The Litigo // September Newsletter 2017

OUR HERITAGE: FRAGMENTS OF OUR TRUE SELF


Jacques Brits

“A concerted effort to preserve our heritage is a vital link to our cultural, educational, aesthetic, inspirational and economic legacies – All of the things that quite literally make us who we are” – Steve Berry

On 24 September 2017, the diverse people of our beautiful country once again celebrated their own and unique heritage which include historical inheritance, language, belief systems, food and many more. Therefore, and in celebration of our country’s most valuable asset, our people, we will investigate the rights pertaining to some of our country’s recent incidents and issues.

  1. Statues in remembrance of our cultural heritage

Due to South Africa’s rich cultural heritage and the iconic figures of our past, various statues have been erected in celebration of a hero or heroine who risked it all for the benefit of our country. Bearing in mind the right of every South African to follow and practice their own and unique culture, religion and language, what are our rights in terms of the vandalisation and removal of cultural statues?

After various precious statues were covered by paint in anger over the last few years, Minister of Defence Nosiviwe Mapisa-Nqakula stated that it was a criminal act in breach of the principles of the Constitution of the Republic of South Africa, 1996.[1] The criminal charge applicable in these circumstances is malicious damage to property which can be defined as the unlawful and intentional damaging of property that belongs to another person. The aforementioned damage must also be tangible and cause financial loss to the person affected.[2]

Section 32(13) of the National Heritage Resources Act of 1999 reiterates the aforementioned by stating that no person may destroy, damage, disfigure or alter any heritage object, without a permit issued by the South African Heritage Resources Agency. The Act furthermore highlights the consultative process that needs to be followed when attempting to remove or relocate an existing statue.[3]

  1. Traditional practice of initiation

Initiation can be described as any customary or cultural practice of traditional communities that is used by such communities as a rite of passage into adulthood in respect of male and female children.[4] With the injuries and deaths to numerous initiates still fresh in our minds, one starts to wonder whether this cultural practice still has a place in the society of today.

The Constitution of the Republic of South Africa, 1996, makes provision for initiation in section 31(1)(a) which states that persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community to enjoy their culture, practice their religion and use their language. Section 28(1)(d)[5] however restricts the aforementioned rights by stating that every child has the right to be protected from maltreatment, neglect, abuse  or degradation.

The Children’s Act 38 of 2005 reaffirms the emphasis on protection of our children by stating that children may not be subjected to social, cultural and religious practices which are detrimental to his or her well-being,[6] while also prohibiting illegal circumcisions to male and females.[7] Furthermore, numerous provinces have promulgated legislation regulating the issue of illegal initiation, initiation schools and circumcision practices.[8]

  1. Religious aspects of our culture and heritage

In MEC for Education: Kwazulu-Natal and Others v Pillay[9], a high school pupil pierced her nose due to religious and traditional reasons. The Respondent argued that the nose stud indicated that her daughter had now become a young woman, who is eligible for marriage. The MEC for Education, as well as the school attended by the Respondent’s daughter, opposed this notion based on the code of conduct of the school which indicated that plain studs may be worn on the ears of the pupils only. In this instance, the Constitutional Court decided that the school discriminated against the pupil, by not affording her the right to pursue her cultural practices, while supporting the other children’s beliefs and cultural practices.[10]

  1. Conclusion

There is no definitive or clear answer when comparing any other rights to the cultural rights of a person. Yes, heritage is of the utmost importance, but at which cost?  In considering this question, emphasis must be placed on the primary rights in the Constitution, namely the right to dignity, equality and life.[11] Therefore and in conclusion, the people of South Africa must have the opportunity to participate in their cultural practices, but within the ambit of our constitution and legislation.

  1. Heritage day / Braai day

The celebration of National Braai Day started in 2005, when the Mzanzi Braai Institute decided that every South African enjoys a good braai, irrespective of their race, gender or heritage.

We hope you all enjoyed Braai Day!

