Can Government Mandate the COVID-19 Vaccine Against Your Will? a Discussion on International Human Rights Law

THE SA ATTORNEYS’ JOURNAL

JULY 2021

Can government mandate the COVID-19 vaccine against your will? A discussion on international human rights law

Grandchild’s claim against grandparent’s Medical negligence and criminal estate: Weighing up child maintenance responsibility – when the court infringes on a against freedom of testation medical practitioner’s rights to a fair trial

Navigating the way to justice – a discussion Reconsidering a restorative on truth, justice and justice approach in reconciliation criminal court proceedings OGILVY SA 34601/EOGILVY

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THE SA ATTORNEYS’ JOURNAL CONTENTS JULY 2021

Can government mandate the CovId-19 vaCCIne agaInst your wIll? a dIsCussIon 12 on InternatIonal human rIghts law

Grandchild’s claim against grandparent’s Medical negligence and criminal estate: Weighing up child maintenance responsibility – when the court infringes on a 16 against freedom of testation medical practitioner’s rights to a fair trial 20 July 2021 Issue 619 ISSN 0250-0329

navigating the way to justice – a discussion Reconsidering a restorative 26 on truth, justice and justice approach in reconciliation criminal court proceedings 22 Regular columns Articles on the De Rebus website: Editorial 3 Justice Minister pleased with progress on legal fees Practice management and access to justice Risk management window dressing 4 Minister Lamola sends a message of appreciation The importance of a trust audit and the value while tabling OCJ’s budget to the National Assembly thereof for the legal practice 6 Justice Maya elected Regional Director for West and Southern Africa of the Practice note International Association of Sars disputes – receiving an assessment is not Women Judges the end of the road 8 Transformation of the legal Data privacy laws in South Africa 10 sector is a societal function The sustainability of the LSSA discussed at its AGM The law reports 29 Case note Can government mandate the 12 Minister of Home Affairs may delegate any power COVID-19 vaccine against your will? conferred to them, including the power to deprive A discussion on international human citizenship under the Citizenship Act 34 rights law

here has been a great deal of talk about subjecting New legislation 36 people to who are not vaccinated to restrictions involving their access to public places, flights, hotels, T Employment law update and continued employment. This indirectly makes vaccinations compulsory. In fact, disciplinary procedures Suspension of picketing rules 38 have even been launched against professionals who have Dismissed for violating COVID-19 protocols 39 publicly expressed their opposition to compulsory vaccination. Extraordinary Research Fellow, Dr Willem van Recent articles and research 41 Aardt, examines compulsory vaccination through the lens of international human rights law and weighs up a pro-choice versus a pro-mandate approach. Book announcements 44

DE REBUS – JULY 2021 - 1 - EDITOR: FEATURES Mapula Oliphant NDip Journ (DUT) BTech (Journ) (TUT) Grandchild’s claim against grandparent’s 16 PRODUCTION EDITOR: estate: Weighing up child maintenance against Kathleen Kriel freedom of testation BTech (Journ) (TUT) sUB-EDITOR: sUB-EDITOR: he case of Van Zyl NO v Getz NO [2020] 3 All SA 730 (SCA) pre- Kevin O’ Reilly Isabel Joubert sented the Supreme Court of Appeal (SCA) with the opportunity MA (NMU) BIS Publishing (Hons) (UP) Tto provide long-awaited clarity on a decade long legal question. News reporter: Editorial secretary: As the High Court unfortunately missed the opportunity due to poor Kgomotso Ramotsho Shireen Mahomed Cert Journ (Boston) strategic litigation and ignominious judicial service, it was then up to Cert Photography (Vega) the SCA to surmount the jurisprudential hurdle posed by Barnard, NO v Miller 1963 (4) SA 426 (C) and develop the common law in terms Editorial Committee: of the Constitution to recognise a grandchild’s claim for maintenance Giusi Harper (Chairperson), Peter Horn, against the estate of a grandparent. Legal practitioner, Ndivhuwo Maboku Mangena, Mohamed Randera

Ishmel Moleya, reviews the court’s approach in this matter and notes Editorial Office: 304 Brooks Street, Menlo Park, the duty to align South Africa’s laws with the Constitution requires col- Pretoria. PO Box 36626, Menlo Park 0102. Docex 82, Pretoria. laboration between judicial officers and legal practitioners as officers Tel (012) 366 8800 Fax (012) 362 0969. of the court. E-mail: [email protected]

DE REBUS ONLINE: www.derebus.org.za

Medical negligence and criminal Contents: Acceptance of material for publication is not a guar- 20 antee that it will in fact be included in a particular issue since this responsibility – when the court infringes on depends on the space available. Views and opinions of this journal a medical practitioner’s rights to a fair trial are, unless otherwise stated, those of the authors. Editorial opinion or comment is, unless otherwise stated, that of the editor and egal practitioner, Dr Llewelyn Gray Curlewis, discusses S v Van publication thereof does not indicate the agreement of the Law Society, unless so stated. Contributions may be edited for clarity, der Walt 2020 (2) SACR 371 (CC), which dealt with an application space and/or language. The appearance of an advertisement in Lfor leave to appeal against a judgment that saw an obstetrician this publication does not necessarily indicate approval by the Law and gynaecologist convicted by a regional court of culpable homicide Society for the product or service adver tised. on the basis that he acted negligently in the care of his patient. The For fact checking, the De Rebus editorial staff use online products issue before the court was that of a ‘fair trial’ based on three grounds, from: namely, the admissibility of various pieces of evidence for the first • LexisNexis online product: MyLexisNexis. Go to: www.lexis- time in the judgment on conviction; the reliance on evidence of an ex- nexis.co.za; and pert witness by the state; and lack of evidence regarding causation. • Juta. Go to: www.jutalaw.co.za. Printer: Ince (Pty) Ltd, PO Box 38200, Booysens 2016. Reconsidering a restorative justice approach Audio version: The audio version of this journal is available 22 free of charge to all blind and print-handicapped members of in criminal court proceedings Tape Aids for the Blind.

ong before the separation of courts into criminal and civil divi- Advertisements: sions, wrongful acts could be redressed solely by compensation. Main magazine: Ince Custom Publishing Contact: Dean Cumberlege • Tel (011) 305 7334 LCompensation has always been a primary concern for victims Cell: 082 805 1257 • E-mail: [email protected] who suffer damages. Too much has possibly been made of the crimi- Classifieds supplement: Contact: Isabel Joubert nal court’s inability to deal with compensation and perhaps with a Tel (012) 366 8800 • Fax (012) 362 0969 few changes criminal courts could be adapted to process claims for PO Box 36626, Menlo Park 0102 • E-mail: [email protected] compensation. One may ask the question if it is right to force victims Account inquiries: David Madonsela of crime to take further civil action if all or most of the damages can Tel (012) 366 8800 E-mail: [email protected] be ascertained in a criminal court? Magistrate, Desmond Francke, argues that compensation orders in criminal proceedings are desirable Circulation: De Rebus, the South African Attorneys’ Journal, is published monthly, 11 times a year, by the Law Society of South as a means of repairing the harm caused by an accused’s criminal Africa, 304 Brooks Street, Menlo Park, Pretoria. De Rebus is circu- conduct. Moreover, if criminal courts had access to more comprehen- lated digitally to all practising legal practitioners and candidate sive means of addressing compensation, would victims compensation legal practitioners free of charge and is also available on general not be a more satisfactory part of a sentence than harsh penalties? subscription. New subscriptions and orders: David Madonsela Tel: (012) 366 8800 • E-mail: [email protected] 26 Navigating the way to justice – a discussion on truth, justice and reconciliation Subscriptions: Postage within South Africa: R 1 990 (including VAT). etired physicist, Haroon Aziz, writes that the universal lesson Postage outside South Africa: R 2 100. from the consequences of the Azanian Peoples Organisation R(AZAPO) and Others v President of the Republic of South Africa and Others 1996 (8) BCLR 1015 (CC) judgment is that when good peo- De Rebus subscribes to the Code ple are exposed to corruption, they have the potential to become cor- © Copyright 2021: of Ethics and Conduct for South Law Society of South Africa 021-21-NPO African Print and Online Media that rupt. Furthermore, when drafting the judgment, did Justice Ismail Ma- Tel: (012) 366 8800 prescribes news that is truthful, accurate, fair and balanced. If we do homed anticipated the potentiality of presidents for unconstitutional not live up to the Code, contact the Public Advocate at (011) 484 3612 conduct. In addition, if he had, would there have been a need for the or fax: (011) 484 3619. You can also contact our Case Officer on Judicial Commission of Inquiry into Allegations of State Capture, Cor- Member of Member of [email protected] or The Audit Bureau of The Interactive lodge a complaint on the Press Circulations of Southern Africa Advertising Bureau Council website: ruption and Fraud in the Public Sector including Organs of State? www.presscouncil.org.za

DE REBUS – JULY 2021 - 2 - EDITORIAL LSSA submissions on legal fees

ne of the functions of the and that legal services are allegedly un- Law Society of South Africa affordable. However, we believe that ac- (LSSA), in fulfilling its man- cess to justice can be achieved through date of representing the at- less invasive means than implementing a torneys’ profession, is to tariff (with or without limited targeting) Ocomment on legislation and policy docu- in respect of attorney-and-client fees. We ments that affect public interest and have no problem with the Legal Practice the legal profession. In February 2019, Council (LPC) issuing guidelines (Option the LSSA held a meeting to discuss the 3, discussed in Chapter 7). In terms of International Conference on Access to section 35(5)(c) of the Legal Practice Act Justice, Legal Costs and Other Interven- (LPA), the Commission must take into tions, which was hosted by the South Af- consideration the interests of the legal rican Law Reform Commission (SALRC) profession when undertaking its investi- in 2018. The aim of the meeting was to gation. There is a conspicuous absence tackle issues connected with legal costs, of practicing attorneys on the Commis- particularly in view of s 35 of the Legal sion’s Advisory Committee. We believe Practice Act 28 of 2014 (LPA) (see ‘Show that, without an acute understanding of me the money: A discussion on access to the realities of and expenditure associ- Mapula Oliphant – Editor justice v legal fees’ 2019 (March) DR 3). ated with operating a law practice, the The LSSA wrote to the Minister of Jus- interests of the legal profession, and in tice requesting the suspension of subss particular small legal firms, could not years of study and apprenticeship to en- 35(1), (2), (3) and (7) up to and including have been sufficiently dealt with by the ter the legal professional, because law is (12), which deals with fees for legal ser- Commission. There appears to be little a large and complex field of study and vices, until the SALRC has completed its research into a complex legal system, the the consequences of providing a poor le- investigation on legal fees and there has requirements of legal practitioners and gal service to a client can be devastating been proper consultation. This means firms, the difficulties experienced by for the client on the receiving end of the that only subss (4), (5) and (6) of s 35 candidate legal practitioners, the costs poor service. Very little work remains have come into operation. of equipment, copies, research tools, reserved for attorneys. Many tax practi- On 16 March 2019, the SALRC released costs of office rental, etc. Further, while tioners and other law firms are opening Issue Paper 36: Investigation into Legal a great deal of attention has been given private companies that do not fall under Fees (Project 142), which details the or- to the cost of legal services, insufficient the regulatory control of the LPC. The le- ganisation’s study on – attention has been given to identifying gal profession is already highly regulated • the factors and circumstances that the actual economic root cause of the and if it is over-regulated, it will eventu- give rise to legal fees that are unattain- cost of legal services. The allegation that ally lose more practitioners to that sec- able for most people; legal services are regarded as unafford- tor. For the most part the same kind of • the desirability of establishing a mech- able compels the state to seek ways to work can be done without the risk. The anism responsible for determining le- reduce these costs, but imposing fee recommendations of the Commission, gal fees and tariffs; limitations on legal practitioners is not if implemented, will have serious and • litigious and non-litigious matters; the way to go in solving what is quite evi- far-reaching consequences for the legal • attorney-and-client costs and contrac- dently a market efficiency problem, not profession and the public and we believe tual freedom; an abuse of dominance problem.’ that, particularly recommendations 5.1, • contingency fee agreements; and Considering the practice of attorneys, 5.4, 6.11 to 6.13 and 6.15, will lead to • legislative and other interventions to in its submission, the LSSA added that: job losses within the profession, and this improve access to justice by members ‘Coupled to that, are the increased pro- will result in a major loss of professional of the public (see ‘Have your say on le- fessional expenses of legal practition- skills needed to assist members of the gal costs’ 2019 (June) DR 3). ers (subscription fees, professional in- public.’ In May 2021, the LSSA considered demnity insurance cover, professional To read the full submission by the LSSA Discussion Paper 150: Investigation into interest membership fees, continuous visit www.LSSA.org.za. Legal Fees, including access to justice professional development, top-up insur- and other interventions (Project 142) ance and auditors’ fees). It takes many q published by the SALRC for comment. Following extensive consultation via the LSSA’s various professional affairs Would you like to write for De Rebus? committees, its constituent members (being the Black Lawyers Association, De Rebus welcomes article contributions in all 11 official languages, especially from the National Association of Democratic legal practitioners. Practitioners and others who wish to submit feature articles, Lawyers and provincial Attorneys’ As- practice notes, case notes, opinion pieces and letters can e-mail their contributions sociations) and members of the legal to [email protected]. profession, and thorough consideration The decision on whether to publish a particular submission is that of the De Re- of the SALRC and other stakeholders’ bus Editorial Committee, whose decision is final. In general, contributions should be comments, the LSSA submitted its com- useful or of interest to practising attorneys and must be original and not published ments. elsewhere. For more information, see the ‘Guidelines for articles in De Rebus’ on our In the introduction of the submitted website (www.derebus.org.za). comments, the LSSA noted: ‘The LSSA • Please note that the word limit is 2 000 words. is well aware of the need for greater ac- • Upcoming deadlines for article submissions: 19 July, 23 August and 20 Septem- cess to justice by members of the public ber 2021.

DE REBUS – JULY 2021 - 3 - PRACTICE MANAGEMENT – LEGAL PRACTICE Risk management COMMERCIAL CYBER INSURANCE RECOMMENDED BY window dressing THE LAW SOCIETY OF SOUTH AFRICA By Thomas Harban If you understand the value of your data and IT systems – you will understand the value of comprehensive cyber insurance. ata and systems are key assets for most individuals and rensics) advice, including assistance in managing the companies. iTOO Cyber Insurance provides you and incident, coordinating response activities, making rep- he effective management of pointed questions aimed at generally formation will compromise the right to your business with access to expert knowledge and a legal practice is a holistic, focusing the mind of the legal practi- indemnity. D resentation to regulatory bodies and coordination with resources to e ectively manage and recover from a cyber multi-faceted exercise. A suc- tioner (and all other stakeholders in the Taking a prescription related claim law enforcement; cessful sustainable legal prac- firm) on risk management issues and the for example, the practices concerned incident. Designed to cover the resultant costs and damages tice requires the constant ap- circumstances or events in the practice provide detail of the various internal from a privacy breach or a network security breach, a cyber � to perform incident triage and forensic investigations, Tplication of a significant effort across all that may lead to the PI claim materialis- systems, multiple diaries, the extensive insurance policy covers what has previously been uninsur- including IT experts to con rm and determine the cause areas of the enterprise. If any area of the ing. 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A tick box approach is not suf- provided by some practices on the risk firm self-diagnoses itself with a perfect � for communications to notify a ected parties; and � remediation services such as credit and identity theft ficient for effective risk management. management measures they have in bill of health. How, then, have all the Data restoration Unfortunately, however, there are some place would, effectively, almost elimi- measures supposedly implemented in Costs to restore, re-collect or replace data lost, stolen monitoring to protect a ected parties from su ering legal practitioners who have developed nate the circumstances that led to the the firm failed is the vexed question that further damages. the ability to not only ‘talk a good risk claim. These firms make statements that then arises. or corrupted due to a systems security incident. management story’, but to also put it in they assume the insurer wants to hear, Copying and pasting risk manage- Law Society of South Africa special pricing for writing knowing very well that it is not rather than report on the factual cir- ment measurers from any source with- Business interruption an accurate description of the measures cumstances as they exist. This form of out properly applying the suggested Loss of income and increased cost of working as a attorneys in place in their respective practices. window dressing is unfortunate and un- measures and regularly assessing the result of a systems security incident. The documents submitted by legal helpful. In some instances, the practices effectiveness thereof is an unhelpful ap- Limit of indemnity Deductible Annual Premium practitioners when notifying profes- labour under the mistaken belief that proach. Risk management cannot be a Privacy liability sional indemnity (PI) insurance claims to their claims will be rejected if they pro- mere tick box exercise. Defence and settlement of liability claims arising from 250 000,00 15 000,00 R1 980,00 the Legal Practitioners’ Indemnity Insur- vide an accurate report of the absence In assessing the claim, a question ance Fund NPC (LPIIF) should include a of the risk management measures. The may arise how then, given the firm’s compromised information. 500 000,00 15 000,00 R2 940,00 completed claim form and a background opposite may be true as the provision if perfect risk self-diagnosis, a breach Network security liability report. The risk management self- false or inaccurate information to the in- has occurred resulting in a claim? This 750 000,00 15 000,00 R3 905,00 assessment questionnaire may either surer could compromise the firm’s right is elucidated in the examination of the Defence and settlement of liability claims resulting from have been completed as part of the ap- to indemnification, whether by the LPIIF claim. Insurers conduct an in-depth a system security incident affecting systems and data 1 000 000,00 15 000,00 R4 950,00 plication for a Fidelity Fund Certificate or a commercial insurer. The insurance assessment of all circumstances when as well as causing harm to third-party systems and (FFC), or as part of the claim notification relationship is based on the doctrine of they investigate claims. The examination 2 500 000,00 15 000,00 R8 500,00 process. The claim form and the self- utmost good faith (uberrima fides) and of the practice’s office file (if available) data. This may include loss of money to compromised assessment questionnaire pose several the intentional provision of incorrect in- and the consultations with the affected third parties. 5 000 000,00 15 000,00 R12 805,00 Regulatory ﬁ nes Fines imposed by a government regulatory body due to Conditions an information privacy breach. R25 000 000 revenue cap and no claims Media liability Shortened ITOO Proposal Form required Defence and settlement of liability claims resulting from disseminated content (including social media content) including: The Law Society of South Africa recommends this cyber insurance product after benchmarking it. � Defamation; � Unintentional copyright infringement; or � Unintentional infringement of right to privacy. For more information contact: Internal Broker: Mbali Sibiya Incident response costs Phone: +27 (0)11 060 7967 Costs to respond to a system’s security incident, including: [email protected] | www.marsh.com � to obtain professional (legal, public relations and IT fo- DE REBUS – JULY 2021 - 4 - COMMERCIAL CYBER INSURANCE RECOMMENDED BY THE LAW SOCIETY OF SOUTH AFRICA

If you understand the value of your data and IT systems – you will understand the value of comprehensive cyber insurance. ata and systems are key assets for most individuals and rensics) advice, including assistance in managing the companies. iTOO Cyber Insurance provides you and incident, coordinating response activities, making rep- Dyour business with access to expert knowledge and resentation to regulatory bodies and coordination with resources to e ectively manage and recover from a cyber incident. Designed to cover the resultant costs and damages law enforcement; from a privacy breach or a network security breach, a cyber � to perform incident triage and forensic investigations, insurance policy covers what has previously been uninsur- including IT experts to con rm and determine the cause able providing comprehensive rst and third-party coverag- of the incident, the extent of the damage including the es with an expert incident response. nature and volume of data compromised, how to con- Our cyber insurance policy provides the tain, mitigate and repair the damage, and guidance on following coverage: measures to prevent reoccurrence; for crisis communications and public relations costs to Cyber extortion � Costs to investigate and mitigate a cyber extortion manage a reputational crisis, including spokesperson threat. Where required, costs to comply with a cyber training and social media monitoring; extortion demand. � for communications to notify a ected parties; and � remediation services such as credit and identity theft Data restoration Costs to restore, re-collect or replace data lost, stolen monitoring to protect a ected parties from su ering or corrupted due to a systems security incident. further damages. Business interruption Law Society of South Africa special pricing for Loss of income and increased cost of working as a attorneys result of a systems security incident. Limit of indemnity Deductible Annual Premium Privacy liability Defence and settlement of liability claims arising from 250 000,00 15 000,00 R1 980,00 compromised information. 500 000,00 15 000,00 R2 940,00 Network security liability 750 000,00 15 000,00 R3 905,00 Defence and settlement of liability claims resulting from a system security incident affecting systems and data 1 000 000,00 15 000,00 R4 950,00 as well as causing harm to third-party systems and 2 500 000,00 15 000,00 R8 500,00 data. This may include loss of money to compromised third parties. 5 000 000,00 15 000,00 R12 805,00 Regulatory ﬁ nes Fines imposed by a government regulatory body due to Conditions an information privacy breach. R25 000 000 revenue cap and no claims Media liability Shortened ITOO Proposal Form required Defence and settlement of liability claims resulting from disseminated content (including social media content) including: The Law Society of South Africa recommends this cyber insurance product after benchmarking it. � Defamation; � Unintentional copyright infringement; or � Unintentional infringement of right to privacy. For more information contact: Internal Broker: Mbali Sibiya Incident response costs Phone: +27 (0)11 060 7967 Costs to respond to a system’s security incident, including: [email protected] | www.marsh.com � to obtain professional (legal, public relations and IT fo- PRACTICE MANAGEMENT – LEGAL PRACTICE

parties in preparation of the defence to appropriate risk mitigation measures posing the firm to the payment of the the claim often expose a very different after considering the underlying circum- applicable deductible. The overall risk reality to the perfect risk management stances that resulted in the claim and profile of the firm will also be negatively picture painted in the notification or also in properly assessing the claim. affected in the assessment of the com- other documents. The confidence of the It is amazing that the legal practition- mercial insurers. practitioner in their ‘risk management ers concerned go through the effort of story’ may also wane as the matter pro- considering the type of claim they are Recommendation gresses and more information on the faced with and then document all the The receipt of a claim where allegations underlying circumstances that resulted suggested measures to mitigate the of breach of mandate or duty of care on in the claim is uncovered. The reality of materialisation of the underlying risk, the part of the practice is an unfortunate having to testify in an open court and when the actual implementation thereof event. It is understandable that the claim the prospect of the narrative not with- would have been more effective in pre- will be a source of considerable stress standing cross-examination also play a venting a claim in the first place. Some for the various stakeholders in the firm. part. practitioners go so far to note that they However, it also presents an opportunity One may then ask why the legal prac- will enhance the non-existent measures for the firm to do an honest introspec- titioner concerned would initially have in place. Do not be left living in a prover- tion and assessment of the risk man- given inaccurate information regarding bial fool’s paradise by pretending that agement measures it has in place and the risk management measures they the risk management measures, if any, to consider enhancements where neces- have in place in the practice. In some in- in your practice are adequate and effec- sary. The LPIIF, as the insurer, will not stances, the legal practitioner may per- tive when they are not. stand in judgment of the firm but rather sist in their inaccurate view until very Fortunately for some of the firms con- assist it in improving the risk manage- late in the assessment process, despite cerned, the person who dealt with the ment measures in place. It is in the in- objective evidence to the contrary. The claim has left the practice by the time terests of the insurer that claims against moment that the claim is notified may the claim is notified. While the departure the insured practices are reduced. Pro- be ceased on by some practitioners to of the defaulting party is good news for active and effective risk management set out inaccurate information that they the firm concerned as it limits the like- is one of the best ways of achieving the assume the LPIIF, as insurer, wants to lihood of further potential breaches (or required reduction. This can, however, hear – they feel a need to paper over the truth being uncovered), this can be a not be effectively achieved if some legal the proverbial risk management cracks challenge for the insurer as that person practices still choose to window dress in order to cover up the real internal is not available to assist with the defence the underlying problems, rather than ad- breaches that resulted in the claim. The of the claim and in assessing whether dress the problems pragmatically. opposite is, in fact, true. The LPIIF seeks there has been any breach of the man- an accurate report on the circumstances date or duty of care on the part of the Thomas Harban BA LLB (Wits) is the as they existed in the firm when the cir- practice. At the end of the day, the prac- General Manager of the Legal Practi- cumstances leading to the claim arose. tice is at a disadvantage as the claim will tioners’ Indemnity Insurance Fund This enables the insurer to assist the need to be paid (if indemnified), eroding NPC in Centurion. firm (and other practices) in developing the available limit of indemnity and ex- q

