#16Days #orangetheworld

As you may know, the 16 Days of Activism for No Violence against Women and Children campaign runs from 25 November - 10 December each year. While it is very important to support the 16 day campaign, we also need to remember that the emancipation of women and children is a 365 days a year undertaking. #orangetheworld #16Days

Tell me more about Customary Law

Many cultures and customs exist under our gorgeous South African sky. Long before the British and Roman Dutch colonized the Cape, many unwritten laws governed the lands and its people.

It is, however, important to note that it is not always an easy task to apply customary law in court. Customary law is a living and (mostly) unwritten law passed on from generation to generation.

Tell me more about customary law?

· ‘Customary law’ is defined as ‘the customs and usages traditionally observed among indigenous African peoples of South Africa and which form part of the culture of those peoples’ (The Recognition of Customary Marriages Act 120 of 1998).

· Customary law is binding in South Africa provided it is not ‘exercised in a manner inconsistent with any provision of the Bill of Rights’ (Section 31 of the Constitution of the Republic of South Africa, 1996).

· African customary law is not a singular code, but encompasses many different communities and cultures such as Xitsonga customary law, Zulu customary law, Xhosa customary law, etc.

· Most disputes are settled in family or clan meetings and do not reach the western courts. Our Constitution furthermore provides for customary courts and traditional leadership in section 211. Customary courts are mainly found within the rural areas and are headed by Chiefs and Headmen. Customary law, Ubuntu and the rules of the community, subject to our Constitution, applies in customary courts.

· Western courts are extremely cautious when applying and ruling customary law. This is mostly due to a lack of information/ understanding, their common law training and the binding impact the judgment may have. As pointed out by many judges, customary law should be allowed enough space to develop at its own pace. This is why most judges treat customary law cases before them on a piecemeal basis – in other words, their judgement only affects a certain issue, current parties or only a specific community.

· Many argue that the polygamous nature of customary law is unconstitutional in that customary law allows for a man to have more than one wife but a women may not marry more than one man. The Recognition of Customary Marriages Act tries to offer relief via section 6, noting a wife’s equal status and capacity ‘to acquire assets and to dispose of them, to enter into contracts and to litigate, in addition to any rights and powers she may have in customary law.’

· Furthermore, a husband needs to apply to court for approval before he can marry a second wife in terms of customary law. The previous wife/ wives need to be added to the court proceedings. In a sense the previous wives therefore need to give their permission. Also, this court order will determine the consequences of the marriage concerning the matrimonial property regime (assets and liabilities between the parties).

· Customary marriages need to be registered at the Department Of Home Affairs within three months. However, not registering the customary marriage does not make it invalid. Unless the husband marries a second wife in terms of customary law. If there is only one man and one woman, the parties may get married in terms of civil and customary law. Once married in terms of civil law, the man may not marry more than one wife (unless the parties divorce in terms of civil law).

· The requirements for a valid customary marriage include: consent, majority age and the rituals in terms of customary law (note that the paying of lobola is not a requirement for a valid customary marriage). The default matrimonial property regime for the first customary marriage is in community of property.

We wish you and your family a celebratory Heritage Day tomorrow. May we all learn to properly ‘unite in our diversity.’

Today is also a Jewish holiday, Yom Kippur. Yom Kippur is a day of fasting and repentance to renew the relationship with God. 

Legal Hero

www.legalhero.co.za

Muslim Marriage

“The new constitutional order is based on the recognition of our diversity and tolerance for other religious faiths.” - Daniels v Campbell and Others 2004 (5) SA 331 (CC) para 54.

Prior to our progressive and tolerant constitution, marriage was an option available only between a man and a woman in terms of the Marriage Act of 1961. Today same-sex couples may marry in terms of the Civil Union Act of 2006 and the Recognition of Customary Marriages Act of 1998 allows for African customary marriages.

South Africa has yet to enact legislation (law) that specifically caters for Muslim marriage.

