Dear Friends and Colleagues
I take great pleasure in submitting the September 2016 edition of Talking Point to you.
John Kenneth Galbraith (1908 – 2006) was a larger than life (originally Canadian and later) American iconoclastic economist, lecturer, and diplomat. He was a confidant of John F Kennedy, and the author of the famous and influential book The Affluent Society (1958). As a prolific and outspoken liberal political activist, he was perhaps the best-known economist of his generation. Several expressions in common use today, such as “conventional wisdom” and “countervailing power“, originate from Galbraith. Due to his eloquence and dry sense of humour he was also entertaining:
“Under capitalism, man exploits man. Under communism, it’s just the opposite.”
“Meetings are indispensable when you don’t want to do anything.”
“In any great organization it is far, far safer to be wrong with the majority than to be right alone.”
“The great dialectic in our time is not, as anciently and by some still supposed, between capital and labour; it is between economic enterprise and the state.”
“The enemy of the conventional wisdom is not ideas but the march of events.”
“While it will be desirable to achieve planned results, it will be even more important to avoid unplanned disasters.”
As an aside, the following quip, though often ascribed to Galbraith, actually originates from one of his contemporaries, Ezra Solomon:
“The only function of economic forecasting is to make astrology look respectable.”
As always, I would greatly appreciate your feedback on Talking Point. Please email me at firstname.lastname@example.org.
In this issue:
- Someone who commits insurance fraud had better keep the peace with the neighbours. A recent UK Supreme Court judgment illustrates the point.
- A recent Canadian tax case illustrates the risk of a complicated structured transaction.
- This follows on a previous article on the right of a lessor to cancel the lease of a non-paying lessee under business rescue, and deals with the position when business rescue had already commenced.
- What is a seller to do when the purchaser of a vehicle under an instalment sale agreement is placed under business rescue?
- This title is a quote attributed to Mark Twain. We discuss such an incident that occurred in Cape Town.
- What are police officers to do if a child has committed an offence?
- 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.
- Trial by jury, as opposed to trial by a judge, has roots in ancient Greece and Rome, and became established in England pursuant to the Magna Carta of 1215. In some countries, such as the USA, the jury system remains sacrosanct. In South Africa, the jury system was abolished by the Abolition of Juries Act (1969). The famous legal case in this issue, from India, illustrates why, in South Africa, the jury system should perhaps remain abolished.
Insurance settlements and trouble with the neighbours
Hayward v Zurich Insurance Company, a judgment of the UK Supreme Court (the apex Court) on 27 July 2016, dealt with an individual dishonestly exaggerating the extent of the consequences of his medical condition, for purposes of a better insurance pay-out. Hayward was initially successful, but trouble with the neighbours caused the matter to be revisited.
Hayward sustained a back injury at work on 9 June 1998. Such risk was insured by his employer with Zurich. Hayward was examined by an orthopaedic surgeon appointed by his solicitor, and an orthopaedic surgeon appointed by Zurich. To both surgeons he misrepresented his symptoms as severe.
Hayward submitted a claim for medical disability, loss of earning capacity, and the like for £419 317. Zurich’s claims handler and solicitor were suspicious, and they did as much as they reasonably could to investigate the position. However, the evidence was not good from Zurich’s point of view (not knowing the extent of Hayward’s misrepresentations). Hayward and Zurich entered into a settlement agreement on 3 October 2003 for £134 973, in full and final settlement.
Hayward and the Cox couple had been neighbours since June 2002. For an undisclosed reason, in 2005, the Cox couple informed the employer that, from their observation of Hayward’s activities and conduct, they believed that he had recovered in full from his injury at least a year before the settlement. The employer informed Zurich, and the latter sued Hayward, on the basis of fraudulent misrepresentation, for the setting aside of the settlement agreement, and the repayment of the £134 973 paid under such agreement.
At the trial in November 2012, Hayward persisted that he was a seriously disabled individual, whose disability arose from the 1998 accident, and that ever since he had been medically incapacitated. The Judge believed the other witnesses, found that Hayward had deliberately and dishonestly exaggerated the effects of his injuries, and set aside the settlement agreement.
A fresh trial commenced in September 2013, before the same Judge, to determine the correct amount that Zurich had to pay to Hayward. Such amount came to approximately 10% of the settlement amount, and Hayward was ordered to repay approximately 90% of the settlement amount, with interest.
