Convictions under the doctrine of common purpose
“If I was present at the scene where my peers committed a crime and I had knowledge of the crime being committed, is that sufficient evidence for a Court to convict me in terms of the doctrine of common purpose even if this is not alleged in the charge sheet or indictment?” The doctrine of common purpose is defined as an agreement to commit a crime or active association in a joint unlawful enterprise by two or more persons, where each person is responsible for the criminal conduct of the other if it falls within their common design. This may generate certain questions and uncertainties with regards to the accused’s rights and other legislative pieces, such as the Criminal Procedure Act, 51 of 1977 (hereafter the “CPA”). When searching for your rights as a South African citizen, one must always start at the beginning being the Constitution of the Republic of South Africa, 1996 (hereafter “the Constitution”) which is seen as the primary source of every South African’s rights. Section 32(1)(a) and (b) of the Constitution deals with access to information and holds that everyone has the right to access any information held by the state as well as any information held by another person which is required for the protection or the exercise of any rights. Furthermore, section 35(3)(a) of the Constitution deals with persons who are arrested, detained and accused, and states that every accused person has the right to be informed of the charge with appropriate detail to answer it. The latter, therefore, ensures a person the right to a fair trial. The golden rule, as encompassed in the case of S v Pillay, is that clear and unmistakable language needs to be used in the indictment or charge sheet to inform the accused of the charge he or she needs to meet. But what if the charge sheet or indictment does not disclose any offence or material element of the crime at all? Before 1959, if charge sheets or indictments omitted any material element of a crime or did not disclose an offence, even if evidence proved the omitted element during a trial, the accused could not be found guilty. However, this position changed with the CPA, as section 88 states that even if the charge sheet or indictment does not disclose an essential element of the relevant offence, the defect shall be cured upon evidence presented at trial, which proves the element that should have been averred. Another option to the prosecutor is to amend the charge sheet or indictment. This can be done with section 86 of the CPA, which allows for amendment in the following scenarios: Where a material element of the offence is not averred; If a material difference arose between the allegation in the charge sheet and the evidence that was led; Where words have been omitted, errors have been made, or words unnecessarily inserted. Thus, sections 86 and 88 combined create the effect that a charge sheet may be amended any time before judgement is made, save that it is not prejudicial to the accused. The question is whether sections 86 and 88 of the CPA suffice to convict an accused on the doctrine of common purpose if this offence is not alleged in the charge sheet or indictment. The case of Msimango v The State (698/2017) [2017] ZASCA 181 gives clarity on the issue. In this case, the Appellant together with another accused committed certain crimes. The Appellant was convicted of the crimes on the following counts: Count 1: robbery with aggravating circumstances; Count 2: attempted murder, where he shot a victim in the mouth; and Count 3: attempted murder, where the other accused assaulted a victim with a meat cleaver. With regard to count 3, the regional magistrate convicted the Appellant on the doctrine of common purpose, even though this was not averred in the charge sheet, nor did this form part of the State’s case against the Appellant. The Supreme Court of Appeal (hereafter “SCA”) considered section 35(3)(a) of the Constitution together with other case law and held that a person can only be convicted on a charge based on the doctrine of common purpose if it is averred in the charge sheet, if the charge sheet is amended to portray the charge in terms of section 86 of the CPA, or if all material elements are proved during trial. References: S v Thebus (2003 (2) SACR 319 (CC)) para 18. Msimango v The State (698/2017) [2017] ZASCA para 14. 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)
Fighting like cats and dogs over pets in flats?
