Talking Point August 2015

A succinct discussion of selected topical, legal matters

Dear Friends and Colleagues

I take great pleasure in submitting the August 2015 edition of Talking Point to you.

Jeremy Bentham (1748-1832) was a prolific English jurist and philosopher; best known as a main founder of Utilitarianism, one of the best known and influential theories in normative ethics. He was a child prodigy, a brilliant scholar, and fortunate enough to inherit well, so that he could concentrate on his writing, without having to earn an income. Bentham published his most famous quote (described by him as a “fundamental axiom“) in 1776 in the anonymous publication A Fragment on Government:

It is the greatest happiness of the greatest number that is the measure of right and wrong.”

In brief, Bentham recognised the fundamental role of pain and pleasure in human life, approved or disapproved of an action on the basis of the amount of pain or pleasure brought about (consequences), equated good with pleasure and evil with pain, and asserted that pleasure and pain are capable of quantification/measure.  Utilitarianism played a significant role in the famous case discussed at the end of this issue. Some of the other well-known Bentham quotes:

Lawyers are the only persons in whom ignorance of the law is not punished.”

The power of the lawyer is in the uncertainty of the law.”

Create all the happiness you are able to create; remove all the misery you are able to remove. Every day will allow you, –will invite you to add something to the pleasure of others, –or to diminish something of their pains.”

It is vain to talk of the interest of the community, without understanding what is the interest of the individual.”


ES v AC (in the interests of the minor children the names of the parties were anonymized – rather pointless, as the names of the parties appeared in the judgment of the Court of first instance, which is freely available on the internet), a judgment of the Supreme Court of Namibia (SCN), on 24 June 2015, dealt with the right of an adult to refuse medical treatment and a durable power of attorney for health care.  The two topics are dealt with separately in this issue.  Also in this issue: a dicey will and testament; “terrorist activities” and the USA; debtors failing to escape liability; and another development in trust law.  The famous legal case discussed in this issue concerns conjoined twins.

As always, I would greatly appreciate your feedback on Talking Point. Please email me at


Charl Theron

In this issue:


The right of a parent to refuse medical treatment versus the right of a child to a parent

Jerome smallby Jerome Veldsman

ES v AC dealt with the right of an adult to refuse medical treatment.

Ms ES, an adult female, was a Jehovah’s Witness who believed in following a specific moral and religious code that includes a scriptural command to abstain from the ingestion of blood.  She gave birth by caesarean section, and the child was successfully delivered, but it soon became apparent that she needed an urgent hysterectomy.  During the hysterectomy, her haemoglobin reading dropped to a dangerous level, and the question arose whether the hospital could be authorised to administer a non-consensual blood transfusion.

In the SCN, the majority (Shivute CJ, with O’Regan AJA concurring) held against a non-consensual blood transfusion, essentially on the arguments summarised in the following quotation by Shivute CJ from an unpublished doctoral thesis:

“The fundamental principle of self-determination puts the decision to undergo or refuse a medical intervention squarely where it belongs, namely with the patient. It is, after all, the patient’s life or health that is at stake and important though his life and health as such may be, only the patient is in a position to determine where they rank in his order of priorities, in which the medical factor is but one of a number of considerations that influence his decision whether or not to submit to the proposed intervention. But even where medical considerations are the only ones that come into play, the cardinal principle of self-determination still demands that the ultimate and informed decision to undergo or refuse the proposed intervention should be that of the patient and not that of the doctor.”

The majority also dealt in detail with the main counter argument that, because Ms ES was the mother of three young children, who have the constitutional right to know and be cared for by their parents as far as possible, a non-consensual blood transfusion ought to have been allowed.  Following a discussion of international law, the majority rejected the counter argument, essentially on the arguments summarised in the following quotation by Shivute CJ from a USA case:

“The State’s interest in promoting the freedom of its citizens generally applies to parents. The State does not prohibit parents from engaging in dangerous activities because there is a risk that their children will be left orphans. There are instances, as the hospital notes, where the State has prohibited the public from engaging in an especially hazardous activity or required that special safety precautions be taken by participants. But we know of no law in this State prohibiting individuals from participating in inherently dangerous activities or requiring them to take special safety precautions simply because they have minor children. There is no indication that the State would take a more intrusive role when the risk the parent has assumed involves a very personal choice regarding medical care. On the contrary, the policy of New York, as reflected in the existing law, is to permit all competent adults to make their own personal health care decisions without interference from the State.”

