Talking Point April 2016

A succinct discussion of selected topical, legal matters

Dear Friends and Colleagues

I take great pleasure in submitting the April 2016 edition of Talking Point to you.

I am pleased to announce that Walkers has promoted Taryn Herbert to the position of director.

Clarence Seward Darrow (1857 – 1938) was one of the most famous American defence lawyers.  He was a teacher when he decided to study law, and was admitted to the bar in 1878, without a formal law degree.  He practiced general law, for a long time without distinction.  By 1894 he was making a name for himself as a trial lawyer, and went on to become a leading labour lawyer.

In 1911 he defended the McNamara brothers.  They had allegedly blown up the Los Angeles Times building in 1910, which resulted in 20 deaths.  Darrow had reservations about the outcome of the trial, and began negotiations for a plea bargain to avoid the death penalty.  The brothers pleaded guilty, and received long prison sentences.  Darrow was subsequently prosecuted for allegedly attempting to bribe jurors in the case.  He was found not guilty, but was compromised.

The labour movement dropped Darrow, and he then specialised in criminal law.  He was opposed to the death penalty, and avoided death penalty sentences in several famous cases.  As a champion of the underdog, he represented the accused in the famous legal case discussed in this issue.

Darrow has been used in a South African Supreme Court of Appeal judgment as the prime example of a competent defence lawyer.  He is perhaps the most often quoted practicing lawyer (he was never a judge or a politician) of the past century:

 

  • I have suffered from being misunderstood, but I would have suffered a hell of a lot more if I had been understood.

  • The world is made up for the most part of morons and natural tyrants, sure of themselves, strong in their own opinions, never doubting anything.”

  • It’s not bad people I fear so much as good people.  When a person is sure that he is good, he is nearly hopeless; he gets cruel – he believes in punishment.”

  • A criminal is a person with predatory instincts; but, without sufficient capital to form a corporation.”

  • To be an effective criminal defense counsel, an attorney must be prepared to be demanding, outrageous, irreverent, blasphemous, a rogue, a renegade, and a hated, isolated, and lonely person – few love a spokesman for the despised and the damned.”

    The first half of our lives are ruined by our parents and the second half by our children.”

The Protection of Personal Information Act (POPI) has been law since 2013, but only the definitions, the provisions for establishment of the Information Regulator (the enforcer of POPI), and the authorisation for promulgation of regulations are at present operative.  The provisions that create compliance requirements remain in limbo.  We have studied POPI, and the application of similar legislation abroad.  Once POPI is fully operative, it will have a significant effect on how many of us do business in South Africa.  This is the first edition in which we provide a taste of life under POPI.

In homage to the recent April Fool’s Day, we lead with an article that cautions against practical jokes in the workplace.

As always, I would greatly appreciate your feedback on Talking Point. Please email me at charlt@walkers.co.za.

Regards

Charl Theron

In this issue:

LEGAL MATTERS

 

Sexual orientation jokes aside, not in the workplace

Jerome 2by Jerome Veldsman

There are some similarities between, respectively, the South African Promotion of Equality and Prevention of Unfair Discrimination Act and the Protection from Harassment Act, and the UK Equality Act.  Otomewo v Carphone Warehouse Ltd was a case in 2012 in the UK Employment Tribunal (similar to our Labour Court, but also an ‘equity court’).

A manager of Carphone Warehouse was under investigation for (heterosexual) sexual harassment, and it was not in dispute that he was heterosexual.  As a prank, an employee who worked under the manager accessed his smartphone, at work, during working hours, and without his consent or knowledge.  The prankster ‘updated’ the manager’s Facebook status to: “Finally came out the closet.  I am gay and proud.”  The manager was not amused, but the next day, after a rant, he did not file a formal complaint with the employer.

The manager/employer relationship was stormy, and the manager was soon dismissed for an unrelated matter.  He sued the employer for wrongful dismissal and instituted a sexual orientation discrimination claim against the employer based on the Facebook status ‘update’.

As to the sexual orientation discrimination claim, the Tribunal held:

– one purpose of the Equality Act was to protect a person against being harassed on the grounds of sexual orientation, whatever the person’s sexual orientation may be;

– the Facebook status ‘update’ had the effect of humiliating the manager;

– as all concerned happened in the workplace, the employer would be vicariously liable for the wrongdoing of the prankster; and

– only because the manager had relented on the formal complaint, this claim failed.

