Can a court hear evidence via video conferencing?

Can a court hear evidence via video conferencing?

In the matter of MK and TRANSNET LTD t/a PORTNET, heard by the Kwazulu-Natal Local Division of the High Court under case number A105/2004, Mbatha J, had to decide if an applicant, seeking damages from Transnet, could give evidence at a law firm and be cross-examined, in Yugoslavia, by way of a video conference link, and for Transnet and its legal representatives to monitor and be present in South Africa, during the process.

By way of background, the applicant sued Transnet for damages arising from an accident that happened at the Durban Port, resulting in the death of her son. Transnet conceded that the mother had a claim relating to her deceased’s son’s duty to support her, and other damages. The only outstanding issue was the determination of the quantum of damages in respect of the loss suffered by the mother.

The mother was in her 80’s and was too frail to come to South Africa to give evidence.  Besides, she could not afford the costs of travel from Montenegro and accommodation for her and a chaperone in Durban. Her lawyers asked the court for permission for her to testify via video conferencing.

In deciding if the mother could adduce oral evidence by way of video link conference, the court considered that:

·         Although giving evidence through video link and other social media mechanisms is a novelty in South Africa, technology is so advanced to a point that direct evidence can be taken from a witness in another country and cross-examination can take place whilst the witness is visible to all.

·         If evidence is placed before the court in this manner, was justice is likely to be done? ‘A party seeking to dispense with a personal appearance of a witness must show that it is “necessary for the purposes of justice that the ordinary way of taking evidence should be departed from”’. The convenience must not only be for the applicant but also for the respondent and the court.

·         Will there be any undue prejudice to the other party in the presentation of the evidence in this format (as the plaintiff was visible to all, could be cross-examined and could give evidence under supervision of the attorney elected by any of the parties).

·         Will the court be able to observe the demeanour, personality and conduct of the applicant and whether there will be an opportunity for cross-examination if the evidence is tendered through video link in a locality which lawyers cannot reach?

The judge weighed a number of factors, including old age, serious illness and costs of travelling and other incidental costs, and found that the mother would not be able  to give oral testimony in the Durban High Court due to her advanced age and serious illness.

Quoting section 173 of the Constitution, the judge found that the high court had powers to regulate its own processes in the interests of justice, if it was convenient and fair and just and equitable in the circumstances. She also mentioned section 34 that ‘Everyone has a right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial forum.’

The court found that the hearing with the aid of a video link conference would be a public hearing in a court of law, where all the parties would appear before a judge seized with the matter. The judge found no reasons why such evidence could not be admissible in any court of law. The court made an order that the mother could give evidence at a law firm and be cross-examined, in Yugoslavia, by way of a video conference link, and for the legal representatives of Transnet to monitor and be present in South Africa, during the process.

The enforceability of school trip parental consent forms

A client asked: Are schools completely indemnified against any claims, even when they were negligent? Does an indemnity from give the recipient a "license" not to care or not act in a responsible manner ensuring the safety and general wellbeing of the child?

This question was probably prompted by the by the unfortunate drowning of thirteen-year-old Parktown Boys High School learner, Enoch Mpanzi, at orientation camp.

What is the legal effect of indemnity forms that schools require parents to sign to allow their children to go on school outings? Do they totally absolve the school if a child is injured or dies, on its watch?

The point is that if parents don’t sign the indemnity, their child won’t be allowed to take part in the school outing. In insisting that the parent signs an indemnity, the school certainly exercises a decisive advantage in bargaining.

School indemnity forms often contain gobbledygook terms that are not easily understandable, and that seek to limit the liability of schools in all circumstances. A typical clause in a school indemnity reads something like this:

I hereby indemnify and hold the School, its agents, representatives and educators harmless against any claim or demand arising from the death of or injury to my child or any loss of or damage to property, of whatsoever nature and howsoever sustained, including consequential loss, arising from or occasioned by my child's participation in any such sporting or extra-curricular activities and/or such tours and excursions.

The Western Cape Education Department adopts a more robust and fair approach. In a circular to its teachers and schools, it provides that schools which organise outings require parents to sign an indemnity form but that the use of these forms cannot legally waive the right of a child to claim for damages in the event of an accident or incident where such child sustains damages to his or her person during a school outing. However, a school must obtain the permission of the parent or guardian before the learner leaves the school grounds to go on a school outing. For this purpose all WCED schools are required to use a parental consent form,  being an example which schools may want to use. The circular goes on to say that the use of the consent form does not absolve the school and teachers from liability stemming from negligence on their part.