[1]         Wakefield A “Statue vandalism is a criminal act – Mapisa-Nqakula” retrieved from http://www.news24.com/SouthAfrica/News/Statue-vandalism-is-a-criminal-act-Mapisa-Nqakula-20150414 (visited on 15 August 2017)

[2]         Green R ” Malicious damage to property” retrieved from http://www.legaltalk.co.za/malicious-damage-to-property/ (visited 15 August 2017)

[3]         Wakefield A “Statue vandalism is a criminal act – Mapisa-Nqakula” retrieved from http://www.news24.com/SouthAfrica/News/Statue-vandalism-is-a-criminal-act-Mapisa-Nqakula-20150414 (visited on 15 August 2017)

[4]         http://pmg-assets.s3-website-eu-west-1.amazonaws.com/150522draftpolicyoncustomaryinitiation-sa.pdf

[5]         Constitution of the Republic of South Africa, 1996

[6]         Section 12(1) of the Children’s Act 38 of 2005

[7]         Section 12(8) – (10) of the Children’s Act 38 of 2005

[8]         Government Gazette Notice 471 of 2015 dated 22 May 2015 ” Policy On The Customary Practice Of Initiation In South Africa”

[9]        (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October 2007)

[10]        MEC for Education: Kwazulu-Natal and Others v Pillay (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October 2007) Par 166

[11]       Sections 8,9 and 10 of the Constitution of the Republic of South Africa, 1996

LEGAL vs NATURAL GUARDIANSHIP: GUARDIANSHIP OF YOUR MINOR CHILD/CHILDREN UPON YOUR DEATH


Melcom Oosthuizen

We are all familiar with the fact that, upon death, our estates will be governed by the provisions of our wills and testaments. The same applies to what happens with our beloved minor child/children and who will act as their guardian and caregiver upon our death. However, not everyone fully understands the relevance of these provisions and further the legal practicality thereof.

As a starting point, it is necessary to delve into the relevant provisions of the Children’s Act, Act 38 of 2005 (hereinafter referred to as “the Act”).  Guardianship in terms of Section 18(2) of the Act is included amongst the list of parental responsibilities and rights that a person may have in respect of a minor child.

The provisions of Section 18(3) sets out the rights and responsibilities of a person who acts as the guardian of a minor child and includes the following:

“(a) Administer and safeguard the child’s property and property interests;

 (b) Assist or represent the child in administrative, contractual and other legal matters; or

 (c)Give or refuse any consent required by law in respect of the child, including –

  1. Consent to the child’s marriage;
  2. Consent to the child’s adoption;
  3. Consent to the child’s departure or removal from the Republic;
  4. Consent to the child’s application for a passport; and
  5. Consent to the alienation or encumbrance of any immovable property of the child”

The biological mother of a minor child automatically receives full parental rights and responsibilities. The Act in addition to the aforementioned provides a father, whether married to the biological mother or not, similar or equal rights in this regard.

Section 24 of the Act allows any other person having an interest in the care, well-being and development of a child, to approach the High Court for an order granting the person guardianship of the child. The Court in such an application will consider the best interests of the minor child, the relationship between the person and the child and any other fact (in the opinion of the Court) that should be taken into consideration.

Section 27 of the Act deals with the assignment of guardianship and care. It provides that a person/parent who has sole guardianship has the opportunity to appoint a fit and proper person as guardian of the child in the event of their death. This assignment may happen in terms of a will.

In addition, the person appointed as guardian in terms of the will obtains natural guardianship, but this in itself does not necessarily mean that said individual will be the legal guardian. It must however be noted that the High Court, at all relevant times, is considered as upper guardian of all minor children. The High Court will therefore have to authorise and endorse the assigned individual as the legal guardian of the minor child and further confirm the person fit and proper, taking into account the best interest of the minor child/children. It is therefore essential that any person who was assigned guardianship, in terms of a will, approaches the High Court to bring effect to the provisions of the will and obtain an order from the High Court providing them with legal guardianship of the minor child.

