debtor is in default.

This is because in terms of the statutory in duplum rule, all other charges levied against the debtor such as initiation fees, administration fees, credit insurance and collection fees are added to the arrear interest when considering whether a debtor has reached in duplum, namely, when the amount owing equals the outstanding principal debt.

When X owes Y…

For example, if X concluded a credit agreement with Y which falls within the ambit of the NCA and the outstanding principal debt equals R100, then for as long as X remains in default, the sum aggregate of all arrear interest, initiation fees, credit insurance, administration fees and collection fees may not exceed R100.

This is in contrast to the common law application which provides that if X is indebted to Y in terms of the common law only arrear interest would be taken into account whilst X is in default, and not the other considerations as is the case in terms of the statutory application.

Creditors and debtors need to be vigilant

In light of the above, it is recommended that creditors be extremely vigilant in respect of debts owing to them and, if necessary, consult a legal advisor to recover the capital debt well before in duplum or face the risk of considerable losses.

Similarly, debtors should be mindful of their outstanding debts and the implications of the statutory in duplum rule, as it serves as a partial defence and potentially even a counterclaim in extreme circumstances.

For expert advice on the in duplum rule and other recovery issues contact the Abrahams and Gross Dispute Resolution and Litigation team.

Abrahams & Gross Attorneys

t   021 422 1323  |  e  info@abgross.co.za

 

Disclaimer

The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.

Can companies privately prosecute in South Africa?

South Africa experienced its first successful private prosecution case in the recent judgment of Private Prosecutor v Hendricks 32/94/2010, heard in May 2016, in which a family succeeded in convicting an accused of murder and sentencing him to 15 years imprisonment.

Private prosecution only allowed where personal interests are at stake

Private prosecutions can combat corruption and serve public interest

Section 7 of the Criminal Procedure Act 51 of 1977 (CPA) allows a private individual to prosecute in cases where the Director of Public Prosecutions (DPP) declines to prosecute. It is interesting to note that the CPA refers to a private person, but makes no reference to other entities such as companies. More fully, the section reads as follows:

“7 Private prosecution on certificate nolle prosequi (‘will no longer prosecute’)

(1)          In any case in which a Director of Public Prosecutions declines to prosecute for an alleged offence-

(a)          any private person who proves some substantial and peculiar interest in the issue of the trial arising out of some injury which he individually suffered in consequence of the commission of the said offence; …”

Hence, the burning question – can companies privately prosecute?

The relief currently available to companies where a civil claim exists is that of Derivative Action as enshrined in section 165 of the Companies Act 71 of 2008. In short, this provision allows a director or interested party to litigate on behalf and in the name of the company. It is commonly used against miscreant directors.

Furthermore, section 33 of the National Environmental Management Act (NEMA) extends the right to private individuals and companies to privately prosecute in the name of public interest or in the interest of the protection of the environment where a breach of duty or statutory offence has taken place or is threatened to take place.

The case of Barclays Zimbabwe Nominees v Black

However, in Barclays Zimbabwe Nominees (Pty) Ltd v Black 1990 (4) SA 720 (A) the court held that a company is not a private person as intended by section 7 of the CPA and therefore does not have the ability to institute a private prosecution against the defendant for fraud and perjury. Therefore, the question remains – barring NEMA, can a company privately prosecute?

The argument for the appellant in the Black case were as follows:

(a)          in terms of section 2(b) of the Interpretation Act 33 of 1957, the word “person” must be construed to include juristic persons unless the context indicated otherwise; and that the context in this case does not indicate otherwise;

(b)          there is no good reason in principle why a company should not be able to conduct a private prosecution;

(c)           the significance of the word “private” in section 7 of the CPA was to contrast a person holding public office or an official person, as defined in the Oxford English Dictionary. The phrases “substantial and peculiar interest” and “which he individually suffered” in section 7 further exclude the latter persons from the ambit of the right afforded therein.

(d)          The section is not without checks and balances – section 9 provides for security by the private prosecutor, and section 10 read with section 12 determines the process and manner of private prosecution.

