January 2021 | Criminal Law / Crime, General Interest
“7,000 people have already been arrested for not wearing masks and most of them now have criminal records” (Police Minister Bheki Cele in mid-January)
We all know that wearing a face mask is the right and the safe thing to do, but it is also a legal requirement – and it’s one that you really don’t want to breach.
Firstly, can you be arrested for not wearing a mask?
The short answer is yes, the amended Disaster Management Act Regulations providing that –
- Everyone (except children under six) must always wear a face mask (covering nose as well as mouth!) when in a public place.
- It is a criminal offence not to comply with a verbal instruction to wear a face mask by an “enforcement officer” (defined to include SAPS and SANDF members, “peace officers” such as magistrates, Justices of the Peace, correctional services officers, municipal law enforcement officers and other designated officials). There are also reports of arrests without such an instruction being given beforehand, and as the police appear to be using their interpretation of the Regulations to conduct these “arrests without warning”, rather be safe than sorry – assume that if you have no mask you risk immediate arrest and prosecution.
- You are liable on conviction to “a fine or a period of imprisonment not exceeding six months, or to both such fine and imprisonment.”
- You need not wear a mask while undertaking “vigorous exercise” (not defined in the Regulations but presumably including fast running, cycling and the like – err on the side of caution here) provided that you continually maintain a distance of one and a half meters from any other person.
You could end up with a criminal record, and that’s real trouble
You can of course elect to go to court to fight the charge, but often you will also be given the alternative of paying an “admission of guilt” fine.
It will be a tempting offer at the time but be careful – paying a fine is one thing but if you end up with a criminal record (an entry in the SAPS Criminal Record Centre database) you will regret it. Imagine for example a scenario where you apply for a job, or a travel visa, or a firearms licence, or for credit (such as a home loan). And suddenly up pops your long-forgotten criminal record, a nasty surprise at the worst possible time.
Plans to change the law so that only some admission of guilt fines will result in a criminal record have so far come to nought. So as the law stands you will end up with a “deemed” conviction and sentence – and thus a record – if you are arrested and your fingerprints are taken. Which is exactly what the Minister says will happen to you.
And once you have a criminal record, it’s not at all easy to get rid of it.
Three ways you can try to remove your criminal record
- Firstly, you can apply for “expungement” of the record to remove it from the CRC database, but that option is only available to you after 10 years and for certain “minor offences”. It will also take a long time to process – “20 – 28 weeks” per SAPS. Note that some specified minor convictions fall away automatically after 10 years – ask for specific advice.
- Secondly, you could ask a court to set aside your conviction and sentence – costly, not an immediate fix, and not guaranteed to succeed.
- Thirdly, you could hope that planned amendments to our criminal procedure laws will retrospectively come to your aid – speculative for now.
The bottom line – wear your mask, and don’t admit guilt without legal advice!
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
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January 2021 | General Interest
“If it sounds too good to be true, it probably is” (wise old adage)
2021 could well be a bumper year for Ponzi schemes (and their equally evil cousins, pyramid schemes). They flourish in all countries and at all times, but with our pandemic-related economic woes and general disruption we will no doubt provide the scamsters with particularly fertile ground this year.
And these schemes just never go away. As soon as one collapses or is shut down, it is immediately replaced by a new one – or more (like the Hydra’s heads, cut off one and two grow back).
Who is at risk?
Everyone! It’s not just pensioners and retrenched employees desperate to recoup their 2020 investment losses. Past schemes have counted some of South Africa’s wealthiest and most savvy citizens as victims, the problem being of course that the con artists who originate them are highly skilled at picking their targets and at creating cover stories to make everything seem legitimate. Perhaps most importantly, they are skilled at the social engineering side of it, building trust and credibility in their target markets with endorsements and “success” stories.
2020’s R9.45bn parting shot at us
There’s often big money involved too. Witness 2020’s parting shot at us in the form of the late-December provisional liquidation of Mirror Trading International (MTI), alleged by its detractors to be a scam (an allegation hotly denied by MTI) and reportedly involving some R9.45bn worth of Bitcoin and some 280,000 investors from all over the world, lured by promised returns of up to 10% per month. At time of writing MTI denies that it runs a Ponzi scheme or indeed that anything is amiss, plus its website is still up, but a flood of media speculation to the contrary no doubt has investors panicking.
See also the recent press reports of the Asset Forfeiture Unit’s seizure of R106m worth of assets (11 chunks of land, 5 aircraft and a motor vehicle) linked to a suspected pyramid scheme.
During the lockdown, another alleged scheme took R42m in deposits from over 230,000 unsuspecting investors.
Stand by for more…and protect yourself and others by knowing the warning signs.
Red flags to watch for
See Sanlam’s Infographic below for a summary of how to spot a Ponzi scheme.
As the infographic suggests, let your watchword be: “If it sounds too good to be true, it probably is”.
Source: Sanlam Employee Benefits.