If you own a pet and live in a complex subject to the Sectional Title Schemes Management Act, this article may be just for you. What if the body corporate does not allow you to own a pet? Or what if your guide dog or emotional support pet is not welcome in or around the place you live? Here is what you need to know. If you love your pet, one of the first things to consider when renting a flat or buying a property that is part of a sectional title scheme, is whether it is pet-friendly. The focus of this article will be on the rules of the body corporate of sectional title schemes relating to pets. It is advisable that before you buy a property forming part of a sectional title scheme, to familiarise yourself with the rules of the body corporate and ascertain whether your pet is welcome in the complex. In most instances, pets are allowed, but on certain conditions, such as obtaining written consent from the body corporate and having control over your pet to avoid it becoming a nuisance to your neighbours. Depending on the body corporate, consent may be based on the type and size of the animal. It would only be fair and in the public interest that you are not allowed to bring your pet crocodile to the park where children are playing or keep it in your apartment. Not only would it be a nuisance, but it is also extremely dangerous. The same principle applies to dangerous dog breeds and other animals that are not suited for a domestic environment and/or residential areas. Generally, body corporates will be specific about which animals are allowed, providing a list of acceptable dog breeds and other animals. Body corporates will normally allow cats, small to medium-sized dogs, and other small pets with their written consent. Such written consent should, however, not be unreasonably withheld. In the matter of Body Corporate of Laguna Ridge Scheme N.O. 152/1987 v Dorset 1999 (2) SA 512 (D), the court emphasised that the trustees of body corporates must consider the individual circumstances of each application when determining whether to allow pet ownership. In this matter, the body corporate denied consent to having pets in the complex as a general policy, as opposed to considering each request on its own merits. The court granted the applicant, who was the owner of a small Yorkshire Terrier dog breed not causing a nuisance, permission to keep the pet, subject to certain conditions. The Conduct Rules prescribed in terms of section 10(2)(b) of the Sectional Titles Schemes Management Act 8 of 2011, as it appears in the Annexure 2 of the Sectional Titles Management Regulations, provides the following: Owners may apply to keep a pet with the written consent of the trustees. Such consent must not be reasonably withheld. Owners suffering from a disability and who reasonably requires a guide, hearing, or assistance animal, must be considered to have the trustees’ consent to keep the animal in the section and accompany the animal on the common property. The trustees may provide for any reasonable conditions relating to the keeping of the animal in a section or on common property. Consent may be withdrawn if any of the conditions are not adhered to. Only an animal prescribed by a medical practitioner, for example, a guide dog for a blind person, or an emotional support pet prescribed by a mental health care professional, are automatically deemed to have consent. The person who has obtained this automatic consent may still be subject to certain reasonable conditions, as determined by the trustees. The Community Schemes Ombud Service (CSOS) is established to assist people with disputes relating to properties subject to the Sectional Titles Scheme Management Act 8 of 2011. The decisions of the Ombud are equivalent to that of a High Court and are enforceable as such. 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)
Life partners now qualify for intestate succession
The Constitutional Court recently confirmed the October 2020 ruling of the Western Cape High Court that section 1(1) of the Intestate Succession Act is unconstitutional in so far as it excludes life partners in a relationship intended to be permanent, as per the definition of “spouse”. The Court ordered parliament to amend two laws to recognise the right of a surviving life partner in any relationship to inherit and claim maintenance after the other partner dies. The case arose after Jane Bwanya challenged the constitutionality of the Intestate Succession Act and the Maintenance of Surviving Spouses Act for discriminating on the basis of marital status. Ms Bwanya, originally from Zimbabwe, and the deceased, Mr Ruch, were involved in a relationship that comprised most, if not all, characteristics of a marriage. They met and entered into a romantic relationship in 2014. Later that year Mr Ruch asked Ms Bwanya to move in with him on a permanent basis. Ms Bwanya obliged. From then onwards, they split their time between Mr Ruch’s Camps Bay and Seaways properties. Ms Bwanya retained her place at the Meadows where she was employed as a domestic worker. Ms Bwanya’s and Mr Ruch’s friends were aware of the relationship. The pair used to accompany each other to various social gatherings. Mr Ruch introduced Ms Bwanya as his wife to his friends. They often hugged and kissed in the presence of other people. Mr Ruch referred to Ms Bwanya’s brother as his brother-in-law. In November 2015 Mr Ruch proposed to marry Ms Bwanya. She accepted the proposal. Preparations to travel to Zimbabwe began so that lobola negotiations could commence and Mr Ruch could meet Ms Bwanya’s family. These preparations involved selling the Seaways property. The proceeds were to be used to pay lobola and purchase a vehicle for the trip to Zimbabwe. The plan was for the pair to get married after the trip. On 23 April 2016, two months before the scheduled journey, Mr Ruch passed away unexpectedly. In his will he had nominated his mother as the sole heir to his estate. However, his mother had predeceased him. Ms Bwanya lodged two claims against Mr Ruch’s estate in terms of the Administration of Estates Act. They were for maintenance in terms of the Maintenance of Surviving Spouses Act and for inheritance in terms of the Intestate Succession Act. She based the claims on the fact that her permanent life partnership with Mr Ruch was akin to a marriage and that they had undertaken reciprocal duties of support towards each other. The basis of the claims was the following: the deceased was her life partner, they had been living together in a permanent, stable, and