VIGILANTLY OR CRIMINAL? TAKING THE LAW INTO MY OWN HANDS

If someone gets something of theirs stolen, they might be tempted to go take it back, by force if necessary. However, that would be considered illegal and would put your belongings back into the hands of the thief.

Mandament van Spolie

The Mandament van Spolie is an extraordinary, quick and robust remedy for the restoration of possession. Its purpose is to restore possession to the person who was deprived, and is based on the principle that no man should take the law into his own hands.

Since the object is to restore possession to the applicant, the court will not consider any defences based on the respondent’s rights of ownership. Therefore, neither the applicant nor the respondent need to prove ownership. Only the requirements listed below need to be proven. Based on this unique characteristic of the Mandament van Spolie this remedy can be used by a thief or any other person without the right of ownership. The Mandament van Spolie is a final order and is appealable. The respondent, however, may continue with other proceedings if he is the owner.

The requirements for this remedy were set out in two important decisions that are still relevant in this regard, namely Nino Bonino v De Lange 1906(T) and Yeko v Qana 1973(A).

  1. Proof that the applicant was in peaceful and undisturbed control of the property. The first requirement means that the applicant had control over the property in question. For purposes of the spoliation remedy this control must have existed “peacefully and undisturbed” for a period long enough, and in a manner stable enough, to qualify any unlawful disturbance of the peace.
  1. Proof that the respondent took or destroyed that control by means of unlawful self-help or spoliation. The second requirement for the spoliation remedy is that the existing peaceful and undisturbed control must have been unlawfully spoliated by the respondent.

Conclusion

The spoliation remedy is aimed at preserving peace and order in the community. People cannot be permitted to circumvent the remedy by contract. Parties to a contract cannot agree that one of them will be permitted to take property from the other without proper legal procedure.

Reference:

  • A J van der Walt & G J Pienaar: Introduction to property law, 5th edition, pp 218-223.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

WHAT IF YOU’VE BEEN A VICTIM OF CYBERCRIME?

In the modern age, more and more criminals are exploiting the speed, convenience and anonymity of the internet to commit a diverse range of criminal activities that know no borders, either physical or virtual, and cause serious harm to victims worldwide.

In December 2016, cabinet gave the green light for a Cybercrimes and Cybersecurity Bill that has sparked criticism over its potential to curb a free internet. Cabinet said the bill is about, “combatting cybercrime, establishing capacity to deal with cybersecurity and protecting critical information infrastructures”.

What is cybercrime?

Cybercrime takes many different forms, such as using financial information to commit an offence, unlawful interception of data, computer related forgery, extortion, terrorist activity and the distribution of ‘harmful’ data messages.

Hackers can get access to your computer by simply sending you an e-mail that automatically causes malware software to download as you open the mail. The hacker then has full access to your computer and the data in it and can lock you out. So, what should you do if you have been a victim of cybercrime?

  1. Disconnect: If you’re a victim of a hack, then you should disconnect from the Internet immediately. If you’re connected via Wi-Fi, phone or Ethernet cable, you need to disable the connection as soon as possible.
  2. Scan your PC: It’s a good idea to have antivirus software to scan your computer.
  3. Create a backup: Create regular backups of your files and folders.
  4. Reinstall your operating system: Depending on the severity of the attack, it might be necessary to reinstall the operating system of your computer.

Online Fraud

If you’ve been a victim of online fraud, such as your credit card information being stolen, then try the following:

  1. Close all accounts: If you find that you are the victim of online fraud or identity theft, the first thing you should do is close all affected accounts immediately.
  2. Contact your bank: By contacting your bank, you can notify them regarding the fraud and its source. They can also assist you in recovering any stolen finances and issuing new cards.

The new Cyber and Security Bill creates about 50 new offences for crimes such as hacking, using financial information to commit an offence, unlawful interception of data, computer related forgery, extortion, terrorist activity and distribution of ‘harmful’ data messages. Hopefully, this will help curb the growth of illicit online activities.

References:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

CAN I BE PROSECUTED FOR BREAKING THE SPEED LIMIT?

Mandie is cruising along at 31 km/h over the speed limit in an attempt to keep up with the rest of the cars on the road. She thinks she is simply going with the flow of the traffic when suddenly she sees flashing lights in her rear-view mirror. Mandie does not take traffic laws seriously and has come to accept traffic fines as a “fact of life”. She regards transgression as bending the rules rather than the commitment of a crime.

