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POSSESSION OF FIREARMS BY A GROUP

ALTERNATIVE DISPUTE RESOLUTION

COMMON PURPOSE

THE JURY IS OUT (CONSIDER THE VERDICT)

SENTENCING-SOME MITIGATING FACTORS

CIRCUMSTANTIAL EVIDENCE

THE DOCTRINE OF RECENT POSSESSION  

PLANNED OR PREMEDITATED MURDER-GUIDELINES

THE CONSUMER PROTECTION ACT

THE PROCESS OF JUDICIAL APPOINTMENTS IN SOUTH AFRICA


 

MATTERS OF INTEREST

This page contains summaries of cases and articles on various aspects of the law and content will be added on a regular basis. Many of the complete judgments delivered in cases that are summarised can be found in the South African Law reports, LexisNexis or other similar publications. A short summary will however enable the reader to decide whether further research and reading is necessary.


 

As an acting Judge of the High Court, I delivered a number of judgments in different divisions of the High Court. Many of these judgments deal with interesting aspects of the law and they are available for download on this page.

  1. H.Michaels and the State-Appeal-Cautionary approach to evidence
  2. The State v J. Joseph-Review-Sect 112(1)(b) of Act 51 of 1977-Family Violence Matters
  3. The State v T. Mzandi-Review-Housebreaking and Theft (absence of contrectatio)
  4. J.April and the State-Appeal-Discrepancies in evidence-approach on appeal
  5. M.Y. Hendricks and the State-Appeal-Identification-approach
  6. Archvisi National & 1 other v Divine Inspiration-Provisional Liquidation-principles
  7. H.R.Bauman NO & 1 other v Erf 27283 Sunset Links-Absolution from the instance
  8. B.Blanckenberg v E.M.M Williams & 1 other-Costs in a postponement application
  9. Bovidae Investments v J.H.Nel & 3 others-Anton Piller order
  10. M.Lechner v RAF-Medical expenses-system in Germany- Krankenkassen-Deductible collateral benefits or not
  11. C Mgatyellwa & 2 others v Victoria & Alfred Waterfront Properties & 1 other-Interpretation of an indemnity clause
  12. R. White and the State-Appeal-Defects in appeal record
  13. The State v S. Plati & 1 other-Identification-photographs
  14. The State v N. Gqalane and Others-Hearsay evidence-s.3 of Act 45 of 1988

The Supreme Court of Appeals upheld the finding in Lechner v RAF in RAF v Lechner (2011) The benefits awarded are not deductible.

 

 

 

Possession of firearms by a group

 

The Courts are often faced with situations where unlawful firearms are found and the State cannot prove the physical possession of any of the firearms. In S v Khambule 2001 (1) SACR 501 (SCA) the Court found that the common intention to possess firearms jointly may be inferred in the circumstances of a particular case. This could for example be the case where a robbery had been committed and the firearms were used to perpetrate the crime. The Court ruled that in such a case the possession of the firearms was advantageous to the group or members of the gang. Each member of the gang therefore associates him/herself with the possession of firearms by every other gang member.

 

In S v Mbuli 2003 (1) SACR 97 (SCA) the reasoning in Khambule was not accepted. Instead the issue is decided with reference to answers to the question whether the State has established facts from which it can properly be inferred that:

a. The group had the intention (animus) to exercise possession of the guns through the actual detentor and

b. The actual detentors had the intention to hold the guns on behalf of the group.

It is only if both requirements are fulfilled that there can be joint possession involving the group as a whole and the detentors or common purpose between the members of the group to possess all the firearms.

 

The latter view was confirmed in Molimi v the State 2006(2) SACR 8 SCA

 


ALTERNATIVE DISPUTE RESOLUTION or
THE ALTERNATIVE TO LITIGATION

by Adv Danie Theunissen


Every human being, whether married, single, parent, rich, poor, or from whichever walk of life, runs the risk of landing in a position of such conflict as can only be “terminated” by a court case. If such a person happens to make a living out of business, one dares to make the statement that the risk of an unwanted court case is increased exponentially!
The result of a court case could hardly ever be termed a “solution”. Our legal system is adversarial and arguments are used to “win” the case – hence the win/lose outcome that we’ve learnt to live with as a result of litigation. Finality is of course also a problem, as a very expensive appeal could follow at the end of a trial, potentially resulting in the “win/lose” to be overturned to a “lose/win”! The question could fairly be asked whether the result should not be termed “lose/lose” . . .
In litigation, the emphasis is on (the winning) argument, rather than on the solution of the dispute.


Alternative Dispute Resolution (ADR)


ADR offers a cheaper, more practical, private and final solution to disputes. It is also readily accessible to business people. There are two forms: Mediation and Arbitration.


Mediation


Parties to a dispute frequently have their best endeavours to reach resolve and negotiate with “the other side” towards this purpose. However, deadlocks can cause the dispute (still!) to find its way to the court room and a mediator is best suited to assist the parties to reach the settlement which would normalise their business relationship.
During mediation the parties remain in control as the mediator simply assists the parties to settle – a mediator has no powers to decide the dispute or to force an outcome. For this reason it is also advisable for parties to a dispute to start with mediation – especially as they themselves are best equipped to decide which outcome would suit their position.
Although they are quite entitled to approach the mediation with legal assistance, they could also agree to approach it unrepresented which would save on expensive legal costs and time-consuming technical arguments – rather an independent and impartial person (the mediator) quickly defining the problem, finding common ground between the parties and assisting them to reach a solution which they themselves are prevented from “seeing” as a result of factors of position, personality, unrealistic expectations, etc.
Contrary to litigation, the parties take ownership of the “outcome” and are more inclined to stick to the terms of the settlement, which in turn prevents further disputes & legal costs and results in a more certain business relationship.
Hence the conviction – mediation results in a win/win-solution!


Arbitration


This process provides the parties less control than mediation in the sense that it is closer to litigation. The major difference to litigation is that the parties agree on an arbitrator (again an impartial and independent person) who will decide the outcome of the dispute, called an award.
The benefit is that the parties agree, in writing, that their dispute will be referred to arbitration, thereby agreeing on who the arbitrator will be (in litigation the parties cannot choose their judge). To be able to appoint a specific person (or persons) as arbitrator has the benefit that an arbitrator can be chosen who is knowledgeable of the technicalities of a dispute. Furthermore, the hearing will be in private (unlike a court case which is done in public with all the concomitant publicity). Probably the major benefit to arbitration is the finality of the outcome (usually there is no appeal against the award of the arbitrator).
ADR provides the opportunity for disputing parties not only to settle their differences, but also to proceed with a normalised business relationship.

 

 


 

In this article a few observations on common purpose in our Criminal Law are made with reference to some authority and the approach to mens rea when the principles are applied.

COMMON PURPOSE

The so-called ‘doctrine of common purpose’ has received much focus in our Courts and is often invoked by the State in prosecutions for crimes involving a group of persons.

It is not some magic formula, which can be invoked by the State in circumstances where it is unable to prove the liability of an accused person in a given set of circumstances. It is in essence no more than an approach to a set of facts and the application of inferential reasoning to those facts in order to decide whether an accused person is liable for the crimes committed as a result of the fact that he /she acted in concert with others

The learned writer Snyman in his work ‘Criminal Law’ 4th Edition illustrates this situation as follows:

‘The main principles relating to perpetrators may be summarised as follows:

  1. A person is a perpetrator if-
    1. His conduct, the circumstances in which it takes place (including where relevant, a particular description with which he as a person must according to the definition of the crime comply), and the culpability with which it is carried out, are such that he satisfies all the requirements for liability contained in the definition of the crime; or
    2. Although his own conduct does not comply with that required in the definition of the crime, he acted together withone or more persons and the conduct required for a conviction is imputed to him by virtue of the principles relating to common purpose…'

 

It is generally applied to those cases where a Court cannot establish with any degree of certainty which members of a group committed the crimes in question but it has not been confined to matters of this nature and its application has expanded.

In S v Malinga and Others 1963 (1) SA 692 (AD) at 694 Fthe Court referred to its application as follows:

‘The position is that once it has been proven that the participants formed a common purpose, such as to rob, each member of the group is criminally responsible for all the acts committed by any other member of the group, provided that each such member associated himself with the commission of such acts.’

It therefore does not follow automatically that one member of the group is held responsible for the conduct of any of the others just because he /she is a member of the group.

There are certain prerequisites, which must be established before a member of the group who has not causally contributed to the relevant crime can be held liable for those events. In S v Mgedezi and Others 1989 (3) SA 687 (A) at 705 and with reference to S v Safatsa and Others 1988 (1) SA 868 (A)the Court set out these prerequisites as follows:

  1. The accused must have been present at the scene where the violence or crime was committed,
  2. The accused must have been aware of the violence or crime,
  3. The accused must have intended to have common cause with those actually perpetrating the crimes,
  4. The accused must have performed some act of association with the conduct of the others,
  5. The accused must have had the requisite mens rea (either in the form of dolus directus or one of the other recognized forms.

One of the essential elements is that conduct by a member of the group, which differs from the conduct envisaged in the said common purpose may not be imputed to another member of the group unless the latter knew that such other conduct would be committed, or foresaw the possibility that it might be committed and reconciled him/herself to that possibility.

The doctrine has been challenged in terms of the Constitution but it was found not to be unconstitutional. See S v Thebus and Another 2003 (2) SACR 319 CC.

The Court must apply a subjective test in determining the mens rea of an accused and in applying the principles of inferential reasoning to the facts must bear in mind that the inference to be drawn must be the only reasonably inference.

