For the latest updates on COVID-19 Updates Click Here
Articles – BLC Attorneys | Port Elizabeth

Articles

CHILDREN BORN TO FOREIGN IN PARENTS IN SOUTH AFRICA WINS HARD-FOUGHT BATTLE AGAINST MINISTER OF HOME AFFAIRS

Obtaining citizenship by birthright is recognised by countries such as the United

States of America, Canada and our neighboring country, Lesotho, but not in South Africa. There are some further requirements which will be discussed in the article below.

In terms of section 2(1) of South African Citizenship Amendment Act, 17 of 2010 (“the Act”), someone born outside of South Africa shall be a citizen by birth if one or both of their parents are South African citizens at the time of their birth.

In terms of section 2(3) of the Act, someone born in South Africa to parents who have been admitted into the country for permanent residence and who is not a South African citizen, qualifies to be a South African citizen by birth when they reach the age of 18 years old, having lived in the country their whole life and having their birth registered in terms of the Birth and Deaths Registration Act, 51 of 1992.

The Act allows for people to acquire citizenship in South African through naturalisation and descent and was introduced in 2010 with the amendments only coming in to force on 1 January 2013.

The Act seeks to accommodate people born in South Africa to parents who are neither South African citizens nor foreigners admitted for permanent residence. Section 4(3) of the Act provides a pathway for individuals to apply for citizenship.

Children born in South Africa to parents who are not South African citizens or who have not been admitted into the country for permanent residence, qualify to apply for South African citizenship upon becoming a major (after turning 18 years old):

  • If he or she has lived in the country from birth to becoming a major; and
  • His or her birth has been registered in accordance with the provisions of the Birth and Death Registrations Act, 51 of 1992.

This has been a major step forward in the application or acquisition of citizenship in South Africa, especially for those people who recognize South Africa as their home even though their parents are not originally from the country.

However, while this provision exists, there is no formal way to apply for citizenship in this regard. This is because the Minister of Home Affairs (“the Minister”) has not drafted the necessary regulations to produce application forms to apply for citizenship in terms of section 4(3).

In 2017, six Applicants, who became five as one decided to withdraw, approached the Western Cape High Court to seek an order to oblige the Minister and the Director-General of Home Affairs (the Respondents in this matter) to grant them citizenship in terms of section 4(3) of the Act. They were eligible and met the requirements of section 4(3) but were not granted citizenship due to the problem identified above.

The Respondents argued that there is no prejudice as the Applicants may apply for “refugee” status or alternatively, permanent residence; that section 4(3) does not apply to persons who were born before 1 January 2013 and that section 4(3) must be read with section 2(2) of the Act in this matter.

The Court held that section 2(2) did not apply in this matter and that the Respondents’ argument to apply for refugee status or permanent residence is prejudicial.

With regard to the argument of retrospectivity, the Court held that it cannot envisage an incorrect application of retrospectivity in these circumstances. The Respondents’ argument, put differently, was that only those individuals born after 1 January 2013 and who became a major thereafter can apply for citizenship, with the effect that section 4(3) will only become operational on 1 January 2031.  

The Court held that this interpretation takes no account of the duty to interpret statutes in accordance with the Bill of Rights in the Constitution of the Republic of South Africa, 1996. The court also held that this interpretation may infringe on the Applicants’ right to equality and dignity enshrined in our Constitution.

The Court thus ordered that the Respondents accept applications for citizenship from the Applicants and that section 4(3) shall apply to people born before 1 January 2013 if they meet the requirements of the section.

The Respondents were ordered to enact the necessary forms to allow for applications in terms of section 4(3) and to accept applications on affidavit pending the enactment of the forms.

The Minister appealed the High Court decision in 2018 but the Supreme Court of Appeal (“SCA”) agreed with the High Court regarding the interpretation of section 4(3) of the Act.

The Minister raised a new argument in the SCA stating that the Respondents (the five Applicants from the High Court) should have put the Minister on terms and requested him to deal with the application in terms of section 25 of the Act.

This argument holds no water as the Respondents were never given an opportunity to apply for citizenship and its difficult to see how the Minister could have made any decision without application forms. The Respondents were simply turned away.