Months later, when the traffic notice arrives in the post, Mandie prepares herself for a speeding fine but is shocked when the notice informs her that she has to appear in court. Unknown to Mandie and most other South Africans, an amendment to Section 35 of the National Road Traffic Act (the Act) was enacted in 2010. This means the driver of a motor vehicle that exceeds the maximum speed limit by more than 30 km/h may be criminally prosecuted and that, if convicted, his/her driver’s license may also be suspended.

This provision could be disastrous for many road users. Not only is Mandie required to appear in court, but she could also face the prospect of having her license suspended and, what’s more, receive a criminal record.

Section 35 of the National Road Traffic Act:

  1. In terms of Section 35(1)(aA)(i) and (ii) the phrase “in excess of” means a speed of 31 km/h or more over the speed limit in an urban area and a speed of 41km/h or more over the speed limit outside an urban area or on a freeway.
  2. If you commit any one of these offences and are stopped at the time of the offence, you will be arrested. You will accordingly be released on bail to appear in court on a stipulated date and time.
  3. If you are not stopped at the time, you will receive a notification in the post that you will be summonsed to appear in court in a “No Admission of Guilt” matter.

The consequences

The notice will inform you that a summons in terms of Section 54 of the Criminal Procedure Act will be issued and served on you. Failure to appear in court on a criminal summons will lead to a warrant for your arrest being issued.

The Act requires a person to be convicted of an alleged offence before legal consequences follow. Since speeding as described above is a criminal offence, the State will still have to prove beyond a reasonable doubt that a person is guilty of such offence.

Furthermore, the suspension of your driver’s license for the period stipulated in the Act is not an optional requirement. It is a mandatory suspension period. One’s license will be suspended for six months in the case of a first offence. Where a person is found guilty of a second offence, his/her license may be suspended for five years and, in the case of the third or subsequent offence, for ten years.

Although many judicial officers (magistrates) have interpreted Section 35(3) as giving them discretion about suspension of your license, it does not mean that if suspending your driver’s license will prejudice you, your license will not be suspended.

Conclusion

The simple principle is that speeding can have dramatic consequences, so do not speed under any circumstances.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

WHEN CAN SOMEONE BE RELEASED ON BAIL?

People are often outraged when they hear of accused persons who have been released on bail. There are several factors to be considered when deciding whether someone should be let out on bail or not.

Who is allowed bail?

According to section 35(1)(f) of the Constitution[1] everyone who is arrested for allegedly committing an offence has the right to be released from detention if the interests of justice permit, subject to reasonable conditions. This provision sets out that the law cannot take away an innocent person’s freedom arbitrarily, but recognises that in certain circumstances it may be in the interests of justice to take away or limit this freedom.[2]

When can bail be refused?

The next question that arises is how we know when the refusal to grant bail is in the interests of justice. According to section 60(4) of the Criminal Procedure Act[3] (CPA), the interests of justice do not permit the release from detention of an accused where one or more of the following grounds are established:

  1. Where there is the likelihood that the accused, if released on bail, will endanger the safety of the public or any particular person or will commit certain offences;
  2. Where there is the likelihood that the accused, if released on bail, will attempt to evade trial;
  3. Where there is the likelihood that the accused, if released on bail, will attempt to influence, intimidate or conceal witnesses or destroy evidence;
  4. Where there is the likelihood that the accused, if released on bail, will undermine or jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system;
  5. Where there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security.[4]

In considering whether the grounds in (a) to (e) above have been established, various factors, which are set out in Sections 5 – 9 of the CPA, may be taken into consideration, these include the following:

  1. The degree of violence towards others implicit in the charge;
  2. The accused’s ties to the place at which he or she is to be tried;
  3. Assets and travel documents held by the accused;
  4. The accused’s relationship with the witnesses and the extent to which they could be influenced;
  5. Whether the accused supplied false information during his or her arrest or bail proceedings;
  6. Any previous failure to comply with bail conditions or indications that he or she will not comply with any bail condition;
  7. Whether the nature of the offence or the circumstances under which the offence was committed is likely to induce a sense of shock or outrage in the community; and
  8. Whether the shock or outrage of the community might lead to public disorder if the accused is released.[5]

The court decides whether the accused should be let out on bail by weighing the interests of justice against the right of the accused to his or her personal freedom and in particular the prejudice he or she is likely to suffer if he or she were to be detained in custody, and must take into account, inter alia, the period for which the accused has been in custody; the probable period of detention until the end of the trial if bail is not granted; the reason for any delay in the trial and any fault on the part of the accused; any impediment to the preparation of the accused’s defence due to the detention of the accused, and the accused’s state of health.[6]

When dealing with Schedule 5 and 6 offences the accused will be detained in custody unless the accused can show the court that it is in the interests of justice or that exceptional circumstances exist which permit his or her release, respectively. [7]

Conclusion

It’s clear that the court must weigh up many factors against each other and although we do not always understand why accused persons are released on bail, anyone would want a fair bail application if they found themselves in a similar position.

