Talking Point December 2014

A succinct discussion of selected topical, legal matters

I take great pleasure in submitting the December 2014 edition of Talking Point to you.  This is our final edition for 2014.

George Washington (1732 – 1799) was the first President of the USA.  Although he is not the original author, his name is inextricably linked to the booklet Rules of Civility & Decent Behaviour In Company and Conversation.  A few of the 110 rules (that date from around 1595) are antiquated, but most are still applicable today.  Some of my favourites are:

“Be not curious to know the affairs of others; neither approach those that speak in private.”

“Speak not evil of the absent, for it is unjust.”

“When another speaks be attentive yourself, and disturb not the audience; if any hesitate in his words, help him not, nor prompt him without desired; interrupt him not, nor answer him till his speech be ended.”

“Think before you speak; pronounce not imperfectly, nor bring out your words too hastily, but orderly and distinctly.”

“Let your conversation be without malice or envy, for it is a sign of a tractable and commendable nature; and in all causes of passion admit reason to govern.”

“Undertake not to teach your equal in the art himself professes, it savours of arrogance.”

I list the variety of topics in this issue below; they include affirmative action, polygraph testing, stolen Kruger Rands, and witchcraft.

Regarding the Festive Season, we include a mention of Zwarte Piet (Black Pete).

In This month in law, we recall the end of South Africa’s power of administration and legislation over Namibia.

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

South Africa is not Harry Potter friendly

Jerome Veldsman

by Jerome Veldsman

 

The Witchcraft Suppression Act 3 of 1957 is fact, not fiction, and at present in operation in South Africa.  The content of this Act was influenced by the Witchcraft Act of 1735 (not an error) in England (the latter Act was repealed in 1951).

The offences

Maximum sentences

If the accused claims another person (the victim) caused any damage, disease, or injury, by supernatural means.If the accused calls (or indicates) the victim a wizard (or witch) If the victim has been killed, or if the accused is a witchdoctor or witch-finder:  imprisonment for 20 years.Otherwise: a fine or imprisonment for 10 years.
If the accused communicates that he or she has, through supernatural power or witchcraft, identified the victim as the cause of any damage, disappearance, disease, or injury. If the victim has been killed, or if the accused is a witchdoctor or witch-finder:  imprisonment for 20 years.Otherwise: a fine or imprisonment for 10 years.
If the accused appoints a witchdoctor, witch-finder, or any other person, to identify any person as a wizard (or witch). A fine of R500 or imprisonment for 5 years, or to both such fine and such imprisonment.
If the accused claims knowledge of witchcraft or the use of charms, and advises any person how to bewitch or to cause injury or damage.If the accused supplies any person with any pretended means of witchcraft. A fine of R500 or imprisonment for 5 years, or to both such fine and such imprisonment.
If the accused claims knowledge of witchcraft, or obtains advice from any witchdoctor, witch-finder, or other person, and then put into operation any process calculated to cause injury or damage. A fine of R500 or imprisonment for 5 years, or to both such fine and such imprisonment.
If the accused, for gain, (1) pretends to exercise or use any supernatural power or witchcraft, (2) undertakes to tell fortunes, or (3) claims with reference to occult science to discover the whereabouts of anything supposed to have been stolen or lost. A fine of R200 or to imprisonment for two years.

There have been many prosecutions under the offences created in the Act, and some prosecutions still occur.  We mention a few more recent examples.

The following cases dealt with an accused who had pointed out another person as a wizard:

S v Maluleke 2006 JDR 0014 (T): The High Court confirmed the conviction in the Magistrate’s Court, but reduced the sentence from 360 days direct imprisonment to eight months imprisonment of which six months were suspended for 3 years.

S v Mashibye 2005 JDR 0925 (T): The High Court substituted the sentence with 4 years imprisonment, half of which was suspended for 5 years.

S v Chauke 2001 JDR 0543 (T): The High Court confirmed the conviction in the Magistrate’s Court, but reduced the sentence from 3 years direct imprisonment to 3 years imprisonment wholly suspended for 5 years.

The Witchcraft Suppression Act is under review by the Law Reform Commission.  Some provisions seemingly prohibit some conventional religious practices, and many provisions appear to be inconsistent with cultural beliefs that are constitutionally protected.  The hundreds of clairvoyants, mediums, psychics, sellers of charms, tellers of fortunes, and the like, openly advertising their services for gain in Cape Town, would probably be surprised to learn that they may well be contravening the Witchcraft Suppression Act.

 

Polygraph Tests

Roxanne Ker

by Roxanne Ker

In DHL Supply Chain (Pty) Ltd and Others v National Bargaining Council for the Road Freight Industry and Others [2014] 9 BLLR 860 (LAC), the Labour Appeal Court held that an employee failing a polygraph test is not in itself sufficient to prove dishonesty.