In the minority judgment, Mainga JA would have found that the right of Mrs ES’s children in preventing their mother from abandoning them through death is sufficient justification for having ordered the blood transfusion.

There are substantial similarities between Namibian and South African constitutional law.  A South African Court may well come to the same conclusion as the majority regarding similar facts.


Durable power of attorney for healthcare

Jerome smallby Jerome Veldsman

ES v AC also dealt with the a durable power of attorney for health care (DPAHC): an advance written directive in which an individual (A) grants the power of attorney to another individual (B) to make health care decisions regarding A in the case of A suffering an incapacitating medical condition, in the discretion of B and in accordance with the wishes expressed by A in the written directive.

Under the common law of many jurisdictions (including South African and Namibia), a power of attorney becomes invalid once the grantor suffers an incapacitating medical condition.  That makes a DPAHC a ‘dead letter’.  Many jurisdictions provide by statute for a DPAHC.  The South African Law Commission recommended in 1988 that a DPAHC should be introduced in our law. The government has to date not implemented the recommendation.

In ES v AC, the SCN unanimously introduced a DPAHC into Namibian law:

“No such legislation has been passed in Namibia, but in my respectful view written advanced directives which are specific, not compromised by undue influence, and signed at a time when the patient has decisional capacity constitute clear evidence of a patient’s intentions regarding their medical treatment. To subject a patient to treatment against his or her stated wishes in circumstances where there is no reason to believe that the patient has changed his or her view (i.e. the instructions contained in the advanced directive are consistent with the conduct and communications of the patient) risks contravention of that person’s constitutional rights, including Art 7 (protection of liberty) and Art 8 (respect for human dignity).”

There are substantial similarities between Namibian and South African constitutional law.  A South African Court may well come to the same conclusion regarding similar facts.


No will, no way

Matt 3by Matt van Eden

Thompson v Master, a judgment of the High Court, Cape Town, on 25 May 2015, dealt with the Court’s power to condone non-compliance with the strict formalities for the execution of a will (also called a testament). 

In terms of the Wills Act 7 of 1953 (simplified), for a will to be valid:

– a testator (or someone in his or her presence and by his or her direction) must sign a will on each page and at the end of the will; and two witnesses must likewise sign the will in the presence of the testator and of each other; or

–  in the event of non-compliance with the formalities, in respect of a document drafted or executed by the testator, if a Court determines that the relevant document was intended by the testator to be his or her will, although the document does not comply with all the formalities.

(Note the underlined text.)

In this case, the disputed document came into being whilst the testator was in a frail care facility.  The testator had informed her brother (the applicant in this case) that she wished to change her will to benefit him.  He went to the frail care facility to attend to the testator’s new will.  At such time, her health had deteriorated to such an extent that she was only able to communicate in general by nodding her head, opening or closing an eye, or grunting in response to a question.

The brother asked the testator: “Do you want to leave all your worldly possessions to your brother Alana Thomas Thompson?”  The testator responded by grunting.  He then typed the document (one page) providing for himself as the only heir, and handed the page to the matron of the facility, who assisted the testator to place her thumbprint on the document, as she was unable to use a pen.

It is established law that a Court must consider the following three elements –

 – whether the document in question is in existence;

– the factual situation regarding the drafting and execution of the document by the testator (drafting requirement); and

– the intention by the testator that such document should be her will (intention requirement).

The relevant document clearly was in existence.

The Judge considered the drafting requirement.  There have been conflicting decisions between (1) a strict and literal interpretation, and (2) a broad and flexible approach.  On the facts, the document in question had not been drafted or executed by the testator.  The Judge favoured the strict and literal interpretation and application, and the application failed – the document concerned was a nullity.  This, amongst other things, has the desired effect of preventing potential fraud.

As the application failed on the drafting requirement, the Court did not need to consider the intention requirement.

It requires skill to assist a physically infirm person to make a valid will.  Such situation is best avoided, and one’s testament ought to be finalised whilst physically competent.

The ‘right’ of spouses to live together

Rox smallJerome casual by Roxanne Ker and Jerome Veldsman

Kerry, Secretary Of State v Din, a judgement of the USA Supreme Court on 15 June 2015, dealt with the claim by Ms Din (Fauzia), a citizen and resident of the USA, against the Government concerning the issue of an immigrant visa to her husband (Berashk).

