Rights of a foreign parent with a child as a citizen of South Africa
A foreigner’s immigration status is determined by the relevant visa or permanent residence permit and the rights and obligations related to it, as granted to them in terms of the Act. Applications were consolidated and brought in the Western Cape High Court, seeking orders declaring the Act or certain sections thereof to be inconsistent with the Constitution, especially when read together with certain of the Immigration Regulations which were promulgated in terms thereof. These sections were deemed inconsistent to the extent that they require foreigners who are parents and caregivers of SA children to cease working and leave the country when their spousal relationships with their SA spouses come to an end, or when they no longer co-habit together. The spousal visa that is in issue, provided for in the Act, affords temporary residence and it was held by the Constitutional Court in Nandutu v Minister of Home Affairs 2019 (5) SA that the nature of the rights and conditions attached to the spousal visa are different from an ordinary visitor’s visa in the sense that it intends to offer a foreign spouse a permanent route to a permanent residence permit provided that the foreigner has been the spouse of an SA citizen for 5 years. However, such permit will lapse if at any time within a period of 2 years from the date of issue the spousal relationship ceases. At this point, the foreign resident is to depart from SA, failing which they will be considered illegal foreigners and be deported. The Act is unclear, however, as to how it is to be determined that a spousal relationship has ended. The Honourable Justice Sher pointed out that: “The applicants contend that the legislative provisions in question are unconstitutional inasmuch as their effect is to unjustifiably limit their constitutional rights and those of their children, to dignity and equality, and to parental care and legislative processes that give effect to the best interests of the children”. The Applicants also claimed that being forced to cease working in SA and undergoing deportation not only have a financial impact on their children but also in terms of their development and emotional wellbeing. Sher further explored the Constitutional Court’s decision in the Nandutu matter, in which it was stated that marriage and family were social institutions of ‘vital importance’ and went further to say that marriage imposed moral and legal obligations on both spouses including a duty of support and cohabitation, as well as joint responsibility for supporting and raising children born from it. As our Courts always consider the best interest of the child, Sher further considered the Children’s Act 38 of 2005 and the African Charter on the Rights and Welfare of the Child, adopted by the OAU in 1990 and adopted by SA in November 1999, stating that: “both these instruments recognize the right and dignity of children and their parents and that the interest of the child shall be primary consideration as well as that a child is not to be separated from their parents against their will except when necessary”. In these circumstances, foreign parents are faced with a very difficult situation, to either break the law by continuing to live and work in SA to maintain their responsibilities and relationship with their children or abide the law and leave the country and risk failing to uphold their duties as parents. An order was made that the declaration of invalidity is suspended for a period of 24 months, in order to afford Parliament the necessary time to remedy the inconsistencies with the Act and in the interim certain provisions to be read-in to the Act. Should Parliament not remedy same, the readings-in shall become final. Reference List: Immigration Act 13 of 2002. WCHC.TR and Others v The Minister of Home Affairs and Others; RA and Others v The Minister of Home Affairs and Others. WCHC.TR and Others v The Minister of Home Affairs and Others; RA and Others v The Minister of Home Affairs and Others. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.