The SCA, in conclusion, agreed with the High Court, and ordered the same order as that of the High Court with the amendment that “The Minister shall” enact the necessary forms to allow for applications in terms of section 4(3) and to accept applications on affidavit pending the enactment of the forms.

Last year, the Minister sought to appeal the SCA decision as well, taking the five Respondents to the Constitutional Court. The Constitutional Court refused to entertain the Minister’s appeal as the appeal was well beyond the prescribed period for appealing a judgment and the Minister failed to provide adequate reasons as to why there was a delay in the appeal. This means that the SCA decision stands and that the five young adults’ applications should be processed.

However, the Minister has not given any indication that Regulations in terms of section 4(3) can be expected any time soon. This is unacceptable, as the Minister was ordered by the SCA to produce the Regulations at the end of 2018.

This now leaves the five young adults, and many other persons, waiting in agony as there has been no progress from the Minister regarding the Regulations or accepting applications due to the Minister waiting months to appeal the order granted against him each time, thus delaying processes.

The delays and non-compliance from the Minister pose a threat to the Rule of the Law and the Constitution as well as the values enshrined within it because the Minister is denying individuals a right which they legitimately hold. Hawk eyes will be laid on the Minister, watching his next move and specifically, as to when he will provide the Regulations in terms of the Act.

Read More

Temporary Employer/Employee Relief Scheme ( TERS)

The Department of Employment and Labour has published Regulations and a guide to enable businesses to apply for funding to assist employees where employers are unable to pay them during the 21 day lockdown – and up to a period of 3 months.

The key criteria are:

  • Business has closed due to Covid-19
  • Suffering financial distress
  • Covers salary costs of an employee up to a maximum of R 17 712,00 per month per employee
  • Capped to income replacement rate as per Unemployed Insurance Fund – 38% to 60%
  • Where amount work out less than minimum wage – minimum wage for industry will be paid to employee
  • Business must be registered with UIF
  • No salary payment is made by business to an employee during period

Employers wanting to register for TERS must mail Covid19ters@labour.gov.za. A response will be received detailing process to be followed.

https://www.blcattorneys.co.za/wp-content/uploads/2020/03/Ters-Relief-Regulations.pdf

https://www.blcattorneys.co.za/wp-content/uploads/2020/03/Ters-guide.pdf

Read More

COVID-19 REGULATIONS: IMPLICATIONS FOR RESTAURANTS

Government has taken steps to prevent an escalation of the COVID-19 disease. The disease is a pandemic and has serious consequences regarding the health of citizens as well as the economy.

The steps have a significant impact on the hospitality industry sector comprising restaurants, taverns, pubs and function venues regarding the sale of liquor (defined as on consumption premises).

A separate dispensation applies to accommodation establishments.

The wording used in the Regulations leaves much to be desired.  It appears that Government’s motive in targeting establishments selling liquor for on consumption purposes would serve to restrict patronage at on consumption licensed premises.

The Regulations supersede any liquor selling hours determined either in Provincial or Municipal legislation.

Generally, a gathering may only take place to a maximum of 100 persons (where no liquor is sold) but on consumption premises are now restricted to a maximum of 50 persons.

Gathering means any assembly, concourse or procession of more than 100 persons, wholly or partially, in open air or in a building or premises.

On consumption premises selling liquor must be closed between 18h00 and 09h00 the next morning on weekdays and Saturdays and from 13h00 to 09h00 the following day on Sundays and public holidays.

On consumption premises must comply with the defined adequate space availability restriction, and hygienic conditions as well as limit exposure to persons with COVID-19.

Adequate space means not more than 1 person per square metre of floor space.

Although there is provision for an offence regarding exceeding the 50-person limitation there is no reference to an offence in the event of not complying with the closure provisions – a clear oversight by the drafter.

On consumption premises are exempt from the Regulations should the owner suspend the sale of liquor as part of the business operation. The benefits are that the business can then accommodate 100 patrons at any point in time and trade at any hours.

In the event that the sale of liquor is suspended patrons are permitted to bring their own liquor onto the premises subject to the proprietor permitting same.

Read More

COVID-19 REGULATIONS: IMPLICATIONS FOR ACCOMODATION ESTABLISHMENTS

The Minister has published Regulations in terms of the Disaster Management Act relating to Accommodation establishments.