Luckily there have been a few positive strides: 

• There are instances where our law does in fact recognize a Muslim marriage to a certain degree in order to offer protection. For example, only a ‘spouse’ can apply for maintenance from the deceased estate of their loved one after his/ her passing. To be considered a surviving ‘spouse’ in terms the Maintenance of Surviving Spouses Act, your marriage must, however, be legally recognized and therefore valid in South Africa. In the Constitutional Court case quoted above, the surviving wife (married in terms of Muslim law) was acknowledged as a ‘spouse' and in the court case of Hassan v Jacobs the surviving spouse of a polygamous Muslim marriage was also accepted as a surviving ‘spouse.' 

• The Muslim Marriages Bill is a draft law that was compiled back in 2003. This Bill has, however, been subject to much criticism. For example, it states that Muslim Marriages will automatically be OUT of community of property unless parties enter into an ante-nuptial agreement stating otherwise. In terms of South Africa’s other marriage laws mentioned above, a marriage will automatically be IN community of property. Being married IN community of property often offers protection to a spouse who gives up his/ her career and opportunities to stay at home and take care of the children. Should the couple divorce, parties married IN community of property will split everything fifty-fifty. 

• A few years ago Imams (Muslim clerics) were trained and appointed as authorized marriage officers, enabling a Muslim marriage to be solemnized by a registered Imam marriage officer in terms of the Marriage Act. Whilst the aforementioned is great news, many questions still remain unanswered pending the enactment of the Muslim Marriage Bill to deal specifically with many rights, responsibilities and consequences of a Muslim marriage. 

The point of having a specific act (law) such as the Marriage Act, Civil Union Act and the Recognition of Customary Marriages Act, is to offer case sensitive regulation and protection. 

Without a specific act, many questions that arise include the logistics and rights when it comes to the resolution of the marriage, for example. There are also a few other concerns regarding Islam law which have been cited as reasons why the enactment of the Bill is dragging its feet, including the man’s exclusive right to end the marriage unilaterally (talaq) and the custom that a woman may be wed by proxy.

“Everyone has the right to freedom of conscience, religion, thought, belief and opinion… This section does not prevent legislation recognizing… marriages concluded under any tradition, or a system of religious, personal or family law… Recognition… must be consistent with this section and the other provisions of the Constitution.” – Section 15(1), 15(a)(i) and 15(3)(b) of the Constitution of the Republic of South Africa, 1996

We wish you a wonderful and thought-provoking Heritage Month. South Africa's rich diversity of religious communities, cultures, languages and customs have a great deal to offer. As the preamble to our Constitution asks, may we all live ‘united in our diversity.’

www.legalhero.co.za

Not married but together for 30 years. What are my rights?

Good morning 

I really need your advice. I have been living with a man for 30 years. We are not married but I found out that he has been having an affair for 3 years. I am going to leave him but please will you tell me what my rights are. 

When we met in I had a house and a car. I did not use my Volkswagen so he used it. He used my car and a year later we sold it and bought him a new car. We also sold my house a few years later and used that to buy a bigger house. This was about twenty years ago. The new house and cars that followed after that are all in his name. I left my job many years ago to take care of my children and he supported us. My two daughters are not his. 

I do all the homework myself, cooking, cleaning, also do the garden, massage his shoulders every night, wash cars, varnishing of the house. My children have left the house but I don’t know what my next step should be. This is not easy. 

Dear Women’s Month Reader 

We are terribly sorry to learn of your predicament. This is a very tricky situation seeing that there is a big gap in South African law when it comes to long term relationships – where both parties contributed to the common household, but on paper only one party holds all the funds. 

Without a valid Marriage, Civil Union (similar to a Marriage) or Universal Agreement, your cohabitation with this man is not expressly recognised in law/ legislation. 

Your options here include: 

a) Prove an implied Universal/ Partnership Agreement in Court: 

- There is a Domestic Partnership Bill (this law has not been enacted/ become operational as yet) which may offer future protection to persons in a similar situation. So, the good news is that the legislators have realised that there is in fact a big shortcoming regarding long term cohabitants. Unfortunately, this new law is dragging its feet and implementation is unfortunately not around the corner.