In S v Sigwala 1967 (4) SA 566 A at 570, Holmes JA (as he then was) set out the test to be applied in no uncertain terms. He stated:

‘Subjective foresight, like any other factual issue, may be proved by inference. To constitute proof beyond a reasonable doubt the inference must be the only one, which can reasonably be drawn. It cannot be so drawn if there is a reasonable possibility that subjectively the accused did not foresee even if he ought reasonably to have done so, and even if he probably did do so.’

The legal position supra was confirmed more recently in S v Lungile and Others 1999 (2) SACR 597 (SCA) and the Court cautioned that deductive reasoning could be misleading in such cases.

The Court stated at 607:

‘But this Court has cautioned, on several occasions, that one should not too readily proceed from “ought to have foreseen” to “must have foreseen” and hence to “by necessary inference in fact did foresee” the possible consequences of the conduct inquired into. Dolus being a subjective state of mind, the several thought processes attributed to an accused must be established beyond any reasonable doubt, having due regard to the particular circumstances of the case…’

Generally the event must be a contingency envisaged by an accused in his/her particular situation and therefore one in which he/she persisted, reckless of such consequences and with mens rea at least in the form of dolus eventualis. See S v Mkhwanazi 1998 (2) All SA 53 (A) at 56 and S v Maritz 1996 (1) SACR 405 (A) at 415.

In S v Molimi and Another 2006(2) SACR 8 (SCA) the Court recognised the fact that there would be circumstances in which a participant in a robbery (or any other relevant crime) would not be required to anticipate every unlawful act in which each of the participants may conceivably engage in the pursuit of the objectives of the common purpose.

It is therefore important that when the doctrine of common purpose is applied the requirement of mens rea is established from the facts of the particular case.


 

THE JURY IS OUT (CONSIDER THE VERDICT)

See the article on Common Purpose and Possession of Firearms’ and decide for yourself what the outcome of this matter was. The facts are based on an actual case heard recently in the Western Cape High Court.

THE CHARGES AND PLEA

The accused, a 38-year-old male was arraigned on the following counts:

Count 1- Murder (the death of a Fidelity guard).

Count 2- Murder (the death a member of the group that attempted to perpetrate the robbery at a service station)

Count 3-Robbery of a firearm.

Count 4- Attempted Robbery of an amount of cash.

Count 5-Attempted Murder of another Fidelity guard.

Count 6- Attempted Murder of yet another Fidelity guard.

Count 7- Attempted Murder of a police official.

Count 8- Unlawful possession of three firearms.

Count 9- Unlawful possession of an unknown quantity of ammunition.

The accused pleaded guilty to Counts 4, 8 and 9 and not guilty to Counts 1, 2,3,5,6 and 7 He was convicted in terms of s.112 (2) of the Criminal Procedure Act on Count 4. The State did not accept his plea on Counts 8 and 9 and pleas of not guilty were recorded.

A number of formal admissions mostly concerning certain procedural formalities were made by the accused in terms of s220 of the Criminal Procedure Act

THE BASIS OF THE ACCUSED DEFENCE

In essence, the defence on Counts 1, 2, 5-7 amounted to a denial by the accused that he had the intention in any of its relevant forms to kill any of the persons referred to in the indictment. The accused also denied that he had any specific knowledge of the circumstances in which the alleged crimes were committed. In respect of Count 3, the accused denied that he had the intention to rob the Fidelity guard of a firearm and that he had any specific knowledge of the circumstances in which the firearm was taken.

THE FACTS PRESENTED TO THE COURT (THE BROAD SCENARIO)

The evidence presented by the State was not in dispute nor was the credibility of witnesses in dispute. The witnesses were involved in the incidents at different points in time and had different opportunities to observe. As a result, they did not observe everything that took place. The broad scenario of what took place as indicated by the evidence and the facts, which are common cause, or not in dispute are the following:

  1. At approximately 9h 30 on the day in question, a group of men (7 in total) approached the particular service station. Some of the men were armed with firearms.
  2. Some of the men (including the accused) entered a shop on the premises and waited for the Fidelity Van containing a number of guards to arrive to pick up cash, which had been deposited in a cash box and was stored in a drop safe on the premises.
  3. The Fidelity Van arrived and the guards alighted and proceeded to attend to their duties. The one guard was responsible for retrieving the cash box and was in the process of doing so. Another guard positioned himself near an ATM and the third guard placed himself in the driver’s seat of the vehicle.
  4. Shots were fired and one of the men in the group removed a guard’s firearm from a holster at his side. A number of the group surrounded that guard and attempted to get him to open the drop safe.
  5. At the same time, the members of the group in the shop left the shop and further shots were fired.
  6. The owner of the service station also fired a shot from the inside of the kiosk with his personal firearm.
  7. Shots were also fired by members of the group at the guard near the ATM. None of the shots struck him and he managed to flee from immediate danger unscathed.
  8. One of the members of the group fired shots at the guard who was seated in the Fidelity Van. The shots did not penetrate the heavy armour of the vehicle. The guard managed to drive the vehicle away from immediate danger and was unscathed.
  9. The members of the group who attempted to retrieve the cash box were unsuccessful, as the drop safe was not released. In the process, the guard they had overpowered was shot in the abdomen and remained on the scene whilst the group attempted to flee the scene by running around the back of the service station to a nearby township.
  10. A police official, who was in the vicinity when the incident took place intercepted the group and fired shots at the fleeing members. The very first shot struck the accused and he fell down near a number of telephone booths. The remaining members of the group fled towards the township whilst shots were exchanged between the group and the police official. A number of shots were fired in the direction of the police official but none of them struck him.
  11. One of the group, was shot in the back and subsequently fell down after crossing the railway line near a house on the border of the township. The rest of the group escaped.
  12. Both the security guard and the fleeing robber died as a result of the injuries they sustained during the incident.
  13. The accused who remained on the scene was taken to hospital and treated for the injuries that he received during the incident.
  14. A 9mm pistol was found a few metres away from the accused.
  15. A number of cartridges of varied calibre and description were found at various places on the scene.
  16. A Kimar gas operated pistol and a .38 special Rossi revolver were found in a field at the back of the service station. This was near the route taken by the fleeing group who were engaged in a shoot-out with the police official.

RELEVANT FACTS ESTABLISHED BY THE EVIDENCE

The evidence lead by the State and the accused established the following facts:

Count 1

  1. There is no direct evidence indicating who shot the deceased security guard.
  2. It is clear from the totality of the evidence that he was shot during the engagement with members of the group when attempting to open the drop safe.
  3. The guard sitting in the Van testified that a shot went off and he saw red in the vicinity of the deceased’s back.
  4. It was not a reasonable possibility that someone other than one of the robbers shot the deceased.
  5. The evidence indicated that there was no resistance by the security guard at the time and no logical reason to justify the actions of that particular member of the group.
  6. There was no evidence that the accused shot the deceased.

Count 2

  1. The evidence indicated that one of the fleeing robbers was fatally wounded when he, together with other members of the group attempted to flee the scene.
  2. At this time, the accused was not part of the fleeing group and lay wounded near the telephone booths after receiving several bullet wounds.
  3. The members of the group and a police official were exchanging fire when the robber was wounded.
  4. All the facts indicated that the fleeing robber was shot by the police official when he returned fire at the group who were firing at him.
  5. There is no evidence to indicate that the accused shot at the police official or was engaged in any activity that made it necessary at that time for the police official to shoot the fleeing robber.

Count 3

  1. A tall slender man grabbed the firearm from the security guard.
  2. The accused did not take the firearm and was not directly involved in the taking thereof.
  3. From these circumstances, it can be concluded that one of the group took the security guard’s firearm during the incident. It is common cause that this was a 9mm pistol.
  4. The taking of the firearm merely involved one of the group approaching the guard from behind and removing the firearm from a holster at his side. The evidence does not indicate whether that member was armed at the time or that there were any threats or force involved.

Count 5

  1. Some of the group fired shots at the guard near the ATM.
  2. Some of the bullets struck the ATM in his vicinity.
  3. There was no evidence that the accused was involved in the shooting of the guard at any stage of the incident.
  4. The guard offered no resistance and despite the fact that he was armed at the time did not fire any shots.
  5. The only reasonable inference was that members of the group attempted to kill him. He was however not injured during the incident.

Count 6

  1. A member of the group fired a shot or shots at the guard in the Van.
  2. The shots did not penetrate the armour of the vehicle in which he was seated at the time. According to his testimony, it would have struck him on his right side.
  3. The accused was not involved in the shooting of this guard and was on the opposite side of the vehicle at the time.
  4. The guard had not offered any resistance at the time and had not given his assailant any reason to fire directly at him.
  5. The accused fired a single shot directed at the rear of the vehicle on the passenger side. The shot was not directed at the guard and did not place his life in jeopardy.
  6. A member of the group fired shots at the guard and as a result attempted to kill him.

Count 7

  1. Members of the group fired at a police official during an attempt to escape from the scene.
  2. The evidence did not indicate that the accused ever fired at the police official.
  3. The accused was not part of the group involved in the shooting at the police official.
  4. None of the shots fired at the official struck him but the circumstances justified as the only reasonable inference that an attempt was made by members of the group to kill him.

Count 8

  1. The accused had physical possession of the 9mm pistol referred to in the indictment.
  2. Other members of the group including the deceased robber also possessed firearms.
  3. The two firearms referred to in the indictment were found in an open field near the escape route used by members of the group after they were involved in a shootout with the police official.
  4. There was no evidence that the accused physically possessed these firearms or that there was any prior agreement between members of the group concerning these firearms.

Count 9

  1. The accused admitted being in physical possession of an unknown quantity of 9mm ammunition.
  2. At least two rounds were possessed by the accused. The one round was fired at the rear of the Fidelity Van and a second round was found in the chamber of the relevant 9mm pistol.
  3. There is no evidence to indicate that the accused was aware of or had any knowledge of other ammunition in the possession of other members of the group.
  4. There is furthermore no evidence of any prior agreement concerning the possession of such ammunition.