Hayward appealed, but only against the setting aside of the settlement agreement. His appeal was successful, and Zurich appealed to the Supreme Court. The latter Court formulated the two questions to be decided:
For a settlement agreement to be set aside on the basis of fraudulent misrepresentation:
– must the defrauded party prove that it was induced into settlement because it believed that the misrepresentations were true; or
– will it suffice if the defrauded party proves that the misrepresentations were a material cause of the defrauded party entering into the settlement?
Under what circumstances, if any, does the suspicion by the defrauded party of exaggeration for financial gain on the part of the claimant preclude unravelling the settlement of that disputed claim when fraud is subsequently established?
As to the first question, the Court held that it will suffice if the defrauded party proves that the misrepresentations were a material cause of it entering into the settlement.
As to the second question, the Court held that: “… it is difficult to envisage any circumstances in which mere suspicion that a claim was fraudulent would preclude unravelling a settlement when fraud is subsequently established.”
Zurich won, and Hayward was probably financially ruined.
The legal position in South Africa is substantially similar.
If it sounds too good to be true …: “optimised” tax planning gone wrong
Golini v Her Majesty the Queen, a judgment of the Tax Court of Canada on 19 July 2016, dealt with the General Anti-Avoidance Rules (GAAR) in the Canadian Income Tax Act.
Why is a queen interfering with tax avoidance by a Canadian high net worth individual? Very unlike its neighbour the USA, Canada is a constitutional monarchy. As a member of the Commonwealth of Nations, the monarch of the UK is automatically the monarch of Canada.
The judgment reads like a play, with characters and plot. It is very well written. The opening lines:
‘Tax Planning – one side calls it “structured transactions”, while the other side calls it “smoke and mirrors”. Certainly there is a spectrum, and it is for me to determine where the Golini transactions fall on that spectrum.’
In very brief, under GAAR, if a structured transaction constitutes an impermissible tax avoidance arrangement (is too “aggressive”), the taxing authority is entitled to determine the liability for tax so as to neutralise the tax avoidance. South African GAAR is similar to its Canadian counterpart.
The structured transaction in question involved thirteen major steps, in several jurisdictions, more than twenty role players, and was known as a Retirement Compensation Arrangement Optimizer Plan. The structured transaction was too complex to unpack in a brief article. That, along with the suspicious name, implies the end result. The Court found the structured transaction to be “GAARable” (this has become a recognised term), costing the taxpayer several millions of Canadian dollars.
Similar to SARS’ approach in South Africa, the Canadian tax authority attacked the structured transaction as a “sham”, and in the alternative, as GAARable. The Court’s concluding remarks are instructive:
“The [Income Tax] Act is comprehensive: it has grown to be a mammoth tome attempting to cover every possible situation that taxpayers and their planners can concoct to minimize taxes – and concoct they do. Fearing plans were outwitting the legislation, the GAAR was introduced as an overriding general anti-avoidance provision. This was not to deny a taxpayer’s right to arrange affairs to minimize taxes, but to ensure such was done within the spirit of the law, hopefully saving the need for several hundred more pages of legislation to cover off more and more complex plans. And the plans continued, in the [tax authority’s] eyes skirting with legitimacy, and thus the non-legislative concept of sham got life. In these reasons I am simply attempting to make a common sense interpretation of the legislation without resort to the more nebulous concepts of sham or spirit of the law that admittedly can tie us all in knots.”
In our experience, the days of successful “aggressive” tax planning are over. And the “Optimiser Plans” and the like we analyse tend to be, if legal, a confusion of accounting rules for legal rules, and too exposed to a GAAR attack.
Goodbye delinquent tenant revisited
The article Goodbye Delinquent Tenant in Talking Point February 2016 dealt with the right of a lessor, who had cancelled the lease with the lessee due to non-payment of rental, to evict the lessee despite the lessee subsequently commencing business rescue.
Finlayson NO v Master Movers Cape CC (in business rescue), a judgement of the High Court, Cape Town on 2 August 2016, dealt with the right of a lessor to cancel the lease of a non-paying lessee under business rescue when business rescued had already commenced.