References:

  • The Constitution of the Republic of South Africa, 1996
  • J Chaskalson & Y De Jong – Criminal (In)Justice in South Africa, 2009:86
  • The Criminal Procedure Act 51 of 1977

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

THE CONSEQUENCES OF DRINKING AND DRIVING

With the festive holidays fast approaching, it’s necessary to address the consequences of drinking and driving. Unfortunately, the holidays bring devastating road accidents, with families being injured and losing members due to drunk-driving related incidents.

What does the law say?

  • According to the Road Traffic Act 93/96, which has been in effect since March 1998, no person shall on a public road:
    • Drive a vehicle; or
    • Occupy a driver’s seat of a motor vehicle, the engine of which is running, while under the influence of intoxicating liquor or a drug having a narcotic effect.
  • No person shall on a public road:
    • Drive a vehicle; or
    • Occupy a driver’s seat of a motor vehicle, the engine of which is running, while the concentration of alcohol in any specimen of blood taken part of his or her body is not less than 0,05 grams per 100 millilitres.
  • If, in any prosecution for a contravention of the provisions of subsection (2), it is proved that the concentration of alcohol in any specimen of blood taken from any part of the body of the person concerned was not less than 0,05 grams per 100 millilitres at any time within two hours after the alleged offence, it shall be presumed, until the contrary is proved, that such concentration was not less than 0,05 grams per 100 millilitres of blood at the time of the alleged offence.

What happens if you are caught?

  1. You will be arrested for being over the limit: If you are suspected of driving over the limit, you will be Breathalysed.
  2. Your blood will be taken: If the Breathalyser tests positive, you will be taken into custody and sent for further testing at an alcohol testing centre.
  3. You will be detained: Once you have been arrested you will be taken to a police station, where you will be detained in the holding cells for at least four hours to sober up.

After your release, a docket will be opened and you will be allocated an investigating officer who will follow up your blood test results.

Conclusion

Getting behind the wheel after drinking alcohol should not be an option. People should always use an alternative option, such as getting a lift with someone else, Uber, or using a taxi. Besides the fact that drinking and driving could cost you or someone else their life, it also has severe legal consequences.

References:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

BALANCING FREEDOM OF EXPRESSION AND DEFAMATION

Defamation law in South Africa is one of the most debated topics in our legal system. The reason being that South Africa is a democratic country founded on human dignity, equality and freedom of expression, to name just a few. These founding provisions in our constitution, together with the relevant Human Rights provisions, make it difficult to find an equitable balance between these competing rights in defamation cases. Many agree that a free press is an important part of an open and democratic society, but that false, unjustifiable attacks on an individual’s reputation are damaging and wrong. How do our courts find a balance between these competing rights?

What about the constitution?

The relevant section in the Constitution is Section 36, which provides for the limitation of rights in the following circumstances. The first requirement is that the law must be of general application. Secondly, the limitation must be reasonable and justifiable in an open democratic society. To determine when it will be reasonable the court will take certain factors into consideration. These factors include the nature of the right, the importance of the purpose of the limitation, the relationship between the limitation and its purpose, and whether less restrictive means were explored to achieve the purpose.

What have the courts decided?

In the Supreme Court of Appeal case of National Media Ltd and Others v Bogoshi the court adopted the attitude that, although there is no constitutional value in false statements of fact, an incorrect statement of fact is nevertheless inevitable in free debate. The publication in the press of a false, defamatory allegation of fact will not be regarded as unlawful if, upon consideration of all the circumstances of the case, it is found to have been reasonable. When a court considers the reasonableness of the publication it will take into account the nature, extent and tone of the allegations, and “greater latitude” will usually be allowed in respect of political discussion. The Court held that the press should bear the onus of showing that the publication was reasonable under these circumstances.

The consequence of the Bogoshi judgement is that if a newspaper can show that a decision to publish was reasonable and justifiable, it will be able to avoid liability even in circumstances where the statements are false.

