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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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:

1. Compulsory discrimination by law;
2. Discrimination based on affirmative action;
3. Discrimination based on inherent requirements of a particular job;
4. 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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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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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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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.

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

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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.

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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:

1. 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);
2. Mortgages which generally secure rights to immovable property or land;
3. Pledge agreements which secure movable property (the Security by means of Movable Property Act 57 of 1993 is relevant);
4. Liens, which typically secure goods in respect of services rendered;
5. Cession, being either out- and- out cessions or together with cession in securitatem debiti;
6. Hypothecs in regard to movable property and legal claims;
7. 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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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:

1. Companies Act 71 of 2008;
2. Close Corporations Act 69 of 1984;
3. Labour Relations Act 66 of 1995 & Basic Conditions of Employment Act 75 of 1997;
4. Financial Intelligence Centre Act 38 of 2001 & POPI Act 4 of 2013;
5. National Credit Act 34 of 2005;
6. Income Tax Act 58 of 1962;
7. Value-added Tax Act 89 of 1991;
8. Insolvency Act 24 of 1936;
9. Business Rescue in terms of Companies Act 2008;
10. Liquor Act 59 of 2003;
11. Trust Property Control Act 57 of 1988;
12. Skills Development Levies Act 9 of 1999;
13. Unemployment Insurance Contributions Act 4 of 2002;
14. Occupational Health & Safety Act 85 of 1993;
15. Electronic Communications & Transactions Act 25 of 2002;
16. Electronic Communications Act 36 of 2005;
17. Films and Publications Act 65 of 1996;
18. Copyright Act 98 of 1978;
19. Trade Marks Act 194 of 1993;
20. Consumer Protection Act 68 of 2009;
21. Competition Act 89 of 1998;
22. 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™

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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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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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