A primary goal of business rescue proceedings is to give the beleaguered company ‘breathing space’ to get its financial affairs in order. Part of the ‘breathing space’ is a statutory moratorium on legal proceeding against the company. The moratorium is not absolute. The applicable provisions in the Companies Act are:
– During business rescue proceedings, no legal proceeding … against the company, or in relation to any property belonging to the company, or lawfully in its possession, may be commenced or proceeded with …
– No person may exercise any right in respect of any property in the lawful possession of the company, irrespective of whether the property is owned by the company …
In Finlayson, the Court held that the statutory moratorium does not prevent the cancellation of a lease, despite the lessee being under business rescue, and upheld the cancellation. However, under the statutory moratorium on legal proceedings, the lessor required the consent of the business rescue practitioner or the leave of the Court to launch the eviction application. The court granted such leave, and ordered the eviction of the lessee (and the business rescue practitioner).
Give back my vehicle
JVJ Logistics (Pty) Ltd v Standard Bank, a judgement of the High Court, Durban on 22 July 2016, dealt with the rights of a seller (Standard Bank) under an instalment sale agreement (of a vehicle), with the seller reserving ownership, if the non-paying purchaser (JVJ Logistics) is subsequently placed under business rescue.
Prior to any talk of business rescue, Standard Bank obtained a Court order confirming the validity of the cancellation, and an order for the immediate return of the vehicle. JVJ Logistics then countered by placing itself under business rescue.
Standard Bank was slow in enforcing its rights, and the business rescue proceeded to the business rescue practitioner presenting a business rescue plan to the creditors. The plan involved JVJ Logistics keeping the vehicle, and paying off ‘on the never never’. Standard Bank (with the majority of votes) voted against the plan.
In such circumstances, under section 153 of the Companies Act, a business rescue practitioner is entitled to apply to Court to have the creditor’s vote set aside “on the ground that the vote was inappropriate“. In JVJ Logistics v Standard Bank, the business rescue practitioner made such an application.
As a preliminary step, the Court considered the question whether, or not, the vehicle was lawfully in the possession of JVJ Logistics. If it was not, the application was doomed to fail.
The Court commenced the discussion of the question by providing two quotations about the business rescue provisions in the Companies Act:
“I do not believe it is unfair to comment that many of the provisions of the Act relating to business rescue … were shoddily drafted and have given rise to considerable uncertainty.”
“It is therefore regrettable that the drafters of the provisions regulating the new rescue proceedings did not exercise more care in constructing the new procedure to avoid introducing principles and provisions that are completely foreign and even in conflict with our established law. … The many unclear, confusing and sometimes alarming provisions regulating the business rescue proceedings … will certainly not assist in making the procedure more acceptable or successful.”
The Court criticised the lack of clarity regarding the meaning of “lawfully” in the expression “lawfully in the possession of the company under business rescue”, but determined the two most likely meanings to be:
– “lawfully” means the company has a right in law which justifies its claim to have the relevant asset in his possession (the narrow meaning); or
– “lawfully” means the company acquired possession of the relevant asset other than by force or stealth (the broad meaning).
If the seller under an instalment sale agreement, with the seller reserving ownership, cancels the agreement, the purchaser loses any right in law to have the asset concerned in its possession. However, such purchaser would not have acquired possession of the asset by force or stealth, as it originally legitimately acquired possession under the agreement.
So, if the broad meaning is correct, the vehicle was lawfully in the possession of JVJ Logistics; and conversely, if the narrow meaning is correct, the vehicle was not lawfully in the possession of JVJ Logistics. The Court favoured the narrow meaning, and perforce the application was dismissed.
For completeness, the Court also considered the business rescue plan:
‘The business plan postulates [Standard Bank] capitalising [JVJ Logistics] and for the achievement of that purpose being kept out of its lawful entitlement to possession of [the vehicle] for over three years. The plan … sought to compel [Standard Bank] to fund [JVJ Logistics], and against its will to submit to a regime of risks, and infringements of its own future rights represented by its proprietary interest in the vehicle. I cannot discern any basis upon which a court could burden [Standard Bank] with these obligations against its will by declaring its vote “inappropriate” …‘
Although JVJ Logistics v Standard Bank did not deal with a lease, the principle regarding the business rescue plan ought to apply with equal force to the relationship between a lessor and a lessee that is in business rescue.
“The reports of my death have been greatly exaggerated.”
Govender v Health Professions Council of South Africa and Others, a judgement of the High Court, Cape Town on 26 August 2016, dealt with an appeal (to the High Court) by a neurosurgeon against the Appeal Committee (of the HPCSA) upholding his conviction by the Professional Conduct Committee of unprofessional conduct.