The employer had experienced stock losses in its cigarette dispatching warehouse, and required eight employees who worked in the warehouse at the relevant time to take polygraph tests.  Two of the employees failed the tests, were found guilty in a disciplinary hearing of theft, and dismissed.

The employees took the matter to the relevant bargaining council (in context, the equivalent of the CCMA). The bargaining council considered other surrounding evidence, and found that there was not enough evidence to infer guilt from the results of the polygraph tests.  Accordingly, the dismissals were substantively unfair, and the reinstatement of the employees was ordered.

The employer took the matter on review to the Labour Court, and lost again.  The employer then appealed to the Labour Appeal Court.

The LAC dismissed the appeal, and held that:

The respectability of polygraph evidence, at best, remains an open question, and any litigant seeking to invoke it for any legitimate purpose, must, needs be, adduce expert evidence of its conceptual cogency and the accuracy of its application in every given case.

 

Is an employer liable for the dishonesty of an employee? Revisited

Jerome Veldsman

by Nox Malumbete

In Talking Point July 2013, we discussed Uys v Investgold CC, a judgment in the Gauteng High Court, dealing with a sophisticated scam in the lucrative trade in precious coins.

At the business premises of Investgold, two of its employees sold Kruger Rands and rare coins worth more than R1.5 million to a customer.  Investgold had a documentation and delivery system to deliver coins to customers.  The customer duly paid in cash, and the employees hoodwinked the client into ‘storing the coins with Investgold’.  However the storage was actually in a vault adjacent to the business premises of Investgold, and to which the employees had unsupervised access.  The employees subsequently stole the coins.

Under a contract of sale, ownership of the object of the sale passes from the seller to the purchaser once the following occurs:

  • physical delivery of the object of the sale to the purchaser; and
  • an intention of the seller by such delivery to transfer ownership to the purchaser and of course an intention of the purchaser to receive ownership.

Uys sued Investgold for delivery of the coins, on the basis that the stolen coins were not duly delivered to him.  The Court found that, although Uys handled the coins during the verification process, in fact the employees retained control over the coins.  The Court held that: “The presence of an intention to steal the coins on the part of the persons who were the directing mind of the Defendant [Investgold] would have prevented the transfer of ownership”.  The Court ordered Investgold to deliver the coins to Uys.

Investgold appealed to the Supreme Court of Appeal, and on 16 September 2014 the SCA upheld the appeal.  The SCA found that the delinquent employees were not the persons who were the directing mind of Investgold.  Rather, the innocent general manager or the innocent stock controller who had physically handed the coins to Uys was such directing mind.  In effect, the SCA found that under the scam the coins were stolen immediately after having been duly delivered to Uys.

The judgment in the Gauteng High Court seems to be more sensible.  Uys may approach the Constitutional Court for leave to appeal.  However, there is no guarantee that the Constitutional Court will grant leave to appeal.

 

Racial quotas

Jerome Veldsman

by Jerome Veldsman

In the Talking Point July 2014 we discussed racial quotas, and concluded with: “One can expect a divided South African Constitutional Court on the question of racial quotas, but not the strict scrutiny applied in the USA. Racial quotas may well pass constitutional muster in South Africa.

On 2 September 2014, in SAPS v Solidarity obo Barnard, the Constitutional Court delivered a confusingly divided judgment, but was unanimous in finding in favour of SAPS.

Ms Barnard, then a member of SAPS, applied twice for an advertised position within SAPS. On both occasions, she was shortlisted, interviewed, and recommended as the best suited candidate. However, the National Commissioner did not appoint her (or anyone else), as he regarded white females to be over-represented at the relevant salary level, and the post as not critical to service delivery. Barnard challenged the decision not to appoint her as constituting unfair discrimination on the ground of race, but she did not challenge the actual SAPS employment equity plan.

The Labour Court found in favour of Ms Barnard. On appeal, the Labour Appeal Court found in favour of SAPS. On further appeal, the Supreme Court of Appeal found in favour of Barnard (five judges, unanimously). On final appeal, the CC found in favour of SAPS.

In terms of section 15(2) of the Employment Equity Act, affirmative action measures must include a long list of measures, including measures to ensure the equitable representation of suitably qualified people from designated groups in all occupational levels in the workforce. Then, in terms of section 15(3), the latter measures “include preferential treatment and numerical goals, but exclude quotas“.

The terms numerical goal and quota are not defined in the Employment Equity Act. Moseneke ACJ, writing for the majority (of seven out of eleven), held that this was not an appropriate case to analyse the terminology. He did observe that the primary distinction lies in the flexibility of the standard, a quota amounts to job reservation, and a numerical goal serves as a flexible guideline.