While the court found these arguments attractive, it could not find title for the appellant to prosecute. This is insofar as the general policy of the legislature is that all prosecutions are to be in the name and on behalf of the State.

The court also noted that if the provision were to include companies, it would only include private companies which would create an anomaly insofar as there should be no distinction between private, public or other companies.

Private prosecutions can combat corruption and serve public interest

This case was, however, decided before the Constitution. The issue arose post-democracy in the case of National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development & Another 2016 (1) SACR 308 (SCA).

Corruption Watch, which was admitted as a friend of the court (amicus curiae), commented that allowing juristic persons to bring private prosecutions would be a critical issue in combating corruption and would serve the public interest. “It also substantially reduces the incentive of those accused of corruption to seek to influence the NPA (National Prosecution Authority) in an improper manner as they will be aware that this will not preclude a prosecution from taking place.”

The appellant is a juristic person created in terms of section 2 of the Societies for the Prevention of Cruelty to Animals Act 169 of 1993 (SPCA Act). The objects of the NSPCA include inter alia instituting legal proceedings connected with its functions … by any person of a particular kind of cruelty to animals. The appellant had over several years tried to perform its functions by instituting proceedings against offenders of the SPCA Act, but was prohibited from doing so insofar as the DPP would not provide the requisite certificate in terms of section 7 upon declining to prosecute, reasoning that it was a juristic person.

Section 7(1)(a) of the CPA unconstitutional?

In the premise, the appellant sought to declare section 7(1)(a) of the CPA unconstitutional. It argued that the differentiation between different classes of persons failed to serve a legitimate governmental purpose and, therefore, is irrational and contrary to the rule of law. The differentiation further fails to see natural and juristic persons as equal before the law which is contrary to our Constitutional tenets of equality.

It considered the test as taken from Glenister v President of the Republic of South Africa & others 2011 (3) SA 347 (CC) para 55:

“… ―there must be a rational relationship between the scheme which it adopts and the achievement of a legitimate governmental purpose. Nor can Parliament act capriciously or arbitrarily. … To survive rationality review, legislation need not be reasonable or appropriate

Therefore, legislation which differentiates between classes of persons is considered non-discriminatory if it is rationally linked to the achievement of a governmental purpose. Private prosecutions are a legitimate governmental purpose. But is section 7(1)(a) of the CPA rationally connected to this purpose? Is there an acceptable reason for the limitation of private prosecutions contained in the impugned provision?

Private prosecution only allowed where personal interests are at stake

To this the court noted that the purpose of section 7 is to allow for individuals to prosecute only where personal interests are at stake, and to prevent natural and juristic persons without this interest from doing so. To allow everyone to undertake private prosecutions would create an alternate prosecuting system of individuals arrogating to themselves the functions of a public prosecutor. Legitimate exceptions exist in sections 7 and 8 of the CPA.

Can a shareholder privately prosecute?

Here, it is prudent to diverge: can a shareholder or other affected party privately prosecute, not in the name of a company, but in his or her capacity as shareholder?

One must look to the meaning and purpose of section 7 of the CPA which has already been detailed. It is submitted that a shareholder qualifies to privately prosecute (merits dependent), insofar as they have a “substantial and peculiar interest,” and is “injur[ed]” as per the meaning and interpretation of the section. Their interests are far from “imponderable” which interests the provision seeks to discount.

In Attorney-General v Van der Merwe and Bornman 1946 OPD 197 at 201 the court states, “An action for damages may be futile against a man of straw and a private prosecution affords a way of vindicating those imponderable interests other than the violent and crude one of shooting the offender. The vindication is real: it consoles the victim of the wrong; it protects the imponderable interests involved by the deterrent effect of punishment and it sets at naught the inroad into such inalienable rights by effecting ethical retribution. Finally it effects atonement, which is a social desideratum.”

