The South African Police Service (SAPS) has filed a notice of appeal with the Constitutional Court in relation to the judgment on firearm renewals.
“A notice of appeal has been filed with the Constitutional Court and as such, the High Court judgment is suspended until the Constitutional Court has decided upon the matter,” SAPS spokesperson Brigadier Vishnu Naidoo said on Friday, 28 July 2017.
Earlier this month, a Gauteng North High Court ruling declared two sections of the Firearms Control Act (2000) unconstitutional.
The two sections deal with procedures and regulations that should be in place when surrendering a firearm for which the licence has already expired.
As it stands, the Firearms Control Act (2000) indicates that if a person failed to reapply more than 90 days from the date of expiry, they would be deemed to be in unlawful possession of a firearm.
However, the court had ruled that all firearms issued in terms of the act, which are due or were due to be renewed, shall be deemed to be valid.
The application brought by the South African Hunters and Game Conservation Association urged that the licensing and administration of firearms system is chaotic and dysfunctional.
With the appeal, Naidoo said the status quo is maintained pertaining to compliance with the Firearms Control Act and it is expected of firearm owners, with valid firearm licences, to continue with the timeous renewal of their firearm licences.
“The South African Police Service will retain all firearms surrendered by persons, who have failed to timeously renew their firearm licences in accordance with the Firearms Control Act, 2000 (Act No 60 of 2000),” said Naidoo.
Furthermore, no prosecutions will be instituted against persons whose firearm licences have expired and who voluntary surrendered such firearms to the South African Police Service.
There has been a buzz around the Protection of Personal Information Act 4 of 2013 (POPI), which was promulgated in 2013, but it has not been in full effect, the buzz may seem to be white noise. If you choose to take an active role in becoming compliant, you will not win any award or receive a gold star on your forehead, but you will gain and retain the trust of your clients, customers and employees. If you choose to be defiant and ignore the white noise because ‘it is not urgent yet’ then it is likely that you will fall into the deep end when it is urgent, and this will result in sloppiness and subsequent legal problems.
Compliance with POPI is not an easy task; the process requires you to consult with lawyers, technology experts and consultants who will identify potential risks. You will then spend money on security measures and training to mitigate those risks, so is it worth it to commence the process, or can you afford to wait?
There are hundreds of articles explaining what POPI is, however, in most cases, POPI is regurgitated and summarised, and many authors are still confused as to what is required to be compliant. To understand what is expected of you in terms of POPI, there are eight conditions that you must be aware of.
You, as the responsible party, have the obligation of ensuring that information is processed lawfully. A responsible party is defined as ‘a public or private body or any other person which, alone or in conjunction with others, determines the purpose of and means for processing personal information.’
Regardless if you are the manager of a gym or large corporation, your entity possesses information on your clients, customers, employees and third parties. You are, therefore, responsible for how an individual’s information is used.
Information must be processed for its given purpose. If you require identification for the purpose of entering an office building, for example, it is not necessary for you to process or collect information related to an individual’s health records. That would be irrelevant and excessive and, therefore, unlawful. A gym, however, would require an individual’s health information to ensure that if a member has an incident, the appropriate action can be taken. Individuals must consent to the processing of their information
Personal information must be collected for a specific purpose that is clearly defined, and the individuals in question must be aware of this. Information must not be retained for longer than necessary. For example, if you are operating a spaza shop and someone has bought on credit, their information must be deleted on full payment, or when an individual decides to terminate their membership with a gym, the gym must – unless it has a legitimate reason to keep them – remove all records of that individual. Exact terms regarding data retention and destruction should be stipulated in the relevant contracts. Once the purpose of the data collection has been fulfilled, information must be removed or individuals must be de-identified. Another example is the use of camera surveillance. Due to security concerns, many businesses use closed-circuit television (CCTV) cameras. CCTV collects your biometrics. Biometrics is defined as ‘a technique of personal identification that is based on physical, physiological or behavioural characterisation including blood typing, fingerprinting, DNA analysis, retinal scanning and voice recognition’. A sign that says ‘These premises are under CCTV surveillance’ or ‘Smile you are on camera’ is not POPI compliant. A sign that says ‘CCTV in use for the purposes of crime prevention’ is compliant as it informs individuals that data is being collected and the reason for collection.