Moseneke ACJ also held that the implementation of a valid employment equity plan may amount to job reservation if applied too rigidly. As a bare minimum, such implementation must be rationally related to the terms and objects of the measure. However he held that this was not an appropriate case to define the standard for implementation of a valid employment equity plan.

Three judges held that this was such an appropriate case. They add to the rational requirement a more exacting level of scrutiny. They regard the appropriate standard to be fairness. Three other judges regarded the fairness standard as inappropriate.

In general, under a quota system, a specific number or percentage of positions are reserved specifically for a designated group; and, under a numerical goal system, there is an aspiration that a specific number or percentage of positions will over time be filled by a designated group.

The subtext of the Barnard judgment overall is that the strict scrutiny applied in the USA to affirmative action measures is not part of South African law. On the contrary, as affirmative action is a constitutional imperative, mild scrutiny will probably be applied. It is likely that a racial quota system “thinly veiled” as a numerical goal, or a numerical goal in practice implemented as a racial quota system, may well pass constitutional muster in South Africa.

Zwarte Piet (Black Pete)

Jerome Veldsman

 

by Jerome Veldsman

 

Zwarte Piet (Black Pete) is, in Dutch folklore, dating back to the early 1800s, the personal servant of Santa Claus (Father Christmas). The person (usually with a light skin colour) portraying Zwarte Piet wears colourful clothing, a curly wig, and earrings, and his make-up includes blackface and red lipstick. Zwarte Piet has been controversial for years.

 

 

 

Zwarte Piet

 

The Dutch press reported on the recent student “blackface” incidents in South Africa in the context of Zwarte Piet.

The Netherlands Raad van State (Council of State) is a very influential constitutionally established advisory body to the government.  On 14 November 2014, the Council issued a ruling with regard to Zwarte Piet.  The Council overturned the ruling of an administrative court in Amsterdam that Zwarte Piet constitutes negative stereotyping and thus an infringement of Article 8 of the European Convention on Human Rights.

The Belgian Interfederaal Gelijkekansencentrum (Inter Federal Equal Opportunity Centre) is a “Chapter 11”-like institution.  On 22 October 2014 the Centre published an advice on whether Zwarte Piet is racist, and how the society is to deal with Zwarte Piet in future.  The Centre stated that Zwarte Piet does not constitute racism or any forbidden racial discrimination, and asked for constructive debate about Zwarte Piet in future.

This will not be the end of the on-going opposition to Zwarte Piet.  His detractors intend to approach the European Court of Human Rights.  Seemingly, for the majority of Dutch speakers, the matter is a ‘storm in a teacup’, and they regard Zwarte Piet as part of their heritage.

 


This Month in Law: The Namibian Seperation from South Africa

Namibia held parliamentary elections between 7 and 11 November 1989 to elect a Constituent Assembly of Namibia.  The elections were preceded by decades of international legal and political wrangling.

In 1920, under the Covenant of the League of Nations, South Africa acquired full power of administration and legislation over South West Africa (now Namibia).  The United Nations superseded the League in 1946.  The UN requested South Africa to surrender its earlier mandate, which would then be replaced by a new regime of United Nations Trusteeship Agreements.  South Africa refused.  Years later, Ethiopia and Liberia challenged South Africa in the International Court of Justice (the principal judicial organ of the UN).  The case dragged on for years, until the final judgment in 1966.  The ICJ found in favour of South Africa, by thirteen votes to two, mainly on the technical ground that Ethiopia and Liberia had failed to establish any legal right or interest in the subject matter of their claims.

Later in 1966, the General Assembly of the UN adopted the famous Resolution 2145, terminating South Africa’s mandate over Namibia.  South Africa did not accept Resolution 2145.  The General Assembly is mainly a “talk shop”, and lacked the necessary powers to ensure compliance with Resolution 2145.

The Security Council subsequently adopted various resolutions declaring the continued presence of South Africa in Namibia illegal, the main one being Resolution 276 (1970).  South Africa did not accept Resolution 276.  The Security Council referred Resolution 276 to the ICJ for an advisory opinion, and on 21 June 1971 the ICJ opinion went against South Africa, by thirteen votes to two.  Still South Africa did not surrender its mandate.

The Namibian question remained prominent in the international arena, with major Soviet and USA involvement.  In 1988, Angola, Cuba, and South Africa signed a tripartite agreement under which South Africa agreed to hand control of Namibia to the United Nations.  The transitional phase was ultimately smoother than had been anticipated, and on 21 March 1990 Namibia formally became independent.