The question of oil
Where will it go by 2030? As ordinary working people on the street, we will never know precisely what is happening behind closed doors at the White House, the Kremlin, or even Luthuli House but there are always agendas at play that we may not be aware of. Many conspiracy theorists would have much to say about what those agendas might be. All we can do is speculate based on what we see in our world and the subject of oil is one that is hotly contested in our current climate. Most of us are familiar with the story surrounding the discussion about oil. Russia an oil-producing country is at war with Ukraine. Europe and the United States have voiced their support for Ukraine, and President Joe Biden recently announced a $3 billion military aid package to Russia’s beleaguered neighbour. Additionally, the European Union and the United States aim to implement significant steps to move away from fossil fuels by 2030. So, where does this leave oil? This all brings us back to those agendas that no-one knows about but while we may not know, we can, of course, speculate. Throughout history, wars have been primarily economically motivated. As tragic and senseless as any war is, this conflict is no different. Vladimir Putin recently demanded that ‘hostile countries’ pay for all their natural gas imports in rubles rather than in Euros or US dollars. As the ruble fell rapidly amid the war, Russia blamed the West for its decline so to strengthen the currency, he issued this ‘ruble clause.’ This policy on Russian energy exports means that ‘hostile’ importers in Europe and the US need to buy rubles to buy Russian oil primarily from the Russian Central Bank. In a roundabout fashion, the importers will still be buying in dollars and Euros, but through the Central Bank, rather than directly from Russian exporters. If the Russian Central Bank restricted the movement of the ruble, or if the ruble exchange rate became more favourable towards the dollar because of limited access to Russian commodities like oil and wheat, buyers (in theory) would want to accumulate rubles, rather than dollars and Euros. In this sense, Ukraine is a pawn in one of Putin’s (and there are many) economic plays for power. In the interim, the oil price has soared. But this is less due to a shortage in supply than it is due to the toxic speculative climate. It’s a gamble and a waiting game on Putin’s part, which could have severe humanitarian consequences for the Russian people who make a living via the supply chain but Putin is sticking to his guns. 2030 and ‘big oil’ In the story of climate change, fossil fuels and pollution are the villains. Under President Bill Clinton in the late 1990s, the ‘bad guy’ was tobacco. Of course, both ‘villainous’ commodities are understandably perceived as destructive: in the case of fossil fuels, because of the damaging effect they have on our environment, and in the case of tobacco, because of the immense health risks associated with tobacco products. Shares in major cigarette manufacturers Philip Morris, RJ Reynolds, and British American Tobacco fell in response to Clinton’s threat of a multi-billion-dollar lawsuit against the tobacco industry, which was based on Clinton claiming that taxpayers should not have to pay the medical costs associated with lung cancer. In the end, however, Clinton’s proposed healthcare reform bill was defeated and speculators who have not been privy to those ‘secret’ agendas behind closed doors attribute the defeat to big tobacco companies funding opposition to the bill. Tobacco shares bounced back, and anyone who invested in tobacco during the crash capitalised on that. Tobacco, though globally regulated and off limits to marketing and advertising companies in most countries, lived to fight another day. Big oil will, too. China controls most of the minerals needed to build electric vehicles, and while the West is scrambling to find alternative sources of supply, the oil industry remains in charge. Even when electric vehicles become more commonplace in developed markets than fossil fuel-powered vehicles, big oil will still at least for the foreseeable future be needed elsewhere. Oil is also used to make many other items we use every day. Some of these are surprising. Even wind turbines touted as one of the solutions for clean energy use some oil-based plastic products. Oil and natural gas are also used to create the asphalt we use on our roads. It is an ingredient in cosmetics, creams, deodorants, and medical equipment like MRI machines. It is still widely used in construction, in many lubricants, waxes, paints, and a variety of other things we see daily that may come as a surprise. Many developing markets are also not yet equipped to become climate neutral. Fossil fuel-powered vehicles are likely to be around far longer in those markets than in Europe and the United States. So for now, the likes of Exxon Mobil, Saudi Arabian Oil, and BP are here to stay, despite oil being one of the world’s most significant matters of contention. Oil companies have the scope and the time to reinvent themselves in changing markets and they are likely to stick to their guns, just like the cigarette companies did against the Clinton Administration. Is this another case of the villain emerging victorious? Perhaps oil is the villain now, but we may see it reinvent itself in the years leading up to 2050. The story is far from over. WRITTEN BY FRED RAZAK Fred Razak is the chief trading strategist at CMTrading This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
The Subdivision of Agricultural Land Act No. 70 of 1970 Explained: Part 3
