by slamatattorneys | Aug 4, 2021 | Family Law
Is the New Rule 43 application procedure in South African law, unconstitutional? This is the question which we are asked so many times in recent months.
The Rule 43 applications procedure in the high courts has existed for many years as a means for divorcing parties to obtain interim relief in regard to specified interim (or interlocutory) issues involving the divorce as a whole.
This well-known, tried and trusted procedure, was changed recently[1] to enable parties to have what seems to be more effective relief and it seems for the procedure to be more robust and effective in regard to the determination of Rule 43 application issues which have been frustrated and abused in the past by unnecessarily combatant litigants looking to strike ‘low blows’.
[1] E v E 12583/2017; R v R 20739/2018; M v M 5954/2018.
In essence, the new ‘robuster’ Rule 43 applications procedure requires and enables upfront or earlier legal discovery of information which was previously not permitted. Those educated in law will be aware of the importance of discovery of information in trial matters and when such discovery is to occur.
This earlier discovery is in effect an overall, very granular particularisation of the financial positions of the respective parties to the divorce litigation.
In terms of the prevailing law applicable to the new ‘robuster’ Rule 43 procedure both parties are required to deliver to each other, their respective FINANCIAL DISCLOSURE DOCUMENT together with annexures in support thereof, which is certainly in effect a microscopic detailed account of their finances and financial positions and which is a declaration under oath.
The prescribed FINANCIAL DISCLOSURE can be seen to be a definite intrusion into the financial position of parties at the outset of the litigation and which was certainly not available in terms of the previous procedure. This amounts undoubtedly to ‘earlier’ discovery of information ostensibly necessary in the interests of the parties’ resolution of the divorce action, the interests of the parties themselves and those of any minor children involved in the divorce action.
While these apparent motives may hold some water, it remains to be seen whether or not the new procedure survives constitutional muster or review, as it is most certainly an apparent violation of the right to privacy not to mention other rights and/or freedoms. This is particularly so as all documents filed in an action or motion are public documents (unless the court determines otherwise which may be too late or if excluded by another rule eg. surrogacy matters) and thus a party’s privacy in regard to their personal information and financial information in particular, is placed openly in the public domain for all and sundry to have access to.
Also significantly, where parties are married in terms of an antenuptial contract or prenuptial contract and choose not to disclose their assets in the contract itself (as they are entitled to do) the privacy enjoyed by such parties is now effectively abolished in divorce proceedings in that such parties have to furnish their financial information ‘microscopically’ in the FINANCIAL DISCLOSURE documentation under oath.
While it can be argued that discovery in the ordinary course in terms of the previous procedure could have resulted in the same apparent violation of the right to privacy, and other rights and freedoms, there were many ways of safeguarding against same and/or avoiding same which is no longer the case in terms of the new Rule 43 procedure.
Constitutional review of the new Rule 43 application procedure shall be necessary to determine if the procedure amounts to a violation of, inter alia, the right to privacy entrenched in the Bill of Rights to the South African Constitution and other rights such as:
- the right to a fair trial,
- the right not to incriminate oneself,
- the right to remain silent,
- the right to due process,
- the right to fair administration of justice.
In terms of basic constitutional law considerations, surely there are many other less intrusive means to achieve the apparently ‘children-motivated’ motives and objectives behind the new Rule 43 procedure.
In addition, it certainly brings into question material and profound evidential issues such as prior or previous (in)consistent statements and/or acts, hearsay evidence, the exclusionary rule, and the use of declarations in a civil proceeding in subsequent matters involving the State and an individual or a company or a trust in regard to criminal matters and tax laws.
Undoubtedly, constitutional review of the new Rule 43 procedure is necessary to safeguard the rights entrenched in the Bill of Rights and the further rights and entitlements embodied in those very special rights. Otherwise what was the point in having those rights in the first place?
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by slamatattorneys | Aug 2, 2021 | General
Unfair Discrimination in South African Law
It happens very often that a client calls regarding ‘unfair discrimination’ which is believed to be occurring in various instances, such as, at sports clubs, at work in the employment context or at social venues.
