Talking Point June 2016

A succinct discussion of selected topical, legal matters

Dear Friends and Colleagues

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

Please forgive the brief history lesson in this introduction.  It is for a good cause –interesting context regarding our legal system.

The Constitution is the supreme law of South Africa.  We are also subject to all the many thousands of statutes that emanate from local, provincial, and national government.  Then there is the common law.  The latter has quite a geographical history.

The legal system of ancient Rome spanned over a thousand years of jurisprudence.  However, with the Fall of the Western Roman Empire around the fifth century CE, the influence of Roman Law in Western Europe declined.

The Eastern Roman Empire (Byzantine Empire) continued until the fifteenth century CE.  Around the eleventh century CE, scholars in Italy accessed legal texts from the Byzantine Empire, and an intellectual rediscovery of Roman law ensued.  Over time, Roman law was merged into the different customary law systems of western and central Europe.  This also occurred in the Netherlands, where the process was very scholarship-driven.  The resultant Roman Dutch Law was introduced into South Africa in 1652, and such system, as interpreted by South African judges, is the bedrock of our common law.

The most famous of such Dutch scholars was Johannes Voet (1647 – 1713).  He was a professor of law at the University of Leiden for thirty-three years, and gave lectures in Latin to students from all over Europe.  Thankfully, his most important work, which is still routinely referred to in Courts, has been translated into English.  In addition to his arcane legal writing, he was also insightful:

  • It is surely more than plain from many passages in our law that law is the art of the good and the fair; [and] … that on the basis of the good and the fair, judges decide, pronounce judgment, assess, and interpret.”

  • If a man says that the words were used in jest, he must prove that it could be taken up in no other light by a reasonable person.”

  • Anger should be especially kept down in punishing, because he who comes to punishment in wrath will never hold that middle course which lies between too much and the too little.  It is also true that it would be desirable that they who hold the office of Judges should be like the laws, which approach punishment not in a spirit of anger but in one of equity.”

Roman Dutch Law ceased to apply in the Netherlands when the French Napoleonic Code was adopted in 1809.  However, that did not affect the then colonies.  In addition to its substantive influence in Botswana, Lesotho, Namibia, South Africa, Swaziland, and Zimbabwe, Roman Dutch Law still has a strong influence on law in Sri Lanka.

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:

  • Take back your children

    • An adoptive father ‘divorces’ his adopted children.
  • The race card

    • Racism and racial abuse in the workplace cannot be tolerated.  An untrue accusations of racism are not a shield against harsh disciplinary action for gross insubordination.
  • Murder or culpable homicide

    • Criminal law is not listed under our Legal Services, but we remain up to date.  The law underpinning the Oscar Pistorius verdict revisited in a more recent case.
  • Malicious dissipation of ‘marital’ assets

    • How to combat divorcing spouses maliciously dissipating assets.  This is a follow-up article on What is in a date? The financial end game to a marriage (Talking Point, April 2016).
  • Gossipy websites and POPI

    • The Protection of Personal Information Act (POPI) has been law since 2013, but is at present not fully operative.  This is another international example of what we could expect from life under POPI.
  • Alternative medicine or useless smoke?

    • This more than a century old famous English law of contract case is still cited in judgments around the world today, including in the South African Court of Appeal.  The subject matter also remains ever present in society, as deceptive advertising has become a ‘science’.

LEGAL MATTERS

Take back your children

Rox smallby Roxanne Ker and Melissa Gerber

Under section 243 of the Children’s Act, a Court may rescind an adoption order, at the instance of the child concerned, a biological parent of the child, or an adoptive parent of the child.

If the actual adoption order was regular in all respects, the order may only be rescinded if rescission “is in the best interests of the child”.  T v T and Others, a judgement of the High Court, Johannesburg on 19 June 2015, dealt with such a rescission application.  The case was unusual, as the adoptive father was the applicant, six years after adopting the two young children.

