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UNFAIR DISCRIMINATION

slamatattorneys — Mon, 02 Aug 2021 09:20:04 +0000

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

President of the Republic of South Africa and Another v Hugo(1997) — a presidential decision to remit the sentences of imprisoned mothers with young children is not unfair discrimination against similarly-situated fathers.
Prinsloo v Van der Linde and Another(1997) — a law which imposes a different onus of proof in civil cases involving forest fires does not deny equal protection of the law or amount to unfair discrimination.
Larbi-Odam and Others v MEC for Education (North-West Province) and Another(1997) — a government policy prohibiting the employment of non-citizens as school teachers is unfair discrimination.
City Council of Pretoria v Walker(1998) — a municipality’s policy of charging a metered rate for water and electricity in formerly white areas but a flat rate per household in formerly black areas, with the effect that the residents of the white area pay higher rates on average, is not unfair discrimination, as the facilities provided to different areas are significantly different. However, the policy of suing to collect payments in arrears from residents of the white areas, but not suing similarly-situated residents of the black areas, is unfair discrimination.
National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others(1998) — the criminalisation of male same-sex sexual relations is unfair discrimination on the grounds of gender and sexual orientation.
National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others(1999) — an immigration law which provides benefits to married couples discriminates on the basis of sexual orientation and must be extended to provide the same benefits to same-sex life partners.
Hoffmann v South African Airways(2000) — a government-owned airline’s policy of refusing to hire HIV-positive people as flight attendants violates the right to equality.
Satchwell v President of the Republic of South Africa and Another(2002) — pension and retirement benefits provided to the spouses of judges must be equally provided to the same-sex life partners of judges.
S v Jordan and Others(2002) — the gender-neutral criminalisation of prostitution does not discriminate unfairly against women.
Khosa and Others v Minister of Social Development and Others(2003) — social welfare grants provided to South African citizens must also be provided to non-citizen permanent residents; to do otherwise is unfair discrimination.
Bhe and Others v Magistrate, Khayelitsha, and Others(2004) — the rule of male primogeniture in the African customary law of inheritance discriminates unfairly against women and against younger children.
Minister of Home Affairs and Another v Fourie and Another(2005) — the denial of marriage to same-sex couples is unfair discrimination on the basis of sexual orientation. (rf same-sex marriages in South Africa.)

www.slamatlaw.co.za ASHLEY SLAMAT ATTORNEYS – Copyright.

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.

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INSTITUTION OF LEGAL PROCEEDINGS AGAINST CERTAIN ORGANS OF STATE ACT 40 OF 2002

slamatattorneys — Wed, 17 Mar 2021 07:47:54 +0000

The purpose of the Legal Proceedings Against Certain Organs of State Act 40 of 2002 is to regulate the prescription of and harmonize the periods of prescription of debts for which certain organs of state are liable. Furthermore, to provide for the notice requirements in connection with the institution of legal proceedings against certain organs of state in respect of the recovery of debts from the State.

Section 1: Definitions –

“Creditor” – is a person who intends to institute legal proceedings against an organ of state for recovery of a debt or who has instituted such proceedings, and includes such person’s tutor or curator if such person is a minor or mentally ill or under curatorship.
“Debt” – is any debt arising out of:
Delictual, contractual or other liability and cause of action which arises from an act or omission under any law, for which an organ of state is liable to pay damages whether the debt became due before or after the fixed date.
“fixed date” – is the commencement date of this Act.
“organ of state” – is any

National / Provincial department,
Municipality contemplated in s151 of the Constitution,
Functionary or institution exercising a power or performing functions in terms of the Constitution, or provincial constitution as in s142 of the Constitution,
South African Maritime Safety Authority,
South African National Roads Agency Limited,
Any person for whose debt an organ of state contemplated in above paragraphs is liable.

The Legal Proceedings Against Certain Organs of State Act 40 of 2002 does not apply to –

A debt which has been extinguished by prescription before the fixed date,
A debt which has not been extinguished by prescription before the fixed date and in respect of which any legal proceedings were instituted before the fixed date.