In this Part 3 of the series on “The Subdivision of Agricultural Land Act No. 70 of 1970 Explained”, we will discuss the procedure on how to apply for the consent as required by the Minister for any actions regarding agricultural land which is prohibited in terms of Section 3 of the Act. This will include the Minister’s imposition, enforcement or withdrawal of conditions by him or her, as well as any miscellaneous provisions. When you want to perform any of the actions which are set out in Section 3 of the Act, you will have to apply to the Minister of Agriculture, Land Reform and Rural Development of South Africa to obtain his or her consent thereto. This application needs to be made by the owner of the land concerned if the action being contemplated relates to the subdivision of agricultural land; the vesting of undivided shares or a part of undivided shares in any other person not already held by a person; leasing of agricultural land for a period of more than ten (10) years or subsequent leases amounting to a period of more than ten (10) years; and selling or advertising a portion of agricultural land. These actions are set out in Section 3(a) to (e) of the Act and are more fully discussed in Part 2 of this series. This application by the owner as referred to above needs to be lodged or submitted at the correct location and it should be in the correct form as determined and required by the Minister. The application also needs to be accompanied by the necessary plans, documents and information if required by the Minister. The word “owner” for this section of the Act has the meaning assigned to it in section 102 of the Deeds Registries Act, No. 47 of 1947. The term “owner” is defined as the person who is registered as the owner or holder of the immovable property and includes the trustee in an insolvent estate, a liquidator or trustee elected or appointed under the Farmers’ Assistance Act, 1935, the liquidator of a company which is an owner and the representative recognised by law of any owner who has died or who is a minor or of unsound mind or is otherwise under disability: provided that such trustee, liquidator or legal representative is acting within the authority conferred on him by law. The Minister may at his or her discretion either refuse such application or grant such application on any conditions which he or she deems fit. Such conditions may also pertain to the purpose or manner in which the land in question may be used for example if the Minister is satisfied that the land in question will not be used for agricultural purposes after consultation with the Administrator of the province in which such land is situated and upon such proposed conditions by the Administrator, then the Minister may grant such an application. Such conditions imposed by either the Minister or Administrator may be enforced, varied or withdrawn by the Minister or the Administrator, upon consultation with the Minister. If such condition is registered against the title deed of such land, the Minister has the authority to direct that such condition be varied or cancelled. In Part 4 of the series on “The Subdivision of Agricultural Land Act No. 70 of 1970 Explained”, we shall further look at miscellaneous provisions in the Act pertaining to succession, general plans or diagrams of the land, registration of servitudes, fees and offences and or penalties. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
Retirement and your ‘second wind’
With improved healthcare and the trend towards healthier lifestyles, many people are living to a ripe old age. Make sure that your money lasts as long as you do. Are you retiring in the near future and concerned that you may not have enough capital to retire? We often read that the majority of South Africans will not have enough money to retire. This means that they either have to keep on working, or they have to change their lifestyle dramatically and live more frugally than planned. For many people, this may seem like a major setback. People who find themselves in this position often compound their situation through poor financial decisions after retirement. If you are in this position, what should you do? How does one make the best of a difficult situation? There is no magic cure. It is important to remember that people who retire at 65, on average, still have approximately 20 years to live. This means that they have time to allow their capital to grow without taking unnecessary risks. It is equally important to know that there is no miracle cure, but you can recover your situation with some careful planning. Sadly, retired people have been the main victims of financial disasters over the last few years in pyramid schemes. Those with longer memories will remember the Leaderguard and Masterbond debacles. Retired people often have some investable capital, and they are in financial difficulty. This combination is a recipe for disaster, as people who are under financial stress tend to make very poor decisions. Remember that you have time to make your situation better, and that there are no magic financial pro-ducts to solve all your problems. You should tackle this problem from a number of different angles. The most obvious route is to continue earning income after retirement. This does not mean that you must necessarily continue with your old job – you could start a second career. Many retirees have started second careers that have literally changed their lives. Good examples of second careers are estate agents, consultants, building superintendents, or even supervisors of small businesses, e.g. garden service companies. Any income that you earn after retirement allows you to draw less of your capital, thereby giving you more time to let your capital grow. It is highly likely that you will live longer than you expect, and inflation will have more of an impact on your finances than you thought. This means that you need to invest your capital wisely and with caution. You cannot leave your money in a bank account, as you will lose money in real terms, i.e. after inflation and tax. It is also not recommended that you invest your precious retirement capital in a new business venture unless you are already very familiar with the industry. I often meet people who have retired with insufficient capital who decided to use their retirement capital to open a shop or restaurant with friends or family. This has usually led to disastrous consequences as the new business failed and left the retiree on the breadline. Also, be