Talking Point June 2015

A succinct discussion of selected topical, legal matters

Dear Friends and Colleagues

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

Jerome K. Jerome (1859 – 1927) was a prolific English writer of books, essays, and plays, but is best known for the comic mainly fictional travel piece Three Men in a Boat (1889). He started a lowly career after leaving school at the age of fourteen, and was destitute until the success of this book.

The classic Jerome K. Jerome quote:

“It always does seem to me that I am doing more work than I should do. It is not that I object to the work, mind you; I like work: it fascinates me. I can sit and look at it for hours. I love to keep it by me: the idea of getting rid of it nearly breaks my heart.”

Some of the other famous Jerome K. Jerome quotes:

“It is always the best policy to speak the truth, unless, of course, you are an exceptionally good liar.”

“People who have tried it, tell me that a clear conscience makes you very happy and contented; but a full stomach does the business quite as well, and is cheaper, and more easily obtained.”

“It is impossible to enjoy idling thoroughly unless one has plenty of work to do.”

“What I am looking for is a blessing not in disguise.”

“I often arrive at quite sensible ideas and judgements, on the spur of the moment. It is when I stop to think that I become foolish.”

I list the variety of topics in this issue below: a post-divorce tug-of-war over a minor child, overzealous interrogation of suspects proves to be counterproductive, forced underage marriages, another suretyship fails, access to information delayed/denied, the prescribing of a debt, and the ban of interracial marriage in the USA.

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

A child is not a pawn

Rox small

by Roxanne Ker

T v D, a judgment of the High Court, Pretoria, on 20 March 2015, dealt with a typical post-divorce tug-of-war over a minor child.  Under the settlement agreement (perforce made an order of Court) in the divorce proceedings, the father was entitled to holiday access to the child; and, from when the child turned 7 years old, alternate weekends access.

The mother denied the father holiday access, and he applied to Court for a contempt of court order against her.  She had no real defence.  She argued (unconvincingly) that the holiday access was also limited to ‘when the child turned 7 years old’.  The Judge found that the mother had not raised any justifiable excuse, and stated:

Parents should not stand in the way of such contact by being unnecessarily dogmatic.  Courts will never allow parents to use children as pawns where it notices such conduct.

The Judge also drew attention to:

     –     section 28(2) of the Constitution, which provides for the child’s best interests as paramount; and

–     section 35 of the Children’s Act, which provides that any person who has care or custody of a child, and, contrary to a court order, refuses another person access to that child, is guilty of an offence liable on conviction to a fine or to imprisonment for a period not exceeding one year.

The Judge found the mother’s disobedience of the Court order was wilful or intentional and constituted contempt; and she was committed to prison for a period of 30 days, suspended for 5 years on condition that during the period of suspension she complied with the settlement agreement.

The chickens come home to roost

  Amien smallMatt 3

by Amien Hoosain and Matt van Eden

S v Mini, a judgment of the High Court, Cape Town, on 30 April 2015, was a review of a judgment of a Magistrate’s Court in what appeared to be a minor theft charge.  The Magistrate’s Court had found the five accused guilty of the theft of 11 (dead) chickens from the chicken farm where four of them were employed.

Two of the accused were caught red-handed by security staff.  The security staff applied “third degree” interrogation, these two confessed, and implicated a third accused.  The latter was called in, and, under “third degree” interrogation, confessed, and implicated another two persons.

The five accused were not legally represented at the trial.  The only evidence led by the State was (1) the evidence of the security staff that had caught two of the accused red-handed, and (2) the evidence of confessions and accusations of each other by the accused.  The main question, on review, was whether the latter evidence was admissible.

The magistrate, in response to a query for purposes of the review, stated that in her view of the evidence the assaults occurred only after the relevant accused made their confessions and accusations of each other.  However, the Court held that such conclusion was not justified beyond reasonable doubt.  “It is possible that the security officers assaulted the accused only after they had confessed, as a sort of extra-curial punishment … But if the security officers were willing to resort to assaulting suspects …, there is no reason to discount the possibility that the security officers used violence to extract information from the suspects.