This article is furnished, in plain language, to make it easier for clients to better understand what discrimination is, when it is fair and unfair generally, and particularly in the areas of labour or employment law, administrative law, sports and sports law, schooling or education law.
What is Discrimination?
Essentially in general terms:
discrimination means the behaviour or practice of forming of opinions about others not based on their individual merits, but rather their membership in a group with assumed characteristics.
Discrimination (or prejudice as it is sometimes referred to) usually is motivated by the intention of one person to obtain a benefit, favour or opportunity, directly or indirectly, which is denied to another person without fair reason or at the expense of the latter.
It can also be motivated by the intention to marginalise or disenfranchise any person where the latter is thought to be or perceived to be a threat or rival to the person initiating the discrimination.
In terms of statutory law, discrimination occurs when a person engages in conduct which shows favour, prejudice or bias for or against a person on any arbitrary grounds e.g. on the basis of race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age disability, religion, HIV status, conscience, belief, political opinion, culture, language.
While anti-discrimination laws may vary between various jurisdictions in regard to purpose and content, in South African law it is important to understand that discrimination can be fair or unfair and the legal significance of the difference is immensely important.
Education as to the law of unfair discrimination is vital in this respect as is the ability to overcome ignorance, prejudice and bigotry.
In what circumstances is discrimination ‘fair’
The law sets out four grounds on which discrimination is generally permissible:
- Compulsory discrimination by law;
- Discrimination based on affirmative action;
- Discrimination based on inherent requirements of a particular job;
- Discrimination based on productivity.
In labour law, in regard to compulsory discrimination, the law does not permit an employer to employ children under the age of 15 years or any pregnant women four weeks before confinement and six weeks after giving birth.
Furthermore, in labour law, discrimination by an employer based on the inherent requirement(s) of the particular job does not constitute unfair discrimination. An inherent requirement of a job depends on the nature of the job and required job qualifications. If such requirements can be shown, discrimination will be fair, e.g. if a person with extremely poor eyesight cannot be employed as a pilot or be enlisted in the military.
It is also fair in law for the employer to discriminate on the basis of productivity (or the lack thereof) when determining salary increases, e.g. increases based on meritorious work or service, or promotions, overseas travel for work, perks and other employment enhancing opportunities or employment fulfilment. This is dependent on the fairness of the underlying criteria utilised for assessing performance, productivity and the other inherent requirements for the opportunities.
Unfair discrimination occurs when…
In South African statutory law, discrimination is prohibited not only by the Constitutional guarantee itself in terms of section 9 of the Bill of Rights, but also in terms of the Prevention of Unfair Discrimination Act 4 of 2000, as amended (the Promotion of Equality and Prevention of Unfair Discrimination Act, is it’s full title), which is basically the machinery which gives effect and substance to the Constitutional guarantee, subject, of course, to the limitation clause.
In a nutsell, the Act prohibits unfair discrimination in South Africa by the government and by private organisations and individuals.
This includes associations or entities such as universities, technikons, schools, crèches, nursery schools, sports clubs, country clubs, non-profit organisations, charitable entities, places of worship, private and public companies.
Most importantly, the discrimination law also covers:
- the actions; or
- inaction of such entities or associations:-
- and includes those of it’s-
- members,
- elected directors or representatives,
- committees or managers,
- chairpersons,
- treasurers,
- caterers,
- staff and the like when exercising:
- any right,
- entitlement,
- function,
- or power in terms of their office or membership.
Decisions regarding participation or team selection or members’ selection by committees of schools, sport clubs and the like, for individual-participant sports or team sports such as league teams, league participation, regional sports participation are all subject to the Act and unfair discrimination is prohibited in this regard.
In regard to ‘r and r’, in respect of the utilisation by members (or in fact visitors) of sports club facilities, venues, bars, restaurants and the like, unfair discrimination practices and conduct is prohibited. It matters not that such clubs or venues are ‘private clubs’.
Right of admission signs or notices do not per se enable circumvention of anti-discrimination laws. The Rule of law prevails.