Section 2: A Debt will be extinguished due to prescription when –

It became due before the fixed date, and if not extinguished by prescription and in respect of which legal proceedings were not instituted before the date or
After the date.
– Any period of prescription applicable to debt before fixed date, will no longer be applicable after the fixed date.
– The expired portion of any period of prescription applicable to a debt referred to must be deducted from the said period of prescription contemplated in Chapter III of the Prescription Act, and the balance of the period of prescription so arrived at will constitute the new unexpired portion of prescription for such debt, applicable as from fixed date.

Section 2:

Legal proceedings may be instituted against an organ of state when:

The creditor has given the organ of state in question notice in writing of his/her intention to institute the legal proceedings in question;
The organ of state in question has consented in writing to the institution of the legal proceedings without such notice or upon receipt of a notice which do not comply with all the requirements.

Requirements for the notice to an organ of state –

It be served on the organ of state within 6 months from the date on which the debt became due; and
It must briefly set out:
• The facts giving rise to the debt and
• Particulars of such debt as are in the knowledge of the creditor, having acquired such knowledge with reasonable care, unless an organ of state wilfully prevented him/her from acquiring such knowledge.

If an organ of state relies on a creditor’s failure to serve a notice in terms of the above, the creditor may apply to a court having jurisdiction for condonation of such failure if it is satisfied that:

The debt has not been extinguished by prescription,
Good cause exists for the failure by the creditor, and
The organ of state was not unreasonable prejudiced by the failure.

Section 4: Service of Notice on an organ of state:

Delivery by hand,
Sending by certified mail,
Sending with electronic mail,
Transmitting by facsimile (if the organ of state is as per above definition).

If the Notice has been sent with electronic mail or transmitted by facsimile as above the creditor must:

Take all reasonable steps to ensure that the Notice has been received by the officer or person to whom it was sent or transmitted; and
Within 7 days, after it has been served by one of the above ways, be accompanied by an affidavit by the creditor or the person who sent or transmitted the Notice:
– indicating the date and time on which the notice was sent or transmitted,
– containing any proof that it was sent or transmitted,
– setting out the steps taken in terms of the above, and
– indicate whether confirmation of the receipt of the Notice has been obtained and the name of the officer or person who has given that confirmation.

Section 5: Service of the process:

According with the rules of court if legal proceedings are instituted;
Any process by which legal proceedings are instituted in which the Minister for Intelligence is the defendant or respondent, may be served on the Director-General: National Intelligence Agency or the Director General: South African Secret Service.
If the Minister for Safety and Security is the Defendant or Respondent may be served on the National Commissioner of the S.A.P.S. or the Provincial Commissioner of the S.A.P.S. of the province in which the cause of action arose.
If the Minister of Correctional Services is the Defendant or Respondent, may be served on the Commissioner of Correctional Services or the Provincial Commissioner of Correctional Services of the Province in which the cause of action arose.
No process may be served before the expiry of 30 day period after the Notice has been served on the organ of state.
If a process has been served before the above expiry date the process must be regarded as having been served on the first day after the expiry date of the said period.

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HOUSING CONSUMERS PROTECTION MEASURES ACT 95 OF 1998

slamatattorneys — Wed, 17 Mar 2021 07:45:04 +0000

The purpose of the Housing Consumers Protection Measures Act 95 of 1998 is to, inter alia:

Provide for the protection of housing consumers;
Provide for the establishment of the National Home Builders Registration Council.

The Act which has been amended by subsequent legislation was assented to on 02 November 1998.

In essence and fundamentally, the Act provides for the protection of housing consumers by means of the establishment of the National Home Builders Registration Council (“the NHBRC”).

The objects, powers and regulating measures of the NHBRC are clearly set out in the Act. The Act also provides for the registration of home builders and for the withdrawal and suspension of registration. The Act furthermore provides for a Home Building Manual.

Chapter 3 provides for the protection of housing consumers and for the conclusion of agreements and implied terms in building contracts and for the enrolment of home to be built by home builders.

The Housing Consumers Protection Measures Act 95 of 1998 furthermore provides for:

enforcement measures;
the obligations of mortgagees, conveyancers and provincial housing development boards;
inspectors
interdicts
offences
reviews, arbitrations and appeals.

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DRUGS AND DRUG TRAFFICKING

slamatattorneys — Wed, 17 Mar 2021 07:39:14 +0000

The purpose of the Act is to, inter alia, provide for the prohibition of:

the use; or
possession; or
dealing in of drugs
and of certain acts relating to the
o manufacture, or
o supply of certain substances,
o or the acquisition or conversion of the proceeds of certain crimes.