Section 8 of the CPA

8 Private prosecution under statutory right

(1)          Any body upon which or person upon whom the right to prosecute in respect of any offence is expressly conferred by law, may institute and conduct a prosecution in respect of such offence in any court competent to try that offence…”

It is submitted that private prosecutions in terms of section 8 of the CPA are not truly private insofar as the DPP may, in terms of the subsections thereunder, either not authorise the prosecution, or may at any time withdraw the right to prosecute. Section 8 is predominantly used by municipalities to prosecute individuals and companies that break municipal laws.

The Constitutional Court judgment

, the State has a legal duty to actively take steps against corruption which may be achieved through allowing private prosecutions.

Constitutional Court judgment in December 2016 ruled that the NSPCA could privately prosecute.

The Constitutional Court released its judgment in the matter on 8 December 2016 by Khampepe J. The Respondents submitted that section 8 provides enough statutory power to allow the NSPCA to privately prosecute, as read with section 6(2)(e) of the SPCA Act. Consequently, the NSPCA amended its notice of motion for a declaratory order concordant with this argument. This motion remained unopposed.

Corruption Watch argued that section 7(1)(a) is reasonably possible of having a wider interpretation with regards its terms “private person”, “some substantial and peculiar interest” and “individually suffered”. Nothing in the language of the section precludes juristic persons. Further, the State has a legal duty to actively take steps against corruption which may be achieved through allowing private prosecutions. If section 7 cannot be interpreted more broadly, it is invalid and unconstitutional.

A body may institute legal proceedings specifically connected with its functions

Section 8 of the CPA requires the power to privately prosecute to be expressly provided for. The court here recognised that this authority need not be in words but must be sufficiently clearly delineated. Whereas section 6(2)(e) of the SPCA Act provides that the NSPCA may “institute legal proceedings connected with its functions…” While both the lower courts found that this did not expressly confer powers of private prosecution, the Constitutional Court held that it did.

This of course does not apply to every piece of legislation which empowers a body to “institute legal proceedings”. It must be specifically connected to its functions. The court regarded the host of functions held by the NSPCA and found that its functions are increasingly considered important for our community. This is due to the values previously elucidated in our courts, that we need to prohibit “one legal subject from behaving so cruelly to animals that he offends the finer feelings and sensibilities of his fellow humans,” and that animals are “sentient beings who experience pain.”

Therefore it has become a Constitutional imperative to protect the moral status of humans by placing intrinsic value on animals as individuals. In this regard the court declared the NSPCA empowered to privately prosecute in terms of section 8 of the CPA and section 6(2)(e) of the SPCA Act.

As section 7 was no longer in dispute it remained unresolved (the amicus curiae was not cited as a private party).

Global analysis of private prosecutions

South Africa’s position is not a shared one in other jurisdictions – Canada, the UK, the USA and Australia amongst others, allow companies to privately prosecute. Countries like Singapore, Zimbabwe and Kenya do not expressly allow for companies to privately prosecute, but entertain the possibility.

In conclusion…

Allowing companies to privately prosecute would not come without checks and balances. Proffered suggestions include the rights of an accused person as enshrined in section 35 of the Constitution would duly be afforded to him/her, the hearing would be public, judicial officers would be allowed to prevent abuse of the system, and frivolous or vexatious prosecuting would come with punitive consequences.

Allowing companies to privately prosecute would also save the State time and resources as companies conduct their own investigations. Crimes against companies have for some years been on the rise. Those that have fallen victim to injury should be entitled to prosecute in vindication thereof.

Abrahams & Gross provides expert legal advice relating to company law, litigation and other related legal matters. Please don’t hesitate to contact one of our attorneys with any queries.

Abrahams & Gross Attorneys

t   021 422 1323  |  e  info@abgross.co.za

Disclaimer

The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.

Imams as Marriage Officers: a feasible option or not?

Best practice is to regulate your marriage by both Muslim and civil rights.

The IMO route broadens a Muslim couple’s legal protection.

Couples entering a marriage by way of Muslim rites first, can utilise the Imams as Marriage Officers (IMO) route thereafter in order to gain civil recognition as well. This broadens a Muslim couple’s umbrella of legal protection if any dispute arises in respect of divorce, maintenance, death and inheritance.