The result was that the convictions of the two caught red-handed were upheld, but the convictions of the other three were set aside.

This judgment will hopefully serve as a reminder to persons involved in investigating crime, whether from the public or private sector, that the courts will not tolerate the extraction of information by violence or threats of violence. As the present case illustrates, the use of unlawful coercion at an early stage of investigation may taint information which might otherwise have been elicited by more careful and restrained means and may make it very difficult for the State to secure convictions.

Forced underage marriages (ukuthwala)

Taryn small Nox small

by Taryn Herbert and Nox Malumbete

Jezile v The State, a judgment of the High Court, Cape Town on 23 March 2015, was an appeal by the accused in a criminal trial concerning ukuthwala (the ‘traditional’ practice of abducting young girls and forcing them into marriage).

The accused, a 28 year old male, travelled from Cape Town to the Eastern Cape to find and marry a girl under the age of 18 years, preferably a virgin.  In the Eastern Cape, the accused identified a 14 year old girl (the complainant), and although they had neither spoken nor been introduced, she was forced by her family members to enter into an alleged customary marriage (including the ceremony) with him for lobola of R8 000.

Three days after the ‘marriage’, still in the Eastern Cape, the complainant ran away.  She was found, and her family members returned her to the accused.  Shortly thereafter, with the consent of the complainant’s family members, the ‘newlyweds’ travelled to Cape Town.

In Cape Town, sexual intercourse took place between them on various occasions.  They argued, and the complainant sustained injuries including an open wound to her leg.  The complainant escaped, and sought assistance from the police.

The accused was charged in the Magistrate’s Court, and found guilty of one count of human trafficking, three counts of rape, one count of assault with intent to cause grievous bodily harm, and one count of common assault.  He was sentenced to an effective 22 years’ direct imprisonment.

The accused appealed to the High Court against the conviction and the sentence.  His main defence was one of consent.  This was clearly not borne out by the facts.  However, he also maintained that the process that he had followed to obtain a ‘wife’ was that of his culture and tradition.

Usually, an appeal is decided on the record of proceedings in the court of first instance, and the appeal court does not hear any additional evidence.  However, in this case, because of the importance of the customary law issue raised in the appeal and the constitutional implications thereof, the High Court extended invitations to relevant state institutions and organizations to apply in writing to participate in the proceedings, and to present oral submissions.  Seven organizations participated.

The Court heard evidence about ukuthwala.  Under traditional law, the ‘regular’ practice of ukuthwala is a part of the marriage process in which there is a mock abduction of a consenting bride, who puts up a show of resistance for the sake of modesty.  The ‘irregular’ process simply overrides the objections of a non-consenting ‘bride’.  This ‘irregular’ process is still widely applied.

The accused regarded the ‘irregular’ process as part of traditional law that authorised his conduct towards the complainant.  The Court did not agree.  “However, in our view, it cannot be countenanced that the practices associated with the aberrant form of ukuthwala could secure protection under our law“.  Save for a small technical adjustment, the convictions and sentences were confirmed.

 

Suretyships can be less than sure – again revisited

Jerome smallBianca

by Jerome Veldsman and Bianca Patrick

In Kilburn v Tuning Fork (Pty) Ltd, a judgment of the Supreme Court of Appeal (SCA) on 23 February 2015, the SCA considered a ‘standard’ deed of suretyship with a twist.

Tuning Fork (Pty) Ltd, a private company, operated under a number of business divisions.  The divisions operated distinct businesses in the sense that they marketed and sold different products.

Kilburn Auto Enterprises (Pty) Ltd, also a private company, had independent dealings with two of the Tuning Fork divisions, being the Yamaha Distributors division and the After Market Products division.  The dealings with the After Market Products division were modest (a credit limit of R20 000), but the dealings with the Yamaha Distributors division were substantial.

