Talking Point November 2013

A succinct discussion of selected topical, legal matters

I take great pleasure in submitting this special non-denominational (early) festive season edition of Talking Point to you.

As the venerable Charles Dickens expressed in A Christmas Carol (1843).

“I have always thought of Christmas time, when it has come round, as a good time; a kind, forgiving, charitable time; the only time I know of, in the long calendar of the year, when men and women seem by one consent to open their shut-up hearts freely, and to think of people below them as if they really were fellow passengers to the grave, and not another race of creatures bound on other journeys.”

Some New Year’s advice from John Selden, an English jurist from the 1600s:

“Never tell your resolution beforehand, or it’s twice as onerous a duty.”

From all of us at Walkers to you:

May your festive season sparkle with moments of goodwill, laughter, and love!

May your year ahead be full of contentment and joy!

I express my gratitude for the 2013 Talking Points to our editor, Jerome Veldsman, our publisher, Amien Hoosain, and all the contributors.

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

Condemned by a kiss

Jerome Veldsman

by Jerome Veldsman

Tarasoff v Regents of the University of California (1976) is a famous judgment of the Supreme Court of California.

One Poddar was a student from India at the University of California, Berkeley.  He met Tatiana Tarasoff at a folk dancing class, and they socialised frequently.  On New Year’s Eve, 1968, Tatiana kissed Poddar.  He was not acquainted with the free love of the 60s at Berkeley, and interpreted the kiss as a confirmation of a serious relationship.  However, Tatiana was into free love, and not interested in an exclusive relationship with Poddar.  He did not take it well, and underwent a severe emotional crisis.

Time did not heal a broken heart for Poddar.  Mid 1969 he consulted a University psychologist, and disclosed his intention to kill Tatiana.  The psychologist diagnosed him as suffering from severe paranoid schizophrenia, and recommended that he be civilly committed as a dangerous person, but was overruled by a superior.

In October 1969 Poddar attacked and killed Tatiana.  Her parents filed wrongful death suits against the psychologist and other University employees.  The court found in favour of the parents:

The public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others.  The protective privilege ends where the public peril begins.”

The legal position in South Africa (and in many other countries) is much the same.

Poddar was criminally prosecuted, and convicted of murdering Tatiana, but the conviction was set aside on appeal, due to irregularity during the trial.  Rather than subjecting Poddar to a fresh trial, the authorities released him on the condition that he left the USA and never returned.

 

The Grinch comes in many guises

by Nosipho Madikiza

The Grinch is a fictional character created by Dr Seuss, and first appeared in the 1957 children’s book How the Grinch Stole Christmas!  The term Grinch has since become commonly used to refer to someone opposed to festive season (or other) celebrations. In Wingaardt v Grobler (2009) neighbours in a residential area in Jeffery’s Bay were at odds.  Each evening in December, Ms Grobler, switched on a variety of Christmas lights, and a live Father Christmas dispensed gifts to children from the porch.  As a result, various residents and tourists frequented her property.

Ms Grobler regarded the festivities as reasonable.  Ms Wingaardt differed, and described the festivities as ‘catastrophic’ to the ‘peace and quiet’ of the area, an ‘absolute nightmare’, a ‘street-party’ in front of her home.  She is unable to sleep, and is deprived of the peaceful use and enjoyment of her own property.

The judge was no Grinch:

The disturbance and nuisance caused to [Ms Wingaardt] must be balanced against any benefit or advantage experienced by [Ms Grobler] from her conduct.  Clearly there is no financial or patrimonial benefit – on the contrary, her expenses are probably not insignificant.  The benefit is solely the gratification and enjoyment she experiences from creating a festive atmosphere and spirit during the Christmas period.  She shares such enjoyment with many locals and visitors alike, and she brings happiness to many children. She also probably draws enjoyment from spreading goodwill and cheer among the community and causing two worthy charity organisations to benefit in the process.”

Ms Wingaardt was allowed to continue the festivities, and Ms Grobler had to chill-out.

 

Christmas and child contact clashes

Roxanne Ker Taryn Herbert

by Roxanne Ker & Taryn Herbert

The festive season is one of the busiest times of the year; not only for families, but for family lawyers too.

Many divorced and separated spouses are already embroiled in conflict over with whom which children are to spend the traditionally Big Days, and the other twenty five odd days of the school holidays.

Disputes arising at the last minute are the worst.  In a previous matter, we were approached by a divorcee who wished to take her young daughter overseas to visit family over the festive season.  Her ex-husband would not agree.  Although the spouses had entered into a parenting plan, the plan was silent on holiday contact and taking the child abroad.  As the scheduled departure time was imminent, we launched an urgent court application on behalf of the mother.  The matter was resolved just before the hearing, but the bulk of the emotional and financial expenditure had been incurred.