The importance of a trust audit and the value thereof

By Jan de for the legal practice Beer

egal practitioners hold a high lic would lose faith in the justice system issued by the Independent Regulatory level of trust with their clients in South Africa, one of the corner stones Board for Auditors in March 2020, a cur- and are perceived as trustwor- of our democracy. rent audit engagement ‘is a reasonable thy in the eyes of the public. This high level of trust is earned by assurance engagement within the scope They have and fulfil a fiduciary the profession through their conduct on of the International Standard on Assur- Lduty and obligation towards their cli- a day-to-day basis. The annual audit of ance Engagements (ISAE) 3000 (Revised)’. ents to manage and safeguard entrust- a trust account practice’s trust is a key In many instances, legal practition- ed money and property in terms of the assurance process that underlies and ers consider the requirement for an mandates provided. Clients and the pub- support the trust of the public in the le- annual audit as a cumbersome and ex- lic have this inherent expectation that gal profession. The requirement for an pensive annual requirement, imposed the legal practitioner and firm can be audit is contained in s 87(2)(a) of the Le- on them by the regulator (the Legal Prac- trusted, and that the legal practitioner gal Practice Act 28 of 2014 (the LPA) and tice Council (LPC)) through legislation, will act with the highest level of integri- further set out in r 54.20 to 54.30. which contributes to significant anxiety, ty, adhering to legislative requirements, According to the revised audit guide stress, and anger. These views are also rules, regulations, and code of conduct. (‘Engagements on Legal Practitioners’ expressed where legal practitioners are Without this high level of trust, the pub- Trust Accounts’ (revised March 2020)), not able to derive value from the annual

DE REBUS – JULY 2021 - 6 - audit, which would be to the benefit of all developments in the legal profession, tor. Legal practices do not need to wait their practices. to accept the appointment. Legal practi- to engage with their auditors only on an The most important benefit of the tioners can benefit from this knowledge annual basis. Concerns and clarification trust account audit relates to the legal to ensure that their trust account prac- can be sought earlier with the auditor, practitioner’s ability to practice, receive, tices continually improve their internal providing an opportunity to rectify mat- and hold client’s money, while earning control environments. ters on a proactive basis. their fee for services provided. An inde- The existing accounting rules impose Throughout the audit process, the pendent audit report reflects the com- certain minimum internal controls on a auditor must exercise professional pliance status of the legal practice trust practice on which the auditor expresses a judgement and apply their professional account environment for the period the reasonable assurance opinion on compli- scepticism where necessary and will al- report covers. However, the responsibil- ance by the trust account practice. In ad- ways seek to resolve inconsistencies, as ity for compliance remains with the legal dition, trust account practices must also required, and highlighted in the audit practitioner. implement adequate internal controls to guide. Legal practitioners place signifi- The approval of the trust account ensure compliance with the rules and to cant trust in their staff and would thus practice’s annual audit report by the ensure that trust funds are safeguarded seek assurances that there is compliance LPC is a significant determining factor (r 54.14.7). The minimum internal con- to operating procedures and processes. whether the legal practitioner will re- trols, as contained in the rules would The audit procedures adopted by the au- ceive their Fidelity Fund Certificate (FFC), normally be encapsulated in the stand- ditor, combined by their approach, even which would enable them to practise, ard operating procedures and processes though it is not its primary purpose, can having met the requirements of the LPA. of the trust account practice. These pro- result in the detection of fraud and/or An unqualified audit report expresses cedures and processes will be assessed the misappropriation of funds. The audit reasonable assurance to the regulator through the audit process, allowing the process should provide the legal practi- that the trust account, in all material re- auditor to express their opinion. tioner some assurances that entrusted spects is compliant with the LPA and the During an audit, the auditor obtains money and property is properly safe- Rules. An unqualified report, subject to an understanding of the control environ- guarded. the assessment and approval by the LPC, ment of the practice. This enables the Where fraud and/or the misappropria- would contribute to an easier FFC appli- auditor to identify control weaknesses tion of trust money is detected, or sus- cation process. or deficiencies, which they will report pected, the auditor is best placed to as- If the audit report is qualified or con- to the legal practitioner. The benefit re- sist with the identification of the control cerns are raised by the LPC, approval will sides in the experienced guidance con- breakdowns and responsibilities and the most likely depend on the resolution of tained in the auditor’s recommendations quantification of the losses, and the po- the qualification or concerns, to the sat- to resolve the identified risks. Standard tential rectification thereof. isfaction of the LPC. The timeous resolu- operating procedures can be improved, The audit report is of significant value tion would require a proactive approach and the internal control environment whereby it provides reasonable assur- by the legal practitioner and their ap- will be enhanced. The auditor’s recom- ance on the compliance status of the firm pointed auditor to ensure that the quali- mendations should also consider effi- to the LPA and the Rules. Trust account fication and concerns are resolved. The ciencies that can be derived through the practices can utilise this independently auditor would be in the best position to improvement of processes and internal verified status to their benefit in retain- assist and guide the legal practitioner in controls. ing existing clients, where they reinforce resolving the matter that gave rise to the These recommendations should be in- their trust relationship, where the legal qualification or concern where it relates clusive of system improvements. Where practitioner wishes to be appointed to to compliance matters within the scope the legal practitioner considers the im- client panels, or approach prospective of the audit. plementation of new system solutions, clients, as an effective marketing instru- The audit provides valuable recom- or migrating to a new environment, it ment. Legal practitioners should not mendations to business and system im- would be beneficial to include your audi- hide their compliance status as clients provements and deriving efficiencies. tor in the process to provide assurances derive significant assurance from the The auditor is required, through their and make recommendations to address independent auditor’s report. It forms a standards and professional code of con- identified risks. foundation for the trust relationship be- duct, to understand the operations of a Legal practitioners are encouraged to tween the legal practitioner and the ex- legal practitioner’s trust account envi- build and maintain their professional isting or prospective client. Clients could ronment and must be up to date with relationship with their appointed audi- require a copy of the audit report as part

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DE REBUS – JULY 2021 - 7 - PRACTICE NOTE – TAX LAW

of their due diligence process. It is, how- tered auditor. Understanding affordabil- not be able to practice, receive and hold ever, important that you inform your au- ity risks, fees would remain a negotiated client money in trust and earn fees. ditor of the intended use of the report. position between the legal practitioner Legal practitioners must approach the As is the case with the trust audit, the and the auditor, subject to there being no audit engagement with a view to the value same benefits would apply to the audit scope limitations. Equally, it is important added by the assurance process and re- of the legal practice business accounts. that the auditor and their professional ports and not only regard it as a regula- There is value in the auditor also review- staff are experienced and appropriately tory requirement without business value. ing the business accounts, as well due to qualified to conduct a trust audit. If they To derive the benefits, it is important that the synergies flowing from the audit of are not skilled or experienced in this spe- you appoint an auditor with the skills and the trust account environment. Normally cialist environment, legal practitioners experience that specialise in and under- processes, procedures, controls and sys- will not derive the anticipated benefits stand the uniqueness of a trust account tems are highly integrated and could be associated with the trust account audit. practice. best approached as a combined solution. The appointment of the auditor should In deriving these benefits from your be carefully considered, not just on price, auditor, it is important to ensure that but the true value the auditor can provide Jan de Beer BCompt (Hons) (Unisa) is you do not unknowingly impose a scope to the trust account practice. a Director at Acute Accountants for limitation on the audit, such as fee con- The trust audit is the most important Legal Practitioners in Centurion. straints, which would reduce the value for enabler in obtaining your FFC annually. the audit and engagement with the regis- Without the FFC, a legal practitioner will q Sars disputes – receiving an assessment is not the

By end of the road Ruan Botha

any taxpayers have now ammunition to put in their arsenal when alties and/or interest being levied. These heeded the South African finally pulling the trigger on the dispute. are instances where the taxpayer has not Revenue Service’s (Sars’) adhered to the provisions of the Act and, call to submit their 2020 • Request for correction (RFC) as such, Sars penalises the taxpayer for tax returns, and some Section 93 of the Tax Administration Act non-compliance. A taxpayer does, how- Mhave received automatic assessments as 28 of 2011 (the Act), makes provision for ever, have some recourse where they can a part of Sars’ new initiative to collect a taxpayer to request Sars to correct a justify the non-compliance. from those taxpayers who previously previous return or declaration submit- While there are many different types refrained from submitting their returns. ted. An RFC is available to various tax of penalties and related interest charges The ensuing assessments issued by Sars types namely, income tax, value-added that Sars can levy, for the purpose of this may leave some of these taxpayers ag- tax (VAT) or Pay-As-You-Earn (PAYE). article, I will focus on non-compliance grieved. This remedy is only available to taxpay- penalties and related interest charges. Although some taxpayers might think ers where the specific return or declara- These penalties may be made up of fixed that this is the end of the road and the tion has not been selected for verifica- amount penalties, as well as percentage- assessed amount may not be altered or tion or audit. based penalties. A non-compliance pen- disputed where it is merited, this notion The purpose of this provision is fun- alty levied depends on the type of non- cannot be further from the truth. In or- damentally to enable Sars to alter an compliance. Examples of these penalties der to understand the taxpayer’s specific assessment to rectify processing errors and/or interest are – recourse, we first need to look at the var- and return completion errors where Sars – late payment penalties for VAT, PAYE, ious options available for an aggrieved is satisfied that there is an error in the Unemployment Insurance Fund (UIF) taxpayer. assessment because of an undisputed er- and Skills Development Levies (SDL); ror by Sars or the taxpayer in a return. – late payment penalties on provisional The pre-dispute phase The RFC is a quick turnaround mecha- tax; It is not always necessary for a taxpayer nism available to taxpayers where they – late payment interest on provisional to immediately dispute an assessment have made an error in their returns or tax; and issued by Sars as there is a difference declarations for example, by submitting – late payment interest on VAT and between an assessment which is the their returns with an incorrect source PAYE (not UIF or SDL). subject of a substantive dispute and code or incorrect amounts. • Request for reasons (RFR) just an error in assessment. There are • Request for remission of many different alternatives that may be When Sars has issued an assessment followed by a taxpayer in order to ob- penalties or interest and where the grounds for the assess- tain a faster, less time-consuming and Where the tax itself is not disputed, a ment are not provided, or the grounds in some instances cost effective result. taxpayer may, in some instances have provided for the assessment are not suf- Some of these pre-dispute options may missed a deadline or under declared cer- ficient to enable the taxpayer to under- even equip the taxpayer with some extra tain income or VAT, which results in pen- stand the basis of the decision to formu-

DE REBUS – JULY 2021 - 8 - late an objection, a taxpayer may request outcome of verification or audit, or a to proceeding with submitting its state- reasons for the assessment. It should be decision taken by Sars, there are three ment of grounds. noted that Sars is not required to pro- main variants to challenge Sars. These Should Sars not deem the matter ap- vide reasons for each, and every assess- mechanisms should only be perused on propriate for ADR the matter may be ment issued, but a taxpayer may request exhaustion of the pre-dispute phase or directed to the Tax Board, which hears reasons only for an adverse decision or where the pre-dispute phase is not ap- tax appeals involving a disputed amount assessment both under r 6 of the rules plicable. not exceeding of R 1 million. Both the promulgated under s 103 of the Act and taxpayer and Sars must agree that the s 5 of Promotion of Administrative Jus- • Objections matter be heard by the Tax Board. The tice Act 3 of 2000 (PAJA). A taxpayer has the right to object to an decisions made by the Tax Board are The Supreme Court of Appeal (SCA) assessment raised by Sars where the pre- binding between the parties, not appeal- in Commissioner for the South African dispute phase mechanisms mentioned able, does not have precedent value and Revenue Services v Pretoria East Motors above were not allowed by Sars such as may be heard on a de novo basis in the (Pty) Ltd [2014] 3 All SA 266 (SCA), was the taxpayer’s request for remission of Tax Court. of the view that Sars must clearly state such penalty/interest. An objection in Where the Tax Board is not the appro- the grounds on which it bases its assess- terms of r 7 must be submitted within priate platform, the matter will be heard ments and make clear to the taxpayer 30 business days after the date of the as- in the Tax Court, which deals with tax what it is disputing, so that the taxpayer sessment or Sars’ decision. appeals lodged in terms of s 103 of the knows what is required from it to dis- The crux of an objection is to submit Act; and may also hear other interlocuto- charge the burden of proof: all of the relevant grounds of the objec- ry applications pertaining to the appeal. ‘The raising of an additional assess- tion the first-time round. The grounds In the Tax Court there is no restriction ment must be based on proper grounds will be a mirror of the reasons why the on the monetary jurisdiction and any for believing that, in the case of VAT, assessment issued by Sars does not re- matter may be ventilated herein. The de- there has been an under declaration of flect the correct tax stance taken by the cisions of Tax Courts are not binding on supplies and hence of output tax, or an taxpayer. The grounds must address the other courts, but hold persuasive value unjustified deduction of input tax. In the part, or the amount disputed, the spe- in other Tax Courts, the High Courts and case of income tax, it must be based on cific grounds raised by Sars that are dis- the SCA. The judgments are, however, proper grounds for believing that there puted and any documentation that the only binding between the parties. is undeclared income or a claim for a de- taxpayer has at its disposal to dispute duction or allowance that is unjustified. the grounds raised by Sars. • Other courts … When the objection is submitted to If taxpayers so wish they may approach It is also the only basis upon which it Sars and then considered, Sars will is- the High Court for review applications or can, as it must, provide grounds for rais- sue that taxpayer, within 60 business appeals from the Tax Court. Where the ing the assessment to which the taxpay- days, an allowance or disallowance letter taxpayer is still aggrieved and wishes er must then respond by demonstrating which will either allow the objection, or to pursue the matter even further, they that the assessment is wrong’. partially allow, or disallow. may appeal to the SCA and where it is The aim for requesting reasons is to merited to the Constitutional Court. place the taxpayer in a position to prop- • Tax appeals erly understand the reasoning behind Where Sars has decided to partially allow Conclusion Sars’ decision to issue the assessment or disallow a taxpayer’s objection, the With all the possible remedies available and the basis thereof, which will in turn taxpayer is able to submit an appeal to to the taxpayer, it is clear that where a enable the taxpayer to formulate the ob- the decision, should the taxpayer disa- taxpayer receives an assessment that jection. Furthermore, the RFR will bind gree with the decision taken. does not reflect the correct tax position, Sars to the basis for their assessment, When submitting an appeal, the tax- a four-eyes principle can be taken to ob- which will preclude it from later raising payer may appeal to either the Tax Board tain the correct result, by either utilising new grounds for the assessment. established in terms of s 108 of the Act, the pre-dispute or dispute mechanisms. or the Tax Court established in terms of Sars dispute phase s 116 of the Act. A taxpayer must always A substantive dispute means that there consider whether they are of the view is a disagreement on the interpretation that the matter is appropriate for alter- Ruan Botha BA LAW LLB (UP) GTP of either the relevant facts involved or native dispute resolution (ADR) prior to (SAIT) CBP (C4) CAFCA (ACAMS) is the law applicable thereto, or of both lodging the appeal. Should the taxpayer a tax practitioner at Tax Africa in the facts and the law, which arise due be of the view that the matter should be Pretoria. to the assessment. Where a taxpayer considered for ADR, Sars must first con- q is aggrieved by an assessment raised, sider dispute resolution process prior

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DE REBUS – JULY 2021 - 9 - PRACTICE NOTE – POPIA

By Peter Data privacy laws Desmond in South Africa

n this information age, customer purpose for which it was originally tionship can be drafted, laying down the data is an important resource for intended, and for which the subject duties of the recipient party as required any organisation. Due to the sensi- has given consent. by the POPIA principles. The organisation tive nature of personal information, Limited processing: Further pro- wishing to transfer the data across the organisations are required to take 3 cessing of personal information is border should also obtain the consent of Imeasures to ensure the data entrusted limited by POPIA. Processing more the data subject. to them is safe from breaches or expo- information than that which the data sure to unauthorised parties. In South subject agreed to is thereby prohib- Data privacy offences and Africa (SA), the Protection of Personal ited. penalties in SA Information Act 4 of 2013 (POPIA) offers Information quality: It is the respon- There are not a lot of penalties and of- the regulations and guidelines surround- sibility of the party collecting infor- 4 fenses listed in POPIA. The two major of- ing the collection and processing of per- mation to ensure it is of quality by fenses are: sonal information. taking steps to ensure the data they • Obstructing or preventing the Informa- Initially, the right to data privacy and get is not misleading, complete, action Regulator – the South African su- protection was covered under s 14 of the curate, and up to date. pervisory authority – from performing Constitution and common law. In both Transparency: There should be its duties and obligation as outlined in instances, the right to privacy was lim- openness where the processing of 5 Part A of Chapter 5 of POPIA. ited, and it was fairly difficult to prove personal information is involved. As • Failing to protect the account number infringement. Established under the Eu- such, both the Information Regula- of a data subject. ropean Union (EU) directive, POPIA was tor and the data subject should be If convicted of the offenses above, the enacted to provide clear guidelines that aware – and agree – to the collection person will face a fine or an imprison- organisations are required to follow, of the data. ment period of no more than ten years, making it easier to prove non-compli- Security: The party collecting the in- or both a jail term and a fine. ance. formation should take measures to 6 It is an international consensus that POPIA applies to all organisations and prevent the loss, destruction, dam- the collection, processing, and use of per- businesses collecting and processing age, and unauthorised access or sonal information should be regulated of personal information of South Afri- processing of the data. To prevent by a governing body. The presence of can customers. This article discusses data from falling into unauthorised uniform regulations for the handling of the main principles of POPIA that busi- hands, organisations should em- personal information will not only pro- nesses are required to follow to ensure brace information technology asset tect individuals and organisations from compliance and how these apply across disposition (ITAD) as part of their costly breaches, but also makes it easier borders. data security measures. The ITAD for international trade since information protocols set in place are aimed at privacy concerns can be a major barrier ensuring that organisations protect POPIA to cross-border trade. their information technology assets In recognition of the right of privacy en- to prevent the breach or exposure of shrined in the Constitution, POPIA pro- personal information and to ensure vides the mandatory mechanisms and regulatory compliance. Peter Desmond MSc in Market Re- procedures for handling and processing Participation: The data subject search (National University of Ire- personal information in SA. Since the Act should have a way of accessing the land Cork) is a Digital Content and was formulated under the EU directive, 7 data stored on them and be able to Marketing Specialist at Wisetek in it is similar to the General Data Protec- correct the information if need be. Cork. tion Regulation (GDPR), lubricating the Compliance with regulation: It is q cross-border handling and processing the responsibility of the party proof personal information between the EU 8 cessing personal information to take and SA. measures to ensure their activities POPIA provides eight main principles Fact corner comply with the principles of POPIA. to govern the processing of personal in- • According to www.saica.co.za, formation regarding direct marketing, Data flow and privacy automated decision making, and how the advocate Pansy Tlakula was ap- cross-border flow of data is regulated. across borders pointed as the Information Regu- lator with effect from 1 December POPIA limits the transfer of information The eight principles of 2016. Advocate Lebogang Stroom, across borders to prevent organisations POPIA from circumventing the set data protec- and Johannes Weapond were ap- Lawful collection: The collection tion legislation. The cross-border transfer pointed as full-time members and 1 of personal information should be of data is only permitted if the recipient Prof Tana Pistorius and Sizwe done in a manner that is lawful and country is governed by data regulation Snail were appointed as part-time fair to the subject. similar to the POPIA principles. members. They will serve a term Limited use: The information col- If the recipient country is not subject of office of five years. 2 lected should only be used for the to such regulations, a contractual rela-

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DSY_INSURE_DBI_A4_PRINT_LAWYERS.indd 3 6/11/21 2:10 PM Can government mandate the Picture source: Gallo Images/Getty source: Picture COVID-19 vaccine against your will? A discussion on international human rights law

ary procedures have even been launched against professionals who had expressed publicly their opposition to compulsory vaccination (Luisa Regimenti ‘No obligation to be vaccinated and a ban on discrimination against people who do not wish to be vaccinated’ (www.europarl.europa.eu, accessed 20-4-2021)). Viral vaccine misinformation, distrust in government institutions and a politicised vaccine development process have nu- By Dr merous people sceptical of COVID-19 vaccines. According to the Journal of the American Medical Association, 56% of Ameri- Willem cans want to get the COVID-19 vaccine, while 39% of Americans van Aardt say they will definitely not or probably not get the COVID-19 vaccine when it becomes available to them (Heather Skold ‘To vaccinate or not: Americans split on whether to get Covid-19 ustralian Prime Minister, Scott Morrison, asserted vaccine’ (www.krdo.com, accessed 20-4-2021) and Cary Funk that a COVID-19 vaccine will be ‘as mandatory and Alec Tyson ‘Intent to get a COVID-19 vaccine rises to 60% as you can possibly make it’ while South Africa’s as confidence in research and development process increases’ President Cyril Ramaphosa, on the other hand dis- (www.pewresearch.org, accessed 20-4-2021)). missed rumours that the COVID-19 vaccination The topic of vaccination evokes strong opinions and emo- programA will be compulsory for all citizens and made clear tions, now more than ever in the COVID-19 era. Many are grate- that ‘nobody will be given this vaccine against their will’ (‘Scott ful and relieved to get the COVID-19 vaccine, and others are Morrison says a coronavirus vaccine would be “as mandatory indignant and exasperated at the prospect of COVID-19 vac- as you can possibly make it”’ (www.sbs.com.au, accessed 2-6- cination mandates. 2021); Marchelle Abrahams ‘Ramaphosa details SA vaccine An important question arising from this is whether an in- rollout plan: “Nobody will be given vaccine against their will”’ dividual can be compelled by government to be vaccinated (www.iol.co.za, accessed 2-6-2021)). against their will in terms of international human rights law? There has been a great deal of talk about subjecting people who are not vaccinated to restrictions involving their access Pro-choice v pro-mandate to public places, flights, hotels, and continued employment, The COVID-19 vaccination debate has two distinct viewpoints, thereby indirectly making vaccination compulsory. Disciplin- one ‘pro-mandate’ and the other ‘pro-choice’.