very wary of investing a significant part of your capital into direct businesses – statistically they are more likely to fail than succeed. Understand risk and return People with insufficient capital at retirement usually try to increase their capital base as quickly as possible to make up the shortfall. Unfortunately, many people choose investments with the greatest potential returns to make up the shortfall as quickly as possible. The problem with this approach is that risk and return are always related: if you target higher returns, you are always taking higher risks. If you have retired with insufficient capital, you cannot afford to take too much risk as you have very little room to manoeuvre if things go wrong. In fact, you should take less risk than people who have retired with sufficient capital. You should develop a well-constructed portfolio of assets that are diversified across cash, bonds, property, and shares. The only ‘free lunch’ in the world of finance is diversification. A properly diversified portfolio of assets creates the highest possible returns with the lowest possible risk. An example of a diversified portfolio is 10% cash, 20% property, 40% bonds, and 30% shares. The property in this instance is investment property, and does not refer to your residence. The ideal combination of assets for each person will vary depending on their particular circumstances. Do you need to own your house? If you have very little investment capital and you have a house that is paid off, then you need to ask yourself if you really need to have capital tied up in a house. Many people feel that you must own your house, particularly as you get older. There are other experts who would argue that your home is just an expense, and that you should not have too much capital tied up in an expense. You could consider selling your house and renting a property – but only if the capital that you realise from your house is invested in a very low risk portfolio. This option may not suit everybody, and you should do your calculations carefully. Whatever you do, don’t create debt at this stage in your life. This means that you should not have credit card debt or even a mortgage-rather rent than have a mortgage. Reduce your expenses If you are able to reduce your lifestyle costs by a small amount, you will ensure that your capital lasts much longer. People who reduce their expenses by 10% can make their capital last for an additional 4 or 5 years. This means that it may not be necessary to change your entire lifestyle; some small adjustments may be enough. Retiring with insufficient capital may not be a disaster. You need to be sensible, however, and take care with the capital that you have. Avoid taking unnecessary risks with your precious nest egg, and you may find
Positive and Helpful Amendments to the Domestic Violence Act 1998
The Domestic Violence Amendment Bill (the Bill) was introduced in the National Assembly in September 2020 but has yet to be signed into law by the President. There are various positive and helpful amendments presented in the bill. The Bill will come into operation on a date fixed by the President through the proclamation in the Gazette. The concept and definition of domestic violence has been broadened extensively in the Bill. It now includes spiritual abuse, elder abuse, coercive behaviours, controlling behaviour, and exposing or subjecting children to behaviour listed in the domestic violence definitions clause. It also makes provision for conduct that harms, or inspires the reasonable belief that harm may be caused to the Complainant or a related person. Some of the amendments in the Bill are summarised below: Elder abuse, sexual harassment, and spiritual abuse has now been defined Elder abuse refers to abusive behaviour in a relationship with an older person and can include financial abuse, physical abuse, emotional abuse, as well as controlling behaviours like social isolation or intentional and unintentional neglect. It unfortunately happens frequently that parents invite their children to live with them and after a short while elder abuse commences. The Bill aims to provide the necessary protection to the elderly. ‘Sexual harassment is a separate section under ‘Sexual abuse’ and inter alia means: Unwelcome sexual attention from a person who knows or ought to reasonably know that such attention is unwelcome; Unwelcome suggestions, gestures messages and remarks; Implied and expressed promises or reward for complying with a sexually oriented request. There have also been various court cases recently where pastors, priests, and other religious leaders have been charged with inter alia, rape and or sexual assault and invariably it happens that over a period of time there has been the use of spiritual or beliefs and practices to control and dominate a person. An interdict can now be obtained as soon as there has been spiritual abuse. Duty to report commission of domestic violence. It is an offence should a person fail to report his / her knowledge that an act of domestic violence has been committed against a child, person with a disability or an elderly person. Arrest by peace officer A peace officer may, without a warrant, arrest any person at the scene of an incident of domestic violence, and may enter the premises where an element of violence has allegedly been committed during an incident of domestic violence without a warrant. Positive duty on those in the health care and education sector. The Bill places a positive duty on those in the health and education sector to screen, counsel, and provide emergency medical treatment to a victim. Online application and service An application may be brought by submitting an online affidavit as prescribed, and may be brought outside ordinary court hours if the court has a reasonable belief that the complainant may suffer harm. The interim protection order may be served by the clerk of the Court electronically. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
Mandament van spolie: What is it and what are the requirements?