The Regulations are currently of force and effect due to the promulgation thereof.

Regulation 3(3) provides that “The assembly of more than 50 persons at premises where liquor is sold and consumed is prohibited.”

Regulation 8(2) provides that “All premises selling liquor which provide accommodation must implement measures to stop the spread of COVID-19: Provided that adequate space is available and that all directions in respect of hygiene conditions and limitation of exposure to persons with COVID-19 are adhered to.”

The wording and content reflected in the Regulations leaves much to be desired.


An accommodation establishment is not affected by Regulation 8(4) relating to restricted times when the business may be open for trading.

One reason for the COVID-19 measures introduced is to restrict close contact as between large groups of persons. The Regulations seek to further restrict the current general 100 person gathering limit to 50 persons regarding premises where the sale of liquor takes place on such premises and is consumed there.

Although many accommodation establishments can meet the 50-person limitation, there are selected establishments providing beds in excess of such figure.

Although reduced occupancy rates will in all probability occur (already a factor due to the travel bans and impact of the virus around the world), it could not have been intended by the legislator that a proprietor with a large accommodation component must restrict occupancy to 50 guests with regard to the provisions of Regulation 3(3).

By analogy, a large corporation employing in excess of 100 employees at premises would then likewise fall foul of such figure. Therefore, Regulation 3(3) can only apply to the provisions contained in Regulation 8(1) relating to other on-consumption premises selling liquor, including taverns, restaurants and clubs (but excluding accommodation) where a 50-person limit is effective.

In summary, it is business as usual for accommodation establishments subject to compliance in terms of Regulation 8(2).

Read More

COVID-19 REGULATIONS: IMPLICATIONS FOR LIQUOR STORES

The relevant Minister has promulgated Regulations in terms of the Disaster Management Act regarding the times off consumption liquor premises may be open for trading.

The times are of immediate force and effect.

The times apply to all liquor stores in South Africa and override any existing dispensation.

The terminology used is clumsy as the Minister refers to a store “closing” whereas there is both an opening and closing scenario in terms of times. The Minister should have referred to selling hours as defined in current liquor legislation.

The stipulated times are:

  • 09h00 to 18h00 on Weekdays and Saturdays; and
  • 09h00 to 13h00 on Sundays and Public Holidays.

The Minister has omitted to provide that non-compliance is an offence – failure to comply with other provisions are reflected as offences involving jail and fine sanctions. 

Read More

DON’T BE A PUSH – R50 000 DAMAGES AWARD FOR CALLING SOMEONE FEMALE GENITALIA

On the 7th of March 2019, the East London High Court ruled in favour of an aggrieved East London businessman for an action founded in injuria, after an incident of reckless driving resulted in the man being called a “p***”.

Injuria is where one party unlawfully, intentionally and seriously impairs the dignity of another.

On 23 July 2016, the plaintiff drove his vehicle in Gonubie, an affluent suburb in East London, in such a manner that attracted the attention of other road users. It was common cause that the plaintiff exceeded the speed limit and erratically drove his vehicle. 

At a parking lot near the Gonubie Hotel, other drivers proceeded to reprimand the plaintiff based on the reckless manner of how he drove his vehicle. Thereafter, the defendant parked next to the plaintiff’s vehicle and joined in the reprimand. The defendant uttered the words “Go back to Duncan Village (an area that was designated for black and coloured people in East London during Apartheid) and drive like that there you p***. You will be f***** up here.” The plaintiff alighted from the vehicle and approached the defendant’s vehicle, aggressively, to enquire as to why he was being threatened. Observing this, the defendant proceeded to pepper spray the plaintiff.

The defendant’s legal counsel contended that to call somebody a “p***” is essentially a meaningless abuse and to say to another “you will get f***** up here” conveys only that some aggression will be metered out to someone, but does not infringe on the dignity of a person. It was also contended that it is difficult to ascribe damages to the words flowed from the words ‘go back to Duncan Village’. If any damages should flow from there, they deserve to be minimal.  