So, what does our law say?

• Courts in South Africa have historically upheld exclusionary clauses in contracts (called ‘exemption clauses’, ‘indemnity clauses’, ‘exculpatory clauses’ and ‘waivers’) as the sanctity of contractual freedom was seen to be supreme;
• The flip-side is that courts have attempted to protect the public by interpreting exemption clauses narrowly and/or limiting their effect, or even striking them out in the interest of public policy (that includes the notions of fairness, justice and reasonableness) and would prevent the enforcement of the indemnity clause if that would be unjust or unfair;
• The school can’t hide behind the indemnity in the case of malicious dereliction of duty or neglect, and must ensure that it does all things reasonably necessary to ensure that stringent safety measures are put in place to limit the risk of personal accident or injury to a learner;
• The Consumer Protection Act (“CPA”) does not prevent a school from including an exemption clause in its indemnity but does allow a parent to challenge the enforceability of such a clause. In terms of the CPA, a school may not exclude or limit its liability for gross negligence in an indemnity form and, indeed, prohibits any such term or condition to that effect. Thus, in no circumstances can an exclusionary clause that contravenes these provisions be relied on by a school to escape liability;
• The CPA provides that the parent does not bear the onus to show that the exclusionary clause is unfair, unreasonable or unjust.

What must a parent do when asked to sign an indemnity form that purports to absolve the school (and its teachers, bus drivers, etc.) from all liability arising from any cause whatsoever (notwithstanding that the law obliges the school to take all reasonable precautions for the safety and welfare of the child)?

If you can, certainly grant the school permission to take your child on an outing and to act, in your place, to do all things medically necessary to care for your child in case of emergency. However, delete anything contained in the indemnity that purports to limit or waive your right to claim damages from the school if your child sustains damages to his or her person during a school outing.  

If you are a school representative, or a parent, seek advice from your lawyer.

Issues to consider when contemplating a divorce in South Africa

By Sasha Goldstein

Deciding to issue divorce proceedings against your spouse is a difficult and emotional decision. Many clients are in the dark as to what needs to be considered when deciding to proceed with a divorce. Below are a few of the main issues to be considered and the most common points of contention between spouses. Hopefully, by understanding what issues may lie ahead, clients may be better prepared to deal with an impending divorce.

1.    Marital regime

The first question is under what marital property regime was a couple married. In South Africa there are 3 types of marital regimes, all with different consequences regarding the couple’s individual or joint property upon the dissolution of their marriage by divorce.

-          The automatic marital property regime in South Africa is ‘in community of property’. Essentially, what this means is that the assets and liabilities of each spouse, obtained before and during the marriage, are put into a hypothetical “pot” and divided equally upon divorce.

-          The second marital property regime is called ‘out of community of property with the operation of the accrual system’. This is where the spouses enter into an antenuptial contract before marriage. This allows spouses to retain their own assets upon divorce, but to share in the gains obtained during the marriage. Each spouse will enter the marriage with a commencement value, and upon divorce, the difference between the net increases in each spouse’s estate during the marriage will be divided equally between the spouses.

-          The final marital property regime is ‘out of community of property excluding the accrual system’. Again, the spouses must enter into an antenuptial contract before marriage, and specifically exclude the accrual system. This is the simplest marital property regime and means that each spouse retains his or her own assets. There is no sharing of property and this system causes the least issues upon dissolution of the marriage.

2.    Parental rights and responsibilities in relation to a child

Section 18 of the Children’s Act 38 of 2005 provides strict guidelines within which children are to be involved in divorce proceedings. There are four main parental responsibilities and rights that all parents of minor children (below the age of 18 years old) may have fully or in some cases, only specifically. The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and right:

2.1.        To care for the child;

2.2.        To maintain contact with the child (one parent to have primary residence of the child and the other to have specified contact to the child);

2.3.        To act as guardian of the child (children do not have legal capacity and therefore both parents are automatic legal guardians of their children and any legal decision regarding the child includes both parent’s consent);

2.4.        To contribute to the maintenance of the child (as one parent may have primary residence, the other must contribute towards maintaining the child’s lifestyle and no parent is exempt from this responsibility no matter what their salary is).