In May 2011, an employee in the After Market Products division required a suretyship from the proprietor of Kilburn Auto Enterprises, Mr Ian Kilburn, which Mr Kilburn duly signed.

In August 2012, Kilburn Auto Enterprises was in financial distress, and failed to pay outstanding invoices issued by the Yamaha Products division amounting to more than R800 000, but its payment of invoices issued by the After Market Distributors division was up to date.  Tuning Fork sued Mr Kilburn under the suretyship with regard to the outstanding invoices issued by the Yamaha Products division.

In the body of the suretyship, Mr Kilburn clearly stood surety for the obligations of Kilburn Auto Enterprises (Pty) Ltd to Tuning Fork (Pty) Ltd (the entire company).  However, the heading of the document read:

DEED OF SURETYSHIP – TUNING FORK (PTY) LTD T/A AFTER MARKET PRODUCTS (The underlining does not appear in the original.)

Tuning Fork was successful in the court of first instance.  The Court held that the words “AFTER MARKET PRODUCTS” used in the heading were no more than the usage of a trading name, merely intended to enhance the identification of Tuning Fork.  Mr Kilburn appealed to the SCA.

The SCA posed the question: What then was intended by the inclusion of this particular trading name in the heading of the deed of suretyship?  Mr Kilburn contended that such intention was to restrict his liability to obligations of Auto Enterprises contracted with the After Market Distributors.  Tuning Fork contended that such intention was merely administrative.  The SCA found against Tuning Fork:

This contention in our view is flawed, as it militates against the longstanding precept of interpretation that every word must be given a meaning. A court should not conclude, without good reason, that words in a single document are tautologous or superfluous.”

The SCA also dealt with the context in which the suretyship came into being (although the facts in the judgment in this regard are sparse).  The SCA held that the “suretyship came into existence only because security was required for Kilburn Auto to buy goods on credit from the After Market Products division.”

The SCA found that the liability of Mr Kilburn was limited to those debts incurred by Kilburn Auto in its purchases from the After Market Products division of Tuning Fork.

In effect, Mr Kilburn succeeded on the facts.  However, perhaps due to some less than elegant reasoning in the judgment, this judgment may well assist other sureties to escape liability.  Any juristic person operated under a number of business divisions will be well advised to audit its existing suretyships and standard documents in the light of this judgment.

 

Promotion of Access to Information Act: PAIA must not be a dead letter

Amien smallNosi small

by Amien Hoosain and Nosipho Madikiza

NUMSA v City Power Johannesburg, a judgment of the High Court, Johannesburg, on 23 April 2015, dealt with a refused request for access to information regarding a tender awarded by City Power Johannesburg (a public utility).

The Court listed ten reasons why it was unimpressed with the actions by City Power Johannesburg, including the information officer’s failure to respond to the initial request, failure to comply with the PAIA procedure (which is published on its own website), delay in making a decision, failing to notify parties of their right to appeal the decision when it was made, taking steps not permitted by PAIA in soliciting further responses, and filing affidavits and heads of argument outside of the procedure set out in the Court rules.

Perforce, the application had to be postponed for PAIA to be implemented properly.  However, as to payment of the wasted legal costs incurred due to the postponement, the Judge stated that he was very reluctant simply to order that the wasted costs be paid by City Power Johannesburg (effectively by taxpayers).  “This teaches no one anything about responsibility or compliance with statutory duties.”  Accordingly, the question of costs was postponed for both parties to provide affidavits and argument as to whether the relevant officials of City Power Johannesburg should bear personal financial responsibility for wasted costs.

When must you pay?

Gunnar casual 2Bianca

by Gunnar Dahl and Bianca Patrick

 

In civil actions, a creditor must institute legal action against a debtor within three years from the date the debt became due and payable, to avoid the debt from prescribing (becoming unenforceable).  In some jurisdictions, this is referred to as a “statute of limitations”.

Walkers recently acted for a claimant in an action in the High Court, Cape Town, in which the main question was when the amount owing became due and payable in terms of a sale agreement.