It is a well-established principle in South African law that a person may not take the law into his or her own hands. People aggrieved by the conduct of another must follow proper legal procedure in order to address their grievances and to obtain the relief they want. For instance, a landlord may not evict a non-paying tenant without a court order. It does not matter how delinquent the tenant may be, you may not deprive the tenant of his or her possession of the leased premises until a court order that authorises the eviction has been obtained. The same principle applies to goods that are in another’s possession of which you are the lawful owner, or others misusing your land to gain access to their property. Our law requires you to approach the courts in order to grant you the relief you seek. The South African legal system has an old common law remedy known as the mandament van spolie (spoliation), which provides relief to persons who have been deprived of goods without due legal procedure having been followed. Such a deprived person can then regain possession of the dispossessed goods by way of the spoliation remedy. Relief by way of the mandament van spolie is mostly claimed in application proceedings as opposed to action proceedings due to the often urgent nature of these matters. For example, a tenant who has been evicted without notice of due legal procedure having been followed would be left without any shelter and would thus need to urgently gain access to the leased premises in order to be protected from the elements. A person wishing to bring a spoliation application must allege and prove two elements. These are: The applicant will have to allege and prove that he had undisturbed and peaceful possession of the good(s). The applicant must allege and prove unlawful deprivation of possession by the respondent. The first requirement does not require the dispossessed party to have a legal right to possess the property. The cause for the applicant’s possession is irrelevant for the purposes of the spoliation remedy. It is likewise irrelevant whether the respondent has a stronger right or claim to possession, such as ownership. The mandament van spolie protects only physical possession and not the right to possession. There are very few defences available to a spoliation application which do not amount to a mere denial of the applicant’s allegations, since the merits of the applicant’s possession are not relevant to spoliation proceedings. One such example is where a statutory right to dispossess exists. An example of this is when law enforcement officials dispossess a person of goods in terms of the search and seizure powers contained in the Criminal Procedure Act 51 of 1977. A respondent can also plea that it is impossible to return the dispossessed goods, and to thus restore the status quo ante, as a defence to a spoliation claim. This defence will be available to a respondent in circumstances where the dispossessed goods were destroyed, stolen, or in some other way alienated to a third party. The mandament van spolie would not be the appropriate remedy in such circumstances and the applicant should rather consider other remedies, such as claiming for damages. Finally, a person who wishes to restore his or her possession of goods by way of the mandament van spolie must bring the spoliation application within a reasonable time, as spoliation may be refused otherwise. Reference List: Amler’s precedents of pleadings, 8th Edition, Harms. Various case law Personal experience This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
Full disclosure when it comes to legal fees
In terms of Section 35(7) of the LPA, practising attorneys and trust account advocates must provide a written notice confirming a legal instruction and giving a cost estimate to a client upon receiving a formal instruction or as soon as practically possible thereafter. The written notice must include the following details: The likely financial implications, including fees, charges, disbursements and other costs; The hourly rate of the attorney or advocate, and an explanation to the client of his/her right to negotiate the fees payable to the attorney or advocate; An outline of the work to be done in respect of each stage of the litigation process, where applicable; The likelihood of engaging a referral advocate, as well as an explanation of the different fees that can be charged by different advocates, depending on aspects such as seniority or expertise; If the matter involves litigation, the legal and financial consequences of the client’s withdrawal from the litigation, as well as the costs recovery regime. Section 35(8) prescribes that practising attorneys and trust account advocates must also explain every aspect of the above notice verbally. Furthermore, Section 35(9) prescribes that a client must agree in writing to the estimated legal services and estimated incurred costs. Non-compliance by a practising attorney or trust account advocate with the above constitutes misconduct. In the event that a practising attorney or trust account advocate does not comply with the above, aggrieved clients can lodge requests with the Legal Practice Council to review the matter and make a determination regarding amounts to be paid. The above does not preclude the use of contingency fee agreements in terms of the Contingency Fees Act 66 of 1997. Reference List: The Legal Practice Act No. 28 of 2014 This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
What are the boundaries of private defence (self-defence)?