DE REBUS – JULY 2021 - 12 - FEATURE – COVID-19

The proponents of the pro-mandate perspective The pro-choice perspective strongly opposes strongly support mandatory vaccination mandatory vaccinations and, inter alia, argue policies and, inter alia, argue that: that: All healthy people that can be vaccinated should be man- Vaccination choice is a fundamental human right. Because dated in order to achieve herd immunity. Government of- vaccination poses a risk to life, liberty, and security of person, ficials are best qualified to make vaccination decisions. ‘Gov- only an individual may decide how, when, and whether to vac- ernment [should] ensure that a sufficiently high percentage of cinate (Kuo Habacus and Holland (op cit)). The theory of herd people vaccinate to preserve societal herd immunity’ (Louise immunity is not an adequate rationale for state compulsion to Kuo Habakus and Mary Holland Vaccine Epidemic: How Corpo- vaccinate. When dealing with a disease with a crude mortality rate Greed, Biased Science, and Coercive Government Threaten rate (‘sometimes called the crude death rate that measures the Our Human Rights, Our Health, and Our Children (New York: probability that any individual in the population will die from Skyhorse 2012) at 20-26). the disease; not just those who are infected, or are confirmed as being infected, and is calculated by dividing the number of deaths from the disease by the total population’) ranging between 0,001% and 0,5% natural infection is preferable for all people not in vulnerable groups (Dr Willem van Aardt ‘Limit- ing human rights during COVID-19 – is it only legitimate if it is proportional?’ 2021 (May) DR 14).

COVID-19 vaccines are overwhelmingly safe and effective, COVID-19 vaccine safety science is in its infancy, not rigor- and the benefits vastly outweigh the risks. Adverse events ously tested and incomplete. The COVID-19 vaccines have are extremely rare. The World Health Organisation (WHO), been invented, developed, and approved at a lightning-fast European Union (EU) and the United States (US) and other pace in less than one year. Testing of vaccine efficacy and the health authorities approved the vaccine and, therefore, it is safety of the COVID-19 vaccines were limited and insufficient. safe (Sarah Lynch and Kanneboyina Nagaraju ‘6 important According to the World Economic Forum and the WHO the truths about COVID-19 vaccines’ (www.theconversation.com, average development time for almost all other safe vaccines accessed 30-3-2021)). have been between ten and 15 years. US Centers for Disease Control and Prevention said they ‘will continue to provide updates as we learn more about the safety of the … vaccine in real-world conditions’ essentially admitting that the health authorities are busy with a ‘real-world’ medical experiment (Douglas Broom ‘5 charts that tell the story of vaccines to- day’ (www.weforum.org, accessed 30-3-2021). All COVID-19 vaccines received the ‘Emergency Use Authorisation’ and not the time-tested ‘Biologics License Application’, where rigorous and thorough testing and analysis preceded the issuance of such a license (DJ Opel; DA Salmon; EK Marcuse ‘Building Trust to Achieve Confidence in COVID-19 Vaccines’ (https:// jamanetwork.com, accessed 30-5-2021)).

COVID-19 vaccine refusers are dangerous and selfish. COVID-19’s crude mortality rate ranges between 0,001% People who elect not to vaccinate are selfish, irrational, and to 0,5% (see https://covid19.who.int/, https://covid.cdc.gov, threaten the right to life and the right to health of others with https://coronavirus.jhu.edu, accessed 10-6-2021). 99,5% of all a deadly disease (Kuo Habacus and Holland (op cit)). people under the age of 75 that contract COVID-19 will survive. No mass vaccinations are reasonably required to combat a disease with a crude mortality rate ranging between 0,001% to 0,5%. According to Dr Michael Yeadon (former vice president and Chief Scientist of Pfizer) ‘You do not vaccinate people who aren’t at risk from a disease’ (NH Web Desk ‘No need for vaccines, COVID pandemic is over, says former Vice Presi- dent of Pfizer’ (www.nationalheraldindia.com, accessed 30- 3-2021); Steve Stecklow and Andrew Macaskill ‘The ex-Pfizer scientist who became an anti-vax hero’ (www.reuters.com, accessed 30-3-2021); and AIER Staff ‘Open letter from medical doctors and health professionals to all Belgian authorities and all Belgian media’ (www.aier.org, accessed 30-3-2021)).

‘Mandatory vaccination is typically justified on Millian If extremely safe, why are pharmaceutical companies pro- grounds’: According to John Stuart Mill, a justifiable ground tected from liability? In terms of the US Public Readiness for the use of state coercion (and restriction of liberty) is when and Emergency Preparedness Act of 2005 for medical coun- one individual risks harming others (Julian Savulescu ‘Good termeasures against COVID‑19, covering ‘any vaccine, used reasons to vaccinate: Mandatory or payment for risk?’ (2021) to treat, diagnose, cure, prevent, or mitigate COVID‑19’ pre- 47 Journal of Medical Ethics 78). cludes ‘liability claims alleging negligence by a manufacturer in creating a vaccine’.

DE REBUS – JULY 2021 - 13 - At least 70% to 90% of the adult population need to be vac- Significantly less people need to be vaccinated to achieve cinated to achieve herd immunity. Irrespective of whether herd immunity. In terms of a recent estimate, 55% of Ameri- people have already been infected with COVID-19 and already cans have already had COVID-19 vaccine and already have an- have antibodies in their system they need to be vaccinated tibodies in their system. There is no need to vaccinate people (Vanderbilt University Medical Center (victr.vumc.org, ac- that already have antibodies. Only 25% to 45% of Americans cessed 30-3-2021)). need to vaccinate to achieve herd immunity and not the 70% to 90% claimed by the US CDC (Aria Bendix ‘A Johns Hopkins professor predicts the US will reach herd immunity by April, but many experts aren’t so optimistic’ (www.businessinsider. com, accessed 31-3-2021); CDC ‘Estimated Disease Burden of COVID-19’ (www.cdc.gov, accessed 31-3-2021); Jonathan Allen and Dan Whitcomb ‘Americans celebrate Christmas Eve under spiralling COVID pandemic’ (www.reuters.com, accessed 31- 3-2021); and Saba Aziz ‘“Significant underestimation”: Can- ada’s COVID-19 case count likely much higher than reported’ (https://globalnews.ca/, accessed 31-3-2021).

Vaccine exemptions based on religious and other objec- Vaccination exemption rights must expand, not contract. In- tions should be abolished. People should lose their freedoms dividuals have the right to free and informed consent for all if they choose not to vaccinate. They should not be allowed medical interventions, including COVID-19 vaccination (The to travel, attend public events or resume life as normal (Sam Nuremberg Code 1947). Shead ‘What people might not be allowed to do if they don’t get vaccinated’ (www.cnbc.com, accessed 30-3-2021)).

International human rights law and Civil and Political Rights (ICCPR) (that was ratified by 173 governments world-wide) clearly dictates that ‘no one shall be mandatory vaccination subjected without his free consent to medical or scientific ex- The foremost principle in the Nuremberg Code (1947) is that perimentation’. ‘the voluntary consent of the human subject is absolutely es- Article 3 of the United Nations Educational, Scientific and sential’. Cultural Organisation (UNESCO), Universal Declaration on Bio- Article 7 of the legally binding International Covenant on ethics and Human Rights determines that ‘[h]uman dignity, human rights and fundamental freedoms are to be fully respect- ed’ and ‘[t]he interests and welfare of the individual should have priority over the sole interest of science or society’ while art 6 explicitly states that ‘[a]ny preventive, diagnostic and

therapeutic medical intervention is only to be carried out with

the prior, free and informed consent of the person concerned,

based on adequate information’. While the UNESCO Declara-

tion does not establish enforceable rights, it is persuasive concerning what the global standard for informed consent should be (Kuo Habacus and Holland (op cit)). Article 5 of the Convention for the Protection of Human Rights and Dignity of the Human Being regarding the Appli- Do you pay around or over R10 000 for your actuarial cation of Biology and Medicine: Convention on Human Rights reports? and Biomedicine (Oviedo Convention) specifically determines that: ‘An intervention in the health field may only be carried Do you receive your actuarial reports, more than 1 day out after the person concerned has given free and informed after sending them? consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person Do your Actuaries refuse to appear in court to "back up" concerned may freely withdraw consent at any time.’ Although their calculations? the Oviedo Convention is only legally binding on the European

Union Member States that ratified the convention it clearly sets If you answered yes to any of these questions, it’s time a standard regarding the protection of human rights in the bio- to contact Tsebo Actuaries. medical field. In terms of the WHO’s ‘Guidance for Managing Ethical Issues Please find our details below: in Infectious Disease Outbreaks’ (2016), the bioethical foundation for the support of emergency use medical interventions ‘is justified by the ethical principle of respect for patient autonomy, in other words the right of individuals to make their Physical address: 2nd Floor, West Tower, Nelson Mandela Square, own risk – benefit assessments in light of their personal val- Maude Street, Sandton, 2196 ues, goals and health conditions’ (www.who.int, accessed 15- Email address: [email protected] 5-2021). Tel: 011 881 5954 Mobile: 064 855 9227 Limitation of fundamental human rights Fundamental human rights and freedoms are not absolute. Their boundaries are set by the rights of others and by the le-

DE REBUS – JULY 2021 - 14 - FEATURE – COVID-19 gitimate needs of society. Generally, it is recognised that public with a population level crude mortality rate ranging between health justifies the imposition of restrictions on the exercise of 0,001% - 0,5%. fundamental rights subject to such restrictions being reason- Given that a mandatory vaccination measure would fail on able and proportionate. the adequacy, necessity and proportionality strictu sensu stag- In order to determine whether a government may impose es, mandatory vaccinations would per se be disproportionate vaccine mandates, the proportionality analysis, which is a stan- and, therefore, unlawful. dard legal test for adjudicating human rights disputes, needs Importantly, Article 4 of the ICCPR and Siracusa Principle 58 to be applied to determine the legitimacy, adequacy, necessity specifically determines that: ‘No state, including those that are and proportionality of any restriction on human rights (Alec not parties to the Covenant, may suspend or violate, even in Stone Sweet and Jud Mathews ‘Proportionality balancing and times of public emergency freedom medical or scientific exper- global constitutionalism’ (2008) 47 Columbia Journal of Trans- imentation without free consent’ (Siracusa Principles (op cit)). national Law 68 at 72). The proportionality test consists of four stages, determining whether: Conclusion • The measure pursues a legitimate purpose (legitimacy). It is The distinguished health and human rights professor Jonathan a legitimate aim of state parties to take action to protect the M Mann, MD, MPH, asserted that: public against an infectious disease (United Nations Econom- ‘Unfortunately, public health decisions to restrict human ic and Social Council ‘Siracusa Principles on the Limitation rights have frequently been made in an uncritical, unsystem- and Derogation of Provisions in the International Covenant atic and unscientific manner. Therefore, the prevailing as- on Civil and Political Rights’ UN Doc E/CN.4/1985/4, Annex sumption that public health … is an unalloyed public good that (1985) at para 25). does not require consideration of human rights norms must • The measure must be adequate to achieve the purpose (ad- be challenged. For the present, it may be useful to adopt the equacy). According to the WHO and US CDC, fully vaccinated maxim that health policies and programs should be considered people still need to social distance and adhere to a number discriminatory and burdensome on human rights until proven of COVID-19 preventative measures given uncertainty with otherwise’ (Jonathan M Mann, Lawrence Gostin, Sofia Gruskin, regard to whether the: Troyen Brennan, Zita Lazzarini, Harvey V Fineberg ‘Health and – COVID-19 vaccines would be effective against other variants. human rights’ (1994) 1.1 Health and Human Rights Journal 6 – COVID-19 vaccines would provide long term immunity (vac- at 14 – 15). cine efficacies are based on short-term data only). International human rights law affords the individual a right to make informed choices about vaccination and all medical – COVID-19 vaccines would prevent people that received the interventions. The underlying principle is that those who un- vaccine from spreading the virus (Tamara Bhandari ‘New evi- dergo the risk of medical treatment should make the final deci- dence COVID-19 antibodies, vaccines less effective against sion about their own participation after they are informed of variants’ (https://medicine.wustl.edu, accessed 14-4-2015); the purpose, risks, and benefits of the treatment. Atanu Biswas ‘A statistician explains: What does “90% effica- COVID-19 vaccines are experimental, and citizens have the cy” for a Covid-19 vaccine mean?’ (www.scroll.in/, accessed right to refuse such a vaccine (Nuremberg Code, ICCPR Art 4 14-4-2021); and CDC ‘Frequently Asked Questions about (op cit) and the Siracussa Principle 58 (op cit)). The right of COVID-19 Vaccination’ (www.cdc.gov, accessed 14-4-2021)). refusal, therefore, stems from the fact that Emergency Use Au- There seems to be no consensus that mass mandatory vac- thorisation products are, by definition, experimental. cinations would achieve the desired outcome of achieving Governments should comply with international human herd immunity and returning society to normality and as rights law and make COVID-19 vaccinations voluntary and not such the measure cannot be deemed adequate. mandatory. There should also be no discrimination against • The measure infringes human rights no more than abso- those who choose not to be vaccinated, like not being allowed lutely necessary to accomplish the purpose (necessity). An to travel, attend school, shop, attend social gatherings or not alternative to mass mandatory vaccinations would be to being employed. only vaccinate those in vulnerable groups after they have given their informed consent and people that choose to be vaccinated. Another alternative is the use of Ivermectin as Dr Willem van Aardt BProc (cum laude) LLM (UP) LLD a prophylaxis in the treatment of COVID-19. Meta-analyses (NWU) is an Admitted Attorney of the High Court of based on 18 randomised controlled treatment trials of Iver- South Africa, Admitted Solicitor of the Supreme Court mectin in COVID-19 have found large, statistically significant of England and Wales and an Extraordinary Research reductions in mortality, time to clinical recovery, and time Fellow at North-West University – Research Unit Law to viral clearance. Furthermore, results from numerous con- Justice and Sustainability Potchefstroom Campus. trolled prophylaxis trials report significantly reduced risks of contracting COVID-19 with the regular use of Ivermectin q (Pierre Kory; Gianfranco Umberto Meduri; Joseph Varon; Jose Iglesias; and Paul E Marik ‘Review of the emerging evidence demonstrating the efficacy of Ivermectin in the prophylaxis and treatment of COVID-19’ (www.ncbi.nlm.nih.gov, ac- Have you come across an interesting case or cessed 31-5-2021)). Given the various alternatives, vaccine do you know of a new development in mandates would not pass the necessity stage of the propor- your area of law? tionality analysis. • The measure does not have a disproportionately adverse ef- De Rebus also welcomes articles, case notes, fect (proportionality stricto sensu). The legislative measure practice notes, practice management articles and opinion must represent a net gain when the reduction in enjoyment pieces. Articles should not exceed 2 000 words. Case notes, of rights is weighed against the benefits achieved by the in- opinions and similar items should not exceed 1 000 words. fringing measure. Vaccine mandates cannot result in a net Contributions should be original and not published gain as it would effectively discriminate against and deny ap- or submitted for publication elsewhere. proximately 30% to 40% of the world’s population that do not want to be vaccinated with an experimental COVID-19 vac- Send your contribution to: [email protected] and cine their most basic human rights to life, liberty, freedom of movement and education in order to combat a disease become a thought leader in your area of law.

DE REBUS – JULY 2021 - 15 - Picture source: Gallo Images/Getty

Grandchild’s claim against grandparent’s estate: Weighing up child maintenance against freedom of testation

he case of Van Zyl NO v Getz NO [2020] 3 All SA 730 (SCA) presented a golden opportunity for the Supreme Court of Appeal (SCA) to provide the long-awaited clarity regarding a legal question that has been surrounded by uncertainty for decades. Un- fortunately, the opportunity was missed owing to poor strategic Tlitigation and ignominious judicial service in the High Court. However, the By SCA’s approach is not beyond reproach as it could have done more than it Ndivhuwo did in the interests of justice and legal certainty. The ‘further reason’ for its Ishmel conclusion is potentially problematic as it may unduly fetter the powers of Moleya the courts to develop the common law in terms of ss 8(3) and 39(2) of the Constitution. This article is a critique to the court’s approach.