The Act also creates an obligation to report certain information to the police and provides further for the exercise of the powers of:

entry,
search, seizure
and detention of persons in specified circumstances

and for the recovery of the proceeds of drug trafficking.

The Act consists of seven chapters and schedules.

Chapter 1 of the Act deals with certain important definitions as well as the application of the Act.

In terms of s2, the Act applies in addition to and not in substitution for the provisions of the Medicines Act or any regulation made thereunder (Medicines and Related Substances Control Act 101 of 1965).

It is imperative to possess knowledge of the exact meaning assigned to terms such as drug, drug offence, manufacture, plant, possess, sell, deal in.

It is also pertinent to understand the meanings of the following terms:

“drug(s)”;
“a scheduled substance”;
“dependence-producing substances”;
“dangerous dependence-producing substances”;
“undesirable dependence-producing substances”.

It is also pertinent to note that where the Act deals with property, the Act applies to property which is located inside or outside the Republic. Furthermore, that any reference to a person practicing any health services or cognate profession shall be construed as a reference to a person practicing any health service or cognate profession in terms of the Medicine’s Act.

In regard to the manufacture and supply of scheduled substances no person shall manufacture any scheduled substance or supply any scheduled substance to any other person while knowing or suspecting that any such scheduled substance will be used in or for the unlawful manufacture of any drug.

A “scheduled substance” is defined to mean “any substance included in Part 1 or Part 2 of Schedule 1” of the Act.

A “drug” means “any dependence producing substance, any dangerous dependence producing substance or any undesirable dependence producing substance” in terms of the Act.

A “dependence-producing substance” means “any substance or any plant from which a substance can be manufactured which is listed in Part 1 of Schedule 2 to the Act”.

A “dangerous dependence-producing substance” means “any substance or any plant from which a substance can be manufactured included in Part 2 of Schedule 2” to the Act.

An “undesirable dependence-producing substance” means “any substance or any plant from which a substance can be manufactured included in Part 3 of Schedule 2” of the Act.

A “substance” is not defined in the Act and therefore bears its ordinary grammatical meaning.

Chapter 2 of the Act sets out the “illegal acts in terms of the Act”. These illegal Acts include the manufacture and supply of scheduled substances, use and possession of drugs, dealing in drugs and acts related to proceeds of defined crimes.

Chapter 3 of the Act deals with the reporting of information and investigations which may be done in terms of the Act.

S10 creates an obligation to report certain information to the police in relation to drugs or scheduled substances. S11 of the Act sets out powers of police officials in regard to entry, search and seizure, and searching of any container or other thing in which any such substance, drug or property is suspected to be found. S12 of the Act deals with the interrogation of persons under a warrant of apprehension in terms of the Act.

Chapter 4 of the Act deals with the offences, penalties, presumptions and forfeitures which may take place in terms of s13 to 17 of the Act. In terms of the Act substantive periods of imprisonments are prescribed in relation to the various drug related offences as set out in the Act.

The Act also creates a number of presumptions relating to inter alia “samples of substances, health matters, possession of drugs, dealing in drugs, reporting of information”.

S24 of the Act provides for the liability of employers and principles in drug related offences. S25 of the Act deals with declarations of forfeiture which a court may order in relation to property which has been used in the offences created by the Act. S64 of the Act provides that a Magistrate’s Court shall have jurisdiction to impose any penalty in terms of the Act even though that penalty may exceed the punitive jurisdiction of a Magistrate’s Court.

Schedule 1 – SCHEDULED SUBSTANCES

Substances useful for the manufacture of drugs

PART 1
1. The following substances, namely-
Ephedrine.
Ergometrine
Ergotamine.
Lysergic acid.
l-phenyl-2-propanone.
Pseudoephedrine.

2. The salts of all substances included in this Part, where the existence of such salts is possible.

PART II
1. The following substances, namely-
Acetic anhydride.
Acetone.
Anthranilic acid.
Ethyl ether.
Phenylacetic acid.
Piperidine.