As to the wrongful dismissal claim, the manager succeeded on procedural grounds, but did not achieve a reward for damages.

How would the sexual orientation discrimination claim be dealt with in South Africa?  It is not conclusive that the equality legislation would assist the manager, as the prank does not involve discrimination, and was not on-going.  The manager may succeed with a defamation claim against the prankster, but any damages award would be modest.  The employer may be vicariously liable for the wrongdoing of the prankster, but vicariously liability is fickle.  If the manager filed a formal complaint with the employer, the prankster may or may not face dismissal.  As a precaution, an employer ought to place such unauthorised accessing of any electronic device on the prohibited list in its electronic resources policy.

 

Parents must look after their own children

Nosi smallby Nosipho Madikiza and Melissa Gerber

Van Vuuren v Ethekwini Municipality, a judgment of the High Court, Durban on 19 February 2016, dealt with the issue of whether a municipality was under a legal obligation to control or supervise children using a specific public facility.

At the relevant time, the Durban beachfront included a swimming pool with a slide for under twelves.  The facility belonged to the Municipality, who did not supervise use of the facility.  An eight year old boy used the slide, whist his mother was in close proximity: twice without incident, but he lost control on his third slide, and sustained a serious facial injury.  The mother sued the Municipality for damages as a result of the injury to her son.

The primary question was whether the Municipality had failed to take the necessary preventative action in circumstances where the law required it to do so.

The Court answered the question in favour of the Municipality:

In my view it is reasonable for the Municipality to expect that the parents of young children would supervise and control them.  Parents are best equipped to know their children and their children’s behaviour, also their strengths and weaknesses which includes their ability to use a water slide.  Members of the public have every right to reasonably expect parents to guard their children against harm.  [The eight year old boy] was not an unattended minor on this day, he was duly supervised by his mother who was satisfied that the slide was safe and that her child was in no danger.”

The Court further stated that a municipality is not under a duty to secure supervisors or playground police at all playgrounds under its control; and parents should fulfil the duty of parental care and supervision.

Many may find this judgment a welcome respite from some recent ‘nanny state’-like judgments.  In terms of section 28(2) of the Constitution, a child’s best interests are of paramount importance in every matter concerning the child.  If this case was to reach the Constitutional Court, it may be the end of unsupervised public swimming pools for children.

 

Inaction by Home Affairs, and an action for damages

Jerome 2by Jerome Veldsman 

In terms of the relevant part of section 34(1) of the Immigration Act 13 of 2002, an immigration officer may arrest an illegal foreigner, and, pending deportation, cause the illegal foreigner to be detained in a manner and at a place determined by the Director-General of the Department of Home Affairs.

Very many illegal foreigners have been detained, at Lindela Detention Facility in Krugersdorp and in prisons and police stations countrywide.  In Rahim and others v Minister of Home Affairs, 14 Bangladeshis and one Ghanaian (the plaintiffs), all unsuccessful asylum-seekers, and thus illegal foreigners, who had been so detained, for periods ranging from 4 to 35 days, took the Minister on, and claimed damages for their averred unlawful detention.

The plaintiffs averred that their detention was unlawful because they had been detained at places other than as determined by the Director-General, as the Director-General had not made any such determination whatsoever.  The Minister could not provide evidence of any such determination.  However, in the High Court, Port Elizabeth, the plaintiffs lost (on 9 July 2013).

On appeal to the Supreme Court of Appeal (SCA), the plaintiffs won (on 29 May 2015), and the SCA awarded them damages ranging from R3 000 to R25 000.  In brief, the SCA held that the purpose of the relevant part of section 34(1) was to ensure the Director-General actually applies his or her mind to what places are appropriate for the detention of illegal foreigners, having regard to international norms for their detention, and then determines appropriate places for their detention.  Absent such determination, their detention anywhere is unlawful.