Berashk was a citizen and resident of Afghanistan, and also a former civil servant in the Taliban regime.  Fauzia applied, with success, to have Berashk classified as an “immediate relative”, and this entitled him to priority immigration status.  However, Berashk’s visa application was denied, and a consular officer informed Berashk (only) that he was inadmissible under the (USA) Immigration and Nationality Act that excludes aliens who have engaged in “terrorist activities” (very widely defined).

Berashk was unable to take any action, as he was “an unadmitted and nonresident alien, [with] no right of entry into the United States, and no cause of action to press in furtherance of his claim for admission.

Unable to obtain a more detailed explanation for Berashk’s visa denial, Fauzia filed suit.  The court of first instance dismissed her complaint.  The first court of appeal reversed, holding that (1) Fauzia had a protected liberty interest in her marriage that entitled her to review of the denial of Berashk’s visa, and (2) the Government had deprived her of that liberty interest without due process when it denied Berashk’s visa application without providing a more detailed explanation of its reasons.

The Due Process Clause (in the Fifth and Fourteenth Amendments to the USA Constitution) is very technical, and includes protection against deprivation of life, liberty, or property, without due process of law.

The Government appealed to the Supreme Court (approximately the equivalent of our Constitutional Court).  The eleven Justices held as follows:

– Three Justices concluded that the Government did not deprive Fauzia of any constitutional right entitling her to due process of law.

– Two Justices filed a concurring separate opinion that there was no need to decide whether Fauzia had a protected liberty interest, because even if she did, the notice she received satisfied due process.

– Four Justices filed a dissenting opinion that Fauzia possessed the kind of “liberty” interest in living together with her husband in the United States to which the Due Process Clause grants procedural protection, and the Government failed to provide her with that to which she was entitled.

By a majority of five to four, the Government prevailed.  Note that to a large extent the case was about procedure – Fauzia’s right to more a detailed explanation of the Government’s reasons, and that an adequate reason is required for the denial of the visa.  The case does not deal with the merits of the denial.

On the matter of marriage and the Due Process Clause:

– The minority regarded the institution of marriage, encompassing the right of spouses to live together and to raise a family, as central to human life, as requiring and enjoying community support, and as playing a central role in most individuals’ orderly pursuit of happiness.

– The majority judgement criticised the minority’s assertion that Fauzia held a constitutional right to live in the USA with her husband; and stated that there is no “free-floating and categorical liberty interest in marriage“.

The Justices were rather scathing of each other’s views on constitutional rights and the Due Process Clause.  Such ‘bun fights’ in the Supreme Court often follow ideological lines.  Our Constitutional Court is not immune from such ideological lines, but to date uses more temperate language.

How would the Din matter have been decided in South Africa?  On paper, our Constitution places even more emphasis on the importance of human rights, and our approximate equivalent of “liberty” is perhaps even wider.  Here, the decision may ultimately have gone say six to five in favour of Fauzia.  One may as well flip a coin.

The wide reach of a mortgage bond

Nox small by Nox Malumbete

Panamo Properties v Land and Agricultural Development Bank, a judgement of the Supreme Court of Appeal (SCA) on 22 May 2015, dealt with the validity of a loan agreement and a mortgage bond.

The parties entered into a loan agreement in terms of which the Land Bank lent money to Panamo, to be used for the acquisition of certain agricultural properties and the development of a (residential) township on the properties. A mortgage bond was registered over the properties in order to secure the loan obligations of Panamo.

Later, Panamo contended that the loan agreement was invalid, and consequently the mortgage bond was also invalid.  The reason for such contention was probably an unwillingness to repay the loan.

The SCA held that the loan agreement was indeed invalid.  The Land and Agricultural Development Bank Act authorises loans for agricultural development.  The purpose of this loan was the opposite of agricultural development.  If a public institution enters into a transaction that is not authorised by its founding legislation; it cannot be bound by the transaction.

However, the invalidity of the loan agreement did not mean that the loan amount was a gift by the Land Bank to Panamo.  The Land Bank has a claim against Panamo for repayment of the loan amount based on unjustified enrichment.

The SCA dealt with the enforceability of the mortgage bond despite the finding that the loan agreement was invalid.  The mortgage bond provided continuing covering security for four distinct and separately stated categories of debt –

– money advanced by the Land Bank to Panamo;

– money to be advanced by the Land Bank to Panamo;

– money that the Land Bank may from time to time in the future advance to Panamo; and

– in general, for any existing or future debt that Panamo owes or may owe to the Land Bank.

The SCA held that, also with regard to the preamble and other provisions in the mortgage bond, the last category of debt clearly covered a debt arising from unjustified enrichment.  Accordingly, the SCA found that: There is no basis for an order declaring that the bond is not enforceable due to the invalidity of the loan if the Bank has a claim against Panamo for unjust enrichment.”