2. The salts of all substances included in this Part where the existence of such salts is possible.

Schedule 2
PART 1 Dependence-Producing Substances

1. The following substances, namely-
Amobarbital cyclobarbital and pentobarbital, except preparations and mixtures containing not more than 30 milligrams per minimum recommended or prescribed dose when intended for continued use in asthma or containing not more than 50 milligrams per minimum recommended or prescribed dose when intended for continued use in epilepsy.
Buprenorphine.
Chlorphentermine.
Diethylpropion (amfepramone).
Gluthethimide.
Meptazinol.
Pentazocine.
Tiletamine.

2. Unless expressly excluded, all substances included in this Part include the following

(a) The salts and esters of the specified substances, where the existence of such salts and esters is possible: and
(b) all preparations and mixtures of the specified substances.

PART II Dangerous Dependence-Producing Substances

1. The following substances or plants, namely-

Acetorphine.
Acetyldihydrocodeine. except preparations and mixtures containing not more than 20 milligrams of acetyldihydrocodeine per recommended or prescribed dose.
Acetylmethadol.
Alfentanil.
Allylprodine.
Alphacetylmethadol.
Alphameprodine.
Alphamethadol.
Alphaprodine.
Anileridine.
Benzethidine.
Benzphetamine.
Benzylmorphine.
Betacetylmethadol.
Betameprodine.
Betamethadol.
Betaprodine.
Bezitramide.
Chlorodyne (Chloroform and Morphine Tincture BP 1980) or any preparation or mixture thereof described as chlorodyne, except preparations and mixtures containing not more than 5.0 per cent of chlorodyne in combination with other active medicinal substances.
Clonitazene.
Coca leaf and any salt compound, derivative or preparation of coca leaf, and any salt, compound, derivative or preparation thereof that is chemically equivalent or identical to any of these substances, whether obtained directly or indirectly by extraction from material or substances obtained from plants, or obtained independently by chemical synthesis, or by a combination of extraction and chemical synthesis, except decocainized coca leaf and extractions of coca leaf where such extractions contain no cocaine or ecgonine.
Codeine (methylmorphine), except preparations and mixtures containing not more than 20 milligrams of codeine per recommended or prescribed dose.
Codoxime.
Desomorphine.
Dextromoramide.
Dextropropoxyphene, except preparations and mixtures for oral use containing not more than 135 milligrams dextropropoxyphene, calculated as the base, per dosage unit, or with a concentration of not more than 2.5 per cent in undivided preparations Diampromide.
Diethylthiambutene.
Difenoxin (or diphenoxylic acid), except mixtures containing, per dosage unit, not more than 0.5 milligrams of difenoxin, calculated as the base, and a quantity of atropine sulphate equal to at least 5.0 per cent of the quantity of difenoxin, calculated as the base, which is present in the mixture.
Dihydrocodeine, except preparations and mixtures containing not more than 20 milligrams of dihydrocodeine per recommended or prescribed dose.
Dihydromorphine.
Dimenoxadol.
Dimepheptanol.
Dimethylthiambutene.
Dioxaphetylbutyrate.
Diphenoxylate, except preparations containing not more than 2.5 milligrams of diphenoxylate, calculated as the base, and not less than 25 micrograms of atropine sulphate per dosage unit.
Dipipanone.
Dronabinol [(-)-transdelta-9-tetrahydrocannabinol].
Drotebanol.
Ecgonine and the esters and derivatives thereof which are convertible to ecgonine and cocaine.
Ethylmethylthiambutene.
Ethylmorphine, except preparations and mixtures containing not more than 20 milligrams of ethylmorphine per recommended or prescribed dose.
Etonitazene.
Etorphine.
Etoxeridine.
Fenproporex.
Fentanyl.
Furethidine.
Hydrocodone (dihydrocodeinone).
Hydromorphinol (14-hydroxydihydromorphine).
Hydromorphone (dihydromorphinone).
Hydroxypethidine.
Isomethadone.
Ketobemidone.
Levomoramide.
Levophenacylmorphan.
Levorphanol.
Mecloqualone.
Mefenorex.
Metazocine.
Methadone.
Methadone-intermediate.
Methorphan, including levomethorphan and racemethorphan, but excluding dextromethorphan.
Methyldesorphine.
Methyldihydromorphine.
Methylphenidate and the derivatives thereof.
Metopon.
Moramide-intermediate.
Morpheridine.
Morphine, except preparations and mixtures of morphine containing not more than 0.2 per cent of morphine, calculated as anhydrous morphine.
Morphine methobromide and other pentavalent nitrogen morphine derivatives.
Morphine-N-oxide and the derivatives thereof.
Myrophine (myristylbenzylmorphine).
Nicocodine.
Nicodicodine.
Nicomorphine.
Noracymethadol.
Norcodeine, except preparations and mixtures containing not more than 20 milligrams norcodeine per recommended or prescribed dose.
Norlevorphanol.
Normethadone.
Normorphine (demethylmorphine or N-demethylated morphine).
Norpipanone.
Opium and opiates and any salt, compound, derivative or preparation of opium or opiates, whether obtained directly or indirectly by extraction from material or substances obtained from plants, or obtained independently by chemical synthesis, or by a combination of extraction and chemical synthesis, except mixtures containing not more than 0.2 per cent of morphine, calculated as anhydrous morphine.
Opium-poppy and poppy straw, whether obtained directly or indirectly by extraction from material or substances obtained from plants, or whether obtained independently by chemical synthesis, or by a combination of extraction and chemical synthesis.
Oxycodone (14-hydroxydihydrocodeinone or dihydrohydroxycodeinone).
Oxymorphone (14-hydroxydihydromophinone or dihydrohydroxymorphinone).
Pethidine. pethidine-intermediate A, pethidine-intermediate B and pethidineintermediate C. Phenadoxone.
Phanampromide.
Phenazocine.
Phendimetrazine.
Phenomorphan.
Phenoperidine.
Pholcodine. except preparations and mixtures containing not more than 20 milligrams of pholcodine per recommended or prescribed dose.
Piminodine.
Piritramide.
Proheptazine.
Properidine.
Propiram.
Racemoramide.
Racemorphan.
Secobarbital.
Sufentanil
Thebacon.
Thebaine.
Tilidine.
Trimeperidine.