The Minister appealed to the Constitutional Court (CC), who delivered judgment on 18 February 2016.  In the CC, the only real argument by the Minister was that the unlawful detention was a failure to fulfil a public duty, but did not translate into a private action for damages.  This was not good enough.  The CC has previously held that delictual relief (damages) ought to be awarded for the infringement of constitutional rights in appropriate circumstances.  The Court found these indeed to be appropriate circumstances:

Although they are foreigners, and in this country illegally, persons in that category nonetheless enjoy the protection of the Constitution, at least so far as the principle of legality, and their right to respect for their dignity, is concerned.  Yet they are amongst the most vulnerable in our society, with no political or social influence over the laws that govern them, often living on the margins of society, without communal support, assistance or influence to ensure compliance with the law by public officials.”

Neither the CC nor the SCA considered any practical implications.  This case may open the floodgates for thousands of detained illegal foreigners to sue the Minister (and remain in the country for the duration of the litigation).  The Director-General must now determine appropriate places for detention; and, internationally, prison facilities are generally not regarded as appropriate.  Where will such places be?  Will the State build new establishments, and at what cost?  From what other State expenditure will the money be diverted?  In the meantime, presumably, as of 18 February 2016, all detained illegal foreigners had to be released, and the further arrests of illegal foreigners halted.

 

What is in a date?  The financial end game to a marriage

Rox small by Roxanne Ker

Under the Matrimonial Property Act (1984), spouses can marry in community of property, fully out of community of property, or out of community of property with the application of the accrual system.  A marriage is dissolved by the death of a spouse, or by divorce.  This article deals with the dissolution by divorce of a marriage under the accrual system.

In brief, under the accrual system:

– at the commencement of the marriage, the respective values of the estates of the spouses are ‘pegged’;

– during the marriage, each spouse remains sole owner of his or her own property, and is responsible for his or her own debts; and

– in terms of section 3(1) of the Matrimonial Property Act, at the dissolution of a marriage by divorce, excluding the pegged values, the aggregate gain/loss in the value of the combined estates (excluding inheritances and the like) is shared equally – so usually one has to pay a balancing amount to the other.

With reference to what exact date must the exact aggregate gain/loss in the value of the respective estates be determined?  Various High Courts have given different answers to this question.  The two contending dates:

– the date on which the pleadings in the divorce action are considered closed, which is usually once the ‘defending’ spouse has in Court documents finally responded to the other spouse’s claim (referred to in the trade as litis contenstatio – the moment at which the allegations of the litigants are finalised and ready for adjudication); and

– the date on which a Court grants the actual order of divorce, and the marriage is (officially) dissolved.

In practice, in a contested divorce, it could take say four months from the service of the divorce summons for litis contenstatio to occur, and thereafter a year or three before the case is adjudicated in Court, and a Court grants the order of divorce.

The argument in favour of the earlier date (litis contenstatio) was that: “this principle will do much to limit the temptation to squander assets that some spouses seem to find irresistible“, and otherwise stated that it was a “practical solution to the problem of malicious dissipation of assets during the time between the break-up of a marriage and its dissolution“.

The argument in favour of the later date was simply that the Matrimonial Property Act stipulates the later date, and that is that.

Brookstein v Brookstein, a judgment of the Supreme Court of Appeal on 24 March 2016, provided the final answer in favour of the later date, and held that the argument in favour of the earlier date cannot obscure what is the clear meaning of the Matrimonial Property Act:

Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used.  To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation.”

The drafters of the Matrimonial Property Act were aware of the potential abuse mentioned in the argument in favour of the earlier date.  In terms of section 8(1), a Court may on application of a spouse, who satisfies the Court that his or her right to share in the accrual of the estate of the other spouse at the dissolution of the marriage is being or will probably be seriously prejudiced by the conduct or proposed conduct of the other spouse, order the immediate determination of the aggregate gain/loss in the value of the combined estates to determine the balancing amount payable.  Section 8(1) will be discussed in a subsequent issue of Talking Point

 

Operation Texas’ – a classic SAPS sting operation

Jerome 2by Jerome Veldsman 

The facts described in Shamduth Singh & others v The State, a judgement of the Supreme Court of Appeal (SCA) on 24 March 2016, could provide the basis for an episode in a police procedural TV series.

Under the Criminal Procedure Act 51 of 1977, a duly authorised person may make use of a trap and/or an undercover operation in order to detect, investigate, or uncover the commission of an offence.  Evidence so obtained is automatically admissible in Court against an accused ‘caught in the trap’, unless the conduct of the authorised person is ‘tainted’.