Unfair discrimination can also occur in respect of conduct (actions or inaction) which has the effect of ignoring or marginalising or disenfranchising persons (or their views or opinions) arbitrarily, whether intentionally or not.
It can also occur in regard to the right to access information of such entities or associations or sports clubs in respect of constitutional documentation, minutes of meetings, financial information, contractual information, documentation evidencing decision-making procedures or processes, employment guidelines, employment contracts and the like.
Disabilities and/or Impairments
The Act also prohibits unfair discrimination against an individual who has a ‘disability’ if he or she has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such impairment, or a person who is perceived by others as having such an impairment.
It is thus imperative to ensure that when considering legal action in regard to unfair discrimination that expert legal advice is sought to ensure that any such claims are meritorious and professionally considered in law.
ASHLEY SLAMAT ATTORNEYS – no games, JUST LAW™
The following significant cases demonstrate the extent of the vast scope of unfair or anti-discrimination litigation in South African law and the subject matter thereof
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I returned and saw under the sun, that the race is not to the swift, nor the battle to the strong, neither yet bread to the wise,
nor riches to men of understanding, nor yet favour to men of skill, but time and chance happeneth to them all.
-Ecclesiates 9:11.
by slamatattorneys | Jul 30, 2021 | Business Law, Contract Law
The exceptio non adimpleti contractus is a contractual defence which can be raised in regard to reciprocal contracts.
While it is classically stated that reciprocity is the cornerstone of any good relationship, it is evident that times have certainly changed.
The exceptio non adimpleti contractus means in simple layman’s terms the right to withhold performance (eg. payment) where reciprocity exists contractually in terms of the performances by each party.
Performance by the parties must be simultaneously due or one party due to perform before the other. It is typically used in commercial contracts disputes when a party (a land owner or homeowner) is sued for payment by a service provider, for example a building company, when the service provider has not performed at all in terms of the contract or, as most frequently occurs, where the building company has performed defectively in terms of the contract.
The requirement of reciprocity is thus a crucial element of the defence and it also finds particular application in contracts of lease and contracts of letting and hiring and other commercial contracts.
It is increasingly clear that the legal principle of exceptio non adimpleti contractus is taking on substantial significance in South Africa in recent times and since the onset of the Covid19 pandemic and indeed in respect of the seemingly clear trend of parties’ wilfully defaulting/breaching contractual terms with self-professed impunity. This appears to be increasing especially in the fields of commercial contracts for:
- construction contracts for homes, homeowners associations and sectional title units;
- other ‘building’ contracts such as services for electrical wiring, plumbing, ventilation systems, audio-visual services, security systems, swimming pools, spas, Jacuzzis;
- service contracts particularly in regard to independent contractors services; and
- also pure service contracts where a service provider bills the consumer in arrears for the service rendered.
It is thus imperative that when a party to a reciprocal contract does not perform as that party agreed to, the other party must seek expert legal advice without delay from an expert contracts attorney to safeguard its interests, or otherwise the delays caused by inaction or the exercise of incorrect legal remedies may result in serious financial consequences and lack of legal recourse to obtain reciprocity or equity in terms of the contractual relationship.
ASHLEY SLAMAT ATTORNEYS – Success is the Only option™
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by slamatattorneys | Jul 30, 2021 | Contract Law
It is clear that the legal principle of force majeure in South African law of contracts is receiving more attention as the second year of the Covid19 pandemic moves on.
Essentially, force majeure in South African common law is a means of obtaining release from contractual obligations, where certain factual circumstances exist, to enable same to be invoked by any party to a contract. The relief does not arise automatically, as there are legal procedures and formalities which must be invoked litigiously.
Force majeure (also known as vis maior, an act of God or vis divina) is taking on more importance not only in regard to contracts concluded prior to the Covid19 pandemic but more importantly since the outbreak of the pandemic. Force majeure will be relevant where some particular objective force, power or agency exists which cannot be resisted or controlled by the ordinary man. This includes not only acts of nature but also acts of man such as new legislation, riots, nuclear disasters, pandemics caused by man and other man created immense impact events or mass destruction events like terrorist bombings.