DE REBUS – JULY 2021 - 16 - FEATURE – PERSONS AND FAMILY LAW

sion of the High Court (WCC) claiming which could only be undertaken ‘after damages against the executors for their hearing all the evidence’ and in ‘light failure to recognise B’s claim. On agree- of all circumstances of the case, with ment between the parties, the issues for due regard to all the relevant factors’. It determination were separated in terms found that the inability of B’s father to of r 33(4) of the Uniform Rules of Court support B had not been established and and were determined without leading that the obligation could not be assumed any evidence. The High Court made an or transferred to B’s grandparents or order in favour of the respondent, with- their estates. Moreover, that the inability out furnishing reasons. On appeal to the of B’s living grandparents to support her SCA, the parties agreed to have the mat- had not been established. The court also ter determined without oral hearing in observed that the suggested develop- terms of s 19(a) of the Superior Courts ment implicated the right to human dig- Act 10 of 2013 and based on the stated nity, equality, and freedom of testation case containing both facts and assump- and that it was ‘inappropriate’ because tions. The allegations made by the appel- of its ‘nature’ and ‘effect’ ‘on the law of lant, although some were denied by the succession and other foundational val- respondent, were assumed for purposes ues of the Constitution’. The court con- of adjudicating the stated case. cluded that the development was ‘quite To surmount the jurisprudential hur- drastic’ as it dealt with ‘social policy’ dle posed by Barnard, the appellant im- regarding the maintenance of children plored the SCA to develop the common by their parents and the freedom of law in terms of ss 8(3) and 39(2) of the testation of grandparents and that only Constitution to recognise a grandchild’s Parliament should ‘decide whether the claim for maintenance against the estate common-law rule should be developed of a grandparent. and, if so, how’. She argued that a failure to recognise the claim is inconsistent with ss 10 and Analysis 28 of the Constitution. The respondent The way the case was litigated and ad- argued that the agreed and assumed judicated in the High Court is undoubt- facts do not support the suggested de- edly ignominious. Instead of sanctioning velopment and that there are constitu- the ill-considered procedural choices tional and public policy considerations of the litigants, the High Court should that militate against judicial interference have exercised its discretion as the ‘up- with the right of individuals to arrange per guardian in matters involving the their private affairs. Lastly, that the pro- best interests of the child’ and ordered posed development should be ‘left to a full hearing of the matter (Kotze v Ko- Parliament as the major engine for law tze 2003 (3) SA 628 (T) at 630F). Absent reform’ as it goes ‘beyond the ordinary the critical facts underscored by the SCA scope of judicial functions’. The sug- and a reasoned High Court judgment, gested development was to occur against the SCA was implored to develop the the backdrop of conflicting judgments common law in a ‘factual vacuum’ and as in Barnard and Lloyd v Menzies, NO a court of first instance. This could not and Others 1956 (2) SA 97 (N) at 102. In be done. The ‘delicate and difficult’ task Lloyd, the court held that ‘it would be il- of developing the common law should logical not to maintain the liability upon begin in the High Court (Lee v Minister the estate of anyone who, if living, is for Correctional Services 2013 (2) SA 144 under the duty to provide support’ and (CC) at para 79). The process requires rejected the argument that recognising ‘close and sensitive interaction’ among The factual and litigation the claim would ‘interfere unduly with the High Courts, the SCA and CC (Car- background of the case freedom of testation’ and that it would michele v Minister of Safety and Security be ‘contra bonos mores’. However, the and Another (Centre for Applied Legal B a minor stayed with her mother and reasoning in Lloyd was rejected by the Studies Intervening) 2001 (4) SA 938 (CC) her father left South Africa (SA) to reside court in Barnard on the basis that the at para 55). Therefore, the ‘views and in the United States (US). The appellant claim could not be recognised based on approach’ of the High Court – not just (B’s curatrix ad litem) alleged that her ‘presumed illogicality’ and that the ques- the SCA – ‘are of particular significance father could not be traced. She also al- tion is not ‘whether it would be illogical’ and value’ when developing the common leged that B’s mother could not meet B’s to recognise the claim but whether do- law (Lane and Fey NNO v Dabelstein and financial needs. When B’s grandfather ing so is ‘warranted by our law’. It stated Others 2001 (2) SA 1187 (CC) at para 5). died, she lodged a maintenance claim that recognising it based on ‘supposed For these reasons, one can hardly fault against his estate and alleged that the logic’ would be to usurp the functions of the SCA for declining to develop the deceased was able to maintain B during the legislature. common law in this case. But did it do his lifetime and that his estate was able The SCA stated that the common law enough as the custodian of the com- to do so after his death. The claim was develops incrementally through the mon law? I think not. The court should rejected by the executors of the estate rules of precedent and that the develop- have devised means to clear the identi- on the basis that the common law, as ment does not occur in a ‘factual vacu- fied procedural labyrinths to enable the enunciated in Barnard, NO v Miller 1963 um’. It found that the suggested develop- necessary development of the common (4) SA 426 (C), does not recognise such ment was not supported by the agreed law. It could have called for and received a claim. The appellant instituted legal and assumed facts and that it entailed a further evidence in terms of s 19(b) of proceedings in the Western Cape Divi- complete change of a common law rule the Superior Courts Act regarding the

DE REBUS – JULY 2021 - 17 - FEATURE – PERSONS AND FAMILY LAW skimpy factual details. Alternatively, it argument. The argument is unconvinc- propriately. The courts should be wary could have remitted the matter to the ing and was rightly rejected by the court of deferring common law development High Court for a full hearing with nec- in Lloyd. The argument may have held to Parliament as the latter is always at essary instructions in terms of s 19(c). sway then, but it cannot now – at least liberty to alter the common law through The court enjoys inherent powers to not assuredly. Sections 8(3) and 39(2) of legislation even after the courts have de- protect and regulate its own process (s the Constitution bestow the courts with veloped it. Doing so, without compelling 173 of the Constitution) and was at lib- explicit and extensive powers to develop reasons, may be considered an abdica- erty to explore the potential viability of both the common law and customary tion of responsibility. a grandchild’s claim against an estate of law as required by the spirit, purport, a grandparent without making a finding and objects of the Bill of Rights. Defer- Conclusion on the facts of the case. This attractive ring development of the common law to The way the Van Zyl NO case was liti- approach was adopted by the Constitu- the legislature is no longer fashionable. gated and adjudicated in the High Court tional Court (CC) in H v Fetal Assessment The courts have indeed handed down deserves the censure expressed by the Centre 2015 (2) SA 193 (CC). It was ar- judgments that drastically changed the SCA. Both the High Court and the liti- guably in the interests of justice for the rules of the law of succession both in the gants should have done better. However, SCA to provide clarity on this area of the common law and customary law areas the SCA could, arguably, have done more common law given the fact that it impli- (Petersen v Maintenance Officer, Simon’s than it did. The litigation and adjudica- cated the rights of the most vulnerable Town Maintenance Court, and Others tive bloopers in the High Court simply of our society – children. Moreover, Lloyd 2004 (2) SA 56 (C) and Bhe and Others demonstrate that the duty to align our and Barnard are judgments of different v Magistrate, Khayelitsha, and Others laws with the dictates of the Constitu- divisions of the High Court and, a divi- (Commission for Gender Equality as Am- tion requires a collaborative effort be- sion of the High Court is not necessarily icus Curiae); Shibi v Sithole and Others; tween judicial officers and legal practi- bound by a decision of another division South African Human Rights Commission tioners as officers of the courts. Thus, (The Law of South Africa vol 10 3ed (Dur- and Another v President of the Republic transformative adjudication requires ban: LexisNexis) at p 527). As Mohamed of South Africa and Another 2005 (1) SA legal practitioners to assist the courts Paleker rightly observed, ‘the courts 580 (CC)). In some instances, they have by properly identifying constitution- have not overwhelmingly rejected such altered legislation governing the law of ally misaligned areas of the law and claims, nor have they strongly endorsed succession (Gory v Kolver NO and Oth- choosing apposite litigation techniques them’ (Mohamed Paleker ‘A grandchild’s ers (Starke and Others Intervening) 2007 to align them. Such a collaborative ap- claim to maintenance from a deceased (4) SA 97 (CC) and Hassam v Jacobs NO proach would foster incremental and grandparent’s estate’ (2014) 1 Acta Ju- and Others 2009 (5) SA 572 (CC)). This timely transformation of the South Afri- ridica 41). Therefore, both Lloyd and Bar- is emblematic of the extensive nature of can legal system. As Van der Westhuizen nard are good law as they have not been the courts’ powers to align the law with J observed extra-curially, the suffusion expressly overruled by the SCA. The fact the dictates of the Constitution. The in- of the South African legal system with that the common law in this area is in a vocation of the doctrine of separation of constitutional values requires a ‘massive ‘state of flux’ calls for the SCA’s authori- powers as the basis for refusing to de- joint effort’ from various role players, tative voice. It is necessary to re-evaluate velop common law rules is therefore un- including the legal profession (Van der both Lloyd and Barnard against extant convincing to say the least (Paulsen and Westhuizen J ‘A few reflections on the public policy and constitutional values Another v Slip Knot Investments 777 (Pty) role of courts, government, the legal pro- as the two judgments are from a pre- Ltd 2015 (3) SA 479 (CC) at para 115). fession, universities, the media and civil constitutional dispensation. More so in this case because the courts society in a constitutional democracy’ The SCA’s ‘further reason’ for declin- have, on several occasions, developed (2008) 8 AHRLJ 251 at 257). ing to develop the common law is, with the common law rules governing suc- respect, unconvincing as it implies that, cession, untrammelled by the doctrine. even with all the relevant facts, the court Judicial development of the common would have declined to develop the com- law cannot be considered ‘inappropriate’ Ndivhuwo Ishmel Moleya LLB (Uni- mon law. The upshot of it is that the simply because it implicates foundation- ven) LLM (Unisa) is a legal practitio- suggested development is drastic and al values of the Constitution or a pano- ner at Cheadle Thompson & Haysom overreaching and should be left to the ply of constitutional rights. If anything, Inc in Johannesburg and writes in legislature to undertake. Short of its lin- that invites judicial intervention to bal- his personal capacity. guistic veneer, it is a separation of powers ance the contesting values and rights ap- q

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Get in touch with us: www.docfox.co.za | 010 140 3580 Medical negligence and criminal responsibility – when the court infringes on a medical practitioner’s rights to a fair trial

Picture source: Gallo Images/Getty

By Dr Llewelyn Gray Curlewis prised of the evidence of three witnesses stitution). A just sentence, therefore, and numerous exhibits. Dr D assumed required that imprisonment only be im- that each exhibit – except for those posed in the most serious cases of negli- whose admissibility he contested – was gence, which must be determined in ac- he application for leave to ap- admitted as it was handed in. Surprising- cordance with the views of the medical peal in S v Van der Walt 2020 ly, the regional magistrate pronounced profession. (2) SACR 371 (CC) was served on the admissibility of all the exhibits, before the Constitutional when he was handed down judgment on Decision of court Court (CC) against the judg- the conviction and admitted some exhib- The court rejected the argument by the Tment of the Mpumalanga Division of the its, but not others. The crux of the mat- state that once the applicant had con- High Court. The facts were as follows: Dr ter is that the non-admission of some of tested the admissibility of certain ex- D, an obstetrician and gynaecologist was the exhibits meant that the evidence elic- hibits, the magistrate interrogated the convicted by the regional court of culpa- ited through their cross-examination was admission of all other exhibits applying ble homicide. The basis was that he act- also rejected, a fact, which Dr D came to legal requirements for admission and ed negligently in the care of his patient, know only at the stage of conviction. The that the findings therefore appeared the late P, after she had given birth, and applicant complained that this was at to have been correct. The court also re- that this negligence caused her death. Dr odds with the law (S v Molimi 2008 (3) SA jected the state’s argument that the ap- D was sentenced to five years’ imprison- 608 (CC); Ndhlovu and Others v S [2002] plicant was aware of the adverse conse- ment. He unsuccessfully appealed to the 3 All SA 760 (SCA) at para 18). quences in failing to testify, in that ‘the High Court against both the conviction The second ground was that by rely- prima facie case of the State would be and sentence. The Supreme Court of Ap- ing on the evidence of one Dr T, also an left to speak for itself’. The fact that this peal (SCA) refused special leave to ap- obstetrician and gynaecologist and an issue was raised and decided on appeal peal, which resulted in the application expert witness by the state, the court a and taken into account, made no differ- in the CC. Regarding the conviction, Dr quo conducted its own research and re- ence. The contention by the state that D contended that the way the regional lied on medical textbooks not referred to the High Court, having done so, correctly court handled the trial infringed on his in testimony. Dr D contended that, be- concluded that – even with that evidence rights to a fair trial, more specifically, his cause textbooks were not presented as – the state had nevertheless proved its constitutional right as an accused to ad- evidence, he was denied an opportunity case beyond a reasonable doubt, was duce and challenge evidence as protect- to challenge them, which was an alleged also rejected. ed under s 35(3)(i) of the Constitution. contravention of his s 35(3)(i) rights. The second point regarding the refer- Regarding the sentence, Dr D submitted Thirdly, Dr D submitted that he was ences to the literature was not proven that the sentence was ‘shockingly inap- convicted without there being any evi- and the state’s contention that this propriate’ and an infringement of s 12(1) dence regarding an essential element of merely fit in with the factual evidence (a) of the Constitution. The challenge the relevant offence, namely, causation. of the expert witness, Dr T, and that it regarding a ‘fair trial’ is based on three On sentence, the applicant submitted was this evidence, which was the basis of grounds. First, the regional magistrate that a doctor convicted of an offence the finding of guilt, was also unsuccess- decided on the admissibility of various arising from professional negligence ful. The state’s argument being that the pieces of evidence for the first time in cannot be treated like, for example, a applicant elected not to testify, and that the judgment on conviction. In essence, driver whose negligent driving resulted the expert testimony of Dr T was not when the applicant elected not to testify, in someone’s death. He contended that disputed and thus constituted prima fa- he did so without knowing the full ambit in society doctors play a special role (a cie evidence of the applicant’s negligent of the case. The state’s evidence com- right enshrined in s 27(1)(a) of the Con- conduct, also did not succeed.

DE REBUS – JULY 2021 - 20 - FEATURE – CRIMINAL LAW

The third point in argument by the on constitutional jurisdiction only. Men- (see also John v Rees and Others; Mar- state, that the evidence of Dr T was suffi- tion was made of an arguable point of tin and Another v Davis and Others; Rees cient in establishing causation, and that law of general public importance. Since and Another v John [1969] 2 All ER 274 the correct test was applied, was also re- this was not substantiated, in casu, noth- at 274; Psychological Society of South Af- jected. ing needs to be said about it. In the ab- rica v Qwelane and Others 2017 (8) BCLR Relating to sentence, the state’s sub- sence of any other constitutional issue, 1039 (CC) at para 45; HWR Wade Admin- mission that the court a quo exercised the CC will not entertain an appeal on istrative Law 6ed (Clarendon Press 1988) its discretion properly and must there- sentence merely because there was an at 533-4). fore stand, was conceded. irregularity, there must be proof of a • Medical literature • Jurisdiction and leave to failure of justice (Bogaards v S 2012 (12) BCLR 1261 (CC) at para 42). The notion It is trite that an expert witness may rely appeal that doctors must receive special puni- on information in a textbook (Menday v The pronouncement on admissibility at tive treatment, lest s 12(1) be infringed, Protea Assurance Co Ltd 1976 (1) SA 565 the stage of conviction and the reliance is without any basis. No reason exists (E) at 569G-H). In casu, the state argued on medical literature not proved in tes- for an exception to be made where doc- that the medical literature was provided timony implicated Dr D’s right to a fair tors are found to be guilty of causing by the expert assessor who assisted the trial. The right to a fair trial embraces a the death of patients. The court, in casu, regional magistrate to confirm the evi- concept of substantive fairness, which is with reference to the jarring analogy of dence of Dr T, similarly in the way that a not to be equated with what might have drivers who kill people as a result of court may refer to case law or academic passed muster in courts before 1996 negligent driving, finds that those that sources in a judgment. The literature did (S v Zuma and Others 1995 (2) SA 642 die at the hands of doctors who act neg- not introduce new or different evidence, (CC) at para 16; Shabalala and Others v ligently are terminally denied the most but merely confirmed the evidence of Attorney-General of the Transvaal and important right, namely, the right to life. the expert. Dr D countered this submis- Another 1995 (12) BCLR 1593 (CC) at The law demands a higher standard of sion by arguing that the judgments made para 29). It is broader and more context- care from doctors, where the conduct it plain that the regional magistrate did based than pre-constitutional notions of complained of relates to the area of ex- rely on the literature. The court favoured trial fairness, which was based on non- pertise (Mukheiber v Raath and Another this submission. Whether the applicant compliance with formalities (S v Steyn [1999] 3 All SA 490 (A) at para 32, with would have been able to challenge the 2001 (1) BCLR 52 (CC) at para 13). In Fer- reference to Van Wyk v Lewis 1924 AD textbook evidence successfully is irrel- reira v Levin NO and Others; Vryenhoek 438 at 444). Leave to appeal against the evant and the question was whether the and Others v Powell NO and Others 1996 sentence was refused. applicant had the opportunity to challenge it. The reliance on unproved medi- (1) SA 984 (CC) at para 133 Ackermann • Fair trial J said: cal literature infringed the applicant’s ‘[I]t is salutary to bear in mind that The right to a fair trial must instil con- s 35(3)(i) right. the problem cannot be resolved in the fidence. Proceedings in which little re- abstract but must be confronted in the spect is recorded to the fair trial princi- Conclusion context of South African conditions and ples have the potential to undermine the It was ordered that the conviction must resources – political, social, economic fundamental adversarial nature of judi- be set aside. The concomitant effect is and human. … One appreciates the dan- cial proceedings (see the S v Molimi case that the sentence must also fall away. ger of relativising criminal justice, but it at para 42). An accused is not at liberty Arguably, if the sentence automatically would also be dangerous not to contex- to demand the most favourable possible falls away, as it does, it was not neces- tualise it.’ treatment under the guise of the fair trial sary to determine the application for Not all procedural irregularities are, right (S v Shaik and Others 2008 (2) SA leave to appeal against the sentence. This therefore, sufficiently serious as to con- 208 (CC) at para 43). A court’s assess- is correct, however, to avert the same stitute an infringement of this right. In S ment of fairness requires a substance argument being raised, if the applicant v Mdali 2009 (1) SACR 259 (C) at para 10, over form approach (S v Jaipal 2005 (4) were again convicted and a sentence, he for example the court held that a magis- SA 581 (CC) at paras 27-8; S v Rudman considered excessive was once again im- trate’s failure to allow an accused to call and Another; S v Mthwana 1992 (1) SA posed, the court deemed it prudent con- a particular witness, was serious and vi- 343 (A)). sidering the order handed down. A court of appeal is entitled to make such ‘other’ tiated the proceedings. The principles of • Admissibility admissibility must not be confused with orders as justice requires (s 322(1)(c) of the probative value of evidence. If pro- A timeous ruling on the admissibility of the Criminal Procedure Act 51 of 1977). ceedings are found not to be in accord- evidence is crucial. It sheds light on what The applicant’s conviction was not set ance with justice, the accused’s right to evidence a court may consider. This en- aside on the merits, but as a result of a fair trial (his right to adduce and chal- ables an accused to make an informed the irregularities. The Director of Public lenge evidence), is grossly violated. decision on whether to close his case or Prosecutions may decide whether the The Constitution requires all criminal not. Without a timeous ruling, which will applicant should be re-arraigned. In my trials or criminal appeals to give content act as a procedural safeguard, on all evi- mind, the CC correctly applied the prin- to ‘notions of basic fairness and justice’ dence that bears relevance to the verdict, ciples of the law of evidence. (see the S v Zuma case at para 16). The an accused may be caught unawares, court must determine what types of ir- when he can no longer do anything (see regularities are sufficiently serious to the Ndhlovu case at para 18) with refer- undermine fair trial rights. In casu, the ence to s 3(1)(c) of the Law of Evidence Dr Llewelyn Gray Curlewis BLC (UP) irregularities alleged by the applicant are Amendment Act 45 of 1988. For a fair LLB (UP) LLM (Procedural Law and to be of a nature that is impermissible trial, the applicant must know what the Law of Evidence) (UP) (Cum Laude) and vitiated the fairness of the trial. The case against him is and not be ambushed LLM (Labour Law) (UP) LLM (Com- CC refrained from engaging the issue re- by the late pronouncement on the ad- mercial Law) (Unisa) LLD (Criminal garding causation, since it merely deals missibility of the exhibits. Nobody can Law) (UP) is a legal practitioner and with settled principles. guess with any degree of accuracy what lecturer at the University of Preto- In the application for leave to appeal impact evidence – if tendered – might ria. against the sentence, reliance was placed have had on the outcome of the matter q

DE REBUS – JULY 2021 - 21 - Reconsidering a restorative justice approach in criminal By Desmond Francke court proceedings

recently read an article by John Ndlovu titled ‘Com- pensation orders in criminal proceedings’ 2018 (Aug) DR 16. I share the views of the author insofar as compensation orders in criminal proceedings are desirable as a means of repairing the harm caused by the ac- Icused’s criminal conduct. Reading the article highlighted two concerns that affect victims of crimes adversely. Firstly, I am of the opinion the provisions of s 300 of the Criminal Procedure Act 51 of 1977 (the Act) are archaic and not practical, which places an additional burden on victims of crime. Long before the separation of the court into criminal and civil divisions, many of the wrongful acts – now deemed to be crimes – were redressed solely by compensation. Compensation has always been a primary concern for victims who suffer damages. Compensation is widely recognised as ‘one of the only ways that crime victims can hold offenders directly responsible for the harm that they have caused’ (Melissa Hook and Anne Seymour ‘Offender re-entry requires attention to victim safety’ (2001) 5 The Crime Victims Report 33). Too much has been made of the criminal court’s inability to deal with compensation. There are no significant limitations in a criminal court process to preclude most claims for compensation. Criminal court procedures with a few changes can be adapted to process claims for compensation. Chapter 29 of the Act refers to restitution but is silent in so far as the procedure is concerned. Changes to the scope of victim compensation are needed to assist in the healing journey of victims and to foster their sense of fairness in the justice system. Broadening the scope of restitution provides meaningful alternatives to jail and enhances victim participation in and respect for the justice system. Criminal courts owe victims the duty of

Picture source: Gallo Images/Getty source: Picture making reasonable efforts to ascertain and award restitution for the losses caused by crime. Few victims will understand or accept the proposition that what they cannot get a criminal court to do; they might get a civil court to do. It must remain the victim’s choice. Within reasonable limits, victims should be able to apply to either court. Why force them to take further civil action if all or most of the damages can be ascertained in a criminal court? Pursuing their damages in a civil court is not always easy. Victims must start all over again. They are entirely on their own in bringing the offender to court and in proving their damages. In many respects, what some of our higher courts assume victims want does not accord with what researchers find that victims want or with this court’s experience of what victims want (see Andrew Sanders Taking Account of Victims in the Crimi- nal Justice System: A Review of the Literature (Edinburgh: The Scottish Central Research Unit 1999)). While some victims