The averred unprofessional conduct was administrative in nature. Dr Govender had been charged with acting unprofessionally by failing and/or neglecting correctly to complete a notification of death form in respect of one Jacobus Cornelius Blomerus who had passed away at the hospital where Dr Govender practiced. Perhaps, had it not been for the consequences of the administrative error, the matter would have been nil of note.
The notification of death form reflected Jacobus Zacharias Blomerus as the deceased. Zacharias was Cornelius’ father (and next of kin). Due to the error, officialdom regarded the very much alive Zacharias as dead. His pension payments and other benefits were cancelled. His bank account was frozen. His driver’s licence, identity document, and passport were cancelled. It took him weeks to have the error rectified by the Department of Home Affairs. He was aggrieved, and laid a complaint against Dr Govender.
Dr Govender’s unchallenged evidence was that the following was the hospital’s standard operating procedure for notification of death forms:
– Firstly, administrative staff identify the deceased with reference to the information contained on the deceased’s hospital stickers, and checked against the patient’s file.
– Secondly, administrative staff enter the date, time, and cause of death in the patient’s file.
– Thirdly, this data is given to the administration department to generate a notification of death form via a central depot. At such stage, the form is uncompleted regarding much of the required information.
– Fourthly, the partially completed notification of death form is given to the doctor concerned to sign.
Dr Govender’s further unchallenged evidence was that, in respect of Cornelius, he had checked the particulars on the partially completed notification of death form against the information contained on Cornelius’ hospital stickers. This was the only information which he had available to him to confirm they were correct. He had compared Cornelius’ forename and surname, date of birth, date of death, and inpatient number on the form with the hospital stickers and found the form to be correct. However, on the hospital stickers, the patient was stated to be “Jacobus Blomerus”, with no middle name. And note the identity number is not provided on the hospital stickers.
As it turned out, an unidentified administrative staff member then erroneously transposed the particulars of Zacharias with those of Cornelius in the blank spaces still left on the form, including transposing the identity numbers. So, erroneously, Zacharias’ details were captured as the deceased, and Cornelius details were captured as next of kin.
The Professional Conduct Committee regarded Dr Govender as not a credible witness; and found that, because the form required the person signing it to verify the accuracy of the information contained therein, which information was incorrect, Dr Govender was guilty as charged. His appeal to the Appeal Committee was unsuccessful.
Govender’s primary ground of appeal to the High Court was that a proper evaluation of the evidence should result in his acquittal.
The Court confirmed that:
– A tribunal of a professional body (such as the Professional Conduct Committee) is par excellence the appropriate forum to set the standard of honour to which members of the body should conform, and to decide, upon proved facts, whether or not a member’s conduct conforms thereto.
– A Court will be reluctant to upset the factual findings of such a tribunal, and will only do so if satisfied that there has been a material misdirection.
One category of a material misdirection is if the findings of the tribunal on the proven facts are flawed.
The Court found “certain fundamental difficulties with the reasoning and findings of the Disciplinary Tribunal.” The proven facts did not justify the adverse credibility finding against Dr Govender. And:
“… while it may be that the wording of the form indicates that the person signing it verifies the accuracy of the information …, [Dr Govender’s] uncontroverted evidence was that when he signed the form, the particulars then reflected thereon were accurate according to the information that he had available to him. It was thus wrong of the Disciplinary Tribunal to find that, because this was required in terms of the wording of the form, whatever was subsequently inserted somehow became [Dr Govender’s] responsibility. Put differently, the hospital’s standard operating procedure at the time may have been questionable, but that is not the charge that [Dr Govender] faced.”
Arrest and detention of children: a measure of last resort
Raduvha v Minister of Safety and Security, a judgement of the Constitutional Court on 11 August 2016, dealt with the averred wrongful arrest and detention of a child (a person younger than 18 years of age).
On 6 April 2008, two police officers were despatched to Ms Raduvha’s house to investigate a complaint about her contravening a protection order. When the officers attempted to arrest her, her 15 year old daughter, Joyce, attempted to stop them from arresting her mother.
The officers arrested Ms Raduvha for violation of the protection order, and arrested Joyce for interfering with them in the execution of their duties. Mother and daughter were then detained at a police station until the next day when they were released on warning. However, the Public Prosecutor declined to prosecute them.
