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Have you been denied bail based on the absence of the verification of your address?

Mmapule Mdluli (Candidate Attorney)

Bail is the sum of money paid to the court or to the police, if the person wishes not to be imprisoned pending the finalisation of their trial. There is usually bail conditions set by the presiding officer that the accused must comply with.

Section 35(1)(f) of our Constitution provides that everyone who is arrested for allegedly committing an offence has the right to be released from detention if the interest of justice permits, subject to reasonable conditions. The continued detention of a person suspected of having committed an offence may be a limitation of an accused right to liberty. An accused shall be released on bail at any stage preceding his or her conviction, if the court is satisfied that the interest of justice permits.

When do the interests of justice permit release?

When applying for bail the accused must convince the presiding officer of the following factors listed in section 60(4) (a) – (e) of the Criminal Procedure Act 51 of 1977 as amended: –

  • That he will attend all his court hearings and will not evade his trial;
  • That he is not a danger to other people and himself;
  • That he will not commit further crimes;
  • That he will not intimidate any witness in the matter;
  • That he will not undermine or endanger the functioning of the justice system; and
  • That he will not disturb public order or undermine public peace and security.

The court must balance the rights of the accused to be presumed innocent and not to be deprived of his or her liberty without just cause. The Criminal Procedure Act 51 of 1977 has various elements which guides the courts in determining whether it is in the interest of justice to grant bail.

Our Courts are known to deny bail by giving undue weight to some factors and ignoring others, amongst others, the denial of bail on the basis of a lack of a verifiable fixed residential address. Denial of bail in the abovementioned ground is discriminatory in terms of the relevant Constitutional rights. The freedom and security of any person is of paramount importance. Bail inquiries are not always fair. Granting of a bail is not a favour nor its denial a form of punishment either. A bail is a Constitutionally guaranteed right in the Bill of Rights.

Please note that our blogs do not constitute legal advice. Should you require legal advice on a specific topic or specific facts, you are free to contact our office for a consultation.

By |2018-09-03T07:06:37+00:00September 3rd, 2018|Uncategorized|0 Comments

Dismissal of an employee with a clean record, fair or not ?

Dikakanyo Ramakobya (Attorney)

Schedule 8 of the Labour Relations Act 66 of 1995 as amended “LRA” recognizes three grounds on which a termination of employment might be legitimate, those grounds are “the conduct of the employee, the capacity of the employee, and the operational requirements of the employer’s business”. This article focuses on the termination of employment due to the conduct of the employee, the same schedule empowers the employer to dismiss an employee with a clean record if the offence is so serious that it makes a continued employment relationship intolerable.The following offences are considered to be serious and therefore dismissal for a first offence would be appropriate, they are as follows “gross negligence which resulted in loss to the employer’s business, gross dishonesty, willful damage to the employer’s property, willful endangering of the safety of others, physical assault on the employer or on a fellow employee, client or customer, gross insubordination, theft and fraud amongst others”.

In Ndwanya v South African Local Government Bargaining Council and Others (JR853/2011) [2013] ZALCJHB 2 (7 January 2013) the court recognized gross insubordination as a serious offence and therefore confirmed the decision of the Arbitrator and dismissed the employee’s review application.  In the event that the employee is convicted of any of the above offences , dismissal is in many instances the most appropriate sanction despite the employee’s clean service record.

In Miyambo v CCMA and Others  (JA 51/09) [2010] ZALAC 30; 2010] 10 BLLR 1017 (LAC); (2010) 31 ILJ 2031 (LAC) 2 June 2010, the employee was dismissed for theft as a first offence, he approached the CCMA for relief and the Commissioner found that the dismissal was unduly harsh and unfair. Award was granted in favour of Mr Miyambo, that he be reinstated. The employer took the award on review wherein the Labour Court found that the Commissioner’s conclusion were irrational.

Mr Miyambo unsatisfied with the outcome of the review application, approached the Labour Appeal Court for relief, this exercise was futile. The Labour Appeal Court reaffirmed the decision of the Labour Court, in that the award did not pass the reasonableness test as outlined in the case of Sidumo and another v Rusternburg Platinum Mines Ltd and others [2007] ZACC 22 ; [2007] 12 BLLR 1097 (CC)

Please note that our blogs do not constitute legal advice. Should you require legal advice on a specific topic or specific facts, you are free to contact our office for a consultation.