The IMO programme itself does not bestow legal recognition on all Muslim marriages, neither retrospectively nor prospectively. Muslim couples are recommended to register their marriage under the civil law for various practical reasons at their own discretion and for personal reasons.

 

Islamic marital protocols

However, prior to this, couples have to enter a contract that is Out of Community of Property, with an Ante-Nuptial contract, without the accrual clause. Those who do not have one would be advised by the Imam to enter one before solemnising their civil marriage as the Islamic marital regime is one that is premised on Out of Community of Property, without the Accrual system. Thereafter one’s Islamic Will would also be valid and enforceable.

This approach places a great deal of focus on the marriage contract itself that parties need to agree on. After approaching an IMO, the first consultation would allow the couple to undergo pre-marital counselling. The fact that an Imam can advise you from an Islamic perspective on what is best, can be regarded as informative and of assistance to couples where civil and religious aspects may clash and how to possibly avoid the two.

Marriage contract guidance recommended

Presently, guidance on marriage contracts happen to be ideal as young couples intending to get married should be knowledgeable thereof when negotiating their contract, especially the proprietary consequences and other terms therein. Couples that have entered marriage already without giving much attention to the contract and the proprietary consequences attached thereto find themselves saddled with these issues.

Civil marriage considerations

Couples that do not register their marriages according to SA law would find themselves facing potential issues. Without a registered civil marriage, one may find difficulty when attempting to register one’s offspring under the father’s surname as Shari’a law prescribes that children should bear the name of their father.

For example, if a couple enters an Islamic marriage only and later on decides to enter a civil marriage without the proper consultation, they could be blindly entering our civil law marital regime, one that is in Community of Property – a system that would be in conflict with Shari’a law in respect of marriage and inheritance

Hence, couples who enter a civil marriage can prevent any religious and secular conflict by electing the applicable marital regime.

Best practice is to regulate your marriage by both Muslim and civil rights

It is advisable that couples register their marriage under civil law. Phrased conversely, my advice is that you regulate your marriage by Muslim and civil rights, failing which your rights in respect of your children including but not confined to payment of maintenance and division of your assets, are at risk.

In order to ensure that your rights are adequately protected, kindly do not hesitate to contact the writer who has considerable expertise in advising and protecting Muslim men and women married under Islamic Law.

By

Juan Smuts & Mumtaz Sonday   |    Abrahams & Gross Attorneys

t    021 422 1323    |    e   info@abgross.co.za

 

Disclaimer

The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.

 

Gated estates: defaulting owners treated like day visitors

In the recently decided case of Singh and Another v Mount Edgecombe Country Club Estate Management Association 2016 (5) SA 134 (KZD), the court was asked to decide on an issue which frequently presents itself in gated communities.

The facts

The daughter of a Mr Singh, a resident owner of the Mount Edgecombe Country Club Estate, was fined R1,500 for driving over the speed limit of 40km/h within the estate, as per the Home Owners’ Association’s (HOA) rules, on three different occasions. After Mr Singh refused to pay the fines, the HOA terminated his and his family’s right to access the estate with their access cards, alternatively, via the biometric scanner. As such, each time they entered the estate, they had to manually sign in at the security gate. Mr Singh brought an urgent application to have their access rights restored.

Gated estates cannot legally limit access to a resident despite contravention of rules.

If a resident breaks an estate’s rules, the HOA cannot legally limit access.

The judgment

The Court found that the limitation on Mr Singh and his family’s access rights was unlawful and, as such, these rights had to be restored with immediate effect. Mr Singh relied upon what is known as the mandament van spolie. This remedy is aimed at restoring control and/or possession of property to a party from whom it was taken by unlawful self-help, in other words, without following proper legal process.

The Court found that Mr Singh was in peaceful and undisturbed control of the property and that the HOA disturbed his control by means of self-help. Mr Singh and his family used their security cards and the biometric scanner to enter the estate and the denial by the HOA to allow them to access the estate in this manner amounted to a spoliation.