- HOWEVER, there has been a handful of court cases where one of the cohabitants were able to prove an implied Universal Partnership. This is extremely difficult to prove, and most unfortunately fail. 

- To prove an implied Partnership Agreement, you need to prove that you both contributed to the household/ domestic partnership enterprise and that both parties aimed to make a profit and enjoy the benefits of a growing domestic partnership enterprise. Your lengthy time together will also play a role. Cooking, cleaning, massaging, etc. also count as household contributions.

- Just to highlight a specific case in terms of which the woman was successful in proving an implied Domestic Partnership (and in her case they were together for ten years less than you and your partner, i.e. 20 years): although both contributed to the same extent, as it was claimed, the woman walked away with only 30% of the partnership enterprise’s value.

- This could be a lengthy and tiresome court experience. We note that you are not a Legal Hero policyholder, but we might be able to recommend an excellent attorney in your area. 

b) Better yet, try to mediate the matter: 

- It could be that your partner is willing to settle out of court and award you a fair percentage of the common household considering all your contributions. This would spare you the expense of going to court and one could split the household depending on what is fair to both parties. An agreement could be drawn up for both of you to sign and abide by.

c) Claim monies of the past three years: 

- A Civil claim (your partner owing you money) prescribes in three years’ time. In other words, if you loaned your partner money/ assets/ etc., he would be able to raise the special defense of prescription in court regarding debts older than three years. At this point in time, you would only be able to claim back from your partner any and all expenses (that you are able to prove in writing) over the past three years.

- An acknowledgment and/ or an agreement to start paying the debts off (even if it’s only a small payment every month) will revive the debt!

- Just bear in mind that he who alleges, bears the burden of proof. You would also for example have to give an explanation as to why everything was registered in his name. 

What is a Domestic Partnership Agreement? It is a contract that sets out the legal implications of a committed and long term heterosexual or same sex couple who decide not to marry but wish to protect themselves against an unfortunate separation. More specifically, it sets out the assets and properties of each of the parties and what were to happen should the relationship turn sour. 

Should you and your partner decide to get back together, or you wish to cohabit with another person, please consider entering into a Domestic Partnership Agreement. It has your best legal interests at heart and can save you from all the admin and legal uncertainties you are currently facing. 

This is a lot to take in. Please consider your options carefully and do not hesitate to ask follow-up questions. 

Kind regards, 

Legal Hero

www.legalhero.co.za 

Notes on Euthanasia

In Stransham-Ford v Minister of Justice And Correctional Services and Others (4 May 2015) the High Court gave a terminally ill patient permission to be assisted in his suicide by a doctor who is willing to  do so, 'either by administration of a lethal agent or by providing the Applicant with the necessary lethal agent to administer himself.' 

A few days ago, however, leave was granted to appeal this ruling in order to develop South Africa's common law. 

101 Notes: 

There is currently no legislation/law enacted to regulate euthanasia and as pointed out by a senior State Advocate representing the National Director of Public Prosecution in the aforementioned case, to assist someone commit suicide is a crime. 

There are different variations of euthanasia: 

Doctor withholds treatment from a patient. This is a passive approach. A patient may refuse medication/ treatment in terms of one’s Constitutional right to bodily integrity. 

Where a patient is mentally capable and wants to die, the doctor may NOT pursue any treatment. The crime for doing so is assault. 

Where the patient is mentally incompetent, only a medical professional will be able to determine what would be in the best interests of the patient. Unless the patient has a living will advising that he/she does not consent to artificial life support. A living will is signed when the patient is mentally capable and only becomes relevant when the patient is mentally incompetent/ in a permanent vegetative state. At the moment a living will cannot order a medical practitioner to assist with the patient’s suicide. 

Mercy killing. This is when the doctor actively assists the dying. Regardless of whether or not there is a kind motive: mercy killing = murder. 

There is currently a bill (draft law) concerning assisted suicide. The draft law suggests three approaches: a) Leave the matter unregulated and allow the courts a discretion with regards to sentencing, etc.; b) The doctor and patient decide together; c) Set up an Ethics Committee to decide whether or not assisted suicide may be pursued. 