2. Unless expressly excluded, all substances or plants included in this Part include the following:

The isomers of the specified substances or plants, where the existence of such isomers possible;
the esters and ethers of the specified substances or plants and of the isomers referred to in subparagraph ( a), as well as the isomers of such esters and ethers, where the existence of such esters, ethers and isomers is possible;
the salts of the specified substances or plants, of the isomers referred to in subparagraph ( a) and of the esters, ethers and isomers referred to in subparagraph ( b), as well as the isomers of such salts, where the existence of such salts and isomers is possible; and
all preparations and mixtures of the specified substances or plants and of the isomers, esters, ethers and salts referred to in this paragraph.

PART III Undesirable Dependence-Producing Substances

1. The following substances or plants, namely-

Amphetamine.
Brolamfetamine.
Bufotenine (N,N-dimethylserotonin).
Cannibis (dagga), the whole plant or any portion thereof, except dronabinol [(-)-transdelta-9-tetrahydrocannabinol].
Cathinone.
Dexamphetamine.
Diethyltryptamine [3-(2-(diethylamino)-ethyl)-indole].
2,5-dimethoxyamphetamine (DMA).
2,5-dimethoxy-4-ethylamphetamine (DOET).
3-(1,2-dimethylheptyl)-7,8,9,10-tetrahydro-6,6,9-trimethyl-6H-dibenzo [b,d] pyran-1-01 (DMHP).
Dimethyltryptamine [3-(2-(dimethylamino)-ethyl)-indole].
Fenetylline.
Fentanyl-analogues:
acetyl-alpha-methyl-fentanyl;
alpha-methyl-fentanyl;
alpha-methyl-fentanyl-acetanilide;
alpha-methyl-thio-fentanyl;
benzyl-fentanyl;
beta-hydroxy-fentanyl;
beta-hydroxy-3-methyl-fentanyl;
3-methyl-fentanyl and the two isomeric forms thereof, namely,
cis-N-(3-methyl-1-(2-phenethyl)-4-piperidyl)propionanilide and trans-N-(3-
methyl-1-(2-phen-ethyl)-4-piperidyl)propionanilide;
3-methyl-thio-fentanyl;
para-fluoro-fentanyl; and
thiofentanyl.
Harmaline (3,4-dihydrobarmine).
Harmine [7-methoxy-1-methyl-9H-pyrido (3,4-b)-indole].
Herion (diacetylmorphine). Levamphetamine. Levomethamphetamine.
Lysergide (lysergic acid diethylamide).
Mescaline (3,4,5-trimethoxyphenethylamine).
Methamphetamine and methamphetamine racemate.
Methaqualone, including Mandrax. lsonox. Quaalude, or any other
preparation containing metha-qualone and known by any other trade name.
2-methoxy-4,5-methylenedioxyamphetamine (MMDA).
4-methylaminorex.
4-methyl-2,5-dimethoxyamphetamine (DOM) and the derivatives thereof.
Methylenedioxyamphetamine (MDA):
N-ethyl-methylenedioxyamphetamine; and
N-hydroxy-methylenedioxyamphetamine.
Nabilone.
Parahexyl.
Paramethoxyamphetamine (PMA).
Phencyclidine and the congeners thereof, namely, N-ethyl-1-
phenylcyclohexylamine (PCE), 1-(1-phenylcyciohexyl) pyrrolidine (PHP or PCPY) and 1-[1-(2-thienyl) cycohexyl] piperidine (TCP).
Pethidine-analogoues:
1-methyl-4-phenyl-4-propionoxy-piperidine (MPPP);
1-methyl-4-phenyl-l,2,5,6-tetrahydropiperidine (MPTP); and
1-phenylethl-4-phenyl-4-acetyloxy-piperidine (PEPAP).
Phenmetrazine.
Psilocin (4-hydroxydimethyltryptamine).
Psilocybin (4-phosphoryloxy-N,N-dimethyltryptamine).
Tetrahydrocannabinol
3,4,5-trimethoxy amphetamine (TMA).