Private defence, which is commonly and more narrowly referred to as self-defence, is probably the first type of defence you will come across in your life, whether it be defending yourself against bullies in school or elsewhere later in life. In South African law, though, the issue of private defence is still a contentious matter. Private defence can be referred to as the protection of your own or another person’s interests, including inter alia a life, bodily integrity and property. As is the case with most legislation and legal principles, there is no cut and paste approach concerning private defence and every case is decided on its own merits. Definition: Private defence is defined by C.R. Snyman as follows: “A person acts in private defence, and her act is therefore lawful, if she uses force to repel an unlawful attack which has commenced or is imminently threatening upon her or somebody else’s life, bodily integrity, property or other interest which deserves to be protected, provided that the defensive act is necessary to protect the interest threatened, is directed against the attacker, and is reasonably proportionate to the attack”. [1] This definition has been implemented by our courts in an attempt to develop this area of law, and in the process a set of requirements was established in respect of private defence. Requirements: The requirements for the defence of private defence are the following: (a) It must be directed against the attacker. (b) The defensive act must be necessary. Here one considers whether there is a duty to flee, and whether the defensive act is the only way in which the attacked party can avert the threat to his/her rights or interests. (c) There must be a reasonable relationship between the attack and the defensive act. Here it is not necessary that there be a proportional relationship between the nature of the interest threatened and the nature of the interest impaired. (d) The attacked person must be aware of the fact that he/she is acting in private defence. [2] The court will consider the above factors in every case where a person is relying on private defence. The factors that could potentially be subjected to the most scrutiny by the courts are firstly, the presence of an imminent attack, and secondly, the proportionality of the defensive act as opposed to the attack. In the first instance, the courts will consider if the attack had already commenced and whether the act of defence was executed while the attack was still in motion. Only then will this requirement be met. An act of retaliation or vengeance after the initial attack came to an end will generally not be considered by our courts as an act of self-defence. Additionally, the act of self-defence should be proportional to that of the attack. It would be challenging to convince a court that a person who fatally shot an unarmed attacker after being slapped acted out of self-defence. However, even though the requirements of private defence might make the defence seem unnecessarily complicated, the courts will apply a robust approach to each set of facts as opposed to clinically over-analysing self-defence acts after the fact. The test for private defence is objective, with consideration to whether the reasonable man in the position of the accused would have acted in the same way.[3] The difference between criminal and civil law: Private defence in criminal and civil matters are different in the following aspects: In criminal cases the accused’s guilt has to be proven beyond reasonable doubt while at the same time his/her version is weighed up to be reasonably true; In civil matters, where, for example, a claim for damages due to an assault where the defendant is pleading self-defence, the burden of proof is based on the balance of probabilities. This means that the party in the dispute whose evidentiary proof weighs more could tip the scale in his/her favour since that version is more probable. Even though the same rules might apply in terms of the requirements of self-defence, the burden of proof to convict an accused party who is pleading self-defence could possibly weigh heavier on the party seeking the conviction in a criminal matter. Though private defence is a necessary defence that we need when living in this beautiful country with its unfortunately high crime rate, it remains a very uncertain defence. Whether the requirements for the successful pleading of the defence are met can only be determined after the fact and on the merits of each case individually, since the need for self-defence mostly occurs in circumstances where the rational consideration of your actions is a luxury that you generally would not have at your disposal. [1] Criminal Law Sixth Edition at page 102 [2] Nene v S (AR65/2017) [2018] ZAKZPHC 46 (4 May 2018) [3] S v Ntuli 1975 (1) SA 429 (AD) Reference List: CR Snyman Criminal Law 6 Ed 2014 Nene v S (AR65/2017) [2018] ZAKZPHC 46 (4 May 2018) S v Ntuli 1975 (1) SA 429 (AD) This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
