by slamatattorneys | Jul 13, 2021 | Sports Law
It is often asked, what is Sports law? Well the answer is quite elementary.
Sport(s) law is the body of law which prescribes the laws pertaining to sports in general and the various aspects of business and society’s interaction with sports and sporting events.
Sports law includes the law such as the law of contracts, the law of delict, the law of damages, international law, public law involving government departments, such as municipalities and indeed the law pertaining to the interaction of participants in sports which are regulated by the national, provincial and local sports bodies themselves in terms of their own constitutions and membership contracts or agreements. Sports lawyers deal with these and many other related matters.
Other personal and commercial aspects of the law relevant to Sports law include, namely, personality rights such as image rights, labour law, advertising and marketing legal principles applicable to a particular sports persons, an event, tournament or sport as a whole.
For major international sports events such as the FIFA World Cup and the Olympic Games, host countries are obliged to enact domestic legislation for the hosting of such events, as occurred in South Africa for the 2010 FIFA World Cup. The purpose of such legislation is to guarantee the rights of the events to be staged and also, inter alia, for the guaranteeing and security of performance of obligations by governments for international sporting events and the sponsors investments therein.
With sport being such an important aspect of contemporary society, it follows that the law should regulate sport and so it does.
In South Africa, Sports law is of course subject to the Constitution (Act 108 of 1996) incorporating the Bill of Rights, and the rule of law. In this context, various cases have come before the Higher Courts, notably such as SARFU v President of the Republic of South Africa (1998) 1 BCLR 1256 (T).
Individual sports disciplines including kids sports (such as football or soccer, cricket, tennis, athletics, horse-racing, motorsports, Formula 1, rugby, gymnastics, equestrian, aquatics, bowls, squash etc) have their own ‘laws’ or rules which are applicable to participation therein. These laws consist of the rules of the sports which include collateral aspects such as participation or attendance of fans, the media coverage, the use of drugs and enhancing substances and illegal performance-enhancing substances. These laws also include the rules of clubs, voluntary associations, provincial or state sports bodies, national sports bodies, international sports bodies known as federations or confederations all of which exist in terms of their own rules agreed to by their members (rf FIFA, UEFA, CONMEBOL, CONCACAF, ITF, ATPTOUR, IRB, ICC, WADA, NBA, NFL, FA Premier League to name a few).
Sport is of course subject to the general law of the country which includes all municipal by-laws such as provisions pertaining to the sale of alcohol and the protection of minor children at sporting events and sports clubs. In addition, the various laws in regard to promotion of equality, non-discrimination, freedom of association and the rules of natural justice pertaining to equality and equity of choice and selection for participation are applicable to all sports.
In light of the fact that sport is also a major business in many respects, the laws of trademarks, passing-off, unlawful competition, logos, contracts, broadcasting rights, copyright, employer-employee relationships, media rights, rights of spectators, law of defamation, criminal law in regard to unruly crowd behaviour, riots, assault and various other common laws are all applicable to sports and sporting events (rf Moroka Swallows Football Club Ltd v The Birds Football Club and others 1987 2 SA 511 (W) in regard to passing-off).
Sports law contracts
Typically, the following contracts are utilised daily in Sports law:
- Commercial rights agreements;
- Stadium use agreements;
- Stadium naming rights agreements;
- Broadcasting, web-streaming and photography agreements;
- Licensing agreements;
- Sponsorship & Merchandising agreements;
- Players employment or participation agreements;
- Appearance fee agreements for marquee players;
- Management agreements;
- Lease agreements for sports facilities;
- Clubs and sponsors agreements;
- Clubs and service provider agreements;
- Event management agreements;
- Catering service agreements;
- Security service agreements.
Common law
One of the most important common law principles applicable to participation in sporting events is that of volenti non fit iniuria, which essentially means that no injury is committed against one who consents to injury.
The law has recognised that certain sports carry with them an inherent danger and risk of injury to protagonists and spectators and thus volenti non fit iniuria finds regular application. However, there are exceptions particularly in the law of England where injuries sustained in sport where found to be committed intentionally, negligently and not in the spirit of the game, and damages were awarded in such matters in addition to other punitive measures.