DE REBUS – JULY 2021 - 22 - FEATURE – CRIMINAL LAW want revenge, as expressed in harsh sen- ages cannot be reasonably ascertained edgment of the harm caused on the part tences, most victims want their losses on the information immediately avail- of the offender, and attempting to reha- covered. The more victims are involved able, then at least one further hearing bilitate or heal the offender. in the system, the more the focus shifts dedicated to determining damages Restitution is a part of the punishment. from revenge to compensation, from should be held. It is of critical importance to state resti- punishment to rehabilitation (see S v Ta- • Restitution determined at time of tution is not compensation. The purpose bethe 2009 (2) SACR 62 (T)). If criminal sentence: Since the amount of a com- of a restitution order is to punish the courts had access to a more comprehen- pensation order must be taken into offender, not to compensate the victim sive means of addressing compensation, consideration in assessing the overall and/or community. A restitution order is directly from offenders and indirectly severity of the sentence, the amount a process for imposing a financial pen- through a victim compensation fund, for should be ascertained at the time of alty as part of a criminal sentence, with many victims’ compensation could be a sentencing. This may require adjourn- provision for that penalty to be paid to more satisfactory part of a sentencing ing a sentencing hearing as the police the victim and/or the community rath- plan than harsh penalties. A compre- and state may not have the neces- er than the state. (I am of the view that hensive compensation option, in many sary information. The victim’s inter- promoting of a sense of responsibility respects, serves the interests of victims, ests cannot be ignored because the in offenders, and acknowledgement of offenders, and the community. sentencing hearing moves ahead too the harm done to victims and the com- Within the following guidelines, vic- quickly. To ensure sentencing takes munity is one of the objectives of sen- tims seeking restitution should not be place in a timely manner, victims must tence. It is about restoring the damaged sent to another court to process their be notified and assisted in gathering caused). The measure of restitution is claims: the requisite information to substanti- determined, not by the loss incurred by • Ability to pay: Before imposing a large ate a claim. the victim or community, but rather by fine, the courts are bound by statute My second concern is that the legisla- reference to the fundamental principle to assess the offender’s ability to pay. ture has taken the initiative to broaden of sentencing. The requisite proportion- There is no such statutory require- the principles of restorative justice as far ality can be achieved only by a subjective ment in imposing a restitution or com- as restitution is concerned and children assessment of the gravity of the offence pensation order. The court in Vaveki v with conflict with the law is concerned. and the culpability of the offender. For S (WCC) (unreported case no A414/10, Section 74(2) of the Child Justice Act 75 that reason, a restitution order, as an ele- 3-12-2010) (Matthee AJ) said it must of 2008 reads: ment of a sentence, cannot be the result endeavour to establish whether such ‘A child justice court may consider the of an arithmetic calculation. The starting a person is in fact in a position to pay imposition of any of the following op- point for determining the quantum of such an amount at all and/or within tions as an alternative to the payment of a restitution order is the total sentence the time frames stipulated. Unlike a a fine: (which might comprise one or more of a fine, a restitution order, if not made (a) Symbolic restitution to a specified term of imprisonment, a fine, a term of part of probation, is only enforceable person, persons, group of persons or probation and a restitution order) which through civil remedies. Further, it community, charity or welfare organisa- would be proportionate to the gravity of may be paid off much later when an tion or institution; the offence and the responsibility of the offender can afford to do so. Accord- (b) Payment of compensation to a offender. ingly, large restitution orders can be specified person, persons, group of per- The constitutional justification, which ordered, despite the current inability sons or community, charity or welfare forms part of a victim-centred approach of an offender to pay. There is one im- organisation or institution where the permitting restitution orders is that portant constraint on the amount and child or his or her family is able to af- restitution is a part of the punishment. timing of a restitution order. If reha- ford this’. Where punishment is exacted in the bilitation is part of a sentencing plan, I am of the opinion the Act and, more form of a restitution order, there should the amount and timing of restitution specifically, s 300 of the Act should be be a corresponding reduction in other must not significantly undermine an amended to provide for restitution as en- forms of punishment, which might be offender’s will and capacity to pursue visaged in s 74 of the Child Justice Act. imposed. In some cases, a restitution or- rehabilitation. However, demonstrat- Parliament and the courts have acknowl- der will be a significant factor, while in ing the ability to take responsibility edged the importance of restorative and others it will be trivial, depending on the for their behaviour by compensating community justice initiatives. Reconcilia- circumstances, but it must be included victims can be an integral part of a re- tion and healing, both central objectives as a factor in the totality of the punish- habilitation plan for many offenders. of community justice, are advanced by ment imposed. Crime generally affects It is a direct, concrete action that gives restitution. Community justice practices at least three parties, namely, the vic- meaning to an apology. revive the importance of compensation tim, the community, and the offender. • Ascertainable damages: There is and call for developing new ways to com- A restorative justice approach seeks to good reason to send the parties off pensate victims for the adverse impacts remedy the adverse effects of crime in a to a civil court, if complex legal ar- of crime. If the words of Mocumie J at manner that addresses the needs of all guments are required to resolve the paras 19 and 20 in S v Mfana (FB) (un- parties involved. cause or amount of damage. There is reported case no 103/2009, 11-6-2009) Under South Africa’s current legisla- not always good reason for the crimi- (Mocumie and Molemela JJ) are to be any- tion, a child in conflict with the law may nal courts to abandon the task of as- thing more than empty words insofar as in terms of s 74(2) of the Child Justice certaining damages just because dam- they direct the acknowledgment of the Act be ordered to make payment of com- ages are not readily ascertainable. This harm done to victims and the commu- pensation to a group of persons, com- sets far too low a benchmark for what nity, the court must seek to consider the munity, charity or welfare organisation criminal courts can and should do. If broader interests those words are meant as part of restitution. In terms of the Act victims choose to pursue their dam- to encompass. Courts must focus on the an adult may not be sentenced as such ages in a criminal court, the criminal restorative goals of repairing the harms due to the Act not providing for it (see S court ought to provide restitution, if suffered by individual victims and by v Stanley (SCA) (unreported case 269/96, the cause and number of damages can the community as a whole, promoting a 27-9-1996) (Olivier JA)). be reasonably ascertained. If the dam- sense of responsibility and an acknowl- Breaking the cycle of criminal behav-

DE REBUS – JULY 2021 - 23 - FEATURE – CRIMINAL LAW iour that locks many offenders into those employed by probation or correc- sentencing to generate pivotal changes reoffending and thereby into progres- tions. It is the community that has re- in the lives of victims, offenders and sively longer jail sentences requires sponded to this need, not governments. the community, courts must be open to engaging resources that social agen- These organisations in our communi- question longstanding legal practices. If cies can bring to sentencing (treatment, ties are battling financially due to poor criminal courts shut out the voices of training, housing, literacy, financial and economy, lack of sponsorship etcetera. key participants, we cannot expect to other supports). These resources are Imposing a sentence in accordance with foster either public respect for, or ac- often required to extract the full poten- s 74(2) of the Child Justice Act will pro- ceptance of the justice system. No in- tial of sentencing as a catalyst force for vide a remedy to the concerns refer to stitution that ignores voices for change change. While the court is not a social above. survives. If we exclude victims, if we fail agency, it can provide the opportunity If criminal courts shut out the voices to directly face and respectfully explain for many social agencies to combine of key participants, we cannot expect to the principles and practices that shape their services with those of the court foster either public respect for, or ac- our processes, we will not survive as a to forge a plan that serves the interests ceptance of the justice system. valuable contributor in responding to of offenders, victims, and communi- Lastly, to generate viable solutions, the harm crime imposes. ties. Government resources are, how- courts must be open to appreciate and ever, depleted, overcrowded, and not respond to the dynamics and needs in functioning optimally due to various each case. Doing so will require push- constraints, which include budget and ing, bending and, at times, breaking personal constraints. Concerned people longstanding attitudes and notions Desmond Francke BIuris (UWC) is a in the community are far more knowl- about sentencing practices, and espe- magistrate in Ladysmith. edgeable about the effect of crimes than cially about victim participation. For q

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Navigating the way to justice – a discussion on truth, justice and reconciliation

been found (see Nkadimeng and Others cessor to his position, but he accepted a v National Director of Public Prosecu- monetary out-of-court settlement from tions and Others (GP) (unreported case no the Zuma administration. 32709/07, 12-12-2008) (Legodi J)). Section 179(1) – (4) of the Constitution The case lifted the veil on unconsti- and s 32 of the National Prosecuting Au- tutional presidential interference in the thority Act 32 of 1998 (NPA Act) guaran- modes of existence and operations of the tee the independence of the NDPP and the organs of state power. The supporting NPA. affidavit of advocate Vusumzi Pikoli, the Former President Mbeki, on receipt of former National Director of Public Pros- the TRC report announced in Parliament ecutions (NDPP), helped lift the veil. that the prosecution of perpetrators who On 23 September 2007, former Presi- did not participate in the TRC process dent Thabo Mbeki suspended Mr Pikoli was to be left to the NPA as part of the from duty because he had authorised the ‘normal legal processes’. By prosecution of a former commissioner of On 23 February 2004, the Director-Gen- Haroon police on corruption charges. Mr Pikoli erals’ Forum appointed a Task Team to Aziz had also decided to pursue prosecutions report on the mechanism to effect presi- of Apartheid-era perpetrators who had dential objectives. On 1 February 2005, not applied for amnesty or had been de- the Priority Crimes Litigation Unit (PCLU) nied amnesty by the TRC. of the NPA, had been tasked with han- he Truth and Reconciliation In 2008, the Ginwala Commission’s dling TRC cases under advocate Anton Commission’s (TRC) Final Re- Report of the Inquiry into the Fitness of Ackermann SC. port in 2003 referred about Advocate VP Pikoli to hold the Office of In November 2004, Dr Silas Ramaite 300 cases to the National Pros- National Director of Public Prosecutions SC, the Acting NDPP, had decided to prosecuting Authority (NPA) for found that the government had failed to ecute three Security Branch members, Tinvestigation and prosecution. Nothing justify Mr Pikoli’s suspension and that he namely, Colonel CL Smith, Captain GJLH much happened until 2007 when Thembi- was a fit and proper person to hold the Otto, and Captain HJ van Staden for the sile Nkadimeng took legal action, relating NDPP position. However, acting President attempted murder of Reverend Frank to the kidnapping, torture, and murder Kgalema Mothlanthe dismissed Mr Pikoli Chikane in 1989. However, was ordered of 23-year-old African National Congress from his post. In 2009, Mr Pikoli obtained to suspend all TRC cases pending new (ANC)/uMkhonto we Sizwe operative No- a High Court order that restrained Presi- guidelines for TRC cases. kuthula Simelane. Her remains had not dent Jacob Zuma from appointing a suc- On 1 December 2005, Parliament

DE REBUS – JULY 2021 - 26 - FEATURE – Administrative LAW passed the amendments to the Prosecu- ties in pursuit of ordinary citizens as cov- amnesty would elicit information about tion Policy, which permitted backdoor er. The Scorpions were created out of the the past and find out ‘the truth through amnesty, plus the launch of Former Presi- remnants of the Security Branch, the Brix- amnesty from criminal liability’ (KL Mar- dent Mbeki’s special dispensation on po- ton Murder and Robbery Unit, and ‘ter- tin ‘Tackling the Question of Legitimacy litical pardons. rorism trial’ prosecutors with unchecked in Transitional Justice: Steve Biko and the In February 2006, Mr Pikoli authorised investigative and prosecutorial powers. Post-Apartheid Reconciliation Process in the prosecution of the Security Branch There were not only costs to the state South Africa’ 2015 CUREJ). members for attempted murder. They in billions of Rands but also in social and He stated: ‘The families of those unlaw- used legal chicanery to escape prosecu- psychological costs to ordinary citizens. fully tortured, maimed, or traumatised tion by lying that they were indemnified The human rights abuse was not a theory become more empowered to discover the in terms of the Indemnity Act 35 of 1990 to its victims and survivors, but it bit into truth, the perpetrators become exposed though it was repealed in 1995. their core. The nation went into a mute to opportunities to obtain relief from the Simultaneously, former Police Com- mode. burden of guilt … transforming anger missioner, Jackie Selebi, objected to Ack- and grief into a mature understanding ermann’s participation in PCLU on the How did the nobility of the and creating the emotional and structur- alleged grounds that Ackerman had the Constitution mutate into al climate essential for the “reconstruc- intention to prosecute the ANC leader- ignobility? tion and reconciliation” … [for the] pain- ship. ful objectives of the amnesty articulated In mid-2006 there was a meeting in The legal basis of the mutation can be in the epilogue.’ the Presidency between Pikoli, Chikane, traced back to the case of Azanian Peo- On civil liability, he argued that there is Director Generals of Justice and National ples Organisation (AZAPO) and Others v not anything in the wording of the Con- Intelligence Agency, Selebi, the Secretary President of the Republic of South Africa stitution that would grant amnesty from of the Defence Secretariat, and Mr Loyiso and Others 1996 (8) BCLR 1015 (CC). The criminal prosecution but would not grant Jafta. Mr Selebi repeated his objection to second applicant was Nontsikelelo Biko. the same for civil damages. He made a Mr Ackermann. The application was for an order de- fine distinction and said that acts and Later in 2006, Ms Thoko Didiza, the claring s 20(7) of the Promotion of Na- omissions are in addition to offences in Acting Justice Minister, summoned Mr tional Unity and Reconciliation Act 34 the epilogue, which shows that amnesty Pikoli to a meeting at Minister Zola Skw- of 1995 unconstitutional. The section expands beyond solely criminal liability. eyiya’s residence. Present were the Minis- permits the TRC Amnesty Committee to On state’s civil liability, he argued that ter of Safety and Security and the Minister grant amnesty to perpetrators. They also the epilogue was open-ended on the of Defence, and Mr Jafta. On the agenda argued that the state was obliged under forms of amnesty and that Parliament was the Chikane case. The meeting ex- international law to prosecute perpetra- had the right to protect the state from pressed its fear that the Chikane pros- tors of human rights violations and that civil damages. He had in mind the limita- ecution would open the door to prosecu- authorising amnesty to the perpetrators tion of rights clause in the Constitution tions of ANC members for their pre-1994 was a breach of the Geneva Conventions by law of general application (s 33(1)). alleged crimes. of 1949. He dismissed the arguments based on Also in 2006, a further meeting was Judge Ismail Mahomed DP delivered international law as irrelevant to the ap- held at the Office of the Presidency where the majority judgment. plication. it was decided that the Task Team would He established the legality of amnesty Justice Mahomed acted, primarily, in await inputs from other departments. provision of the Constitution by using the interests of the state and, secondar- On 25 October 2006, the Task Team the three criteria of criminal liability, civil ily, in those of victims. This is what also meeting received an audit report on all liability, and the state’s civil liability. He used to happen under Apartheid ‘justice’. PCLU cases from Mr Ackermann. On 6 No- relied on the provision for amnesty on It took one private initiative by Imtiaz vember 2006, the Task Team discussed the postamble to the Interim Constitu- Cajee in the Ahmed Timol re-inquest 21 the Chikane matter when Mr J Lekalakala tion: ‘In order to advance such reconcili- years to obtain justice for a victim and (of the South African Police Service) re- ation and reconstruction, amnesty shall restore his human dignity after he was ported that Mr Selebi believed that Chi- be granted in respect of acts, omissions killed in detention 46 years earlier and kane was not interested in prosecution and offences associated with political ob- 27 years after the birth of democracy. though Chikane had clearly left the mat- jectives’. In 2017, Parliament in welcoming ter to the NPA. In December 2006, Mr Se- He made reconciliation and reconstruc- the new Timol verdict expressed that it lebi further alleged that Chikane had not tion the central political aim of the ANC ‘trusts that the verdict will lead to the been consulted. government, against the (unstated) back- [NPA] prosecuting former members of On 17 August 2007, while Mr Pikoli was drop of the ANC’s Reconstruction and the police, who sought to evade justice on compassionate leave, Adriaan Vlok, Development Programme and the ‘sunset through perpetuating lies’. It also sup- Johann van der Merwe, and the three Se- clause’. He uses ‘epilogue’ 26 times and ported the private ‘campaign towards a curity Branch members were successfully ‘amnesty’ 94 times in the judgment. wider programme that seeks justice for prosecuted for the attempted murder of In making an argument to close the other political activists who disappeared Chikane but they were given suspended book on the past he refers to the epi- at the behest of the apartheid regime.’ sentences. logue as an eloquent expression of this The political interference was further Mr Pikoli considered the presidential fundamental philosophy. He also gives confirmed by two senior NPA officials interference in his work as ‘unwarranted amnesty equal footing with the right of in sworn affidavits filed on behalf of the interference in my constitutional duty to individuals to have disputes settled by an NDPP in Rodrigues v National Director of prosecute without fear, favour or preju- impartial forum. Public Prosecutions of South Africa and dice’. It ‘impinged upon my conscience On criminal liability, he argues that Others (Sooka and others as amici curiae) and my oath of office’. The interference amnesty is necessary for the discovery of [2019] 3 All SA 962 (GJ), as an outcome was tantamount to criminal obstruction truth and reconciliation but there is in- of the Timol re-inquest. The Full Bench in terms of the NPA Act. sufficient evidence to charge individuals. in that matter criticised the NPA for suc- The NPA/Scorpions and (later the State He encouraged victims and survivors ‘to cumbing to such pressure and not adher- Security Agency) became an open field for unburden their grief publicly’ in a new na- ing to its constitutional and legal obliga- rogue units to indulge in criminal activi- tion. He also argued that the incentive of tions (paras 55 – 65).

DE REBUS – JULY 2021 - 27 - FEATURE – Administrative LAW

Did Justice Mahomed not lect submissions and re-evaluate as the system from a judicial colony of medi- TRC did.’ eval Rome, Holland, and England to a err in equating his level The Department of Justice and Consti- liberated judicial space by creating new of noble consciousness to tutional Development controls the Presi- case laws based on the Constitution? that of victims and of dent’s Fund, supposedly for victims. It The universal lesson from the conse- perpetrators? has a cash asset of R 1 686 628 000, of quences of the Justice Mahomed judg- which R 6 million is invested in ‘Isibaya’ ment is that when good people are The TRC received testimonies of about and the rest in the Public Investment exposed to corruption, they have the po- 20 000 victims. About 7 500 perpetra- Corporation (PIC) (President’s Fund An- tential to become corrupt. tors applied for amnesty, of whom 1 500 nual Report 2019/20 at p 22). Had the judgment anticipated the po- were granted amnesty. A victims’ initiative called the ‘Apart- tentiality of presidents for unconstitu- Contrast the 7 500 against the 34 378 heid Era Victims’ Families and Support tional conduct, would there have been SAP members and the 18 000 Permanent Group’ (AVFG), after the historic victory a need for the Judicial Commission of Force SADF members (1970) with a com- in the Timol re-inquest, is continuing the Inquiry into Allegations of State Cap- bined budget of R 1,58 billion (1977). To- struggle for legal justice as a component ture, Corruption and Fraud in the Pub- talitarianism provided the atmosphere of transitional justice from Apartheid to lic Sector including Organs of State (the for crimes against humanity. democracy. There is a need for the legal Commission)? Should the Constitutional In the TRC Amnesty hearing of Dan- community to get involved in the mas- Court not sanction presidents for indulg- iel Siebert (1997), the legal counsel for sification of legal justice. Otherwise, hu- ing in unconstitutional conduct? the Biko family established a prima facie man rights projects will remain vanity Justice Mahomed when crafting the case of the murder of Steve Biko not only projects. idealistic judgment, did he have the against Siebert but also against his four Mbekis, Mothlanthes, and Zumas or the accomplices without the need for rigor- Were the families of Steve Pikolis in mind? ous application of the law of inferential Biko, Imam Haron, and Did he succeed in the historic task of evidence. However, in 2003 the Depart- others justified in their laying the foundation of new jurispru- ment of Justice announced that it would dence in a new democratic nation? not pursue criminal prosecution because refusal to participate in of ‘insufficient evidence’. In 2020, the TRC proceedings? Haroon Aziz is a retired physicist, Department of Justice reiterated that the The judgment aroused fears and hopes. author, and researcher and is part government would be financially hard- While the fears remain, the hopes lie in of the leadership collective of the pressed to restart the process. It said ashes. AVFG. Mr Aziz writes in his personal ‘[i]f you reopen the process more than 20 Should judges and magistrates not be capacity. years later, we have to reset the TRC, col- seen to transform the criminal justice q

FSP Number 33621

DE REBUS – JULY 2021 - 28 - LAW REPORTS THE LAW REPORTS

May 2021 (3) South African Law Reports (pp 1 – 321); May 2021 (1) South African Criminal Law Reports (pp 463 – 578)

This column discusses judgments as and when they are published in the South African Law Reports, the All South African Law Reports, the South African Criminal Law Re- ports and the Butterworths Constitutional Law Reports. Readers should note that some reported judgments may have been overruled or overturned on appeal or have an appeal pending against them: Readers should not rely on By Johan Botha and Gideon Pienaar (seated); a judgment discussed here without checking on that pos- Joshua Mendelsohn and Simon Pietersen (standing). sibility – Editor.