Further processing limitation
The further processing must be compatible with the purpose of the collection of personal information. You must ensure that you do not divert from the reason the information was collected. If your primary reason for collecting personal information is for statistical purposes, you cannot then sell this information to marketers, with the case of CCTV footage, you will not be allowed to use the footage in a movie, for example, as the object of collection was the collection for security purposes.
This one is simple. The information must be accurate, complete and up-to-date. An example of good practice in this regard, is to try to regularly verify information. The South African Revenue Service and commercial banks are particularly good at this, although they may have other reasons for doing so.
You need to take adequate measures to ensure that the personal information is secure and identify all the reasonable foreseeable risks and take proactive measures to prevent them. For example, if your spaza shop is in a crime ridden area, your premises will require fences, a safe and an alarm system in addition to a standard firewall. If you are a large corporation, such as an insurance company, your business has information regarding peoples’ income, jobs, age, sex, status, medical records and so forth. Sensitive information such as this must be protected with the adequate level of security. It is your duty to ensure that your partners, who have access to this information, meet the minimum security requirements. This includes firewalls, state of the art antiviruses, strong encryption and POPI training for staff.
Data subject participation
Individuals are the data subjects, and they have the right to access all their personal information that has been collected, they may request the information be corrected or for the removal of outdated and irrelevant information.
If you chose to be defiant, existing and potential customers and employees will gravitate towards businesses that process their information in a lawful manner. For example, TalkTalk, a UK telecommunications company, lost 101 000 customers and £ 60 million in revenue after a data breach (Kat Hall ‘TalkTalk admits losing £ 60 m and 101 000 customers after that hack’ www.theregister.co.uk, accessed 2-2-2017).
Any person convicted of an offence in terms of POPI faces imprisonment of up to ten years and or a fine, not to mention the civil actions instituted by aggrieved individuals. Defiance could save costs in the short term, but could result in criminal and civil actions being instituted against you in the future, and litigation is not cheap.
Sasha Beharilal BCom Law LLB (Unisa) is a candidate attorney at PPM Attorneys in Johannesburg.
This article was first published in De Rebus in 2017 (March) DR 14.
I would like to know if it is procedurally fair for an employer to charge you for misconduct after you lodged a grievance pertaining to the same fact which the employer is charging you for. If not, what is the recourse?
The paucity of factual information in your question, particularity around the details of the grievance and the nature of the charge brought against the employee, prevents me from expressing a definitive view.
Nevertheless, I shall attempt to assist you and the readers in general by outlining circumstances wherein a dismissal subsequent to, and as a result of, an employee lodging a grievance would be deemed automatically unfair and thereafter, set out the context where a dismissal, under similar circumstances, would be deemed fair.
Automatically unfair dismissal
In Mackay v Absa Group and Another (2000) 21 ILJ 2054 (LC) the employee referred an automatically unfair dismissal, in terms of s 187(1)(d) of the Labour Relations Act 66 of 1995 (LRA), alleging he was dismissed as a result of lodging a grievance against his superior.
Section 187(1)(d) reads:
‘A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is –
(d) that the employee took action, or indicated an intention to take action, against the employer by –
(i) exercising any right conferred by this Act or,
(ii) participating in any proceedings in terms of this Act.’
On a plain reading of the above section, the question before the court was whether an agreed upon grievance procedure, found in either an employer’s policy or in an employment contract, falls within the ambit of either a ‘right’ or ‘proceedings’ as contemplated in
s 187(1)(d)(i) or (ii).
Adopting a purposive approach in interpreting the LRA and considering international charters, to which South Africa is a signatory to, Mlambo J held:
‘Therefore in keeping with the main object of the Act, ie of resolving all labour disputes effectively, and with the constitutionally guaranteed right to fair labour practices it must follow that a purposive interpretation of s 187(1) would mean that the exercise of a right conferred by a private agreement binding on the employer and employee as well as participation in any proceeding provided for by such agreement was also contemplated in that section. As in casu, the participation by an employee in a privately agreed grievance procedure, must have been contemplated as a proceeding in terms of this Act, ie when s 187(1)(d) was enacted. This is on the basis that the disputes specifically mentioned in
s 187(1) are of the same kind as the dispute in casu.’