A further aspect of the law in general which is applicable to sports and more particularly sports clubs, is that of sports-betting, sports pools, wagering and lotteries. These activities are very important in regard to the income and fund-raising for sports clubs, but have very particular laws regulating same and naturally there is always the question of sports tax and taxes to be paid to the receiver (rf Fund-raising Act 107 of 1998; Non-profit Organisations Act 71 of 1997; Lotteries Act 57 of 1997; Income Tax 58 of 1962).
Conduct in sports
Very germane to the issue of conduct and damages in Sports law is the issue of the fair conduct of participants in sport. Maliciously or recklessly injuring an opponent can result in damages and possible criminal action against the perpetrator.
In regard to civil damages, it is apposite to understand that as far as sport and the law is concerned the standard of conduct of the reasonable man[1] is expected in sports participation and more specifically, the standard of conduct of the knowing or professional sportsman or sportswoman, which places a higher threshold[2] on the participants.
Sports law – Clubs & Associations
In South Africa, as in most countries, organised sport is conducted by individuals typically in groups or associations. Associations themselves also engage in organised sports in leagues, competitions and in local, provincial and national sports events as unions, which recently take the form of non-profit companies.
There is no requirement in South African law for a sports club, country club or other voluntary associations or sports-minded people to take any particular legal form.
Voluntary associations are generically defined to be a voluntary relationship between three or more persons to achieve a common object or interest, which is usually not for profit making. The object or interest may be any lawful social, sports, scientific or otherwise object or interest. These associations do not have legal personality per se, but can derive the common law personality of a universitatis. (rf Malcomess and Co v Kuhn 1911 CPD 546)
Clubs, sports clubs, country clubs and other sporting entities bind their members to membership in furtherance of the object in terms of their constitutional documents. These are mutual agreements between the members and record, inter alia, the terms of membership, standards of behaviour, rules of the club, participation requirements and various other matters pertaining to the club and its administration.
On many occasions the agreements and rules of membership have been challenged in the higher courts in more ways than one. (rf Valkin and Another v Daggafontein Mines Ltd and other 1960 2 SA 507; Constantinides v Jockey Club of SA 1954 3 SA 35 (C); Turner v Jockey Club of South Africa 1974 3 SA 633 (A); Jockey Club of SA v Transvaal Racing Club 1959 1 SA 441 (AD); Garment Workers Union v De Vries 1949 1 SA 110 (W).
It is thus imperative that all sports clubs, country clubs, sports associations pay particular attention to Sports law (as it grows exponentially year on year) to ensure sound legal governance of their clubs and associations in compliance with the law.
www.slamatlaw.co.za ASHLEY SLAMAT ATTORNEYS – Copyright
[1] The average man of society who goes about his affairs in a reasonable fashion with ordinary prudence and thought.
[2] Therefore a higher standard of knowledge, skill and competence of a man professing to have same.
by slamatattorneys | Jul 8, 2021 | Business Law
The legal means by which business can secure credit being offered to customers is by the various legal measures providing for credit security.
Typically, credit security falls into one of two legal categories, namely, real security or personal security. The former secures the obligation(s) owed in regard to the entire world while the latter secures the obligation(s) owed only in respect of the juristic person or the debtor him/herself.
The former also provides a greater measure of protection in the event of the debtor’s insolvency or liquidation.
The following credit legal instruments are available each having their own unique legal requirements and provisions for enforcement against defaulting debtors:
- General or specific credit agreements and bonds (such as incidental credit agreements or specific agreements, and bonds such as general notarial bonds or special notarial bonds);
- Mortgages which generally secure rights to immovable property or land;
- Pledge agreements which secure movable property (the Security by means of Movable Property Act 57 of 1993 is relevant);
- Liens, which typically secure goods in respect of services rendered;
- Cession, being either out- and- out cessions or together with cession in securitatem debiti;
- Hypothecs in regard to movable property and legal claims;
- Suretyships in regard to personal debts for individual or several debtors.
Depending on the type of business products or services offered and the accepted level of risk, one or more of these instruments can be utilised (sometimes together as opposed to in the alternative) to secure credit being offered by the business.