2. Unless expressly excluded, all substances or plants included in this Part include the following:

The isomers of the specified substances or plants, where the existence of such isomers is possible;
the esters and ethers of the specified substances or plants and of the isomersreferred to in subparagraph ( a) as well as the isomers of such esters andethers, where the existence of such esters, ethers and isomers is possible;
the salts of the specified substances or plants, of the isomers referred to insubparagraph ( a) and of the esters, ethers and isomers referred to insubparagraph ( b), as well as the isomers of such salts, where the existenceof such salts and isomers is possible; and
all preparations and mixtures of the specified substances or plants and of theisomers, esters, ethers and salts referred to in this paragraph.

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DOMESTIC VIOLENCE ACT 116 of 1998

slamatattorneys — Wed, 17 Mar 2021 07:36:42 +0000

The purpose of the Domestic Violence Act 116 of 1998 is to provide for the issuing of protection orders with regards to domestic violence and for matters connected thereto.

The Domestic Violence Act 116 of 1998 recognise that domestic violence is a serious social evil in South Africa, leaving many vulnerable victims with ineffective remedies to protect themselves This Act maximize the protection to victims of domestic violence according to the Constitution and the rights in the Bill of Rights.

Section 1: Definitions

“damage to property” – is the willful damaging / destruction of property belonging to a complainant or in which the complainant has a vested interest.
“dangerous weapons” –
“domestic relationship” – a relationship between a complainant a respondent in the following ways:

marriage,
live/lived together in a relationship in the nature of marriage(same sex/not),
parents of child/persons who have/had parental responsibilities for a child,
family members related by consanguinity, affinity or adoption,
are/were in a engagement, dating/ customary relationship, including an actual/perceived romantic, intimate/sexual relationship of any duration or
they share/hared the same residence.

“domestic violence” – physical, sexual, emotional, verbal, psychological, economic, intimidatory abuse, harassment, stalking, damage to property, entry into te complainant’s residence without consent if the parties don’t share the same residence or any other controlling or abusive behaviour towards a complainant and this behaviour cause imminent harm to health, safety or wellbeing of the complainant.
“respondent’ – any person who is / has been in a domestic relationship with a complainant and who has committed or allegedly committed an act of domestic violence against the complainant.

Section 2: Duty of the South African Police Service to render assistance to the complainant as may be required in the circumstances, or if it s reasonably possible to do so at the scene of the domestic violence or as soon thereafter as possible. The Police can arrest the respondent without a warrant at the scene of the incident of the domestic violence (Section 3).

Section 4: The complainant can apply for Protection order against the respondent by an application at the court her/himself or by a representative, with the complainant’s written consent.