THE EVIDENCE GIVEN BY THE ACCUSED

The accused’s evidence was to a great extent confirmed by the facts in the State’s case:

  1. That he was not the person who shot the guard.
  2. That he was not involved when the fleeing robber was shot.
  3. That he did not take the guard’s firearm.
  4. That he did not fire at the other persons on the scene.
  5. That he did not physically possess the firearms and ammunition (other than the firearm and ammunition forming the basis of his admissions) referred to in the indictment.

The accused testified that he was approached at the 11th hour by the deceased robber to assist in the robbery of cash at the service station.He was not part of the original group or involved in any planning with that group.The information given by the deceased robber was at best on a ‘need to know’ basis and included the fact that the job would not be difficult, would be over quickly, would involve the firing of shots into the air to scare the guards and the taking of the cash box.

The accused described in some detail his relationship with the deceased robber and his reasons for believing what was explained to him. His testimony also revealed that the deceased robber was aware of his vulnerability and the fact that he was desperate for money.

The accused was not introduced to other members of the group and he did not know them.

The accused indicated that he entered the shop as instructed by the deceased robber and left the shop after shots were fired.The accused admitted that he fired one shot and testified that he did so in order to indicate that he was part of the group and had associated himself with the group. The shot according to the accused was intended to be fired into the air but it went off before he had sufficiently raised the firearm.

The accused testified that he did not observe the shooting of the guard. There was no resistance by the guard and no reason to kill him. The accused denied that he had the intention to kill the guard or had foreseen that someone in the group would do so.

The accused testified that he had not witnessed the circumstances in which the deceased robber had been killed. It was never his intention that he be killed nor did he foresee that he would be killed. He was not part of the group that fired at the police official.

The accused testified that he did not see who took the guard’s firearm. It was neither his intention nor part of the plan explained by the deceased robber that firearms be taken from the guards. The plan was to take the cash box.

The accused similarly explained that he did not witness the shooting at the other persons in the scene. This he testified had taken place contrary to the plan explained by the deceased robber. He testified that he did not have the intention to kill any of the relevant persons.

The accused admitted the possession of the 9mm pistol and ammunition in the magazine of the weapon. He denied that he possessed any of the other firearms or ammunition, that he intended to possess them, or that the group possessed them on his behalf. According to his version, each person who possessed a firearm or ammunition did so for himself.

The accused conceded that it was foreseeable in the circumstances that shots would be fired to overcome any resistance.

THE ARGUMENTS MADE TO THE COURT

Counsel for the State argued that the accused should be convicted on all counts based on the doctrine of common purpose and joint possession of the firearms.

What follows is an extract from the argument of Counsel for the Defence.

“It may certainly be argued that the accused who involved himself in an attempt to commit a robbery with a group of persons armed with firearms ought to have foreseen the possibility of things not going as planned or the fact that contingencies would occur.

The accused was certainly aware of the fact that firearms were to be used and he also possessed a firearm.

The State however bears the onus to prove all the elements of the crimes in question beyond a reasonable doubt. Despite the application of general principles to cases with similar facts, each case must be judged on its own merits. In many cases, there are different forces, which come into play and often very subtle yet very relevant distinctions.

The Honourable Court is respectfully requested to consider the nature of the prior agreement between the deceased robber and the accused and the scanty information given to the accused when considering the accused state of mind before and during the incident.

The Honourable Court is also respectfully requested to consider the circumstances in which the incidents occurred when considering whether the accused had the necessary mens rea.

The Honourable Court is respectfully requested to apply a subjective test in determining the mens rea of the accused and in applying the principles of inferential reasoning to the facts to bear in mind that the inference to be drawn must be the only reasonably inference.

In S v Sigwala 1967 (4) SA 566 A at 570 Holmes JA (as he then was) set out the test to be applied in no uncertain terms. He stated:

‘Subjective foresight, like any other factual issue, may be proved by inference. To constitute proof beyond a reasonable doubt the inference must be the only one, which can reasonably be drawn. It cannot be so drawn if there is a reasonable possibility that subjectively the accused did not foresee even if he ought reasonably to have done so, and even if he probably did do so.’

The legal position supra was confirmed more recently in S v Lungile and Others 1999 (2) SACR 597 (SCA) and the Court cautioned that deductive reasoning could be misleading in such cases.

The Court stated at 607:

‘But this Court has cautioned, on several occasions, that one should not too readily proceed from “ought to have foreseen” to “must have foreseen” and hence to “by necessary inference in fact did foresee” the possible consequences of the conduct inquired into. Dolus being a subjective state of mind, the several thought processes attributed to an accused must be established beyond any reasonable doubt, having due regard to the particular circumstances of the case…’

As indicated supra in the majority of cases of this nature the Court does not have the benefit of the thought processes of an accused and must often infer them. In this matter, the accused has attempted to share those processes with this Honourable Court.

The State must therefore prove beyond a reasonable doubt that the accused in fact did foresee that the security guard (Count 1) would be shot by a member of the group.

It is respectfully submitted that this was not the case bearing in mind what the accused testified and also the circumstances in which the guard was shot. It was not part of the original plan involving the accused that anyone would be shot. It can be argued, as it often is, that the accused in the circumstances must have foreseen that if resistance is offered one or more members of the group would use the firearms and someone would be injured or killed.

The evidence however clearly indicates that that there was no such resistance and no reason for any of the members of the group to apply such violence in the achievement of the goal to obtain the cash. The killing amounted to a cold-blooded senseless action on the part of an individual in the group who acted outside the bounds of what the accused understood would take place. It is humbly submitted that this could not have been a contingency envisaged by the accused in his particular situation and therefore one in which he persisted, reckless of such consequences and with mens rea in the form of dolus eventualis. See S v Mkhwanazi 1998 (2) All SA 53 (A) at 56 and S v Maritz 1996 (1) SACR 405 (A) at 415. In S v Molimi and Another 2006(2) SACR 8 (SCA) the Court recognised the fact that there would be circumstances in which a participant in a robbery would not be required to anticipate every unlawful act in which each of the participants may conceivably engage in the pursuit of the objectives of the common purpose.

It is respectfully argued that in applying the doctrine to the facts the State must also establish that the conduct to be imputed in fact amounts to the specified and alleged crime.

The fatal shot, which killed the fleeing robber, (Count 2) and according to the accused his mentor, was in all probability fired by the police official. He conceded this fact in cross-examination.

In accepting this fact, it is clear that in killing the fleeing robber, the police official did not act unlawfully. He in fact acted in necessity, (‘noordtoestand’ or ‘noodweer’) firing at the fleeing group who were firing at him. On the facts, the fleeing robber had caused his own death by creating a situation, which necessitated return fire by the police official. The fleeing robber in fact acted unlawfully. The accused at this stage was not part of the group and did not engage in the shooting.

It is respectfully submitted that as far as the death of the fleeing robber is concerned no crime was committed and certainly not that of murder which involves the intentional and unlawful killing of another human being.

It is also respectfully submitted that the fact that the accused had been shot and was also unarmed at the time that the gun battle which killed the fleeing robber ensued, made it impossible in the circumstances for him to associate himself with the crime or to commit any act of participation if a crime in respect of the death of the fleeing robber had been committed.

In respect of Count 3 and based on the arguments supra in respect of Count 1,it is respectfully argued that the taking of the firearm by an unknown member of the group was not part and parcel of the original agreement or arrangement.

It is clear that a member of the group set out to take the weapon on his own initiative and that this action was indeed independent of and separate from the intentions of the group and that of the accused.

As such, it is argued with respect that it is reasonably possibility true that the accused did not foresee that one of the members of the group would take a firearm from a guard and that it has not been established beyond a reasonable doubt that the accused had the intention in any of the recognised forms to take the firearm. The Honourable Court is requested to give the accused the benefit of the doubt in this regard.

As a further point of contention, it is respectfully argued that the State on the facts has not proved the crime of robbery and in particular, the removal of the firearm accompanied by violence or even threats of violence. See S v Witbooi 1984(1) SA 242 (K).The evidence indicated that an unknown member of the group approached the guard from behind and removed the firearm. At most, there was a theft of the firearm.

In respect of Counts 5, 6 and 7 the Honourable Court is requested to consider the evidence of the accused and the facts of this particular case. The accused testified that he did not foresee the possibility that any persons would be shot at and he did not intend to kill anyone.

It can certainly be argued that he ought to have foreseen that possibility and was certainly very naïve in his thinking of what would take place and his belief in the version given to him by the deceased robber.

The Court is respectfully requested to give him the benefit of the doubt when it determines his subjective foresight in this regard.

In respect of Counts 8 and 9, it is respectfully argued that the State has not proved beyond a reasonable doubt that the accused possessed the relevant firearms and ammunition.

There is no evidence that the accused at any stage had physical possession of the relevant firearms or ammunition.

In order to request the Court to infer from the totality of the facts that the group possessed all the firearms the State must comply with the requirements as set out in S v Mbuli 2003 (1) SACR 97 (SCA) Para. 71,where the reasoning of Marais J in S v Nkosi 1998 (1) SACR 284 (W) at 286 wasaccepted. The learned Judge remarked as follows:

‘The issues which arise in deciding whether the group (and hence the appellant) possessed the guns must be decided with reference to the question whether the State has established facts from which it can properly be inferred by the Court that:

  1. the group had the intention (animus) to exercise possession of the guns through the actual detentor and
  2. the actual detentors had the intention to hold the guns on behalf of the group.
  3. Only if both requirements are fulfilled can there be a joint possession involving the group as a whole and the detentors, or (common purpose) between the members of the group to possess all the guns.