The biological father and mother of the children divorced in 2005.  The applicant and the children’s biological mother married in 2006.  In 2007, the applicant formally adopted the young children, with the biological father’s (and mother’s) consent.  However, the biological father remained involved.  The mother did not allow the applicant to exercise any meaningful parental rights in respect of the children; and constantly undermined and humiliated the applicant in the presence of the children.

The applicant and the mother divorced in 2008.  The mother blocked all contact between the applicant and the children.  However, the applicant continued to pay maintenance for the children (as he was obliged to do under the divorce order).  Over the next few years, the biological father developed a normal child-parent relationship with both children, but the mother steadfastly prevented the applicant from having any contact with the children.

In 2013, the applicant brought this application to rescind the adoption orders.  The biological father and mother did not oppose the rescission.  The Registrar of Adoptions, representing the interests of the children, opposed the rescission.

Prior to the hearing, the Court required the Family Advocate to interview all concerned, and to compile a report.  The Family Advocate reported that the rescission of the adoption orders will not have any permanent deleterious psychological and emotional effect on the children.  The children did not regard the applicant as a father figure, but liked the material gains they derive from his continued financial involvement in their lives.  The Family Advocate supported the rescission.

The Court found, in effect, that the adoption order should not have been granted in the first place.  The children were not adoptable.  In order to be adoptable, a child must be in a distressed position, such as having been abandoned or being abused or deliberately neglected by a parent.  The adoption was a “legal fiction”, as the mother prevented the applicant from exercising any meaningful parental rights.

The Registrar of Adoptions’ opposition to the rescission on the facts was unconvincing.  However, the Registrar of Adoptions seemed to have a good argument in law.  In terms of section 243(2), an application to rescind an adoption order “must be lodged within a reasonable time but not exceeding two years from the date of the adoption”.  This application was lodged six years after the adoption.  In an innovative manner, the Judge interpreted section 243(2) in a constitutional context so as not to preclude this application.  In our view, these legal gymnastics were required because the applicant was seeking the correct end result, but under the wrong section of the Children’s Act.

The Court rescinded the adoption orders.  Accordingly, the legal bond between the applicant and the children ceased (including the applicant’s obligation to pay maintenance for the children), and the biological parents were restored as the (only) legal guardians of the children.

The race card

Amien 2by Amien Hoosain

City of Cape Town v Siphiwe Freddie, a judgement of the Labour Appeal Court, Cape Town on 15 March 2016, dealt with discord between an employee (a Black person, with the term used in the narrower context as to exclude Coloured and Indian persons) and his supervisor (a Coloured person), and the resultant disciplinary sanction.

Pursuant to an internal directive to that effect, the supervisor instructed the employee to submit a detailed report on the projects he was involved in.  The employee submitted a report that did not comply with the requirements set in the internal directive.  The supervisor instructed another employee (a White person) also working under the supervisor to guide the relevant employee in the preparation of the report.  Unhappy about having to take such guidance, the employee confronted and threatened the supervisor.  Subsequently, the employee refused to work with the person instructed to give the guidance; and “embarked on a bombardment of emails“, accusing the supervisor of mismanagement, incompetence, being a failure, and racism, including likening him to “the architect of apartheid”, Dr H F Verwoerd; and copying various employees of his employer and his union representative.

At an internal disciplinary hearing, the employee was charged with, and found guilty of, misconduct and insubordination.  The disciplinary sanction was dismissal.  The employee commenced unfair dismissal proceedings in arbitration.  The arbitrator found that, although the employee’s conduct constituted misconduct, as he had acknowledged his mistakes and had long years of service with the employer, dismissal was too harsh a sanction.

The employer commenced review proceedings in the Labour Court, without success.  The employer then took the Labour Court judgment on appeal to the Labour Appeal Court (LAC).

The LAC held that the employee’s “deliberate and sustained refusal … to carry out a lawful and reasonable instruction … rendered him guilty of insubordination.”  Further, his wide distribution of the offensive emails rendered him guilty of gross insubordination.