Subsequent to this judgment the Labour Court (LC) per Steenkamp J in De Klerk v Cape Union Mart International (Pty) Ltd (2012) 33 ILJ 2887 (LC), followed the principle in the Mackay case. The employee in that matter also relied on s 187(1)(d) when she was dismissed for lodging a grievance against her manager. The employer raised three exceptions against the employee’s statement of claim, one being that s 187(1)(d) does not refer to a grievance as a ‘right’ contemplated in the LRA nor can a grievance be considered ‘proceedings’ envisaged in the LRA. In dismissing this ground the LC held:
‘I am not persuaded that the purposive interpretation adopted by Mlambo J is clearly wrong. It does seem anomalous that an employee in the position of Ms de Klerk or Mr Mackay should not enjoy special protection. Why would a whistleblower enjoy special protection in terms of s 187(1)(h), but not an employee who lodges a grievance in terms of her own employer’s procedures?
In the absence of any finding to the contrary by the LAC, I consider the interpretation adopted by Mlambo J to be sufficiently persuasive not to prevent the applicant from pursuing her claim in those terms. The interpretation in Mackay appears to me to give effect to the constitutional values discussed in the quoted passage. I am not in a position to disagree with the learned judge’s finding on the legal position.’
However, should an employee lodge a grievance accusing a fellow employee or superior of serious misconduct which, when tested or investigated are deemed false; then an employee making such accusations could well be disciplined and even fairly dismissed.
In SACWU and Another v NCP Chlorchem (Pty) Ltd and Others  7 BLLR 663 (LC) an employee was dismissed for falsely accusing his manager of being a racist. An arbitrator found his dismissal substantively fair and on review, the LC held the following:
‘One can hardly think of many, if any, circumstances under which an employee who has been found guilty of being a racist or displaying racist attitudes to fellow employees will avoid being dismissed. This is likely to be so as one can hardly imagine that any employer could reasonably be expected to continue to employ such offending employee in the workplace. It is likely to cause racial disharmony. I believe it is similarly difficult to imagine under what circumstances an employee who without just cause or a reasonable basis therefore, and accordingly unjustifiably, accuses another employee of being a racist, or that he or she was displaying a racist attitude, would easily escape dismissal. Such conduct strikes at the heart of racial harmony. It cannot be emphasised enough that to accuse somebody of being a racist, or of displaying racist attitudes, is to be regarded as a very serious allegation.’
While your question speaks to procedural fairness, the primary inquiry in my view, turns on the substantive fairness of disciplining an employee after having lodged a grievance. If there were genuine grounds to lay the grievance and it can be shown, at a prima facie level, that dismissal was imposed with punitive intent, then the dismissal may well be automatically unfair. If, however, it is found that there was no reasonable basis for lodging a grievance and it was the employee who lodged the compliant with malicious intent, then dismissal under these circumstances may well be deemed fair.
This article was first published in De Rebus in 2017 (April) DR 41.
Section 103 of the Firearms Control Act 60 of 2000 (the Act) deals with the declaration of unfitness of a convicted person to possess a firearm. In practice it is extremely important for legal practitioners practicing criminal law to be aware of these provisions and what the consequences would be for their clients. This provision only comes into play if the accused is convicted of certain criminal offences.
Section 103(1) of the Act
This section states that: ‘Unless the court determines otherwise’ a person becomes unfit to possess a firearm if convicted of an offence, which is listed in that subsection. Therefore, a person is ex lege (by operation of the law) automatically declared unfit to possess a firearm. The court – when making a finding – will in practice state that ‘no order is made’.
It is very important to know which offences fall within this subsection. The offences listed in subs 1 are as follows –
‘(a) unlawful possession of a firearm or ammunition;
(b) any crime or offence involving the unlawful use or handling of a firearm, whether the firearm was used or handled by that person or by another participant in that offence;
(c) any offence regarding the failure to store firearms or ammunition in accordance with the requirements of this Act;
(d) an offence involving the negligent handling or loss of a firearm while the firearm was in his or her possession or under his or her direct control;
(e) an offence involving the handling of a firearm while under the influence of any substance which has an intoxicating or narcotic effect;
(f) any other crime or offence in the commission of which a firearm was used, whether the firearm was used or handled by that person or by another participant in the offence;
(g) any offence involving violence, sexual abuse or dishonesty, for which the accused is sentenced to a period of imprisonment without the option of a fine;
(h) any other offence under or in terms of this Act in respect of which the accused is sentenced to a period of imprisonment without the option of a fine;
(i) any offence involving physical or sexual abuse occurring in a domestic relationship defined in section 1 of the Domestic Violence Act [116 of 1998];
(j) any offence involving the abuse of alcohol or drugs;
(k) any offence involving dealing in drugs;
(l) any offence in terms of the Domestic Violence Act … in respect of which the accused is sentenced to a period of imprisonment without the option of a fine;
(m) any offence in terms of the Explosives Act [26 of 1956] in respect of which the accused is sentenced to a period of imprisonment without the option of a fine;
(n) any offence involving sabotage, terrorism, public violence, arson, intimidation, rape, kidnapping or child stealing; or
(o) any conspiracty, incitement or attempt to commit an offence referred to above.’