Another possible indicator of a fraud is a promoter with no physical address – and if you are given a physical address, make sure it is real!
If your proposed investment is presented as being a part of a legitimate multi-level marketing (MLM) scheme, it may or may not be genuine – tread very carefully and read “Understanding pyramid schemes and multi-level marketing” here for some pointers.
Warn others (including your staff and the “early birds”)
Please think of passing on this warning, and if you are an employer alert all your staff. These criminals often target workplaces because of the trust factor between fellow employees and colleagues.
Tell everyone not to fall into the trap of thinking that they can be winners by “getting in early”. Statistically, 88% of “investors” lose everything. And, as a number of South African court cases have shown, even the 12% “early bird winners” must, if sued by a liquidator or trustee, cough up not only their “profits” but also their initial stakes.
That’s because a liquidator (“trustee” in the case of a person or a trust) can recover any monies paid out by a liquidated scheme during the 6-month period prior to liquidation, unless the recipient can prove that the disposition was made “in the ordinary course of business” and without intention to prefer one creditor above another. That’s likely to be impossible to prove with an illegal scheme. Even after 6 months the investor is still at risk, although the onus of proof then shifts to the liquidator.
In other words, even the “early birds” stand to lose everything.
So the bottom line is this – if you are approached by anyone with a “too good to be true” deal, don’t part with a cent until you are 100% sure it is legitimate!
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
© LawDotNews
October 2020 | Delict and Civil Claims, General Interest
“People are entitled to walk our streets without having to fear being attacked by dogs and, where such attacks occur, they should in most circumstances be able to look to the owner of the dog for recompense” (extract from judgment below)
Dog owners (in fact owners of any potentially dangerous domesticated animal) should take note of the Supreme Court of Appeal (SCA)’s recent refusal to extend the legal defences open to you if you are sued for injuries and losses caused by your animal.
Your risk is substantial – the dog owner in this case is being sued for R2.3m.
Three dogs savage a passer-by
- An “itinerant gardener and refuse collector”, making his peaceful way down a suburban street and pulling the trolley in which he collects refuse, was attacked by three dogs for no reason, and without any warning.
- The dogs savaged him to such an extent that neighbours who came to the scene thought he was dead. He survived, but his left arm was amputated as a result of his injuries.
- Sued for R2.341m in damages by the victim, the dog owner raised a variety of defences, but the important aspect for most of us is the SCA’s decision regarding his defence which boiled down to “the injuries weren’t my fault”.
Pauperian liability – liability without fault
Which brings us to the nub of your risk – you can be held liable on a “strict liability” or “no fault” basis. You can be sued even if you were in no way negligent.
That’s very different to most other types of liability for damages, where you are – with just a few exceptions – only at risk if you are proved to be at fault. As unfair as that may sound at first blush, there is solid reasoning behind it: “…the reality is that animals can cause harm to people and property in various ways. When they do so and the victim of their actions is innocent of fault for the harm they have caused, the interests of justice require that as between the owner and the injured party it is the owner who should be held liable for that harm.”
That concept goes back millennia to pre-Roman laws, and our modern law continues to apply this no-fault principle in respect of domesticated animals as “pauperian liability” (“actio de pauperie” to lawyers).
This is a complicated area of law, involving much judicial interpretation of both old and modern laws, and professional advice specific to your case is essential. In a nutshell however you are liable “if the animal does damage from inward excitement or, as it is also called, from vice … its behaviour is not considered such as is usual with a well-behaved animal of the kind.”
SCA: The three defences open to you remain limited
The three limited defences that have always been available to you are –
- The victim “was in a place where they were not entitled to be” – for example “a housebreaker bitten by a watch dog [or] where the animal was chained to restrain it and the injured party ventured within reach … However, in general, if the harm occurred in a public place, such as a public street, the owner would be liable.”
- “The injured party or a third party provoked the attack by goading or provoking the animal.”
- Another person (perhaps a dog-sitter, dog walker or boarding kennel for example) had taken “custody or control” of the animal and failed through negligence to control it resulting in it injuring the victim. The claim then would be against the other person and not against you as owner.
The dog owner here asked the Court to extend that third defence by taking away the “custody or control” requirement, so that negligence by another person not a custodian of the dog would still be a defence open to the owner. That would have given the owner a glimmer of hope with his speculative defence that that he had left the dogs behind a locked gate and “an unknown intruder must have attempted to gain access to the property via the gates and in doing so damaged the two padlocks … In turn this enabled the dogs to escape…”.
Bottom line (after much learned analysis of the law and constitutional considerations) – the Court declined to extend the third defence and your strict liability risk remains undiminished.
Control your dogs and check your insurance policies!
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
© LawDotNews
September 2020 | Contract, Family Law, General Interest
“Neither a borrower nor a lender be” (Shakespeare)
This is a case of a “love relationship” gone wrong but the principles of vehicle ownership apply to any situation in which you lend a motor vehicle to anyone else.