It is closely linked to the legal principle of casus fortuitous which provides for release from obligations, subject to conditions, when something extraordinary or unforeseen occurs and which human foresight cannot be expected to anticipate or if it can be foreseen it cannot be avoided by the exercise of reasonable care or caution.
Ultimately, whether or not parties to a contract will be able to obtain the full intended benefit of the common law principle of force majeure depends to a large extent on the nature of the contract and where the scale of power is in regard to the parties’ respective negotiating positions of strength. The principle applies to contracts by virtue of the common law either as an agreed contractual term or ex lege (by operation of the law) if the term is not included in the contract itself.
Related to force majeure is the principle of supervening impossibility of performance which is another principle by which a party can obtain release from contractual obligations where performance becomes objectively impossible after conclusion of the contract. This can occur either through physical impossibility or legal impossibility of performance. Impossibility must be absolute, mere difficulty of performance does not suffice.
Invariably, one of the two principles may be applicable to a multitude of contracts concluded prior to Covid19 if one of the parties wishes to obtain a release from its obligations.
In regard to contracts still to be concluded, the positions of strength will determine whether or not the principle of force majeure will be included by agreement. Many companies offering banking, insurance and other related services offer standardized contracts to clients and these are not up for any negotiation. It is clearly take it or leave it.
Bearing in mind the massive stresses caused to millions of people worldwide, and in South Africa particularly, it is submitted that the principle of force majeure will continue to take on increased significance in contractual negotiations having regard to the belief held by so many that Covid19 is the first major health, cultural and legal significant factor to change the face of the world since the 11 September 2001 attacks and that the likelihood of another viral pandemic or similar event cannot be ruled out.
It is thus essential when considering the negotiation and conclusion of contracts in the current Covid19 times, and certainly in the post Covid19 world, that force majeure and impossibility of performance is a material term of any contract and that you employ the services of an expert contracts attorney to safeguard your interests, or otherwise you may be called upon to pay your pound of flesh.
ASHLEY SLAMAT ATTORNEYS – Success is the Only option™
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by slamatattorneys | Jul 22, 2021 | Labour Law
(Double Jeopardy in South African law: Don’t fool yourself – it doesn’t always apply – risks for both employers and employees)
ASHLEY SLAMAT ATTORNEYS – no games, JUST LAW™
The law in regard to ‘double jeopardy’ is very complex and requires expert knowledge acquired through years of study and experience which is why it is offered only in advanced legal subjects in the LLM degrees at universities.
The common law principle of ‘double jeopardy’ (also known as ‘former jeopardy’) is one of the most important principles applicable to criminal law, which is applied worldwide, to prevent the abuse of state power or prosecutorial abuse of power to gain a second bite at the apple.
Most instances of double jeopardy arise when the state has failed to investigate crimes professionally or when mistakes are made by the prosecution during their consideration of charges to be brought against an accused.
Another instance in which it arises in regard to subsequent-death cases where a victim of a crime survives and after the acquittal or conviction of the perpetrator on a lesser charge, the victim dies from injuries sustained in the crime and the state seeks to charge the perpetrator with murder or culpable homicide. Subsequent-death cases are an exception to the standard considerations of the principle of double jeopardy by the courts and the leading case in South African law pertaining to double jeopardy since the 1996 Constitution is that of S v McIntyre (1997) 2 SACR 333 (T), while the earlier cases of S v Ndou 1971 (1) SA 668 (A) and S v Khoza (1989 (3) SA 60 (T) are precedents in their own right, following on from the ground-breaking, landmark cases of S v Davidson 1964 (1) SA 192 (T) and R v Manasewitz 1933 AD 165.
Section 35(3)(m) of the Constitution provides the constitutional guarantee that:
[e]very accused person has a right to a fair trial, which includes the right not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted.
It is critical that any accused person always secures the services of an expert attorney to protect their rights in regard to abuse of power by the state or the prosecution or any other self-regulating body which includes employers in the labour context.
The defence or plea of double jeopardy only attaches in law after an accused has pleaded in a criminal trial. This is a fundamental and rudimentary principle in its own right which must be fully comprehended.