Section 103(2) of the Act
This section applies to cases where the convicted person does not fall into the categories listed in subs 1, but falls into categories listed in sch 2 of the Act. This subsection gives the court a discretion to decide whether to declare a person unfit to possess a firearm.
Schedule 2 refers to the offences of: High treason; sedition; malicious damage to property; entering premises with the intent to commit an offence under either the common law or a statutory provision; culpable homicide; and extortion.
When is the inquiry done?
In practice it is usually done after a conviction and the previous convictions of the accused has been proved.
Procedure for the inquiry
The accused can present his or her case by testifying and calling witnesses. The state will then have the same opportunity. Both parties will be given the opportunity to address the court and the court can deliver judgment.
From personal experience, however, legal practitioners merely address the court from the Bar without leading evidence in this regard. The court, after hearing the address by both defence and the state, then makes a finding in terms of s 103(1) or (2).
Three decided cases and the court’s perspective
In S v Lukwe 2005 (2) SACR 578 (W), a matter that was sent on automatic review as the accused appeared in person. Borchers J dealt with the court a quo’s findings in declaring the accused unfit to possess a firearm in terms of the provisions of s 103(2)(a) of the Act. The accused was convicted of theft and received a wholly suspended sentence without the option of a fine. The court a quo explained to the undefended accused that he was entitled to state reasons why he should not be declared unfit to possess a firearm. The accused responded that he one day wanted to become a policeman or security officer.
The review court held as follows:
‘[T]hat the wholly suspended sentence imposed upon the accused fell within the ambit of s 103(1)(g) of the Act, which stated that, unless the court determined otherwise, a person became unfit to possess a firearm if convicted of “any offence involving [violence, sexual abuse or] dishonesty, for which the accused is sentenced to a period of imprisonment without the option of a fine”.’
The court held that the inquiry had to have been conducted in terms of s 103(1) of the Act and the court, therefore, erred by not explaining to the accused that he was entitled to place before the court the fact that he was fit to possess a firearm, which might satisfy the court. Absent to such an explanation, the accused placed before the court facts, which related to his prospective ‘need’ to possess a firearm and not to his ‘fitness’ to possess a firearm. The court held that ‘fitness’ and ‘need’ were two different concepts. The matter was referred back to the magistrate for an inquiry to be held in terms of s 103(1) of the Act.
S v Smith 2006 (1) SACR 307 (W) dealt with the provisions of a declaration of unfitness to possess a firearm in terms of s 103(2)(a) of the Act. This provision requires a court, which convicts a person of a crime mentioned in sch 2 to the Act, and which was not a crime mentioned in s 103(1), to inquire and determine whether that person was unfit to possess a firearm. The accused pleaded guilty to a charge of theft and after sentence was passed, he was declared unfit to possess a firearm in terms of s 103(2)(a). The High Court held in casu that there were no facts on record on which the accused could realistically be declared unfit to possess a firearm. It held that the inquiry (an act of seeking information) had not occurred, and it was peremptory that such an inquiry be held. The matter was remitted to the court a quo, so that the necessary inquiry could be conducted. In this case the magistrate merely asked the accused to advance reasons why he should or should not be entitled to possess a firearm and the accused replied that he did not need a firearm. The court stated that what is required by the judicial officer is for him to ask relevant questions to establish whether the conduct of the accused and/or circumstances surrounding the commission of the offence merits taking away the accused rights to possess a firearm. This is especially so where the offence committed bears little or no relation to the use of firearms.