On sanction, the LAC stated that “the aggravating features of this case far outweighed whatever mitigating factors ” and “… even the fact of long service … does not always spare an employee, who committed gross misconduct, from dismissal“.  On likening the supervisor to Verwoerd, the Court stated that “there was not the slightest shred of evidence that Robson [the supervisor] exhibited a racist attitude toward Freddie [the employee] or did anything to Freddie that could justifiably be described as racist.  In fact, the opposite conduct on the part of Robson was evident … In my consideration of the matter, I am unable to justify the basis on which an employee who conducts himself/herself toward his/her employer in the manner that Freddie did here can escape dismissal.”  The LAC confirmed the initial dismissal.

 

Murder or culpable homicide

Jerome 2by Jerome Veldsman and Melissa Gerber 

The Oscar Pistorius trial introduced the once obscure legal term dolus eventualis into public discourse, as can be confirmed by a Google search for “Pistorius” and “dolus eventualis”.

In brief, if an accused caused the death of the deceased, in circumstances where it cannot be proven that the accused did so with the object and purpose of killing the deceased:

– if it is proven that the accused negligently caused the death of the deceased, the accused will be found guilty of culpable homicide; and

– if it is proven that the accused foresaw the risk of death occurring, but nevertheless continued to act appreciating that death might well occur, therefore ‘gambling’ as it were with the life of the person against whom the act is directed, the accused will be found guilty of murder with intent in the form of dolus eventualis.

All things being equal, the sentence for culpable homicide is usually less than for murder with intent in the form of dolus eventualis.

The 2015 unanimous judgment (of five judges) of the Supreme Court of Appeal (SCA) in the Pistorius matter was revisited in the SCA in Van Schalkwyk v The State, a judgment delivered on 31 March 2016.  This time round, the judgment is open to criticism.

The State v Van Schalkwyk started in the Regional Magistrate’s Court in Upington, which Court found the accused guilty of murder with intent in the form of dolus eventualis, and sentenced him to an effective six years of imprisonment.  The accused’s appeal against the conviction to the Northern Cape High Court, Kimberley (heard by two judges), was unsuccessful.  His then appealed to the SCA, which Court delivered judgment on 31 March 2016.

The deed occurred on a farm.  The farmer (the accused) was a good employer with no history of abusing his workers.  Over one weekend, in dereliction of his assigned duties, a farm worker (the deceased) failed to feed the cattle.  On the Monday morning, the worker reported for duty blind drunk, but intending to do the work he had neglected to do over the weekend.  The worker was standing on a trailer holding two iron hay hooks, seemingly intending to offload bales of hay.  The accused instructed the worker to leave the hooks and get off the trailer, but the latter was obstructive and unresponsive.  The accused then grabbed the hooks from the worker, and hit him with one of the hooks [see the picture below] on the left side of his chest.  The hay hook pierced ten centimetres into his heart, causing his death.

van schalkwyk

 

There was a divided bench in the SCA.

Three (of five) Judges upheld the appeal:

“The hay hook in question … is not like a long knife with a sharp end that would inevitably inflict a serious or fatal wound.  It was a farm implement used for a different purpose, not inflicting harm on a person.”

“… it can hardly be said that the common experience of farmers hitting people with hay hooks is that they will be seriously, even fatally, wounded.  Hay hooks are designed for moving bales of hay.  They are not weapons used to inflict harm on a person.  And there is absolutely no evidence that the appellant had any experience of hitting a person with a hay hook himself, or seeing anyone else do it.”

Two (of five) Judges, delivering separate judgments, would have dismissed the appeal:

From the one judgment:

“As an experienced farmer of approximately 40 years, he … was no doubt familiar with a hay hook and knew the hook would move like a pendulum.  Therefore when the [accused] hit the deceased across the chest, the [accused] foresaw that the hook would penetrate the deceased’s upper body and cause the injury sustained.”