A widely-held misconception is that if you are the registered owner of a car, it is yours and you are the owner. Not so, as a recent High Court judgment aptly illustrates –
The registered owner unable to reclaim “her” car
- In what must at the time have seemed like a straightforward agreement between two people “in a love relationship”, a woman agreed to lend her lover a vehicle which she bought from a finance company under a loan agreement.
- They had agreed verbally that he could use the vehicle for his personal use and would repay her for loan instalments, insurance, licencing, servicing, traffic fines and the like.
- When the relationship soured, the woman asked the Court for an order returning the vehicle to her as owner.
- Although there was no dispute that she was indeed registered as owner of the vehicle, the Court dismissed her application on the basis that, whilst possession of a vehicle’s registration papers is prima facie (“at first view”) proof of ownership, it is never conclusive proof of ownership. Nor is any change of ownership required to be registered for transfer to take place. So in this case the registration papers did not prove ownership, the actual owner being the finance company.
- This is different to the position with land, where registration of ownership in the Deeds Office proves ownership and is necessary for transfer of ownership. That no doubt is the origin of the myth that being registered as the owner of a car proves that you are the owner – an incorrect and dangerous assumption.
- The woman was accordingly not the owner of the vehicle, rather the finance house was the owner in terms of the lease agreement which provided that it retained ownership until all amounts due under the agreement had been paid in full.
- End result – the ex-lover keeps the car, for now at least.
Lessons for lending out cars…
- Should you decide to lend out your car, make sure to do it under a written agreement – the parties in this case were lucky that they could agree on the terms of their verbal agreement as our law reports are replete with bitter and expensive litigation over what everyone said and who agreed to what verbally.
- Include a term spelling out clearly your rights to recover possession of the vehicle. The woman in this case would have been in a far stronger position if the parties had agreed that, even if the man held up his end of the bargain to pay for all the loan instalments and other expenses, the woman still retained the right to reclaim the vehicle if their relationship ended (she still wouldn’t have sued as owner, just to enforce the agreement).
- For life partners and cohabiting couples this is yet another reminder that there is no such thing as a “common law marriage” in our law. There are no automatic marital or other rights attaching to your relationship and applicable when the relationship ends, so entering into a full cohabitation agreement is the only way to safeguard both your and your partner’s financial and personal rights.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
© LawDotNews
July 2020 | Criminal Law / Crime, General Interest
Breaking any of our lockdown laws can be an expensive business, risking heavy penalties.
If you are accused of a contravention and offered the option of paying an “admission of guilt” fine to avoid a court appearance, beware! It may seem like the easy way out to pay up and put the whole thing behind you but it could land you with a criminal record.
You really don’t want to have a criminal record!
Having a criminal record comes with serious and lifelong negative consequences. Even an old and long-forgotten minor offence can hang around in the background until it suddenly pops up at the worst possible times – such as when you apply for a travel visa or a new job.
When are you most at risk?
The general rule is that you will acquire a criminal record if you are arrested, if the police open a docket and take fingerprints, and if you are thereafter convicted of a crime.
The problem with admission of guilt fines is that they may well leave you with a “deemed” conviction and sentence which will end up in the CRC (SAPS Criminal Record Centre) database. Although there was talk in the past of the CRC capturing convictions with just your name and I.D. number the main risk seems to still be in having your fingerprints taken.
It’s not easy to get rid of a criminal record
And once you have a criminal record, it’s not easy to get rid of it.
- Firstly, you can apply for “expungement” of the record to remove it from the CRC database, but that option is only available to you after 10 years and for certain “minor offences”. It will also take a long time to process – “20 – 28 weeks” per SAPS. Note that some specified minor convictions fall away automatically after 10 years – ask for specific advice.
- Secondly, you could ask a court to set aside your conviction and sentence – costly, not quick and not guaranteed to succeed.
- Thirdly, you could hope that planned amendments to our criminal procedure laws will retrospectively come to your aid – speculative and not yet in the pipeline.
The bottom line – if you are offered the option of paying an admission of guilt fine, ask for advice before you accept!
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
© LawDotNews
January 2020 | General Interest, Road Traffic
Traffic accidents, your fault or not, are traumatic affairs. Even minor dings come with their hassles – panel beaters, tow trucks, shock and recriminations, reams of paperwork, having to get a Crash Report Number for the insurers…
That last bit has always been a major added stress factor, requiring a trip to the local police station (unlikely to be a happy experience) and yet more paperwork.
No longer – life just got a little bit easier with the new online reporting service from NaTIS (the National Traffic Information System) on its website here. The submission of the report is legally binding and only applies to “minor damage crashes”, not in cases of injury or death. Note the time limit – “All crashes must be reported within 24 hours or the next working day. (Non-Working days Saturday, Sunday and Public Holidays).”
Get your lawyer’s help urgently if it’s anything but a minor accident!
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
© LawDotNews