By |2018-08-06T07:10:12+00:00August 6th, 2018|Uncategorized|0 Comments

Injuries or Death as a result of a Motor Vehicle Accident: Who can claim from the Road Accident Fund ?

Maria Mokwebo: HOD (Personal Injury Department)

The Road Accident Fund (the Fund) is a state funded insurance that provides for compensation to the victims of road accidents that occurred within the borders of South Africa. It provides cover for personal injury, funeral expenses, loss of earnings and loss of support (caused by the death of a breadwinner in the family).  The Fund only compensates persons who were affected by the accident but did not cause it, meaning there has to be a third party who was at fault.

WHO CAN CLAIM?

A claimant needs to be 18 years or older to claim in his/ personal capacity. Legal guardians of minor children and parents of minors can claim on their behalf. Should a minor child be involved in an accident and their guardians or parents fail to claim on their behalf, once they attain the age of 18 years they acquire the legal capacity to claim for themselves.

Passengers in motor vehicles that are involved in accident, cyclists, pedestrians, drivers (who were not solely wrong/responsible for the accident) and motorcyclists can claim from the Fund. Foreigners who were within the borders of South Africa when the accident happened are covered by the insurance.  Drivers who caused the accident but were not the owners of the car at the time of the accident can claim if they can prove that the owner of the car was negligent in one way or another, for example the owner failed to maintain the car or failed to replace worn tyres of his car.

Dependents (minor children, adopted or biological, who lost their parent/s in an accident) represented by their parents or guardians, and spouses who were dependent on the income of the person who died in an accident all have the right to claim compensation from the Fund.

It may happen that a pregnant woman is involved in a motor vehicle accident in circumstances where the liability of the Fund is not excluded. The pregnant woman might even have passed on, but the fetus may have survived the accident. The fetus, having survived the accident, may claim compensation from the Fund, arising from loss of support (as a result of the death of the mother) and any bodily injuries and the effects thereof (for example, the child may have suffered trauma that affected its mental or physical development).

Whilst this blog is limited to categories of persons who may claim from the Fund, it is worth asking this parting question: Claiming from the Fund is not as easy as it appears. It is a process full of technical traps. Can you   deal with the legal and technical processes involved in determining if you have a right to claim; the claims procedure; assessing the extent of injuries and correctly quantifying your claim entitlement? Whilst some people have represented themselves, there are often secondary lawsuits against the Fund due to under-settlements/under-payments.

Please note that our blogs do not constitute legal advice. Should you require legal advice on a specific topic or specific facts, you are free to contact our office for a consultation.

By |2018-07-23T07:30:13+00:00July 23rd, 2018|Uncategorized|5 Comments

Capacity to contract: Beware the traps of the law

Amos Vilakazi (Director)

Wepener J (Judge Wepener) said the following in Standard Bank of South Africa v Jwara and Others, Case No. 19765/2011 (High Court, Johannesburg):

“Legal disability is the English for the Afrikaans ‘regsonbevoeg’.  Persons are under legal disability when, by law, their capacity or ability to relate, as legal subjects, to the legal system, is curtailed. Examples are minors and insolvents that are not permitted (‘regsonbevoeg’) to perform certain juristic acts. In our law, ‘legal disability’ relates to situations where there is an impediment in law (impendimentum iuris) without narrowing or limiting it to specific circumstances.” 

The court referred to Boberg, Law of Persons and the Family 2nd Edition which states as follows:

‘The etymology of the word “status”, they say is a good indication of its meaning.  Derived from the Latin stare (to stand) it is used in jurisprudence to connote a person’s overall legal position (regsposisie) or standing in law.  An important aspect of a person’s status is his or her ability or capacity to relate to the legal system.  This ability which varies from one person to another, embraces three specific capacities or “kompetensies” (also called “bevoegdhede”).  They are:

(a)  legal capacity, that is, the capacity to be the bearer of (i.e. to have) rights and duties (regsbevoegdheid);

(b)  capacity to act, that is, the capacity to perform juristic acts (handelingsbevoegdheid); and

 (c)  capacity to litigate, that is, the capacity to appear in court as a party to a law suit (verskyningsbevoegdheid)’.