3.    The final issue to be considered when contemplating a divorce is called spousal maintenance. This is maintenance that one spouse pays to the other upon divorce to help that spouse maintain their own lifestyle and/or get back on their feet after moving out, for example. When can a spouse claim spousal maintenance:

3.1.        The relationship between the parties (it’s enough if they are spouses in a same-sex or heterosexual relationship);

3.2.        A need to be supported (for example a spouse being unable to find meaningful employment);

3.3.        Adequate resources on the part of the spouse being called upon to support.

               There are two types of spousal maintenance, namely:

·      Rehabilitative – this is where one spouse pays the other a monthly amount (or one lump sum), which will help maintain that spouse for a fixed period. This can be anywhere from 1 month to 10 years, but the point is, it must be a fixed period.

·      Lifelong – this is self-explanatory and means that one spouse must maintain the other until that spouse’s death or remarriage.

Hopefully, having read the above information and having a brief idea of what issues may arise upon the institution of divorce proceedings, spouses may be better equipped to have meaningful discussions regarding what is to be expected upon their divorce from each other.

What is the effect of divorce on a permanent resident permit?

A client asked: What is the effect of divorce on a permanent resident permit when a US citizen is married to a South African citizen and was granted permanent residency and a SA ID document on the basis of the marriage?

Permanent residence under the spousal category is issued in terms of section 26(b) of the Immigration Act of 2002:

“Subject to section 25 and prescribed requirements, the Director-General may issue a permanent residence permit to a foreigner who has been the spouse of a citizen or permanent resident for five years and the Director-General is satisfied that a good faith spousal relationship exists:  Provided that such permanent residence permit shall lapse if at any time within two years from the issuing of that permanent residence permit the good faith spousal relationship no longer subsists, save for the case of death;”

(My emphasis.)

This is read with regulation 23(6):

“A foreigner contemplated in section 26(b) of the Act who has been issued with a permanent residence permit shall, within the last six months of the second year following the issuing of that permit, avail himself or herself for an interview at any office of the Department.”

In practice however, there is no way to comply with this regulation – I have never heard of any Department of Home Affairs regional office that conducts these interviews.

Section 28(b) dealing with withdrawal of permanent residence:

“The Director-General may withdraw a permanent residence permit if its holder has failed to comply with the terms and conditions of his or her permit;”

In terms of section 26(b) there would be no impact on the permanent residence (and subsequent green ID) if the relationship ended more than two years after the permanent residence was issued.  If it ends within the two year period, either party could inform the Department of Home Affairs, but it is usually the South African citizen / initial permanent residence permit holder spouse that the application had been made under, who attends at a regional office to inform immigration inspectorate of the breakdown of the relationship on affidavit.

Inspectorate will then contact the foreign national to appear before them and the information will be forwarded to the office of the Director-General.  As it is at the Director-General’s discretion, there have been cases where the permanent residence was not withdrawn, despite the end of the relationship, e.g. if there are minor children who would benefit from having the foreign national parent to remain in the country.

New Parental Leave Provisions

In terms of recent changes to Basic Conditions of Employment Act (BCEA), from 1 January 2020, the BCEA makes provision for parental leave, adoption leave and commissioning parent leave (surrogacy arrangements).

Parental, adoption and commissioning parental leave will be unpaid but employees can submit claims to the Unemployment Insurance Fund to qualify for payment of these benefits.

Parental leave

In terms of section 25A of the BCEA, an employee, whether male or female, who is a parent of a child is entitled to at least 10 consecutive days of parental leave, which may commence on the day that the employee’s child is born.

This means that in a two-parent household, where the parents are expecting a child, the parent who gives birth will be able to take maternity leave of at least four months and the other parent will be entitled to at least 10 consecutive days parental leave.

Adoption leave

Section 25B gives an employee who is an adoptive parent of a child below the age of two the right to adoption leave of at least 10 consecutive weeks or at least 10 consecutive days of parental leave, from the day the adoption order is granted or the child is placed in the care of a prospective adoptive parent by a competent court, whichever date occurs first.

The one parent can now take at least 10 consecutive weeks’ adoption leave while the other parent will be able to take at least 10 consecutive days parental leave. The adopting parents can elect which partner will take which form of leave.

Commissioning parental leave

In terms of section 25C of the BCEA, employees who are commissioning parents in a surrogate motherhood agreement are entitled to either commissioning parental leave of at least 10 consecutive weeks or parental leave of at least 10 consecutive days. The commissioning parents can elect which of the parents will take which leave.

Family responsibility leave

Family responsibility leave provisions (save for leave when a child is born) remain intact and employees may take family responsibility leave in instances where the employee’s child is sick or in the event of a death in the family.

Change your employee contracts

In light of these changes to the law, employers are encouraged to review their outdated policies and employee contracts in order to ensure that they remain compliant with recent labour law amendments.

Bregman Moodley Attorneys can assist.