Sunday, 13 July 2014

Digital legal material - dearth of decent Apps

LexisNexis consumers will be pleased.  The company has released a legal mobile app which allows users to access their entire loose-leaf library remotely.

If you have any tablet or smart phone it is definitely worth downloading.  Although I love traditional libraries, and still spend many hours in various legal libraries in South Africa, the mobile solution was desperately required.

This is the way legal material is moving.  Being in the fortunate position of having access to both University of the Free State and University of KwaZulu Natal research facilities, mobile and Internet based legal research is no longer a luxury or ’nice-to-have’; it is critical and extensively used in all law faculties in South Africa.

The practice of law is slowly meandering in the vague direction of technology, but as with most things in a traditional and fiercely protected profession, cost, politics and slow adoption will hinder widespread use for a few years yet.

That being said, on this particular App, the design philosophy is clean and it is well put together.  The search functionality allows one to get directly to the source in an efficient manner.  Clearly the bandwidth capability in South Africa is an issue, but the App is light and it loads quickly in most instances (whether on wired or wireless connection). If you use LexisNexis and have a mobile device, it is a no-brainer.

Wednesday, 2 July 2014

The debt collection industry is rife with fraud and abuse

I am not the first, nor I suspect the last, that will testify to the fact that the debt collection industry in South Africa is in a total mess.  Moneyweb and ENCA have both reported extensively on the topic.  Unfortunately, and the powerful National Credit Act notwithstanding, thousands of individuals continue to be exploited via fraudulently obtained court orders and subsequent emolument attachment orders (garnishee orders). 

It is perhaps unwise to tarnish every firm of attorneys or debt collection entity as corrupt or knowingly participating in corrupt behavior.  As pointed out in attorney publication De Rebus, a garnishee or salary attachment order can be effectively and lawfully (at this point) employed to enforce the rights of creditors.  Debt enforcement legislation is a basic necessity, and it can be strongly argued that the garnishee order is required in law. 

That being said, the Minister of Justice, together with the Banking Association of South Africa [PDF] jointly declared, amongst other things, that there was a problem with ‘abuse of debt and garnishee orders, and of direct payroll deductions’. 

Moreover, corporate law firm Edward Nathan conducted a forensic review and found, amongst others, ‘widespread abuse, exploitation and maladministration’ in relation to garnishee orders.  I have personal knowledge of on-going and unabated abuse.  A cursory Google search will reveal further several forensic reports and investigative journalism uncovering an industry tainted by corrupt and fraudulent behavior.  Devastating incidents, such as Marikana, will continue to be exacerbated by this issue.  Strikes will continue to cripple our economy and destabilize foreign investment.  Of course this is not all at the door of dodgy debt collecting, but it is a part of a larger problem with South Africa’s socio-economic conditions.

So, with such a lot on the line, why is nothing being done in the short term?  It is, to an extent.  Affected persons may lodge complaints with relevant statutory bodies, but that deals with only the tip of the iceberg.  The uncomfortable truth for government and the influential banking industry is that the ultimate victims of this abuse are the lowest earners in South Africa.  They are unaware of their rights and even a complaint to the Law Society of the relevant province will usually only deal with one isolated incident.  Law Societies cannot address the underlying issue – Government must intervene.

Many previously disadvantaged, as well as all sectors of low income South Africans are being squeezed into submission by the credit and banking industry – bone fide individual creditors who utilize garnishee orders are in a small minority, the mechanism is the tool of banks, micro lenders and debt collection companies for the most part.

Legitimate creditors have a variety of options available to them to enforce their rights.  Simply, the lesser of all evils in this debacle is an immediate suspension of all garnishee orders.  Creditors with validly enforceable underlying judgments should not be subject to the limitations of the Prescription Act and in the greater scheme of things will not be overly prejudiced.  The overall good far outweighs the harm to put it in its most basic form.  The lowest earners in our society will enjoy untold benefit and a rotten industry will be brought to its knees.

The proposed solution is basic, but goes to the heart of the problem and, for the most part, lays the cost of rectifying the issue at the door of micro lenders, banks and debt collection companies.  The alternative, which is the status quo, is to do nothing.  Watch while the majority of the credit industry milks the poorest of the poor like cows.

Wednesday, 16 April 2014

The difference between murder and culpable homicide (manslaughter) in South African law

In South African law there are no degrees of murder.  There is only a distinction between murder, which is the intentional killing of a human, and culpable homicide (manslaughter), which is the negligent killing of a human.  Simply, murder requires intention, whereas culpable homicide requires negligence.