The objective of this sting operation was to infiltrate and detect criminal activities of a syndicate that was involved in several incidents of hijackings and armed robberies of large 18 wheeler trucks along the N3 highway between Durban and Gauteng.  A few truck drivers had been murdered, and the syndicate always stole the wheels of the trucks.

The main challenge in apprehending the culprits was that the incidents occurred randomly, usually at night, and anywhere along the N3 highway.  SAPS had apprehended some ‘foot soldiers’, but had difficulty in collecting evidence against the suspected main perpetrators and ‘management’ of the syndicate.

SAPS used a trap agent (one Sergeant Smith, a SAPS officer), who was eventually the star witness against the accused.  The agent found an individual who transported stolen truck wheels for the syndicate, and wanted out of the business (for an undisclosed reason).  This individual introduced the agent to a more senior person in the syndicate, and suggested the agent as a replacement transporter.  Such person later contacted the agent, and in due course the agent secured the job.  SAPS equipped him with a 4 ton truck ideal for transporting truck wheels, and fitted out with multiple video recording cameras and a tracking device.

On six separate occasions, on instruction of the syndicate, the agent attended at the scene of a truck high jacking, and conveyed the wheels that had been removed from the trucks to a specified address, where he was paid for his effort.  All the while, the video cameras and the tracking device were activated.

SAPS had collected insurmountable evidence against the accused persons.  At the trial in the High Court, Durban, the accused challenged the admissibility of the evidence collected during the sting operation under the Criminal Procedure Act, but to no avail.  The Court found that SAPS’ conduct had been ‘by the book’, and that the operation served the interests of the public at large.

The mastermind of the syndicate was found guilty of corruption, money laundering, racketeering, and robbery; and sentenced to an effective prison term of 35 years (with many individual sentences to run concurrently).

A physical perpetrator of the truck hijackings was found guilty of corruption, kidnapping, money laundering, racketeering, robbery, and unlawful possession of a firearm; and sentenced to an effective prison term of 30 years (with many individual sentences to run concurrently).

A lesser role player was found guilty of robbery (two charges); and sentenced to an effective prison term of 30 years.

The three appealed to the SCA against the admissibility of the evidence, and the sentences.  However, they abandoned the challenge to admissibility of the evidence under the Criminal Procedure Act, and relied instead on 35(5) of the Constitution – which includes that evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would be detrimental to the administration of justice.

The SCA was unimpressed:

Public opinion is one of the relevant considerations on whether rights violations are detrimental to the administration of justice – and it is unacceptable to the public when courts exclude evidence indicating guilt particularly in the current state of endemic violent crime in all parts of our country.  …  I thus do not hesitate to find that the public would baulk at the idea that the law enforcement agencies failed to take bona fide measures aimed at effective detection of such an organised crime syndicate because of the fear that there may be danger to the public, specifically in the present circumstances where the crimes would have taken place irrespective of the operation.  Indeed the reaction would be one of ‘shock, fury and outrage’.”

However, the SCA regarded the sentences as “disproportionately harsh”.  The mastermind of the syndicate and the physical perpetrator of the truck hijackings had their sentences reduced to effective prison terms of 20 years.  The lesser role player had his sentence reduced to an effective prison term of 15 years.

 

CCTV and POPI

Jerome 2by Jerome Veldsman 

Some terminology in brief:

processing is any activity concerning personal information; and;

personal information is any information relating to an identifiable living natural person or juristic person.

There are a few activities that are excluded from the compliance requirements, including the processing of personal information in the course of a purely personal or household activity.

One Mr Ryneš and his family had been the victims of crime, so he installed and used a camera system located under the eaves of his family house (in Prague, Czech Republic).  The system recorded the entrance to the house, the street in front of the house, and the entrance to the house opposite.  The system stored the visual recording on a hard disk drive.  As soon as it reached full capacity, the device would record over the existing recording, erasing the old material.  No monitor was installed on the recording equipment, so the images could not be studied in real time.

Someone reported this surveillance to the Information Regulator, who found Ryneš guilty of a number of offences in relation to the protection of personal information, including using the camera system to collect, without their consent, the personal information of persons moving along the street or entering the house opposite.