It is submitted, that the State has not succeeded in establishing these requirements and the evidence placed before the Court in fact suggests the contrary, nl. that each individual possessed a firearm and ammunition for himself. The Court in Johannes Kwanda v The State 2011 ZASCA 50 was at pains to state the fact that such an inference cannot be drawn from the mere fact that the parties conspired to commit a robbery with firearms. The Court ruled:

The fact that the appellant conspired with his co-accused to commit robbery, and even assuming that he was aware that some of his co-accused possessed firearms for the purpose of committing the robbery, does not lead to the inference that he possessed such firearms jointly with his co-accused.’

 

These are the facts that faced the Court in this matter. For the decision of the Court click here.


 

SENTENCING- SOME MITIGATING FACTORS

It is often said that the sentencing process in a criminal trial is the most difficult part of the trial yet much less attention is given to this process than the process leading up to conviction. Legal representatives in all matters particularly those of a serious nature should investigate all the circumstances to determine what mitigating factors are present and take steps to ensure that the Court is apprised of all these circumstances. This should entail the presenting of evidence in mitigation of sentence and not just an address from the bar. There are always factors, which can serve to reduce a sentence, and the cumulative effect of many of the factors can be the difference between a minimum sentence being imposed and the Court exercising its discretion and imposing a lesser sentence. Here are some of the factors, which could be relevant:

  • The age of the accused

Advanced age is a factor as is youthfulness. When an accused is very young a social workers report and an investigation of possible intervention and referrals to a children’s’ court are essential.

  • The marital status of the accused and his/her dependants

This is relevant but often does not receive the attention it deserves. If necessary pre-sentence reports can be obtained or other suitable evidence presented to indicate clearly to the Court what the effect of a particular sentence will be on the spouse and the dependants of the accused. Other sentencing options to imprisonment should be investigated and requests made to the Court in this regard.

  • The accused’s background and standard of education

This can be important when the way in which the accused grew up and the influence on him as a person are relevant.

  • The employment record of the accused

This can indicate that the accused is a useful citizen in society and that he has a stable position and contributes to the welfare and maintenance of dependants.

  • The health of the accused

Illness should play a role and can have an effect on the type of sentence that is appropriate and the period of imprisonment imposed. It may be appropriate in the circumstances to look at alternatives to imprisonment such as a suspended sentence or correctional supervision even when serious crimes are involved. In S v Magida 2005 (2) SACR 591 (SCA) at 595-596 the Court remarked as follows:

Whilst it is correct that any illness does not per se entitle a convicted person to escape imprisonment, the facts presented to us by the appellant and the issue raised before the Court below comprise matter forming part of the totality of the circumstances of a convicted person that ought to be considered in order to do justice both to the person to be sentenced and to society’

In addition, at 596 the Court went further and said:

‘…it has been held that a court, in considering an appropriate sentence, may take into account a convicted person’s ill health and how it may relate to the effect of a contemplated sentence. Thus, for example, a particular sentence may be rendered more burdensome by reason of an offender’s state of health’.

  • Detention prior to sentencing

In this country there is still no statutory provision indicating that the period of detention prior to sentence must be considered and which indicates how this is to be calculated. In Canada, for instance this is regulated by statute. In practice, it is accepted that this should reduce the sentence and the Courts on appeal often reduce sentences where the Court a quo has not done so. See S v Bromphy & Another 2007 (2) SACR 56 (W), S v Vilikazi & Others 2000 (1) SACR 140 (W), S v Ngomane 2007(2) SACR 535 (W) and S v Phillip 1990(2) SACR 442 (C).

  • Influence

If the circumstances of the crime warrant inferences that there was strong influence on an accused to commit a crime either due to him/her being someone susceptible to such influence or a youth then it is important that the Court is informed through appropriate evidence of the circumstances.

  • No previous convictions and the character of the accused

Leading a life free from crime up to the first offence or being a law-abiding citizen is an important factor and can mean the difference between a sentence of imprisonment and an alternative sentence or a substantial reduction in sentence. In S v Scott 1969 (1) SA 545 (D) the Court approached this factor as follows:

‘It is a well‑known and well‑recognised principle which is constantly adhered to and followed in our Courts, that a first offender, particularly one who is no longer a young man and has led a blameless life, who has a clear record should not easily or lightly be sent to gaol without the option of a fine. The underlying principle would appear to be that persons of that nature who have demonstrated by their way of life that they are law abiding citizens should not lightly be sent to gaol. This is a salutary principle and one which I think ought to be followed even in a case of this nature where the nature of the crime is serious and where the Legislature has indicated by the nature of sentences to be imposed, that the Legislature regards the crime as a serious one.’

  • Degrees of Participation

There should always be a distinction between a perpetrator and for example an accessory after the fact. Moral blameworthiness differs in every case and someone who acts with a direct intention should be treated more harshly when a sentence is imposed than someone who acted with dolus eventualis or did not directly perpetrate a crime. Influence by a group or peer pressure can also play a role. See S v Mtshali 1991 (3) SA 255 (A)

  • Contrition and Remorse

True remorse often reflected in deeds rather than words play an important role because it shows that an accused person is capable of speedier rehabilitation. If the accused gave his cooperation during the investigation of the crime or contributed in any way in alleviating the loss to a victim, then these factors should be placed before the Court.

  • Mercy

In these times when we are faced with serious crimes that are punished with minimum sentences the role that mercy plays in sentencing is often overlooked. The element of mercy should still play a significant role in the imposition of a sentence. In S v V 1972 (3) SA 611 at 614 the Court remarked:

‘The element of mercy, a hallmark of a civilised and enlightened administration, should not be overlooked, lest the court be in danger of reducing itself to the plane of the criminal…’ ‘It is an element of justice itself.’

See also S v Van Der Westhuizen 1974 (4) SA 61 (C).

  • The cumulative effect of sentences on multiple counts

Sentences are generally imposed for each count upon which an accused person has been convicted. Although a particular sentence may be appropriate for a particular charge, it is oftendisregarded that a range of sentences on multiple counts may make the cumulative sentence too harsh and disproportionate to the crimes in question. It is important that this factor be brought to the court’s attention.

  • Minimum Sentences and substantial and compelling circumstances

Before a court can deviate from a minimum sentence prescribed by the Legislature, it must find that ‘substantial and compelling’ circumstances are present.

It often happens that a single factor when considered immediately leads one to believe that it is neither ‘substantial’ nor ‘compelling’ and no reason to request the Court to find that it is. What is required is that a step back is taken and the cumulative effect of all the relevant circumstances is considered to determine whether they are ‘compelling and substantial’. Most of the time this process will lead to a totally different picture and approach. This is what the Supreme Court of Appeals has been emphasising in various judgments. It is in my view more of a mindset than anything else. The process involves taking all the relevant factors some of which are mentioned above and determining whether the cumulative effect calls for a deviation from the minimum sentence prescribed. One must bear in mind that the seriousness and nature of the offence and the interests of the community have not been dealt with here are also part of the factors which are placed into the sentencing ‘pot’. In S v Malgas 2001 (1) SACR 469 (SCA) at par. F-I, the Supreme Court of Appeal summarised the position in the following manner:

‘F.        All factors (other than those set out in D above) traditionally taken into account in sentencing (whether or not they diminish moral guilt) thus continue to play a role; none is excluded at the outset from consideration in the sentencing process.

G.         The ultimate impact of all the circumstances relevant to sentencing must be measured against the composite yardstick ('substantial and compelling') and must be such as cumulatively justify a departure from the standardised response that the Legislature has ordained.

H.         In applying the statutory provisions, it is inappropriately constricting to use the concepts developed in dealing with appeals against sentence as the sole criterion.

I.          If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence.’

The Courts furthermore must complete this exercise in every case involving a minimum sentence, as indicated in S v Vilakazi 2009(1) SACR 552 (SCA) at 560:

‘It is clear from the terms in which the test was framed in Malgas and endorsed in Dodo that it is incumbent upon a court in every case, before it imposes a prescribed sentence, to assess, upon a consideration of all the circumstances of a particular case, whether the prescribed sentence is indeed proportionate to the particular offence’

The imposition of sentence is therefore often far more difficult than it seems. The Court cannot consider factors of which it is unaware and the importance of placing all the relevant factors before the Court cannot be overemphasised or underestimated.


CIRCUMSTANTIAL EVIDENCE AND INFERENTIAL REASONING

 

Many criminal cases are tried based on circumstantial evidence because either no direct evidence exists or the direct evidence available does not withstand judicial scrutiny.

In many instances, circumstantial evidence can carry more weight than direct evidence. In a criminal case the test for guilt remains proof beyond a reasonable doubt, whether that proof has been established by means of direct evidence or circumstantial evidence or a combination of the two.

When circumstantial evidence is considered, the most important element is the exercise of establishing the objective or positive facts on which inferences can be made. If the determination of the objective facts is shaky or subject to criticism then the exercise of reasoning by inference will undoubtedly fail. Once the objective facts have been determined with the certainty required by the law the exercise of reasoning by inference can take place and the rules of logic and common sense can be applied to the facts.

When reasoning by inference one must avoid the pitfalls of such an exercise by clearly distinguishing between inference one the one hand and conjecture and speculation on the other.

When we are faced with a particular set of facts, we all have our opinions on what took place even if the evidence does not indicate these facts clearly. Human imagination and the ability to speculate often allow us to complete the picture without even establishing the theme. When we do so we often speculate or subject the facts to conjecture.

Conjecture may be defined as the act of forming an opinion not based on definite evidence or proof. In everyday life we do this all the time. We are given a set of scanty facts in the media and by the end of the day an entire story has been built up around those facts without that story being supported by the facts that we were given in the first place. Rumours are often spread by conjecture.