From the other judgment:

“It also matters not that a hay hook is not a weapon made to kill.  An ice-pick similarly is not.  …  Hammers, chisels, screwdrivers, garden rakes, bricks, stones, rocks and broken glass bottles – none of which is designed or made to kill – have been used as instruments of murder.  Typically, one works a hay hook such as the one in question by jabbing bales of hay and in doing so is able to lift a considerable weight.  It is a formidable weapon if used as one.”

A Court bench follows the principle of majority rule.  The accused was accordingly found not guilty of murder, and guilty of culpable homicide.  His sentence was reduced to an effective three years of imprisonment.

The accused was fortunate.  All five Judges failed to compare the hay hook to a hand axe, perhaps the most appropriate comparison.  Courts routinely find “axe murderers” guilty of murder.  Prior to the general availability of gunpowder, for centuries, in places including Asia and Europe, hooks like the hay hook in question, designed for agricultural purposes, were also used as weapons of war.  If the accused did not foresee the risk of death occurring from him plunging the hay hook into the chest (where a human heart and lungs are usually situated) of the deceased, what exactly did he foresee?  This question was neither asked nor answered in the judgment.

Malicious dissipation of ‘marital’ assets

Rox small by Roxanne Ker

What is in a date? The financial end game to a marriage (Talking Point, April 2016) dealt with the calculation date for determining the financial consequences of the dissolution by divorce of a marriage under the accrual system.  Such date is the date on which a Court grants the actual order of divorce.  During the period between the breakdown of a marriage and its official dissolution, which period could be a year or three, the spouses have opportunity for “malicious dissipation of assets”.  The temptation is so much more for the “wealthy” spouse to do so.

The “poor” spouse has a remedy under section 8(1) of the Matrimonial Property Act, but such remedy is not that easy to achieve.  In practice, the poor spouse bears the onus to prove on a balance of probabilities that the wealthy spouse has, or is likely, maliciously to dissipate (or destroy) his or her assets, and that such conduct will seriously prejudice the poor spouse.  The poor spouse usually lacks the ‘smoking gun’ evidence, and suspicions alone are not good enough.  If the poor spouse discharges such onus, the Court will order the immediate implementation of the relevant financial consequences, as if the marriage had been dissolved by divorce, despite the spouses not being divorced.

To date there have been only a few cases under section 8(1), and very few succeeded.. 

 

Gossipy websites and POPI

Jerome 2by Jerome Veldsman 

Some terminology in brief:

personal information is any information relating to an identifiable living natural person (or a juristic person);

processing is any activity concerning personal information; and

special personal information includes personal information concerning the religious or philosophical beliefs, race or ethnic origin, trade union membership, political persuasion, health or sex life or biometric information of any person.

Subject to consent from the relevant person, legal proceedings, and limited other exceptions, the Protection of Personal Information Act (POPI) prohibits the processing of special personal information.  However, there is a general exception regarding processing of personal information in the course of a purely personal or household activity.  The Data Protection Directive that applies in the European Union contains similar provisions.

Alseda is a picturesque village in the interior of Sweden, with a population of about 1 500 people.  In the late 1990s, one Ms Bodil Lindqvist, an active member of her church in the village, created a website on which she published information for church parishioners.  She included mundane and some humorous information about herself and 18 of her fellow church volunteers.  In respect of one volunteer, it was mentioned that she had fallen from a ladder, injured her foot, and was working part-time on medical grounds.

The parish experienced typical bickering, and Lindqvist was reported to the Swedish supervisory authority, which prosecuted her.  One charge against her was that she had processed special personal information (personal information concerning the health of the other volunteer) without prior consent.  Lindqvist was found guilty, and fined the equivalent of about R 5 000.

Lindqvist felt that this was “Big Brother gone mad“, and appealed to the Swedish Court of Appeals.  This Court requested a preliminary ruling from the European Court of Justice (ECJ) on several questions, including whether:

– Lindqvist’s conduct fell under the exception for processing in the course of a purely personal or household activity;

– the processed data concerned “health”; and

– the application of the Directive to the facts of the case conflicted with freedom of expression or another fundamental right.

