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September 30, 2004

Sentence for wife rape doubled in 'breakthrough judgment'

The Supreme Court of Appeal has doubled the sentence of a man who raped his estranged wife multiple times. What a report in The Mercury describes as a breakthrough judgment came after a decade-long fight for the recognition of marital rape. The report says the man married his wife under customary law when she was 15. In April 1999 the couple experienced marital problems and the wife left to stay with her brother. In May, both were at court for child maintenance and a domestic violence complaint. The court issued an interdict stopping the man from making contact with his wife. Later that month he went to see her at her brother’s house. He dragged her out of the house and to an abandoned abattoir and raped her twice. After being convicted on two counts of rape, he was sentenced to five years’ imprisonment. Yesterday, the SCA Judge Kenneth Mthiyane said this sentence was ‘disturbingly inappropriate’. He slammed the High Court judge, who said that these were crimes of passion – a desperate attempt to rescue his marriage. He said he understood the aim of the rapes was to subjugate his ‘wife’ to his will and persuade her to return to him, a consequence of male chauvinism, perhaps associated with traditional customary practices. But these were entirely unacceptable, the court said, as it re-sentenced the man to 10 years’ imprisonment.


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September 29, 2004

Rights of former employees dealt with in SABC ruling

Labour law experts have commented on the recent ruling by the Johannesburg High Court that the SABC may not unilaterally withdraw subsidised medical aid contributions to a number of former employees. David Geral and Steven Brasg, of the Sandton law firm, Bowman Gilfillan, explained that the case dealt with a question on medical aid subsidies faced by many SA companies, reports The Star. They say the ruling does not seem to take adequate account of the different relationships between a company and its employees on the one hand, and former employees on the other hand. ‘It also appears to ignore that the law provides specific procedures for the resolution of contractual disputes within an ongoing employment relationship, which may not apply to contractual disputes outside of such a relationship, for example, with pensioners.’ In October 2001, the medical subsidy in favour of the plaintiffs in the case was withdrawn. The plaintiffs had all resigned or been retrenched, but had remained members of the medical scheme. Despite letters issued by the SABC from time to time indicating that the subsidy rate was subject to revision, the court held that the letters ‘did not allow the SABC to unilaterally remove the subsidy’. Geral and Brasg further explained that it was notable that the court had found, as a matter of principle, that the SABC's obligation to pensioners would be the same as that to existing employees.


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September 28, 2004

Prescription ruling in sexual abuse case a 'first' for SA

In the first case of its kind in SA, the Supreme Court of Appeal yesterday handed down a ruling that prescription will only start to run in child sexual abuse claims brought by adult survivors of such abuse once the survivors are aware they were not to blame for the abuse. The SCA agreed with the Women’s Legal Centre (WLC), acting on behalf of the appellant, Esme Van Zijl, that courts cannot treat sexual abuse cases as equivalent to other damages cases and that abused children must have right of recourse against their abusers. Michelle O’Sullivan, the Director of the WLC, says: ‘The case will impact on how future cases of child s exual abuse will be handled by the courts, as other survivors will now be able to bring claims knowing that the law has developed an appreciation of the psychological obstacles that prevent adult survivors from bringing such claims. The law no longer conspires with perpetrators of child abuse to silence victims by preventing survivors from claiming damages later in life, as it is now recognised that it is the abuse itself that often prevents a survivor from taking action. Abusers will not be able to rely on the Prescription Act to avoid such claims.’ In terms of prescription laws in SA a minor has three years after attaining majority within which to bring a claim for civil damages. However, Van Zijl initiated her claim for damages for psychological disturbance and other injuries sustained as a result of the childhood s exual abuse well beyond the three-year time limit.’ SABC News reports that Van Zijl's initial civil action against her uncle, Imker Hoogenhout, was dismissed in the Cape High Court in 1997. The High Court stated that it had no reason to doubt the truth of Van Zijl's evidence (she alleged that she was sexually abused and r aped by her uncle from the age of six until she was 15), but refused to grant her leave to appeal. She then took the matter to the SCA to ask for leave to appeal against the High Court ruling. This application has now been granted with costs.
Full report on the Legalbrief TODAY site
Full SABC News report


September 27, 2004

SCA recognises role of housewife

A ruling that it would be unconstitutional and discriminatory to undervalue the role of the housewife and mother that is traditionally conferred upon women during divorce proceedings, has been confirmed by the Supreme Court of Appeal, reports The Mercury. Justice of Appeal Fritz Brand, supported by four appeal court judges, said he agreed in principle with this ruling by the Cape High Court Acting Judge Brian Pincus, but that the facts of the particular divorce case in which it had been made did not support the outcome of the case. ‘I find myself in agreement with the thesis that the traditional role of housewife, mother and homemaker should not be undervalued, because it is not measurable in terms of money,’ Judge Brand said. In the case at issue, though, Brand ruled that the wife was not claiming for her role as a ‘housewife and mother' but only for the role she had played in the family business. As a result, he concluded that she was entitled to less than half of the multimillion-rand estate the couple had built together.


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