intimate relationship, and they were engaged to be married. Moreover, their partnership was analogous to, or had most of the characteristics of, a marriage: the deceased supported her financially and emotionally, and introduced her to friends as his wife. Furthermore, they had undertaken reciprocal duties of support and were to start a family together. The executor of the deceased’s estate rejected both claims on the basis that the Intestate Succession Act and Maintenance of Surviving Spouses Act conferred benefits only on married couples, not partners in permanent life partnerships. The majority judgment of the Constitutional Court, penned by Madlanga J, stressed that permanent life partnerships are a legitimate family structure and are deserving of respect and, given recent developments of the common law, entitled to legal protection. The judgment held that the definition of “survivor” in section 1 of the Maintenance of Surviving Spouses Act is unconstitutional and invalid insofar as it omits the words “and includes the surviving partner of a permanent life partnership terminated by the death of one partner in which the partners undertook reciprocal duties of support and in circumstances where the surviving partner has not received an equitable share in the deceased partner’s estate”. The judgment ordered that these words be read into the definition. “Spouse” and “marriage” are also declared to include a person in a permanent life partnership. The declaration of invalidity was suspended for 18 months to afford Parliament an opportunity to cure the constitutional defect. Additionally, the majority judgment confirmed the declaration of invalidity of section 1(1) of the Intestate Succession Act made by the High Court. Likewise, this declaration of invalidity was suspended for 18 months to afford Parliament an opportunity to cure the constitutional defect. The Bwanya judgment is a victory for permanent life partners, who now qualify as intestate heirs. If you wish to avoid uncertainty and prevent unintended consequences, then the best solution remains to execute a professionally drafted will and update it as and when necessary. Having a will is always extremely important. A valid will would have avoided the necessity for a court application in the case presented above. Executors should henceforth consider any claims from life partners under either of the mentioned Acts, as failure to do so could result in litigation. Reference List: Intestate Succession Act, 81 of 1987 Maintenance of Surviving Spouses Act, 27 of 1990 Bwanya v Master of the High Court, Cape Town and Others [2021] ZACC 51 https://collections.concourt.org.za 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)
Can neighbours interfere in building plans?
Disputes between neighbours tend to ensue where an owner decides to build on or renovate their property and the neighbouring owner believes that such building works will have a detrimental effect on their property rights. Neighbours who are disgruntled by the noise nuisance, possible obstruction of an existing view from their property, or the aesthetic features of the building works, may feel it necessary to object to the building works. The question that must accordingly be posed is, do neighbours have a legal right to object to building works? And if not, what other remedies are available? The National Building Regulations and Building Standards Act (“NBA”) provides for the promotion of uniformity in the law relating to the erection of buildings in the areas of jurisdiction of local authorities. The NBA does not create a legal requirement for an owner to inform their neighbour(s) of a building plan application. In terms of the NBA, neighbours also do not have the right to object to building plans. In Walele v City of Cape Town and Others, the Constitutional Court confirmed that neighbours do not have a general right to be informed of or have access to building plans or to object against them prior to approval. However, the Constitutional Court further held that the rights of neighbours are adequately protected by the duty placed upon the local authority to consider the rights of neighbouring landowners in term section 7 of the NBA. It is important to note that there might exist a legal requirement for an owner to inform their neighbour(s) of a building plan application in terms of the by-laws of a specific local authority. There are also certain exceptions to the general rule confirmed in the Walele case. Neighbours must be notified of building plans in the following instances: Where the application for the approval of building plans is made at the same time as an application for rezoning of the said property; or Where an application is made for the removal of a restrictive condition or covenant, for example, an application for the relaxation of a building line. The local authority may also, in its discretion, invite neighbours to object to the building plans. If an objection is submitted, it will not necessarily prevent the building plans from being approved. The local authority shall consider the objection and exercise its discretion whilst also considering the rights of the neighbours in terms of Section 7 of the NBA. If the applying owner did not follow the correct procedural steps, aggrieved neighbours may have recourse in terms of the Promotion of Administrative Justice Act 3 of 200 (“PAJA”). An aggrieved neighbour could potentially have the decision of the local authority to accept the building plans reviewed if such neighbour has a right or legitimate expectation that was detrimentally affected by the decision. A legitimate expectation could, however, according to established legal principles, only arise from express representations or practices. An aggrieved neighbour would have to exhaust all available internal remedies, if available, before instituting review proceedings under PAJA. Should you be aggrieved by a neighbour’s building plans or works, it is advisable to consult with the local authority and your attorney to discuss the reasons for your objections and the possibility of lodging an objection in the prescribed form. Sources: Badenhorst PJ, Pienaar JM & Mostert H Silberberg and Schoeman’s The Law of Property 5 ed (2006) Durban: Butterworths. The National Building Regulations and Building Standards Act. Van der Walt AJ The Law of Neighbours 2010 Cape Town: Juta. Walele v City of Cape Town and Others 2008 (6) SA 129 (CC). 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)
Death during a divorce: Who takes care of the funeral?