Speculation is a conclusion or opinion based on conjecture. In law then the difference between conjecture, speculation and inferential reasoning is that the latter is based on the facts of a case.

 How then does one avoid the pitfall of substituting one’s own opinion that may be biased or even devoid of logic with proper inferential reasoning? The answer lies in applying a simple test to each set of positive facts. This test has been around for a long time and is found in the judgment of Chief Justice Watermeyer (as he then was) in the case of R v Blom 1939 AD 188 at 200. He said:

‘In reasoning by inference there are two cardinal rules of logic, which cannot be ignored:-

  1. The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn.
  2. The proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct.’

In essence the process is one of logic and the elimination of all other reasonable inferences before the inference determined is acceptable.

 It is important to remember that there may be many variables that can be inferred from a given set of facts, but it is only those inferences that are reasonable in the circumstances that are under consideration.

 Take the simple scenario of X lying dead on the floor with a knife wound in her heart and Y standing over the body with a bloodied knife in his hand. How many inferences can you draw from these facts? The first inference you made was probably that Y stabbed X. Another inference is that Y discovered the body and picked up the knife.  Is the second inference reasonable in these circumstances? In addition, if we add the fact that Y threatened to kill X prior to the incident what would your conclusion be based on the limited facts at your disposal.

This leads to the principle that when circumstantial evidence is considered the correct approach is not to take each fact separately and try to reach a conclusion but to weigh up the cumulative effect of all the facts and then reach a conclusion. In S v Ntsele 1998 (2) SACR 178 (SCA) the Supreme Court of Appeal did just that in arriving at a conclusion. The Court held:

Voorts, wanneer ‘n Hof met omstandigheidsgetuienis werk, soos in die onderhawige geval, moet die Hof nie elke brokkie getuienis afsonderlik betrag om te besluit hoeveel gewig daaraan geheg moet word nie. Dit is die kumulatiewe indruk wat al die brokkies tesame het wat oorweeg moet word om te besluit of die aangeklaagde se skuld bo redelike twyfel bewys is.’

 

The standard required however remains proof beyond a reasonable doubt. 


 

 

THE DOCTRINE OF RECENT POSSESSION OF STOLEN GOODS

 

The approach to circumstantial evidence was dealt with in a separate article. What is sometimes called the doctrine of recent possession is in effect just another way of applying the principles applicable to circumstantial evidence to a specific set of facts. It is important to realise this fact because it is often possible to fall into the trap of believing that this is some special and unique doctrine which offers a magic formula to a difficult situation. The very same rules of common sense and logic apply.

 

The principles are often applied to the following simple scenario:

A motor vehicle is stolen. Shortly after it is stolen, (which can be a couple of days or much longer) X is found in possession of the vehicle. He is arrested and tried for theft of a motor vehicle.

If the Court trying the matter is fortunate there will be some other aspects indicating the guilt of an accused but for the purposes of this article the facts above are those revealed in the evidence.

The first important point to remember is that the onus does not change when this scenario is considered and remains on the State to prove its case beyond a reasonable doubt.

If an accused in these circumstances fails to give an explanation concerning his possession of the vehicle, he/she may be convicted. If he/she gives a false explanation which is rejected by the Court he/she may also be convicted.

 If however he/she gives an explanation which in the light of the circumstances is reasonable possibly true then he/she must be acquitted.

 These principles are expressed in the following cases:

In S v Parrow 1973 (1) SA 603 (A the Court remarked:

‘I pause here to refer briefly to the so-called doctrine of recent possession of stolen property. In so far as here relevant, it usually takes this form: On proof of possession by the accused of recently stolen property, the Court may (not must) convict him of theft in the absence of an innocent explanation which might reasonably be true. This is an epigrammatic way of saying that theCourt should think its way through the totality of the facts of each particular case, and must acquit the accused unless it can infer, as the only reasonable inference, that he stole the property.’

The Court in S v Thebe and Others 1961 (2) PH H 247 (AD) stipulated the same approach in a different way:

‘Where a person was found in possession of a stolen motorcar within a short time after its theft, that fact was evidence , though not necessarily proof, of the fact that that person not only stole the motorcar but that he had throughout been in possession thereof. The circumstances in which he came to obtain possession of the motorcar are usually peculiarly within his own knowledge and if he fails to advance an explanation then or puts forward a false explanation of his possession, then unless the evidence taken as a whole suggests that there may nevertheless be an explanation reasonably consistent with his innocence, he may properly be convicted.’

 

This  so called doctrine does not only apply to cases of theft but to any matters which involve the possession of stolen property or for that matter property from which an inference can be drawn that a crime was committed by the possessor thereof. See S v Jantjies 1999 (1) SASV 32 KPA.

The principle, that the inference which is sought to be drawn must be the only reasonable inference remains even when this more direct approach to the evidence is applied. 


WHEN IS MURDER PLANNED OR PREMEDITATED?

 

The first thing one should do is to look at the ordinary and general meaning of the words.

We know that murder is the unlawful and intentional killing of another human being.

Planned is:

  • ‘To prepare a method, program, or outline for.
  • To have in mind as a purpose.’

(Colliers Dictionary)

 

With reference to the Concise Oxford English dictionary, ‘premeditate’ means ‘to think out or plan beforehand’ and ‘to plan’ means ‘to decide on, arrange in advance, make preparations for an anticipated event or time.’

In the case law, Bozalek J in S v Raath 2009 (2) SASV 46 (C) par.16 remarked as follows:

 

‘In my view only an examination of all the circumstances surrounding any particular murder, including not the least the accused’s state of mind, will allow one to arrive at the conclusion as to whether a particular murder is ‘planned or premeditated.’ In such an evaluation the period of time between the accused forming the intent to commit the murder and the carrying out of this intention is obviously of cardinal importance but equally does not at some arbitrary point provide a ready-made answer to the question of whether the murder was ‘planned or premeditated.’


  

THE CONSUMER PROTECTION ACT 68 OF 2008

 

The Consumer Protection Act came into operation on 1 April 2011.

It is a comprehensive piece of legislation which has as its aim the protection of consumers.

In the normal course of business in the modern world, we are all consumers at one or other point or suppliers of goods or services at another point. Transactions for goods or services form a part of the daily ritual of life since time immemorial.

The Act basically defines a consumer as a person to whom goods or services are marketed in the ordinary course of business, or who enters into a transaction for goods or services with a supplier and can include a person who uses certain goods or services even if the user was not part of the original transaction. In certain instances a franchisee in terms of a franchise agreement is also a consumer.

 A supplier is basically a person who markets any goods or services.

 

Only time will tell whether the provisions are effective and how the Act will be applied to the multiple scenarios found in the expansive marketplace.

In the interim consumers and suppliers alike must be aware of the provisions of the Act and take steps to ensure compliance. A series of articles will be produced here for information purposes and to increase public awareness.

 

The aim of the Act is to create a fair, accessible and sustainable marketplace for consumer products and services and it seeks to protect consumers in the process. Whether it will achieve this is a question for debate as history often indicates that the regulation of certain situations in society aimed at promoting a certain sector of society often has the opposite result.

 

Will the Act create a marketplace which is fair,accessible and sustainable or one in which there is an imbalance which makes the marketplace inaccessible to those whom the Act seeks to protect? Is it possible to effectively apply the mechanisms created to protect consumers whilst still providing the stimulus for a sustainable marketplace? Can the correct balance between the rights of consumers on the one hand and a free market system on the other hand be maintained?

The Act deals extensively with fundamental consumer rights such as:

 

  • The right to equality in the marketplace
  • The consumer’s right to privacy
  • The consumer’s right to choose
  • The right to disclosure and information
  • The right to fair and responsible marketing
  • The right to fair and honest dealing
  • The right to fair, just and reasonable terms and conditions
  • The right to fair value, good quality and safety

 

It also creates mechanisms for the protection of consumer rights.

It is firstly necessary to take note of the definitions of the various concepts found in the Act in order to understand its contents, its applicability and to interpret the various provisions. The definitions are extensive and attempt to define all concepts which require elucidation in the context in which they are used in the Act.

 

 

Section 1 containing definitions reads as follows:

 

'accredited consumer protection group' means a consumer protection group that has been accredited by the Commission in terms of section 78 for the purposes contemplated in that section or elsewhere in this Act;

 

'advertisement' means any direct or indirect visual or oral communication transmitted by any medium, or any representation or reference written, inscribed, recorded, encoded upon or embedded within any medium, by means of which a person seeks to-

(a) bring to the attention of all or part of the public-

(i) the existence or identity of a supplier; or available for supply, or the conditions on, or prices at, which any goods or services are available for supply;

(b) promote the supply of any goods or services; or

(c) promote any cause;

 

'agreement' means an arrangement or understanding between or among two or more parties that purports to establish a relationship in law between or among them;

 

'alternative dispute resolution agent' means-

(a) an ombud with jurisdiction;

(b) an industry ombud accredited in terms of section 82 (6); or

(c) a person or entity providing conciliation, mediation or arbitration services to assist in the resolution of

consumer disputes, other than an ombud with jurisdiction, or an accredited industry ombud;

 

'applicable provincial consumer legislation' means legislation concerning consumer protection that has been enacted by a province;

 

'apply' , when used in relation to a trade description, price, notice or any similar form of information, means to emboss, impress, engrave, etch, print or weave into, work into or onto, annex or affix to, or incorporate within;

 

'business' means the continual marketing of any goods or services;

 

'business name' means a name under which a person carries on a business other than the person's full name;

 

'Cabinet' means the body of the national executive described in section 91 of the Constitution;

 