Note that a High Court does not have the power to make new laws and that decisions of the Supreme Court of Appeal are binding on all lower courts. An order of constitutional invalidity must, however, proceed to the Constitutional Court for confirmation. The Constitutional Court will then typically guide and order Parliament to cater for the specific instance by enacting legislation. Power is divided into three branches: legislative/ law-making (Parliament), executive (President and his Cabinet) and judicial (Courts who apply and review laws). To avoid the abuse of power, each branch functions independently with different functions.

Judge Fabricius in the Stransham case on the sacredness of life, para 14:

"People die of AIDS, from malaria by the hundreds of thousands, from hunger, from malnutrition and impure water and insufficient medical facilities. The State says that it cannot afford to fulfil all socio-economic demands, but it assumes the power to tell an educated individual of sound mind who is gravely ill and about to die, that he must suffer the indignity of the severe pain, and is not allowed to die in a dignified, quiet manner with the assistance of a medical practitioner.”

www.legalhero.co.za 

Seven Interesting Truths about Polygraph Tests

1. There is currently no law specifically regulating polygraph (lie detecting) tests in South Africa!


2. Some employers make use of polygraphs to test the honesty of employees after company property has gone missing or after alleged misconduct. A few employers even request pre-interview polygraph testing!


3. Polygraph tests involve electronic sensors placed over the chest, abdominal and finger to measure respiratory, sweat gland, cardiovascular and blood pressure activity whilst the examinee responds to certain questions.


4. Remember that the outcome of a polygraph test may NOT be the sole reason for a dismissal (reference: Sosibo & Others). It may therefore only count as an aggravating factor to support other evidence against the employee.


5. A person who performs a polygraph test, called a polygraphist, can testify in court as an expert witness to support an employer’s claim against an employee. A polygraph test will cost the employer about R500.00 – R2 000.00+, excluding traveling fees.


6. Furthermore, for the outcome of a polygraph test to be permissible in court, the employer has to comply with a few strict rules:

a) The employer needs the employee’s written consent;

b) The employee’s refusal to undergo a polygraph test does NOT amount to an admission of guilt.
c) The polygraph questions may not be not be vague or misleading;
d) The questions should be explained to the employee prior to the test;
e) The employee has the right to an interpreter during proceedings;
f) The employee has the right to have a colleague/ another person present;

g) The outcome of the polygraph test is confidential and may only be released to the examinee or an authorized person.


7. How accurate is a polygraph test? According to a very recent study (2015) conducted by the American Polygraph Association, a polygraph test is about 86% accurate! There are, however, many who disagree with the admissibility of this statistic and who argue that polygraph testing is subject to far too many variables.


Wishing you a fantastic day,

Legal Hero 

www.legalhero.co.za 

Sexual Experimentation & the Youth

Let’s say you catch your 13 year old daughter and her boyfriend (also 13) kissing in her room. 

Did you know that underage kissing, children 12 to 16 years, is a crime in terms of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007? 

According to this act consensual underage sexual activity/ penetration/ petting/ kissing is a crime. Any person who fails to report it could face possible criminal prosecution. Yes, that means that you as a parent or guardian could be charged with a crime should you fail to report your underage daughter’s smooching session. 

Enter the Teddy Bear Clinic Constitutional Court case (2014):

· Children’s rights activists argued that the criminalization of consensual underage sexual activity causes pregnant girls to avoid clinics and hospitals as they and their partners fear criminal charges;

· The Department of Justice on the other hand argued that decriminalization would negatively impact the already escalating rate of sexual violence among young children;

· The Court, however, found in favour of Teddy Bear Clinic and ruled that the criminalization of consensual underage sexual activity infringes a teenager’s right to dignity and privacy;

· The Court gave Parliament more than a year to change the Sexual Offences Act.