This reasoning was developed further in Sankie Mthembi-Mahanyele v Mail & Guardian Limited where it was held that justifiability is to be determined by having regard for all relevant circumstances. These include the interest of the public in being informed; the manner of publication; the tone of the material published; the extent of public concern about the information; the reliability of the source; the steps taken to verify the truth of the information; and whether the person defamed has been given the opportunity to comment on the statement before publication. In cases where information is crucial to the public, and is urgent, it may be justifiable to publish without giving an opportunity to comment.

Conclusion

Freedom of expression and defamation are both important parts of South African law. They can both be powerful, but a balance can be maintained between the two, ensuring circumstances to be taken into account, leading to fair judgement.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

DIE VERWEER VAN PROVOKASIE IN DIE STRAFREG

Kan ‘n beskuldigde in ‘n strafverhoor die verweer gebruik dat hy so kwaad geraak het dat hy nie geweet het wat hy doen nie?

In S v Eadie 2002(1) SACR 663 (HHA), het die Hoogste Hof van Appèl uitspraak gelewer wat twyfel bewerkstellig of daar nog ‘n verweer soos nie-patologiese kriminele ontoerekeningsvatbaarheid bestaan.

Die feite in die saak is as volg: X, ‘n kranige hokkiespeler, drink een aand by ‘n sosiale funksie ‘n groot hoeveelheid alkohol. Later die aand klim hy in sy motor en ry huis toe. Y, die bestuurder van ‘n ander motor, steek X verby en bestuur toe baie stadig voor hom sodat X hom nie kan verbysteek nie. Uiteindelik kry X dit reg om vir Y verby te gaan. Y ry toe teen ‘n baie hoë snelheid agter X. Die twee motors stop, X klim woedend uit die motor en gryp sy hokkiestok wat in sy motor was. Hy stap na Y en slaan sy motor met die hokkiestok. Daarna rand hy vir Y aan en ruk hom uit die motor. Y sterf as gevolg van die aanranding. Hierdie is ‘n saak van padwoede. Op die klag van moord opper die beskuldige die verweer van nie-patologiese kriminele ontoerekeningsvatbaarheid.

Die hof bespreek vorige beslissings wat volledig met die verweer handel en dan word daar in par. 57 van die uitspraak bevind dat daar geen verskil is tussen nie- patologiese kriminele ontoerekeningsvatbaarheid te danke aan stres en provokasie aan die een hand, en die verweer van gesonde outomatisme aan die ander hand nie. Meer spesifiek, volgens die hof is daar geen verskil tussen die tweede kognitiewe been van die toets van kriminele toerekeningsvatbaarheid ( X se vermoë

om te handel met die wete dat dit onregmatig/verkeerd is, met ander woorde sy vermoë om die versoeking te weerstaan) en die vereiste wat toepassing vind by die handelingselement dat X se ligaamlike bewegings vrywillig was nie. As X beweer dat hy as gevolg van provokasie homself nie meer kon beheer nie, sou hy dus onwillekeurig opgetree het. So ‘n pleit van onwillekeurige gedrag is niks anders as die verweer van gesonde outomatisme nie.

Die hof bevind nie dat die verdediging van nie-patologiese kriminele onbevoegdheid nie meer bestaan ​​nie en maak wel ‘n paar stellings wat impliseer dat die verweer nog bestaan. Nogtans verklaar die hof dat indien ‘n persoon homself op die verweer van provokasie beroep, kom dit op niks anders neer nie as die verweer van gesonde outomatisme (die verweer dat hy nie vrywilliglik gehandel het nie.) Die hof het ook weereens bevestig dat die verweer van gesonde outomatisme nie maklik slaag nie.

Na die beslissing in Eadie is dit hoogs onwaarskynlik dat ‘n beskuldige sal slaag met ‘n argument/verweer dat as gevolg van sy nie-patologiese kriminele ontoerekeningsvatbaarheid hy vrywillig opgetree het, maar bloot ontoerekeningsvatbaar was.

Hierdie is ‘n algemene inligtingstuk en moet gevolglik nie as regs- of ander professionele advies benut word nie. Geen aanspreeklikheid kan aanvaar word vir enige foute of weglatings of enige skade of verlies wat volg uit die gebruik van enige inligting hierin vervat nie. Kontak altyd u regsadviseur vir spesifieke en toegepaste advies. (E&OE)