Criminal litigation chess-play is reserved for the realm of expert criminal defence attorneys because of the maxim that “it is better that 100 guilty men go free than for one innocent man to be jailed”.
The law pertaining to former jeopardy or double jeopardy is applicable not only to criminal cases and the courts of law but also to matters involving self-governing bodies or tribunals such as Prison Boards, the military in regard to court martials and disciplinary action relevant to the CCMA, Bargaining Councils, the Labour Courts in regard to labour law and employment law.
Former jeopardy or double jeopardy basically means that a person cannot be tried twice in a court or tribunal of competent jurisdiction (as opposed to a kangaroo court) on the same set of facts or conduct.
If the person is charged with a crime which is essentially the same as a previous charge where the person has been acquitted of convicted, the person is entitled to raise the plea of former jeopardy or double jeopardy (autrefois acquit or autrefois convict).
It is imperative to understand that the colloquial meaning of double jeopardy is not the legal meaning and on many occasions clients do not know the difference or the law pertaining to same.
In civil law a similar principle in the law of civil procedure and the law of damages called the “once and for all” rule finds application. This rule prohibits a party to a dispute in which a court has given judgment to threaten another party with further litigation on the same issue.
In employment or labour law, double jeopardy may find application occur where the employer subjects the employee to a second disciplinary enquiry in respect of the same offence or similar conduct, after an employee was found not guilty at the first disciplinary inquiry or when a less severe sanction, than dismissal, was imposed on the employee.
While it is the business of employers to discipline their employees in accordance with the principles applicable to employee-discipline, an employee charged with misconduct or poor performance has the right to be given a fair opportunity to be heard before sanctioning (which in itself must be fair). Culminating from a fair disciplinary enquiry, the employer may impose a sanction it considers appropriate, provided the sanction is fair and consistently applied in general to all employees.
In order to succeed with the defence of double jeopardy in South African law, the employee must allege that the decision to acquit him, or to impose a less severe sanction, was made at a previously fair disciplinary inquiry and that the second charge is based on substantially the same conduct or facts as the previous charge. It sometimes happens that an employee who commits an offence is issued with a warning for a transgression by his manager. However, should it happen that the same offence is brought to the attention of a senior manager, he may think it warrants a sanction of dismissal based on substantially the same conduct of the employee.
In Brandford v Metrorail Services & Others (2003) 24 ILJ 2269 (LAC) an employee was given a warning by his line manager for forging a manager’s signature on petty cash claims.
After learning about the offence and the sanction, the regional manager instructed the auditors to investigate the offence. On the strength of the auditor’s report the regional manager decided to institute a further disciplinary inquiry which resulted in Brandford’s dismissal.
The Labour Appeal Court held that the employer had not infringed the double jeopardy rule. The court held that Brandford had not been subjected to two disciplinary enquiries, because at the time when the employee was issued with a warning, he was not formally charged by his line manager and therefore did not appear before a disciplinary inquiry.
Prior to the Brandford decision, in the case of BMW (SA) (Pty)(Ltd) v Van Der Walt (2000) 2 BLLR 121 (LAC), the Labour Appeal Court held that the question whether or not to institute a second disciplinary inquiry against an employee would depend on whether it is, in all the circumstances, fair to do so. The Labour Appeal Court stated that it would probably not be fair to hold more than one disciplinary inquiry, save in exceptional circumstances. (rf SARS v CCMA (2016) 3 BLLR 297 (LAC); SARS v CCMA (2014) 35 ILJ 656 (LAC); Opperman v CCMA & others (C530/2014) (2016) ZALCCT 29 (17 August 2016) – for recent cases on the point in issue).
In cases were an employee proves that a properly constituted disciplinary inquiry was previously held and that s/he was previously been charged and acquitted or found not guilty, then when a later charge brought against the employee was based on substantially the same conduct or facts, the employee should be successful in raising the defence of double jeopardy or former jeopardy in the second or later inquiry.
However, it is vital to know the law and to secure the services of expert attorneys to litigate your case, whether or not you are the employer party or employee party in the matter.
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