Abbreviations August 2017 instituted proceedings for from the delay was substantial as Altech the review of its decisions to award the and Thobela had incurred R 610 million CAC: Competition Appeal Court tender to Altech and to conclude the opin costs by January 2018 and by the time CC: Constitutional Court erations and loan agreements. the review was heard in May 2018, 34% GP: Gauteng Division, Pretoria That review was heard in May 2018, of the network had already been built, SCA: Supreme Court of Appeal and in July 2019 the GP set aside the after which the project was frozen. The WCC: Western Cape Division, Cape Town decisions and declared the operations City’s conduct left the appellants finan- and loan agreements unenforceable. In cially exposed. Its failure to warn them Administrative review September 2019 the GP granted leave of the irregularities in the process and Delay by a municipality in bringing to appeal to the SCA. The issue before the likelihood that the transactions a review of its own decision – was it the court was whether the City’s delay would be impugned, was unconscion- reasonable, and if not, nonetheless ex- in bringing the review was unreasonable able. There was no escape from the facts: cusable? In Altech Radio Holdings (Pty) and, if so, whether it could be condoned. The delay was stark and the City’s egre- Ltd and Others v Tshwane City 2021 The SCA, per Ponnan JA (Wallis JA, gious conduct even starker. Much of this (3) SA 25 (SCA), the Tshwane City Mu- Dambuza JA, Molemela JA and Suther- was ignored by the GP, which had been nicipality (the City) sought a legality re- land AJA concurring), began by alluding far too receptive to the City’s case and view of its own decision. The facts were to the recent emergence of state self-re- lost sight of the fact that it was engaged as follows: In June 2015 the City, then view as a subspecies of review and point- in a multi-factor and context-sensitive under the rule of the African National ing out that its use in public procure- inquiry in which a wide range of factors Congress, awarded a tender to the first ment cases was particularly worrisome. had to be weighed before it exercised its appellant (Altech) for the construction These were invariably legality reviews, discretion. It should not have condoned of a fibre Internet network for the City. so that the time constraints imposed by the delay. The appeal was upheld with Pursuant thereto, the City incorporated the reviews under the Promotion of Ad- costs. the second appellant company (Thob- ministrative Justice Act 3 of 2000 (PAJA) ela), which would contract with Altech did not apply. Either way, the objective Appeals: Execution to perform the construction, and which of self-review should be the promotion Whether an order granting leave to ex- would afterwards operate the network. of accountable government, not the eva- ecute is always suspended on lodging To this end, the City, in May 2016 con- sion of constitutional obligations. Here, of an urgent appeal against such ex- cluded an agreement with Thobela for the City had apparently invoked an ad- ecution order: The SCA, before hearing the construction and operation of the ministrative-law remedy to strike a bet- the matter of Knoop NO and Another v network. Thereafter, in August 2016, an ter bargain for itself. It wanted to use the Gupta and Another 2021 (3) SA 88 (SCA) agreement was entered into between the review to evade, rather than assert, its (see ‘companies’ law report below), was City, Absa Bank Ltd and Thobela under constitutional obligations. required to hear an appeal in related in- which Absa would loan sums of money The SCA found that the City’s delay in terlocutory proceedings: The GP, when to Thobela to meet its obligations to the bringing the review – ten months from granting the business practitioners leave City under its build-and-operate agree- the time it knew all the facts supporting to appeal, also granted the respondent, ment with the City. review and proceeding with it – was in- Gupta, leave in terms of s 18(1) and (3) of Meanwhile, in parallel to the conclu- deed unreasonable. In the light of this, the Superior Courts Act 10 of 2013 (the sion of the loan agreement, municipal the City’s explanation that it needed Act), to immediately execute (execution elections brought the City under the con- time to investigate the tender rang hol- order) the order removing the business trol of the Democratic Alliance, which in low. In addition, the prejudice flowing practitioners. The business practitioners

DE REBUS – JULY 2021 - 29 - LAW REPORTS

(as appellants) were prompted to lodge immediate implementation of the re- that the GP had, by relying on irrelevant an extremely urgent appeal to the SCA moval order necessary. The SCA conse- considerations and issues not raised against such execution order, which they quently upheld the urgent appeal. in the papers, erred in failing to exam- were entitled to do by virtue of s 18(4) ine whether the evidence supported Ms (ii) and (iii) of the Act. The judgment in Companies Gupta’s case. Every ground advanced by that matter, referred to here, was cited the GP in support of its conclusion that Grounds for removal of directors: as Knoop NO and Another v Gupta (Ex- Knoop and Klopper should be removed Knoop NO and Another v Gupta and ecution) 2021 (3) SA 135 (SCA). was unfounded. In view of this the SCA Another 2021 (3) SA 88 (SCA) dealt with Of significance was the following: In upheld the appeal and replaced the GP’s some of the business affairs of the in- terms of s 18(4)(iv) of the Act, the op- order with one dismissing Ms Gupta’s famous Gupta clan currently under in- eration of an execution order itself is application. vestigation by the Zondo Commission of suspended pending the outcome of an During the course of its judgment, the Inquiry into Allegations of State Capture. urgent appeal against that order. This SCA investigated – Because of the myriad allegations made should have meant that the lodging of • the discretion of a court to remove a against the Guptas, companies run by the appeal under s 18(4)(ii) in effect sus- business rescue practitioner when one them became ‘unbanked’ because banks pended the original removal order. How- of the grounds in s 139(2) of the Com- were not prepared to deal with them. ever, here, the directors of Islandsite and panies Act was established; Two of these companies, Islandsite and Confident Concept in fact removed the Confident Concept, bankrupted by this • the general principles applying to re- appellants as business rescue practition- turn of events, were placed under super- moval of business rescue practitioners and appointed new ones, who pur- vision, and went into voluntary business ers; ported to subsequently terminate busi- rescue. The appellants, Messrs Knoop • the grounds of incompetence or fail- ness rescue proceedings. Justification and Klopper, were appointed as their ure to perform their duties (s 139(2) for such conduct was sought in the ex- business rescue practitioners. As such, (e)); ecution order granted by the High Court. they were obliged to conduct themselves • failure to exercise proper care (s That order expressly (in a so-called ‘sus- as officers of the court and company di- 139(2)(b)); pension order’) provided that ‘[a]ny pre- rectors under s 140(3) of the Companies • engagement in illegal acts (s 139(2)(c)); sent or future appeals, applications and Act 71 of 2008 and were subject to re- • conflict of interest and lack of inde- petitions by any party relating to this moval for various forms of misconduct pendence (s 139(2)(e)); judgment shall not suspend the opera- under s 139(2) of the same Act. • the implications of a business rescue tion’ of the original removal order. The respondent, Ms Chetali Gupta and practitioner being an officer of the The SCA, per Wallis JA (Mbha JA, her husband Mr Atul Gupta were, to- court (s 140(3)(a)); and Mocumie JA, Eksteen AJA and Mabindla- gether with other members of the Gupta • subject to the duties of a director (s Boqwana AJA concurring), before ad- family, the shareholders in the compa- 140(3)(b)). dressing the merits of the appeal, saw nies. After the appointment of Knoop it fit to address the validity of the GP’s and Klopper, Ms Gupta applied for above ‘suspension order’. It held that Competition law their removal under s 139(2) on various it was invalid in the face of s 18(4)(iv), Prohibited practice complaint in the grounds. These included – whose wording was explicit and allowed removals business: strict time bar infor no misunderstanding. The court held • their staff were incompetent; capable of condonation? In Competition ‘the operation of an execution order was • they ignored and undermined the Commission of South Africa v Pickfords suspended pending the outcome of an business rescue plans; Removals SA (Pty) Ltd 2021 (3) SA 1 (CC) urgent appeal against that order’. That, • they ignored offers for assets; and the CC investigated the nature of the the SCA stressed, was the statutory posi- • they insisted on sales by auction rath- time bar in s 67(1) of the Competition tion and a court could no more grant an er than private agreement. Act 89 of 1998 (the Act) in order to de- order contrary to a statute than it could She made a string of other allegations cide whether it was a prescription provi- order a party to perform an illegal act. against them, inter alia that they failed sion or a procedural bar, and what event The SCA added that the inherent power to pay value added tax (VAT), were mala had triggered it. Section 67(1) provides of a court to regulate its own procedure fide, careless and conflicted, and did not that a complaint may not be referred to could not be used to override the pro- conduct themselves like officers of the the Companies Tribunal (the Tribunal) if visions of a statute directly governing court or company directors. it was initiated more than three years af- the issue in question. The SCA went on The GP upheld the application, or- ter the alleged anti-competitive conduct to hold that, following from the fact of dered the practitioners removed, and had ceased. the nullity of the suspension order, the granted them leave to appeal to the SCA. The applicant, the Competition Com- execution order was suspended pending In upholding the appeal, the SCA, per mission, had referred a complaint re- this appeal, and the removal order was Wallis JA (Mbha JA, Mocumie JA, Eksteen garding collusive tendering by furniture not yet effective. In turn, the appoint- AJA and Mabindla-Boqwana AJA concur- removal firm Pickfords and several of its ment of the new business rescue prac- ring), pointed out that the allegations competitors, to the Tribunal. The issue titioners, and the latter’s termination of against Knoop and Klopper had to be between the Commission and Pickfords business rescue proceedings, were also substantiated by evidence. They had to arose pursuant to an exception raised invalid. know what they were being charged with by Pickfords before the Tribunal to the On the merits, the SCA found there and how their conduct of the business effect that most of the counts against it were no exceptional circumstances pre- rescue operations was said to be defi- were time-barred. sent justifying the granting of leave to cient. However, the judgment of the GP The Commission alleged that Pick- execute. When dealing with someone’s contained no analysis of the case made fords and other firms had engaged in removal from an office such as that of by Ms Gupta, nor did it make any fac- ‘cover quoting’. This was the illegal prac- a business rescue practitioner, the mere tual findings about her allegations. To tice – also known as ‘bid rigging’ – of fact that the court rules that they should remedy this, the SCA launched its own producing artificially high quotes from no longer fill that office does not in itself analysis of the facts. The SCA ruled that competitors to win a contract. The Com- constitute an exceptional circumstance. the facts failed to support the compe- mission contended that Pickfords had There had to be something more in the tence, business rescue plan, competitive requested and provided cover quotes in circumstances of the case that made the offer or VAT complaints. The SCA found response to various requests for quota-

DE REBUS – JULY 2021 - 30 -

LAW REPORTS tions from customers going as far back merely an amendment of the 2010 ini- cameras were only able to pick up the as 2008. The Commission alleged that tiation, which clearly stated that the in- registration number of the trailer, which the practice amounted to illegal price vestigation was ‘ongoing’. Moreover, the obscured the rear registration plate of fixing. reference to ‘the main companies impli- the vehicle being driven. This had led to Central to the case was the timeline of cated’ foreshadowed the possible addi- them targeting the respondents for pros- the complaint against Pickfords. It was tion of other firms at a later stage. ecution by virtue of being the owners of as follows: In November 2010, the Com- The CC further held that s 67(1) is a the trailers involved. mission initiated a complaint (the 2010 procedural time-bar that was capable of Their application was successful lead- initiation) that cited several removal condonation. The CAC erred in finding ing to the Minister taking the matter on firms, indicating that they were ‘the that s 67(1) is a limitation or expiry pe- appeal. The SCA, per Petse DP (Dambuza main companies implicated’ but which riod and imposed an absolute, substan- JA, Van der Merwe JA, Weiner AJA and did not mention Pickfords. In a further tive time-bar. Such an absolute time-bar Goosen AJA concurring), found that the initiation in June 2011, Pickfords was would subvert the Commission’s role as word ‘drive’ was defined in the Act with added as a respondent (the 2011 initia- watchdog over transgressions of the Act reference to the meaning of the word tion). The Commission then filed a pro- and inhibit the public’s right of access to ‘driver’ as defined, and ‘driver’ meant hibited practice (price fixing) complaint the Tribunal, the CAC and the courts in someone who drove or attempted to against Pickfords in 2015 (the referral). general. On the other hand, an interpre- drive any vehicle and included someone Pickfords excepted to the referral on tation of s 67(1) as a procedural time- who rode or attempted to ride a pedal the grounds that, of the 37 counts of pro- bar would be more in line with the Bill cycle or lead any draught, pack or sad- hibited practices levelled against it in the of Rights, constitute a lesser infringe- dle animal or herd or flock of animals. 2011 initiation, 14 took place more than ment on the right of access to the courts, Thus, the element of ‘driving’ in relation three years earlier, and were therefore and also meet the rationality test. The to a trailer in tow was lacking and it was time-barred under s 67(1) of the Act. The CC pointed out that Pickfords’ conten- illogical to speak of such when in fact question was thus which referral, 2010 tion that it would offend the principle what happened was that it was the tow- or 2011, had triggered the running of the of legality and defeat the purpose of the ing vehicle that was being driven when it three-year period. The Tribunal found in Act to permit the Commission ‘to turn was propelled by manipulating its con- favour of Pickfords that its inclusion as a back the clock’ did not, in the light of the trols with the trailer in tow. A trailer, not respondent in the 2011 referral was not above, bear scrutiny. being self-propelled, had no engine or an amendment of the 2010 referral, but The CC accordingly upheld the appeal, controls to manipulate its speed and di- rather a self-standing initiation. The Tri- setting aside the order of the CAC and rection independently of the towing ve- bunal ruled that its powers of condona- replacing it with an order dismissing hicle. The court further noted that it was tion did not extend to s 67(1). Pickford’s exception. difficult to conceive of a situation where In an appeal, the CAC found that while See also: one could truly speak of a trailer being the 2011 referral was merely an amend- • Tshepo Mashile ‘Remove, withdraw driven on a public road and that s 73(1) ment of the 2010 referral, Pickfords nev- or postpone? The principle of double could only apply to a vehicle that was it- ertheless became a named party only in jeopardy in competition law’ 2021 self capable of being driven. It therefore 2011. The CAC held that the purpose (April) DR 24. followed that s 73(1) was not applicable of s 67(1) was to bar investigations into • Meshack Fhatuwani Netshithuthuni to a trailer. The decision of the WCC was practices that had ceased and no longer ‘An absolute or flexible restriction: accordingly upheld, and the appeal was endangered the public weal. It agreed Can prohibited practices be pros- dismissed with costs. with the Tribunal that the time bar in ecuted three years after the practice s 67(1) was absolute and incapable of ceased?’ 2021 (Jan/Feb) DR 37. Other criminal law cases condonation. Apart from the cases and material dealt In an application for leave to appeal with above, the material under review to the CC, Pickfords argued that permit- Criminal law also contained cases dealing with – ting condonation would allow the Com- The presumption that the owner was mission to ‘turn back the clock’, thereby the driver of a vehicle is not applicable • constitutional validity of legislation; defeating the purpose of s 67(1) and of- to an owner of a trailer hired out to cus- • function of court administrative staff; fending the principle of legality. tomer: In National Minister of Transport • imposition of prescribed minimum The CC, per Majiedt J (Mogoeng v Brackenfell Trailer Hire (Pty) Ltd and sentences; and Others 2021 (1) SACR 463 (SCA) a trail- CJ, Jafta J, Khampepe J, Madlanga J, • malicious prosecution. Mathopo AJ, Mhlantla J, Theron J, Tshiqi er-for-hire business (the respondents), J and Victor AJ concurring) held, first, had experienced problems with the na- that it had jurisdiction over the matter tional application of the presumption in Motor vehicle accidents because the interpretation of s 67(1), one s 73(1) of the National Road Traffic Act Road Accident Fund’s (RAF’s) liabil- way or the other, would have a material 93 of 1996 (the Act). As owners, they ity where accident happened in under- effect on the constitutional rights of the were presumed in terms of the subsec- ground mine: In Bangiwe v Road Accident Commission and the public to access the tion to have driven the trailers in a man- Fund 2021 (3) SA 172 (GP) the plaintiff courts. This was because a finding that ner that contravened the provisions of claimed damages from the defendant s 67(1) was a proper prescription provi- the Act, whereas the trailers in question (the RAF) for injuries sustained in a mo- sion would result in an absolute bar on had in fact been driven by their custom- tor vehicle accident, which occurred in the initiation of a complaint when it was ers. Their frustrations had caused them an underground mine. (He was a passen- made more than three years after the to launch an application in the WCC for ger on the back of a bakkie, falling off practice had ceased. an order, inter alia, declaring that the when the insured driver lost control of The CC proceeded to find that the presumption was not applicable to trail- the vehicle due to negligent driving.) 2010 initiation was the trigger event, ers. This was opposed by the National Section 17 of the Road Accident Fund and that the CAC’s contrary finding that Minister of Transport (the appellant). It Act 56 of 1996 (the Act) provides for the it was the 2011 initiation overlooked the appeared that the traffic-enforcement liability of Road Accident Fund and its Act’s emphasis on the prohibited prac- agencies had experienced difficulties in agents for ‘any loss or damage … suf- tice over of the identities of the parties establishing the owners of the motor fered as a result of any bodily injury … implicated in it. The 2011 initiation was vehicles in circumstances where their caused by or arising from the driving of

DE REBUS – JULY 2021 - 32 - a motor vehicle by any person at any Tribunal) against the RAFs’ rejection of attacked. Also, noted the GP, there was place within the Republic’ (the court’s her serious-injury-assessment form in no procedure in the regulations by which italics). The RAF raised as a defence her claim for general damages. The day further reports, or submissions could be that since the collision and/or accident before the hearing of the appeal, she presented to the HPCSA. Without such a occurred underground in a mine, it fell served additional medico-legal reports procedure in place, it could not be said outside s 17’s ambit. This, it contended, on the second respondent, the Act- that an applicant who desired to place was because ‘any place’ in s 17 did not ing Registrar of the Health Professions further evidence before the Tribunal, mean ‘anywhere’, such as underground Council of South Africa (HPCSA). That may not do so or should be prevented in a mine. these were not forwarded to and con- from doing so. Accordingly, the HPCSA’s In the adjudication of this defence as sidered by the Tribunal when it rejected decision not to present the additional a separated legal issue, Kumalo AJ held her appeal, formed the basis of her com- medico-legal reports to the RAF in the that the use of the words ‘any place plaint in her application to review the absence of a condonation application, within the Republic’ in s 17 was delib- Tribunal’s rejection of her appeal, for was wrong in law. It was also procedur- erate and meant just that. The Act was lack of procedural fairness under s 3 of ally unfair in that the audi alteram rule social legislation, aimed at the widest the Promotion of Administrative Justice and the provisions of s 3 of PAJA were ig- possible protection and compensation Act 3 of 2000 (PAJA). nored or not applied in a fair and flexible against loss and damages for the negli- In opposition the respondents raised manner. The court, therefore, concluded gent driving of a motor vehicle. It would a point in limine, that she failed to ap- that HPCSA’s approach, on its own, was therefore be artificial to limit the RAF’s ply for condonation for the late filing procedurally unfair and rendered the liability simply on the basis that the ac- of the medico-legal reports. This, it was Tribunal’s decision invalid and subject cident happened underground in a mine argued, amounted to non-compliance to be reviewed and set aside. In addition, when the Act stated, in no uncertain with the requirements of reg 3(4) of the the conduct of the Tribunal – in failing terms, that accident must have hap- regulations to the Act, which provides to consider the additional medico-legal pened at ‘any place within the Republic’. for a condonation procedure regarding a reports, which the applicant had made The GP accordingly ordered that the RAF dispute as to the rejection of the serious available – was procedurally unfair. The would be liable for Mr Bangiwe’s agreed injury assessment form by the RAF. decisions were accordingly held to be in- or proven damages. The GP, per Kubushi J, held that the valid and set aside. purpose of reg 3(4) was to achieve the Procedural fairness in appeal against timeous lodging of a dispute regard- Practice: Summary rejection of claimant’s serious-injury- ing serious injury assessments; not to assessment form: In Van Aswegen v prevent, on pain of having to apply for judgment Health Professions Council of South Af- condonation, the advancement of fur- Whether an application for summary rica and Others 2021 (3) SA 238 (GP) ther submissions, medical reports, and judgment can be granted in terms of the applicant appealed to the Road Ac- opinions in support of the grounds on the amended r 32 where the defendant cident Fund (RAF) Appeal Tribunal (the which the HPCSA’s rejection was being amends the initial plea after the ap-

CMY

DE REBUS – JULY 2021 - 33 - LAW REPORTS plication for summary judgment had properly before it, it would decline to amended plea, should such an applica- already commenced: The matter cited, deal with the matter under r 32, owing tion for amendment be allowed. Belrex 95 CC v Barday 2021 (3) SA 178 to a lacuna in the amended rules to ad- (WCC), concerned an application for equately address the situation presented Other cases summary judgment brought under the here, where the defendant had elected Apart from the cases dealt with above, recently amended r 32 of the Uniform after the commencement of the applica- the material under review also contained Rules of Court, which now required a tion for summary judgment, to amend cases dealing with – plaintiff to wait for a plea before apply- its plea and base its opposing affidavit ing for summary judgment. In the appli- on such amended plea. In explanation, • asset forfeiture and the freezing of cation, heard in the WCC before Henney the WCC held that, on the one hand, to third-party assets; J, the plaintiff had sought from the de- proceed to summary judgment would • contracts contrary to statute and the fendant, an attorney whom it had man- place the plaintiff at a disadvantage obligation of the court to raise the is- dated to sell an immovable property, since the rules confined the plaintiff to sue of legality; payment of what it believed was owing what they had presented in the found- • judicial case management in the Gaut- out of the purchase price (which following affidavit and did not allow them to eng Local Division, Johannesburg; ing the sale of the property was paid present further evidence, to explain why • the constitutionality of legislation directly into the defendant’s trust ac- the defences as pleaded in the amend- concerning the interception of tel- count), as well as a detailed statement of ed plea did not raise any issue for trial. ecommunications; account. The plaintiff applied for sum- On the other hand, the court could not • the date of dissolution of a company mary judgment on 9 July 2020, after hav- simply ignore the amended plea and op- being wound up; ing received the defendant’s plea. Later, posing affidavit: To do so would defeat • the obligation to pay interest on value- on 4 August 2020, the defendant filed the purpose of the amended rule, which added tax; and a notice of intention to amend his plea required that the nature and grounds of • the supply of electricity to a defaulting and introduce a special plea, and then the defence and the material facts relied municipality. on 7 August 2020, filed his opposing af- on in the affidavit be in harmony with fidavit, based on such amended plea and the allegations in the plea; furthermore, special plea. The matter was heard 13 a defendant was entitled to amend its August 2020. plea any time before judgment. Gideon Pienaar BA LLB (Stell) is a The WCC found that it could not grant The WCC’s solution was to rule that Senior Editor, Joshua Mendelsohn an order in respect of the summary the defendant’s notice of amendment BA LLB (UCT) LLM (Cornell), Johan judgment application, holding that the should take effect in terms of r 28(2) Botha BA LLB (Stell) and Simon Piet- amended plea was not yet ripe for ad- as of the date of the judgment, for the ersen BBusSc LLB (UCT) are editors judication given non-compliance with plaintiff to exercise its rights in terms of at Juta and Company in Cape Town. r 28(2). However, the WCC went on to the rule. The WCC granted the plaintiff add that, even were the amended plea leave to bring a fresh application on the q

Minister of Home Affairs may delegate any power conferred to them, including the power to deprive citizenship under the Citizenship Act

Nwafor v Minister of Home Affairs and Others (SCA) (unreported case no 1363/2019, 12-5-2021) (Mbha JA (Zondi and Mbatha JJA, By Gorven and Poyo-Dlwati AJJA concurring)) Kgomotso Ramotsho

n the Nwafor case, the applicant, deprive the applicant and his minor chil- manent residence permit by means Anthony Okey Nwafor, approached dren of their South African citizenship. of a false representation by conceal- the Supreme Court of Appeal (SCA) This was after the Department of ing the material fact that he was still to seek leave to appeal a judgment Home Affairs (the Department), sent a married to Mrs Nwafor, who he mar- by Potterill J, that was handed down letter on 13 April 2016, addressed to the ried in Nigeria on 1 March 2003, when Iin the Gauteng Division of the High Court applicant and his family, advising that purported to marry Ms Vilankulo in in Pretoria on 27 June 2019. Potterill J the Minister of Home Affairs intended South Africa on 25 April 2003, and dismissed the applicant’s application to deprive him and his minor children of while presenting himself as a bachelor for an order to review and set aside the their South African citizenship. The min- at the time. Minister of Home Affairs (first respond- ister’s intended action was based on the • That the applicant’s marriage to Ms ent) and the Director General of Home following grounds: Vilankulo on 25 April 2003 took place Affairs’ (second respondent) decision to • The applicant had obtained the per- when Ms Vilankulo was still a minor

