How lawful was it for the State Security Agency to use a device that jammed mobile telecommunication signals in Parliament?

This interesting point was argued in Primedia Broadcasting, A Division of Primedia (Pty) Limited and others v Speaker of the National Assembly and others 

Events which occurred during the 2015 State of the Nation Address (“SONA”) were at the heart of the present matter. The State Security Agency employed a device that jams mobile telecommunication signals. Consequently journalists and MPs attending SONA were rendered unable to use their cellphones in order to inform members of the public not in attendance about the happenings in Parliament. It was also averred by the applicants in this matter that members of the public were denied the right to see for themselves events of national importance occurring on the floor of the Parliamentary Chamber when the following took place.

The applicants challenged the constitutional validity of paragraph 8.3.3.2 (a) of Parliament’s Policy on Filming and Broadcasting (“the Policy”) and raised the question of whether any order was to be made regarding the jamming incident that occurred shortly before the SONA. The premise of Primedia’s  case was that all South Africans have a right to know what happens in Parliament and that includes a right to see and hear for themselves disruptions by members of Parliament.

Held that the provisions of sections 57 (1) and 70 (1) of the Constitution of the Republic of South Africa, 1996, empower Parliament to make rules and orders concerning its business. The various rules and policies adopted and approved by Parliament are essential for its ordered operation. There is no obligation on Parliament to broadcast conduct that clearly obstructs or disrupts its proceedings and conduct that unreasonably impairs its ability to conduct its business in an orderly and regular manner acceptable in a democratic society because such conduct is not legitimate Parliamentary business. Thus, the challenge levelled against the policy had to fail.

The Court then considered the request for a declaration that the use of the jamming device at SONA was unlawful. Section 12 of the Intelligence Services Act 65 of 2002 provides the authority for the acquisition and use of signal disruptor devices by the State Security Agency. The Court could not deny the agency the use of the devices when circumstances demanded same to be used in order to counter any threat or potential threat to national security.

To succeed the applicants needed to show that Parliament’s determination regarding televising of gross disorder and unparliamentary conduct was unreasonable. They failed to do that. The majority of the court therefore dismissed the application.

Must a pension fund give effect to the wishes of the deceased?

The issue before the court was who a pension fund must pay the death benefits to. In a beneficiary nomination form, the deceased nominated only his mother and his daughter. The guardian of the child (Tsele, the complainant) objected to the fact that the pension fund administrators ignored the wishes of the deceased and appointed his brothers as additional beneficiaries.

The Pension Funds Adjudicator was called upon to make this decision in Tsele v Bidvest South Africa Retirement Fund and another, before the Pension Funds Tribunal.

Mini Summary:

The payment of a death benefit was at the centre of the present complaint to the Pension Funds Adjudicator. The complainant was the mother of a child fathered by a member of the Bidvest’s pension fund. Upon the death of the member, the fund decided to allocate the death benefit payable amongst the two brothers of the deceased, and the complainant’s child.

According to the complainant, the only nominated beneficiaries of the deceased were his mother and his daughter. The complainant contended that as the deceased’s mother had died, the deceased’s daughter should be his only beneficiary. She also complained that despite her having informed the fund that the brothers of the deceased had successful careers, the fund failed to investigate that.

Held that the issue to be determined was whether or not the board of management of the first respondent carried out its duties in terms of section 37C of the Pension Funds Act 24 of 1956.

Section 37C of the act governs the disposition of death benefits. It places a duty on the board of management to identify the beneficiaries of a deceased member and also vests the board with discretionary powers on the proportions and manner of distributing the proceeds of a death benefit. As with the exercise of any discretionary power, in effecting an equitable distribution the board is required to give proper consideration to relevant factors and exclude irrelevant ones from consideration. The board of management may not unduly fetter its discretion by following a rigid policy that takes no account of the personal circumstances of each beneficiary and of the prevailing situation. When making an “equitable distribution” amongst dependants the board of management has to consider the age of the dependants; the relationship with the deceased; the extent of dependency; the wishes of the deceased placed either in the nomination form and / or his last will; and the financial affairs of the dependants including their future earning capacity potential.

Although the deceased completed a beneficiary nomination form, the nomination form serves merely as a guide to assist the board in the exercise of its discretion. The fund’s task in distributing a death benefit in terms of section 37C of the act is to identify all the potential beneficiaries. The board is vested with discretionary powers to decide on an equitable distribution of the death benefit. It is only in cases where it has exercised its powers unreasonably and improperly or unduly fettered the exercise thereof, that its decision can be reviewed.

The adjudicator found that the board of the fund erred in relying solely on affidavits provided by the deceased’s brothers, stating that they were unemployed. The fund fell short of complying with its duty to conduct a proper investigation, and its decision was set aside.

Can I claim the costs of hiring a car, after an accident that was not my fault?

Q

Regarding a recent motor vehicle accident, my vehicle has sustained a considerable amount of damage, in an accident caused (and admitted to) by a party driving on duty for his company, within a company vehicle. The vehicle will take 30 days plus to repair, and although all cost for the repairs are being paid from his insurers, the inconvenience of not having a motor vehicle for more than a month surely should hold some form of damage claim. Would you advise that there are grounds for a damages claim in this regard, specifically since the driver of the said company vehicle has admitted guilt in the police report?