Doing business prudently with adequate credit security in place for debtors’ obligations together with a sound debtors’ book management system is vital for successful business especially in regard to consumer related sales.
Utilising expert credit security legal expertise places your business at the forefront of it’s potential to maximise credit sales opportunities.
ASHLEY SLAMAT ATTORNEYS – Success is the Only option™
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by slamatattorneys | Jul 8, 2021 | Business Law
Contracts and business – the tail wags the dog.
It is said that doing business without a contract is stupid business. Never have truer words been spoken.
Nonetheless, it is remarkable that in 2021 so many court cases are filed in regard to businesses not doing business with proper contracts in place. Contracts and business go hand in glove.
Invariably, this results in many lost opportunities, ill-will and frequently the liquidation of companies with the consequent loss of investments placed by investors, particularly in start- up companies.
Why is it then that so many businesses go under due to not making use of proper contracts or any contracts at all?
Evidently, factors such as the type of business entity involved, the size of the business, the kind of business operation and the nature of the business owner, sufficient equity, credit lines, focused efficient labour, effective costs management, to mention a few determines the inclination to do business properly with contracts, or foolishly without.
The understanding of risk aversion is another crucial factor as is the amount of investment by the business owner in the business itself. After all, it is quite easy to play around and take substantial risks with investors’ money as opposed to your own.
Whether it be for lease agreements in regard to office space, office equipment, motor vehicles, or other agreements (in regard to employees, procurement of supplies, licencing, intellectual property, franchising, merchandising, marketing, advertising) the value of a proper contract cannot be underestimated or under-utilised by any entrepreneur. Furthermore, dealing adequately in contracts in regard to legislation that affects all businesses in general terms is also imperative, such as the following legislation:
- Companies Act 71 of 2008;
- Close Corporations Act 69 of 1984;
- Labour Relations Act 66 of 1995 & Basic Conditions of Employment Act 75 of 1997;
- Financial Intelligence Centre Act 38 of 2001 & POPI Act 4 of 2013;
- National Credit Act 34 of 2005;
- Income Tax Act 58 of 1962;
- Value-added Tax Act 89 of 1991;
- Insolvency Act 24 of 1936;
- Business Rescue in terms of Companies Act 2008;
- Liquor Act 59 of 2003;
- Trust Property Control Act 57 of 1988;
- Skills Development Levies Act 9 of 1999;
- Unemployment Insurance Contributions Act 4 of 2002;
- Occupational Health & Safety Act 85 of 1993;
- Electronic Communications & Transactions Act 25 of 2002;
- Electronic Communications Act 36 of 2005;
- Films and Publications Act 65 of 1996;
- Copyright Act 98 of 1978;
- Trade Marks Act 194 of 1993;
- Consumer Protection Act 68 of 2009;
- Competition Act 89 of 1998;
- Customs and Excise Act 91 of 1964.
These Acts invariably impact upon any business by imposing obligations and duties in many respects which should be catered for in business contracts or agreements whenever applicable. In addition, there are a multitude of provincial, municipal by-laws which may also be applicable depending on the type of business being conducted.
After all, in the final analysis, is there anything worse for a business person’s reputation than going bankrupt or being prosecuted for contraventions of the law? Not only does this place the business in jeopardy but also the investors’ investment, employees’ jobs and the credibility of the business owner.
ASHLEY SLAMAT ATTORNEYS – Success is the Only option™
www.slamatlaw.co.za ASHLEY SLAMAT ATTORNEYS – Copyright.
by slamatattorneys | Jul 8, 2021 | Family Law
MAINTENANCE ACT 1998 & DOMESTIC VIOLENCE ACT 1998
WITHHOLDING OF MAINTENANCE IS FINANCIAL ABUSE IS SOUTH AFRICA
We receive so many calls on a daily basis for assistance with maintenance and domestic violence matters.
Recently, there is a sad trend in regard to the withholding of maintenance payments due for ex-partners, ex-spouses and children.