Enter the new draft rules which have yet to come into effect:

· Two consenting minors aged 12 to 16 will not face criminal charges following sexual activity;

· It remains a serious crime for an adult to engage in sexual activity with a minor younger than 16, regardless of the minor’s consent;

· A person aged 16 or 17 years will not face criminal charges for consensual sexual activity with an underage minor, provided the age difference is no more than two years.

“Every child has his or her own dignity. If a child is to be constitutionally imagined as an individual with a distinctive personality, and not merely as a miniature adult waiting to reach full size, he or she cannot be treated as a mere extension of his or her parents, umbilically destined to sink or swim with them.”

- S v M (Centre for Child Law as Amicus Curiae) para 18: 

Yours faithfully, 

Legal Hero

www.legalhero.co.za 

The Curious Case of Prince v President

Prince dreamed about becoming an Attorney. The Law Society, however, refused to register Prince as an Attorney due to his two previous convictions on the count of dagga possession. 

Prince took the Law Society to Court and based his arguments on the following: infringement of his right to freedom of religion as a Rastafarian, unfair discrimination as part of a minority group in South Africa, the right to choose his trade and occupation freely and infringement of his right to human dignity. 

The Constitutional Court (decided on 12 December 2000):

• Yes, the Constitutional Court agreed that the Drugs and Drug Trafficking Act of 1992 DOES in fact infringe Prince’s constitutional right to freedom of religion;
• This limitation is, however, justified. Constitutional rights are not absolute and can be limited in terms of section 36 of our Constitution “only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.”
• The State has an important obligation to combat the use of and trade of drugs and has signed international agreements to do so. There is furthermore little information available on the use of dagga and South Africa’s Rastafarian community to justify a religious exemption.

Did you know? 

• · Cannabis/ marijuana/ dagga has been in use for over 8 millennia;
• · R300 million: the cost in Gauteng alone to arrest, prosecute and keep marijuana offenders in jail - according to research conducted by the Anti-Drug Alliance NGO; 
• · Some argue that there is very little evidence to support that Marijuana is harmful or addictive whilst others argue that all medicines and even herbs have side effects;
• · USA: about 23 States have legalized medical marijuana, and others are in the process of following suit;
• · South Africa: the Medical Innovation Bill (draft law to legalize marijuana in South Africa for medical, economical and industrial use), was introduced in Parliament in February 2014. It could take a number of years for the bill to be signed and become law. Some argue that the Bill is just a copy and paste version and does not cater for South Africa’s unique circumstances. 

Unfortunately Prince’s dream to become an Attorney did not materialize. One must note that the Medical Innovation Bill, even if it were law, would not have helped Prince. Reason: Prince used marijuana for religious/ spiritual purposes and not for medical reasons. In this case the Constitutional Court, however, once again acknowledges our right to freedom of religion and quotes a well-known passage from the case Christian v Minister of Education 2000 (10) BCLR 1051 (CC) para 36: 

Yours Faithfully, 

Legal Hero 

www.legalhero.co.za 

Your School's Uniform and Dress Code

The Federal Constitutional Court (Germany) declared a ban on teachers wearing Islamic headscarves unconstitutional on Friday, 13 March 2015.

The decision reminds us of the South African Constitutional Court case of a few years ago: MEC for Education v Pillay 2008. Yes, South Africa has one of the best constitutions in the world.

With Human Rights Day around the corner (21st of March), let's have a look at the Pillay case... 

It could therefore be within a learner’s right to wear a nose stud to school if it forms part of the learner's religion or culture. Schools are thus advised to allow for a procedure in terms of which a learner can apply to wear a religious or cultural piece. According to the Pillay case, the fact that an exemption might encourage more learners to express their religion or culture, should be celebrated and not feared.

Proudly South African.

www.legalhero.co.za 

Know Your Socio-economic Rights!

Socio-economic Rights include the right to adequate housing, food, health services and water. In other words, these rights are basic essentials necessary to survive. 

It differs from Civil and Political rights (the right to vote, freedom of speech, equality, etc.) necessary to lead a full life.