DE REBUS – JULY 2021 - 34 - Case NOTE – CITIZENSHIP

without requisite permission from her tion as proof that he had followed all The SCA pointed out that the delega- guardian. the correct procedures to procure the tion by the minister accords full square • That the permanent residence permit said permanent residence permit. with the clear provision of s 22 in the was issued to the applicant in conflict • The letter concluded by stating that South Africa Citizenship Act. The SCA with the applicable law in that it was the applicant had shown that there said as the first respondent may under issued on 22 January 2004, in terms of was no basis to warrant the depriva- s 22 of the South African Citizenship Act the Aliens Control Act 96 of 1991 but tion of his South African citizenship in delegate any power, conferred to him subsequent to its repeal by the Immi- terms of s 8(1)(a) and (b) of the South or her under that Act, this includes the gration Act 13 of 2002 (the Immigra- African Citizenship Act. power to deprive citizenship in terms tion Act), on 12 March 2003. The Supreme Court of Appeal (SCA) of s 8 of this Act. The SCA said the ap- In the same letter the applicant was said the applicant’s bases or grounds plicant’s attempt to place reliance on informed that in terms of s 3 of the Pro- for the application, which are delineated the decision in Apleni v President of the motion of Administrative Justice Act 3 as issues for determination in the appli- Republic of South Africa and Another of 2000 (PAJA), he was entitled, within cant’s heads of argument, were – [2018] 1 All SA 728 (GP), is misconceived. ten calendar days from the date of re- • whether the applicant should be That the facts in this case were clearly ceipt of the letter, to make representa- granted leave to adduce the further distinguishable as the aspect of delega- tions to the minister setting out reasons evidence contained in a supplemen- tion was squarely raised in the papers why the minister should not proceed tary affidavit that was filed on 30 June unlike in casu, where the issue only rears with the intended deprivation of citizen- 2017; its head on appeal. ship. Importantly, the applicant could • whether the applicant should be The SCA said the other grounds the approach the High Court in terms of s 25 granted leave to introduce new points applicant raised relates to the alleged of the South African Citizenship Act 88 of law pertaining to the following is- collective deprivation of citizenship of of 1995, to review the decision made by sues, namely – the applicant’s minor children and his the minister. – the absence of delegation of authority wife. The SCA pointed out that it was On 3 May 2016, representation was granted to the decision-maker; averred that the matter was of public made in a letter written on the appli- – the collective deprivation of citizen- interest and that issues of the rights of cant’s behalf through his legal practi- ship of the minor children and their women and children should be severed tioners, in response to the Department’s mother; and from their dependence on the citizen- letter of 13 April 2016. The salient points – the abandonment issue. ship of their husband and father. The made in the letter, which was addressed The SCA added that the intended ap- SCA said that reliance was sought to be to the minister, and copied to the Direc- plication to adduce further evidence in placed on s 10 of the South African Citi- tor General of the Department, were the a supplementary affidavit was not pur- zenship Act, which provides ‘[w]henever following: sued. The court said the decision was the responsible parent of a minor has in • It was denied that the applicant ob- well taken considering that the court a terms of the provisions of section 6 or tained his permanent residence per- quo quite rightly disregarded the sup- 8 ceased to be a South African citizen, mit by means of false representation plementary affidavit on the basis that the Minister may, with due regard to the by concealing, his prior marriage to no leave to file same was sought and ob- provisions of the Children’s Act [38 of Ms Nwafor in Nigeria on 1 March 2003, tained from the court a quo, a fact right- 2005], order that such minor, if he or and that he had presented himself ly conceded by the applicant in the pa- she was born outside the Republic and is as a ‘bachelor’ when he married Ms pers. The SCA pointed out that although under the age of 18 years, shall cease to Vilankulo in South Africa on 25 April the court a quo quite rightly disregarded be a South African citizen’. 2003. An explanation proffered was the supplementary affidavit, as it was The SCA added that the respondents shortly after, ‘a church blessing’ be- filed without leave of the court, the court failed to put any facts to show that the tween the applicant and Ms Nwafor, a still considered the point raised that the minister considered certain factors in serious material issue occurred, which minister could not have delegated the making the requisite determination, affected the marital relationship re- power to deprive a citizen to the Direc- flowing from the need to protect the in- sulting in the immediate dissolution tor General and that the deprivation is terests of children as required in s 7 of of the said marriage. thus ultra vires the law. The court a quo the Children’s Act. The SCA noted that • Regarding the allegation that Ms rightly rejected this contention as bad in it was then averred that the children’s Vilankulo was a minor at the time of law based on the provisions of s 22 of case ought to have been dealt with sep- her marriage to the applicant, it was the South African Citizenship Act. arately and not as though the children averred that Ms Vilankulo was born on The SCA said the issue took on a new were mere appendages to the applicant. 26 August 1984, she was over the age form before it, namely, that the respond- The SCA pointed out that similarly, the of 18 years at the time. Reliance was ents did not follow due legal process in applicant’s Nigerian wife, so it was sub- placed on, inter alia, s 24(1) of the Mar- revoking the applicant’s citizenship. The mitted, was an independent bearer of riage Act 25 of 1961 (the Marriage Act) SCA added that this was because the no- rights meaning that the department was that Ms Vilankulo’s mother had signed tice of deprivation was signed by the sec- obliged to conduct a separate investiga- as a witness to the marriage, which ond respondent who at the time was not tion when revoking her citizenship. The constituted as parental ‘consent’ as is in possession of the delegation of au- SCA said this point regarding the collec- required by the Marriage Act. thority in terms of s 7A(8) of the Public tive deprivation of citizenship cannot • Lastly, regarding the contention that Service Act 103 of 1994 requiring, inter succeed. the permanent residence permit in alia, that a delegation by the minister to The SCA pointed out with regard to the applicant’s possession was issued the Director General had to be in writ- the submission by the applicant that in contrary to the applicable law, it was ing. The SCA said that this point cannot matters involving status, abandonment contended that the applicant had fol- succeed and must suffer the same fate is generally not allowed is misplaced lowed all required procedures as ex- as the one raised earlier before Potterill and cannot succeed. The SCA added that pected of him, at the time of his appli- J. The SCA added that it is a completely the attempt by the applicant to draw cation, for permanent residence and new issue not hitherto raised before ei- in aid the decision in Ex parte Taljaard citizenship. Furthermore, the appli- ther in the paper or before the court a 1975 (3) SA 106 (O) does not assist as cant had all the necessary documenta- quo. the applicant in that case had sought to

DE REBUS – JULY 2021 - 35 - NEW LEGISLATION abandon a final sequestration order dur- Department’s letter dated 13 April 2016, The SCA said that considering what it ing appeal. The SCA said that the final addressed to the applicant and his fam- had stated above, it found that the ap- analysis, r 41(2) of the Uniform Rules of ily shows that it complies with s 3(2) of plicant fell short of the test set out in Court was totally irrelevant and not ap- PAJA in that the applicant was given: s 17(1)(a) of the Superior Courts Act 10 plicable in this matter. The SCA added ‘(i) adequate notice of the nature and of 2013. The SCA pointed out that the that the point raised was clearly based purpose of the proposed administrative application must, therefore, fail. on a wrong legal premise and must ac- action; The SCA made the following order: cordingly fail. (ii) a reasonable opportunity to make ‘The application is dismissed with The SCA said the complaint by the representations; costs, such costs to include the costs of applicant that the deprivation of citi- (iii) a clear statement of the adminis- two counsel’. zenship was arbitrary and unlawful and trative action; was done without being afforded an op- (iv) adequate notice of any right of re- portunity to be heard or that he was not view or internal appeal, where applica- Kgomotso Ramotsho Cert Journ afforded sufficient and reasonable time ble; and (Boston) Cert Photography (Vega) is the news reporter at De Rebus. to make representation, must fail. The (v) adequate notice of the right to re- q SCA pointed out that an analysis of the quest reasons in terms of section 5.’

New legislation

Legislation published from By 1 – 30 May 2021 Philip Stoop

Bills Auditor-General of South Africa. GN465 GG44636/28-5-2021 (also available in GG44636/28-5-2021. isiXhosa). Appropriation Bill B4A of 2021. Copyright Act 98 of 1978 Gas Act 48 of 2001 Appropriation Bill B4B of 2021. Regulations on collecting societies in Rules in terms of the Act. GN470 Preservation and Development of Agri- the music industry and renewal of the GG44636/28-5-2021. cultural Land Bill B8 of 2021. accreditation of Independent Music Per- Genetically Modified Organisms Act 15 Gas Amendment Bill B9 of 2021. formance Rights Association to act a of 1997 Housing Consumer Protection Bill B10 of collecting society for five years. GN473 Amendment of regulations (fees). GN431 2021. GG44636/28-5-2021. GG44593/21-5-2021. Land Court Bill B11 of 2021. Council for Medical Schemes Levies Income Tax Act 58 of 1962 Criminal Procedure Amendment Bill B12 Act 58 of 2000 Proviso to definition of ‘retirement an- of 2021. Imposition of levies on medical schemes. nuity fund’. GN474 GG44640/28-5-2021. Selected list of delegated GenN251 GG44530/4-5-2021. Independent Communications Author- Disaster Management Act 57 of 2002 ity of South Africa Act 13 of 2000 legislation • Education Second Sport Broadcasting Services Broad-Based Black Economic Empower- Amendment of directions regarding Amendment Regulations, 2021. GenN469 ment Act 53 of 2003 measures to address, prevent and com- GG44569/13-5-2021. Practice Note: Rules for discretionary col- bat the spread of COVID-19 in the educa- Liquor Products Act 60 of 1989 lective enterprises. GN428 GG44591/18- tion sector. GN451 GG44633/28-5-2021. Amendment of regulations (fees and 5-2021. appeals). GN R420 GG44572/14-5-2021 Competition Act 89 of 1998 • General regulations (also available in Afrikaans). Practice Note: Service of subpoenas and Extension of National State of Disaster Military Pensions Act 84 of 1976 other corporate legal court documents under the COVID-19 lockdown to 15 Jun Determination of amounts. GN R456 on the Companies and Intellectual Prop- 2021. GN R424 GG44574/14-5-2021. GG44635/28-5-2021. erty Commission during the COVID-19 Determination of alert level: Level 2. GN National Education Policy Act 27 of pandemic. GN439 GG44539/21-5-2021. R476 GG44642/30-5-2021. 1996 Memorandum of understanding between Amendment of regulations issued in 2022 school calendar for public schools. the Competition Commission and the terms of s 27(2): Adjusted alert level 2. GN450 GG44632/28-5-2021. Council for Medical Schemes. GN433 GN R477 GG44642/30-5-2021. National Environmental Management GG44593/21-5-2021. Electronic Communications Act 36 of Act 107 of 1998 Memorandum of understanding between 2005 Procedures to be followed when apply- the Competition Commission and the Amendment of the Information and ing for or deciding on an environmen- Federation of Governing Bodies of South Communications Technology COVID-19 tal authorisation for the development African Schools. GN434 GG44593/21-5- National Disaster Regulations. GenN314 or expansion of gas transmission pipe- 2021. GG44631/28-5-2021. line infrastructure when occurring in a Memorandum of understanding between Employment Equity Act 55 of 1998 Strategic Gas Pipeline Corridors. GN411 the Competition Commission and the Public register in terms of s 41. GN469 GG44551/7-5-2021.

DE REBUS – JULY 2021 - 36 - Regulations to domesticate the require- Unemployment Insurance Contribu- maintenance of recognition for vol- ments of the Rotterdam Convention on tions Act 4 of 2002 untary associations in terms of the the prior informed consent procedure Determination of the limit on the amount Architectural Profession Act 44 of for certain hazardous chemicals and of remuneration. GN475 GG44641/28-5- 2000 for comment. BN45 and BN46 pesticides in international trade. GN413 2021. GG44593/21-5-2021. GG44558/12-5-2021. • Draft National Mine Closure Strat- Regulations to prohibit the production, Draft Bills egy, 2021 in terms of the Mineral and distribution, import, export, sale and Petroleum Resources Development Draft Firearms Control Amend- use of persistent organic pollutants that • Act 28 of 2002 for comment. GN446 ment Bill, 2021 for comment. GN437 are listed by the Stockholm Convention GG44607/21-5-2021. GG44593/21-5-2021. on Persistent Organic Pollutants, 2021. • Regulations relating to medical de- Occupational Health and Safety GN414 GG44559/12-5-2021. • vices in terms of the Medicines and Amendment Bill, 2020 for comment. National Environmental Management: Related Substances Act 101 of 1965. GN R447 GG44610/21-5-2021. Waste Act 59 of 2008 GN435 GG44593/21-5-2021. • Protection of Constitutional Democ- Amendments to the regulations and no- • Draft amendment of the regulations racy against Terrorist and Related Ac- tices regarding extended producer re- relating to the ordering system speci- tivities Amendment Bill, 2021 for com- sponsibility. GN400 GG44539/5-5-2021. fication for number portability in ment. GN438 GG44593/21-5-2021 and National Nuclear Regulator Act 47 of terms of the Independent Communi- GN463 GG44636/28-5-2021. 1999 cations Authority of South Africa Act Nuclear authorisation fees. GN417 Draft delegated legislation 13 of 2000 for comment. GenN312 GG44571/14-5-2021. GG44618/27-5-2021. Nursing Act 33 of 2005 • Draft Artisanal and Small-Scale Min- • Proposed regulations on account- Fees payable in terms of the regulations ing Policy 2021 in terms of the Min- ing standards in terms of the Public regarding fees and fines payable to the eral and Petroleum Resources Devel- Finance Management Act 1 of 1999 South African Nursing Council. BN54 opment Act 28 of 2002 for comment. for comment. GN471 GG44636/28-5- GG44636/28-5-2021. GenN258 GG44538/5-5-2021. 2021. Plant Breeders’ Rights Act 15 of 1976 • Amendment of the Civil Aviation Reg- Amendment of regulations (fees). GN432 ulations, 2011 in terms of the Civil Philip Stoop BCom LLM (UP) LLD GG44593/21-5-2021. Aviation Act 13 of 2009 for comment. (Unisa) is head of the school of law Public Audit Act 25 of 2004 GN R410 GG44546/7-5-2021. at STADIO. q Audit Directive issued by the Auditor- • Amendment of the Code of Conduct General. GN394 GG44526/4-5-2021. of the Legal Practice Council in terms Public Finance Management Act 1 of of the Legal Practice Act 28 of 2014 1999 (change of contact details) for com- Statement of the national revenue, ex- ment. GenN260 GG44545/7-5-2021. penditure and borrowings as at 30 April • Draft Guideline on Small Merger No- 2021. GenN313 GG44629/28-5-2021. tification in terms of the Competition Remuneration of Public Office Bearers Act 89 of 1998 for comment. GN404 Act 20 of 1998 GG44545/7-5-2021. Determination of the upper limit of sala- • Draft regulations regarding physical ries and allowances of premiers, mem- protective measures for nuclear ma- bers of the Executive Councils and mem- terial in terms of the Nuclear Energy bers of the Provincial Legislatures of Act 46 of 1999 for comment. GN R407 2020/2021. Proc17 GG44570/13-5-2021. GG44546/7-5-2021. Determination of the salaries and allow- • Regulations for the use of water for ex- ances of members of the National As- ploration and production of onshore sembly and permanent delegates to the naturally occurring hydrocarbons that National Council of Provinces. Proc18 require stimulation to extract, and any GG44570/13-5-2021. activity that may impact detrimentally Determination of salaries and allowanc- on the water resource in term of the es of the Deputy President, Ministers and National Water Act 36 of 1998 for Join the Law Society of Deputy Ministers of 2020/2021. Proc19 comment. GN406 GG44545/7-5-2021. GG44570/13-5-2021. South Africa’s Legal Road Accident Fund Act 56 of 1996 • Draft amendments to the Cross-Bor- Education and Adjustment of the statutory limit in der Road Transport Regulations, 2020 Development respect of claims for loss of income in terms of the Cross-Border Road and loss of support (R 302 731). BN29 Transport Act 4 of 1998 for comment. Division for the GG44571/14-5-2021 (also available in GN R423 GG44572/14-5-2021. following webinar: Afrikaans). • Proposed farm planning regulation Subdivision of Agricultural Land Act in terms of the Conservation of Agri- 70 of 1970 and Conservation of Agri- cultural Resources Act 43 of 1983 for Deceased Estates cultural Resources Act 43 of 1983 comment. GN R425 GG44575/14-5- Revised tariffs for goods and services 2021. provided by the Department of Agricul- • Amendment to the regulations relat- (12:00 – 14:30) ture, Land Reform and Rural Develop- ing to merchant shipping (collision Webinar: 4 – 5 August and distress signals) in terms of the ment. GenN276 GG44576/14-5-2021. and 11 – 12 August 2021 Tax Administration Act 28 of 2011 Merchant Shipping Act 57 of 1951 for Persons who must submit returns comment. GenN275 GG44571/14-5- E-mail: for 2021 year of assessment. GN419 2021. [email protected] GG44571/14-5-2021 (also available in • Proposed amendments to the re- Afrikaans). quirements for the recognition and

DE REBUS – JULY 2021 - 37 - Employment law update

of s 69 of the LRA, read with the Code that the Company was required to do was By of Good Practice Relating to Picketing to call on GIWUSA to identify the individ- Nadine Rules, is to regulate protest action and uals and to take action against them. The Mather demonstrations during protected strike Company did not do so. The alternative action, and to ensure that it is lawful and option available to the Company was to peaceful. Unlawful conduct, violence, approach the court by way of contempt Suspension of picketing and harassment are inimical to the prin- of court proceedings. The prospects of a rules ciple of peaceful demonstration. How- prison sentence or financial penalty may ever, the rule of the mob during strikes have been more effective than suspend- In Clover SA (Pty) Ltd v General Indus- has sadly become the ‘new normal’ in ing the picketing rules and would have tries Workers Union of South Africa and industrial relations, and often spreads formed an adequate alternative remedy Others [2021] 4 BLLR 419 (LC), the Gen- to neighbouring communities. When un- to the present application. eral Industries Workers Union of South lawful conduct replaces peaceful dem- The court held that as picketing rules Africa (GIWUSA) and its members em- onstration and the picketing rules are can only be applicable between an em- barked on a protected strike in pursu- ignored, s 69(12) enjoins the court to ployer and its employees, what happens ance of wage demands. As a result of un- intervene and grant urgent relief either outside of the framework of those rules lawful conduct allegedly perpetrated by by suspending the picketing rules or by and the workplace is a matter for the GIWUSA’S members during the course of varying them. criminal justice system. In the present the protected strike, Clover SA (Pty) Ltd In determining whether a suspension circumstances, there was nothing to in- (the Company) approached the Labour or variation of picketing rules is justi- dicate that the picketing rules were inad- Court (LC) for an interdict. fied, the court is required to take the equate. The Company had, accordingly, The LC ordered, among other things, circumstances of each case into account. failed to make out a case for suspension that GIWUSA and its members – This involves a balancing act between of the picketing rules. • must comply with the picketing rules the employees’ constitutional rights to, The application was dismissed. established between GIWUSA and the inter alia, assemble and strike and the Company; employer’s rights to conduct its affairs Procedure governing • were interdicted from interfering with without hindrance and in the interests of road traffic and from barricading en- its employees and clients. Thus, an order protest action trance points of the Company’s prem- suspending the operation of picketing In Congress of South African Trade Un- ises; and rules should not be lightly granted and ions and Another v Business Unity South • were interdicted from committing any the onus rests on the employer to dem- Africa and Another [2021] 4 BLLR 343 violent and unlawful conduct in pur- onstrate that such is necessary. (LAC), Congress of South African Trade suit of their wage demands. In this In the present case, the Company con- Unions (COSATU), a trade union fed- regard, GIWUSA was ordered to assist tended that there had been non-compli- eration, gave notice to the National Eco- the Company with identifying those ance with the provisions of the interdict nomic Development and Labour Council members who breach the provisions granted by the LC. The Company had cit- (NEDLAC) of their intention to embark of the court order. ed various examples where its employ- on protest action in accordance with s 77 Thereafter, the Company again ap- ees had been attacked while travelling to of the Labour Relations Act 66 of 1995 proached the LC for various orders on an and from work or were attacked while (LRA). The protest action was in support urgent basis. After the court noted that at home. The bulk of the incidents on of demands that private sector employ- these orders amounted to a duplication which the Company relied had, however, ers be prohibited from retrenching work- of the orders previously obtained by the taken place some distance away from its ers and be compelled to create a certain Company, the Company persisted with premises and outside the demarcated number of jobs per year. one prayer only, which was for an order picketing areas. Most of the incidents About 15 months later, COSATU is- suspending the picketing rules for the in fact took place in the communities sued a further notice to NEDLAC that it duration of the protected strike. where the employees resided and had intended embarking on the protest ac- The picketing rules applicable to the been perpetrated by unknown persons. tion indicated in the earlier notice and parties were set by the Commission for Although the Company’s concern for the confirmed this in a further notice issued Conciliation, Mediation and Arbitration safety of its non-striking employees was a month later. Seven months after that, (CCMA) and were for purposes of regulat- warranted, the court found that this was COSATU issued yet another notice an- ing any picketing that would take place not enough to justify suspending the nouncing that the protest action would in relation to mutual interest disputes. In employees’ right to picket peacefully. On take place in one month’s time, which the event of non-compliance, the picket- the contrary, a suspension of the picket- would focus mainly on the financial sec- ing rules made provision for a court to ing rules could exacerbate the situation. tor. suspend the picket in accordance with The court found that in terms of the Thereafter, Business Unity South s 69(12) of the Labour Relations Act 66 previous LC order, GIWUSA had agreed to Africa (BUSA) approached the Labour of 1995 (the LRA). assist with the identification of persons Court (LC) for an order interdicting the The court noted that the purpose who contravened the picketing rules. All planned protest action on the basis that