Prominent criminal law author CR Snyman[1] argues that South African law would be better employed using a system where the killing of a person is graded, or judged in degrees, such as the position in American law.   The reason behind this argument is that killing can happen in a variety of ways and the moral reprehensibility underlying the conduct that leads to the death of another can vary dramatically from case to case.  That being said, the judicial system takes these factors into account in the sentencing of an accused, so the argument is probably legal semantics but I do agree with the proposition on the basis that it would create more certainty and consistency.
Be that as it may, and broadly speaking, the fact that a person has committed an act, which may be a crime, is not enough for conviction and criminal liability – the conduct of the person must be committed with a guilty mind.  This requirement, otherwise expressed with the Latin term mens rea, or culpability, must be present before criminal liability is found.  Essentially, the law seeks to determine whether an accused should be blamed for her conduct.   Would it be fair to punish the accused?  Could the accused have avoided the wrongdoing?  

So, how does one determine if conduct that leads to the death of another amounts to negligent killing or intentional killing?  

For intention to be present for a murder charge, the accused must kill another human while knowing and foreseeing that her conduct constitutes murder (dolus directus or direct intention), or, must kill another whilst subjectively appreciating that a reasonable possibility of death exists (dolus eventualis or legal intention based on accused’s conduct and surrounding circumstances). 

The legal theory used to determine intention in South African law is subjective in nature.  In other words, the accused must be aware that she is committing the crime of murder while performing the act.  However, this purely subjective intention, or dolus, can be proved by the State using objective evidence and drawing reasonable inferences from credible and objective evidence.  

Conversely, culpable homicide is the negligent killing of a human.  Sometimes it is necessary for the law to punish persons for acts they did not intend or did not subjectively foresee.  If an accused person acts in a manner that is objectively unreasonable, even though she believed otherwise, and this conduct leads to death of another person, she is negligent and guilty of culpable homicide.   

In the matter of S v Ngema, a man thought he was being attacked by a Tikoloshe (a dwarf like evil spirit) and hit out with a cane knife approximately nine times.  It turned out to be a two year old toddler and she died as a result of the incident.  The accused was charged with murder and the court held that although he did not have the subjective intention to kill a human, the conduct in warding off the perceived attack was unreasonable.  He could therefore not be charged with murder, he lacked intention.   He was charged with culpable homicide as his conduct was objectively unreasonable and he was negligent.

In the Appellate Division (as it was then, called the Supreme Court of Appeals now) matter of S v De Oliveira a man fired six shots in rapid succession into a confined area (a driveway leading to a house and adjoining cottage) while aware of the presence of people there.  This conduct caused death and injury to others.  He did not testify at his trial and claimed self or private defence.   Private defence, which results in the death of another person, may only be successfully relied upon where an imminent danger to life or property exists – the immanency of danger is tested by looking at the objective facts of the situation.  That being said, in this matter, the highest appeal court upheld a murder conviction on the basis that the accused could not have entertained an honest belief that he was entitled to act in private defence in those particular circumstances. 

This erroneous or mistaken private defence is known as putative private defence – the only matter in issue here is the culpability of the accused, i.e.: whether he can be found to have legal blameworthiness in the form of intention (dolus eventualis), or whether he acted negligently and can be found to have legal blameworthiness in the form of negligence.  In either event, in the De Oliveira matter he was going to be charged with an offence, the question was simply whether the accused acted intentionally or negligently.  In this case, the accused’s silence weighed heavily against him and the court found he that he must have foreseen the possibility of death ensuing to the persons outside, but reconciled himself to that event occurring and proceeded in any event.   His appeal against convictions of murder and attempted murder were dismissed.

Lastly, if the accused makes a material mistake concerning the act this so-called error in objecto may exclude intention – each case will turn on its own facts.  The mistake or error must be material and the subjective intention will be tested normally.  For example, if I am out duck hunting, and I think I am shooting a duck, but the duck turns out to be my attorney friend, I have made a mistake as to the object and I will probably not be charged with murder.  I may, however, be charged with culpable homicide if my conduct was objectively unreasonable.   See former United States vice-president Dick Cheney hunting incident…

[1] Snyman CR, Criminal Law, 5th edition - page 448.  See also page 149-155 for discussion on requirements for murder and culpable homicide.