Acting Judge Victor Nqumsa (Nqumsa AJ), was of the opinion that in order to have an appreciation of the effect of the offensive words uttered, he must find it necessary, as a point of departure, to consider the imperatives of the Constitution of the Republic of South Africa, 1996 (“the Constitution”).

The value of human dignity is safeguarded and promoted by the recognition of the right to dignity in the Bill of Rights. Human dignity, the achievement of equality and the advancement of human rights and freedom, are the foundational values of the Constitution and these values enjoy the first spot in the ranking of rights enshrined in the Bill of Rights.

Nqumsa AJ went on to evaluate the word p*** by referring to the “HAT Verklarende Handwoordeboek van die Afrikaans Taal” by Odendaal et al which defines “poes” as meaning, “vroulike skaamdele vulva”. In the “Reader’s Digest Afrikaans – Engelse Woordeboek” “skaamdele” is defined as meaning “genitalia, private and sexual parts of a woman.” From these definitions, Nqumsa AJ found, undoubtedly so, that a man who is referred to as being a “private part” of a woman must surely find it insulting and his dignity impaired thereby.

Similarly in Brenner v Botha 1956 (3) SA 257 (TPD), the words “bloody bitch” was used and the court found that “although the word “bitch” might be meaningless as affecting the reputation of the person to whom it is applied, the words “bloody bitch” used in the context complained of by the plaintiff was certainly offensive and was intended to “humiliate the plaintiff”.

In the case of Ryan v Petrus 2010 (1) SA 169 ECG, Judge Pickering stated that “In a case of verbal injury, otherwise in cases of defamation, the words complained of must impair the plaintiff’s dignity and must be insulting in the sense that they must amount to degrading, humiliating or ignominious treatment.” Nqumsa AJ thus found that the word “p***” in the circumstances was not used in an innocuous sense but was intended to be harmful to humiliate the plaintiff, thereby impairing his dignity.

The court then went on to deal with the appropriate damages that need to be awarded. In Ryan v Petrus it was held that, in assessing damages, regard must be had to a range of factors arising from the circumstances and facts of the case, including the nature and gravity of the violation of the plaintiff’s dignity, the social standing of the parties and the absence of an apology by the defendant. 

The court also took cognisance of the fact that one should not lose sight of the general circumstances under which the injuria was committed, in that the plaintiff alighted from his vehicle and confronted the defendant aggressively. If this did not happen, an altercation most probably would not have ensued, as well as the use of pepper spray and insults that followed from the defendant. Nqumsa AJ stated that “A lack of restraint by the plaintiff contributed to the unacceptable behavior of the defendant but this does not, in any way, excuse the wrong committed by the defendant, even more so in the absence of remorse from the defendant.”

Taking the above facts into consideration, the court awarded the plaintiff for the claim of injuria in the amount of R 50 000.00 and R 10 000.00 for the assault of being pepper sprayed.

“Don’t be a push”, watch your words.

Author: Mikhael Cain

Read More

PREVENTION AND COMBATING OF HATE CRIMES AND HATE SPEECH BILL

South Africa is a country riddled with discrimination. This is made worse by the fact that it comes from different fronts and there can be a fluid transition from the perpetrator to the victim. For example, person A will discriminate against person B based on race. The next day person A will discriminate against person C based on gender. Thereafter, person B will discriminate against person C based on nationality. South African law makers, with the aid of the Constitution of the Republic of South Africa, 1996, (“the Constitution”) have tried to redress the ills of the past, but unfortunately, ignorance, prejudice and intolerance have no expiration date.  In an attempt to curb these alarming levels of discrimination and hate, the South African parliament has introduced a new Bill called the Prevention and Combating of Hate Crimes and Hate Speech Bill (“the Bill”).   

THE CONSTITUTION

The founding provisions of the Constitution set out certain values in the Bill of Rights, including, human dignity, the achievement of equality and the advancement of human rights and freedoms, non-racialism and non-sexism.

This Bill of Rights prohibits direct or indirect discrimination on the grounds of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. 

Further, the Bill of Rights gives everyone the right to freedom of expression. However, this right is limited in that it does not extend to the following categories:

  • Propaganda for war;
  • Incitement to imminent violence; or
  • Advocacy of hatred that is based on race, ethnicity, gender or religion, which constitutes incitement to cause harm.