Celebrities are not spared.  Currently, a child contact dispute is brewing between Charlie Sheen’s ex-wives Brooke Meuller and Denise Richards.  Due to both Charlie and Brooke being in and out of rehab, their twin boys have been placed in Denise’s custody. However, Brooke has recently been released from rehab, and has indicated that she wants the boys to be with her for Christmas.

A thorough parenting plan, as part of a divorce settlement, and rolling written proof of contact times during the year, can do much to limit child contact clashes.

 

Public Holidays and a Sunday

Amien Hoosain

by Amien Hoosain

October and November are the only consecutive months in South Africa without a public holiday.  February is the only other month that does not contain a public holiday.  For many employees, each Saturday, Sunday and public holiday is a paid holiday; and whenever a public holiday falls on a Sunday, the following Monday is a public holiday.  Importantly, such ‘bonus Mondays’ do not eat up precious annual leave.  If a public holiday falls on a Saturday, employees are out of luck.

The bonus Monday rule does not help if Christmas Day falls on a Sunday, as the following Monday will always be the Day of Goodwill, which is in any event a public holiday.  The good news will be that New Year’s Day will then also fall on a Sunday, and the 2nd of January will be a bonus Monday.  Obviously, if the Day of Goodwill falls on a Sunday, the 27th of December is a bonus Monday; and if New Year’s Day falls on a Sunday, the 2nd of January is a bonus Monday.  Bottom line, in any year that one or more of the Big Three days falls on a Sunday, employees score only one bonus Monday.  Christmas Day and the Day of Goodwill are the only two consecutive days on the calendar of public holidays.  Perhaps the Day of Goodwill should be moved, possibly to November.

The bonus day rule is not unique to South Africa.  For instance, Australia has a similar Sunday then bonus Monday rule, but in Canada, if certain public holidays fall on a Saturday or Sunday, the following business day becomes a holiday.

It is a myth that South Africa has comparatively too many public holidays.  Argentina leads with 19 public holidays, followed by Colombia with 18 public holidays.  Brazil has only five public holidays, but employees have a statutory minimum of 30 days annual leave, as compared to only 15 days in South Africa.  Like South Africa, Russia has 12 public holidays, but employees have a statutory minimum of 28 days annual leave.

 

To give or not to give

Jerome Veldsman

by Jerome Veldsman

The value of a man should be seen in what he gives and not in what he is able to receive.” (Albert Einstein)

The giving (and receiving) of gifts is part and parcel of the festive season.  It is not always uncomplicated.

As between spouses married in community of property, the one giving the other a gift is ceremonial/demonstrative, as they both jointly own all the assets in their joint estate.  However, in terms of section 15(3)(c) of the Matrimonial Property Act, such a spouse may not, without the consent of the other spouse, donate to another person any asset of the joint estate, other than a donation that would not “unreasonably prejudice the interest of the other spouse in the joint estate“.  If a spouse transgresses, the other spouse may reclaim the donation.

Since virtually time immemorial, and until the Matrimonial Property Act became operational in 1984, donations between spouses (married out of community of property) were illegal (and prohibited and void).  The reason for the rule was: “to protect the spouses from their own generosity, and to prevent one spouse from being kissed or cursed out of his or her money“.  Like so many rules, there were exceptions: “Gifts made by one spouse to the other on birthdays, wedding anniversaries, and other festive occasions when it is customary to make gifts did not fall within the prohibition, provided they did not exceed the bounds of moderation, having regard to the means and social standing of the spouses“.  In a well-known 1972 case, a gift of an expensive motor car, motivated by affection and generosity, was held to be “within the bounds of moderation “. Presumably, the legislator realised that the rule had overbearing, and abolished it.

A collusive donation between spouses to prejudice creditors can be set aside under the Insolvency Act.  For instance, in Beddy NO v Van Der Westhuizen (1999) the soon to be sequestrated spouse donated ‘their’ holiday home to the other spouse under a simulated sale transaction.  It was to no avail. State v Deal Enterprises (Pty) Ltd and Others (1978) dealt with festive season (and other) ‘gifts’ to a procurement official.  ‘Nor can a gift to a State employee be justified merely because it was given at Christmas time, and was described as a Christmas gift.  It would be unfortunate if the idea were to gain currency that the season of goodwill is to be regarded as providing a legitimate cloak for the giving of bribes.  Although they may both be described as “Christmas presents”, there is obviously a big difference, amounting to a difference in kind, between the disinterested gift made to a relation or friend, and the venal offerings of a trader to a State employee.’

 

On a sober note

Despite the oft controversial P. J. O’Rourke’s laconic assessment that:

“… no drug, not even alcohol, causes the fundamental ills of society.  If we’re looking for the source of our troubles, we shouldn’t test people for drugs, we should test them for stupidity, ignorance, greed, and love of power.”

we remind of two truisms:

  • Drinking and driving: there are stupider things, but it’s a very short list.

 

  • The problem with drinking and driving is the mourning after.