 As Du Bois et al in Wille’s Principles of South African Law (9th Ed) at p 146 – 147 state, a person’s status may be described as his or her legal position or ‘standing’ in relation to his or her fellow-person and the wider community: “the aggregate of his or her various rights, duties and capacities”.  The status of a person determines to what extent he or she has the ability to participate as a legal subject in the life of the law. This ability (legal capacity in the broad sense) embraces four main constituent capacities or competencies, one of which is the capacity to perform juristic acts, i.e. voluntary human acts to which the law attaches at least some of the legal consequences willed by the party or parties performing the act (active legal capacity, in Afrikaans “handelingsbevoegdheid”). This is the arena of contracting.

Not all persons have capacity to contract. So, for example persons suffering from mental disability; and in some cases company officials have no capacity to perform juristic acts such as concluding contracts on behalf of the company they purport to represent. For example, a company does not have hands, mind, feet, and can only act legally through the instrumentality of resolutions of empowered structures, such as boards of directors. Absent such empowering resolution, no official can validly transact business on behalf of the company.

In short, the law is full of technical traps. Are you able to navigate it on your own?

The critical question is: does the person you are concluding that important contract with have legal capacity to conclude a valid and binding contract? If you do not check this, you may walk into a costly trap. Be warned!

Please note that our blogs do not constitute legal advice. Should you require legal advice on a specific topic or specific facts, you are free to contact our office for a consultation.

By |2018-07-09T07:50:48+00:00July 9th, 2018|Capacity to contract|0 Comments

Welcome to AM VILAKAZI TAU ATTORNEYS. We are lions!

 

Thank you for your visits to our website. We trust that you will be a much more regular visitor and a happy client for many years.

The law is ever-changing. South African law has its roots in Roman law. On its own, this system of law evolved over centuries. At some point it acquired a Dutch influence and a new system of law, called Roman Dutch law, came into existence. This later reached the shores of South Africa.

 

You may be aware that at different points in history, parts of the territory of modern day South Africa were colonized by different European countries. The Dutch had their time and share, and so did the British, before the Union of South Africa came into existence following on the cessation of hostilities in the Anglo-Boer War at the turn of the last century. These developments brought us the laws of the colonisers. Hence our civil law by and large owes its origins to English law.

 

However, with the dawn of the new constitutional order in South Africa, one can safely speak of a new legal regime, founded on the principles underlying the Constitution. This new regime is a potpourri of the inherited Roman Dutch law and English law, fused with customary and international law. It is South African law.

 

Enough about the genesis and history of our law.

 

The point is that law is not constant. It is dynamic and changes almost daily. There are nine provincial parliaments with law-making authority within their sphere; a national parliament that passes various statutes on a host of issues; provincial divisions of the high court; the supreme court of appeal and the apex court in the land, the constitutional court. There are specialized courts such as the land claims court and the labour court. All these courts have rules, practice manuals and directives for the conduct of proceedings before them. They interpret and develop the law all the time. It is small wonder that there are many cases in which the law that we meet in practice as legal practitioners has relatively little resemblance to the law as we studied it at universities.

 

In short, law as a topic is a labyrinth. It is a field where any step one takes could lead to an explosion with dire consequences. A legal principle is adapted and changed and developed. A non-lawyer, or even a lawyer who does not stay abreast with legal developments, will find themselves colliding with the law if they do not have a good lawyer on their side.

 

We at AM VILAKAZI TAU ATTORNEYS, realizing the difficulty of navigating this uncertain and often unforgiving field, have decided to contribute towards clarifying legal issues. We will do this by way of web blogging on interesting legal topics. Our blogs will be published every second week, on Mondays, commencing on the 9th July 2018. You can expect to hear titbits of information on marriage, divorce, contracting, road accident fund claims, medical negligence, wrongful arrest, police brutality, government procurement, municipal law, labour law, employee rights, Wills and estate administration and so forth. We do this in an attempt to demystify the law for you, our valued clients and potential clients.

 

Please note that our blogs will not constitute legal advice. Should you require legal advice on a specific topic or specific facts, you are free to contact our office for a consultation.

We look forward to fulfilling engagements. Enjoy!

By |2018-07-02T06:48:32+00:00July 2nd, 2018|Uncategorized|2 Comments
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