A

In respect of a claim for damages, there is only one function: to restore the plaintiff's ‘patrimony’ and, as far as possible, to place him in the position he would have been in had the collision not happened. Money is considered an adequate replacement for the lost patrimony.

In my opinion, you’d be wasting your time trying to pursue a claim to compensate you for inconvenience, discomfort or annoyance (in the form of the cost of hiring a hire vehicle). In any event, even if you had such a right, you would spend far more on engaging the services of a lawyer than the cost of hiring the vehicle.

When it is lawful for a HOA to restrict an owner’s rights to water and electricity?

This issue was considered in Van Rooyen v Hillandale Homeowners Association.

In an application based on the mandament van spolie, the main issue to be decided was whether the respondent’s conduct in limiting / refusing applicant to purchase pre-paid water and electricity vouchers was lawful.

The applicant leased premises situated within an estate in which the respondent was the homeowners association. An interim order had been granted in the applicant’s favour, directing the respondent to restore the applicant’s access to its internet site to be able to purchase prepaid water and electricity for use at the premises. The applicant sought confirmation of that order.

Held that the rules of the estate were binding on all occupiers. In terms of the rules, no electricity would be provided or sold to any occupier or owner of any erf in respect of which levy payments were outstanding for a period of 60 days or longer, until such time as all outstanding levy amounts were paid in full. That provision led to the respondent’s restricting the applicant’s water and electricity supply. The main issue that had to be determined was whether the respondent’s conduct in limiting / refusing applicant to purchase pre-paid vouchers was lawful.

The respondents disputed the applicant’s locus standi as the applicant was the lessee and not the property owner in respect of the premises occupied by him. However, the Court found that rules of the respondent relating to the provision of water and electricity were not only applicable to an owner with whom a contract had been entered into but was also applicable to occupiers who were not owners. The applicant had a direct interest in the matter and could therefore approach the Court for relief.

The next question was whether the applicant’s rights were capable of protection by a spoliation order. The respondent argued that the applicant had a personal right against the respondent to sell him water and electricity subject to the conclusion of a contract, and that such a personal right was not protected by the mandament van spolie. The Court held that the rights of an occupier of a building to his water have long been protected by our courts by the mandament, irrespective of the contractual relationship between the parties. The Court was satisfied that the applicant did not simply have a personal right against the respondent.

Finally, the Court considered whether the restriction of his rights to water and electricity was lawful. One of the conditions of title agreed upon by the property owner, and registered against the title of the property, were that the owner would be bound by the statutes and rules of the respondent. Parties are free to contract as they please. The law permits perfect freedom of contract. Parties are left to make their own agreements, and whatever the agreements are, the law will enforce them provided they contain nothing illegal or immoral or against public policy. In this case, the applicant had the choice of not renting the property if he was of the view that the applicable rules were inconsistent with his rights. The respondent’s conduct was not unlawful as it acted within the rules and the agreement it entered into with the property owner. The conduct of the respondent did therefore not amount to spoliation.

The interim order was discharged.

Barking dogs driving you mad?

The sensible thing to do is to chat to your neighbour, over a cup of tea, and explain that the dog is preventing your baby from sleeping (or whatever) and ask him or her to do the neighbourly thing. One solution (if the neighbour works all day and the dog is bored or afraid) is to fit a cold air spray bark collar. All vets sell these devices and they are not at all cruel. Perhaps the dog needs to see an animal behaviourist? He or she will see why the dog barks excessively (lack of exercise, lack of stimulation, separation anxiety, protecting territory, etc.) and recommend a solution.

If that does not help or if the neighbour is indifferent or defensive (and refuses to make the nuisance go away) you should report the matter to the authorities (the local authority and, perhaps the SPCA) and, that failing, contact your lawyer, who will have to send a threatening letter or even go to court for an interdict.
Disciplinary procedures vary from district to district. If you go the legal route, you will start a feud, so, wherever possible, try and settle matters amicably.

In the Cape, owners may not keep any dog that barks for more than six minutes in any hour or more than three minutes in any half hour. An official may order the owner to take necessary steps to stop the disturbance and owners are required to keep the dog under proper control. Gauteng hasn’t gone that far.
The SA Noise Control Regulations provide that no person shall:

·    make, produce or cause a disturbing noise, or allow it to be made, produced or caused by any person, animal, machine, device or apparatus or any combination thereof;

·    operate or play, or allow to be operated or played, a radio, television set, drums, musical instrument, sound amplifier, loudspeaker system or similar device producing, reproducing or amplifying sound so as to cause a noise nuisance;

·    offer any article for sale by shouting, ringing a bell or making other sounds or by allowing shouting, the ringing of a bell or the making of other sounds in a manner which may cause a noise nuisance;

·    allow an animal owned or controlled by him or her to cause a noise nuisance.

If a noise emanating from a building, premises, etc., is a disturbing noise or noise nuisance, the authorities may instruct in writing the person causing such noise to discontinue or cause to be discontinued such noise within a period stipulated in the instruction. Failing response (in the case of e.g. power tools, musical instruments or animal) the instrument, equipment or animal can be confiscated, or impounded.
Any person who contravenes or fails to comply with a written notice shall be guilty of an offence and liable on conviction to a fine not exceeding R20 000 or to imprisonment for a period not exceeding two years, or to both such fine and such imprisonment. In the case of confiscated items, the court may declare any vehicle, power tool, musical instrument or equipment, or animal forfeit to the local authority.