Ryneš challenged the ruling in the City Court (Prague), but lost again.  He appealed to the Supreme Administrative Court (Czech Republic), and this Court requested a ruling from the European Court of Justice on the question whether the camera system was a purely personal or household activity.  The latter Court ruled on 11 December 2014 against Ryneš that:

To the extent that [such] video surveillance … covers, even partially, a public space and is accordingly directed outwards from the private setting of the person processing the data in that manner, it cannot be regarded as an activity which is a purely ‘personal or household’ activity.”

Will a South African court be more pragmatic?  One wonders.

 

The State of Tennessee v. John Thomas Scopes

The operative part of the Tennessee Anti-Evolution Act of 1925 read:

That it shall be unlawful for any teacher in any of the Universities … and all … public schools of the State which are supported in whole or in part by the public school funds of the State, to teach any theory that denies the Story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals.

The subject was politically topical at the time (known as the Fundamentalist-Modernist Controversy).  Twelve other State legislators debated similar legislation, but of them only Arkansas enacted an anti-evolution statute (in 1928).  This was really about votes, and neither State had any real intention of enforcing the anti-evolution statute.  There was never a prosecution in Arkansas.  The only prosecution in Tennessee was orchestrated by the American Civil Liberties Union as a test case to challenge the constitutionality of the statute.

John Scopes, a public school teacher, volunteered to be the ‘notional’ defendant (accused).  Scopes orchestrated evidence against himself, and his trial by jury commenced on 10 July 1925.  His defence was led by the famous Clarence Darrow, an agnostic.  William Bryan, an avowed Christian, argued for the prosecution.

The Judge instructed the jury not to judge the merit of the law, but the violation of the law.  Darrow’s original strategy had been to attack the constitutionality of the law as being in conflict with Scopes’ individual rights and academic freedom.  He changed strategy to argue that there was actually no conflict between evolution and the creation account in the Bible.  He endeavoured to call eight experts on evolution as witnesses, but the Judge allowed only one to testify, and ruled the other seven may submit written statements that could be used at the appeal.

Darrow again changed strategy, and attacked the literal interpretation of the Bible, calling several witnesses.  The Judge excluded the jury from this evidence, and then ruled that the evidence was irrelevant, and may not be presented to the jury.

The proceedings then became truly ludicrous.  On the seventh day of the trial, Darrow applied to call Bryan (the prosecutor) to give evidence as a “Bible expert”.  Bryan accepted, on the basis that Darrow would likewise submit to questioning by Bryan.  The Judge excluded the jury.  Bryan testified first, and after about two hours of heated confrontation between the two, the Judge ruled the exercise as irrelevant, and expunged Bryan’s evidence from the record.  Darrow threw in the towel, and conceded to a guilty verdict.  The Judge imposed a fine of USD 100 (the minimum fine under the statute).

The trial has featured in several films and plays, including the 1991 film Darrow, with Kevin Spacey in the main role.

The appeal to the Supreme Court of Tennessee was a more muted affair.  Darrow argued several constitutional points, which were all rejected by the majority of the Court:

The plaintiff … was a teacher in [a] public school … He was an employee of the State … He was under contract with the State to work in an institution of the State.  He had no right or privilege to serve the State except upon such terms as the State prescribed.  His liberty, his privilege, his immunity to teach and proclaim the theory of evolution, elsewhere than in the service of the State, was in no way touched by this law.

However, there was a twist in the tale.  Under the Constitution of Tennessee (at the time), a fine in excess of USD 50 had to be assessed by a jury.  As the trial Judge had assessed the fine of USD 100, the guilty verdict was set aside on a technical point.

The State was accordingly entitled to prosecute Scopes afresh, but waived the right to do so.  In 1967 a Tennessee teacher was dismissed for violation of the anti-evolution statute, and sued.  The State immediately repealed the statute.

In 1965 Susan Epperson, an Arkansas teacher, challenged the constitutionality of the Arkansas anti-evolution statute.  She was successful in the court of first instance, but the Supreme Court of Arkansas sustained the statute as within the State’s power to specify the public school curriculum.  Epperson appealed to the USA Supreme Court, the State offered only notional opposition, and the Court struck down the statute (in 1968).