'clearly' , in relation to the quality of any text, notice or visual representation to be produced, published or displayed to a consumer, means in a form that satisfies the requirements of section 22;

 

'Commission' means the National Consumer Commission established by section 85;

 

'complainant' means-

(a) a person who has filed a complaint with the Commission in terms of section 71; or

(b) the Commission in respect of a complaint that it has initiated, either directly or at the-

(i) direction of the Minister in terms of section 86 (b); or

(ii) request of a provincial consumer protection authority or other regulatory authority, as the case may be;

 

'consideration' means anything of value given and accepted in exchange for goods or services, including-

(a) money, property, a cheque or other negotiable instrument, a token, a ticket, electronic credit, credit, debit or electronic chip or similar object;

(b) labour, barter or other goods or services;

(c) loyalty credit or award, coupon or other right to assert a claim; or

(d) any other thing, undertaking, promise, agreement or assurance,

irrespective of its apparent or intrinsic value, or whether it is transferred directly or indirectly, or involves only the supplier and consumer or other parties in addition to the supplier and consumer;

 

'Constitution' means the Constitution of the Republic of South Africa, 1996;

 

‘consumer’,in respect of any particular goods or services, means-

(a) a person to whom those particular goods or services are marketed in the ordinary course of the supplier's business;

(b) a person who has entered into a transaction with a supplier in the ordinary course of the supplier's business, unless the transaction is exempt from the application of this Act by section 5 (2) or in terms of section 5 (3);

(c) if the context so requires or permits, a user of those particular goods or a recipient or beneficiary of those particular services, irrespective of whether that user, recipient or beneficiary was a party to a transaction concerning the supply of those particular goods or services; and

(d) a franchisee in terms of a franchise agreement, to the extent applicable in terms of section 5 (6) (b) to (e);

 

'consumer agreement' means an agreement between a supplier and a consumer other than a franchise

agreement;

 

'consumer court' means a body of that name, or a consumer tribunal, that has been established in terms of applicable provincial consumer legislation;in section 77;

 

'court' does not include a consumer court;

 

'direct marketing' means to approach a person, either in person or by mail or electronic communication, for the direct or indirect purpose of-

(a) promoting or offering to supply, in the ordinary course of business, any goods or services to the person; or

(b) requesting the person to make a donation of any kind for any reason;

 

‘display’,when used-

(a) in relation to any goods, means placing, exhibiting or exposing those goods before the public in the ordinary course of business in a manner consistent with an open invitation to members of the public to inspect, and select, those or similar goods for supply to a consumer; or

(b) in relation to a price, mark, notice or other visual representation, means to place or publish anything in a

manner that reasonably creates an association between that price, mark, notice or other visual representation and any particular goods or services;

 

‘distributor’,in relation to any particular goods, means a person who, in the ordinary course of business-

(a) is supplied with those goods by a producer, importer or other distributor; and

(b) in turn, supplies those goods to either another distributor or to a retailer;

 

'electronic communication' means communication by means of electronic transmission, including by telephone, fax, sms, wireless computer access, email or any similar technology or device;

 

'Electronic Communications and Transactions Act' means the Electronic Communications and Transactions Act, 2002 (Act25 of 2002);

 

'estimate' means a statement of the projected total price for any service to be provided by a supplier, including any goods or components to be supplied in connection with that service;

 

'equality court' has the meaning set out in the Promotion of Equality and Prevention of Unfair Discrimination Act;

 

'facility' means any premises, space or equipment set up to fulfil a particular function, or at, in, or on which a particular service is available;

 

'franchise agreement' means an agreement between two parties, being the franchisor and franchisee,

respectively-

(a) in which, for consideration paid, or to be paid, by the franchisee to the franchisor, the franchisor grants the franchisee the right to carry on business within all or a specific part of the Republic under a system or marketing plan substantially determined or controlled by the franchisor or an associate of the franchisor;

(b) under which the operation of the business of the franchisee will be substantially or materially associated

with advertising schemes or programmes or one or more trade marks, commercial symbols or logos or any similar marketing, branding, labelling or devices, or any combination of such schemes, programmes or devices, that are conducted, owned, used or licensed by the franchisor or an associate of the franchisor; and

(c) that governs the business relationship between the franchisor and the franchisee, including the relationship between them with respect to the goods or services to be supplied to the franchisee by or at the direction of the franchisor or an associate of the franchisor;

 

'goods' includes-

(a) anything marketed for human consumption;

(b) any tangible object not otherwise contemplated in paragraph (a), including any medium on which anything is or may be written or encoded;

(c) any literature, music, photograph, motion picture, game, information, data, software, code or other intangible product written or encoded on any medium, or a licence to use any such intangible product;

(d) a legal interest in land or any other immovable property, other than an interest that falls within the definition of 'service' in this section; and

(e) gas, water and electricity;

 

importer’,with respect to any particular goods, means a person who brings those goods, or causes them to be brought, from outside the Republic into the Republic, with the intention of making them available for supply in the ordinary course of business;

 

'inspector' means a person appointed as such in terms of section 88;

 

intermediary' means a person who, in the ordinary course of business and for remuneration or gain, engages in the business of-

(a) representing another person with respect to the actual or potential supply of any goods or services;

(b) accepting possession of any goods or other property from a person for the purpose of offering the property for sale; or

(c) offering to sell to a consumer, soliciting offers for or selling to a consumer any goods or property that

belongs to a third person, or service to be supplied by a third person,

but does not include a person whose activities as an intermediary are regulated in terms of any other national legislation;

 

'investigator' means a person appointed as such in terms of section 88;

 

'juristic person' includes-

(a) a body corporate;

(b) a partnership or association; or

(c) a trust as defined in the Trust Property [Control] Act, 1988 (Act57 of 1988);

 

‘licence’,depending on the context, means the authority, regardless of its specific title or form, issued to a person and in terms of which that person is either-

(a) authorised in terms of a public regulation to conduct business; or

(b) authorised by another person to-

(i) access any facility or use any goods; or

(ii) supply any goods or services;

 

'loyalty credit or award' means any-

(a) benefit accruing to a consumer;

(b) right to any goods, service or other benefit granted to a consumer; or

(c) point, credit, token, device or other tangible or intangible thing which, when accumulated in sufficient

quantities, entitles the holder to seek, request or assert a claim for any goods, service or other benefit, allocated to a consumer, in terms of a loyalty programme, irrespective of the name, nature, form or characterisation assigned by that loyalty programme to any such goods, service or other benefit, right or thing;

 

'loyalty programme' means any arrangement or scheme in the ordinary course of business, in terms of which a supplier of goods or services, association of such suppliers, or other person on behalf of or in association with any such suppliers, offers or grants to a consumer any loyalty credit or award in connection with a transaction or an agreement;

 

'mark' , when used as a noun, means any visual representation, name, signature, word, letter, numeral, shape, configuration, pattern, ornamentation, colour or container for goods or other sign capable of being represented graphically, or any combination of those things, but does not include a trade mark;

 

market’,when used as a verb, means to promote or supply any goods or services;

 

'MEC' means the Member of the Executive Council;

 

'Minister' means the member of the Cabinet responsible for consumer protection matters;

 

'National Credit Act' means the National Credit Act, 2005 (Act34 of 2005);

 

'ombud with jurisdiction’,in respect of any particular dispute arising out of an agreement or transaction between a consumer and a supplier who is-

(a) subject to the jurisdiction of an 'ombud', or a 'statutory ombud', in terms of any national legislation, means that ombud, or statutory ombud; or

(b) a 'financial institution', as defined in the Financial Services Ombud Schemes Act, 2004 ( Act 37 of 2004 ), means 'the ombud', as determined in accordance with section 13 or 14 of that Act;

 

'organ of state' means an organ of state as defined in section 239 of the Constitution;

 

'person' includes a juristic person;

 

'premises' includes land, or any building, structure, vehicle, ship, boat, vessel, aircraft or container;

 

'prescribed' means determined, stipulated, required, authorised, permitted or otherwise regulated by a regulation made, or notice given, by the Minister in terms of this Act;

 

‘price’,when used in relation to-

(a) a representation required to be displayed by section 23, includes any mark, notice or visual representation that may reasonably be inferred to indicate or express an association between any goods or services and the value of the consideration for which the supplier is willing to sell or supply those goods or services; or

(b) the consideration for any transaction, means the total amount paid or payable by the consumer to the

supplier in terms of that transaction or agreement, including any amount that the supplier is required to impose, charge or collect in terms of any public regulation;

 

'producer' , with respect to any particular goods, means a person who-

(a) grows, nurtures, harvests, mines, generates, refines, creates, manufactures or otherwise produces the

goods within the Republic, or causes any of those things to be done, with the intention of making them available for supply in the ordinary course of business; or

(b) by applying a personal or business name, trade mark, trade description or other visual representation on or in relation to the goods, has created or established a reasonable expectation that the person is a person contemplated in paragraph (a) ;

 

'prohibited conduct' means an act or omission in contravention of this Act;

 

'promote' means to-

(a) advertise, display or offer to supply any goods or services in the ordinary course of business, to all or part of the public for consideration;

(b) make any representation in the ordinary course of business that could reasonably be inferred as expressing a willingness to supply any goods or services for consideration; or

(c) engage in any other conduct in the ordinary course of business that may reasonably be construed to be an inducement or attempted inducement to a person to engage in a transaction;

 

'Promotion of Equality and Prevention of Unfair Discrimination Act' means the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 ( Act 4 of 2000 );

 

'provincial consumer protection authority' means a body established within the provincial sphere of government, and designated by the responsible Member of the Executive Council of a province to have general authority to deal with consumer protection matters within that province;

 

'public regulation' means any national, provincial or local government legislation or subordinate legislation, or any licence, tariff, directive or similar authorisation issued by a regulatory authority or pursuant to any statutory authority;