Mother and daughter both instituted action against the Minister of Safety and Security in the High Court, Johannesburg for damages for their averred wrongful arrest and detention. The High Court (a single judge followed by the full bench) dismissed the claims. They petitioned the Supreme Court of Appeal for leave to appeal, without success. They then applied to the Constitutional Court (CC) for leave to appeal. The CC granted only the daughter leave to appeal.
The CC judgement dealt mainly with the relevant constitutional rights of a child under the Constitution:
– Every child has the right … not to be detained except as a measure of last resort, in which case … the child may be detained only for the shortest appropriate period of time.
– A child’s best interests are of paramount importance in every matter concerning the child.
The CC delivered a unanimous judgment (a rare occurrence) and concluded that both Joyce’s arrest and detention were “in flagrant violation of her constitutional rights“:
“[The police officers] did not consider the crucial facts that she was no danger to them; that they could have handled or subdued her with ease; that she did not try to run away from them; that she was not causing any physical harm to them; that she was at or near her parental home and, importantly; that her father was present with them. … If the police officers had considered [Joyce’s] best interests, there would have been no reason for them to arrest her. They could have resorted to section 38 of the [Criminal Procedure Act], by either issuing a summons, a written notice or, as her father was present, leaving her in his custody with instructions for him to bring her to court. It follows that the applicant’s arrest is inconsistent with the Constitution and therefore unlawful.”
“Was [Joyce’s] detention in the circumstances of this case justifiable as a measure of last resort? Certainly not. This is because: … importantly, her father was available and willing to take her into his custody; nothing prevented the police officers from leaving the applicant in the custody of her father with appropriate instructions to ensure her appearance in court …“
The CC remitted the matter to the High Court for the determination of the amount of damages payable to Joyce.
The CC also attempted to give guidance to police officers:
“A question might be asked: how do [police officers] execute their constitutional mandate to prevent and combat crime without falling foul of section 28(2)? Does this mean that children shall, under no circumstances, be arrested or detained? The answer is no. … All that the Constitution requires is that, unlike pre-1994, and in line with our solemn undertaking as a nation to create a new and caring society, children should be treated as children – with care, compassion, empathy and understanding of their vulnerability and inherent frailties. … The Constitution demands that our criminal justice system should be child-sensitive.”
In practice, police officers on occasion have to make binary decisions (“yes” or “no”) under extreme time pressure and personal danger. One hopes the South African Police Service will issue to police officers more concrete guidelines compatible with this judgment.
POPI and family life
The Children and Young People (Scotland) Act 2014 (the Act) became law on 27 March 2014, and is intended to enshrine the key elements of the Scottish Government’s GIRFEC (Getting it Right for Every Child) approach.
The two primary policy aims of the Act are –
– early intervention by government authorities to promote the wellbeing of children (rather than after the fact welfare); and
– for different government authorities to work collaboratively and to share information in order to support wellbeing of children,
so that government authorities provide to all (Scottish) children and their families consistent support.
The Act does not define this “wellbeing of children”, but lists eight factors to which regard is to be had when assessing wellbeing. The eight factors are known under the acronym SHANARRI: standing for: safe, healthy, achieving, nurtured, active, respected, responsible, and included. The factors are not themselves defined, and some are very vague.
Amongst other matters, the Act establishes a “Named Person Service” (NPS) and the new professional role of a “Named Person“. Each child in Scotland will be allocated to a Named Person, and under Part 4 of the Act, a Named Person will exercise functions in relation to the child, including –
– advising, informing, or supporting the child and his or her parents;
– helping the child and his or her parents to access government services or support; and
– discussing or raising a matter about the child and his or her parents with a government service provider.
Part 4 also sets out powers and duties relating to the sharing of personal information about the child and his or her parents, including when a child is allocated to a different Named Person, and between government service providers.
Four registered charities with an interest in family matters, and three individual parents (the Appellants) challenged Part 4 by way of judicial review, on bases including –
– that Part 4 is incompatible with rights under section 8 of the European Convention on Human Rights (ECHR); and
– that Part 4 is incompatible with European Union Charter of Fundamental Rights (CFR).
Section 8 of the ECHR includes that everyone has the right to respect for his or her private and family life, and limits interference by a government authority with the exercise of these rights. The CFR includes respect for private and family life, and protection of personal data (similar to that in the South African Protection of Personal Information Act).
The Appellants’ challenges were dismissed in the court of first instance, and in the court of appeal in Scotland. They then appealed to the Supreme Court (the UK apex Court). The Supreme Court gave its judgment in The Christian Institute and others v The Lord Advocate (Scotland) on 28 July 2016.