In S v Mkhonza 2010 (1) SACR 602 (KZP) it was held that when the Legislature vested in the courts the jurisdiction to determine that the statutory unfitness to possess a firearm imposed under s 103(1) of the Act should not apply, it did not intend the courts to adopt a supine approach. These matters, are dependent entirely on whether the accused has the knowledge, means and resources to place a proper case before it, that the disqualification should not apply to them, and in all other cases for the disqualification to apply as a matter of rote. Therefore, the court makes it clear that there is an obligation on the trial court to consider – having regard to all relevant factors – whether the case is one where the statutory disqualification from possessing a firearm should remain in place, or whether it should determine otherwise. The court should have regard to any factor that bears on the issue and, if there is reason to believe that all material facts bearing on that decision are not before it, to cause those facts to be discovered and placed before it.
The court offers a legal practitioner guidance on what factors may be considered relevant. Although not comprehensive they are, inter alia:
What happens after the court has made a determination that the person is unfit to possess a firearm in terms of subs 1 or a declaration in terms of subs 2?
It must notify the Registrar in writing of that conviction, determination or declaration. Such notice must be accompanied by a court order for the immediate search for and seizure of –
Is the decision of the court in terms of s 103 appealable?
Yes. In the Mkhonza matter the High Court dealt with an application for leave to appeal solely against the refusal to declare otherwise in terms of s 103(1) of the Act. The accused was grossly negligent in the loss of his firearm but the Supreme Court of Appeal considered that for ten years he was in responsible possession. The High Court set aside the court a quo decision and replaced it with a decision that meant that the accused remained fit to possess a firearm.
Proof of declaration of unfitness
Section 105 provides that: ‘A certificate purporting to have been signed by the Registrar or by the registrar of a High Court, the clerk of a magistrates’ court or the clerk of a military court, stating that the person mentioned in the certificate has become or has been declared unfit to possess a firearm, or has been convicted of a specific offence or crime, is upon production thereof by any person, prima facie evidence of the facts stated in that certificate.’
Duration of the disqualification
In terms of s 9(4) of the Act, the disqualification contemplated in s 103 ends on the expiry of a period of five years calculated from the date on which the person became or was declared unfit, or the expiry of the period for which the declaration is valid, whichever event occurs first.
It is therefore, very important for a practitioner to take full and proper instructions from the client regarding this provision due to consequences that flow therefrom.
Sherika Maharaj LLB (Unisa) is an attorney at the East London Justice Centre.
This article was first published in De Rebus in 2017 (July) DR 20.
Almost every business in the world is going to experience a time when a customer fails, refuses or neglects to pay an invoice, and the business is then left with a bad debt in their books. The issuing of a legal letter of demand is traditionally the first step taken in order to recover that bad debt from the customer, and is sometimes a prerequite step before you can commence legal proceedings against the customer in a Court of law.
The letter of demand traditionally sets out the facts that gave rise to the debt, advises the customer as to certain rights that the customer has, and then demands payment of that outstanding debt by a certain date. The letter of demand can also advise the customer that the business will accept payment of the debt by way of monthly instalments, however this is not necessary.
There are occassions where legislation requires you to include certain statements in a letter of demand. If you don't, then you won't be entitled to sue the customer until you've complied with those requirements!
Some things to think about:
1) Where you have a credit agreement, section 129 of the National Credit Act requires you to advise the customer of certain rights BEFORE you are legally entitled to institute legal proceedings (sue the customer / summons), and if you don't comply with sending the customer a section 129 letter of demand then your case will most definitely fail.
2) Where you have an agreement (loan agreement) and there was never a date of repayment agreed upon, then you need to FIRST demand that the borrower repays you the loaned amount. Legally speaking you are putting the borrower into mora - which means that the debt is due and owing. You therefore need to send a letter of demand to the borrower in which you demand the repayment of the loaned amount within a certain period, failing which you will be entitled to sue the borrower!
3) Sometimes you may want to send out a letter of demand in order to let the customer know that you are serious. Often a customer will pay proper attention to a letter of demand when it comes from a lawyer. Other times just a properly worded letter will be enough. You should therefore ask an attorney / lawyer to help you draft a letter of demand.
A letter of demand is a very important legal document, as it sets out the background of the dispute and formalises many issues. It can also help to assist in settling the dispute BEFORE you have to approach the Courts for assistance!