“Family feuds, in relation to who has the right to bury a deceased person, has the potential of permanently dividing the family. These are sensitive disputes that are best suited to be mediated and resolved by family elders rather than being brought to court where there is no winner and a united family structure ends up divided and torn apart. It is a time where the family should be united more than ever, preparing to give the loved one a dignified burial, rather than airing their dirty linen in court”. Polokwane High Court Judge Maake Kganyago stated the latter when handing down her judgment in the Mabulana v Mabulana and Others (LP) (unreported case no 5040/2021, 26-7-2021) matter. The High Court dismissed Mrs Mabulana’s (the Applicant) application to interdict Gledies and Sophy Mabulana (the Respondents) from burying the Applicant’s estranged husband, Wilard Mabulana (the deceased). Gledies was the deceased’s sister-in-law and Sophy the deceased’s sister. Gledies took care of the deceased since 2013, especially while he was sick. The Applicant and deceased were married on 3 July 1996 and three children were born from their marriage. However, as the years passed, the couple realised that their marriage was on rocky waters. The deceased decided to move out of their matrimonial home in 2018 and the couple effectively separated. On 9 January 2018, the Applicant instituted divorce proceedings against the deceased on the grounds that she had no more love or affection towards the deceased. The deceased was apparently disgruntled by the pending divorce proceedings, but eventually agreed that a decree of divorce should be sought on an unopposed basis. The parties further agreed that their joint estate would be equally divided between them. During a court appearance on 30 June 2021, the parties agreed to postpone the hearing of the divorce to 28 July 2021. The reason for the postponement was that the Applicant had to obtain the assistance of an interpreter. The divorce would likely have been finalised on 30 June 2021, was it not for the postponement. On 18 July 2021, the Applicant was informed by one of her children that the deceased had passed away. The Applicant, therefore, started preparing and making arrangements for the deceased’s burial. When the Applicant approached the burial services to claim the body, she was advised that the Respondents brought the deceased to them and that they accordingly cannot assist the Applicant. This led to the Applicant instituting an application to interdict the Respondents from burying the deceased. The Applicant submitted that she had a clear right to bury the deceased as she had been married to the deceased, and the deceased’s will was silent on the issue of the person who had to prepare and arrange the deceased’s funeral. The court held that it was evident from the facts of the matter that the Applicant had lost her love, affection, and respect towards the deceased. The Applicant failed to explain how the death of the deceased had restored the lost love, affection, and respect towards the deceased when she was on the verge of divorcing him. The court pointed out that the deceased, in his will, did not give directions as to who would be responsible for arranging his burial. The deceased, however, made a separate will, despite being married in community of property with the Applicant, and in that will had disinherited the Applicant. According to the court, this was a sign that the deceased had made his position clear that he had severed ties with the Applicant. The court referred to Trollip v Du Plessis and Another where the court held that it was within the bounds of reasonableness to respect the wishes of the deceased, whether expressed in a testament or not, and if no such preference was expressed, to resort to the wishes of the heirs. During the deceased’s final days, he was in the care of the Gledies and expressed his wish that Gledies should bury him. The Applicant was not present when the deceased passed away and they have been separated from each other for a long time. In turning down the wife’s application, the judge held the wishes of the deceased had to be respected. 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)
A child’s best interests and the adoption procedure
‘The best interests of a child’ is a concept deeply entrenched in our legal system – especially since the new constitutional dispensation. Section 28(2) of the Constitution provides that “A child’s best interests are of paramount importance in every matter concerning the child”. The best interest of a child is similarly of paramount importance in the adoption procedure. Adoption is the process whereby someone, over the age of 18, applies to court to be deemed as a child’s parent. The importance of recognizing the child’s best interests in the adoption procedure is acknowledged in the Children’s Act 38 of 2005 (“the Act”). The Children’s Act enunciates the purpose of adoption as to protect and nurture children by providing a safe, healthy environment with positive support, and to promote the goals of permanency planning by connecting children to safe and nurturing family relationships. If you are considering adopting, your first port of call should be to approach an adoption agency. The agency will screen you and ascertain whether there are any children available for adoption. If the agency is satisfied with the screening results, they will put you on a Register of Adoptable Children and Adoptive Parents. The agency will then call you to come into their offices if there are any children up for adoption. A social worker must conduct an interview with the purpose of compiling a report containing