Provocation as a defence
A client poses a question to their attorney: My ex-boyfriend (Y) saw me and my new love interest (X) at a restaurant. Y aggressively confronted me and wanted to know why I have moved on so quickly. X then nicely asked him to leave me alone, whereafter X started to swear at Y. X then lost his temper and punched Y. Y laid a charge of assault against X. X lost his temper because of Y, certainly he cannot be guilty of the offence? As a point of departure, provocation does not constitute a general defence in criminal cases. However, it can be argued to play a mitigating factor to reduce the severity of a crime (for example, it may reduce murder to culpable homicide). Provocation looks at whether an accused intended to unlawfully commit a crime but acted under a sudden loss of control due to an emotional outburst. The courts are also expected to take it into account when assessing culpability for the purpose of sentencing. Provocation may comprise either words or conduct or a combination of both. South African law is partly based on Roman law and Roman-Dutch law, which did not regard anger, jealousy or other emotions as an excuse for any criminal conduct, but only as a factor which might mitigate sentence if the emotion was justified by provocation. C R Snyman Criminal Law (2014) argues that it is possible that extreme emotions such as anger or rage flowing from the provocation may be so strong that X, at the time he reacted to the provocation, lacked criminal capacity. What this means is that should it be proved that X, at the time of the provocation, suffered such emotional instability to appreciate the wrongfulness of his act or conduct himself according to such appreciation, he cannot be found guilty of the crime. Snyman also points out that provocation may also affect an accused person’s intention to commit a crime. In certain cases, provocation may blur or exclude X’s awareness of unlawfulness and therefore affects his intention to commit the crime. This would especially play a role when “intention” is an element of a crime (for example, murder, assault with the intent to do grievous bodily harm etc.). At the same time, it is also noteworthy to consider that pleading provocation can also prove intent. It can establish a motive to commit a crime. This is especially the case when there is a reasonable period between the provocation and the time the offence was committed. In the past there have been cases where an accused person raised the defence of provocation and succeeded to be acquitted for their behaviour (See: S v Arnold 1985 (3) SA 256 (C); S v Nursigh 1995 (2) SACR 331 (D); S v Moses 1996 (1) SACR 701 (C) and S v Wiid 1990 (1) SACR 561 (A)). However, it is important to note that our courts are very cautious to acquit an accused in these sorts of cases and they will look at the circumstances of each case. The courts will usually look at the subjective circumstances of the case. In S v Eadie 2002 (3) SA 719 (SCA) the Supreme Court of Appeal judge Navsa JA held that the courts should further evaluate the subjective circumstances against the judicial expectation of behaviour into the sequence of inferential reasoning, to decide the credibility of the accused’s version. Therefore, it would not be so easy for an accused to argue provocation to justify unnecessary behaviour. Therefore, provocation can be raised as a ground to argue mitigation factors in crime and in very exceptional circumstances prove to be a defence to avoid conviction, however, the courts have been very cautious to allow an accused to get away with unacceptable behaviour. Reference List: J M Burchell et al South African Criminal Law and Procedure vol 1 (2011) 4th S v Eadie 2002 (3) SA 719 (SCA). Oosthuizen & another v S (144/2018) [2018] ZASCA 92. CR Snyman Criminal Law (2014) 6th edition CR Snyman Criminal Law (2002) 4 Edition S v Mokonto 1971 (2) sa 319 (a) S v Wiid 1990 (1) SACR 561 (A) S v Arnold 1985 (3) SA 256 (C) S v Nursigh 1995 (2) SACR 331 (D) S v Moses 1996 (1) SACR 701 (C) This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
Cybercrime in South Africa