 

'Registrar' means the Registrar of Companies appointed in terms of the Companies Act, 1973 ( Act 61 of 1973 ), or the official performing similar functions in terms of any subsequent legislation;

 

'regulation' means a regulation made under this Act;

'regulatory authority' means an organ of state or entity established in terms of national or provincial legislation responsible for regulating an industry, or sector of an industry;

 

'rental' means an agreement for consideration in the ordinary course of business, in terms of which temporary possession of any premises or other property is delivered, at the direction of, or to the consumer, or the right to use any premises or other property is granted, at the direction of, or to the consumer, but does not include a lease within the meaning of the National Credit Act;

 

'repealed law' means an Act mentioned in section 121 (2), or a public regulation made in terms of such an Act;

 

'respondent' means a person or firm against whom a complaint or application has been initiated in terms of this Act;

 

'retailer' , with respect to any particular goods, means a person who, in the ordinary course of business, supplies those goods to a consumer;

 

'service' includes, but is not limited to-

(a) any work or undertaking performed by one person for the direct or indirect benefit of another;

(b) the provision of any education, information, advice or consultation, except advice that is subject to

regulation in terms of the Financial Advisory and Intermediary Services Act, 2002 ( Act 37 of 2002 );

(c) any banking services, or related or similar financial services, or the undertaking, underwriting or assumption of any risk by one person on behalf of another, except to the extent that any such service-

(i) constitutes advice or intermediary services that is subject to regulation in terms of the Financial Advisory

and Intermediary Services Act, 2002 ( Act 37 of 2002 ); or

(ii) is regulated in terms of the Long-term Insurance Act, 1998 ( Act 52 of 1998 ), or the Short-term Insurance Act, 1998 ( Act 53 of 1998 );

(d) the transportation of an individual or any goods;

(e) the provision of-

(i) any accommodation or sustenance;

(ii) any entertainment or similar intangible product or access to any such entertainment or intangible product;

(iii) access to any electronic communication infrastructure;

(iv) access, or of a right of access, to an event or to any premises, activity or facility; or

(v) access to or use of any premises or other property in terms of a rental;

(f) a right of occupancy of, or power or privilege over or in connection with, any land or other immovable

property, other than in terms of a rental; and

(g) rights of a franchisee in terms of a franchise agreement, to the extent applicable in terms of section 5(6) (b) to (e) ,irrespective of whether the person promoting, offering or providing the services participates in, supervises or engagesdirectly or indirectly in the service;

 

'service provider' means a person who promotes, supplies or offers to supply any service;

 

'sms' means a short message service provided through a telecommunication system;

 

'special-order goods' means goods that a supplier expressly or implicitly was required or expected to procure, create or alter specifically to satisfy the consumer's requirements;

 

'supplier' means a person who markets any goods or services;

 

'supply' , when used as a verb-

(a) in relation to goods, includes sell, rent, exchange and hire in the ordinary course of business for

consideration; or

(b) in relation to services, means to sell the services, or to perform or cause them to be performed or provided, or to grant access to any premises, event, activity or facility in the ordinary course of business for consideration;

 

'supply chain' , with respect to any particular goods or services, means the collectivity of all suppliers who directly or indirectly contribute in turn to the ultimate supply of those goods or services to a consumer, whether as a producer, importer, distributor or retailer of goods, or as a service provider;

 

'this Act' includes any Schedule to this Act, regulations made or notice issued by the Minister under this Act;

 

'trade description' means-

(a) any description, statement or other direct or indirect indication, other than a trade mark, as to-

(i) the number, quantity, measure, weight or gauge of any goods;

(ii) the name of the producer or producer of any goods;

(iii) the ingredients of which any goods consist, or material of which any goods are made;

(iv) the place or country of origin of any goods;

(v) the mode of manufacturing or producing any goods; or

(vi) any goods being the subject of any patent, privilege or copyright; or

(b) any figure, work or mark, other than a trade mark, that, according to the custom of the trade, is commonly understood to be an indication of any matter contemplated in paragraph (a) ;

 

'trade mark' means-

(a) a trade mark as defined in section 2 (1) of the Trade Marks Act, 1993 ( Act 194 of 1993 ); or

(b) a well-known trade mark as contemplated in section 35 of the Trade Marks Act, 1993;

 

'transaction' means-

(a) in respect of a person acting in the ordinary course of business-

(i) an agreement between or among that person and one or more other persons for the supply or potential

supply of any goods or services in exchange for consideration; or

(ii) the supply by that person of any goods to or at the direction of a consumer for consideration; or

(iii) the performance by, or at the direction of, that person of any services for or at the direction of a consumer for consideration; or

(b)an interaction contemplated in section 5 (6), irrespective of whether it falls within paragraph (a) ;

 

Tribunal' means the National Consumer Tribunal established by section 26 of the National Credit Act;

 

'unconscionable' , when used with reference to any conduct, means-

(a) having a character contemplated in section 40; or

(b) otherwise unethical or improper to a degree that would shock the conscience of a reasonable person;

 

'unit price' means a price for any goods or services expressed in relation to a well-known measure such as quantity, weight, volume, duration or other measurable unit by which the goods or services are allocated;

 

'used goods' , when used in respect of any goods being marketed, means goods that have been previously supplied to a consumer, but does not include goods that have been returned to the supplier in terms of any right of return contemplated in this Act; and

 

'visual representation' means any representation or illustration capable of being reproduced upon a surface, whether by printing or otherwise, but does not include a trade mark.

 

 

Section 2 deals with the manner in which the Act is to be interpreted. Its basic principle is that the Act must be interpreted as is the case with all statutes, to give effect to the intention of the Legislature. The Act also identifies, due to the technical nature of the subject matter rules of interpretation which are exclusive to the subject matter and provides for interpretation of specific scenarios which form part of the Act. The Act therefore pre-empts certain interpretation problems and formulates the approach to be followed.

 

Section 2 reads:

 

(1) This Act must be interpreted in a manner that gives effect to the purposes set out in section 3.

 

(2) When interpreting or applying this Act, a person, court or Tribunal or the Commission may consider-

(a) appropriate foreign and international law;

(b) appropriate international conventions, declarations or protocols relating to consumer protection; and

(c) any decision of a consumer court, ombud or arbitrator in terms of this Act, to the extent that such a decision has not been set aside, reversed or overruled by the High Court, the Supreme Court of Appeal or the Constitutional Court.

 

(3) If a provision of this Act requires a document to be signed or initialled by a party to a transaction, that signing or initialling may be effected in any manner recognised by law, including by use of-

 

(a) an advanced electronic signature, as defined in the Electronic Communications and Transactions Act; or

(b) an electronic signature, as defined in the Electronic Communications and Transactions Act.

 

(4) The supplier must take reasonable measures to prevent the use of a consumer's electronic signature for any purpose other than the signing or initialling of the particular document that the consumer intended to sign or initial.

 

(5) Despite the periods of time set out in section 6, each successive threshold determined by the Minister in terms of that section continues in effect until a subsequent threshold in terms of that section takes effect.

 

(6) When a particular number of business days is provided for between the happening of one event and another, the number of days must be calculated by-

(a) excluding the day on which the first such event occurs;

(b) including the day on or by which the second event is to occur; and

(c) excluding any public holiday, Saturday or Sunday that falls on or between the days contemplated in paragraphs (a) and (b) , respectively.

 

(7) Unless the context indicates otherwise, any use of the word 'includes' or 'including' in relation to a defined or generic word or expression, on the one hand, and one or more enumerated examples or specific items, on the other, is not to be construed as limiting the defined or generic expression to the examples or items so enumerated.

 

(8) If there is an inconsistency between any provision of Chapter 5 of this Act and a provision of the Public Finance Management Act, 1999 ( Act 1 of 1999 ), or the Public Service Act, 1994 (Proclamation 103 of 1994), the provisions of the Public Finance Management Act, 1999, or of the Public Service Act, 1994, as the case may be, prevail.

 

(9) If there is an inconsistency between any provision of this Act and a provision of any Act not contemplated in subsection (8)-

(a) the provisions of both Acts apply concurrently, to the extent that it is possible to apply and comply with one of the inconsistent provisions without contravening the second; and

(b) to the extent that paragraph (a) cannot apply, the provision that extends the greater protection to a

consumer prevails over the alternative provision, provided that in the case of hazardous chemical products only the provisions of this Act relating to consumer redress will apply.

 

(10) No provision of this Act must be interpreted so as to preclude a consumer from exercising any rights afforded in terms of the common law.

 

 

Of importance is the fact that the use of an electronic signature is sanctioned in the Act and the calculation of the number of business days when used in the provisions of the Act is determined. The rights of the consumer in terms of the common law are also retained. 

 

THE PURPOSE AND POLICY OF THE ACT

 

We find in Section 3 of the Act that the Legislature sets out the purpose and the area of application of the Act. It is important to understand this because all the actions flowing from the Act must be interpreted in the spirit of the Act which is found in this section.

It is clear that the Act is primarily there to protect ‘vulnerable’ consumers meaning those who have perhaps been exposed to unfair practices in the past or are potentially at risk in the future.

 

In order to do this the Act aims to establish a consumer market which has as its core a system which is fair, accessible to all ( especially vulnerable consumers) , driven by efficiency and both sustainable and responsible.

All these characteristics are unique concepts which are subject to different interpretations and can have different meanings in different situations.

FAIRNESS

ACCESSIBILITY

EFFICIENCY
SUSTAINABILITY
RESPONSIBILITY

The big challenge for the Act and those who must administer it, is that these ‘buzz words’ do not remain just that, but are applied in such a way in the marketplace so as to achieve the ultimate goal which is the establishment of a culture of consumer rights with recognised responsibilities.