In the Supreme Court, the Appellants emphasised the argument that Part 4 is incompatible with the protection of personal data rules, with success. The appeal was upheld:
‘[W]e conclude that the information-sharing provisions of Part 4 of the Act … are incompatible with the rights of children, young persons and parents under article 8 of the ECHR because they are not “in accordance with the law” as that article requires, …[and] may in practice result in a disproportionate interference with the article 8 rights of many children, young persons and their parents, through the sharing of private information …‘
The Court did not strike down the entire NPS system, and afforded the Scottish Government an opportunity to ament the Act so as to be compliant with the protection of personal data rules. The Government is confident that such amendments are feasible. The Appellants are confident that they have “blocked” the “state snooper scheme”. The Act is bound to lead to further litigation.
A love triangle and a miscarriage of justice
Kawas Manekshaw Nanavati was from the upper echelons of Indian society. He was a highly decorated naval officer, moved in the same circles as the Nehru–Gandhi prominent Indian political dynasty, and lived in Mumbai (then Bombay) with his English born wife, Sylvia, and three children. He was a Parci, a minority group living mainly in and around Mumbai. The original Parcis had migrated from (current day) Iran to (current day) India around the 10th century CE to avoid persecution of Zoroastrians following the Muslim conquest of Persia.
Nanavati and Prem Bhagwan Ahuja had been friends for 15 years, and were both 34 years of age (in 1959). Ahuja was a Sindhi, a minority group that had migrated from Pakistan to India following the independence of Pakistan in 1947.
Nanavati was frequently away on naval assignments for long periods of time. Sylvia and Ahuja had an affair. On return home from an assignment, Nanavati sensed something was amiss, confronted Sylvia, and she confessed.
Nanavati dropped his family at a cinema, excused himself, collected his pistol and ammunition, and proceeded to Ahuja’s car dealership. Ahuja was not there, and Nanavati proceeded to Ahuja’s home. There, Nanavati encountered Ahuja in the bathroom with just a towel around him, and fatally shot him. Then, Nanavati headed straight to the head of the military police, and confessed. The Provost Marshal advised Nanavati to turn himself in to the police, which he did immediately.
In a trial by jury, Nanavati was charged with premeditated murder; for which, at the time, the sentence would have been either life imprisonment or the death sentence. Nanavati pleaded innocent to murder, and guilty of culpable homicide; for which, at the time, the maximum sentence was 10 years imprisonment.
Such a “crime of passion”, in the upper echelons of society, was rare; and the incident engrossed the entire country. Public interest in the trial was overwhelming, and newspaper sales soared. Sylvia stood by her man, and was a main witness for the defence. The whole sordid affair was replayed in Court. The public sympathised with Nanavati, and the general ‘mood’ was that he had acted honourably and was a hero. However, the Parci and Sindhi communities were divided on the issue.
The defence presented the unmarried Ahuja as a playboy, and argued his death had been accidental, during a struggle over the pistol. The prosecution presented evidence that the deceased Ahuja had been found with the towel still wrapped around him, and argued that this was inconsistent with any struggle, and indicative of premeditated murder.
The jury of 2 Parsis, 2 Christians, and 5 Hindus found Nanavati not guilty of premeditated murder, with an eight to one majority. The district judge (magistrate) overseeing the trial regarded the verdict as a miscarriage of justice, and referred the matter to the High Court. A single judge of the High Court dismissed the earlier acquittal by the jury, found Nanavati guilty of murder, and sentenced him to life imprisonment. His appeal to the Supreme Court was unsuccessful, and he entered prison.
The public support for Nanavati did not diminish. Influential Parcis campaigned for an executive pardon. However, in such a political and religiously divided country, a pardon would be regarded by many as a blatant misuse of power to help a friend of an influential political family, and there would be severe backlash from the Sindhi community.
Three years later, the government received a pardon request for Bhai Pratap, a Sindhi, and a hero from the days of the Indian independence movement. Nanavati and Pratap were pardoned on the same day.
After his release, Nanavati emigrated to Canada with Sylvia and their children. He died in 2003.
Nanavati was the last person to be subjected to trial by jury in India, which was abolished even before his appeals were finalised. Already, the year before his trial the Law Commission had recommended the abolishment, and his trial provided the impetus for prompt action.
The Nanavati “love triangle” has inspired many a Bollywood film.