PREVENTION AND COMBATING OF HATE CRIMES AND HATE SPEECH BILL

The primary aim of the Bill is to create offences relating to hate crimes and hate speech and to put in place measures to prevent and combat these offences.

Hate Crime

A hate crime is committed when a person commits any recognised offence under any law, commonly referred to as the “base crime” (e.g., murder, theft, arson, etc.) and the commission of that base crime is motivated by prejudice or intolerance on the basis of one or more of the following characteristics or perceived characteristics of the victim on the following listed grounds:

  • age;
  • albinism;
  •  birth;
  •  colour;
  • culture;
  • disability;
  • ethnic or social origin;
  • gender or gender identity;
  • HIV status;
  • language;
  • nationality, migrant or refugee status;
  • occupation or trade;
  • political affiliation or conviction;
  • race;
  • religion;
  • sex, which includes intersex; or
  • sexual orientation.

An example of a hate crime would be when one person robs another person (“base crime”) and is motivated by their prejudice against the victim’s race.

Hate Speech

Hate speech is when any person intentionally publishes, propagates, advocates or communicates anything, to one or more persons, in a manner that could be reasonably construed as demonstrating a clear intention to be harmful or to incite harm, or to promote or spread hatred based on any one of the following listed grounds:

  • age;
  • albinism;
  •  birth;
  •  colour;
  • culture;
  • disability;
  • ethnic or social origin;
  • gender or gender identity;
  • HIV status;
  • language;
  • nationality, migrant or refugee status;
  • occupation or trade;
  • political affiliation or conviction;
  • race;
  • religion;
  • sex, which includes intersex; or
  • sexual orientation.

An offence of hate speech is committed when hate speech material is intentionally distributed or made available on the internet, and the said person knows that such electronic communication constitutes hate speech.

One can also be guilty of an offence of hate speech when one intentionally displays any material or makes available any material, knowing that such material constitutes hate speech, and is accessible by or directed at a specific person who can be considered to be a victim of such aforementioned hate speech.

As with most general rules, there are exceptions. From the scope of hate speech, the Bill excludes the following:

  • Anything done in good faith in the course of engagement in any bona fide artistic creativity, performance or expression, as these actions do not advocate hatred that constitutes incitement to cause harm based on the listed grounds below:
  • Any academic or scientific inquiry;
  • Fair and accurate reporting or commentary in the public interest; or
  • The bona fide interpretation and proselytising or espousing of any religious tenet, belief, teaching, doctrine or writings, to the extent that such interpretation and preaching does not advocate hatred that constitutes incitement to cause harm, based on one or more of the listed grounds.

An example of alleged hate speech and intolerance can be seen where a Durban man, Kessie Nair, posted a video online calling president Cyril Ramaphosa the K-word. Interestingly enough, after Mr Nair was arrested and denied bail, his legal representative stated that the State was on a witch hunt to persecute Nair and that “he is being persecuted because he’s Indian”.

Unfortunately, hate, prejudice and intolerance does not have a termination date. South Africa needs to urgently address racism, gender-based violence, homophobia and other forms of discrimination. It is hoped that when the Bill is enacted and becomes law, there will be a positive shift in the mindsets of South Africans, and that people who expose their discriminatory and hateful ideologies under the guise of “freedom of expression” experience the full might of the law.

Author: Mikhael Cain

Candidate Attorney

Read More

COUNTDOWN REGARDING POPIA

The Protection of Personal Information Act (“POPIA”) has been passed into law but awaits a date to be implemented – possibly 2020.

POPIA itself is short in length but devilish in detail. It certainly cannot be digested or implemented by way of a “one size fits all” approach. Each business needs to be audited for aspects where POPIA will apply to the business.

POPIA requires that any business proactively takes steps to protect personal information of any customer, employee or third party interacting with the business.

The consent of the person is required to be in place where any such information is used.

The identified areas where a business needs to take measures can be boxed separately into:
– Information Technology – securing all internet portals and contact against hacking of information, website consent management, online marketing consent and retention of third party of information in digitised format.
– Physical location where business is conducted from – measures required to be taken at the business premises to restrict access to personal information held by the business. This relates, for instance, to restricted access areas at the business as well the destruction of hard copy documentation.
– Human resources – securing and destroying of personal information of employees, information relating to prospective employees following interview sessions.