The ECJ ruled on 6 November 2003 that:

– The exception for processing in the course of a purely personal or household activity applied only to activities carried out in the course of private or family life of individuals, and not to publication on the internet;

– “Health” (both mental and physical) should be given a wide interpretation, and the data Lindqvist processed clearly concerned “health”.

– The Directive is to be interpreted in the context of fundamental rights; and, in each respective member state, a court must weigh up under national law freedom of expression against the protection of the private life of an individual (the ECJ avoided giving a specific answer in Lindqvist’s case).

A South African court may well come to the same conclusions regarding the exception for processing in the course of a purely personal or household activity and the meaning of “health”.

POPI does not apply to the processing of personal information solely for the purpose of journalistic, literary, or artistic expression to the extent that such non-application is necessary to reconcile, as a matter of public interest, the right to privacy with the right to freedom of expression.  The foregoing contains much scope for litigation.

 

Alternative medicine or useless smoke?

Carlill v Carbolic Smoke Ball Company, a judgment of the (English) Court of Appeal on 7 December 1892, dealt with well-timed but overambitious advertising.

England suffered several waves of the influenza epidemic of 1889 – 90 (referred to as the “Russian epidemic”).  One person’s tragedy is another person’s business case.  The company promoted a product called a carbolic smokeball.  It consisted of a rubber ball containing carbolic acid (phenol), and an attached tube.  A user would insert the tube in his or her nose, and squeeze the ball to release carbolic acid vapour.  The Company advertised the product widely in print media:

– claiming that during the epidemic many thousand carbolic smoke balls were sold as preventives against influenza, and in no ascertained case was influenza contracted by a person using the product according to the provided directions;

– offering a 100 Pounds Sterling (worth about 40 000 Pounds today) reward to any person who contracted the disease after having used the product three times daily for two weeks according to the provided directions; and

– claiming that 1 000 Pounds had been deposited with a bank to show sincerity.

One Ms Louisa Elizabeth Carlill saw the advertisement, and bought and used a carbolic smokeball, according to the provided directions, for nearly two months.  Then she contracted influenza, and demanded her 100 Pounds from the company.  The company initially ignored the demand, and then went into stalling mode (typical of such tactics today).  However, Carlill was married to a solicitor, and sued.

In the court of first instance, the company tried every possible argument to avoid liability, but this Court found in favour of Carlill.  The company appealed.  The three Lord Justices of the Court of Appeal unanimously dismissed the appeal.  They gave separate judgments, but the essence of the findings was:

– An offer plus an acceptance thereof results in a binding contract.

– An advertisement can constitute an offer.

– The company (as offeror) made a binding unilateral offer that could be accepted by any person who knew of it, and who contracted influenza after using the product as directed.

– In order to accept an offer, an offeree (like Carlill) must notify the offeror; for the “meeting of two minds” to occur in order to establish a binding contract. However, if the offeror (expressly or by implication) indicates that it will be sufficient for the offeree to act on the proposal without communicating acceptance to the offeror, performance of the condition will be a sufficient acceptance without notification.  This was indeed such a case.

One would have suspected that, following the judgment, thousands of people would take up the challenge hoping to gain 100 Pounds.  Surprisingly, this did not happen.  In 1893 the company launched a fresh advertising campaign:

– describing the predicament following the previous advertisement;

– claiming: “Many thousand Carbolic Smoke Balls were sold on these advertisements, but only three people claimed the reward of £100, thus proving conclusively that this invaluable remedy will prevent and cure [influenza]. The Carbolic Smoke Ball Company Ltd. now offers £200 REWARD to the person who purchases a Carbolic Smoke Ball and afterwards contracts [influenza].“; and

– with restrictive conditions in the small print.

However, the company was not a financial success, and failed in 1896.  Carlill died in 1942, at the age of 96.  It is rumoured that her death certificate reflected the cause of death as influenza.