Unmarried survivor cannot claim maintenance - ConCourt

A woman, who wanted to claim maintenance after the death of her life partner, was refused remedy by the Constitutional Court, which, in a majority decision, ruled that Ethel Robinson, who was not married to her partner Aaron Shandling when he died in 2001, did not have the legal right to financial support from Shandling's estate. A report on the IoL site says the court recognised that many women become economically dependent on men, and could be left destitute on the death of their male partners, but said these wrongs would not be put right by including unmarried partners in the Maintenance of Surviving Spouses Act. The MSS Act gives rights to survivors of a marriage, but defines a survivor as ‘the surviving spouse in a marriage dissolved by death’. Robinson, represented by the Women's Legal Centre (WLC), contended that the Act was in conflict with the Constitution, because it unfairly discriminated against domestic partners. Robinson and Shandling had been involved in a monogamous life partnership for 15 years. Justice Skweyiya, who wrote the judgment, said changing the wording of the Act would be a ‘palliative measure’. He said the vulnerability of women in domestic relationships was a widespread problem that should be addressed through the empowerment of women. The judgment also noted the need to improve the law to put more general rights and obligations on people who live in domestic relationships. Full report on the IoL site Noting that the ruling has adverse implications for women in domestic life partnerships, the WLC’s Director, Michelle O’Sullivan, says: ‘The majority decision seems to suggest that the economic and social problems faced by women in domestic partnerships are so widespread that the limited assistance available to them through claiming maintenance from their partners deceased estate is unlikely to alleviate the level of vulnerability that they experience.’ O’Sullivan adds in a statement on the Legalbrief Today site that Judge Skweyiya also suggests that it is only once relationships are recognised by legislation during the subsistence of the relationship that the court could meaningfully consider what should happen upon the death of a partner to that relationship. ’It is strange that when faced with the opportunity to diminish the vulnerability of women at the end of a domestic partnership, the Constitutional Court relies on the severity of the vulnerability of women in the group concerned in order to justify refusing an extension of benefits to women in domestic partnerships.’ However, the statement finds light in the dissenting judgments of Justice Mokgoro and O’Regan, the two women on the Court, and the dissent by Justice Sachs. They found there was a constitutional violation and would have given the legislature two years to remedy the violation. Full WLC statement on the Legalbrief Today site General: ANC attacks on judiciary ‘manipulative’ – Leon As the debate on racism in the judiciary simmers behind closed doors, DA leader Tony Leon has accused government of seeking to manipulate the debate to ensure a more docile judiciary, says a Business Day report. Government is smarting from a series of recent losses in court, including defeated proposals on new medicine pricing, its overturned decision to allow the construction of a pebble bed modular reactor, and the thwarting of its decision that the Mikro Primary School teach learners in English and Afrikaans. The report says Leon accused the ANC of seeking to ‘intimidate the judiciary’, using the debate around racism on the Bench. ‘Stung by its defeat at the Supreme Court of Appeal in the pharmaceutical pricing case late last year, and looking ahead to a number of critical judicial decisions in the next few months, the ANC has launched a well-planned series of attacks on the independence of the SA judiciary,’ he said. Full report in Business Day    Supplied courtesy of Legalbrief Today.

 

Judge slams rape discrimination

A Pretoria High Court judge has slated legislation that ‘discriminated’ between child r ape victims, with the rapists of boys facing far less severe sentences than those who r aped girls. Judge Eben Jordaan and Acting Judge E Tolmay set aside a three-year jail sentence imposed by a Pretoria magistrate on a petrol attendant who lured a six-year-old boy into his house and sodomised him. A News24 report says the man had been convicted of indecent assault and sentenced to three years imprisonment, by the magistrate. The High Court, however, set aside the sentence, and replaced it with a 15-year jail term that was even more severe than the 10-year minimum sentence presently prescribed by the Minimum Sentences Act for indecent assault. Jordaan described the discrimination between male and female child r ape victims as ‘ridiculous’ and said it could not be countenanced in a constitutional dispensation like South Africa's. He described the indecent assault on the boy as ‘male r ape’ and said there was no difference between the trauma experienced by male and female child victims of sexual assault.
Full report on the News24 site

 

Supplied courtesy of Legalbrief Today.

 

Call for laws to protect rights of landlords

It is time the government realised that landlords also have rights and passed legislation to protect them, says Stan Brasg, a leading Johannesburg property lawyer in a report in The Star. Brasg supported his argument by citing a litany of cases of landlords who were morally in the right but lost houses and blocks of flats to what he terms agents provocateurs simply for the lack of a landlord-friendly law. Two of his clients walked away from blocks of flats they owned, because the occupiers had not paid rent for many months, and there was practically nothing they could do to evict them or force them to pay. The report cites the example of how a homeowner, despite paying R64 000 in legal fees – and spending two nights in jail for his efforts to evict a tenant – lost a R1.4m house in Sandton because the tenant was able to withhold paying rent for a year by manipulating the law.
Full report in The Star

 

Supplied courtesy of Legalbrief Today.

Jailed father fights for access to children

A former accountant and convicted murderer, Stuart James McDonald (45), is asking the Durban High Court to order his teenage sons to visit him in jail so that they can ‘bond’ with him. He also wants them to be placed in temporary foster care – away from the ‘negative influences’ of their mother and stepfather. McDonald, who is serving 10 years for the murder of his ex-wife’s former boyfriend and the shooting of her brother-in-law, has been waging a battle for better access to his children, reports The Mercury. While in prison he successfully campaigned for a law which made it a criminal offence for the custodial parent to deny the other parent access to the children. But in his latest appeal, against a Durban Children's Court ruling that the children could be adopted by their mother's new husband, the Durban High Court found that it had no jurisdiction and referred the matter to the Pietermaritzburg Family Court. In his court papers, McDonald claimed that he had opened 133 charges against the children's mother. He also demanded that the boys have access to his family and that he be given access to their school reports.
Full report in The Mercury

 

Supplied courtesy of Legalbrief Today.

Magistrates reluctant to seize weapons in domestic violence cases

Studies have shown that efforts to fight domestic violence are being hampered because magistrates do not use the powers available to them in terms of the Domestic Violence Act to seize weapons from perpetrators. Business Day reports that Dee Smythe of the Gender, Health and Justice Research Unit at the University of Cape Town, says in the latest SA Crime Quarterly that in one in five intimate femicides a woman was killed by her partner with a licensed firearm. The SA Medical Research Council found last year that magistrates had failed to seize weapons. In a study for the Institute for Security Studies conducted last year, magistrates said the implementation of the Act was cumbersome because they had heavy case loads and did not focus primarily on domestic violence cases.