information on whether the child can be adopted, the eligibility of the prospective parents, medical information in relation to the child and whether the adoption is in the child’s best interest. The sheriff of the court must then serve a notice on the person(s) required to give consent to the adoption. The following person(s) must give consent to the adoption: Each parent of the child and/or every legal guardian must give their consent. If the child is older than ten years, they must also give consent. If the child is younger than 10 years of age, their consent will only be required if they have the maturity and understanding to consent to the adoption. Consent must be reduced to writing, signed by the person giving the consent and verified by the Children’s Court. A person who gave consent to an adoption, however, has up to sixty days to withdraw their consent after they have given it. There are certain circumstances when consent is not required. The application for the adoption of a child can be made in the Children’s Court and must be accompanied by the social worker’s report, a letter from the provincial head of Social Development, and the applicable consent forms. The presiding officer of the Children’s Court must take certain factors into account before considering whether to allow the adoption. Importantly, the presiding officer must consider whether adoption is in the best interests of the child. Section 242 of the Act states the following legal consequences of adoption: Full parental responsibilities and rights in respect of the adopted child are conferred upon the adoptive parent; The adoptive parent’s surname is conferred upon adopted child, except when otherwise provided in the adoption order; Any marriage and/or sexual intercourse between the adopted child and any other person which would have been prohibited had the child been the adoptive parent’s biological child, is not permitted. Any rights to property that the adopted child acquired before the adoption is not affected. The parental responsibilities and rights of the parent of the adopted child is not automatically terminated when an adoption order is granted in favour of the spouse or permanent domestic life partner of that parent. An adopted child must for all purposes be regarded as the child of the adoptive parent and an adoptive parent must for all purposes be regarded as the parent of the adopted child. The legal consequences would therefore be the same as that between a biological parent and child. 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)
How does the POPI Act affect credit bureaus?
When it comes to the protection of personal information, there are two acts that govern businesses and those working with such information. The Protection of Privacy Information Act (POPIA), which came into effect on the 1st day of July 2021, and the Promotion of Access to Information Act (PAIA), which came into effect on the 9th day of March 2001. With these two Acts in mind, the question is, does a third party have access to the personal information held by registered credit bureaus. POPIA refers to the legislation that governs the lawful processing of one’s personal information and is applicable to any person or organisation that collects, stores, and uses the personal information of any person. Personal information is defined as information that may be used to identify a person. Further, the information should not stand alone; for example, information containing a name and an identity number is more significant than a name on its own. PAIA refers to the legislation that gives effect to the constitutional right of access to any information held by the State, and any information that is held by another person that is required for the exercise or protection of their rights. Credit Bureaus are private bodies registered in terms of Section 43 of the National Credit Act, and as such, they retain, maintain and remove credit information held on a consumer’s credit record. This information is obtained from various sources, such as financial institutions, non-bank lenders, courts, and insurance companies, and is permitted in terms of Section 70(2)(a) and (b), section 70(3)(b) and Regulation 18 (7) of the National Credit Act, 34 of 2005 (NCA). When you complete a credit application form, there are legislated clauses that you agree to when you sign the application, consenting that the creditor may submit the information provided to the credit bureaus for verification. You further consent that the credit bureau involved may store the information on their database and share it with other creditor providers. Credit information includes both negative and positive information about a consumer, and includes, but is not limited to: information relating to identity and contact details, account information, payments and repayments, microloans, previous enquiries conducted on a consumer, information available publicly (such as court judgments), accounts that are in default, other adverse financial behaviour, collection efforts, debt restructuring or rescheduling information, disputes, fraudulent behaviour, property or deeds data, and/or other assets held. The report containing all or part of this information is then sold to lenders and other companies for assessment of risk in the provision of credit and for other purposes. Third parties are only allowed to access this information if they have a lawful or prescribed purpose as set out in Regulation 18 (4) of the NCA, or where the explicit consent of the consumer has been provided. The prescribed purposes, other than for purposes contemplated in the NCA, for which a report may be issued in terms