One wonders whether disciplinary measures were taken against whoever at the Land Bank purported to ‘authorise’ the loan.


No way out for a trust

Bianca by Bianca Patrick

Standard Bank v Swanepoel, a judgment of the Supreme Court of Appeal (SCA), on 11 May 2015, considered the naming of a trust as a party to a contract.

Standard Bank (as lender) and Mr Swanepoel, a trustee, (as borrower) entered into a written loan agreement.  The loan agreement specifically reflected the trust as the borrower.  In addition, Mr Swanepoel, in his personal capacity, stood surety for the obligations of the trust.

The trust defaulted on repayment of the loan, and Standard Bank instituted action against Mr Swanepoel (1) in his capacity as trustee of the trust, and (2) against him personally as surety.  Mr Swanepoel contended that the loan agreement was invalid, and consequently the suretyship was also invalid.  The reason for such contention was probably an unwillingness to repay the loan.

Mr Swanepoel’s main argument was that the loan agreement was between the bank and the trust; and, as a trust has no separate juristic/legal personality, a trust has no contractual capacity, and accordingly the loan agreement was invalid.

The SCA affirmed that a trust has no separate juristic/legal personality.  However, a trust is an entity, and can be a party to a contract, as long as it is clear that the contract is entered into by a duly authorised trustee acting in such capacity for the trust.  Mr Swanepoel lost.

With reference to the article The wide reach of a mortgage bond above, Standard Bank may well in any event have succeeded with an enrichment claim against the trust.


The Jodie and Mary case

The title of the reported decision by the England and Wales Court of Appeal on 22 September 2000 is Re: A (Children), and in the judgment the pseudonyms Jodie and Mary were used for the two six week old conjoined twin sisters (they were conjoined at the lower abdomen and shared a spine).

At birth, Jodie had an anatomically normal brain, heart, lungs, and liver, and her bowel was normal and separate from that of Mary.  However, Mary had a very poorly developed ‘primitive’ brain, a large abnormally functioning heart, and a virtual absence of functional lung tissue.  Mary was only alive because of a shared artery with Jodie.

There were two ways of treating the situation:

 –Permanent union: “This … condemns a potentially normal Jodie to carry her very abnormal sister, Mary, throughout the life of both. In view of the anatomical disposition Jodie will be unable to walk or even sit up appropriately. She is liable to progressive high output heart failure, which may lead to her earlier death within weeks or months.”  This approach would perforce include the on-going latent risk of urgent separation (if permanent union led to acute catastrophe); which would lead to Mary’s death and a high mortality risk for Jodie.

– Elective separation: “… will lead to Mary’s death, but will give Jodie the opportunity of a separate good quality life.” (Jodi had a 94% chance of survival if she was separated from Mary).

The parents were in favour of permanent union: “We cannot begin to accept or contemplate that one of our children should die to enable the other to survive. That is not God’s will.”  The Hospital was in favour of (immediate) elective separation, so as to give Jodie a life which will be worthwhile.

The Hospital initiated the litigation with an application for a declaration that the operation may be lawfully carried out.  The Hospital succeeded in the court of first instance, and the parents appealed.

The three appeal judges gave separate lengthy judgments, but all three dismissed the appeal and confirmed the lawfulness of elective separation.  The England and Wales Court of Appeal also granted leave to the parents to appeal to the House of Lords.  Prior to 2009, the Appellate Committee of the House of Lords (the upper house of the Parliament of the UK) was the court of final appeal in the UK.

The parents did not appeal.  The operation was performed.  Mary’s life ended.  Today, Jodie is living a normal life and wants to become a doctor.

Aside from the emotional and moral aspects, the judges grappled with the concept of authorising the ‘murder’ of Mary.  The UK doctrine of necessity permits under certain circumstances harm to another in self-preservation.  This was accepted as an expression of the philosophy of Utilitarianism.  However, the emphasis on the importance of human rights militates against a deliberate killing.  Yet, the final decision was a direct application of Utilitarianism.  One judge found a solution as follows:

In this case the purpose of the operation would be to separate the twins and so give Jodie a reasonably good prospect of a long and reasonably normal life. Mary’s death would not be the purpose of the operation, although it would be its inevitable consequence. The operation would give her, even in death, bodily integrity as a human being. She would die, not because she was intentionally killed, but because her own body cannot sustain her life.”