Our client had purchased a shopping centre.  The agreement included a term that the seller would cause an adjustment account to be prepared within 90 days of date of transfer.  After transfer, the seller indicated that it was unable to prepare the adjustment account, and it was agreed that the purchaser would do so instead.

The purchaser delivered the adjustment account to the seller more than a year after transfer.  In terms of the adjustment account, the seller was obliged to make a payment to the purchaser.  The seller did not pay, hence this litigation.

The summons was served more than 3 years after the end of the 90 day period referred to above, but less than 3 years after the date on which the purchaser delivered the adjustment account to the seller.  The Court had to decide whether the 3 year period started running after the 90 day period, or only after the adjustment account had been delivered.

The Court held that the amount only became due and payable once the adjustment account had been delivered. “Only once that amount has been determined by the process agreed to …, can there be any talk of a debt in existence which can become due and payable.”

In effect, the purchaser had been in a position to delay the commencement of the prescription process.   Of course, had the agreement been worded differently, the purchaser would not have enjoyed such a privilege.  Investors could benefit from reviewing their standard adjustment account clauses.

The USA prohibition of interracial marriages

The case of Loving v The Commonwealth of Virginia, decided by the USA Supreme Court (approximately our Constitutional Court equivalent) on 12 June 1967, declared as unconstitutional the Virginia ban of marriages between persons solely on the basis of racial classifications (described in the USA as anti-miscegenation laws).

A relevant statutory provision read:

“Punishment for marriage.If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years.”

Two residents of Virginia, described in the judgment as “Mildred Jeter, a Negro woman, and Richard Loving, a white man“, married each other in a State not prohibiting interracial marriage, and returned to Virginia.  The newlyweds had lived together for a little more than a month when they were awakened in the middle of the night by the sheriff and his deputies, who walked through the unlocked door of the house and right into the Lovings’ bedroom to arrest them.  They were charged with violating Virginia’s ban on interracial marriage.

The Lovings did not dispute their respective racial classifications.  The relevant statutory provisions read:

“… the term `white person’ shall apply only to such person as has no trace whatever of any blood other than Caucasian; but persons who have one-sixteenth or less of the blood of the American Indian and have no other non-Caucasic blood shall be deemed to be white persons.”

Every person in whom there is ascertainable any Negro blood shall be deemed and taken to be a colored person, and every person not a colored person having one fourth or more of American Indian blood shall be deemed an American Indian …”

The Lovings pleaded guilty and were sentenced to one year in jail; suspended for 25 years on the condition that the Lovings leave Virginia and not return to the State together for 25 years.

The Lovings moved to a different State.  A few years later, supported by the American Civil Liberties Union, they commenced legal proceedings in Virginia to annul the judgment and set aside the sentence on the ground that the ban on interracial marriages was repugnant to the Fourteenth Amendment.

The relevant part of the Fourteenth Amendment reads:

No State shall make or enforce any law which shall … deny to any person within its jurisdiction the equal protection of the laws.”

The Lovings lost in the court of first instance, and again in the Supreme Court of Appeals of Virginia.  They appealed to the USA Supreme Court (approximately, the equivalent of our Constitutional Court).

In the USA Supreme Court, Virginia argued that the ban on interracial marriage did not violate the equal protection of the laws provision, “because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race“.

The USA Supreme Court disagreed:

‘There can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race. … Over the years, this Court has consistently repudiated “[d]istinctions between citizens solely because of their ancestry” as being “odious to a free people whose institutions are founded upon the doctrine of equality.”  At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the “most rigid scrutiny,” …, and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate.’

Despite the Lovings case, several States persisted with the ban of interracial marriage; and the last such statutes were repealed, in South Carolina, in 1998, and, in Alabama, in 2000.

The film The Loving Story made the 2011 Documentary Oscar Shortlist (Inside Job, about the 2008 financial crisis, won), and was awarded the 2013 Emmy for best Historical Documentary.