DE REBUS – JULY 2021 - 38 - EMPLOYMENT LAW

COSATU had failed to comply with the considering the matter, the purpose of concerning government’s economic poli- provisions of s 77 of the LRA. Section s 77 would be defeated. cy, is not one that can be resolved as ex- 77 regulates protest action and provides Following this judgment, BUSA argued peditiously as a defined labour dispute. that every employee who is not engaged in the present matter that s 77 envisaged The court further found that the archi- in an essential service or a maintenance a continuum of conduct, namely that tecture of s 77 was instructive. It requires service has the right to take part in pro- protest action may only follow upon a an initial notice in which the reasons for, test action if – series of steps to be taken in sequence and the nature of, the protest action is ‘(a) the protest action has been called shortly after each other. The timing of set out. Before embarking on protest ac- by a registered trade union or federation the protest action could not be left open- tion, it is incumbent for the matter to of trade unions; ended and due regard must be had to the be considered by NEDLAC. Once there (b) the registered trade union or fed- LRA’s object of resolving disputes time- has been compliance with these require- eration of trade unions has served notice ously and expeditiously. ments, all that s 77 requires is that at on NEDLAC stating – The court held that the approach to least 14 days before the commencement (i) the reasons for … ; and statutory interpretation means that of the protest action, a further notice be (ii) the nature of the protest action; s 77 needs to be viewed and understood served on NEDLAC. (c) the matter giving rise to the intend- through the prism of constitutional The various notices issued by COSATU ed protest action has been considered by rights which are implicated by that sec- had informed BUSA that pressure would NEDLAC or any other appropriate forum tion. Section 77 implicates three consti- be applied, when it would be applied, the in which the parties are able to partici- tutional rights, namely – nature of the pressure and its duration. pate in order to resolve the matter; and • the right of freedom of expression; Once dispute resolution had failed, all (d) at least 14 days before the com- • the right to assemble, demonstrate and COSATU was required to do was inform mencement of the protest action, the reg- picket; as well as NEDLAC when the protest action would istered trade union or federation of trade • various labour rights protected by the occur, which it had done 14 days before unions has served a notice on NEDLAC of LRA, particularly the right to fair la- the planned protest action. The process its intention to proceed with the protest bour practices and to participate in the would be completed only once the pro- action’. activities of trade unions. test action had occurred and would have The LC found that COSATU’S notice in Section 77 must be viewed through the to be repeated in its entirety if COSATU terms of s 77(1)(d) had been unreason- prism of these rights to give meaning to sought to engage in further protest ac- ably delayed and interdicted COSATU them. tion. from proceeding with the intended pro- Having regard to case law, the court In the circumstances, there was no jus- test action. COSATU took the matter on found that the principle of expeditious tification for the LC’s finding that the no- appeal. resolution of labour disputes did not ap- tice in terms of s 77(1)(d) had to be issued The central issue on appeal concerned ply to strikes nor protest action as con- by COSATU within a reasonable time. the interpretation of s 77 of the LRA. The tended by BUSA. Once lawfully acquired, The appeal was upheld with costs. court noted that s 77 had been scruti- the right to strike does not become stale. nised more than 20 years earlier in Busi- Similarly, s 77 does not expressly set any ness SA v COSATU and Another [1997] 5 time limits. Unlike labour disputes be- Nadine Mather BA LLB (cum laude) BLLR 511 (LAC). In this judgment, it was tween parties to an employment relation- (Rhodes) is a legal practitioner at held that if protest action was permitted ship, the nature of protest action as en- Bowmans in Johannesburg. q while the parties to NEDLAC were still visaged by s 77, in this case a complaint

policies and protocols at its workplace. a COVID-19 test and on 9 August was in- These policies and protocols informed formed that he had tested positive. employees what symptoms to watch out While awaiting his results, the employ- for and to immediately self-isolate them- ee continued to come to work on 7 and 9 selves should an employee display any August and returned on 10 August 2020 one of the listed symptoms. Included in to personally hand in his results to his the policy was an obligation on the em- manager. ployee to inform the employer that they On the same day, the employee was underwent a COVID-19 test. observed walking around the store with- The respondent employee travelled to out a mask and hugging another col- work with his colleague, Mr Mchunu, in a league who suffered from comorbidities. private vehicle. On 1 July 2020, Mchunu On his return to work on 28 August fell ill and was later hospitalised, after 2020, the employee was charged and dis- By which he was diagnosed with COVID-19 missed for gross misconduct and gross Moksha on 20 July 2020. negligence. Naidoo Around the same time Mchunu took The misconduct charge related to the ill, the employee himself experienced employee’s failure to inform his employ- headaches, chest pains and coughs. The er that he had on 5 August 2020 taken a Dismissed for violating employee was booked off from work by a COVID-19 test. The charge of gross neg- traditional healer from 6 to 7 and 9 to 10 ligence was in respect of the employee’s COVID-19 protocols July 2020. Despite his manager instruct- failure to follow the COVID-19 policies in Eskort Ltd v Mogotsi and Others (LC) (un- ing the employee to stay at home, the that he – reported case no JR1644/20, 28-3-2021) employee returned to work on 10 July • did not wear his mask on one occa- (Tlhotlhalemaje J) 2020 and remained at work even when sion; In a response to the COVID-19 pan- he found out that Mchunu had tested • failed to keep a social distance when demic, the applicant employer, operat- positive for COVID-19. hugging a fellow employee; and fur- ing as a butchery, introduced COVID-19 On 5 August 2020, the employee took thermore,

DE REBUS – JULY 2021 - 39 - EMPLOYMENT LAW

• failed to self-isolate himself and in- and that it is merely a guideline, insofar than merely dismissing employees for stead continued to come to work on 7, as issues of sanctions are concerned. failing to adhere to the basic health and 9 and 10 August 2020, which placed Ultimately, irrespective of what the safety protocols is sufficient in curbing his fellow employees at undue risk. disciplinary code and procedure stipu- the spread of the pandemic? How can it The employee challenged the fairness lates, in determining the appropriateness be, that in the midst of the deadly pan- of his dismissal at the Commission for of a sanction of dismissal, the Commis- demic, the applicant still allows mask- Conciliation, Mediation and Arbitration sioner is obliged to make an assessment less “huggers” walking around on the (CCMA). He argued that the employer of the nature of the misconduct in ques- shop floor? Of further importance is not- victimised him by questioning the medi- tion, determine if whether, combined withstanding all of these protocols and cal certificate he produced and changed with other factors and the evidence led, awareness campaigns about this pan- his job description by giving him new the misconduct in question can be said demic, why would any employee in the duties. This according to the employee to be of gross nature. Once that assess- workplace, especially one with comor- was the true reason for his dismissal. ment is made, and the invariable conclu- bidities, hug or reciprocate hugging in The arbitrator rejected the employee’s sion to be reached is that the misconduct the middle of a pandemic? Does a basic defence and found that on the evidence, in question is of such gross nature as to principle such as social distancing mean the employee was indeed guilty of both negatively impact on a sustainable em- anything to anyone at the workplace? charges preferred against him. However, ployment relationship, then the sanction Furthermore, what is the responsibil- the arbitrator found that dismissal was of dismissal will be appropriate.’ ity of the applicant and its employees not an appropriate sanction; the em- On the common cause facts, the court when other employees or even custom- ployer’s own disciplinary code called for found that the employee’s actions were ers, are seen roaming the workplace or a final written warning and thus the em- reckless and that he endangered the shop floor mask-less? Of even critical ployer deviated from its own code. This lives of his colleagues, customers and importance is what steps were taken in fact, together with the arbitrator’s read- their own families. He displayed blatant ensuring the health and safety of all the ing of the CCMA Guidelines on Miscon- disregard for the employer’s COVID-19 employees and customers, where at least duct Arbitration, led him to find that the policies and for no reasonable explana- from 20 July 2020, Mchunu’s test results employee’s dismissal was substantively tion continued with a care-free attitude. were known? All of these questions need unfair. The arbitrator awarded the em- For these reasons, the court was satis- to be addressed in the light of Mogotsi’s ployee reinstatement without back pay fied that the sanction of dismissal was version that after Mchunu’s test results and further held that he be issued with a appropriate and substituted the award were made known, business at the store final written warning. with a finding that the dismissal was had continued as usual, hence he had In setting aside the award on review, substantively fair. continued reporting for duty.’ the court held: In closing the court did not spare the ‘Despite having stated that he had re- employer as well and raised the follow- Moksha Naidoo BA (Wits) LLB (UKZN) gard to all the provisions he had cited, it ing questions: is a legal practitioner holding cham- had clearly escaped the Commissioner’s ‘The questions that need to be posed bers at the Johannesburg Bar (Sand- reasoning that a disciplinary code and despite the applicant having all of these ton), as well as the KwaZulu-Natal Bar procedure, is not prescriptive as correct- fancy COVID- 19 policies, procedures (Durban). ly pointed out on behalf of the applicant, and protocols in place, is whether more q

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DE REBUS – JULY 2021 - 40 - RECENT ARTICLES AND RESEARCH Recent articles and research By Kathleen Kriel

Please note that the below abbrevia- Accessing articles from publishers tions are to be found in italics at the end of the title of articles and are For LexisNexis articles contact: [email protected] for the publi- there to give reference to the title of cation details. the journal the article is published For individual journal articles pricing and orders from Juta contact Philippa in. To access the article, please con- van Aardt at [email protected]. tact the publisher directly. Where articles are available on an open For journal articles not published by LexisNexis or Juta, contact the KwaZulu- access platform, articles will be hy- Natal Law Society Library through their helpdesk at [email protected] perlinked on the De Rebus website (their terms and conditions can be viewed at www.lawlibrary.co.za). at www.derebus.org.za

Abbreviation Title Publisher Volume/issue AJCCL Africa Journal of Comparative Con- Juta (2019) stitutional Law DJ De Jure University of Pretoria (2021) 54 LitNet LitNet Akademies (Regte) Trust vir Afrikaanse Onderwys (2021) 18(2) Obiter Obiter Nelson Mandela University (2021) 42.1

SAJBL South African Journal of Bioethics South African Medical Association (2020) 14.1 and Law NPC SALJ South African Law Journal Juta (2021) 138.2 TSAR Tydskrif vir die Suid-Afrikaanse Reg Juta (2020) 1

Banking and finance law Competition law COVID-19 Broeckx, K and De Groote, B ‘The Eu- Munyai, PS ‘Suitability of the remedy of Dhai, A ‘Access to COVID-19 vaccines ropean Account Preservation Order divestiture in non-merger cases: A South as a global public good: A coordinated (EAPO): A solution for cross-border sei- African perspective’ (2021) 42.1 Obiter 84. global response based on equality, jus- zure of bank accounts in the European tice and solidarity is key’ (2021) 14.1 Union’ (2021) 1 TSAR 75. Constitutional law SAJBL 2. Maseko, TW ‘The feasibility of the vic- Staunton, C ‘ACT-Accelerator data gov- Children’s Act tims of corruption’s claim for constitu- ernance framework: Balancing indi- Strode, A and Badul, C ‘Forms to capture tional damages against corrupt public vidual rights with the public interest in child consent to surgical procedures: officials in South Africa’ (2021) 54 DJ responding to COVID-19’ (2021) 14.1 Time to focus on function rather than 127. SAJBL 4. form’ (2021) 14.1 SAJBL 20. Toohey, JD and Strode, A ‘A critical re- Contract law Criminal law and view of the South African legal frame- Adams, F ‘Choice of Islamic law in the work on adolescent access to HIV pre- context of the wider lex mercatoria: An procedure vention interventions’ (2021) 14.1 SAJBL express choice of non-state law in con- Hoctor, S ‘Voluntary withdrawal in the 16. tract’ (2021) 1 TSAR 59. context of attempt – a defence?’ (2021) Obiri-Korang, P ‘Party autonomy: Pro- 42.1 Obiter 148. Civil forfeiture moting legal certainty and predictability Neethling, J ‘Liability of police for inves- Rhimes, M ‘Forfeiting proceeds: Civil in international commercial contracts tigation of rape’ (2021) 1 TSAR 171. forfeiture, the right to property and the through choice of law (justification)’ Constitution’ (2020) 138.2 SALJ 323. (2021) 1 TSAR 43. Customary marriages Bapela, MP and Monyamane, PL ‘The Civil law COVID-19 – human rights “revolving door” of requirements for va- Njoko, TB ‘The admissibility of criminal Ibitoye, TR and Ajagunna, F ‘Sexual au- lidity of customary marriages in action findings in civil matters: Re-evaluating tonomy and violence against women in – Mbungela v Mkabi [2019] ZASCA 134’ the Hollington judgment’ (2021) 54 DJ Nigeria: Assessing the impact of COV- (2021) 42.1 Obiter 186. 160. ID-19 pandemic’ (2021) 54 DJ 141. Manthwa, TA ‘Towards a new form of

DE REBUS – JULY 2021 - 41 - customary marriage and ignorance of Bwire, B; Akech, M and Meroka-Mutua, Law of succession precedence’ (2021) 1 TSAR 199. A ‘Women political representation and Abduroaf, M ‘An analysis of the right of a Sibisi, S ‘The juristic nature of ilobolo gender quotas in Kenya: A retrospective Muslim child born out of wedlock to inher- agreements in modern South Africa’ look’ (2019) AJCCL 1. it from his or her deceased parent in terms (2021) 42.1 Obiter 57. Khakula, AB and Muendo, MM ‘Public of the law of succession: A South African participation, devolution and develop- case study’ (2021) 42.1 Obiter 126. Deceased estates ment: Expanding the frontiers of par- Sonnekus, JC ‘Einde van gemeenskaplike ticipation through technology in Kenya’ Legal education boedel van ’n egpaar getroud in gemeen- (2019) AJCCL 103. Crocker, AD ‘Motivating large groups of skap van goed en aanvang van uitwis- Khayundi, F and Ongaro, MC ‘Barring law students to think critically and write sende verjaring van tersake vorderinge county governors from office in Kenya: like lawyers: Part 2’ (2021) 42.1 Obiter 1. val saam’ (2021) 1 TSAR 184. The use of national values and principles in constitutional interpretation’ (2019) Medical research Delictual law AJCCL 129. Strode, A; Freedman, W; Essack, Z and Zitzke, E ‘Transforming age-related ca- Wekesa, M ‘Presidential petitions in Van Rooyen, H ‘Critiquing the ethics re- pacity for fault in delict’ (2020) 138.2 Kenya: Have decisions of the supreme view process in the 2019 Nieuwoudt et SALJ 367. court met the test of constitutionalism?’ al study on the impact of age and edu- (2019) AJCCL 55. Education law cation on cognitive functioning among coloured South African women’ (2021) Arendse, L ‘Falling through the cracks: International insolvency 14.1 SAJBL 11. The plight of “over-aged” children in the law Thaldar, DW and Steytler, M ‘Time for public education system’ (2021) 54 DJ Boterere, SG ‘Zimbabwe’s natural person Cinderella to go to the ball: Reflections 105. debt relief system: Much-needed relief on the right to freedom of scientific re- Environmental law for No Income No Asset (NINA) debtors search’ (2020) 138.2 SALJ 258. or “out with the new”?’ (2021) 54 DJ 194. Wilkinson, A; Slack, C; Crews, C; Singh, Lemine, BJ ‘The efficacy of section 2(4)(l) N; Salzwedel, J and Wassenaar, D ‘How of the National Environmental Manage- can research ethics committees help to ment Act in the context of cooperative International law – strengthen stakeholder engagement in environmental governance’ (2021) 42.1 parental rights health research in South Africa? An eval- Obiter 162. Mills, L ‘Mater semper (in)certus est: A uation of REC documents’ (2021) 14.1 South African perspective on McConnell SAJBL 6. Fourth industrial v Registrar General for England and revolution Wales’ (2020) 138.2 SALJ 397. Municipal law Njontini, MN ‘Disruptive technologies Chamberlain, L and Masiangoako, T and the future of regulations – ICT regu- International surrogacy ‘Third time lucky? Provincial interven- latory structure(s) determined’ (2021) 54 agreements tion in the Makana Local Municipality’ DJ 174. Oluwaseyi, OO and Oladimeji, O ‘Surro- (2020) 138.2 SALJ 423. gacy agreements and the rights of chil- Germline editing dren in Nigeria and South Africa’ (2021) Online contracts Soni, S ‘The Brave New World: Should we 42.1 Obiter 20. Van Deventer, S ‘Problems relating to tread down the path to human germline the formation of online contracts: A editing?’ (2021) 14.1 SAJBL 24. Labour law South African perspective’ (2020) 138.2 SALJ 219. Behari, A Insurance law ‘Proving a causal link between pregnancy and dismissal: An analysis of Physician-assisted suicide/ Reinecke, MFB and Sonnekus, JC ‘Insur- the disclosure of pregnancy and the pro- ance policies, the Matrimonial Property tection of pregnant employees in the South euthanasia Act and alienation of assets of the joint African workplace’ (2021) 1 TSAR 106. Donkin, AJ ‘Physician-assisted suicide estate without value to the detriment Calitz, K ‘Die uitsluiting van middellike and euthanasia – who are the vulner- of the non-consenting spouse’ (2021) 1 aanspreeklikheid van werkgewers in vry- able?’ (2021) 14.1 SAJBL 37. TSAR 123. waringsklousules’ (2021) 18(2) LitNet. Mnyandu, N ‘Developing the common Coetzee, SA ‘Promoting fair individual law crime murder in relation to phy- International labour dispute resolution for South Afri- sician-assisted suicide and physician- administrative law can educators accused of sexual miscon- assisted euthanasia: Revisiting the mis- duct (part 1)’ (2021) 1 TSAR 29. steps of Stransham-Ford v Minister of Addadzi-Koom, ME ‘Midnight actions Maimela, C ‘Is discriminating against Justice and Correctional Development during presidential transitions in Ghana: employees living with cancer in the 2015 (4) SA 50 (G)’ (2021) 54 DJ 249. A rising tide’ (2019) AJCCL 25. workplace justified?’ (2021) 54 DJ 205. International Makama, SP and Kubjana, LLK ‘Collec- Posthumous conception tive bargaining misjudged: The Marikana Shozi, B ‘Legal issues in posthumous constitutional law massacre’ (2021) 42.1 Obiter 39. conception using gametes removed from Adegbite, OB ‘Between chasms and con- Maloka, TC ‘A critical appraisal of dis- a comatose male: The case of Ex Parte tours: Revisiting constitutional legitimacy missals at the behest of a third party: SN’ (2021) 14.1 SAJBL 28. and the quest for a progressive constitu- The impact of the constitutional labour tional state in Nigeria’ (2019) AJCCL 77. rights’ (2021) 42.1 Obiter 105. Procurement law Barrie, G ‘The concept of “indigenous Rautenbach, IM ‘Die Konstitusionële Hof Anthony, A ‘Regulating construction land tenure” surfaces in Namibia: A verwyder die reg van werknemers om procurement law in South Africa – does comparative overview – Agnes Kahimbi nie onbillik ontslaan te word nie uit die the new framework for infrastructure Kashela v Katima Mulilo Town Council beskermingsveld van die handves van delivery and procurement management (SA 15/2017) [2018] NASC 409 (16 No- regte – grondwetlike gesigspunte’ (2021) undermine the rule of law?’ (2021) 42.1 vember 2018)’ (2021) 42.1 Obiter 175. 1 TSAR 145. Obiter 136.

DE REBUS – JULY 2021 - 42 - RECENT ARTICLES AND RESEARCH

Protection of personal Fund; HM v Road Accident Fund [2021] 1 Sperm donor agreements All SA 285 (GJ) Adverse findings against Van Niekerk, C ‘When is a donor a dad- information experts and legal practitioners without dy? Informal agreements with known Staunton, C; Adams, R; Botes, M; De evidence or a hearing’ (2021) 54 DJ 265. sperm donors: Lessons from abroad’ Vires, J; Labuschaigne, M; Loots, G; (2021) 42.1 Obiter 70. Mahomed, S; Loideain, NN; Olckers, A; Sectional titles Pepper, MS; Pope, A and Ramsay, M Van der Merwe, CG ‘Can a conduct rule Tax law ‘Enabling the use of health data for re- banning short-term letting for less than Legwaila, T ‘Third-party appointments search: Developing a POPIA code of con- six months in a residential sectional ti- – may the tax collector please comply?’ duct for research in South Africa’ (2021) tle scheme be declared invalid because it (2021) 1 TSAR 136. 14.1 SAJBL 33. constitutes commercial use of the unit, Tredoux, L and Van der Linde, K ‘The and then be enforced by a final interdict taxation of dividend stripping trans- Redistribution of land and declared constitutional?’ (2021) 1 actions: A comparison between South Kotzé, T and Pienaar, JM ‘Reconceptual- TSAR 160. Africa, Australia and Canada’ (2021) 1 ising redistribution of land in South Af- TSAR 1. rica: A possible legal framework’ (2020) Social security law 138.2 SALJ 287. Makore, STM and Lubisi, N ‘Dewestern- ising the South African social security Road Accident Fund Kathleen Kriel BTech (Journ) is the law: A leap towards an Afrocentric legal Production Editor at De Rebus. Kehrhahn, FHH ‘MT v Road Accident curricular’ (2021) 54 DJ 232. q

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DE REBUS – JULY 2021 - 43 - BOOKS FOR LAWYERS Book announcements

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1 Supplement to De Rebus, July 2021

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