The prosecution of cybercrime in South Africa is regulated by the Electronic Communications and Transactions Act 25 of 2002 (“the ECTA”) and the Cybercrimes and Cybersecurity and Related Matters Bill (“the Bill”). Alongside these pieces of legislation exists the common law, as well as the Constitution of the Republic of South Africa, 1996 (“the Constitution”). The ECTA and the Bill are to be read in conjunction with the common law (where it is applicable) and the Constitution in order to obtain a holistic understanding of the improvement of cybersecurity and the prosecution of cybercrimes in South Africa. It should be noted that where the ECTA fails to impose criminal sanctions on cybercrime, the common law sanctions will apply. I The ECTA The ineffectiveness of the common law to deal with and combat cybercrime led to the promulgation of the ECTA in 2002. The ECTA has as its objective the facilitation and regulation of electronic communications and transactions. The ECTA deals with cybercrime in Chapter XIII, in which several new cybercrime-related offences were created. These new offences include obtaining unauthorised access to, interception of or interference with data; computer-related extortion, fraud and forgery; and attempt, and aiding and abetting regarding the aforementioned offences. The ECTA also created the “cyber inspector” who may “enter any premises or access any information that has a bearing on an investigation” into a cybercrime. The arrival of the ECTA was applauded, as it was an attempt made by the South African legislature to address and improve cybersecurity and to create and prosecute new cybercrimes. However, the ECTA received some criticism and it is generally accepted that there is still room for improvement. It is argued that the penalties for engaging in cybercrime, as stipulated in section 89 of the ECTA, are not severe enough. This is because it is argued, a person convicted of certain offences in the ECTA can, at most, be liable for a fine or be imprisoned for a period of one year. For other offences in the ECTA, a person can be liable for a fine or be imprisoned for, at the most, a period not exceeding five years. It is argued that these punishments are not enough of a deterrent to prevent the commission of cybercrimes and that the ECTA should be amended to include harsher penalties. It is also argued that the police, the private sector and academia should be involved in the fight against cybercrime. As noted above, the ECTA created cyber inspectors, though none have been appointed to date, and therefore no actors are currently exercising their power to conduct investigations into cybercrimes. II The Bill The Bill was promulgated to address the shortcomings of the ECTA, and it is apparent that the Bill has in fact done so. First, the Bill imposes a fine with a minimum amount of 5 million Rand and a maximum amount of 10 million Rand. The Bill also prescribes a minimum period of imprisonment of five years and a maximum period of imprisonment of 10 years. Moreover, the Bill makes provision for the combined penalty of a fine as well as imprisonment. Secondly, the Bill addresses the lack of involvement of police, the private sector and academia in the fight against cybercrime in the ECTA by creating several structures to assist in the eradication of cybercrime. These structures include a Cyber Response Committee and a Cybersecurity Centre. These penalties are considerably stricter than those of the ECTA, and it is believed that the Bill will have a greater deterrent effect on the commission of cybercrimes. Upon examination of the ECTA and the Bill, as well as the amount of criticism that the respective pieces of legislation have attracted, it becomes apparent that the prosecution of cybercrime in South Africa is not, and will not be, without challenges. This is because these pieces of legislation are grappling simultaneously with an all-new type of criminal activity and the advanced phenomenon called cyberspace. Developing legislation that effectively prosecutes cybercrime will, therefore, take legislatures and experts on cybercrime some time to perfect. Reference List: Cassim F ‘Addressing the growing spectre of cybercrime in Africa: evaluating measures adopted by South Africa and other regional role players’ 44 CILSA (2011) 123 at 127. Sections 86 to 88 of the ECTA. Section 82(1) of the ECTA. Sections 37(3), 40(2), 58(2), 82(2), 86(1), (2), (3) of the ECTA. Sections 86(4), (5) and section 87 of the ECTA. Van der Merwe D et al Information Communications and Technology Law 2 ed (2016) at 80-81. Section 14 of the Bill. Schultz CB ‘Cybercrime: An Analysis of Current Legislation in South Africa’ (2016) at 35. Chapter 10 of the Bill. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)