The discussion

The mandament van spolie is said to be both a summary and unique remedy in that it can be granted speedily without having to investigate the parties’ rights. Mere possession will suffice. Even in cases where an unlawful possessor’s possession had been disturbed he would be able to rely on this remedy.

The conclusion

The courts rely on a rigid approach in this regard and will not allow parties to rely on self-help methods. As such, where a resident is in contravention of the estate’s rules, the HOA cannot stop that resident from using its access card or biometric system to gain access to the estate.

Abrahams & Gross provide expert legal advice relating to both HOA’s and resident’s rights as well as the protection thereof in relation to Home Owner’s Associations. We also draft Home Owner’s Association Constitutions and Conduct Rules and can advise you as to how these challenges can be minimised. Please don’t hesitate to contact one of our expert attorneys with any queries.

Abrahams & Gross Attorneys

t   021 422 1323  |  e  info@abgross.co.za

 

Disclaimer

The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.

 

Budget Speech 2017: How does it affect you

Amid national excitement – or dread – South Africa’s Annual Budget Speech was presented yesterday by Finance Minister Pravin Gordhan.

Last year we experienced a R30 billion shortfall in expected tax receipts. This is the largest shortfall in revenue since GFC-impacted 2009/10. Income tax generated less than R15.2 billion of what was expected and VAT was R1.2 billion below target. The shortfall for Customs Duty was R6.5 billion.

R28 billion is sought to be raised through an increase in tax, and Government spending is to be reduced by R10 billion. South Africa’s top 100,000 income earners will bear an effective R11.2 billion of this additional tax burden through an increase of 4% in the top marginal tax rate and an increase of 5% in dividend withholding tax.

A few of the highlights are:

The budget must reflect South Africa’s social and economic responsibilities and priorities, which must in turn be balanced against Government’s duty and responsibility to ensure financial sustainability.

This year’s Budget Speech centred around transformation.

Income Tax

  • A new tax bracket was created for annual income over R1.5 million. South Africans who earn over this amount will be taxed at 45%.
  • Gordhan hopes that this will add an additional R16.5 billion to the fiscus.
  • This year’s adjustment to the taxable income threshold (which is usually adjusted to off-set inflation) will be minimal. R12.1 billion is expected to accrue through this “bracket creep”.

Company Tax

  • Dividend withholding tax has increased from 15% to 20%, which will raise R6.8 billion.
  • It is expected that company tax will generate R218 billion in the year to come.

Fuel Levies

  • Fuel levy will increase by 30c per litre and the Road Accident Levy will increase by 9c per litre.
  • This will hopefully generate an additional R3.2 billion.

Sin Tax

  • 9 billion will be generated from an increase in excise duty for alcohol and tobacco.
  • The following increase will take place:
    • 12c/340ml – Beer, ciders and alcoholic fruit beverages
    • 26c/750ml – Fortified wine
    • 23c/750ml – Unfortified wine
    • 70c/750ml – Sparkling wine
    • 443c/750ml – Spirits
    • 106c/pack of 20 – Cigarettes
    • 119c/50g – Cigarette tobacco
    • 40c/25g – Pipe tobacco; and
    • 658c/23g – Cigars

Sugar Tax

  • The proposed rate is 2.1c per gram of sugar content above 4 grams per 100ml.
  • However, this is still in negotiation and may be implemented later this year.

What’s the good news?

Transfer Duty

  • Not payable for properties under the value of R900 000.00. Previously, this amount was R750 000.00.

Tax-free savings accounts

  • Allowance for tax-free savings accounts has been increased to R33 000.00.

No adjustments will be made for Value Added Tax (VAT), however a revised carbon tax will be published for public consideration by the middle of this year.

This year’s Budget Speech centred around transformation. Ultimately, the budget must reflect South Africa’s social and economic responsibilities and priorities, which must in turn be balanced against Government’s duty and responsibility to ensure financial sustainability.

For further queries, please do not hesitate to contact any of our attorneys.

By

Abrahams & Gross Attorneys

t    021 422 1323    |    e   info@abgross.co.za

 

Disclaimer

The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.