 

The Act sets as its main aim the protection of ‘vulnerable’ persons which include:

  • Those persons in the low income bracket
  • Those persons living in remote and isolated areas of the country
  • Minors and elderly people
  • Those persons who are disadvantaged by not being able to read and interpret the ‘small print’ in things such as adverts and contracts etc. because of a reading disability, vision impairment or difficulty with a particular language.

The basic concept as I see it is that these groups who have a disadvantage must be placed on the same footing as those who do not have these disadvantages when it comes to consumer relations. The marketplace must therefore adapt to oblige and accommodate these persons. The marketplace must also be sensitive to the needs and aspirations of these persons.

 

The Act discourages unfair trade practices and misleading and deceptive conduct.

 

Consumer awareness is a key issue. ‘Knowledge is power’ and in every sphere of life and interaction between human beings, rights and responsibilities have no meaning unless the parties are aware of what these rights and responsibilities are and know how to enforce them.

 

The Act aims to set up efficient mechanisms to solve consumer disputes and to redress violations of consumer rights.

 

The National Consumer Commission which the Act establishes is tasked with ensuring compliance and in promoting the policies and application of the Act in the consumer market.

 

 

SECTION 4

 

Who may take action in terms of the Act?

 

  • An individual
  • A person acting for someone else who cannot do so
  • A person who is a member of a group of persons (a class action)
  • Someone who acts in the public interest (with leave or permission of the Tribunal or court)
  • An association acting for its members

 

How does the Tribunal or court approach matters that are placed before it?

 

The court or the Tribunal will always act with the view of expanding and developing the law including the common law in order to promote consumer rights and the spirit and purpose of the Act.

Orders are made which are generally of practical importance to the rights of consumers and the court or Tribunal can expand its powers to make orders by being innovative in order to advance and promote consumer rights. The court or Tribunal has very wide powers concerning the making of orders.

When interpretation issues arise which is inevitably the case when contracts or agreements are the issue the preferred interpretation will be the one that promotes the spirit and purposes of the Act.

When clauses in forms of contracts are in dispute and give rise to issues of interpretation the interpretation which suits and benefits the consumer will be chosen.

The test which must be applied to clauses that restrict or limit the rights of consumers in a document is the test of what a reasonable person would expect after considering the content of the document, its form and the circumstances of the transaction or agreement.

 

What sort of actions does the Act prohibit?

 

  • Any dealings with a consumer which is contrary to the policy and purposes of the Act
  • Misleading and deceptive conduct

 

It is clear therefore that the Act is geared towards the protection of consumer rights and it has a direct impact on the way in which business is conducted with consumers. The ‘fine print’ in contracts in the past has therefore become something of the past. 

 

How will the National Consumer Commission operate and what processes and procedures must be followed when lodging complaints?

The Commission has published its enforcement guidelines in Government Gazette No 34484. The guidelines contain a step by step explanation of the processes and procedures relating to the functioning of the Commission. It also indicates in detail the process for lodging of complaints. At present there appears to be some flaws in the Act which will require an ammendment and which can affect the complaints process. The Minister is attending to these problems. 


The Process of Judicial Appointments in South Africa

 

 

Introduction

In a country such as South Africa and for that matter in most other countries there is a need for a strong, independent Bench to preside over the numerous cases that fill the court rolls of the country on a daily basis. Focusing at this point on the High Courts there is a need to appoint Judges who are independent, competent and who understand the dynamics of the law as it is applied to various scenarios in South African society. Courts are extensions of society itself and of necessity must reflect the society they represent. Judges are a very important component if not the most important component in the judicial ‘machine’.

This is because Judges:

  • try the most serious cases in both the Criminal and Civil courts in the country
  • create precedents and their judgments bind and guide other courts when applying similar principles
  • interpret the law and set the standards for its application

 

The process for the appointment of Judges is therefore very important and must ensure that the correct persons are appointed as Judges. The challenge lies in determining who should be appointed but also in ensuring that the same standards are applied in a fair, open and transparent process. This process should not be controversial, open to unnecessary criticism or create a situation where valid questions are raised concerning the process or the appointment of a particular candidate. If this happens on a regular basis, then there is something inherently wrong with the system and review is necessary.

Unfortunately, this has been the position in the past and more recently when judicial appointments were made. See:

Article 1 on Judicial appointments

Article 2 on judicial appointments

In order to review the process one must know how the process works. I have had the pleasure of being part of the process and have experienced its practical application.

The Constitution

The authority for the appointment of judicial officers is found in our Constitution. In terms of the Constitution ‘any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer’ - (Section 174(1)). The Constitution also recognises the need for the judiciary to reflect broadly the racial and gender composition of South Africa.-(Section 174(2)). The President of the country makes the appointments after consulting with various parties depending on the nature of the appointment. In the case of ordinary Judges, the President receives advice and recommendations from the Judicial Services Commission (JSC).

What is the Judicial Services Commission?

One often hears about this body in the media and it has been the subject of much attention. It is a body established in terms of the Constitution. It has a clearly defined composition and clearly defined roles in terms of the Constitution. Basically it consists of the Chief Justice (who is the Chairperson), the President of the Supreme Court of Appeal, a nominated Judge-President, the Minister of Justice, two nominated practising Advocates, two nominated practising Attorneys, one designated law teacher, six members of the National Assembly of which three are opposition members, four permanent delegates to the National Council of Provinces, four persons designated by the President after relevant consultations and in relation to a specific Court the Judge-President of that Court and the Premier of the province concerned. It is clear that the composition of the JSC is structured in such a way that it attempts to reflect a very wide array of members representing various interest groups. Overall, it is a very impressive and somewhat intimidating group of persons occupying very prominent positions in the legal fraternity or other relevant institutions. For more details on the composition of the Commission visit:

Information on the composition of the JSC

For other general information visit:

http://www.constitutionalcourt.org.za

For purposes of this discussion, the JSC interviews candidates for judicial appointment and then makes recommendations to the President.

How are candidates selected and appointed?

I will briefly explain what happens in practice and use only the appointments of ordinary Judges as an example.

From time to time vacancies arise in the various divisions of the High Courts or new posts are created. The JSC then through media announcements invites nominations to fill these vacancies. Nominations are generally made by relevant bodies such as the Bar Council but can be made by anyone. The candidate who is nominated must consent in writing to the nomination and must then prepare documentation that is forwarded before the closing date to the Secretary of the JSC. These documents include:

  • the curriculum vitae of the candidate with formal qualifications
  • a standard questionnaire completed by the candidate
  • copies of at least three written judgments by the candidate. Candidates will generally have acted as judges before they become suitable for consideration for permanent appointment and will have delivered judgments in the High Court.
  • a certificate of competence from the professional body of which the candidate is a member indicating suitability for appointment and whether any disciplinary proceedings have been instituted or are still pending.

 

Once the documents have been received, candidates are shortlisted by a panel and the successful candidates are informed that they must present themselves for interviews on a specific date and at a specified venue.

On the date specified the candidate is then interviewed by members of the JSC. This process usually receives much media attention and the media are usually present at the interviews. At the interviews, the members of the JSC put questions to the candidate and “test” the suitability of the candidate for appointment. It has been suggested that the manner in which these interviews are conducted and the probes done by members of the JSC are not always consistent. After deliberations, the JSC then makes its recommendations for appointment to the President.

What is the JSC looking for in a suitable candidate for Judicial Appointment?

The JSC is free in terms of the Constitution to determine its own criteria that should apply when recommending Judicial Appointments. From time to time, it publishes these criteria and did so after a meeting on 10 September 2010 when it reviewed its guidelines. The criteria must however encapsulate the principles set out in the Constitution and be open and transparent. They should enhance public trust in the judicial system. The principles enshrined in the Constitution are interpreted by the JSC as being reflected in the following questions:

  • Is the particular candidate an appropriately qualified person?
  • Is he or she a fit and proper person, and
  • Would his or her appointment help to reflect the racial and gender composition of South Africa?

 

The JSC has decided that it is necessary to apply additional or supplementary criteria and in terms thereof, they are required to consider the following aspects:

  • Is the candidate a person of integrity?
  • Is the candidate a person with the necessary energy and motivation?
  • As far as being a competent person is concerned, technical competence is considered as well as the capacity to give expression to the values of the Constitution.
  • When considering the experience of the candidate, technical experience and experience regarding the values and needs of the community are considered.
  • Does the candidate possess appropriate potential?
  • The JSC considers the concept of ‘symbolism’ to be important and asks what message the community at large is given by a particular appointment?

 

The JSC does not generally give any reasons to the public or to candidates as to why it has made a particular recommendation neither does it indicate why particular candidates are considered unsuitable for appointment.

If one considers the criteria indicated above it immediately becomes apparent that quite a number of the criteria are wide enough to stimulate much debate on what is required and how particular criteria should be applied. The JSC has however not indicated how it applies the criteria and what weight is attached to each of the guidelines. When issues are raised concerning the appointment of certain candidates or when candidates are rejected this raises many questions concerning the consistent application of certain criteria to a specific candidate. The candidate who aspires to a position on the Bench and who believes that he or she has what it takes to fill such a position is often left uninformed after being unsuccessful and has no way of assessing shortcomings in this regard. The public is also in the dark when the issues of appointment become controversial and the centre of media attention and many questions are left open to speculation. Speculation often breeds contempt.

Conclusion

This process is of such importance for the administration of justice in South Africa that it should be free from criticism and controversy. Questions concerning the validity of the process should never be raised as they serve to bring the administration of justice into disrepute and taint the image and reputations of our appointed Judges. Judges must be free to administer justice and the law and not be the subject of debate concerning the suitability of their appointment to the Bench. 


 

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