Our Human Rights (both Civil/ Political and Socio-economic) are found in Chapter Two of our Constitution, the Bill of Rights. The wording of our Constitution qualifies certain Socio-economic Rights. 

Socio-economic rights can be qualified or unqualified 

· Qualified: 

- Only if the State (Government) has sufficient resources to fulfil the right;

- The State will make these rights available within its means/ depending on its budget/ ‘within available resources.'

· Unqualified: 

- The State has a duty to make these rights available; 

- This does not mean the State must make these rights available immediately or without delay (according to the Constitutional Court).

Human right violations: 

Speak to your hero/ attorney. Alternatively, you may contact the South African Human Rights Commission at complaints@sahrc.org.za.

Note: non-nationals can also claim Socio-economic Rights. If you have a look at the wording used in the Bill of Rights, you'll notice the word 'everyone' is used in the socio-economic sections. Also, in the Khosa case of 2004, the Constitutional Court once again highlighted that non-nationals are a vulnerable group in our society and should be protected.

Other rights, however, such as the right to vote and access to land, use the word 'citizens.'

Wishing you a wonderful Friday and weekend, 

Legal Hero

www.legalhero.co.za 

Human Dignity – fundamental value and justiciable right

When it comes to our basic human rights, those that usually jump to mind include access to water, adequate housing, health care services, basic education, etc. Perhaps it is because these rights are easy to explain.

What about the right to dignity? Section 10 of our Constitution reads that everyone has the right to have their dignity respected and protected.

Dignity is, however, often described as ‘fluffy’ in that our Constitutional Court has yet to define it. Many therefore argue that it cannot be seen as a human right on its own and rather serves as a guide/ value when interpreting the various other human rights found in our Constitution.

In the spirit of Human Rights Month, we have assembled some of our favourite judgement quotes on human dignity. 

1. In S v Dodo, concerning cruel and degrading punishment, the court raised the importance of human dignity.

2. Human dignity furthermore endorses our political rights.

3. In the case quoted below, it was acknowledged that “dignity is a difficult concept to capture in precise terms.” Nonetheless, it was ruled that the criminalisation of sodomy impairs human dignity.

 

     4. The Dawood case highlighted that human dignity is also a justiciable and enforceable right in itself. The court stressed that a human rights infringement can infringe more than one right. Cruel and degrading punishment infringes our right to bodily integrity as well as our right to human dignity, for example.

        

Wishing you a spectacular Monday! 

Yours truly,

Legal Hero. 

www.legalhero.co.za

Three Quirky Truths about Equality

1. Banning prostitution does not amount to indirect unfair discrimination against women.

This is according to the court case of S v Jordaan. The judge ruled that the problem lies with women generating supply and not with men’s demand. It was ruled that the prohibition cannot be said to be unfair on the basis that the majority of offenders are women.

2. There is a difference between formal and substantive equality.

Formal: Equal treatment for all. Section 9(2) of our Constitution reads that everyone is entitled to the same protection and benefit of the law.
Substantive: Unequal treatment in order to reach the Constitution’s goal of an equal society. Our courts have ruled that it would take much longer to restore the injustices of the past if one were to treat everyone identically, without taking into account his/ her/ the group’s social and economic circumstances. Example: Affirmative Action.

3. In S v Hugo the court agreed that there was in fact discrimination, but ruled that the discrimination was fair.

In the Hugo case the President pardoned mothers with children under the age of 12 from prison. A single father of a child under 12 applied to have this decision declared unconstitutional as it unfairly discriminated against his gender.

The court ruled that this pardon does amount to discrimination but that this discrimination is not unfair in that the generalisation (that mothers are more often than not the caretakers of minors) is acceptable. The court, however, ruled that each case should be treated on its own merits and stressed the importance of context and the impact of the discrimination (our prisons are overcrowded, society would not react well to the release of both parents as it will be a very large group & this pardon does not deprive the father from applying for an early release).

Can I claim money from my fiance if he decides to break our engagement?

“I do believe that the time has arrived to recognise that engagements are outdated and do not recognise the mores of our time” (Van Jaarsveld v Bridges (344/09) [2010] ZASCA 76 para 3).