INROADS MADE TOWARDS POOR CONDITIONS OF ROADS – FARMERS TAKE MATTERS INTO THEIR OWN HANDS


Ané Kotzé

The poor condition of some South African roads is nothing new, especially in the informal and rural areas of the country. In the matter of Agri Eastern Cape and Others v the MEC for the Department of Roads and Public Works and Others[1], the Applicants (Agri Eastern Cape and 9 Others herein after referred to as “Agri”) decided enough is enough and sought urgent relief through a structural interdict lodged at the Eastern Cape High Court on 28 February 2017.

The basis for the structural interdict did not only lie in the fact that the poor road conditions negatively influenced the farming communities and the rural developments of the Eastern Cape, but also obstructed the access to emergency services and schools. The structural interdict therefore demanded that regulated time frames be implemented by the Department for inter alia, road repair service contracts to be signed and concluded between the relevant parties and specific remedial actions.

Agri also requested an Order implementing a fair bidding process for external contractors for the necessary road repairs and also further made suggestions as to the appropriate steps that farmers and community members may take to repair farm roads and gravel roads on their own account, in instances where the Department fails to repair the roads timeously. A procedure and mechanism was further proposed for the reimbursement and refund of costs incurred through repairing the roads by the farmers themselves.

The Director-General of the Department of Roads and Public Works and the Member of the Executive Council, (“the Department”) admitted that at least 37 000 km of rural gravel roads in the Eastern Cape region demanded attention. The Department admitted that the gravel roads in the Eastern Cape was the worst in the country and went further to state that the reason behind the poor conditions of the roads was due to a severe backlog in terms of road maintenance, lengthy procurement processes and a lack of funding.

The Department submitted a report in terms of the Order sought by Agri, showing the Court the work previously done on the roads, and the work planned for 2016/2017. It also included the steps and methods which the Department shall take to repair and maintain the roads and the time frames by which it anticipated that the Department will have completed the necessary work.

The Department then argued that allowing farmers to repair and maintain the roads on their own accord and then to submit a request for reimbursement will open the gate for claims against the Department should any injuries be sustained during the course of such maintenance activities. The Department further argued that there is no statutory or constitutional basis for the interdict by making reference to the permissive language of Section 3 of the Eastern Cape Roads Act, Act 3 of 2003.[2]

The Court held that the Department has a duty to repair, not only on a statutory basis but also on a constitutional basis as the Constitution provides for the functional areas of exclusive provincial legislative competence, one of which is provincial roads and traffic.[3] The Court further held that it is in the public interest to intervene as the poor conditions of the roads influences not only the farming community but also the social standard and development of the rural community.

The Order that was eventually granted included, inter alia, that the Department has to implement the work planned for 2016/2017 as set out in their report and that a competitive bidding process for external contractors involved in road repairs and maintenance must also be implemented. The Department was further ordered to finalise, within 6 (Six) months of the Order, Integrated Routine Maintenance contracts for gravel and surface roads and to implement “fast response in-house maintenance” operations. A further triumph for Agri was the Order regarding the implementation of a mechanism to allow individual farmers to perform work on the roads they use for their farming activities, subject to certain terms and conditions, which therefore not only provided the farmer with a viable option and relief, but also put into motion a reimbursement and authorisation process between the Department and the farmer.

Even though this judgment was in Agri’s favour, it cannot be used as a precedent in other parts of the country as each province has its own provincial legislation that governs it and therefore, the circumstances of each individual case has to be considered when justifying structural interdicts of this nature. What makes this judgment noteworthy is that the public’s hands are not tied when state departments fail to act in accordance with their Constitutional mandate and that certain remedies do exist.

[1] (3928/2015) [2017] ZAECGHC 20; [2017] 2 All SA 406 (ECG); 2017 (3) SA 383 (ECG) (28 February 2017)

[2] Agri supra n2, par. 32

[3] Agri supra n2, par. 33

This newsletter 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.

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