We point out that maintenance payable in terms of divorce orders, other court orders or in terms of the Maintenance Act 99 of 1998 or in terms of the Domestic Violence Act 116 of 1998, must be paid timeously to the beneficiary. One of the primary purposes of such orders is for the beneficiary to be placed in a position to manage the costs and expenses of the beneficiary when the cost or expense has to be paid.
Withholding of maintenance is not only a social injustice in light of the serious consequences for beneficiaries in not being able to pay for their monthly bills, incurring credit judgments and credit listings for non-payment of debit orders and other bills.
In terms of the Domestic Violence Act 116 of 1998, as amended[1], domestic violence is defined to be:
- any form of abuse which includes physical, sexual, emotional, psychological or economic abuse;
- damage to property;
- stalking;
- entry into a person’s home without their consent;
- any other abusive or controlling behaviour where such conduct (acts or omissions) causes harm or may cause harm to your health, safety, or well-being.
Economic abuse is defined to be the “unreasonable deprivation of economic or financial resources to which a complainant is entitled under law…required for household necessities… mortgage bond repayments or payment of rent in respect of a shared residence”.
Not only is it a contravention of the Maintenance Act to withhold maintenance due and payable but it also constitutes domestic violence as defined in the Act because it is obviously a form of abuse.
If you are experiencing delays in payment of maintenance which is due and payable to you and /or your child(ren) it is imperative to approach the courts for assistance.
One of the remedies available is to apply for an Emoluments Attachment Order against the employer and earnings of the maintenance debtor so that you have a greater prospect of receiving the maintenance due on the expected date.
FREQUENTLY ASKED QUESTIONS?
How do I obtain a protection order in terms of the Domestic Violence Act?
Who can apply for a protection order?
- Any person who has been in a domestic relationship with the abuser/respondent.
When is there a domestic relationship between the complainant and the respondent?
- If they are or were married to one another;
- if they live or lived together in a relationship in the nature of a marriage, though they are/were not;
- if they share parental responsibility over a child;
- if they are/were engaged, dating or in a customary relationship;
- if they are blood relatives or related by affinity or adoption;
- if they share or recently shared the same residence.
Against whom can a protection order be obtained?
- Any person who is or has been in a domestic relationship with a complainant and who has committed an act of domestic violence against the complainant.
Where can a complainant apply for a protection order?
- At any Magistrates Court or Family Court;
- Any court in the area where the complainant permanently resides, carries on business or is employed;
- In the area where the respondent resides, carries on business or is employed or any court in the area where the abuse took place or is taking place.
Can a complainant be represented by a lawyer when applying for a protection order?
Yes.
With whom must the application for a protection order be lodged at the Magistrates’ Court?
The Clerk of the Court.
Can a minor apply for a protection order without the assistance of a guardian?
Yes.
When is it allowed for an application for a protection order to be brought outside ordinary court hours or on a day that is not an ordinary court day?
If the court is satisfied based on the allegations of facts and evidence that the complainant will suffer undue hardship if the application is not dealt with immediately.
What documents must the complainant submit when applying for a protection order?
- An application substantially corresponding to Form 2 of Regulation 4 of the DVA regulations for a protection order.
- Supporting affidavits by persons who have knowledge of the matter.
What happens if the court does not issue the Interim protection order?
The court must direct the clerk of the court to cause certified copies of the application and any supporting affidavits to be served on the Respondent in the prescribed manner, with the prescribed notice (Form 5 of Regulation 7) thereby calling on the Respondent to show cause why a protection order should not be issued.
When does the court issue a final protection order?
A final protection order will be issued if the Respondent does not appear on the return date as set out in the interim protection order, or if the Respondent does not appear on the return date as set out in the notice when an interim protection order was not granted.
If the Respondent appears on the return date as set out in the interim protection order or notice and opposes the issuing of a protection order, then the court will proceed to hear the matter.
A protection order issued by the court must be in the prescribed form and it must be served on the Respondent.
What happens after a protection order has been issued?
The clerk of the court must send certified copies of the protection order and warrant of arrest to the police station of the complainant’s choice.
Issuing of the warrant of arrest?
The warrant of arrest must be authorised and issued in accordance with Form 8 of Regulation 9.