Breach of promise (to marry) could lead to two claims, depending on the circumstances:

a)      Contractual damages (wedding preparations, costs to move to a different town, renovations to the new home, etc.);

b)      Delictual damages (sentimental damages if he broke the engagement scornfully and in an insulting manner. It is not enough to feel hurt or abandoned, the test is objective).

When calculating contractual damages, the point is to place you as the ‘innocent’ party in the position you would’ve been in had you and your fiancé not agree to get married. Remember to minus payments already contributed by him (towards the wedding preparations for example).

When calculating delictual damages, it is important to note that ‘the world has moved on and morals have changed’ (Van Jaarsveld v Bridges cited above para 6). In the Van Jaarsveld case the High Court awarded Bridges R110 000-00 as delictual damages due to the manner and circumstance in which he ended the engagement (via SMS). However, on appeal, the Supreme Court found that an SMS is a perfectly acceptable way in our modern society and that Van Jaarsveld was very apologetic and compassionate by also apologizing to her mother and saying he still views her as a ‘pragtige mens’ (lovely person). 

Wishing you a lovely day, 

Legal Hero. 

www.legalhero.co.za 

Search Warrants

Question received

“The police came to my house and went through my things and looked under the carpet yesterday. I have nothing to hide so I let them come in but explain please how a police does get the right to come into my house? They found nothing and walked away.”

Reply

In order to fight and/ or prevent crime, South African Police Officers often need to invade our privacy. It is true that our Constitution enshrines our right to privacy (section 14) and human dignity (section 10).

However, we must remember that our Constitutional rights are not absolute in that it can be limited (section 36 of the Constitution) if, amongst a few other factors, the purpose of the limitation is important, reasonable and justifiable in an open and democratic society.

South African Police Officers have a duty to try and protect us. According to section 205 of our Constitution:

“The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.”

The abovementioned goals of the Police would be difficult without the right to search for items that form part of, or are suspected of forming part of, a crime. Seeing as the penalty for committed crimes relies on the decision of a court based on evidence available, it is important that the Police conduct searches if they have reasonable grounds to believe that evidence may be hidden in a house. This is to ensure a safer community and life for all in our beautiful country.

However, the right to the State/ Police to search our homes is also not absolute. This right is regulated and limited in terms of the Criminal Procedure Act. What does the Criminal Procedure Act have to say about a Police Officer searching your home?

· The Police Officer should show you his/her search warrant that was issued by a magistrate or justice of peace;

· A magistrate, justice of peace or presiding officer at criminal proceedings will only grant a search warrant if there are reasonable grounds for believing that the item (connected to a suspected crime) is at a certain home;

· This search warrant allows a Police Officer to search a person, the home of a person and to take the item in question from the person;

· Police officers must search the person and / or the person’s home during the day and not at night, unless the search warrant explicitly gives the officer the right to search at night.


Only in a few circumstances may an officer search your house WITHOUT a warrant:

a) If you consent to the search and the officer removing the item;

b) If the officer has reasonable grounds to believe that a search warrant will be issued;

c) Or if the officer has reasonable grounds to believe that first obtaining a search warrant would cause a delay & lead to the item’s disappearance.

In your case you gave the Police Officers consent to enter your home, it was therefore not necessary for the Police to first obtain a search warrant. The Police must show you a search warrant if they have one but remember that the Police may also enter without one if it is urgent and in the interests of justice to not delay the search, as explained above.

When shown a search warrant, please take care to read it. The warrant may not be too general or vague but rather specific in what its aim is. This was repeatedly said in the case of Powel v Waja, which also highlighted the fact that one may challenge the validity of a search and/ or a search warrant in court. Remember that you can question the search by contacting the relevant Police Station and asking to speak to the Station Commander. It is therefore important that you request the full name and rank of the Police Officer/s searching your home.

We hope this clears matters up a bit.


Wishing you a great day,

Legal Hero.

www.legalhero.co.za 

Respect my dignity

Note: also often referred to as 'crimen injuria.'