of Section 70(2)(g) of the NCA, are: (a) An investigation into fraud, corruption, or theft, provided that the South African Police Service or another statutory enforcement agency conducts such an investigation; (b) Fraud detection and fraud prevention services; (c) Considering a candidate for employment in a position that requires trust and honesty in regard to the handling of cash or finances; (d) An assessment of the debtors book of a business for the purposes of: The sale of the business or debtors book of that business; or Any other transaction that is dependent upon determining the value of the business or the debtors book of that business. (e) Setting a limit of service provision in respect of any continuous service; (f) Assessing an application for insurance; (g) Verifying qualifications and employment; (h) Obtaining consumer information to distribute unclaimed funds, including pension funds and insurance claims; (i) Tracing of a consumer by a credit provider in respect of a credit agreement entered into between the consumer and the credit provider; or (j) Developing of a credit scoring system by a credit provider or credit bureau. Regulation 18 (5) sets out that should a report be required for a purpose set out in sub-regulation (4)(c) or (e) to (g), the consent of the consumer must be obtained prior to the report being requested. Section 57(1) of POPIA refers to the fact that the responsible party must obtain prior authorisation from the Regulator, in terms of Section 58, prior to processing information of data subjects, if the responsible party plans to: Process any unique identifiers of data subjects Process information on criminal behaviour Process information for the purpose of credit reporting Transfer special personal information While POPIA came into effect on 1 July 2020, with compliance being mandatory as of 1 July 2021 after the grace period of one year being given by the Information Regulator, the commencement of Section 58(2) of POPIA was amended to only come into effect on 1 February 2022, and is applicable to the processing referred to Section 57 mentioned above. In answer to our question above then, should your organisation require prior authorisation from the Information Regulator for the processing of information as per Section 57(1)(a)-(d), an application must be submitted to the Information Regulator prior to the 1 February 2022, failing which you may face penalties. Reference List: PROTECTION OF PERSONAL INFORMATION ACT NO 4 OF 2013 PROMOTION OF ACCESS TO INFORMATION ACT NO 2 OF 2000 NATIONAL CREDIT ACT NO 34 OF 2005 NATIONAL CREDIT REGULATIONS Section 58: https://popia.co.za/section-58-responsible-party-to-notify-regulator-if-processing-is-subject-to-prior-authorisation/ 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)
Must employees disclose their vaccination status?
While employers cannot force their employees to be vaccinated, there are various grounds for dismissing employees who object, provided that the employer has conducted a thorough risk assessment to determine the need for vaccination. They also need to provide every possible reasonable solution to accommodate them. One of the grounds on which an employer can let go of an employee who refuses the jab is the refusal of sharing medical information if they wish to be exempt from their workplace’s vaccine programme for medical reasons. If an employee objects on medical grounds, they may be sent for medical testing to prove the veracity of their claims. Employers must, however, ensure that they are obtaining the consent of their employees before they send them for medical testing and that all the provisions of the Employment Equity Act are closely complied with in relation to discrimination. However, an employer can make the disclosure of medical information mandatory for a public policy reason. Employers can argue that mandatory vaccination and vaccination-related information are critical to the organisation and necessary for the company to continue its operations. An option would be for the inclusion of an employment policy or a workplace vaccination policy which states that vaccination and Covid statuses must be disclosed. If the employer can show that the non-disclosure of it prevents the company from operating, or that it endangers others, it can go as far as dismissing the employee. In terms of the guidelines and directives of the Health Professions Council of South Africa, registered health practitioners can be approached for a patient’s medical details. Any personal information can, however, only be shared in alignment with the council’s ethical rules and regulations. Confidential information can only be shared with the express consent of the relevant parties. Any of the personal information can be shared if all parties expressly grant such permission. However, in some instances, the law can require that medical professionals provide and/or divulge certain medical information without the consent of a patient, by way of a court order if required by law, and/or if the disclosure is in the public interest. Although civil actions for breach of confidence are rare, the issue can be a minefield for the unwary. Thus, those who are about to reveal and/or compel the disclosure of confidential information should carefully consider their grounds for doing so and be clear that there is either consent, lawful authority, or some public interest justification. Reference List: https://www.adams.africa/litigation/disclosure-of-medical-information/ www.businessinsider.co.za/protection-of-personal-information-act-and-covid-19-workplace-vaccinations-in-south-africa 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)