Whilst most large corporations and financial services providers are POPIA proofing their operations, the same cannot be said of medium and smaller organisations. The exercise is complex and time consuming. Simply put, it will not be possible to implement the required controls at short notice and particularly when alarm bells are set off.

Some law firms have already invested considerable time and resources in training their selected professional and support staff to provide POPIA compliance implementation to business owners.

The advent of the Internet of Things (“IOT”) with its use by virtually every business for everyday communication needs and advertising their goods or services and the marketing and sales benefits led to the need to protect customers and third parties regarding their personal information.

Data sourced and held by a business relating to personal information is now touted as the new oil for profit utilisation by both marketing organisations and hackers.

Although preventing a data breach may prove impossible (as hackers are financially incentivised via a ransom demand or selling the data on the Dark Net) the Information Regulator will nonetheless examine compliance steps initiated by the business when assessing the severity of the sanction to impose.

POPIA provides for a fine of up to ten million Rand or a jail sentence up to ten years for non-compliance.

Business owners are urged to immediately place POPIA initiation on their urgent to do list.

Author: Guy Dakin
Director

Read More

THE CHILD JUSTICE AMENDMENT BILL

The Child Justice Act, No. 75 of 2008, regulates the rights pertaining to children under 18 years of age and how those children who fall foul of the law are dealt with or treated by the criminal justice system, thus giving effect to section 28 of the Constitution of the Republic of South Africa as well as discharging South Africa’s international obligations as a signatory to the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. 

The question of criminal capacity relating to children has always been a contentious one, that is, at what age does a child have the mental acumen to distinguish right from wrong; have an understanding of the consequences of their actions; and be held accountable for them. Prior to the adoption of the Child Justice Amendment Bill by Parliament’s Portfolio Committee on Justice and Correctional Services on 14 November 2018, the minimum age of criminal capacity was 10 years. This has now been increased to 12 years.

This means that children under the age of 12 years can now not be arrested or prosecuted for any crime. Instead, where a police official has reason to believe that a child suspected of having committed an offence is under the age of 12 years, he or she must, in the prescribed manner, immediately hand the child over to his or her parents or an appropriate person or guardian or if there is no parent, appropriate person or guardian available, or if it is not in the best interests of the child to be handed over to the parent, an appropriate person or guardian, the child must be handed over to a suitable child and youth care centre, and must notify a probation officer. Previously the word “adult” was used instead of “person” as is now the case.

Children who are 12 years or older, but under 14 years of age, are presumed to have criminal capacity, but the State must prove beyond a reasonable doubt that the child had the ability to appreciate the difference between right and wrong at the time of the commission of the alleged offence and had the ability to act in accordance with that appreciation. Children over 14 years of age are regarded as having the mental ability to distinguish right from wrong and can appreciate the consequences of their actions, meaning they can be prosecuted for their actions.

The law has now been amended to provide for three categories of crimes and the appropriate punishment for each category, with serious offences being adjudicated by the Child Justice Court which may sentence a convicted child to community service, youth care centres or even prison, with the latter applying only if the child is a repeat offender who has been sentenced to a youth care centre before, and even then to a maximum of twenty-five years in jail.

The issue of children being used by adults or even older children in the commission of crimes was also discussed by the committee and to this end, in cases of the latter, the word “adult” is substituted with “persons”. 

The Bill further provides for the revision of the age for criminal capacity, with the Minister of Justice being required to submit a report on the issue within five years.

Author: Xoliswa Mtulu-Dotwana

Read More

THE TRADITIONAL COURTS BILL 2017

The Traditional Courts Bill was first tabled and discussed at the Justice and Correctional Services Committee in Parliament (“the Committee”) on 6 March 2019 and it was then passed by the National Assembly on 12 March 2019.

The Bill cites, as its guiding principles, a need to bring traditional courts and their functions in line with the Constitution, particularly with regard to the right to human dignity, the right to equality, the advancement of human rights and freedoms, the promotion of the principles of non-racialism, non-sexism, the freedom of sexual orientation, the freedom of identity and religion, and to promote the principle of restorative justice through mediation and conciliation.