This person can be a legal representative, counselor, health service provider, member of the Police Service, social worker or teacher.
No written consent is necessary when the complainant is a minor, mentally ill, unconscious or a person whom the court deem to be unfit to give such consent.
This application can be brought to the court outside normal court hours if the court is satisfied that the complainant may suffer undue hardship if it is not granted on such day.
The court must consider this application as soon as possible and take in consideration all additional evidence as it deems fit (Section 5).
This section also states that the application and evidence why the application should or shouldn’t be granted, together with the Interim order must be served on the respondent within 10 (ten) days of the application considered by the court.

Section 6 deals with the decision of the court for the final Protection order, the appearance of the respondent in court and hearing evidence in regard hereto.

Section 7: Actions and/or entry into premises of the respondent the court can prohibit.

This goes further to describe which additional conditions the court may impose on the respondent by the order to protect the wellbeing, health and safety of the complainant.
This section also specifically states hat the complainant’s address must be excluded from the order, unless the nature of the order necessitates the inclusion of such address.

Section 8: A warrant of arrest may also be authorised to be issued together with the protection order by the court.

This warrant will stay effective until the protection order has been executed, is cancelled, lost or destroyed.
An arrest can be made by the South African Police Service when the complainant hands the warrant together with an Affidavit, describing which part of the protection order has been contravened, to the Police. Dangerous weapons can also be confiscated by the Police if ordered to do so by the Police (Section 9).

Section 10 described the circumstances in which the protection order can be varied or set aside by the court.

Section 12 list which court will have jurisdiction in matters of domestic violence.

Courts within the area in which the complainant permanently or temporarily resides, carries on business or is employed or where the respondent resides, carries on business or is employed or the area in which the cause of action arose.

Section 14: Any party to proceedings according to this Act may have legal representation.

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CONSUMER PROTECTION ACT 68 OF 2008

slamatattorneys — Wed, 17 Mar 2021 07:18:19 +0000

The purpose of the Consumer Protection Act 68 of 2008 is to, inter alia:

Promote a fair, accessible and sustainable marketplace for consumer products and services,
To establish national norms and standards relating to consumer protection,
To provide for improved standards of consumer information
To prohibit certain unfair marketing and business practices,
To promote responsible consumer behavior,
To promote a consistent legislative and enforcement framework relating to consumer transactions and agreements,
To establish the National Consumer Commission.

The Act was signed into law on 24 April 2009. Chapters 1,5 and section 120 became into operation on 24 April 2010. The Act came into operation on 31 March 2011 and consists of seven chapters and 122 sections.

In essence and fundamentally, the Act seeks to promote a safer market place for consumers in regard to the buying and selling of consumer goods and services. A thorough understanding of the Act requires legal expertise to safeguard the rights of consumers and the benefits intended to be bestowed upon consumers.

The Act contains numerous and various defined terms. The Act must be interpreted in a manner that gives effect to the purposes prescribed in section 3. The Act expressly permits a consumer to sign or initial a document by means of an electronic signature or an advanced electronic signature as legislated in terms of the Electronic Communications and Transactions Act of 2002. Furthermore, no provision of the Act precludes a consumer from exercising any rights afforded in terms of the common law.

The Act is applicable to every transaction occurring in the Republic, unless the transaction is exempted by the Act. The Act is also applicable to the promotion of any goods or services or of the supply of any goods or services within the Republic.

Notably, the Consumer Protection Act 68 of 2008 does not apply to any transaction:

in terms of which goods or services are promoted or supplied to the State;
in terms of which the consumer is a juristic person whose asset value or annual turnover at the time of the transaction, equals or exceeds the threshold value determined by the Minister (currently R2million);
if the transaction falls within an exemption granted by the Minister;
that constitutes a credit agreement under the National Credit Act;
pertaining to services to be supplied under an employment contract;
giving effect to a collective bargaining agreement in terms of the Labour Relations Act;
giving effect to a collective agreement in terms of the Labour Relations Act.

Municipalities, Banks, Pension Funds, Collective Investment Schemes and Security Services are exempted from the application of the Act.

The Act prescribes the requirements with which franchise agreements must comply. Furthermore, that a franchisee may cancel a franchise agreement without cost or penalty within 10 business days after signing such agreement, by giving written notice to the franchisor. In addition, the Minister may prescribe information to be set out in franchise agreements generally or within specific categories or industries.

The Act is applicable to transactions or agreements concluded before the coming into operation of the Act in terms of the general effective date and the early effective date.

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