Whenever a court issues a protection order, the court must make an order authorising the issue of a warrant of arrest.
The execution of the warrant of arrest is suspended subject to compliance with any prohibition, condition, obligation or order imposed by the court.
SOUTH AFRICAN POLICE SERVICE Family Violence, Child Protection and Sexual Offences Units (FCS).
The FCS Units can assist with allegations in regard to:
- sexual offences against children,
- person-directed crimes (where the family is involved),
- illegal removal of children under the age of 12,
- crimes facilitated through the use of electronic media.
For help, call SAPS Crime Stop: 08600 10111 or your local SAPS police station.
[1] Amended by Act 1 of 2011, Act 31 of 2008, Act 55 of 2003.
ASHLEY SLAMAT ATTORNEYS – Success is the Only option™
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by slamatattorneys | Jul 6, 2021 | Damages
DAMAGES LAW? WHAT DOES IT MEAN IN LAW AND HOW IS IT CALCULATED?
ASHLEY SLAMAT ATTORNEYS – Success is the Only option™
Part 1
In law, damage is essentially the loss which your patrimony (or estate) suffers as a result of the wrongful and culpable conduct (an act or omission) of another person or an event.
It also includes injuries which you may suffer personally to your physical body such as dog bites, injuries sustained in motor vehicle collisions. These two classifications are known in law as patrimonial or non-patrimonial damages each with their own legal bases and legal requirements which are highly technical, specialized areas of legal practice and which require expert legal services.
Without being too technical, the term ‘damages’ is also broad enough to cover ‘compensation’ or ‘satisfaction’ for losses or injuries suffered. Compensation is used to refer to patrimonial damage while satisfaction refers to non-patrimonial damages.
Leaving aside the learned legal nomenclature, the fundamental principle is that damages must be alleged and proved in order to succeed with a claim in the courts of law.
Regrettably though, punitive damages (in operation for more than 100 years in the USA) are still not part of South African law, hopefully it shall be in the future as it is an invaluable means to achieve justice and equity among persons for wrongful acts by penalising the wrongdoer for their wrongful acts and not simply seeking to restore the unbalanced scales.
It is apposite to bear in mind at all times, that the law of damages is probably the most technical and difficult to grasp and is in itself a highly specialized field in the practice of law.
We therefore furnish this article to enable cater for the constant inquiries received from clientele in regard to damages which they believe they have sustained.
Damages may be awarded either in terms of contractual law, delictual law or in terms of statutory law. Different causes of action are required for each particular case in which damages are claimed.eg. actio legis aquiliae, actio iniuriarum, the action for pain and suffering etc etc.
In the narrow sense, damages arise from either a breach of contract or from a delict which is in essence, conduct by a wrongdoer which wrongfully causes loss or damage to a person (the innocent party) for which the wrongdoer is compelled to make monetary reparation to the innocent party for such wrongful conduct. Also germane to the law of damages are principles of law which curtail or limit, not only the merits of the claim, but importantly in this context, the actual quantum of damages, i.e. the Rand amount of damages, to be paid by a wrongdoer. However, prior to determining the quantum of damages, it is imperative to understand when damages are in fact sustained.
In contractual law, damages are the losses sustained when a party does not perform as they agreed to perform.
In delictual law (or torts law), damages are the losses sustained by the wrongful, culpable act of another which causes injury to be suffered or losses to be sustained.
In damages law, two pertinent questions must be dealt with when damages arise.
Firstly, are the requirements for the existence of a legal obligation to pay damages satisfied – this is called the merits of the claim or cause of action?
Secondly, if the answer is yes, then based on the merits, what is the amount of damages that may be recovered – this is called the quantum of damages?
It is crucial to know that damages can be either negative or positive and this distinction determines the calculation of damages. Equally important is that damages can only be awarded if they are assessed which means that it must be capable of objective assessment, which in turns means that evidence must be placed before the court to prove that damage was sustained or suffered and the amount of damage that should be awarded.
After all, what is the point of instituting legal proceedings to claim damages if you cannot prove the damages which you’ve sustained.
Expert legal advice is absolutely necessary for success.
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