The Bill provides a list, which is non-exhaustive, of customs and practices which are prohibited on the basis that they infringe on the dignity, equality and freedom of persons, including “LGBTI discrimination”, homophobia, discrimination against persons who are mentally or physically disabled, discrimination against persons with albinism and discrimination against unmarried persons.

The Bill provides that any person may institute proceedings in respect of a dispute in any traditional court. The limitation to this, however, is that the nature of disputes which a traditional court may hear is limited to the following:

  • crimen injuria (viz. the unlawful impairment of another’s dignity);
  • matters relating to the practice of “ukuThwala”, initiation, customary law marriages, custody/guardianship of minor children, succession and inheritance and customary law benefits;
  • theft, malicious damage to property, burglary and receiving stolen property, subject to the value in question not exceeding R15,000;
  • customary law matters where the matter in dispute does not exceed an amount determined by the Minister from time to time by notice in the gazette;

Specific exclusions include:

  • cases which are being investigated by SAPS; or
  • cases which are pending before another traditional court or any other court; or
  • cases which have been finalised by any other competent criminal or civil court.

In terms of the Bill, the traditional court system is constituted by the various levels of traditional leadership as contemplated in the Traditional Leadership and Governance Framework Act of 2003. It also provides that a traditional court is presided over by a traditional leader or any person designated by the traditional leader.

One point of concern or contention to various commentators and political parties is that the Bill does not contain a formal “opt-out” clause in instances where a party to the proceedings is not inclined to submit to the jurisdiction of a traditional court. It also does not provide, for instance, for the transfer of a matter to a Magistrate’s Court. The possible transfer of matters to a Magistrate’s Court is, however, left to a justice of the peace who, after being apprised of the failure of a party to attend to court, is empowered to “request” the traditional court to have the matter transferred to a Magistrate’s Court. This raises a concern in that this provision, which appears to be non-mandatory, does not seem to provide a solid solution to persons who do not wish to be subject to the jurisdiction of a traditional court.

The Bill also provides that parties to a dispute may be assisted by a person of their choice, but none of them may be represented by a legal practitioner, and hearings are open to all members of the community.

The Bill empowers the traditional court to make the following orders:

  • an order directing that the matter be submitted to the national prosecuting authority for the possible institution of criminal proceedings;
  • a non-monetary order for the rendering of a service, subject to the consent of both parties, if the party against whom the order is made cannot comply with a financial order;
  • some form of community service, provided that no service may be rendered to a traditional leader or family;
  • an order in monetary terms or otherwise, including livestock, provided that any such order may not exceed the value of the damage giving rise to the dispute;
  • accept an unconditional apology as part of a settlement between parties or it may simply issue a reprimand.

The Bill provides that, if an order of a traditional court is not complied with, the clerk of the court must refer the matter to a justice of the peace, who is empowered to summons the defaulting party to a traditional court for purposes of having the matter transferred to a Magistrate’s Court. In this instance, the matter is to be dealt with afresh in the competent Magistrate’s Court.

The Bill also provides that a party to the proceedings may take the matter on review to the High Court, but such a review is limited to procedural issues, and may not concern the merits of the case. If it concerns the merits, the aggrieved party may, after exhausting all traditional court system appeal procedures, “refer” the matter to a Magistrate’s Court, which is entitled to hear evidence and to make whatever ruling it deems appropriate.

Click this link for the Bill:

http://www.justice.gov.za/legislation/bills/2017-TraditionalCourtsBill.pdf

Author: Tembi

Read More
  • Contact Us

    Email Us:
    legalservices@blclaw.co.za

    Port Elizabeth
    4 Cape Road, Central,
    Port Elizabeth
    Tel: 041 506 3700

    East London
    123 Western Avenue, Vincent,
    East London
    Tel: 043 050 4205

    Grahamstown
    1 Oatlands Road,
    Grahamstown
    Tel: 046 940 0092

  • Newsletter Sign Up

  • BEE Profile

    We are a Level 1 contributor in terms of the BBBEE Act, in compliance with the amended codes of good practice.

We use cookies to help improve your experience of our website by measuring how it's used. Read our Privacy policy for more information.